Paul Sarbanes

Mr. SARBANES

Mr. SARBANES. Mr. President, I think it is a perfectly legitimate question for the public to be asking. I do not think there is any question about it. First of all, it must be understood that the independent counsel's work will continue. Who knows how long that will go on. Under the charter, it is unlimited and the amount of resources is unlimited. They have already, we understand, spent $25 million, or at the rate of $1 million a month. He has broad authority. He has a professional staff of approximately 130 people, 30 attorneys, over 100 FBI and IRS agents, and the Reauthorization Act sets no limits on the duration or the cost of his investigation. So that is at work. It has been at work for a long time. It will continue to be at work. Now, he is about to start some trials. The other side treats those trials as though they are going to be held on camera. They say, ``We need the testimony of the people at those trials.'' Those people are going to make their testimony at the trial, and it will be on the public record. This committee has held almost 50 days of hearings. It has heard from over 120 witnesses. It has taken over 200 depositions. It has gotten tens of thousands of pages of documents from the White House and from the President and First Lady's private attorney. It has nearly 30,000 pages of deposition testimony.

Mr. SARBANES. I yield to the Senator.

Mr. SARBANES. We do not have that figure. The figures we are giving are public expenditures of money to do the inquiries. The costs that are imposed on the people that come forward as witnesses we have no accounting for, although we do understand that for many of these people those costs are very substantial and they are in no position to bear the cost. I want to distinguish between two groups of witnesses. There are some who come before the committee, and I agree completely, they ought to be there. There are questions that need to be asked if we are going to do our inquiry. One of the consequences of such inquiry is that people bear costs, and at some point I think we need to give consideration to that as a Congress. There are other people that are being called before our committee and they get there, and they essentially sit there through the hearing. They really have not much to contribute. Maybe they get asked a few questions, and then they, too, incur expense. Some of these are very young people, and others hold low-level positions-- clerks, secretaries. It is very clear that this is a terrifying and traumatizing experience for them, personally traumatizing.

Mr. SARBANES. I would then make this point about the situation we find ourselves in here now, because I know the matter is pending in the Rules Committee.

Mr. SARBANES. Furthermore, if the leader will yield, is it not the case that any charge relating to obstruction of justice will be handled by the independent counsel? This committee is not going to bring such a charge, or instigate any punishment. We do not have the authority to do that. That is something the independent counsel does. And is it not the case that whenever our hearings end, the independent counsel will continue? He has an open-ended charter, and it is his responsibility to look into this matter and to bring charges for any violation of the criminal law.

