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“INDEPENDENT COUNSEL” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S6436-S6437 on June 17, 1998.
The publication is reproduced in full below:
INDEPENDENT COUNSEL
Mr. TORRICELLI. Mr. President, during the course of the last year as a member of the Judiciary Committee and the Governmental Affairs Committee, I have felt that part of my responsibilities are to follow the investigation of independent counsel Kenneth Starr in some particular detail.
I, like many Americans during the course of this last year, have been troubled about Mr. Starr's investigation and the sensitivity to the rights of individual Americans in any sense of balance or fairness with which he is pursuing his responsibilities. During the course of this year, I have, on six different occasions, written to Attorney General Reno, noting problems with the investigation or particular areas of concern. These have included possible conflicts of interest on the part of Mr. Starr and his deputy, Mr. Ewing, and that Mr. Starr continues to draw a salary from his law firm in excess of $1 million--a law firm that represents important interests, including tobacco companies whose future interests may be at variance with policy positions of the Clinton administration while Mr. Starr is investigating President Clinton.
Second, Mr. Starr's association with people and organizations that appear intent on discrediting President Clinton. These, of course, would include Mr. Scaife, Mr. Starr's association with Pepperdine University, his promise of employment while being funded by an individual who is committed to the destruction of President Clinton personally and politically.
Third, the question of possible witness tampering. This, Mr. President, goes to the question of allegations of payments to David Hale by individuals associated with some of these organizations that may have undermined the credibility of testimony given in the Whitewater investigation.
All these issues for the moment aside, each individually troubling, we are now confronted with a new and potentially more serious question, and that is the apparently purposeful releasing, or to use the vernacular, ``the leaking,'' of the sensitive nonpublic and possible grand jury information by Mr. Starr and his associates. During this investigation, various newspapers and television accounts have repeatedly used ``unnamed sources'' to report information that made it appear likely, if unmistakable, that the Office of Independent Counsel was providing information to reporters that was otherwise protected as a matter of law, if not just department policy.
Now in an exhaustively detailed account, a new publication, Brill's Content, has reviewed the independent counsel investigation of the President and found clear and unmistakable evidence that Mr. Starr and his associates have purposefully leaked information about the investigation of President Clinton. If these reports are true, Mr. Starr's activities are not only a violation of the ethical standards of the legal profession, they are a direct possible violation of rule 6E of the Federal Rules of Criminal Procedure and an obvious violation of Department of Justice guidelines.
This leaking would obviously have been objectionable if undertaken by an individual U.S. attorney or another Department of Justice official. The precedence of the Department of Justice almost certainly would have led to an investigation by the Office of Professional Responsibility with sanctions or firing by the individual responsible. But undertaken by someone in the Office of Independent Counsel, it is, in my judgment, an offense of a far greater nature because the independent counsel has been given unparalleled, even unprecedented powers, to investigate the President of the United States without much of the oversight and accountability that is required of career prosecutors or others in the Justice Department itself.
It obviously poses a direct and fundamental threat to the credibility and effectiveness of the Office of Independent Counsel. Before this goes any further and the Office of Independent Counsel and the statute upon which it rests is further undermined, there is an obvious and overwhelming need for either the Federal courts, in their direct responsibility to oversee this investigation, or Attorney General Reno in her responsibility in the administration of the Department of Justice, to undertake an immediate and thorough investigation of the Office of Independent Counsel, because if these allegations that Kenneth Starr is leaking protected grand jury information are true, then the Office of Independent Counsel is spinning seriously out of control and operating outside of the law.
Mr. President, the evidence today, if not conclusive, is overwhelming. On February 6, 1998, David Kendall, the President's personal attorney, wrote a 15-page letter to the Federal district court detailing dozens of instances of obviously improper disclosure of grand jury information.
In response, Mr. Starr told numerous media outlets that these leaks were not coming from anyone in his office. In a letter to Mr. Kendall, Mr. Starr wrote, ``From the beginning, I have made the prohibition of leaks a principal priority of the office.'' Starr continued, ``It is a firing offense, as well as one that will lead to criminal prosecution.'' Mr. Starr continues, ``I have undertaken an investigation to determine whether, despite my persistent admonition, someone in this office may be culpable.''
Despite calls from the Department of Justice and the Office of Professional Responsibility to investigate, the Attorney General of the United States, Ms. Reno took Kenneth Starr at his word and allowed him to proceed with an internal investigation of his own office. Although Mr. Starr pledged to end these leaks and investigate any wrongdoing, it is obvious that he neither investigated nor changed the conduct of his office, or as now we know, even himself.
This week, Steven Brill in his magazine Content provided even further evidence of these transgressions. Mr. Brill reports that he has personally seen internal memoranda from 3 different national news organizations that cite Mr. Starr's office as the source of many of these stories of grand jury leaks.
He discloses an internal publication of the New York Times, in which its Washington editor is quoted as saying, ``This story was very much driven in the beginning on sensitive information that was coming out of the prosecutor's office. And the sourcing had to be vague because it was * * * given with the understanding that it would not be sourced.''
