Mr. DELAHUNT. Mr. Speaker, no one excuses the President's behavior. It deserves our censure and our condemnation. But I am just as concerned about our behavior, about the effect our actions may have on eroding public confidence and the rule of law and the principles of fairness and due process that are embedded in our Constitution that make this nation, this America, so unique among the family of nations. I believe this is ultimately more important than the fate of one particular president.

When we began this inquiry, I expressed the hope that it would be thorough, fair, and respectful of the rule of law and so that our verdict would be respected as well and we would be found no less worthy of praise than those who conducted the Nixon inquiry nearly 25 years ago. They managed to transcend partisanship, to set a standard of fairness and due process that earned them an honored place in our history. And I am truly saddened that we failed to measure up.

It was the gentleman from Illinois (Mr. Hyde) who said that without bipartisan support any impeachment is doomed. And I agree. Yet the majority has sacrificed the legitimacy of this impeachment by proceeding without that support.

As we prepare to render our verdict on President Clinton, the American people and history itself are sitting in judgment on us and I believe they will judge us harshly because we have failed in our duty to the rule of law. We failed the rule of law when we abdicated our constitutional responsibility to an unelected prosecutor, when we rubber stamped his conclusions and failed to conduct our own independent examination of a record replete with contradictions, inconsistencies and half truths. We failed the rule of law when we could not summon the political courage to call real witnesses to test their credibility.

President Nixon was afforded that opportunity. President Clinton was not, and that was unfair. We failed the rule of law when we informed the President's counsel of the precise charges only after he made his closing argument. That was unfair. We failed the rule of law when we put the burden on the President to prove his innocence. That was unfair.

Presidents are not above the law but they, no less than other citizens, are entitled to its protections. That is what distinguishes a free country from a totalitarian one. And let us hope that the freedom we have struggled so hard to achieve will weather this storm for the sake of the country that we all love so dearly.

I oppose the articles of impeachment as reported by the Judiciary Committee. I agree with much of the reasoning included in the Minority's Dissenting Views. However, I write separately to clarify my own perspective on a number of matters, including the reliability of the allegations upon which the case for impeachment is based.

I neither condone nor excuse the President's admitted misdeeds. However, I agree with my Minority colleagues that the allegations, even if true, do not form a constitutionally sufficient basis for impeachment. Whatever the Founders meant by `high Crimes and Misdemeanors,' it is well-established that impeachment should be reserved for situations in which the incumbent poses so grave a danger to the Republic that he must be replaced before finishing his term of office. The Majority has utterly failed to establish that such is the case here.

As for the allegations themselves, however, I do not believe the Minority is in any better position to assess their accuracy than the Majority. The committee took no direct testimony in this matter. We called not a single witness who could testify to the facts. Instead, we relied solely on the assertions contained in the referral of the Independent Counsel. Those assertions are based on grand jury testimony and other information--much of it ambiguous and contradictory--whose credibility has never been tested through cross-examination.

Even absent such evidentiary problems, Article II of the Constitution imposes upon the committee a solemn obligation--which it may not delegate to the Independent Counsel or any other individual--to conduct a thorough and independent examination of the allegations and make its own findings of fact.

By failing to do this--by merely rubber-stamping the conclusions of the Independent Counsel--we have not only failed to establish a factual basis for the charges set forth in the articles of impeachment, but have abdicated our constitutional role to an unelected prosecutor and recklessly lowered the bar for future impeachments. In so doing, we have sanctioned an encroachment upon the Executive Branch that could upset the delicate equilibrium among the three branches of government that is our chief protection against tyranny.

A related casualty of our cavalier approach to this investigation has been the due process to which even our Presidents are entitled. We released the referral--including thousands of pages of secret grand jury testimony--within hours of its receipt, before either the Judiciary Committee or the President's counsel had any opportunity to examine it. We voted to initiate a formal inquiry against the President without even a cursory review of the allegations. We required the President's counsel to prepare his defense without knowing what charges would be brought. And we released articles of impeachment--drafted in secrecy by the Majority alone--before the President's counsel had even finished his presentation to the committee.

Having put before the public a one-sided case for the prosecution, some member of the Majority actually suggested that the President had the burden of proving his innocence. When he attempted to do so, those same members accused him of `splitting hairs.' This was perhaps the most disturbing aspect of our proceedings. We live in a nation of laws, in which every person--whether pauper or President--is entitled to due process. This has nothing to do with `legal hairsplitting.' It has everything to do with requiring those who wield the awesome power of the State to meet their burden of proof. That is what distinguishes this country from a totalitarian one. That is the genius of a Constitution crafted by men who knew and understood the nature of tyranny. As one former United States Attorney testified during our hearings, those who complain most loudly about such `technicalities' are the first to resort to them when it is they who stand accused.

Public confidence in the rule of law is ultimately more important than the fate of one particular President. And the official lawlessness that has characterized this investigation has done far more to shake that confidence than anything of which the President stands accused.

These proceedings stand in stark contrast to those of the Watergate committee--which the Majority had self-consciously adopted as its model. During the Watergate crisis, the Rodino committee managed to transcend partisanship at a critical moment in our national life, and set a standard of fairness that earned it the lasting respect of the American people. As the Judiciary Committee voted to launch this inquiry, I expressed the hope that our proceedings would be equally fair, thorough and bipartisan, and that--whatever our verdict might be--our efforts would be found as worthy of praise.

In at least one important respect, the committee did merit such praise. Chairman Hyde permitted us to offer a censure resolution despite the extraordinary pressures that were brought to bear for him not to do so. In my view, the resolution which I sponsored, together with Mr. Boucher, Mr. Barrett and Ms. Jackson Lee, was--and remains--the most appropriate means of condemning the President's misconduct while sparing the nation the further turmoil and uncertainty of a lengthy Senate trial.

Contrary to the continuing claims of some that censure would be unconstitutional, a score of constitutional experts called as witnesses by both Republicans and Democrats on the Committee agreed in writing--by a margin of almost 4 to 1--that the Constitution does not prohibit censure. And it would be a breathtaking departure from the democratic principles which are the soul of the Constitution to deny the full House an opportunity to vote on an alternative to impeachment.

