[Congressional Record Volume 161, Number 146 (Tuesday, October 6, 2015)]
[Pages S7131-S7156]

              Calling for Appointment of a Special Counsel

  Mr. CORNYN. Mr. President, I wish to spend a few minutes speaking 
about a topic we should all be able to agree on, even in this polarized 
environment in which we live and work, and that is the idea that 
transparency and accountability are key to good governance. 
Transparency and accountability are key to good governance.
  Open government is a prerequisite for a free society, one in which 
the legitimacy of government itself depends upon consent of the 
governed. In fact, we can't consent on something we don't know anything 
about. My colleagues get my point.
  As our Founding Fathers recognized, a truly democratic system depends 
on an informed citizenry so they can hold their leaders accountable at 
elections and between elections. But the American people cannot do that 
without transparency. Justice Brandeis famously said that sunlight is 
the best disinfectant, and he is right. That is why Congress has 
enacted numerous pieces of legislation that have promoted 
accountability and transparency in government so that good governance 
can hopefully flourish.
  This is a bipartisan issue. When I came to the Senate, I found a 
willing partner in Senator Patrick Leahy from Vermont. Senator Leahy 
and I are polar opposites when it comes to our politics, but on matters 
of open government and freedom of information, we have worked closely 
together on a number of pieces of legislation. As we both have said, 
when a Democratic President is in charge or a Republican President is 
in charge, the first instinct is to try to hide or minimize bad news 
and to maximize the good news. That is human nature. We all get that. 
But the American people are entitled to know what their government is 
doing on their behalf, whether it is good, bad, or ugly.
  So I have made transparency a priority of mine, and I have pressed 
for more openness in the Federal Government through commonsense 
legislation. One of those bills was the Freedom of Information 
Improvement Act, which would strengthen existing measures found in the 
Freedom of Information Act that was first signed by a Texas President, 
Lyndon Baines Johnson. The Judiciary Committee passed that bill in 
February by a voice vote, and I look forward to it passing in the 
Senate soon.
  But even the very best laws with the very best intentions can be 
undermined by those who are willing to ignore or even abuse them. More 
than 6 years ago, President Obama promised the American people that 
transparency and the rule of law will be the touchstone of this 
Presidency. He said, ``Transparency and the rule of law will be the 
touchstones of this presidency.'' Needless to say, his record has been 
a disappointment because it certainly doesn't meet the description of 
transparency and adherence to and fidelity to the rule of law.
  For example, when an estimated 1,400 weapons were somehow lost by the 
Bureau of Alcohol, Tobacco, and Firearms in Mexico, with one of them--
actually two of them--eventually linked to the murder of a U.S. Border 
Patrol agent, the Obama administration stonewalled congressional 
investigations. This was the Fast and Furious debacle. As a matter of 
fact, the Attorney General--then Eric Holder--refused to comply with a 
valid subpoena issued by Congress so we could find out about it, so we 
could figure out where things went wrong and how we could fix them so 
they didn't happen again. Former Attorney General Eric Holder, rather 
than comply with Congress's legitimate oversight request, refused and 
was thus the first Attorney General, to my knowledge, to be held in 
contempt of Congress--in contempt of Congress. Then, of course, there 
are the IRS and ObamaCare--instances in which this administration has 
either refused to testify to Congress or failed to answer our most 
basic questions.
  This administration has been equally dismissive of the press, who are 
also protected--freedom of the press under the First Amendment to the 
U.S. Constitution--leading dozens of journalists to send a letter to 
the President asking him to end this administration's ``politically 
driven suppression of news and information about Federal agencies.'' 
That is really remarkable.

[[Page S7137]]

