John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I will place in the Record an article that has become controversial in the fact that it begins to examine more carefully the question surrounding the Independent Counsel, Kenneth W. Starr, in connection with his off-the-record contacts with Members of the media. I ask that this material be included.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from New York (Mr. Nadler) the ranking member on the Judiciary subcommittee for our efforts here today. (Mr. NADLER asked and was given permission to revise and extend his remarks.)

Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I strongly support the Internet Tax Freedom Act. Electronic commerce over the Internet is one of today's most dynamic and important business segments. By approving this bill, the Congress will be taking yet another strong action to protect and foster the so- called information superhighway. The Committee on the Judiciary has already approved on a bipartisan basis bills protecting copyright in cyberspace and eliminating burdensome encryption controls. This bill will help ensure that State taxes do not impede the vibrancy or growth of the Internet. The Internet Tax Freedom Act ensures that States do not enact discriminatory or double taxes which discourage the use of the Internet. At the same time, the substitute protects the States' legitimate rights to tax Internet sales transactions in the same manner they tax the sale of ordinary goods. We also create a moratorium on new taxes on access to the Internet. Currently a complex patchwork of State and local laws creates an impossible situation for online service providers in determining who to tax and to whom to remit. There is also a grandfather clause that will allow current taxes to stay in place if States reaffirm within the 1- year period. We also set up a balanced commission of representatives from the Federal Government, the States and industry to help develop a coherent blueprint for interstate taxation of Internet transactions and mail order goods in the future. The bill grandfathers those States which currently tax Internet access. The legislation we are considering today is almost identical to the version approved by the Committee on the Judiciary on a bipartisan basis and reflects substantial negotiation between the interested parties. I thank all of the participants in this important measure. Mr. Speaker, I reserve the balance of my time.

Mr. CONYERS. Mr. Speaker, I ask unanimous consent that the ranking member, the gentleman from New York (Mr. Nadler) be permitted to manage the bill from this point on and control the time.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I ask unanimous consent to enter into the Record the following letter from the President's attorney, David E. Kendall, to Independent Counsel Kenneth Starr. June 16, 1998. Hon. Kenneth W. Starr, Independent Counsel, 1001 Pennsylvania Avenue, N.W., Suite 490--North, Washington, DC. Dear Judge Starr: In the past three days, you have issued two press releases on the subject of leaks from your office. I think it is appropriate to respond to this public relations initiative. In neither of these two press releases have you denied even a syllable of what the Steve Brill ``Pressgate'' article quotes you and your staff as saying. You accuse Mr. Brill of misinterpreting but not misquoting, and that's highly significant. Your statements in the Brill article are at breathtaking variance with your previous public statements about your duties and actions. Your statements consistently have led the public to believe you would tolerate no leaks of any kind. On January 21, 1998, you stated at your public press conference, ``I can't comment on the investigation as a matter of practice and of law. I just can't be making comments about the specific aspects of our investigation, including to confirm specific activity or not. . . . As an officer of the court, I just cannot breach confidentiality.'' At your public press conference on February 5, 1998, you stated in a CNN interview, ``I'm not going to comment on the status of our negotiations [with Ms. Lewinsky's lawyers] . . . I hope you understand, especially when you ask a question about the status of someone who might be a witness, that goes to the heart of the grand jury process. . . . Those are obligations of law; they're obligations of ethics. . . . I am under a legal obligation not to talk about facts going before the grand jury.'' In your