As we stand on the brink of an impeachment vote for only the second time in our history, we can only hope that the democracy that has survived so many storms will weather this crisis as well, and that the irresponsible actions of this Committee will not do lasting damage to the country that we all so dearly love.

[Page: H11885] Opening Statement of the Honorable William D. Delahunt of Massachusetts Before the Committee on the Judiciary Regarding the Proposed Resolution of Inquiry--October 5, 1998 Mr. Chairman, the issue before us today is not just the conduct of the President. The overriding issue is how this committee will fulfill its own responsibilities at a moment of extraordinary constitutional significance.

Three weeks ago, the Independent Counsel referred information to Congress that he alleged may constitute grounds for impeaching the President.

But it is not the Independent Counsel who is charged by the Constitution to determine whether to initiate impeachment proceedings. That is our mandate. He is not our agent, and we cannot allow his judgments to be substituted for our own.

I am profoundly disturbed at the thought that this committee would base its determination solely on the Starr referral.

Never before in our history has the House proceeded with a presidential impeachment inquiry premised exclusively on the raw allegations of a single prosecutor. Let alone a prosecutor whose excessive zeal has shaken the confidence of fair-minded Americans in our system of justice.

It is the committee's responsibility to conduct our own preliminary investigation to determine whether the information from the Independent Counsel is sufficient to warrant a full-blown investigation. And we have not done that.

If we abdicate that responsibility, we will turn the Independent Counsel Statute into a political weapon with an automatic trigger--aimed at every future president. And in the process, we will have turned the United States Congress into a rubber stamp.

Just as we did when we rushed to release Mr. Starr's narrative within hours of its receipt, before either this committee or the President's counsel had any opportunity to examine it.

Just as we did when we released 7,000 pages of secret grand jury testimony and other documents hand-picked by the Independent Counsel--subverting the grand jury system itself by allowing it to be misused for a political purpose.

Just as we are about to do again: by launching an inquiry when no member of Congress, even now, has had sufficient time to read, much less analyze, these materials. Not to mention the 50,000 pages we have not released.

For all I know, there may be grounds for an inquiry. But before the committee authorizes proceedings that will further traumatize the nation and distract us from the people's business, we must satisfy ourselves that there is `probable cause' to recommend an inquiry.

That is precisely what the House instructed us to do on September 10. The chairman of the Rules Committee himself anticipated that we might return the following week to seek `additional procedural or investigative authorities to adequately review this communication.' Yet the committee never sought those additional authorities. Apparently we had no intention of reviewing the communication.

That is the difference between the two resolutions before us today. The Majority version permits no independent assessment by the committee, and asks us instead to accept the referral purely on faith.

Our alternative ensures that there is a process--one that is orderly, deliberative and expeditious--for determining whether the referral is a sound basis for an inquiry.

The Majority has made much of the claim that their resolution adopts the same process--indeed, the very language--that was used during the Watergate hearings of 24 years ago.

It may be the same language. But it is not the same process.

In 1974, the Judiciary Committee spent weeks behind closed doors, poring over evidence gathered from a wide variety of sources--including the Ervin Committee and Judge Sirica's grand jury report, as well as the report of the Watergate Special Prosecutor. All before a single document was released. Witnesses were examined and cross-examined by the President's own counsel. Confidential material, including secret grand jury testimony, was never made public. In fact, nearly a generation later it remains under seal.

It is too late now to claim that we are honoring the Watergate precedent. The damage is done. But it is not too late for us to learn from the mistakes of the last three weeks. If we adopt a fair, thoughtful, bipartisan process, I am confident the American people will embrace our conclusions, whatever they may be.

If the Majority chooses to do otherwise, it certainly has the votes to prevail. Just as the Democratic majority had the votes in 1974. But the Rodino committee recognized the overriding importance of transcending partisanship. And it earned the respect of the American people.

It is our challenge to ensure that history is as kind to the work of this committee.

Statement of the Honorable William D. Delahunt of Massachusetts Regarding the Release of Presidential Grand Jury Testimony--September 18, 1998 Today, the House Judiciary Committee voted to release to the public several volumes of supporting material received from the Independent Counsel nine days ago, including grand jury transcripts and the President's videotaped testimony.

In my judgment, the headlong rush to publicize secret grand jury testimony not only endangers the rights of the individuals involved in this particular case, but also undermines the integrity of one of the cornerstones of our system of justice--the grand jury system itself.

Unfortunately, the readiness of the majority to ignore these perils also calls into question the fundamental fairness of our own proceedings.

THE PACE ACCELERATES On September 9, Independent Counsel Kenneth Starr sent the House of Representatives a 445-page report, together with some 2,000 pages of supporting materials, telephone records, videotaped testimony and other sensitive material, as well as 17 boxes of other information.

Within 48 hours, the House had voted to release the report and give the Judiciary Committee until September 28 to decide whether any of the remaining material should be kept confidential. While I agreed that we should release the report, I opposed our doing so before either the President's attorneys or members of the Committee had been given even a minimal opportunity to review it.

That vote was seven days ago. Since then, the breakneck pace has only accelerated. Today, we were asked to vote--10 days ahead of schedule--on whether to release what may well be the most sensitive materials of all--the grand jury transcripts, together with the videotape of the President's testimony.

Those of us who serve on the Committee had been doing our best to review these materials so that we would be in a position to evaluate whether or not they ought to be released. I cannot speak for other members, but I have been as diligent as possible, and had managed by this morning to get through--at most--some 30 percent of this material.

How can anyone make a considered judgment under such circumstances? How can we properly weigh the benefits of immediate disclosure against the harm it might cause? I have done my utmost not to prejudge the outcome of this investigation. I am prepared to follow the facts wherever they lead. But if the American people are to accept the eventual result of our deliberations, they must be satisfied that our proceedings have been thorough, disciplined, methodical and fair.

I seriously doubt that an objective observer looking back on these past nine days could characterize our proceedings in that manner. The process continues to careen forward--without a roadmap--at a dizzying pace.

