September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29577 H.R.- is amended by inserting "(under the condi­ PERSONAL EXPLANATION A blll to amend title XVIII of the Social tions described in subsection (b) (7))" after Security Act with respect to reimburse­ "such school provides services". ment of physicians' services in teaching (c) Section 1832(8.) (2) (B) (i) (II) so such hospitals Act is amended by striking out ", unless HON. JOHN BRADEMAS Be it enacted by the Senate and House either clause (A) or (B) of paragraph (7) of OF INDIANA of Representatives of the United States of such section is met" and inserting in lieu IN THE HOUSE OF REPRESENTATIVES America in Congress assembled, thereof "and which meets the conditions Thursday, September 14, 1978 That (a) paragraph (7) of section 186l(b) specified in clauses (A) and (B) of para­ of the Social Security Act is amended to graph (7) of such section". e Mr. BRADEMAS. Mr. Speaker, I in­ read as follows: SEc. 2. The amendments made by this Act sert at this point a statement regarding "(7) a physician where the hospital has a shall apply with respect to cost accounting a recorded vote I missed on Friday, Sep­ teaching program approved as specified in periods beginning on or after October 1, 1978. tember 8, 1978, and an indication of how paragraph (6), if (A) the hospital elects to A hospital's election, under section 1861 (b) I would have voted had I been present. (7) (A) of the Social Security Act (as ad­ receive any payment due under this title for The vote was on Rollcall No. 743, on reasonable costs of such services, and (B) ministered in accordance with section 15 of all physicians in such hospital agree not to Publlc Law 93-233), as of September 30, 1978, final passage of H.R. 11711, the Trade bill charges for professional services rendered shall constitute such hospital's election Adjustment Assistance Program Amend­ in such hospital to individuals covered under under section 186l(b) (7) (A) of such Act ments. The bill passed by a vote of 261 the insurance program established by this (as amended by this Act) on and after to 24. I was paired for this bill and had title." October 1, 1978, and until otherwise provided I been present, would have voted in favor (b) Section 1861(v) (1) (C) of such Act by the hospitaI.e of it.•

HOUSE OF REPRESENTATIVES-Friday, September 15, 1978 The House met at 10 a.m. answered "present" 3, not voting 126, as Mollohan Roe Taylor Montgomery Rogers Thompson Rev. James J. O'Sullivan, St. Peter's follows: Moore Roncalio Thornton Church, Marshall, Mo., offered the fol­ [Roll No. 782) Moorhead, Rose Traxler lowing prayer: YEAS-293 Calif. Rosenthal Treen Mottl Roybal Trible Father Almighty, You are the source Abdnor de la Garza Hawkins Murphy, N.Y. Rudd Tucker of all power. The providence that guides Akaka Delaney Hefner Murphy, Pa. Ruppe Udall to Alexander Derrick Hightower Murtha Russo Ullman all things that last and ultimate Anderson, Derwinski Hillis Myers, Michael Ryan Van Deerlin frontier: Yourself. Calif. Devine Hollenbeck Natcher Satterfield Vander Jagt Guide our Representatives to legislate, Andrews, N.C. Dickinson Holt Nedzi Sawyer Vanlk not just for the good, but for the best Andrews, Dicks Holtzman Nichols Scheuer Vento N. Dalt. Dodd Horton Nowak Schro-eder Volkmer interests of this Nation. Annunzio Dornan Howard Oberstar Schulze Waggonner Let this House deliberate. Let all voices Applegate Downey Hubbard Obey Sharp Walgren be heard; but God grant you the courage Archer Drinan Hughes Ottinger Shuster Wampler to conclude, and act, when timely action Ashley Duncan, Oreg. Hyde Panetta Sikes Watkins Aspin Duncan, Tenn. Jenkins Patt;~n Simon Weaver Is imperative. Aucoin Early Johnson, Calif. Pattison Skelton Weiss May God grant you the prudence not Ba!alis Eckhardt Johnson, Colo. Pease Slack Whalen to act, until your best solution is found; Baldus