[House Report 105-703]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-703
_______________________________________________________________________
PROVIDING FOR A DELIBERATIVE REVIEW BY THE COMMITTEE ON THE JUDICIARY
OF A COMMUNICATION FROM AN INDEPENDENT COUNSEL, AND FOR THE RELEASE
THEREOF, AND FOR OTHER PURPOSES
_______
September 10, 1998.--Referred to the House Calendar and ordered to be
printed
_______________________________________________________________________
Mr. Solomon, from the Committee on Rules, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H. Res. 525]
The Committee on Rules, to whom was referred the resolution
(H. Res. 525) providing for a deliberative review by the
Committee on the Judiciary of a communication from an
independent counsel, and for the release thereof, and for other
purposes, having considered the same, report favorably thereon
without amendment and recommend that the resolution be agreed
to.
purpose of the resolution
The purpose of H. Res. 525 is to provide for a deliberative
review by the Committee on the Judiciary of a communication
from an independent counsel, and for the release thereof, and
for other purposes.
summary of the resolution
H. Res. 525 establishes procedures for House consideration
of the communication received on September 9, 1998 from an
independent counsel pursuant to section 595(c) of title 28,
United States Code. Under the resolution, the communication
from the independent counsel will be referred to the Judiciary
Committee, which will review the report to determine whether
sufficient grounds exist to recommend to the House that an
impeachment inquiry be commenced. The resolution provides that
the approximately 445 pages comprising an introduction, a
narrative, and a statement of grounds, will be printed as a
House document and made public. The balance of the material
will remain in executive session of the Judiciary Committee
until September 28, 1998 unless the Committee votes to not
release the material for printing as a House document. Access
to the executive session material will be restricted to members
of the Judiciary Committee and such employees that have been
designated by the chairman for that purpose, after consultation
with ranking minority member. Finally, each meeting, hearing,
or deposition of the Committee will be in executive session
unless otherwise determined by the Committee.
committee consideration
H. Res. 525 has introduced by Rules Chairman Solomon on
September 10, 1998, and referred to the Committee on Rules.
On Thursday, September 10, the Committee held a hearing on
H. Res. 525 and received testimony from: the Honorable Henry
Hyde, Chairman of the Committee on the Judiciary; the Honorable
John Conyers, Ranking Minority Member of the Committee on the
Judiciary; the Honorable Sheila Jackson-Lee; the Honorable
Maxine Waters; the Honorable Zoe Lofgren; and the Honorable
Peter Deutsch.
On Thursday, September 10, the Committee on Rules held a
markup of the resolution. The Committee favorably reported H.
Res. 525 by a voice vote. During the markup, no amendments to
H. Res. 525 were agreed to.
background and need for the resolution
The Constitution provides that the President `` * * * shall
be removed from Office on Impeachment for and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors''
(Article II, section 4), and that the ``House of
Representatives * * * shall have the sole Power of
Impeachment'' (Article I, section 2). To that end, an
independent counsel, under 28 U.S.C. sec.595(c), must advise
the House of Representatives of any ``substantial and credible
information which * * * may constitute grounds for an impeachment.''
The Independent Counsel statute was first enacted in 1978
as Title IV of the Ethics in Government Act of 1978, and has
been reauthorized three times since.
On September 9, 1998, Independent Counsel Kenneth Starr
wrote to Speaker Gingrich and Minority Leader Gephardt
notifying them of his transmission to the House of a report
prepared under Section 595(c) of Title 28, United States Code.
Independent Counsel Starr further noted in his letter that
his communication contains confidential material, disclosure of
which to the House was authorized by the United States Court of
Appeals for the District of Columbia Circuit. The Independent
Counsel, in his letter, assets that ``The contents of the
Referral may not be publicly disclosed unless and until
authorized by the House of Representatives. Many of the
supporting materials contain information of a personal nature
that I respectfully urge the House to treat as confidential.''