FUNDAMENTAL FAIRNESS One portion of the Independent Counsel's report that I made sure to read--not once, but twice--was Mr. Starr's transmittal letter, which cautioned that these supporting materials contain `confidential material and material protected from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure' (the rule that provides for the secrecy of grand jury records).

the implication of that warning is that the public disclosure of protected grand jury material could do serious and irrevocable harm--not only to the President, but to the many other individuals caught up in the vast web of the Starr investigation, including innocent third-parties, witnesses, and other potential targets of ongoing (and future) investigations.

In the United States, those accused of criminal wrongdoing are presumed innocent--be they presidents or ordinary citizens. Yet if raw, unproven allegations are disclosed to the public before they can be challenged, the `presumption of innocence' loses all meaning. Minds are made up, judgments rendered, and the chance for a fair determination of the facts is lost.

That is one reason why federal grand jury testimony--whether in printed or in audio-visual form--is explicitly shielded from public disclosure under Rule 6(e).

But grand jury secrecy also serves the interests of the prosecution, by encouraging witnesses to come forward and ensuring that prejudicial material will not poison the jury pool and make it impossible to hold a fair trial. This is especially important when the targets and potential targets of an investigation are public figures.

The pre-indictment release of secret testimony compromises both objectives--trampling on the rights of the accused and jeopardizing subsequent indictments. Beyond this, it calls into serious question the fairness and integrity of the grand jury system itself.

[Page: H11886] `LAUNDERING' THE EVIDENCE Through its action today, the Judiciary Committee has engaged in an abuse of the grand jury process that has enabled it to accomplish indirectly what the Independent Counsel was prohibited from doing directly.

The Independent Counsel has developed his case by using the grand jury to compel testimony from various witnesses. Although the grand jury voted to subpoena the President, the videotaped testimony was ultimately obtained under a negotiated agreement, under which the Independent Counsel agreed to treat the testimony as secret grand jury proceedings pursuant to Rule 6(e). It was solely on this basis that the President consented to testify.

The Independent Counsel subsequently received permission from the court to release the videotape, together with the other grand jury material, to the Congress. But the court order did not authorize its further release to the public or the press.

By releasing that testimony to the public, we are--in effect--laundering the evidence so as to nullify the express agreement under which it was obtained. This is an abuse of the grand jury that can only damage the public's faith in that institution and impair its ability to perform its essential role.

And what are the benefits that justify these evils? We are told only that the public has a `right to know'--an interest in the case that entitles it to the information. Some have even suggested that that interest is a financial one--that the public `paid' for this material and is entitled to it.

To this, one can only respond that the public pays for the grand jury testimony in every case. The public has an interest in every case--especially where the case involves high officials or other celebrities. We accommodate that interest by requiring that trials be held in open court. But the public is no more entitled to secret grand jury testimony than it is to classified intelligence. Not even when the case is concluded, let alone while it is still going on.

In an ordinary criminal trial, grand jury testimony is disclosable under Rule 6(e) only under certain specific circumstances. For example, criminal defendants are entitled to see grand jury proceedings in order to cross-examine witnesses or challenge their credibility on the basis of prior inconsistent statements.

On the other hand, the public release of material of this nature would violate not only Rule 6(e), but Department of Justice guidelines, court precedents and ethical rules binding on prosecutors in every jurisdiction in this country. A party found to have disclosed the material would be subject to sanctions, and the material itself would be excludable in court. The court might even grant a defendant's motion to dismiss the case for prejudice.

LOOKING TO PRECEDENT This is certainly not an ordinary case. But neither is it so exceptional as to justify our riding roughshod over precedent and due process.

In the one historical precedent that is closest to the present situation, due process was scrupulously observed. Twenty-four years ago, a Republican president was under investigation by a Democratic House.

The Judiciary Committee spent seven weeks in closed session, reviewing Judge Sirica's grand jury materials prior to their release. President Nixon's lawyers were permitted not only to participate in these sessions, but to cross-examine witnesses before their testimony was made public.

While there are obviously major differences between the current controversy and the Watergate affair, President Clinton is entitled to the same due process protections afforded President Nixon in the course of that investigation.

In fact, the case for preserving the confidentiality of the evidence is even stronger here than it was in the Watergate case. Mr. Starr's grand jury has made no findings whatsoever with respect to the evidence. The material we have consists merely of selected portions of what the prosecutor put before the grand jury, together with his interpretation of that material. The jurors were never asked whether they thought that the videotape--or any other testimony--provided credible evidence of perjury or other wrongdoing. Having used the grand jury as a tool to gather information, the Independent Counsel bypassed it as a fact-finding body.

That is his prerogative. But the Judiciary Committee has a duty to see that the material provided to use is handled appropriately. If we act carelessly, and in haste, we will not only cripple this President, but will do lasting harm to the values and institutions we hold most dear.

-- -- Statement of the Honorable William D. Delahunt of Massachusetts Regarding House Resolution 525, Providing for Release of the Report of the Independent Counsel--September 11, 1998 Mr. Speaker, two days ago, after months of speculation, leaks and revelations, the report of the Independent Counsel was delivered to the House of Representatives. If this resolution is approved this morning, the report will be in the hands of millions of people around the globe by three o'clock this afternoon.

I certainly agree that the report should be released. That is not even an issue. It will be released. The only question is when and how it should be done. For in exercising the responsibilities that the Constitution has thrust upon us, we must be sure that we proceed in a manner that observes the principles of fundamental fairness that are at the heart of that document.

Only then will the American people accept the results, whatever they may be. Only then will we begin to restore the shaken confidence of the nation in its political institutions.

In that regard, Mr. Speaker, I consider the resolution before us today to be our first test. For in deciding the terms under which the highly sensitive material contained in the report should be released to the public, we must weigh carefully the benefits of immediate disclosure against the damage this might do to the fairness of the investigation.

If the resolution is agreed to, the entire 445 pages of the report will be posted on the Internet this very afternoon. Not a page of it will have been examined beforehand by any member of the Committee. Not one page will have been seen first by the President and his attorneys.

Some have argued that we should release the report because the essence of it has already been leaked to the press and appears in this morning's editions. If that is true, it is to be deplored, and the Independent Counsel should have to answer for it. But we should not endorse the unauthorized disclosure of pieces of the report by prematurely releasing the rest of it.

