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[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.

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