  So we can see the American people have been stiff-armed by this 
administration, and they have become increasingly distrustful of their 
own government. That is because secrecy provides an environment in 
which corruption can and does fester. In fact, according to a recent 
poll, 75 percent of Americans who responded believe there is widespread 
corruption in the U.S. Government. Seventy-five percent believe that. 
That is a shocking statistic and one that ought to shock us back to 
reality to try to understand what their concerns are and what we can do 
to address them because that is simply inconsistent with this idea of 
self-government, where 75 percent of the respondents to a poll think 
the fix is in, and the government is neither accountable nor adhering 
to the rule of law.
  It was back in March that the public first learned that a former 
member of this administration, Secretary Clinton, used a private, 
unsecured server during her tenure as Secretary of State. It was just 
last Wednesday that the State Department announced the release of even 
more documents from Secretary Clinton's private email server. This 
ongoing scandal has been but the latest example of this 
administration's pattern of avoiding accountability and skirting the 
law. I will explain in just a few minutes why this is so significant 
and why this isn't something that ought to be just brushed under the 
rug and ignored.
  Secretary Clinton's unprecedented scheme was intentional. It wasn't 
an accident. It wasn't negligence. She did it on purpose. It was by 
design. Her design was to shield her official communications--
communications that under Federal law belong to the government and to 
the people, not her. I can't see any other way to explain it. It was 
deliberate. It was intentional. It was designed to avoid the kind of 
accountability I have been talking about today. There is just no other 
way to look at it.
  Because her emails were held on this private server, the State 
Department was in violation of the legal mandates of the Freedom of 
Information Act for 6 years, and it is only now, through Freedom of 
Information Act litigation and more than 30 different lawsuits, that 
the public is finally learning what it was always entitled to know, or 
at least part of it. By the way, that is the power of the Freedom of 
Information Act and why it is so important. You can go to court and 
seek a court order to force people to do what they should have done in 
the first instance so the public can be informed about what their 
government is doing.
  Secretary Clinton's use of a private, unsecured server as a member of 
the Obama Cabinet is also a major national security concern. We have 
learned that classified information was kept on and transmitted through 
this server. According to the latest reports, the newest batch of 
documents released just last week have doubled the amount of emails 
that contain classified information. News outlets are reporting that 
there are more than 400 classified emails on the server, and that is 
just the report so far.
  It is no coincidence that along with this news, the media has also 
reported that Russian-linked hackers attempted at least five times to 
break into Secretary Clinton's email account. That should make obvious 
to her and to everyone else the vulnerabilities that exist for a 
private, unsecured email server, one used by a Cabinet member in 
communicating with other high-level government officials, including 
people in the intelligence community. This is absolutely reckless.
  This Chamber is aware--we are painfully aware from the news--that 
cyber threats are all too prevalent today. It seems every week we read 
a new story about different cyber attacks, cyber theft, cyber espionage 
against our own country. This last summer we discussed at length the 
data breaches that occurred at the Office of Personnel Management. 
People who had actually sought and obtained security clearances so they 
could handle and learn classified material--that information was hacked 
and made available to some of our adversaries. Then, of course, there 
is the information we all learned about the IRS being hacked as well. 
The personal information contained in those two hacks alone covered 
millions of Americans.
  At a time when our adversaries are trying to steal sensitive national 
security information, especially classified information, I find it 
incredibly irresponsible for Secretary Clinton or anyone else to invite 
this kind of risk and to conduct routine, daily business on behalf of 
our Nation over a private, unsecured email server. I find it even more 
egregious that she or her senior aides would send classified 
information over this same server.
  I am not the only one who believes Secretary Clinton compromised our 
national security by doing this. Just last month, before the Senate 
Select Intelligence Committee, the current Director of the National 
Security Agency, ADM Mike Rogers, who also serves as commander of U.S. 
Cyber Command, said conducting official business on a private server 
would ``represent an opportunity'' for foreign intelligence operatives. 
In other words, foreign intelligence services would relish the 
opportunity to penetrate the private server of a high-profile leader 
such as Secretary Clinton or any other Secretary of State who, once 
again, is a member of the President's Cabinet, his closest advisers.
  Some hackers clearly noticed this opportunity and tried to take 
advantage of it, and we don't know--perhaps we never will know--the 
extent to which that national security information, that classified 
information was compromised.
  We need to come to terms with the fact that due to Secretary 
Clinton's bad judgment, it is probable that every email she sent or 
received while Secretary of State, including highly classified 
information, has been read by intelligence agents of nations such as 
China and Russia who we know are regularly trying to hack into our 
secure data and to learn our secrets or to steal our designs and to 
replicate those by violating our commercial laws. So this email scandal 
is more than just bad judgment; it represents a real danger to our 
  I am sorry to say, but it is true, that Secretary Clinton's actions 
may well have violated a number of criminal laws. Under the 
circumstances, the appointment of a special counsel by the Justice 
Department is necessary to supervise the investigation and ensure the 
American people that investigation gets down to the bottom line and we 
follow the facts wherever they may lead.