public February 6, 1998, letter to me, you stated that ``leaks are utterly intolerable'' (your words, not mine) and you went on to say ``I have made the prohibition of leaks a principal priority of the Office. It is a firing offense, as well as one that leads to criminal prosecution.'' (Emphasis added). What is so astonishing about your comments in the Brill article is that they contradict not simply our view but your own frequently and publicly expressed views both about the need to put a stop to leaking and your own protestations about your and your own staff's utter innocence in that regard. Your press releases do not, however, address three simple points (there is much else that could be said, of course). (1) If you need to talk to the press, why not do so on the record? The Rule of the Department of Justice's Criminal Division promulgated by President Reagan's Assistant Attorney General in charge of the Criminal Division was: ``Never talk off the record with the media. If you don't want your name associated with particular comments or remarks, you shouldn't make them to media representatives.'' That's a good rule, because it makes everyone aware of who is making a particular statement, and it's especially important if what you're really trying to do is ``engender public confidence'' in your office. What possible justification do you have for secrecy? It's irresponsible and (under the circumstance) hypocritical. (2) You are wrongly applying post-indictment standards of allowable prosecutorial comment. Caught flat-footed by the Brill article, you've attempted to shift your ground by pointing to rules and opinions regarding post-indictment comment by prosecutors. As you well know, the standards are different after an indictment has been brought. At that point, the grand jury has found probable cause to make a criminal charge, the indictment has been openly announced, the defendant has significant procedural rights, including the right to have counsel appointed who will, among other things be able to respond to prosecutorial comments. Prior to indictment, the rule is that grand jury secrecy, a protection designed for witnesses and persons investigated but never finally charged, mandates prosecutorial silence and the confidentiality of grand jury proceedings. (3) The view of Rule 6(e) that you express in the Brill article and (now) in your press releases is demonstrably not the law. You are now attempting to justify leaking by you and your Office by claiming that the information your office has covertly given to the media is not covered by Rule 6(e) because, in your own words as quoted by Mr. Brill, ``it is definitely not grand jury information, if you are talking about what witnesses tell FBI agents or us before they testify before the grand jury or about related matters. . . . So, it I a not 6-E.'' (Emphasis in original.) Again, as you well know, this is not the law of the District of Columbia Circuit (or, for that matter, any other circuit). In the Dow Jones case decided by the United States Court of Appeals for the District of Columbia Circuit on May 5, 1998, that court summarized the secrecy rules legally applicable to grand jury investigations. Citing many cases of this Circuit and others decided over the years, the Court of Appeals emphasized that Rule 6(e) is to be given a broad meaning to encompass much more than simply what transpires within the four walls of the grand jury room. The coverage of the Rule ``includes not only has occurred and what is occurring, but also what is likely to occur. Encompassed within the rule of secrecy are the `identities of witnesses or jurors, the substance of testimony' as well as actual transcripts, `the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.' '' (Emphasis added.) Your public statements in January and February accurately state the law, but your statements to Mr. Brill do not, and the actions of your Office are in violation of the law. The media leaks by your Office also violate the ethics rules for federal prosecutors, see, e.g., DOJ Manual Sec. Sec. 1-7.510; 1-7.530, which under the Independent Counsel Act you are obligated to comply with unless to do so would be ``inconsistent with the purposes'' of the Act. Complying with the DOJ's anti-leaking guidelines could hardly be ``inconsistent'' with the mission of your office. Sincerely, David E. Kendall.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the gentleman from Massachusetts (Mr. Delahunt), himself a former prosecutor.

Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Reyes).

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I include for the Record the following excerpts from the Department of Justice guidelines, the Rules of Professional Responsibility for the District of Columbia Bar, the American Bar Association's Standards of Professional Conduct, and the Rule of the District Court of the District of Columbia concerning a prosecutor's obligations not to publicly disclose confidential investigative information.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, I enter into the Record the following opinion editorial from today's New York Times. Kenneth Starr Stretches the Rules (By Ronald K. Noble) What are we to make of Steven Brill's article contending that Kenneth Starr, the independent counsel, and his deputy, Jackie Bennett, may have leaked grand jury information about their investigation of President Clinton? Many opponents of Mr. Clinton want to dismiss Mr. Brill's article, which appeared this week in his magazine, Brill's Content. But that would be a mistake. These leaks may violate Federal laws and Justice Department regulations. The possibility of such improper disclosures must be investigated. In his article, Mr. Brill wrote that Mr. Starr and Mr. Bennett had given reporters background information--including accounts by witnesses who were to appear before a grand jury--regarding the investigation into Mr. Clinton's relationship with Monica Lewinsky. Mr. Starr has issued two denials to the article. His first denial did not challenge Mr. Brill's facts; instead, the independent counsel challenged the conclusion that such disclosures were illegal and unethical. In his second denial, Mr. Starr stated that his office ``does not release grand jury material either directly or indirectly, on the record or off the record'' and that it ``does not release (and never has released) information provided by witnesses during interviews, except as authorized by law.'' These denials beg the question of what Mr. Starr considers grand jury material, what he believes is authorized by law and what he and Mr. Bennett actually said to reporters. Indeed, before the Brill article appeared this week, many press reports had already attributed information about the investigation to the prosecutor's office. We don't know all the facts, but Mr. Starr, as quoted in Mr. Brill's article, does not give us confidence about his interpretation of the law and Justice Department regulations. In the article, Mr. Starr said that certain disclosures do not violate a Federal criminal law that prohibits prosecutors from disclosing information about grand jury proceedings. ``If you are talking about what witnesses tell F.B.I. agents before they testify in the grand jury or about related matters,'' Mr. Starr said, that is ``definitely not grand jury information.'' Mr. Starr also said that the Justice Department's ethical guidelines allow disclosures when the public needs reassurance that an investigation is being conducted properly. Indeed, in the article, Mr. Starr suggested that it was his duty to make such disclosures if doing so would boost the public's confidence in his office. But the laws on disclosure contain few loopholes. Last May, the United States Court of Appeals for the District of Columbia ruled that it is a violation of Federal law not only to release unauthorized information about what witnesses said to the grand jury, but also to disclose what witnesses said to prosecutors and agents in preparing for their grand jury testimony. Moreover, Mr. Starr and his staff members are also covered by the Privacy Act, which prohibits disclosing confidential information about individuals. This law covers all Federal employees, not just prosecutors, who have access to such information because of their jobs. Justice Department guidelines are no more lenient. To make a case for an exception, Mr. Starr seems to rely on a department rule that allows disclosure of ``matters about which the community needs to be reassured that an appropriate law-enforcement agency is investigating the incident.'' This is a stretch. The Justice Department specifically forbids prosecutors from answering questions about an ongoing criminal investigation or from commenting on its progress-- including the serving of subpoenas before the documents have been publicly filed. And department guidelines on media relations state that no one in the department should release information that is likely to prejudice any legal matter. In short, there are few situations where substantive information on an investigation can be released. And if information is released, it should be on the record. Any off- the-record conversation between prosecutors and reporters is by definition suspect. If the prosecutor is permitted to say what he is saying and is prepared to be held accountable for it--why not do so on the record? That way the public and the judge presiding over the grand jury investigation can decide whether the prosecutor is following the rules. Last February Mr. Starr claimed that he was investigating whether his office was leaking information. Given the allegations about Mr. Starr's and Mr. Bennett's background conversations with reporters, one wonders how thorough that inquiry could have been. Now, Mr. Starr has no choice but to ask for an independent investigation to determine what, if any, information his office revealed to the press and whether that information violated any rules. Unless action is taken quickly, it will appear that the Independent Counsel's Office is above the law.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, Attorney General Janet Reno's announcement today that allegations of improper conduct by Independent Counsel Ken Starr have been referred to the Justice Department's Office of Professional Responsibility is an appropriate first step. Over the past few days, serious questions concerning the behavior of Mr. Starr and his staff have been raised. On the one hand, a respected journalist, Steven Brill, says that Mr. Starr admitted leaking grand jury information. For his part, Mr. Starr does not deny meeting with reporters on an ``off the record basis.'' Instead, he says that the information he provided during those meetings was not covered by Rule 6(e) of the Federal Rules of Criminal Procedure. To resolve this dispute, any investigation must determine two important things. First, exactly what information did Mr. Starr give to reporters during his ``off the record'' meetings? Second, what are the legal rules that govern what an Independent Counsel can say to a reporter? In his recent letter of complaint to Mr. Brill, the Independent Counsel seems to take the position that Rule 6(e) should be interpreted very narrowly to apply only to disclosures of events or testimony that actually occur in the grand jury room. The law in the District of Columbia Circuit does not support that view. In its opinion in the Dow Jones case, which was decided in May of this year, the D.C. Circuit wrote that Rule 6(e) reaches ``not only what has occurred and what is occurring, but also what is likely to occur. Encompassed within the rule of secrecy are the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations of questions of jurors, and the like.'' The Dow Jones case makes clear that Rule 6(e) applies much more broadly than the Independent Counsel has argued in his public statements over the past few days. A review by the Justice Department's Office of Professional Responsibility is a good first step toward resolving the important factual and legal issues that are disputed in this case.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, Rule 6(e)(2) of the Federal Rules of Criminal Procedure governs the secrecy of grand jury information. It provides: ``A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.'' In a case called In re Motions of Dow Jones & Company, which was decided in May of this year, the D.C. Circuit wrote that Rule 6(e) reaches ``not only what has occurred and what is occurring, but also what is likely to occur. Encompassed within the rule of secrecy are the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.'' The Dow Jones decision involved a request by media organizations for access to court hearings and pleadings regarding Mr. Starr's investigation of the President. The rule and the Dow Jones case make clear that an Independent Counsel may not disclose evidence or testimony that he or she reasonably expects to be presented to a grand jury.