Edgar Jones, Okla. Perkins Smith, Nebr. Whitehurst Barnard Edwards, Calif. Jones, Tenn. Pettis Solarz Whitley or, when indeed inaction is the best Baucus Ell berg Jordan Price Spence Whitten solution. Bauman Emery Ka.stenmeier P11rsell St Germain Wilson, C.H. Let us be mindful Lord, that Your Beard, R.I. English Kazen Quillen Staggers Winn Bedell Er;enborn Kelly Rahall Stangel and Wirth universe is unfolding according to Your Beilenson Ertel Keys Railsback Steed Wol1f schedule. We are, at best, supporting Benjamin Evans, Colo. Kildee Regula Steers Wylie cast. Bennett Evans, Ind. Kindness Reuss Stockman Yates "Yet Your work in this world must Bevill Fary Kostmayer Rhodes Stokes Yatron Biaggi Fenwick Krebs Richmond Stratton Young, Fla. truly be ours." Bingham Findley LaFalce Rinaldo Studds Young, Mo. Let us do Your work. Amen. Blancha.rd Fish Lagomarsino Roberts Stump Zablocki Blouin Fisher Latta Robinson Symms Ze!eretti Boland Fithian Le Fante Bolllng Flippo Leach NAYS-10 THE JOURNAL Bonior Flood Lederer Brown, Mich. I chord Walker Bonker Florio Leggett Collins, Tex. Jacobs Wilson, Bob The SPEAKER. The Chair has Bowen Flynt Lehman Coughlin Lloyd, Calif. examined the Journal of the last day's Brademas Foley Lent Forsythe Quayle Breckinridge Ford, Mich. Levitas proceedings and announces to the House Brinkley Ford, Tenn. Livingston ANSWERED "PRESENT"-3 his approval thereof. Brodhead Fountain Lloyd, Tenn. Without objection, the Journal stands Brooks Fowler Long, La. McEwen Moss Stanton Brown, Calif. Frenzel Long, Md. NOT VOTING-126 approved. Broyhill Fuqua Lundine Mr. MOTI'L. Mr. Speaker, I object. Burke, Mass. Gamma~e McClory Addabbo Clausen, Garcia The SPEAKER. Objection is heard. Burleson, Tex. Gephardt McDade Ambro DonH. Gaydos Burlison, Mo. Giaimo McFall Ammerman Clay Gibbons The question is on the approval of the Burton, Phillip Gilman McHugh Anderson, Ill. Cleveland Goldwater Journal. Butler Ginn Madigan Armstrong Cochran Hannaford The question was taken; and the Carr Glickman Maguire Ashbrook Cohen Harrington carter Gonzalez Mahon Badham Conyers Harsha Speaker announced that the ayes Cederberg Goodling Markey Beard, Tenn. Corman Heckler appeared to have it. Chappell Gore Marks Boggs Cotter Heft.el Clawson, Del Gradison Martin Breaux Crane Holland Mr. DAVIS. Mr. Speaker, I object to COleman Grassley Mattox Broomfield Dellums Huckaby the vote on the ground that a quorum Collins, Ill. Green Mazzoli Brown, Ohio Dent Ireland is not present and make the point of Conable Gudger Meeds Buchanan Diggs Jeffords order that a quorum is not present. Conte Guyer Meyn er Burgener Dingell Jenrette corcoran Hagedorn Michel Burke, Callf. Edwards, Ala. Jones, N.C. The SPEAKER. Evidently a quorum Cornell Hall Mikulski Burke, Fia. Edwards, Okla. Kasten is not present. corn well Hamilton Mlkva Cunningham Hammer- Miller, Ohio Burton, John Evans, Del. Kemp The Sergeant at Arms will notify ab­ D'Amours schmidt Mineta Byron Evans, Ga. Krueger sent Members. Daniel, Dan Hanley Minish Caputo Fascell Lott Daniel, R. W. Hansen Mitchell, N.Y. Carney Flowers Lujan The vote was taken by electronic de­ Danielson Harkin Moakley Cavanaugh Fraser Luken vice, and there were-yeas 293, nays 10, Davis Harris Moffett Chisholm Frey McClostey

Statements or insertions which are not spoken by the Member on the floor will be identified by the use of a "bullet" symbol, i.e., • 29578 CONGRESSIONAL RECORD- HOUSE September 15, 1978 McCormack Patterson Sisk minute and to revise and extend his re­ McDonald Pepper Skubitz CONFERENCE REPORT ON S. 2701, McKay Pickle Smith, Iowa marks.) AMENDING THE WATER RE­ McKinney Pike Snyder Mr. SKELTON. Mr ~ Speaker, today I SOURCES PLANNING ACT Mann Poage Spellman have the distinct privilege of welcoming Marlenee Pressler Stark to the U.S. House of Representatives Mr. MEEDS. Mr. Speaker, I call up Marriott Preyer Steiger the conference report on the