Some have argued that the President already knows what is in the report because he is the subject of it. This argument suggests, at best, a poor understanding of what goes into a prosecutor's report.

Some have argued that we should go ahead and release the report because there are still some 2,000 pages of supporting material that will not be released without Committee review, and this will be sufficient to prevent irreparable harm to lives and reputations. They cite Mr. Starr's request that we treat certain information in the supporting material as confidential, apparently inferring that the information in the report itself does not require such treatment. Yet Mr. Starr did not say this. And even if he had, it is for this House to determine what information should be disclosed. We should not abdicate that responsibility to the Independent Counsel.

Apart from whatever damage the abrupt disclosure of the report might cause to innocent third parties, it will clearly be prejudicial to the President's defense. If the Independent Counsel has done his job, the case he has constructed will be a persuasive one. Prosecutors have enormous power to shape the evidence presented to the grand jury. And--at least at the federal level--they have no obligation to apprise the jurors of exculpatory evidence. The case will seem airtight. Yet until the evidence has withstood cross-examination and the allegations have been proven, they remain nothing more than allegations.

Presidents, no less than ordinary citizens, are entitled to the presumption of innocence. They are entitled to confront the charges against them. Yet, if we adopt this resolution, by the time President Clinton is accorded that right, the charges against him will have circled the globe many times. They will be all the public reads and hears. They will take on a life of their own, and the case will be tried, not by Congress, but in the court of public opinion.

Given these risks, why rush to judgment, Mr. Speaker? After so many months, what possible harm can come from allowing the counsel for the President a few days to review the report so that they can tell his side of the story? In the one historical precedent we have to look to, that is precisely what was done. Twenty-four years ago, a Republican president was under investigation by a Democratic House. President Nixon's lawyers were permitted to participate in seven weeks of closed sessions, as the Judiciary Committee conducted a confidential review of Judge Sirica's grand jury materials prior to their release. The counsel to the President was even allowed to cross-examine witnesses before their testimony was made public.

Whatever the differences may be between the current controversy and the Watergate affairs, President Clinton should receive the same due process protections accorded to President Nixon in the course of that investigation.

If the people of the United States are to accept our verdict--whatever it may be--they must have confidence in the fairness and integrity of our deliberations. That--far more than the fate of one particular president--is what is at stake.

-- -- Dissenting Views of the Honorable William D. Delahunt of Massachusetts Concerning the Resolution Relating to an Inquiry of Impeachment I oppose the resolution of inquiry as reported by the Judiciary Committee. I do so based on the concerns expressed in the Minority's dissenting views, and for the additional reasons set forth below.

I On September 9, 1998, Independent Counsel Kenneth W. Starr referred information to the House that he alleged may constitute grounds for impeaching the President. In the 30 days that have elapsed since our receipt of that referral, neither the Judiciary Committee nor any other congressional committee has conducted even a preliminary independent review of the allegations it contains.

In the absence of such a review, we have no basis for knowing whether there is sufficient evidence to warrant an inquiry--other than the assertion of the Independent Counsel himself that his information is `substantial and credible' and `may constitute grounds for impeachment.' I believe that our failure to conduct so much as a cursory examination before launching an impeachment proceeding is an abdication of our responsibility under Article II of the Constitution of the United States. By delegating that responsibility to the Independent Counsel, we sanction an encroachment upon the Executive Branch that could upset the delicate equilibrium among the three branches of government that is our chief protection against tyranny. In so doing, we fulfill the prophecy of Justice Scalia, whose dissent in Morrison versus Olson (487 U.S. 654, 697 (1988)) foretold with uncanny accuracy the situation that confronts us.

[Page: H11887] II The danger perceived by Justice Scalia flows from the nature of the prosecutorial function itself. He quoted a famous passage from an address by Justice Jackson, which described the enormous power that comes with `prosecutorial discretion': `What every prosecutor is practically required to do is to select the cases . . . in which the offense is most flagrant, the public harm, the greatest, and the proof the most certain. . . . If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigations to work, to pin some offense on him. It is in this realm--in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. Morrison, 487 U.S. 654, 728 (Scalia, J., dissenting), quoting Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys (April 1, 1940).' The tendency toward prosecutorial abuse is held in check through the mechanism of political accountability. When federal prosecutors overreach, ultimate responsibility rests with the president who appointed them. But the Independent Counsel is subject to no such constraints. He is appointed, not by the president or any other elected official, but by a panel of judges with life tenure. If the judges select a prosecutor who is antagonistic to the administration, `there is no remedy for that, not even a political one.' 487 U.S. 654, 730 (Scalia, J., dissenting). Nor is there a political remedy (short of removal for cause) when the Independent Counsel perpetuates an investigation that should be brought to an end: `What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. 487 U.S. 654, 732 (Scalia, J., dissenting).' Under the Independent Counsel Act, there is no political remedy at any point--unless and until the Independent Counsel refers allegations of impeachable offenses to the House of Representatives under section 595(c). At that point, the statute gives way to the ultimate political remedy: the impeachment power entrusted to the House of Representatives under Article II of the Constitution.

III Section 595(c) of the Independent Counsel Act provides that: `An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel's responsibilities under this chapter, that may constitute grounds for an impeachment. 28 U.S.C. 595(c).' The statute is silent as to what the House is to do once it receives this information. But under Article II, it is the House--and not the Independent Counsel--which is charged with the determination of whether and how to conduct an impeachment inquiry. He is not our agent, and we cannot allow his judgments to be substituted for our own. Nor can we delegate to him our constitutional responsibilities.

