[Congressional Record (Bound Edition), Volume 145 (1999), Part 6] [Senate] [Pages 7928-7929] [From the U.S. Government Publishing Office, www.gpo.gov]ILL-CONSIDERED PROSECUTION OF FORMER AGRICULTURE SECRETARY MICHAEL ESPY Mr. LEAHY. Mr. President, there have been a lot of interesting things in the news this week. One is a story about the Supreme Court's ruling on Tuesday. It confirms the view that many of us have held for some time. Special Prosecutor Donald Smaltz was overreaching, at the very least, in indicting and trying former Secretary of Agriculture Mike Espy. Mr. Smaltz spent over 4 years and about $17 million of our taxpayers' money to run out of office this distinguished public servant. Last December, a jury said ``no'' to Special Prosecutor Smaltz and acquitted Mr. Espy of the charges against him. In fact, the jury said ``no'' and ``no'' and ``no'' and ``no'' and ``no'' and ``no,'' I believe, over 30 times. Now the Supreme Court has said a resounding ``no'' also. They rejected the broad reading urged by Mr. Smaltz of the criminal laws he has used to bring down a Cabinet Secretary. The Supreme Court, Tuesday, concluded that the conviction of a trade association for giving Mr. Espy gifts was correctly thrown out by a lower court. According to the Supreme Court, if Mr. Smaltz's reading of the Federal gratuity statute were correct--a reading that out-of-control special prosecutors seem to have--``it would criminalize, for example, token gifts to the President based on his official position and not linked to any identifiable act--such as the replica jerseys given by championship sports teams each year during ceremonial White House visits . . . [or] a high school principal's gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter's visit to the school.'' The Supreme Court wisely rejected these absurd results. Secretary Espy began his tenure as Agriculture Secretary facing challenges to the safety of our food supply, and he dealt with those challenges with enormous energy, compassion, and effectiveness. Just before he was sworn as Secretary, several children died because they ate contaminated hamburgers in Washington State. I remember this very well. I remember Secretary Espy immediately flying to Washington State to be with the families, because he cares about people. I remember talking to him about that, because I was at that time chairman of the Senate Agriculture Committee. I know that when he flew back to Washington, he devoted himself to preventing these needless deaths. He started putting into effect policies which will save thousands of lives in our country. He fought the industry itself-- a very powerful, well-heeled industry--to do the right thing. History will record his tenure as a turning point in updating and modernizing our food safety standards--a tradition continued by Secretary Glickman and President Clinton. But his ``trial by fire'' began at the hand of a special prosecutor run amuck. The unanimous jury verdict acquitting him underscores what I have been concerned about for some time--unaccountable prosecutors with unlimited budgets who can and will bring charges that no other prosecutor in the world would bring. [[Page 7929]] This special prosecutor is one who is extremely frustrating. If I thought that what he did was out of sheer stupidity, that would be one thing. It would be enough if we thought that this was a man who was just not bright enough to know his job. But along with his total lack of judgment, his total stupidity, came a man whose overwhelming ego was such that he cared less about anybody he was after. The taxpayers were paying his bill. He cared only about preening before the cameras himself. He was particularly interested in promoting himself and patting himself on the back. He was among the first of the special prosecutors to establish his own Internet web page. It is like an advertisement for himself on this web page. Mr. Smaltz posted his reaction to the jury verdict and downplayed the acquittal since an ``indictment of a public official may, in fact, be as great a deterrent as a conviction of that official.'' That was the most flagrant admission of abuse of a prosecutor's power that I have ever seen--I was a prosecutor for nearly 9 years--and it remains posted on his web page today. What he is saying is, it doesn't make any difference if the person is guilty or not. It doesn't make any difference if the jury acquitted over and over again, and the person is not guilty. All the prosecutor has to do is bring an indictment; that will teach them. This is no way to restore faith in the criminal justice system. This is an example of a prosecutor who indicts somebody for something that no jury would ever convict the person for, but says, ``I will show them because I am