Mr. SARBANES. Mr. President, some of my colleagues on the other side have been treating this matter as though the choice is between terminating the inquiry right here and now or an indefinite extension, which is what Senator D'Amato has proposed. I want to underscore the fact that Senator Daschle put forward last week a proposal for providing additional time and funding to complete the work of the special committee authorized by Senate Resolution 120. Senator Daschle proposed providing until April 3, an additional 5 weeks, for the Senate committee to complete its hearings schedule and until May 10, a further 6 weeks thereafter, for the committee's final report to be produced. Senator Daschle proposed then, in order to carry us through that period, additional funding of $185,000; not $600,000. Let me point out, in Iran-Contra, in the 5 weeks leading up to the end of their hearings, they held 21 days of hearings. So, if this committee followed the schedule of the Iran-Contra committee in July and August of 1987, it could do 21 days of hearings within the time period provided by the proposal put forward by the majority leader. That is almost half again as many hearings as have already been conducted by this committee over this entire period. Five weeks of additional hearings should be more than adequate to complete the so-called Arkansas phase of this investigation. In fact, that phase concerns events that occurred in Arkansas some 10 years ago, events which have been widely reported on since the 1992 Presidential campaign and about which much has already been said. Witnesses have been brought in, and they tell the same story that has been in the newspaper 3 and 4 years ago. In fact, I must tell you--I do not have it here with me, I will get it for further debate-- we had one witness with whom we were going over the notes about the January 1994 period. So the next day there was a story in the press about that. We compared that story with the story that had been written in the press back at the time. The first two paragraphs of those two stories are virtually identical. I mean, we are simply replowing old ground. I understand some people want to do that, as well as whatever new ground there may be. But to now appropriate another $600,000 in order to carry out this kind of inquiry? This investigation can be brought to a proper conclusion for far less money than the $600,000, and the remainder of those funds can be put to a far more constructive purpose. As I indicated before, the inquiry of the independent counsel will continue. He and his predecessor have already spent more than 2 years investigating Whitewater-related matters. We anticipate they will continue. So it is not as though these matters are not going to be looked into. In fact, this committee does not have the power of bringing actions. That rests with the independent counsel. In addition, as my distinguished colleague from Connecticut, Senator Dodd, pointed out, a comprehensive report by an independent law firm, Pillsbury, Madison, and Sutro, retained by the RTC, has now been made public. Its key findings are that they find no conduct on the basis of which action can be brought. Let me now turn to two arguments that are put forward to support an open-ended extension of time, which is what the proposal is that is before us. One is that there has been delay complying with White House document requests by the White House. And regarding complying with document requests, they point to documents that are provided late. I just want to make this point. Those documents were provided. I have been in other inquiries in which documents were never provided; in fact, in which they were destroyed. What happens here is they come forward with the documents. Instead of saying, ``Good, we have the documents, we can now examine them,'' people are berated because the documents were not provided earlier. It is reasonable, with respect to each person, to ask them why were they not provided earlier. I mean Mark Gearan said that, by mistake, these documents were packed up, put in a box, and shipped over to the Peace Corps when he went there to be the Director. He did not know that had taken place. Later he found out that it had taken place, and he moved, then, to respond with the documents to the requests that had been made of him. But it must be understood that the White House experienced difficulties in complying with document requests because some of the majority's requests were extremely broad and burdensome. For example, in early September the majority sent to the White House a request--now, listen carefully to this--calling for the production of any communications, contacts, or meetings; any communications between anyone in the White House, current staff or former staff, and anyone on a list of about 50 people, on any subject--any subject matter whatsoever--over a 18-month period. Just think of that. Take a moment to think about that. You get a document request that says we want any communication between any present or former member of the White House staff, which is quite a large number. I do not know the exact number. But it is many, many people, and anyone on a list of more than 50. Actually that list included any employee of the RTC which literally involves thousands of people if you take it literally--any communication between those groups on any subject matter; any subject matter whatsoever over an 18-month period. Think of the enormity of that request. Obviously, such a broad and onerous request slowed down the document production effort. We engage then in an effort to narrow this request and to focus, and in effect to pinpoint it on what was really relevant, and once that was done, we were able to get a response in a reasonable period of time. The majority request for electronic mail records encountered the difficulty that the White House did not have an existing capability to retrieve all e-mail messages potentially encompassed by the committee's request. The White House attorneys explained that the e-mail system implemented by the Bush administration and inherited by the Clinton administration did not save e-mail records in retrievable form. Under the Bush administration's system, only weekly backup tapes for the entire computer network were maintained up until the Clinton administration put a new system in place in July 1994. The White House actually has produced responsive e-mail created after July when they put their new system into place. So there was a problem on how to proceed under the technical constraints imposed by the Bush administration. Finally, this matter was resolved