Press Conference


Thursday, February 4, 1999

9:35 a.m.


(9:35 a.m.)

MR. HOLDER: I would like to just make a statement before we start.

In just over two months, the so-called McDade amendment will become law. And as many of you know, this is of great concern to us here at the Justice Department and throughout the law enforcement community. The law would protect the average criminal and not protect the average citizen. And that's because it will handcuff prosecutors, by requiring them to comply with a patchwork of contradictory state rules.

For instance, when McDade goes into effect, it will prohibit prosecutors from talking to many employees who want to turn over evidence of corporate fraud. And why is this? Because prosecutors cannot speak with represented persons if the person's attorney is not present. And in some states, an employee is considered represented if the company itself has a lawyer.

When McDade goes into effect, prosecutors conducting a multi-State investigation will be forced to reconcile inconsistent rules in different states and in different courts. That will impede our investigations before they even get off the ground.

And when McDade goes into effect, it could thwart our legitimate undercover techniques, such as court-authorized electronic surveillance, wiretapping and using undercover agents to infiltrate criminal organizations.

Now, in the past six and a half years, we have witnessed an historic reduction in crime across this country. And the Justice Department, together with State and local law enforcement agencies, has been on the front line of that battle.

If the McDade amendment becomes law on April the 19th, standard prosecutorial tools which have been used for a good number of years, would be called into question, and routine criminal investigations will be endangered. And that's why law enforcement organizations, civic groups, six former Attorneys General, and victim rights group all around this Nation are strongly opposed to the so-called McDade amendment. It is a bad law that must be modified.

QUESTION: Does that mean the Department is planning on lobbying in Congress to try to fix this problem early in the session?

MR. HOLDER: Yes, I would expect that we will be up on the Hill. I have been on the Hill in the last, I guess, two to three weeks, speaking with people, staff members, Congressmen, Senators, to try to make them aware of the negative impact the McDade bill will have.

QUESTION: Are you in favor of Senator Hatch's proposal?

MR. HOLDER: We fully support the proposal, the modification that Chairman Hatch has proposed. I think that's a good way to deal with the problem that has been identified on the support of the McDade amendment -- I think they have identified.

QUESTION: Mr. Holder, I'm a little confused. Can the McDade amendment become law without presidential signature?

MR. HOLDER: The bill has already been passed. It has an effective date of April the 19th. Unless another bill is passed, it will become effective on April the 19th.

QUESTION: So, in the past, it's been enacted and signed into law by the President?

MR. HOLDER: It was part of a larger bill, the omnibus bill, that was considered at the end of the last session. It was passed by Congress. The omnibus bill was signed by the President. There was a modification made at the last minute that the effective date would not be when the President signed it, but six months after it was actually signed. And that's why we have this window.

QUESTION: Is there any chance that there could be action before April 19th, given the fact that the Congress is tied up with the impeachment right now?

MR. HOLDER: Well, I hope there will be. I mean this is an important piece of legislation that, as I said, will have a very negative impact on our ability to do the job that the American people want us to do. I think it's the hope of everybody that the impeachment process will be over relatively quickly and we will be able to get back to business.

QUESTION: Is there any room for compromise in terms of perhaps giving up some tactics to Congressman McDade, Congressman Murtha, and people like that?

MR. HOLDER: I tell you, I have met with Congressman McDade, Congressman Murtha, when the bill was being considered in the last session. And the concerns that they have quite frankly do not seem to me to be legitimate. We have a very robust internal enforcement program in our Office of Professional Responsibility. The Hatch bill talks about making it even more robust. And I think that's the way to go.

The proposal that has been put forth -- actually, that is law now -- it seems to me is a cure in search of a disease.

QUESTION: If you look at public opinion polls Independent Counsel Kenneth Starr has become a bad poster child for prosecutors. Do you think that's kind of going to hurt you on the Hill, because public sentiment might be that prosecutors should be reigned in?

MR. HOLDER: Well, the Pittsburgh Post Gazette -- I think that's the name of the paper -- ran a series of articles about negative things that prosecutors have done. And there are a lot of misperceptions -- there were a lot of inaccuracies in that article, a lot of misperceptions, I think, that the American people have about the way in which prosecutors generally conduct themselves.

I think if people look at the facts, they will see that the vast majority of prosecutors conduct themselves in an appropriate way. And in those instances where they do not, they are now adequately punished.