Never in our history--until today--has the House sought to proceed with a presidential impeachment inquiry based solely on the raw allegations of a single prosecutor. The dangers of our doing so have been ably described by Judge Bork, who has written that: `It is time we abandoned the myth of the need for an independent counsel and faced the reality of what that institution has too often become. We must also face another reality. A culture of irresponsibility has grown up around the independent-counsel law. Congress, the press, and regular prosecutors have found it too easy to wait for the appointment of an independent counsel and then to rely upon him rather than pursue their own constitutional and ethical obligations. Robert H. Bork, Poetic Injustice, National Review, February 23, 1998, at 45, 46 (emphasis added).' We must not fall prey to that temptation. For when impeachment is contemplated, the only check against overzealous prosecution is the House of Representatives. That is why--whatever the merits of the specific allegations contained in the Starr referral--we cannot simply take them on faith. Before we embark on impeachment proceedings that will further traumatize the nation and distract us from the people's business, we have a duty to determine for ourselves whether there is `probable cause' that warrants a full-blown inquiry. And we have not done that.

IV What will happen if we fail in this duty? We will turn the Independent Counsel Act into a political weapon with an automatic trigger--a weapon aimed at every future president.

In Morrison, Justice Scalia predicted that the Act would lead to encroachments upon the Executive Branch that could destabilize the constitutional separation of powers among the three branches of government. He cited the debilitating effects upon the presidency of a sustained and virtually unlimited investigation, the leverage it would give the Congress in intergovernmental disputes, and the other negative pressures that would be brought to bear upon the decision making process.

Whether these ill-effects warrant the abolition or modification of the Independent Counsel Act is a matter which the House will consider in due course. For the present, we should at least do nothing to exacerbate the problem. Most of all, we must be sure we do not carry it to its logical conclusion by approving an impeachment inquiry based solely on the Independent Counsel's allegations. If all a president's political adversaries must do to launch an impeachment proceeding is secure the appointment of an Independent Counsel and await his referral, we could do permanent injury to the presidency and our system of government itself.

V If the House approves this resolution, it will not be the first time in the course of this unfortunate episode that it has abdicated its responsibility to ensure due process and conduct an independent review. It did so when it rushed to release Mr. Starr's narrative within hours of its receipt, before either the Judiciary Committee or the President's counsel had any opportunity to examine it. It also did so when the committee released 7,000 pages of secret grand jury testimony and other documents hand-picked by the Independent Counsel--putting at risk the rights of the accused, jeopardizing future prosecutions, and subverting the grand jury system itself by allowing it to be misused for political purposes.

These actions stand in stark contrast to the process used during the last impeachment inquiry undertaken by the House--the Watergate investigation of 1974. In that year, the Judiciary Committee spent weeks behind closed doors, poring over evidence gathered from a wide variety of sources--including the Ervin Committee and Judge Sirica's grand jury report, as well as the report of the Watergate Special Prosecutor. All before a single document was released. Witnesses were examined and cross-examined by the President's own counsel. Confidential material, including secret grand jury testimony, was never made public. In fact, nearly a generation later it remains under seal. The Rodino committee managed to transcend partisanship at a critical moment in our national life, and set a standard of fairness that earned it the lasting respect of the American people.

Today the Majority makes much of the claim that their resolution adopts the language that was used during the Watergate hearings. While it may be the same language, it is not the same process. Too much damage has been done in the weeks leading up to this vote for the Majority to claim with credibility that it is honoring the Watergate precedent. But it is not too late for us to learn from the mistakes of the last three weeks. If we adopt a fair, thoughtful, focused and bipartisan process, I am confident that the American people will honor our efforts and embrace our conclusions, whatever they may be.

-- -- Statement of the Honorable William D. Delahunt of Massachusetts Regarding H. Res. 581, Authorizing the Committee on the Judiciary to Investigate Whether Sufficient Grounds Exist for the Impeachment of William Jefferson Clinton, President of the United States--October 8, 1998 Mr. Speaker, I ask permission to revise and extend my remarks.

Let me first express my affection and respect for my chairman, the Gentleman from Illinois. If Mr. Hyde says he hopes to complete this inquiry by the end of the year, I know he will do all he can to make good on that promise.

But if we adopt this resolution, the chairman's good intentions will not be enough to prevent this inquiry from consuming not only the remainder of this year but most of next year as well.

Nine days ago, I joined with Mr. Berman, Mr. Graham and Mr. Hutchinson in a bipartisan letter asking Chairman Hyde and our ranking member, Mr. Conyers, to contact the Independent Counsel--before we begin in inquiry--to ask him whether he plans to send us any additional referrals.

They wrote to Judge Starr on October 2, and I wish to inform the House that last night we received his reply. He said, and I quote, `I can confirm at this time that matters continue to be under active investigation and review by this Office. Consequently, I cannot foreclose the possibility of providing the House of Representative with additional [referrals].' There you have it, Mr. Speaker. Despite the fact that both Mr. Hyde and Mr. Conyers had urged the Independent Counsel to complete his work before transmitting any referral to the House, what he has given us is essentially an interim report.

As the Starr investigation enters its fifth year, we face the prospect that we will begin our inquiry only to receive additional referrals in midstream. Under this open-ended resolution, each subsequent referral will become part of an ever-expanding ripple of allegations. With no end in sight.

That is not a process, Mr. Speaker. It's a blank check. And I believe it's more than the American people will stand for.

They do not want us traumatizing the country and paralyzing the government for another year when we don't even know whether there is `probable cause' to begin an inquiry. And they don't want us abdicating our constitutional responsibility to an unelected prosecutor and accepting his referral on faith.

If we do that--if all a president's adversaries have to do to start an impeachment proceeding is secure the appointment of an Independent Counsel and await his referral--then we will have turned the Independent Counsel Act into a political weapon with an automatic trigger--a weapon aimed at every future president.

What the people want is a process that is fair. A process that is focused. And a process that will put this sad episode behind us with all deliberate speed.

The Majority resolution does not meet those standards. Our alternative does. It provide for the Judiciary Committee to determine first whether any of the allegations would amount to impeachment offenses if proven. Only if the answer to that question is `yes' would we proceed to inquire into whether those allegations are true. The entire process would end by December 31st--the target date chosen by Chairman Hyde himself--unless the committee asks for additional time.

Mr. Speaker, that is a fair and responsible way to do our job. It is also the only way to ensure that when that job is done, the American people will embrace our conclusions, whatever the may be.