through a more specific definition by the committee of the e-mail request. In other words, we were able to identify particular weeks instead of a broad request over an extended period of time involving huge numbers of people. The White House committed a major outside computer contractual firm to assist it, and we have now been receiving those e-mail. We still have 1 or 2 weeks to go in terms of furnishing them to the committee, although additional requests have been made in recent days I understand. In any event, it is important to recognize that these documents were produced, and, in fact, one produced contained little meaningful information. Let me turn to the argument that is made that we need an indefinite extension in order to await the completion of the trial that is about to begin in Little Rock. When the Senate passed Resolution 120 creating the special committee and defining its powers and responsibilities, the independent counsel's investigation was already well under way. The Senate recognized that fact and provided for it in the resolution. It was not the intent of the Senate, as reflected in the resolution, that the special committee's work be delayed, or put on hold because of the activities of the independent counsel. In fact, the independent counsel has along the way raised concerns about the committee's investigation. The committee declined to suspend its work to accommodate those concerns, and on October 2 of last year Chairman D'Amato and I wrote to independent counsel Kenneth Starr and advised him that the committee intended to proceed with its investigation contrary to wishes expressed by him in his letter of September 27. We said in that letter, We believe that the concerns expressed in your letter do not outweigh the Senate's strong interests in concluding its investigation and public hearings into the matters specified in Senate Resolution 120 consistent with section 9 of the resolution. In other words, on October 2, we said to the independent counsel we are going to go ahead despite your inquiries in order to complete by the date provided in the resolution, February 29. We are not going to await the outcome of your trial. Now we are being told just the opposite. Now we are being told we must await the outcome, and therefore we must extend the inquiry beyond the completion of the pending trial. Indeed, four witnesses have informed the committee that they will invoke their right against self-incrimination and refuse to testify. But that is no reason for the committee to extend this investigation into the political season, a result the Senate avoided when it provided the funding for the investigation only through February 29, 1996. That problem was recognized at the time. It was part of the thinking at the time. And the thinking was that we would not defer if that became the issue before us to the independent counsel. In fact, in that letter of October 2 to independent counsel Starr, Chairman D'Amato and I said, with respect to the position of the special committee in seeking the testimony of defendants in criminal trials initiated by the independent counsel, and I will quote: The special committee does not intend to seek the testimony of any defendant in a pending action brought by your office, nor will it seek to expand upon any of the grants of immunity provided to persons by your office or its predecessor. That was the position that the committee took on October 2 as we projected forward as to what our work schedule would be. It must be understood that delaying beyond the trial will not affect the ability of witnesses to assert their privilege against self- incrimination. In fact, I think it is fair to say that they can be expected to continue to assert their fifth amendment privileges. Even the availability of defendants, if one were to decide to seek them, would be affected by the trial's outcome. If the defendants are convicted, appeals will likely follow probably on numerous grounds and take months, years. All my colleagues know the workings of the legal system. During that time, the defendants will retain their fifth amendment privilege notwithstanding the prior trial and conviction. Even if acquitted, they retain the privilege for charges other than on those on which they were tried. So it is very unlikely you will obtain this testimony in any event. Second, this trial is being treated as though it is going to be in camera. In other words, that this trial is going to begin and that no one is going to know what the testimony is at the trial. Now, obviously, that is not the case. I am told, in fact, that the press and media are already moving from here in Washington to Little Rock, and so I anticipate that the trial will be well covered and well reported. No one knows, of course, how long the trial will last. Estimates are 10, 12 weeks, maybe longer. I think this letter that we sent--and I will discuss it at greater length subsequently because I take it my colleagues wish to speak, but the October 2 letter which Chairman D'Amato and I sent to Independent Counsel Starr is instructive in this regard because it operated on the premise that we had to complete our work, that we were not going to be placed in the posture by the independent counsel of backing up our work behind his work. I think that was a wise position then. I think it remains a wise position. I am very frank to tell you, as I indicated at the outset, that the proposal for $600,000 funding and the unlimited extension of time is a proposal that disregards concerns expressed here a little less than a year ago, concerns that Senator Dole has expressed on other occasions with great vigor, completely disregards concerns about extending the investigation deep into a Presidential year, and therefore I think it undermines the credibility of the investigation and creates the public perception that it is being conducted for political purposes. I do not think there is justification for the proposal for an indefinite extension of time. I am very much opposed to it. Senator Daschle has come forward with an alternative proposal that I think is reasonable. He has not said that we are going to simply stick with Senate Resolution 120. He has offered a proposition to extend the hearing schedule to the beginning of April and some additional time to do the report. I think the committee could complete its inquiry within that time period, and I think that will give some assurance to all of us here and to the American people that this investigation is being conducted in a fair, thorough and impartial manner. Mr. President, I yield the floor. Mr. LOTT addressed the Chair.