Mr. CONYERS

Mr. CONYERS. Mr. Speaker, we are here today to ask that the United States Congress award its highest distinction to Nelson Mandela, a man who fought for freedom for the people of South Africa, and became a beacon of hope for people all around the world. When on trial for the crime of fighting against apartheid, he said these famous words: I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and achieve. But if needs be, it is an ideal for which I am prepared to die. When, after a quarter century of imprisonment, Nelson Mandela was inaugurated President of South Africa in 1994, he did not disappoint the millions of people who believed in him. He embarked on the hard path of reconciliation and healing, rather than the easy road of revenge and divisiveness. I and many of my colleagues had the honor of working with President Mandela when we voted to impose sanctions on the old South Africa, and many of us were able to meet with him again when we traveled to the new South Africa with the President. Mr. Speaker, there is no one who fought more or gave up more for the ideals of justice and equality which Americans hold dear. And therefore, I believe that there is no one more worthy of receiving the honor of a Congressional Gold Medal.

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I ask unanimous consent to claim the time in opposition, though I am not opposed to the amendment.

Mr. CONYERS. Yes, Mr. Chairman, I am opposed to the amendment.

Mr. CONYERS. Mr. Chairman, I yield myself as much time as I may consume. The reason that this is not a clear opposition is because I want to be in support of the amendment. As the gentleman from New Jersey knows, there is one little problem that is being worked out, and we are in the process of working it out, as the author of the amendment knows. I think we can accomplish that end. First of all, I think the purpose of the amendment is laudatory. On- line liability by providers is a complex problem. One of the things we are doing in the Committee on the Judiciary is sorting out who is responsible for all of these new kinds of problems that may lead to liability, legal liability; and that is what is presented here. We have been working on intellectual property considerations with the subcommittee. I might add that the gentleman from Florida (Mr. McCollum) is involved deeply in this as well as myself in terms of on- line copyright liability. So there has been negotiation, compromise, give-and-take, to reach a compromise which allows such liability, but only after certain conditions are met. Example: The pending OSP bill requires actual knowledge before a liability can ensue. Unfortunately, as the gentleman has written this amendment, it does not meet that test. It is a test that may be considered too vague. We are trying to work that language out. So it is my understanding that there is such an effort that is continuing as we speak, and we would agree to a unanimous consent request to alter the amendment if this agreement is reached. On that basis, I would be delighted to reserve the balance of my time, hoping that this can be worked out. Mr. Chairman, I reserve the balance of my time.

Mr. CONYERS. I commend the gentlewoman for the amendment. I support this amendment authorizing the National Institute of Justice to conduct a study of persistent sexual predators and report to Congress on the results. People who commit sex crimes have a higher recidivism rate than those who commit other crimes and we need to know why. The effect of sex crimes on their victims is devastating. Such crimes often leave life-long scars. Yet despite the devastation caused by these crimes, and despite the fact that we know sex crime perpetrators are very likely to repeat their crimes, remarkably little research has been conducted. This is an area that would clearly benefit from further research. If we could learn why sex crimes perpetrators are so likely to repeat their crimes, and what types of people are most likely to become sexual predators, perhaps with early intervention, we could prevent some of those individuals from becoming criminals. More importantly, perhaps we could learn how to stop some sex crimes from occurring at all.

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, could I ask the subcommittee chair and the author of the amendment that we allow this to go through, with the understanding that we will have a conference? It is likely we will not get anything in time here to make the corrections.

Mr. CONYERS. I yield to the gentleman from Florida.

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. We do have this civics class hot-off-the-press information, handwritten. It looks like it is a step in the right direction. I hate to report for Civics 101 that we cannot find who on our staff worked on the compromise, so tell me, what do I do now? We agreed to the good faith bona fides of both the author and the subcommittee chair with whom we worked, and I think the question has been flagged sufficiently, that if we need to go back and look into it, I am sure that particularly my colleague on the Committee on the Judiciary will help us revisit this, if it is necessary. Mr. Chairman, I have withdrawn my reservations about the measure, and based on this new compromise language which I hope the gentleman will find acceptable, I will support the amendment.

Mr. CONYERS. I yield to the gentleman from New Jersey.

Mr. CONYERS. Mr. Chairman, I offer an amendment.

Mr. CONYERS. Mr. Chairman, I have no further requests for time, and I yield back the balance of my time.

Mr. CONYERS. Mr. Chairman, I am pleased to yield such time as he may consume the gentleman from Massachusetts (Mr. Delahunt), a former prosecutor with a great deal of experience in this area and a member of the Committee on the Judiciary.

Mr. CONYERS. Mr. Chairman, I am delighted to yield 4 minutes to the gentlewoman from Houston, Texas (Ms. Jackson-Lee), a member of the Committee on the Judiciary who has given yeoman service in this area. (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)