the prosecutor,'' or, ``I can do that because, after all, it is going to cost you hundreds of thousands and maybe millions of dollars to prove your innocence. And, besides, the taxpayers are paying my bill. So why should I care about you?'' What ego, what stupidity, what arrogant abuse of power. I really cannot think of words strong enough to condemn such actions. No prosecutor should bring an indictment simply as a deterrent and without a good-faith belief that the case can be proved beyond a reasonable doubt. Prosecutors should not bring these charges simply to harass somebody, simply to cost them money. A prosecutor has a sworn duty not to bring a charge unless he or she thinks there is at least a reasonable chance they can prove the charge and the person is guilty. Common decency, saying nothing about the canons of ethics, would require that. Frankly, no prosecutor who has to answer to anybody would do that. Only a prosecutor who doesn't have to answer to anyone, only a prosecutor who has the taxpayers paying their unlimited bills, would do that. Putting aside the harm to reputation and cost to the defendant and witnesses of bringing unwarranted charges, indictments based on flimsy facts can be dangerous. The Government is barred under our Constitution's double jeopardy clause from bringing a case twice. So a prosecutor has a responsibility to ensure that the Government can prove its case the first time around. There is no opportunity for a second ``bite at the apple.'' One item that Special Prosecutor Smaltz did not put up on his web page was, I thought, one of the most disgusting things I have seen any prosecutor do. It was so bad that apparently, even with his unbridled ego and his lack of intellectual honesty, he did not feel he could bring himself to put it on the web page. That item was: he congratulated his team of well paid prosecutors with gifts of wristwatches. According to the press reports, these watches ``look good, with Smaltz' name around an eagle in the center of the independent counsel seal and the case name, `In re Espy.' '' It is like he was on some big game hunt and these were the trophies. Stupidity one might excuse, and stupidity was evident here. But this kind of arrogant, egotistical abuse of a public trust nobody can forgive. In fact, I have wondered whether the cost of those gratuities exceeded the costs of the gifts that Mr. Espy was charged with receiving. Watch gifts may not be criminal; I find them certainly offensive. Mr. President, as we go into the debate we will have this year on whether we renew the Office of Independent Counsel--something, I predict, will not be done--let us not aim all our fire at the excesses of Kenneth Starr, or his tactics, or his misstatements of the facts to the Attorney General, or even some of the lies that came out of his office. Let us not focus just on that. Let's look at people like Donald Smaltz, a man who showed what happens when somebody of limited talent, of questionable ethics, of no integrity, how they can act when they are given unbelievable power, unlimited budget; and we in the Congress should ask ourselves whether we want to continue this. The Office of Independent Counsel, when filled with good men and women--and there have been some very good men and women of both parties who have been there--who follow the restraints that prosecutors would normally expect to have, have done a good job. But when it is filled by people who would serve with a sense of self-aggrandizement, it hurts the whole Nation. It hurts an awful lot of innocent people--people found innocent by juries, people found innocent by appellate courts, people whose reputations are besmirched and their bankrolls exhausted by the actions of unconscionable, incompetent, out-of-control persons like this man. Mr. President, I may speak more on this. I have tried to restrain myself in my comments about him today and to give him the benefit of the doubt. I have probably given him the benefit of the doubt more than he deserves. Mr. President, seeing no one else seeking the floor, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. KERRY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. KERRY. Mr. President, I ask unanimous consent to speak as in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. (The remarks of Mr. Kerry, Mr. Kohl, and Mr. Jeffords pertaining to the introduction of S. 918 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') Mr. KERRY. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mrs. LINCOLN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mrs. LINCOLN. Mr. President, I ask unanimous consent to address the Senate for 10 minutes. The PRESIDING OFFICER. Without objection, it is so ordered. Mrs. LINCOLN. I thank the Chair. ____________________