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John C.
Republican TX

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  • Calling for Appointment of a Special Counsel

    by Senator John Cornyn

    Posted on 2016-04-14

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    CORNYN. Madam President, I want to turn to a topic that has concerned me a lot over the last year and troubles me more each day, and that is the use by former Secretary of State Hillary Clinton of an unsecured private email server while serving as our Nation's top diplomat. We have known about her private email server for a while now and the great lengths she has gone to avoid compliance with some pretty important laws that Congress has passed and that have been signed into law by the President of the United States.

    I believe transparency in government is very important in terms of building public confidence for what we are actually doing. That is why even when I was at the State level as Texas Attorney General, I was an avid supporter of open records and open meetings legislation so the public had access and saw their right to know honored.

    Here in Congress, since I have gotten here, I have been working closely with my ideological opposite, Senator Pat Leahy from Vermont, with him on the left end of the spectrum and me on the right end of the spectrum, but both agreeing that the public's right to know is so important when it comes to self-government and what the public doesn't know can hurt them. That is why when Lyndon Johnson signed the Freedom of Information Act into law, it passed with such broad support, and it continues to enjoy that kind of broad support today. It applies the principle of transparency and accountability, and in the process, it helps build confidence for what Congress is doing on the people's behalf.

    It is pretty clear that Secretary Clinton sought to evade those important laws by setting up this private email server.

    I know most people are familiar with the dot-com domains that we use perhaps at your home or my home, and we have the dot-gov domain, which is used by government agencies and the like. But then there is a dot- mil, which is used by the Department of Defense and is a classified system. There is actually another system that operates independently which carries the most sensitive classified information circulated by our intelligence community around the world.

    Those are important distinctions because those don't necessarily talk to each other. In fact, they are not connected to the Internet. The classified intelligence system server is not connected to the military classified system or to the dot-gov system and certainly not to the dot-com or the private email server.

    I have not heard another example of anybody who has been quite so careless--to use the President's term--or reckless--to use my term-- with how private email servers are used to conduct official business. There is a lot of risk associated with that.

    We know the former Secretary of State did delete tens of thousands of emails that were once on the server. In other words, she hadn't turned those over to the State Department to vet and determine whether they complied with court orders requiring the State Department to produce emails that were producible under the Freedom of Information Act. She just deleted them.

    We know that her emails contained classified information, some at very high levels of government classification. As many of our Nation's top security experts will tell you, it is likely that our adversaries had easy access to and monitored Secretary Clinton's unsecured server, as well as the sensitive communications that were contained on it.

    As Secretary of State, you are a member of the President's Cabinet. You are operating at the highest levels of classification with very sensitive information, and it is simply irresponsible to subject that information to the efforts by our Nation's adversaries to capture and read it and use it to their advantage.

    All of this should concern all of us. I am not just talking about the political ramifications. This is not primarily about politics. But Secretary Clinton's actions were such an extreme breach of the Nation's confidence, and they potentially gave away extremely sensitive information that put our national security in jeopardy, not to mention the lives of those who serve our country in the intelligence community and whose very identity may have been revealed by this very sensitive classified information.

    This is not a trivial matter. We need to treat this seriously, and the facts must be pursued in a thorough, impartial investigation. I know most people don't really believe there is such a thing as an impartial investigation here in Washington, DC, but there is a category of counsel that has been created by Congress to provide some measure of independence from the Department of Justice. That is called a special counsel. It is up to the Attorney General herself whether to appoint the special counsel when she recognizes [[Page S2088]] that there is an apparent conflict of interest or at least an appearance of partiality that ought to be dealt with by the appointment of a special counsel.

    Given the unprecedented nature of this case and the unavoidable conflicts of interest, I strongly believe there is no other appropriate action for Attorney General Loretta Lynch to take than to appoint a special counsel in this case to get to the bottom of it, to follow the facts to wherever they may lead, and to make sure the law is applied impartially and fairly wherever those may fall.

    The American people were reminded of the need for a special counsel last weekend when, once again, President Obama opined publicly about the investigation. In an interview on Sunday, President Obama dismissed the email scandal by splitting hairs about how the government classifies information. According to the President--get this--``there's classified, and then there's classified'' information.