-- -- [Page: H11888] Statement of the Honorable William D. Delahunt of Massachusetts in Support of This Motion To Allow Counsel to the President Two Hours in Which To Question the Independent Counsel--Thursday, November 19, 1998 Mr. Chairman, I have a motion at the desk and ask for its consideration.

Mr. Chairman, the committee has given the Independent Counsel a full two hours to present his version of the case--a version with which most Americans are already fully familiar on the basis of the 60,000 pages of material he has already submitted.

At the same time, the committee has seen fit to give the President's counsel all of 30 minutes to question Mr. Starr. This is meant to be the President's sole opportunity to confront his accuser during these proceedings.

I believe this does a grave disservice, not only to the President but to the integrity of these proceedings. It is a complete and unwarranted departure from the precedents of this House.

During the Watergate hearings of 1974, President Nixon's counsel, Mr. James St. Clair, was given all the time he needed to respond to the evidence and cross-examine witnesses. This is as it should be, Mr. Chairman. We are talking about the impeachment of the President of the United States, not a tariff schedule.

I know that some members of the Watergate committee argued that the President's counsel, Mr. St. Clair, should be given limited time to speak. But those views were wisely overruled in the interest of fairness and decency. President Clinton is entitled to the same consideration and respect shown to President Nixon on the occasion. No more, and no less.

The record of the Watergate hearings makes clear that at no time was Mr. St. Clair restricted to a particular time limit for his presentation or his examination of witnesses. Let me cite just three passages from the record. On June 27, 1974, Chairman Rodino noted that Mr. St. Clair had requested one or two days to make his oral response to the initial presentation of the evidence, but that St. Clair `expressed to me that he hoped he might be able to conclude his presentation, if it is at all possible, today. This is not restrictive.' On July 18, 1974, Chairman Rodino recognized Mr. St. Clair for an additional response at the conclusion of the evidence, and noted--over the objections of some Democratic members--that `he is going to take at least an hour and a half.' Finally, the record of the Watergate hearings makes clear that Mr. St. Clair cross-examined each of various witnesses, including William Bittman, Charles Colson, and John Dean, for as much as 1 1/2 to 2 hours. On no occasion was he interrupted by the chairman, nor did he ever run out of time.

Is there any legitimate basis for applying a different rule today? The majority may point out that the Watergate testimony was heard in closed session, while today we sit before the cameras and the public. Yet, that being true, it is more important, not less, that the President be given a full and fair opportunity to respond to the charges that are being leveled against him.

They may argue--as they did in a recent letter to the White House--that the President and his counsel are here `only as a matter of courtesy and not of right.' In other words, `be glad we are letting you testify at all.' With all due respect, Mr. Chairman, if the goal is justice, this cannot be a satisfactory response.

A 30-minute presentation is especially inadequate when one considers that Mr. Starr has been preparing for weeks a presentation that the White House saw for the first time last night. According to news accounts, the witness has spent the better part of the past several weeks conducting videotaped practice sessions. The President's counsel has had all of 16 hours to prepare his response.

I wish I could say that this sort of unfairness were an exception to an otherwise fair proceeding. But in fact it continues a pattern that has characterized this entire investigation. The Committee has abandoned precedent at almost every turn--rushing to release Mr. Starr's report within hours of its receipt, before either the Judiciary Committee or the President's counsel had any opportunity to examine it. Posting on the Internet thousands of pages of secret grand jury testimony without regard to the rights of the accused, the course of future prosecutions, and the integrity of the grand jury system itself. And abdicating its own responsibility to make an independent examination of the charges before voting to commence an impeachment inquiry.

Enough is enough, Mr. Chairman. Let's do one thing right. I urge support for the motion and yield back the balance of my time.

-- -- Opening Statement of the Honorable William D. Delahunt, Judiciary Committee Markup of the Proposed Articles of Impeachment--December 10, 1998 Mr. Chairman, I would like to ask you to suppose you're an ordinary citizen summoned to defend yourself in court.

You don't know what you're charged with, because there's been no indictment.

The prosecutor has spent four years investigating your financial dealings. But when you get to the courtroom, he only wants to talk about sexual indiscretions.

He sends the jury a 445-page report telling just his side of the story, and releases thousands of pages of secret grand jury testimony to the public.

He calls none of the witnesses quoted in his report, so you can't challenge their veracity.

In fact, he calls only one witness. Himself. Then it turns out he's never even met your chief accuser.

The judge allows new charges to be raised in the midst of the trial, then drops them again.

He warns that you will be convicted if you do not offer a defense. Then, when you do so, he tells you not to hide behind `legal technicalities.' The scene I've just described wasn't dreamed up by George Orwell of Franz Kafka. It's not a Cold War account of a Soviet show trial. In fact, it's similar to what's taken place here--in America--during the course of this impeachment investigation.

We are about to vote to impeach the President of the United States on charges that would never even have been brought against an ordinary citizen.

We have delegated our constitutional duty to substantiate those charges to an unelected prosecutor.

We have called no witnesses to testify to the charges--except the prosecutor himself. And he admitted he has no personal knowledge of the facts--and never even met Ms. Lewinsky.

None of his witnesses were subject to cross-examination to test their credibility--despite Mr. Schippers' statement that they should be.

Having put before the public a one-sided case for the prosecution, some members of this committee have suggested that the President has the burden of proving his innocence. When he has attempted to do so, those same members have accused him of `splitting hairs.' We have required the President's counsel to prepare his defense without knowing what formal charges would be brought. And we released articles of impeachment to the press before Mr. Ruff had even finished his presentation.

At our hearing the other day, one of my Republican colleagues alluded to those he considers `real Americans.' To me, the real America is a land where every person--whether pauper or President--is accorded due process of law.

Due process has nothing to do with `legal hairsplitting.' It has everything to do with requiring those who wield the awesome power of the State to meet their burden of proof. That is what distinguishes this country from a totalitarian one. That is the genius of a Constitution crafted by men who knew and understood the nature of tyranny.

As former U.S. Attorney Sullivan testified, those who complain most loudly about such `technicalities' are the first to resort to them when it is they who stand accused.