But if this sourcing, this reporting and analysis was not enough, these disclosures have been confirmed directly by Mr. Starr himself.
On April 15 of this year, Brill reports that Starr acknowledged that he and his office have provided non-public information to reporters. Mr. Starr said, ``I have talked with reporters on background on some occasions, but Jackie [Bennett, his deputy] has been the primary person involved in that. He has spent much of his time talking to individual reporters.''
Mr. President, in his statement, Mr. Starr confirms what many of us have suspected all along: the Office of Independent Counsel has not only violated department guidelines on providing information, but it may have violated Rule 6E of the Federal Rules of Criminal Procedure, and committed a criminal offense in its own investigation.
Mr. President, I need not remind my colleagues of the seriousness of this possible criminal offense by Mr. Starr's office.
It has been a founding principle of Anglo-American law that confidentiality of grand jury investigations is central to the administration of justice.
Mr. Starr has defended his media leaks by saying they were not a Rule 6E violation. He says, ``* * * if you are talking about what witnesses tell FBI agents or us before they testify before the grand jury or about related matters,'' they are not violations.
Mr. President, Mr. Starr's defense may be that he violated the spirit, but not the letter of the law. Tragically, Mr. President, that is not the case under the precedents of this country.
On May 5, 1998, in In Re: Motions of Dow Jones and Company, the Court of Appeals of the District of Columbia--the court which, ironically, has jurisdiction over Mr. Starr's current grand jury investigation--
ruled that leaking information about prospective witnesses who might testify at a grand jury, about expected testimony, about negotiations regarding possible immunity, and about the strategy of grand jury proceedings, all violate Rule 6E.
The court wrote, ``Matters occurring before the grand jury'' that cannot be disclosed ``* * * include not only what has occurred and what is occurring, but what also is likely to occur.''
What is therefore so shocking about Mr. Starr's own defense of his activities, his disclosures, is not that there is a precedent to the contrary to which one can be referred, it is that Mr. Starr himself is fully aware of this restriction. They are in the law. He knows them and he violated them.
In one of his impromptu sidewalk press conferences, held February 5 of this year, Mr. Starr told reporters that he could not talk ``* * * about the status of someone who might be a witness [because] that goes to the heart of the grand jury process.''
Exactly, Mr. Starr. Disclosing potential testimony, likely testimony of someone who might appear before a grand jury, is not outside the Federal statute or its precedence; in your own words, Mr. Starr, it goes to the heart of the process and the protection afforded citizens of this country. There is a reason. This being a Nation that is ruled under the precedence of law, there is a reason why this Congress, the Justice Department, and the courts have protected grand jury information.
If Mr. Starr's violation goes unanswered and he is not held accountable, there are consequences for all Americans, in all investigations, by all prosecutors, in all years to follow, because without it we could not guarantee that witnesses would ever feel free to disclose information to an investigator. They would live in fear that it would always potentially be disclosed. We could not ensure that grand jurors would be able to deliberate free from the influence of interested parties who would manipulate their investigation in public debate. We could not preserve the reputation of witnesses called before the grand jury, but found not guilty of any crime.
Mr. Starr's activities are not simply a violation of the rights of President Clinton or grand jury witnesses, they are a violation of the administration of justice in this country.
Mr. President, all crimes in the United States are not equal or serious. But crimes committed by Government in the administration of justice against individual Americans, given the vast and enormous and disparate power of Government in the administration of justice can be the most serious crime of all. It is that to which Mr. Starr stands accused today.
Mr. President, I do not know how Attorney General Janet Reno is dealing with these allegations. One can only imagine, because when the public debate began about possible grand jury leaks and the violations of Federal criminal statutes with regard to disclosing information, Mr. Starr stood silent. He permitted the Attorney General of the United States to allow him to proceed with an internal investigation of these grand jury leaks of his own office when all the time he knew that he was the source of some of the leaks, potentially undermining not only public confidence in the investigation but almost assuredly the confidence of the Attorney General herself.
Mr. President, I don't know what Janet Reno is thinking. But Kenneth Starr made a fool of the Attorney General of the United States having her proceed with Mr. Starr investigating his own transgressions.
This maneuvering, however, to many in this institution will not come as a surprise. The problems with the independent counsel have been coming for some time, and, indeed, almost incredibly Justice Scalia predicted in his dissent in Morrison v. Olson exactly what has now occurred.
A prosecutor so focused on one suspect under the laws of the independent counsel would, and he wrote, and I quote, ``What would normally be regarded as a technical violation * * * may in his or her world assume the proportions of an indictable offense.''
Mr. President, this is exactly what has occurred. Mr. Starr has been transformed from one who is supposed to be an objective prosecutor into a partisan political actor without oversight from the Department of Justice, control of the Federal courts, and no longer even operating within Federal law.
Mr. President, I call upon my colleagues to join me in urging the Attorney General to once again assume her lawful responsibilities in the administration of justice, recognizing that the Office of Independent Counsel cannot operate outside of Federal law. Mr. President, it is high time at last to restore the credibility of this investigation.
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