Senate bill Mathis Pritchard Teague Father James O'Sullivan, pastor of St. Metcalfe Quie Thone Peter's Catholic Church in Marshall, Mo. and ask for Hyde . Moore Spence Mr. Rostenkowski with Mr. Pressler. its immediate consideration. Jacobs Moorhead, St Germain Mr. Teague with Mr. Anderson of Illinois. The SPEAKER. The Clerk will read Jenkins Calif. Staggers Mr. Wright with Mr. Kasten. Johnson, Calif. Moss Stangel and the report. Johnson, Colo. Mottl Stanton Mr. Pepper with Mr. Lujan. The Clerk read as follows: Jones.,Okla. Murphy, N.Y. Steed Mr. Cotter with Mr. Brown of Ohio. Jones. Tenn. Murphy, Pa. Steers Mr. Carney with Mrs. Heckler. PROCEEDINGS AGAINST HANCHO C. KIM Jordan Murtha Stockman Mr. John L. Burton with Mr. Quie. (May 24, 1978.-Referred to the House Cal­ Ka.stenmeier Myers, Michael Stokes Mr. Mathis with Mr. Sara.sin. endar and ordered to be printed) Kazen Natcher Stratton Mr. Breaux with Mr. Steiger. Kemp Neal Studds (Mr. FLYNT, from the Committee on Stand­ Keys Nedzi Symms Mr. Hannaford with Mr. Walsh. ards of Official Conduct, submitted the fol­ Klldee Nichols Thompson Mr. Rodino with Mr. Marriott. lowing report: ) Kindness Nowak Thornton Mr. Rooney with Mr. Badham. Kostmayer O'Brien Traxler Mr. McCormack with Mr. Broomfield. INTRODUCTION Krebs Oberstar Treen Mr. Moorhead of Pennsylvania with Mr. On May 15, 1978, Hancho c. Kim ("Kim"), LaFa.lce Obey Trible Kelly. having been summoned as a witness by the Lagomarsino Ottinger Tucker Mr. Murphy of Illinois with Mr. Lott. authority of the Committee on Standards of Latta Panetta Udall Official Conduct (the "Committee") pursu­ Le Fa.nte Patten Ullman Mr. Nix with Mr. Quayle. Lea.ch Pattison VanDeerlln Mr. Dellums with Mr. Burgener. ant to a subpena 1 of the said committee, Lederer Pease Va.nik Mr. Dent with Mr. Cleveland. appeared before Hon. Richardson Preyer, a Leggett Perkins Vento Mr. Gaydos with Mr. Crane. member of the committee, in executive ses­ Lehman Pettis Volkmer Mr. Krueger with Mr. Frey. sion for a deposition to be conducted pursu­ Lent Preyer Waggonner Mr. Mann with Mr. Goldwater. ant to the authority of House Resolution Levitas Price Walgren 252, 95th Congres, first session.2 At the depo­ Livingston Pursell Walker Mrs. Burke of California with Mr. Marlenee. Lloyd, Calif. Qulllen Wampler Mr. Miller of California with Mr. McClos- sition Kim refused to answer the followtng Lloyd, Tenn. Railsback Watkins key. question: Long, La. Rangel Weaver Mr. Stark with Mr. Skubitz. Did there come a time when you received Long, Md. Regula Weiss Mrs. Spellman with Mr. Rousselot. some money from Kim Sang Keun? Lundine Reuss Whalen Mr. Santini with Mr. Sebelius. Mr. Preyer found Kim's refusal to answer McClory Rhodes Whitehurst Mr. Shipley with Mr. Taylor. McDade Richmond Whitley contemptuous, and, thereafter, the commit­ McEwen Rinaldo Whitten Mr. Jenrette with Mr. Gary A. Myers. tee, a quorum being present, authorized its McFall Robinson Wiggins Mr. Risenhoover with Mr. Edwards of Ala- chairman, Hon. John J. Flynt, Jr., ayes, nine, McHugh Roe Wilson, Bob bama. nays, zero, to file this report and to offer a McKay Rogers Wilson, C. H. Mr. Sisk with Mr. Cohen. resolution directing the Speaker of the House Madigan Roncalio Winn Mr. Waxman with Mr. Caputo. to certify this report to the U.S. attorney for Maguire Rose Wirth Mr. Ireland with Mr. Thone. Mahon"" Rosenthal Wolff the District of Columbia to the end that Kim Markey Roybal Wylie Mr. Metcalfe with Mr. Wydler. be prosecuted for criminal contempt of Con­ Marks Rudd Yates Ms. Oakar with Mr. John T. Myers. gress, pursuant to the provisions of title 2, Martin Russo Yatron Mr. Pickle with Mr. Evans of Delaware. U.S. Code, sections 192 and 194. Mattox Satterfield Young, Fla. Mr. Ammerman with Mr. Cochran of MazzoU Sawyer Young, Mo. Mississippi. This report sets forth more fully the facts Meeds Scheuer Young, Tex. Mr. Clay with