A resolution of the House is necessary to refer this
communication to the House Judiciary Committee; to authorize
the Committee to conduct an initial review of the material; and
provide the parameters for release of the communication from
the independent counsel and potential restrictions on the
access to certain materials. Certain exceptions are necessary
from the standing rules of the House in order to achieve these
objectives.
The Rules Committee recognizes the grave nature of the
communication from Independent Counsel Starr and the
constitutional process it could initiate in the House of
Representatives. The Committee recommends H. Res. 525 to the
House as a prudent means for the House to assess the nature and
contents of the communication and make a determination about
whether to initiate an impeachment inquiry of the President of
the United States.
The Rules Committee understands that further procedures may
be necessary to assist the Judiciary Committee with their
review to determine whether sufficient grounds exist to
recommend to the House that an impeachment inquiry be
commenced.
Matters Occurring Before a Grand Jury
The Rules Committee understands questions have been raised
about the House Judiciary Committee's ability to obtain and use
grand jury related material during its review of the
communication received from the independent counsel. The
Committee notes the following precedents granting House
committees access to grand jury materials in the context of
impeachment actions.
In 1811, a grand jury in Baldwin County in the
Mississippi territory forwarded to the House a presentment
specifying charges against Washington District Superior
CourtJudge Harry Toulmin for possible impeachment action. 3 Hind's
Precedents of the House of Representatives Sec. 2488 at 985, 986
(1907).
In 1944, the House Committee on the Judiciary
received grand jury material pertinent to its investigation
into allegations of impeachable offenses committed by Judges
Albert W. Johnson and Albert L. Watson. Conduct of Albert W.
Johnson and Albert L. Watson, United States District Judges,
Middle District of Pennsylvania: Hearings before the
Subcommittee of the Committee on the Judiciary to Investigate
the Official Conduct of United States District Court Judges
Albert W. Johnson and Albert L. Watson, 79th Cong., 1st Sess.
(1945).
In 1974, the House Committee on the Judiciary
received grand jury material pertinent to its investigation
into allegations of impeachable offenses committed by President
Richard Nixon. In re Report and Recommendation of June 5, 1972
Grand Jury Concerning Transmission of Evidence to the House of
Representatives, 370 F. Supp. 1219 (D.D.C.), mandamus denied
sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).
The House Judiciary Committee received grand jury
material regarding allegations of impeachable offenses
committed by Judge Alcee L. Hastings. In re request for Access
to Grand Jury Materials Grand Jury No. 81-1 (Miami), 833 F.2d
1438 (1987).
The House Judiciary Committee also received grand
jury material during its impeachment investigation of Judge
Walter L. Nixon, Jr. Impeachment of Walter L. Nixon, Jr., H.
Rept. 101-36, 101st Cong., 1st Sess. (1989); Judge Walter L.
Nixon, Jr. Impeachment Inquiry: Hearings before the
Subcommittee on Civil and Constitutional Rights of the
Committee on the Judiciary, 100th Cong., 2nd Sess. (1988).
section-by-section analysis of the resolution
The Resolved clause states that the Committee on the
Judiciary (the Committee) shall review the subject matter of
the communication received on September 9, 1998 from an
independent counsel and related matters to determine whether
sufficient grounds exist to recommend to the House that an
impeachment inquiry be commenced.
Section 2 states that the material transmitted by the
independent counsel to the House shall be considered as
referred to the Committee. The portion of such material
consisting of approximately 445 pages comprising an
introduction, a narrative, and a statement of grounds shall be
printed as a House document. The balance of such material shall
be deemed to have been received in executive session but shall
be released from that status on September 28, 1998, except as
otherwise determined by the Committee. Material so released
shall be immediately submitted for printing as a House
document.
Section 3 deems additional material received by the
Committee during the review to be received in executive session
unless it is received in an open session of the Committee.
Section 4 restricts the access to the executive session
material of the Committee to members of the Committee and also
to such employees of the Committee as may be designated by the
chairman, after consultation with the ranking minority member,
notwithstanding clause 2(e) of rule XI.