For weeks, members of the majority have cited the famous passage from A Man for All Seasons, in which Thomas More defends the rule of law against those who would `cut down every law in England' to `get after the Devil.' More says, and I quote, `And when the last law was down, and the Devil turned round on you--where would you hide, the laws all being flat? This country's planted thick with laws from coast to coast--Man's laws, not God's--and if you cut them down-- and you're just the man to do it--d'you really think you could stand upright in the winds that would blow then? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake.' We would all do well to ponder those words, Mr. Chairman. For though we have invoked the rule of law, we have failed to embrace it. How can the American people accept our verdict, unless they are satisfied that we have conducted ourselves in as orderly, deliberate and responsible a fashion as did the Watergate committee in 1974? Chairman Rodino did not proceed with the Nixon impeachment until it was clear that it had substantial bipartisan support. Chairman Hyde began these proceedings by observing that without such consensus, impeachment ought not go forward.

Yet this has been the most partisan impeachment inquiry since the infamous trial of Andrew Johnson five generations ago. It is like a runaway train.

Within the committee, some of us have attempted to apply the brakes, developing a respectful--though ultimately unsuccessful--dialogue with our colleagues across the aisle. Elsewhere, growing numbers of thoughtful Republican leaders--from Governor Racicot of Montana to Governor Rowland of Connecticut--have expressed dismay. Yet the train continues to gather speed.

From my own perspective, this isn't even about President Clinton anymore. That he deserves our condemnation is beyond all doubt. But as President Ford has written, the fate of one particular President is less important than preserving public confidence in our civic institutions themselves.

Article II of the Constitution provides a mechanism for removing our Presidents. It's called an election, and it happens every four years.

Whatever the Founders meant by `high Crimes and Misdemeanors,' the one thing that seems certain is that impeachment should be reserved for situations in which the incumbent poses so grave a danger to the Republic that he must be replaced ahead of schedule.

Last year the House debated proposed term limits for Members of Congress. One of the most respected leaders of the House led the fight against that legislation, choosing principle over party.

In his speech, he said, and I quote: `The right to vote is the heart and soul, it is the essence of democracy. . . . [O]ur task today is to defend the consent of the governed, not to assault it. Do not give up on democracy. Trust the people'.

The author of those eloquent words is my friend, the Honorable Henry Hyde of Illinois. I remind you of those words today, Mr. Speaker, not to throw them back at you, but because it seems to me that `the consent of the governed' is again under assault, and we sorely need such eloquence again.

The President committed serious indiscretions. In the effort to conceal his misdeeds, he compounded them, abusing the trust of those closet to him and deliberately, cynically, lying to the American people.

Knowing this, the people went to the polls on November third and rendered their verdict. And it is illegitimate for a lame-duck Congress to defy the will of the electorate on a matter of such profound significance.

The voters did not condone the President's behavior. Far from it. But they knew the difference between misdeeds that merit reproach and abuses of office that require a constitutional coup d'etat.

Some have said we are just a `grand jury,' whose only role is to endorse the prosecutor's conclusion that there is probable cause to indict. And don't worry, they say--the Senate won't convict.

This view is both dangerous and irresponsible. Impeachment is not some routine punishment for Presidents who fall short of our expectations. It's the political equivalent of the death penalty, with grave consequences for the nation that all of us--Republicans and Democrats--so dearly love.

We should not use the ultimate sanction when there is an alternative at hand: the joint resolution which my colleagues and I intend to offer, expressing our disapproval of the President's misbehavior and censuring him for it.

If the President really did commit perjury or other criminal acts, the law will deal with him in due course. Our job is to safeguard the Constitution. And the principal of popular sovereignty that is in the stirring words of Henry Hyde, its `heart and soul.' There is still time to trust the people, Mr. Chairman. Let us do so before it is too late.

[Page: H11889] Statement of the Honorable William D. Delahunt Regarding Article III of the Proposed Articles of Impeachment--December 11, 1998 Mr. Chairman, during our hearing last week, we heard testimony from Charles Wiggins, a Federal judge who served as a Republican member of this committee at the time of the Watergate inquiry.

Judge Wiggins testified that the Watergate committee heard directly from a multitude of witnesses, including Bob Haldeman, John Erlichman, John Dean, and other members of President Nixon's inner circle.

That testimony enabled the committee to make its own findings of fact with respect to the allegations against the President.

That is what distinguishes their investigation from our own. We have not heard from a single witness who can assist us in making findings of fact with respect to the allegations in the Starr report. Not one.

Let me offer just one concrete example of why this concerns me.

One count in the proposed Article of Impeachment alleges that the President `corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed' in the Paula Jones case.

Translation: the President asked his secretary, Betty Currie, to retrieve certain gifts which he had given to Monica Lewinsky, in an effort to conceal their relationship.

It is undisputed that Ms. Lewinsky returned the gifts to Ms. Currie. She did so on December 28, 1997. The key question is whether the President asked Ms. Currie to retrieve the gifts, or whether Ms. Lewinsky made her own arrangements to return the gifts without Mr. Clinton's involvement.

On Wednesday, the Independent Counsel released a statement to the press, taking issue with Mr. Ruff's presentation to this committee, and claiming that the President's involvement is substantiated by the billing records from Ms. Currie's cellular telephone account.

The records--which Mr. Schippers used in his closing statement to the committee--indicate that a one-minute call was placed from Ms. Currie's cell phone to Ms. Lewinsky's telephone number on December 28, 1997 at 3:32 p.m.

In his press release, the Independent Counsel claims that Ms. Currie placed this call for the purpose of arranging to pick up the gifts from Ms. Lewinsky.

In his closing statement to the committee, Mr. Schippers made much of this document. He said that it--and I quote--`corroborates Monica Lewinsky and proves conclusively that Ms. Currie called Monica from her cell phone several hours after she had left the White House.' `Why did Betty Currie pick up the gifts from Ms. Lewinsky?' Mr. Schippers asked. And he answered, `The facts strongly suggest the President directed her to do so.' That is his support for the charge that President sought to conceal evidence.

But there's a problem with this evidence. It is directly, explicitly contradicted by the FBI report of the interview with Monica Lewinsky of July 27 of this year.