Mr. Ashbrook. constituting Kim's contempt. Meyn er Schroeder Zablocki Mr. Nolan with Mr. Jeffords. THE FACTS Michel Schulze Zeferetti Mikulski Seiberling Mr. Charles Wilson of Texas with Mr. House Resolution 252, unanimously Beard of Tennessee. adopted by the House on February 9, 1977, NAYS-22 Mr. Runnels with Mr. Burke of Florida. provid~s in part that "information has come Archer Daniel, Dan Montgomery Mr. Pike with Mr. Don H. Clausen. to the attention of the House of Representa­ Bauman Devine Rahall Mr. Harrington with Mr. Milford. tives alleging that Members of the House of Brodhead Dicks Roberts Mr. Corman with Mr. McKinney. Representatives have been the object of ef­ Brown, Mich. Flippo Ruppe Burleson, Tex. Fountain Stump Mr. Diggs with Mr. Young of Alaska. forts by certain foreign governments or per­ Chappell Grassley vanderJagt Mr. Conyers with Mr. Pritchard. sons and organizations acting on behalf of Clawson. Del Holt Mr. Flowers with Mr. Luken. foreign governments (including the Govern­ Collins, Tex. I chord ment of the Republic of Korea) to influence Mr. Jones of North Carolina with Mr. Gib­ NOT VOTING-106 the Member's official conduct by conferring bons. things of value on them or on members of Ambro Goldwater Pickle Mr. Huckaby with Mr. Tsongas. Ammerman Hannaford Pike their immediate fammes or their business or Anderson, DI. Harrington Poage Mr. Patterson of Callfornia with Mr. Smith political associates" and directs the commit­ Armstrong Harsha Pressler of Iowa. tee to conduct a "full and complete inquiry Ashbrook Heckler Pritchard Mr. White with Mr. Ryan. and investigation to determine whether Badham Huckaby Quayle Members of the House of Representatives, Beard, Tenn. Ireland Quie Messrs. ARCHER, RUPPE, and Boggs Jeffords Risenhoover their immediate fammes, or their associates Breaux Jenrette Rodino GRASSLEY changed their vote from accepted anything of value, directly or in­ Broomfield Jones, N.C. Rooney "yea" to "nay." directly, from the Government of the Repub­ Brown, Ohio Kasten Rostenkowski lic of Korea or representatives thereof." Burgener Kelly Rousselot So the conference report was agreed Burke, Calif. to. Pursuant to that resolution, on October 19 Krueger Runnels and 20, 1977, the Committee heard testimony Burke, Fla. Lott Ryan The result of the vote was announced Burton, John Lujan Santini in public session from Kim Sang Keun.• Caputo Luken Sarasin as above recorded. From October 1970 until November 1976 Kim Carney Mccloskey Sebelius A motion to reconsider was laid on Sang Keu·n was a Korean diplomat stationed Clausen, Mccormack Shipley at the Korean Embassy in Washington, D.C., DonH. McDonald Sisk the table. Clay McKinney Skubitz and an agent of the Korean Central Intell1- Cleveland Mann Smith, Iowa gence Agency. In 1974 and 1975 he dellvered a Cochran Marlenee Spellman Cohen Marriott Stark GENERAL LEAVE Conyers Mathis Steiger 1 The subpena is set forth in app. I. It waa Corman Metcalfe Taylor Mr. MEEDS. Mr. Speaker, I ask unan­ authorized on July 14, 1977, and serv.ed on Cotter Milford Teague KimonNov.17, 1977. Crane Mlller, Calif. Thone imous consent that all Members may Dellums Moorhead. Pa. Tsongas have 5 legislative days in which to re­ 2 H. Res. 252 ls set forth in a.pp. II. Sec­ Dent Murphy, Ill, Walsh vise and extend their remarks on the tion 4(a) (1) (A) authorizes "the taking of a Diggs Myers, Gary Waxman conference report just agreed to. deposition by any member of the committee." Edwards, Ala. Myers, John White a That testimony is set forth in the hear­ Evans, Del. Nix Wilson, Tex. The SPEAKER. Is there objection to Flowers Nolan Wright the request of the gentleman from Wash­ ings before the Committee on Standards of Frey Oaka.r Wydler Official Conduct Pursuant to H.R. 252, Korean Gaydos Patterson Young, Alaska ington? Infiuence Investigation (pt. I), 95th Cong., Gibbons Pepper There was no objection. 