Clause 2(e)(2) of House rule XI states that ``All committee
hearings, records, data, charts, and files shall be kept
separate and distinct from the congressional office records of
the Member serving as chairman of the committee; and such
records shall be the property of the House and all members of
the House shall have access thereto * * *''
The Rules Committee also notes that clause 2(k)(7) of House
rule XI states that ``No evidence or testimony taken in
executive session may be released or used in public sessions
without the consent of the committee.''
Section 5 states that notwithstanding clause 2(g) of rule
XI, each meeting, hearing, or deposition of the Committee
relating to the review shall be conducted in executive session
unless otherwise determined by an affirmative vote of the
committee, a majority being present. Such an executive session
may be attended only by members of the Committee, and by such
employees of the Committee as designated by the chairman after
consultation with the ranking minority member.
Clause 2(g) of House rule XI requires committee meetings
and hearings to be open to the public, including media, unless
the committee in open session with a majority present votes to
close the meeting or hearing.
matters required under the rules of the house
Congressional Budget Office estimates
Clause 2(l)(3)(C) of rule XI requires each committee to
include a cost estimate prepared by the Director of the
Congressional Budget Office, pursuant to section 402 of the
Congressional Budget Act of 1974, if the cost estimate is
timely submitted. No cost estimate was received from the
Congressional Budget Office.
Oversight findings
Clause 2(l)(3)(A) of rule XI requires each committee report
to contain oversight findings and recommendations required
pursuant to clause 2(b)(1) of rule X. The oversight findings of
the Committee are reflected in the body of this report.
Oversight findings and recommendations of the Committee on Government
Reform and Oversight
Clause 2(l)(3)(D) of rule XI requires each committee report
to contain a summary of the oversight findings and
recommendations made by the Government Reform and Oversight
Committee pursuant to clause 4(c)(2) of rule X, whenever such
findings have been timely submitted. The Committee on Rules has
received no such findings or recommendations from the Committee
on Government Reform and Oversight.
Committee votes
Pursuant to clause 2(l)(2)(B) of House rule XI the results
of each rollcall vote on an amendment or motion to report,
together with the names of those voting for and against, are
printed below:
Rules Committee Rollcall No. 101
Date: September 10, 1998.
Measure: H. Res. 525, to provide for a deliberative review
by the Committee on the Judiciary of a communication from an
independent counsel, and for the release thereof, and for other
purposes.
Motion by: Mr. Moakley.
Summary of motion: An amendment in the nature of a
substitute that would restrict access to material held in
executive session to only the chairman and ranking minority
member of the Judiciary Committee until September 20, 1998.
Results: Defeated 4-8.
Vote by Members: Dreier--Nay; Goss--Nay; Linder--Nay; Diaz-
Balart--Nay; McInnis--Nay; Hastings--Nay; Myrick--Nay;
Moakley--Yea; Frost--Yea; Hall--Yea; Slaughter--Yea; Solomon--
Nay.
Rules Committee Rollcall No. 102
Date: September 10, 1998.
Measure: H. Res. 525, to provide for a deliberative review
by the Committee on the Judiciary of a communication from an
independent counsel, and for the release thereof, and for other
purposes.
Motion by: Mr. Hall.
Summary of motion: An amendment in the nature of a
substitute offered by Representative Conyers that provides that
the ``referral'' portion of the materials transmitted to the
House by the Independent Counsel be provided to the counsel for
the President upon passage of the resolution at least 48 hours
before it was submitted for publication as a House document,
and that until September 25, 1998, review of the remaining
materials shall be limited to the chairman, ranking minority
member and designated staff.
Results: Defeated 4-8.
Vote by Members: Dreier--Nay; Goss--Nay; Linder--Nay; Diaz-
Balart--Nay; McInnis--Nay; Hastings--Nay; Myrick--Nay;
Moakley--Yea; Frost--Yea; Hall--Yea; Slaughter--Yea; Solomon--
Nay.