  As I made clear in a recent letter to Attorney General Loretta Lynch, 
the Department of Justice regulations themselves provide for the 
appointment of a special counsel if there is potential for criminal 
wrongdoing and if there is a conflict of interest at the Department of 
Justice or if extraordinary circumstances warrant the appointment.
  Let me start by explaining which criminal statutes Secretary Clinton 
may have violated.
  Federal law makes it a crime to retain classified information without 

       Whoever, being an officer . . . of the United States . . . 
     knowingly removes [classified] documents or materials without 
     authority and with the intent to retain such documents or 
     materials at an unauthorized location shall be fined under 
     this title or imprisoned for not more than one year, or both.

  That is 18 USC, section 1924.
  We know from media reports that Secretary Clinton retained classified 
documents on her server. According to those reports, more than 5 
percent of the latest emails released by the State Department contained 
classified information. So we need a thorough, unbiased, impartial 
investigation to determine how those documents made it to Secretary 
Clinton's unsecured server and whether she knew that was happening. A 
special counsel would be the best person and in the best position to do 
just that.
  While Secretary Clinton may argue--which I heard her argue on news 
reports--that none of this information was marked ``classified'' when 
it was emailed to her, under the Espionage Act, that is irrelevant even 
if true, and I certainly doubt that is the case. According to the act, 
it is a crime to deliver national defense information to unauthorized 
individuals. At 18 USC, subsection 793(d), it states that ``whoever, 
lawfully having possession of . . . any document . . . or note relating 
to the national defense . . . willfully communicates, delivers, 
transmits . . . the same to any person not entitled

[[Page S7138]]

to receive it . . . [s]hall be fined under this title or imprisoned not 
more than ten years, or both.''
  So you can see this is serious. This is serious stuff and deserves to 
be treated with that same requisite seriousness, and that is again why 
it is so important to have an impartial investigation.
  We know, for example, that information on North Korea's nuclear 
program was in Secretary Clinton's emails. I was recently with some of 
my colleagues at Pacific Command, and Admiral Harris, a four-star 
admiral, the head of Pacific Command, said that on his list of security 
threats confronting his region of the world, North Korea is at the top. 
It has nuclear weapons, intercontinental ballistic missiles, and it has 
a leader who is capable of doing just about anything he could imagine. 
It is a very dangerous situation and a very serious national security 
issue. Yet Secretary Clinton was communicating information or had 
communicated to her on her private email server information about North 
Korea's threat. We don't know whether that information was among the 
200 classified emails released by the State Department last week. We 
know her lawyers and perhaps others reviewed every email on her server 
before turning them over to the State Department. We don't know who 
reviewed them, whether they had a proper clearance, whether they were 
actually entitled to see classified information, and that is why a 
special counsel would be important to answer that question too.
  Under the Espionage Act, we see that it is a crime to remove national 
defense documents or permit them to be stolen. Here is a summary of the 
statute: ``Whoever, being entrusted with . . . any document . . . 
relating to the national defense . . . through gross negligence permits 
the same to be removed from its proper place of custody . . . or to be 
lost, stolen, abstracted, or destroyed . . . shall be fined under this 
title or imprisoned not more than ten years, or both.''
  Now we know that the server was not held in a proper place of 
custody, and we know from the testimony of experts in the intelligence 
community that the likelihood that something was removed from Secretary 
Clinton's server by foreign hackers is high. Last week, as I said 
moments ago, news outlets reported that they were certainly trying. So 
a special counsel could answer this question and determine whether this 
statute was violated and how it should be enforced if it was violated.
  What greater example of gross negligence is there than for a high 
government official, such as the Secretary of State of the United 
States of America, a member of the President's Cabinet, to communicate 
all business on a private, unsecured server when it is likely--and 
maybe more than just likely--it is almost certain that sensitive 
national defense information would pass through it?
  We simply don't know what other laws may have been broken or whether 
there are other explanations that Secretary Clinton might have that 
might shed some light on this. But this is certainly why a special 
counsel should be appointed. And I would say that if Secretary Clinton 
and the Obama administration are confident that no laws have been 
broken, then why wouldn't they embrace the appointment of a special 
  I would point out that in another case, the President's own 
Department of Justice has aggressively pursued the mishandling of 
classified information in the past. So my simple request in calling for 
a special counsel is that the same rules apply to Secretary Clinton.
  The Department's clear conflicts of interest in this case and the 
extraordinary circumstances surrounding it could not be more obvious. 
As a high-level official in the administration for 4 years, Secretary 
Clinton is clearly allied with the administration. As a former First 
Lady and a U.S. Senator, Secretary Clinton has a deep professional and 
personal relationship with the administration, including the 
President's choice for Attorney General, Loretta Lynch. I would think 
Ms. Lynch, the Attorney General, would want the sort of integrity and 
proper appearance that would occur by appointment of special counsel 
rather than have it look as if she has simply sat on this information 
and not conducted a thorough investigation herself.
  I am simply calling for that kind of investigation. As somebody who 
spent 17 years of my life as a State court judge and attorney general, 
I believe that sort of investigation is entirely warranted. Of course, 
some of my Democratic colleagues--including the Senators from Vermont 
and California--have already claimed that this call for a special 
counsel is some sort of political stunt. The senior Senator from 
California was quick to say that calls for a special counsel are purely 
political and completely unnecessary and would amount to wasting 
taxpayer dollars. Well, I would like to point out to both Senators from 
Vermont and California that each of them on more than one occasion has 
called for a special counsel in the past. Surely I don't think they 
would characterize their own call for a special counsel in the same 
terms that the current call for a special counsel is described.
  While serving as Senators, the President of the United States, Barack 
Obama, and former Secretary Hillary Clinton, while both of them were 
Senators, called for the appointment of a special counsel.
  All of that is to say that requesting an appointment of a special 
counsel is not uncommon, and it is clearly warranted in this case.
  Mr. President, I ask unanimous consent that the response from the 
Justice Department to my letter requesting a special counsel be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,