1st sess., pp. 32-75 (1977). September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29581 J total of $600,000 in cash to Rancho K. Kim. the HCSOC) on the 13th day of July 1977 and memoranda submitted by counsel for Kim told him that this money was to be used authorized the issuance and service of a witness and Special Counsel to the Commit­ to influence Members of the House of Rep­ subpoena on one Hancho C. Kim. tee and have applied all citations to the fa~ts resentatives in the performance of their of­ Thereafter, Hancho Kim's attorney advised in this case. Having done so, the under­ ficial duties. Indeed, Kim reported to Kim committee counsel that, if called as a wit­ signed are of the individual and joint Sang Keun the identity of five Congressmen, ness, Mr. Kim would decline to testify, giv­ opinion that the witness, Hancho C. Kim, referred to by the code name "Advance ing as his reason therefore his constitutional be directed to appear before a. designated Guard,'' whom he said he had paid off in right against self-incrimination. member of the Committee on Thursday, furtherance of this venture. Hancho Kim Thereafter, by a vote of not less than eight November 17, 1977, then and there to an­ boasted that in carrying out the plan to pay affirmative votes, the HCSOC authorized swer such questions as shall be propounded off Members of Congress and to influence the Special Counsel to seek an order granting to said witness by the Committee member executive branch of the U.S. Government, the immunity to said witness, which application and/ or Special Counsel to the Committee. American media and the American academic was duly filed and such immunity order The undersigned are of the opinion that community, he had spent over $700,000. granted on the 13th day of October 1977 by the prompt testimony of Hancho c. Kim 1s In view of this evidence, the committee William B. Bryant, Chief Judge, U.S. Dis­ absolutely n_ecessary to enable the Commit­ served Hancho C. Kim with a subpoena com­ trict Court of the District of Columbia. tee to carry out the inquiry mandated by manding his appearance before the Commit­ Thereafter, the witness, through his coun­ House Resolution 252 and that to rule other­ tee at a deposition. sel, requested a hearing before the Chair­ wise would be to question the a.b111ty of the In the meantime, on September 27, 1977, a man and the Ranking Minority Member of U.S. District Court to properly safe-guard Federal grand jury sitting in the District of the HCSOC, asking for a specific ruling on the rights accorded the witness under the Columbia indicated Kim and charged him whether, notwithstanding the order grant­ order granting immunity to such witness. with conspiring: ing immunity to such witness, said witness We must assume that the Court ls com­ "To defraud the United States and the should be required to testify during the petent to protect such rights and that it Congress of the United States in connection pendency of indictments against him in two wm, in fact, protect such rights. with the performance of their lawful gov~rn­ U.S. District Courts involving facts upon The undersigned hereby direct that the mental functions: (a) of and concerning the which he reasonably apprehends that he testimony of the witness, Hancho c. Kim, right of the Congress and the Executive wlll be asked to give answers before the be taken as if in executive session and that Branch of the United States, to have their HCSOC. the transcript of such testimony be re­ deliberations and official actions condµcted, The Chairman and the Ranking Minority stricted to an original copy only and that free from corruption, fraud, improper and Member of the HCSOC, in response to such every precaution be taken to safe-guard the undue influence, dishonesty, malfeasance, application, set the date of November. 