Views of committee members
Clause 2(l)(5) of rule XI requires each committee to afford
a two day opportunity for members of the committee to file
additional, minority, or dissenting views and to include the
views in its report. Although this requirement does not apply
to the Committee, the Committee always makes the maximum effort
to provide its members with such an opportunity. The following
views were submitted:
DISSENTING VIEWS
We are very disappointed with the resolution adopted by the
committee. This process began with the hope and promise of a
fair, bipartisan agreement on the ground rules by which the
fate of our nation's leader will be determined. It is
regrettable that, on such a solemn occasion, the agreement
stuck just yesterday by the Speaker and the Judiciary Committee
Chairman, Mr. Hyde, with our minority leaders has been ignored.
We find instead that we cannot even rely on the commitment made
by the Speaker or by the Chairman of the Judiciary Committee.
That agreement--reached in a lengthy meeting on Wednesday
of this week--was to proceed on a two-step track. The first
resolution would establish a process for reviewing and making
public the documents presented to the House by the independent
counsel. The second resolution would establish certain special
authorities for the Committee on Judiciary to assess whether to
commence an impeachment inquiry. With regard to the first
resolution, the agreement was to release immediately the 445
pages, which consist of an introduction, a narrative and a
statement of grounds. The remaining materials would be treated
as if received in executive session. Access to this material
would be restricted to the Chairman and Ranking Minority Member
of the Judiciary Committee for the purpose of identifying those
portions which might unnecessarily harm the reputations of
innocent individuals. All remaining material would be released
to the public within ten days.
And what do we have? First, the resolution is not limited
to how the material should be released. The resolution includes
a directive to the Judiciary Committee to examine matters
beyond the scope of the Independent Counsel's report. It
assumes that the Committee will compile additional information
through a new inquiry and discusses how that material will be
handled. It contemplates additional depositions, meetings,
hearings on matters that may or may not be included in the
Independent Counsel's report. Fortunately, one of the most
egregious sections of this resolution was removed at our
request. The Rules Committee attempted to include a provision
which would have changed the vote requirement for granting use
immunity to witnesses from a two-third's vote in Committee to a
majority of the House.
Second, the resolution rewrites the bipartisan agreement of
the House leaders on how to review and determine the release of
the appendices and the 17 boxes of support documents which were
not immediately made public. One of the keystones of the
agreement is that this additional material was to be reviewed
solely by the Chairman and the Ranking Minority Member to limit
the possibility of information leaking to the press which could
be harmful to innocent people. This protection was requested by
the Independent Counsel in his letter of transmittal. It was a
protection that Chairman Hyde, Speaker Gingrich, Minority
Leader Gephardt and Ranking Minority Member Conyers all felt
was important in their bipartisan discussions. However, it has
been summarily overthrown by the Rules Committee. The
resolution hands this raw material to all 34 members of the
Judiciary Committee to determine what sensitive material should
be kept confidential. This process will unduly harm people who
are incidental to the investigation. It is unacceptable.
On the matter of fairness, we want to express our regret
that the request of the Ranking Minority Member, Mr. Conyers,
to offer a substitute amendment was rejected by the Rules
Committee. The Conyers substitute would have allowed the
President the opportunity to review the charges against him for
two days before they are made public. This does not seem
unreasonable since the rules of the House offer Members of
Congress facing ethics charges ten days to review all evidence
the investigative subcommittee intends to use to prove its
charges including ``documentary evidence, witness testimony,
memoranda of witness interviews and physical evidence'' before
a scheduled vote on a statement of alleged violations.
We had hoped for a fair process in order to be able to
carry out our responsibilities in the Constitution.
Unfortunately, the majority on the Rule Committee did not see
fit to give us one.
Joe Moakley.
Tony P. Hall.
Martin Frost.
Louise Slaughter.