[Congressional Record Volume 161, Number 146 (Tuesday, October 6, 2015)]
[Senate]
[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
Nation.
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
authorization.
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
counsel?
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
Clinton.
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.
Sincerely,
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
counsel.
Mr. President, I yield the floor.