QUESTION: But do you think that's going to hurt you on the Hill when you lobby for this?

MR. HOLDER: What will?

QUESTION: What people think of prosecutors in general, and of course Starr's investigation that are showing some of the more controversial tools that prosecutors can use.

MR. HOLDER: Well, I think yes, for the misperceptions that people have about prosecutors will hurt. And that's why we are up on the Hill, trying to make sure that people understand what's real and what is a misperception.

QUESTION: But have the aggressive tactics that have been so highly publicized that Starr has wielded added to the misperceptions about prosecutors?

MR. HOLDER: Well, I do not know. You would probably have to do some polling, I guess, to get a sense of that. The concern that I have is that this law is based on a foundation that is not an accurate one.

QUESTION: Mr. Holder, if you were a betting man, would you bet that the Independent Counsel statute would be reenacted this summer? 

MR. HOLDER: Now, the Attorney General says "I do not know do what ifs," right.


QUESTION: You have admitted that there is work in progress for some changes some recommendations for changes have almost guaranteed that they would not respond very favorably to reenacting this law. Do you really have a chance to save it? And even if you do have a chance, how do you get to that point?

MR. HOLDER: Well, our group has been meeting. And we have really looked at all the possibilities, everything from reenacting the law in its present form to changing it a little bit, to changing it substantially, to simply doing away with it. And we are still in the process of going through the law, considering what the consequences would be if we took one of those four steps before we make a recommendation to the Attorney General.

She has not been a part of the process, and we have not made any kind of formal recommendation to her. This is really something that's been handled by me in a relatively low-key manner.

QUESTION: But you will definitely be making a recommendation about what this Department's position should be on the law?

MR. HOLDER: I'll certainly be sharing our -- the committee's views with the Attorney General. I do not know what position the Department would take come June, when the bill expires. I do not know at that point.

QUESTION: Is it possible that you would not -- the Department would not take a position?

MR. HOLDER: I do not know. Again, it would depend -- it's hard to see where we will be in June. There could be a consensus that the bill should not be re-upped. There could be a consensus that it ought to just be reenacted. I do not know. And we will have to kind of gauge where Congress is at that time before we decide what we will do.

QUESTION: When will you make your recommendations to the Attorney General?

MR. HOLDER: I would hope in the next few weeks or so. We are still in the process, as I said, of considering a number of things. There is a lot of research that we have done. I also think that one of the things we are going to do is reach out to key members of Congress, and talk to them, to kind of get their sense of what they think ought to happen with the I.C. law, and make that a part of the conversation that we have with the Attorney General.

QUESTION: When you say research, Mr. Holder, is part of the research to determine whether or not a form of special counsel could be brought back into the House, as it were, and still have some sort of division.

MR. HOLDER: Part of it is historical. Because see, what happened before 1978, when the Ethics in Government Act was initially passed. You know, how were things done then I guess with what are called regulatory independent counsels, or special counsels, special prosecutors? So there has been that.

We also tried to research proposals that have been made by a variety of people -- you know, commentators, law professors, Congressmen, Senators.

QUESTION: If the law lapses, will you have to go back to the procedures for special prosecutors that the Attorney General had to do when she named Fiske and started that whole ball rolling? Will you have to go back to that procedure?

MR. HOLDER: Yes, if the law were not reenacted, we would be in pretty much the same position we were when the Attorney General appointed Mr. Fiske.

QUESTION: Mr. Holder, speaking of what's going on, on the Hill, there is some talk up there about a possible divided vote on saying a findings of fact. Has the Department looked at all at whether that would be constitutional?

MR. HOLDER: I do not think anybody has done any research in the Department on that -- not that I'm aware of.

QUESTION: So you don't see any role for the Department?

MR. HOLDER: Well, I mean if we were asked our opinion, I suppose we would consider whether that was appropriate. But no one has asked us anything.

QUESTION: Do you think it's constitutionally valid?

MR. HOLDER: I have not looked into it. I just don't know.

QUESTION: Today the Attorney General and Director Freeh and Madeline Albright are on the Hill talking about terrorism.

MR. HOLDER: And I'd much rather be here with you guys.


QUESTION: Why is that?

QUESTION: Why is that?

MR. HOLDER: It's always a lot more fun to be with m