8, 1977, confidentiality and secrecy of such testimony unlawful impairment and obstruction; and as the date for filing any written request until such time as a. majority of the Com­ (b) of and concerning the right of the United with supporting briefs and other documents, mittee may vote to release such testimony. States to have U.S. Congressmen and othe:­ and set the hearing on such application for This 16th day of November 1977 in the Government officials transact the business Monday, November 14, 1977 at 2 p.m. in the City of Washington, District of Columbia. of the Congress of the United States and U.S. Capitol. JOHN J. FLYNT, JR., other deuartments and agencies of the United The application, with supporting brief con­ Chairman. States free from corruption, fraud, improper sisting of 15 pages and two exhibits, was filed F'LoYD SPENCE, and undue contacts and influence, dishon­ by counsel for witness, and a brief (memo­ Ranking Miniority Member. esty, malfeasance, unlawful impairment and randum) was also filed by Special counsel Thereafter, Kim testified before the com­ obstruction." of the HCSOC. Counsel for witness and Spe­ mittee at depositions on November 17, 1977; The grand jury also charged Kim with cial Counsel for the committee appeared and November 23, 1977; December 9, 1977; and committing perjury on September 22, 1976, ma.de oral arguments in support of their re­ January 12, 1978. At these depositions, how­ when he appeared before the grand jury and spective positions. Counsel for witness re­ ever, Kim was not asked about his dealings denied under oath receiving any money from quested time to file a reply brief to the brief with Kim Sang Keun or his relationship to Kim Sang Keun. On the same day, a Federal (memorandum) of committee counsel, and the Korean government. At Kim's appearance grand jury sitting in Baltimore charged Kim counsel for witness was given until 1 p.m., on January 12, 1978, the subpoena directed and his wife with two counts of income tax Wednesday, November 16, 1977 within which to Kim was adjourned sine die. By letter evasion. time to prepare a reply brief and serve it upon dated May 9, 1978, Chairman Flynt informed Prior to Kim's deposition, his atturneys committee counsel and with the committee. Hancho C. Kim's attorneys that the subpoena raised various objections to his testifying The hearing at 2 p .m ., November 14, 1977 was returnable on May 15, 1978.5 and requested the opportunity to argue these in room H-140 of the U.S. Capitol, with con­ In the meantime, on April 8, 1978, a jury objections to the Chairman and Ranking sent of counsel for witness, was not reported sitting in the United States District Court for Minority Member of the Committee. Their but the undersigned are not aware of any the District of Columbia. found Hancho Kim request was granted. disagreement with the facts a.s related above. guilty of the charges of conspiracy and per­ On November 16, 1977, Chairman John J. Counsel for witness stated that he is not jury. A judgment of conviction was entered Flynt, Jr., and the Honorable Floyd Spence, seeking to permanently withhold the testi­ against Kim on May 19, 1978. the Ranking Minority Member of the Com­ mony of such witness from this Committee At the deposition on May 15, 1978, Rancho mittee, overruled these objections ln a four­ but is asking that such compulsory testimony Kim was first sworn. He had previously been page order. Chairman Flynt and Ranking be delayed until after the trial in U.S. District granted immunity from any prosecution Minority Member Spence issued this order Court for the District of Columbia on the based upon any testimony he gives.s There­ only after having received a fifteen-page indictment naming Rancho C. Kim and filed upon, Kim willfully refused to answer the memorandum from the attorneys for Kim, in said court on the 27th day of September following question: an answering memorandum from Special 