                                Office of Legislative Affairs,

                               Washington, DC, September 22, 2015.
     Hon. John Cornyn,
     U.S. Senate, Washington, DC.
       Dear Senator Cornyn:  This responds to your letter to the 
     Attorney General dated September 15, 2015, requesting that a 
     Special Counsel be appointed to investigate the use of a 
     private e-mail server by former Secretary of State Hillary 
       The Special Counsel regulations, 28 C.F.R. Sec. 6001, which 
     were issued as a replacement for the former Independent 
     Counsel Act, provide that in the discretion of the Attorney 
     General, a Special Counsel may be appointed when an 
     investigation or prosecution by the Department of Justice 
     (the Department) would create a potential conflict of 
     interest, or in other extraordinary circumstances in which 
     the public interest would be served by such an appointment. 
     This authority has rarely been exercised.
       As you know, the Department has received a security 
     referral related to the potential compromise of classified 
     information. Any investigation related to this referral will 
     be conducted by law enforcement professionals and career 
     attorneys in accordance with established Department policies 
     and procedures, which are designed to ensure the integrity of 
     all ongoing investigations.
       We hope this information is helpful. Please do not hesitate 
     to contact this office if we may provide additional 
     assistance regarding this or any other matter.
                                                  Peter J. Kadzik,
                                       Assistant Attorney General.

  Mr. CORNYN. Mr. President, I would just say that for those who are 
interested in reading the response--interestingly, I didn't get a 
response from the Attorney General, to whom I addressed the letter; I 
got a response from the Assistant Attorney General. I read it over and 
over and over again, and it doesn't agree to the appointment of a 
special counsel and it doesn't refuse to appoint a special counsel. In 
other words, it is a non-answer to the question. I don't know what 
reason the Attorney General or the Department of Justice might have for 
leaving this open-ended and not actually declining at this time to 
appoint a special counsel, if that is their conclusion, but they simply 
didn't answer the question.
  I would just say in conclusion that my constituents in Texas sent me 
here to serve as a check on the executive branch, and I am going to 
continue to press the Attorney General and the rest of the 
administration for answers because the American people deserve the sort 
of accountability and, indeed, in the end, justice that need to be 
delivered in this case--not a sweep under the rug, not a playing out 
the clock until the end of the administration, but answers that can 
only come from an independent investigation conducted by a special 
  Mr. President, I yield the floor.