That report, which appears in the first appendix to the Starr referral on page 1396, says, and I quote, `Lewinsky met Currie on 28th Street outside Lewinsky's apartment at about 2:00 p.m. and gave Currie the box of gifts.' This raises the following question. If the gift exchange had already taken place at 2:00, how could the telephone call placed at 3:32 have been for the purpose of arranging it? This is an inconsistency--one of many troubling inconsistencies--in the documents themselves. Yet this potentially exculpatory fact--taken from materials in the possession of the Independent Counsel--was never acknowledged by Mr. Starr. Nor was it acknowledged by the Mr. Schippers.

Both of them affirmatively led the committee to believe that the call was for the purpose of arranging for Ms. Currie to pick up the gifts.

And now we are preparing to vote on an article of impeachment that is substantially based on that telephone call.

What was the purpose of the call? We don't know. It appears that the investigators never asked. And we have never had the opportunity to ask. Because we have not heard from the witnesses themselves.

This is no way to conduct an inquiry, Mr. Chairman. It is a disgrace. And it is an insult to the rule of law.

Statement of the Honorable William D. Delahunt In Support of a Joint Resolution Expressing the Sense of Congress Regarding the Censure of William Jefferson Clinton--December 12, 1998 Mr. Chairman, over the past 24 hours this committee has voted along strict party lines to approve four articles of impeachment against the President of the United States.

In my view, this was reckless and irresponsible.

Impeachment is not a punishment to be imposed on Presidents who fall short of our expectations.

It's last resort--an ultimate sanction--to be used only when a President's actions pose a threat to the Republic so great as to compel his removal before his term has ended.

Impeachment should be considered only when there is no alternative. In this case, we had an alternative. The House still does.

I want to thank you, Mr. Speaker, for allowing this resolution to come to a vote. I have no doubt that you were under great pressure not to do so, and I applaud you for recognizing that it was the fair and proper thing to do.

I can only hope that Speaker-Elect Livingston will emulate your political courage and allow us a vote on the floor as well.

Because this resolution expresses the overwhelming sentiments of the American people-- --That the President committed serious indiscretions with a subordinate.

--That in the effort to conceal his misdeeds, he compounded them--abusing the trust of those closest to him and deliberately, cynically, lying to the American people.

--That these actions warrant condemnation--but not impeachment.

The resolution doesn't mince words. It denounces the President's behavior sternly and unambiguously. In plain, simple English.

It acknowledges that the President is not above the law--like every citizen, he remains subject to whatever penalties a court might impose on him at some future date.

This language may be too harsh for some; too lenient for others. But its purpose should be clear to all.

Censure has been endorsed by no less a luminary than President Ford, who called it `dignified, honest and, above all, cleansing.' he added--and I quote--`at 85, I have no personal or political agenda, nor do I have any interest in `rescuing' Bill Clinton. But I do care, passionately, about rescuing the country I love from further turmoil and uncertainty.' Those are sentiments with which most Americans--including many prominent Republicans--agree. Yesterday, Governor Pataki of New York became just the latest to announce his support for censure.

Yet some insist that a censure of the President would be unconstitutional. Why? Because the Constitution does not mention censure. It's `impeachment or nothing,' we are told.

That's absurd. We have ample discretion to do either, as two-thirds of the constitutional experts called to testify by both Democrats and Republicans agreed.

The Constitution--in the words of Justice Jackson--is not a suicide pact. It does not compel us to detonate a nuclear explosion when light artillery will do.

Others oppose censure because they believe it's just a `slap on the wrist.' That was not how Andrew Jackson saw it when the Senate censured him in 1834. He was humiliated. Eventually, the Senate repealed its rebuke, and Jackson's proudest possession was the pen used to strike the words of censure from the Senate Journal.

Finally, some have claimed that censure would `short-circuit' the impeachment process. They insist on going forward, but assure us that once we've launched our nuclear missile, we can rely on the Senator to destroy it before it hits its target.

Saying, in effect, `I would prefer that the President not be removed, but I am willing to put the country through the upheaval of a Senate trial nonetheless.' I submit that this is an abdication of a solemn duty--which cannot be delegated--to the Senator or anyone else.

If we truly believe that the President should not be removed from office, we have a better option. Censure him. And preserve the Constitution.

-- -- [Page: H11890] Statement of the Honorable William D. Delahunt of Massachusetts in the Matter of the Impeachment of President William Jefferson Clinton--December 17, 1998 Mr. Speaker, I neither condone nor excuse the President's admitted misdeeds. They are deserving of censure and rebuke.

But they are not a constitutionally sufficient basis for impeachment. Those who are driving this runaway train have failed to establish that the President poses a danger to the Republic that requires his removal before his term has expired.

What does endanger the Republic is a wholly partisan impeachment based on a slapdash investigation that has violated every rule of due process.

Public confidence in the rule of law is ultimately more important than the fate of one particular President. And the official lawlessness that has characterized this investigation has done far more to shake that confidence than anything of which the President stands accused.

The Constitution imposes upon this House a solemn obligation--which it may not delegate to the Independent Counsel or any other individual--to conduct a thorough and independent examination of the allegations and make its own findings of fact.

Yet we have not done this. The committee did not call a single witness who could testify to the facts. Instead, we have abdicated that responsibility to an unelected prosecutor and rubber-stamped his conclusions. Conclusions based on grand jury testimony and other information--much of it ambiguous and contradictory--whose credibility has never been tested through cross-examination.

This fraudulent investigation is insufficient--as a matter of law--to form a factual basis for the charges set forth in the articles of impeachment. If we impeach nonetheless--as some are determined to do--we will lower the bar for all future impeachments.

We will sanction an encroachment upon the Executive Branch that could upset the delicate equilibrium among the three branches of government that is our chief protection against tyranny.

Presidents are not above the law. But even Presidents are entitled to due process. This investigation has violated due process at every turn. Publishing the Starr referral--including thousands of pages of secret grand jury testimony--before either the committee or the President's counsel had any opportunity to examine it. Launching a formal impeachment inquiry without even a cursory review of the allegations. Requiring the President's counsel to prepare his defense without knowing what charges would be brought. And releasing these articles of impeachment--drafted i