    He was attempting to draw meaningless distinctions between levels of classification, suggesting that release or exposure of some classified information was OK as long as it wasn't the ``classified'' information, which supposedly he would say should be kept from our Nation's adversaries and kept confidential.

    President Obama, in other words, was trying to indicate that even though classified information was on Secretary Clinton's private server, he somehow divined that it was not so sensitive that it would put our country in jeopardy.

    First of all, we know that some of Secretary Clinton's emails were classified even beyond confidential, to the secret and top secret special access program levels--some of the highest levels of classification. Second, the President's comments have to be confusing to many public servants around the country, who, as part of their daily work, handle classified information and the way they do it when they are issued a national security clearance or sign a nondisclosure agreement. According to the President, it must be OK to expose some classified information to public view but not others. I can guess that people who work in that world must be somewhat confused and perplexed by the President's statement.

    To dismissively talk about the different levels of classification is not only wrong but, frankly, it is insulting to Americans who work tirelessly on a daily basis to protect our national security and, in particular, to those who go to great lengths to properly and carefully handle classified information, even when it isn't particularly convenient.

    But perhaps worse, the President was opining publicly on the results of an ongoing criminal investigation over which it turns out he knows absolutely nothing--at least if you believe the key players in that investigation. Although he claims to adhere to a strict line between himself and the investigation, President Obama repeatedly suggests his desired outcome and acts as if he is Secretary Clinton's front line of defense.

    Here is President Obama in the same interview. He said that he ``continues to believe that [Secretary Clinton] has not jeopardized America's national security.'' How in the world could the President possibly know that if, in fact, there is a strict line between himself and the investigation? Attorney General Lynch has testified and stated in front of the Senate Judiciary Committee--and FBI Director Comey has likewise testified--that there has been no reporting to the White House about the results of the ongoing investigation. Everybody understands that would be improper, but somehow the President suggests it is all OK and that he knows, when, in fact, he doesn't know.

    How could the President possibly know that, especially when--as the President made clear last Sunday--he has not been ``sorting through each and every aspect'' of the issue? By the President's own admission, he doesn't talk to the Attorney General or the FBI Director about ongoing investigations, and he certainly isn't conducting it, so he wouldn't have personal knowledge. Under no circumstance is this kind of commentary by the President OK. There is simply no way to read this without running a serious risk of trying to influence the outcome of the investigation, which everybody should recognize would be completely improper. The President has done this before and so has his spokesman, the White House Press Secretary. Time and again the White House has projected its desired outcome in this investigation to the public and, worse, to those people conducting it. As I said, it is completely inappropriate, but don't just take it from me.

    As I mentioned a moment ago, last month the Judiciary Committee heard testimony from Attorney General Loretta Lynch. I conveyed to her at the time the need for a special counsel to investigate the case. At the hearing, Attorney General Lynch testified that it was her hope that everyone, including the White House, would stay silent when it comes to commenting on an ongoing investigation by the FBI.

    I couldn't agree with her more. The responsible thing for the President to do would be to say nothing, particularly if he knows nothing about the content of an ongoing criminal investigation. I wish the President would take the advice of his lawyer, the Attorney General of the United States, and respect her prerogative as the Nation's chief law enforcement officer and the reputation of the Federal Bureau of Investigation. Director Comey made it clear that the FBI does not care for politics. It doesn't play politics. In fact, the credibility and integrity of the FBI depends upon their not playing politics. So why is the President playing politics with law enforcement? Well, the threat of a President influencing an ongoing investigation intentionally or otherwise is not something we must just accept. What we need is an investigation that is as independent as possible.

    I hope the Attorney General, in light of the President's comments and his attempt to influence the investigation--I can think of no other reason he would say what he did--reconsiders her refusal to appoint a special counsel in this case. At the very least, I hope the President quits talking about a subject he knows nothing about, which is what the investigation is revealing, and let the Justice Department do its job without feeling the pressure that apparently the White House is attempting to impose on the FBI and the Department of Justice.

    I yield the floor.

    I suggest the absence of a quorum.

    The PRESIDING OFFICER. The clerk will call the roll.

    The senior assistant legislative clerk proceeded to call the roll.

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