Mr. SARBANES. You had all the days when you could have done it, and you did not do it.

Mr. SARBANES. Chairman D'Amato has quoted the Iran-Contra. I just want to turn to that for a moment, if the distinguished leader would indulge me. At that time Senator Dole--and the distinguished leader quoted one of his quotes--but Senator Dole also said, ``I am heartened by what I understand to be the strong commitment of both the chairman and the vice chairman to avoid fishing expeditions and to keep the committee focused on the real issues.'' He was working for a limited time period, originally just 3 months. In the end, a longer period was established. But it was pointed out at that time that it escaped no one's attention that an investigation that spilled into 1988 could only help keep Republicans on the defensive during the election year. Chairman Inouye, who chaired the Senate committee, and Chairman Hamilton, who chaired the House committee, recommended rejecting the opportunity to prolong and thereby exploit President Reagan's difficulties. In other words, they were not willing to turn it into a political gain, which is what is now happening here. They determined that 10 months would provide enough time to uncover any wrongdoing. Let me say to the leader, in order to meet that standard, the Iran- Contra committee, in the period between July 7 and August 6, held 21 days of hearings. It met Monday through Friday, over a 5-week period, with only 3 open days during that period. There were 21 hearings--this is Iran-Contra--in order to complete its work, keep it out of the 1988 election year, and not turn it into a political charade. We urged the chairman of the committee earlier. In fact, the distinguished leader, I believe, wrote to the majority leader in the middle of January urging that the committee intensify its work in order to complete it by the February 29 date; is that not correct?

Mr. SARBANES. I think the minority leader is absolutely correct. Let me draw this contrast. I want Members to focus on this. This is the hearing schedule in the Iran-Contra hearings, an instance in which the Democratically controlled Congress set a date and undertook to meet it in order to keep that inquiry out of--out of--the Presidential election year. In other words, we sought not to play politics with that issue, and in order to complete in a 1-month period, we held 21 days of hearings in order to complete that work. Contrast that with the Whitewater hearings over the last 2 months of the committee's existence--not the last 1 month; the last 2 months. In January, no hearings this week; no hearings except 1 day; no hearings here except 2 days; no hearings here except 2 days; 2 days. Eight days of hearings over the entire month of January, 8 days only during the entire month of January. Actually 7 days. I misspoke; 7 days of hearings. In February, did it get much better? No, it did not. In the month of February, 8 days of hearings. Seven days in January, 8 in February, for a total of 15 over a 2-month period, as we are coming toward the deadline. Contrast that with the Iran-Contra committee, which held 21 days of hearings in a 1-month period as it approached its deadline in order to complete its work. In fact, this week there are no hearings at all. Last week, there was only one hearing. So instead of an intensification, which the leader requested and which we urged on the chairman of the committee, we had just the contrary--just the contrary. It was our articulated position in mid-January, and one I continue to hold to in retrospect, that if we had followed an intense hearing schedule, as the Iran-Contra committee did, the work could have been completed. That did not happen. Then we get a request for $600,000, which would take this committee's allocation up to $2 million, and an indefinite time period for the inquiry. The minority leader, the distinguished Senator from South Dakota, offered an alternative, which I thought was eminently reasonable. The alternative of the minority leader provided that the hearing schedule would be extended 5 weeks, until the 3rd of April, and the time for the filing of the report until the 10th of May. This matter was taken up in the committee and it was rejected, I regret to say, on a straight party-line vote of 9 to 7; an eminently reasonable proposal. The proposition now that advanced out of the Banking Committee and went to the Rules Committee, the resolution that Chairman D'Amato is referring to, is a proposal for $600,000 and an indefinite time period, which, of course, guarantees that this matter will be carried out right through the election year. The public confidence in this inquiry, to the extent it has not yet been eroded, will, in my judgment, be severely eroded by pushing this inquiry further and further into the election year. That was recognized when we passed Resolution 120. I think there is a growing perception in the country that these hearings are being seen as being politically driven. Of course, that undercuts the credibility of the hearings. The public contrasts the attention and hearings here compared with no hearings on Medicare cuts, hardly any hearings on jobs, and so forth. The independent counsel is there to carry out inquiry, in any event, and many obviously feel that he should be allowed to do his work. No congressional committee has ever placed itself behind an independent counsel. We did not do that in Iran-Contra, and we should not do it here. I say to the leader that an intense hearing schedule could complete this matter. That is what ought to be done. I think the proposition put forward by the leader is right on target.

Mr. SARBANES. I have both January and February.

Mr. SARBANES. Is the minority leader aware that one of the strongest advocates of placing a time limit in order to ensure that the hearings would not drag into a political year was the then-minority leader, now majority leader, Senator Dole, at the time of Iran-Contra? At that time, he said there was a conflict between some Democrats, both in the House and Senate, who wanted no time limitations placed on the committee and Republican Members who wanted those hearings completed within 2 to 3 months, which was an absolutely truncated period. I want to point out that we joined in a resolution last year in May that carried these hearings to February 29, so we made no effort then to have such a truncated period that it would not be possible to do the work. Senator Dole then said he wanted to shorten the time period even more. He says, ``I do believe that shortening the time period from October 30 to August 1 is a step in the right direction. If, in fact, we do want to complete action on this resolution at the earliest possible time, then the August date will be extremely helpful.'' Then he went on to say, ``I am heartened by what I understand to be the strong commitment of both the chairman and vice chairman to avoid fishing expeditions, to keep the committee focused on the real issues.'' Later in debate he said, ``There is still a national agenda that needs to be pursued. There are a number of issues that must be addressed. The American people are concerned about the Iran-Contra matter, but they are also concerned about the budget, about the trade bill, about health care, and a whole host of issues that will have to be addressed in this Chamber. The problems of the past, as important as they are, are not as important as the tasks of the future.'' Now, the Democratic-controlled Congress recognized--it escaped no one's attention--that if the investigation spilled into 1988, it would keep the Republicans on the defensive during an election year. And Chairman Inouye of the Senate, Democratic chairman, and Chairman Hamilton of the House, recommended rejecting the opportunity to prolong the hearings. They determined that 10 months would be enough, and they agreed to a termination date.

Mr. SARBANES. Will the Senator yield for an observation on that point?

Mr. SARBANES. Will the Senator yield?

Mr. SARBANES. Why don't you bring him in for a hearing?

Mr. SARBANES. Why don't you bring him in for a hearing?

Mr. SARBANES

Mr. SARBANES. Will the Senator from Arkansas yield to me for just a moment.

Mr. SARBANES. Summer of 1994.

Mr. SARBANES. When?

Mr. SARBANES. Could I ask the Senator a question?

Mr. SARBANES. No; it is a response to the point you just made.

Mr. SARBANES. We got the Gearan notes. We held a day of hearings with Gearan. We had nothing substantially new and the same thing happened with Ickes. We got the notes. We held the hearing on both of them. In both instances we received the notes and the hearings have been held.

Mr. SARBANES. Are you suggesting we should transgress those?

Mr. SARBANES. No; the independent counsel is not able to make his information available to us, under grand jury requirements. Certainly the Senator----

Mr. SARBANES. Let me give one example. Gearan came before us and he said this is how this happened. I thought it was a plausible statement, frankly. I mean, Gearan said when he packed up to go over to the Peace Corps his file was put in that box unbeknown to him and he did not find it over there. When he found it he tried to get it back into the loop. I think that is a plausible statement. You have to judge it on your own. But the fact is, the documents have been provided in the end. The fact that there was a deadline----

Mr. SARBANES

Mr. SARBANES. Would the Senator yield?