1977. Did they come a. time when you received Counsel to the Committee conducting the Counsel for witness contends that com­ money from Kim Sang Keun? 1 Korean Influence Inquiry and a reply mem­ pelling the testimony of said witness a.t this In response to this question, Kim, through orandum from Kim's attorneys' and only time violates his rights in that it would his attorneys, interposed the same objections after having heard extensive oral arguments constitu~: which had been previously extensively ar­ by Kim's attorneys and by Counsel to the I gued to Chairman Flynt and Ranking Mi­ Special Staff to the committee conducting (A) A. violation of the privilege against self­ nority Member Spence and which had been the Korean Influence Inquiry. The facts and incrimination. overruled. These objections were again over­ Kim's arguments are concisely set forth in (B) A violation of his VI Amendment ruled by the Honorable Richardson Preyer, Chairman Flynt's and Ranking Minority rights. who was presiding over the deposition. Member Spence's Order of November 16, (C) A violation of due process. Notwithstanding the fact that Chairman 1977, which provides as follows: n Flynt, Mr. Preyer and Mr. Spence had over­ BEFORE THE COMMrITEE ON STANDARDS OF (A) A violation of marital privilege. ruled their objections, Kim's attorneys per­ OFFICIAL CONDUCT U.S. HOUSE OF REPRESENT­ (B) A violation of witness' rights under sisted in their objections and directed their ATIVES client not to answer the question posed to 18 U.S.C. 2510 et seq. (1llegal electronic In re Hancho C Kim, a witness before the surveillance) . him. Thereupon, Representative Preyer found that Kim had refused to answer the question, committee, and request of witness to be Special Council for the HDCOC responds excused from testifying. to each of the foregoing claims of witness 5 The Chairman's letter ls set forth in Ap­ ORDER and in response to II(B) denies that any pendix VI. Statement of facts evidence heretofore obtained by the Com­ 8 The Order Conferring Immunity Upon The lf:ouse Committee on Standards of mittee was obtained by any illegal electronic and Compelling Testimony and Production Official Conduct (hereinafter referred to as surveillance. Counsel for witness and Special of Information from Hancho C. Kim, pursu­ Counsel for Committee have cited numerous ant to title 18, United States Code, Section cases purporting to sustain their respective positions. 6005, was communicated to Hancho c. Kim 'Kim's memorandum, the answering mem­ on November 17, 1977, and is set forth 1n Ap­ orandum from Special Counsel and Kim's CONCLUSION pendix VII. reply memorandum are set forth in appen­ The Chairman and the Ranking Minority 7 The official transcript of the deposition of dices III to V, respectively. Member of the HCSOC have read all briefs May 15, 1978, is set forth in Appendix VIII. 29582. CONGRESSIONAL RECORD- HOUSE September 1.5, 1978 and found his refusal to be contemptuous. APPENDICES: APPENDIX I (B) to investigate any alleged violation, by Kim's attorneys asked for an opportunity to [Subpena (Deposition)] a Member, officer, or employee of the House appear to argue their case before the full of Representatives, of the Code of Official committee, and Mr. Preyer granted their re­ (By authority of the House of Representa­ Conduct or of any law, rule, regulation, or quest. tives of the Congress of the United States of other standard of conduct applicable to the On May 17, 1978, the Committee met in America). conduct of such Member, officer, or employee executive session. It heard extensive argu­ To Rancho Kim: in the performance of his duties or the dis­ ments from Kim's attorneys and from Coun­ You are hereby commanded to be and ap­ charge of his responsibilities, and after notice sel to the Special Staff Conducting the Ko­ pear before the Standing Committee en and hearing, to recommend to the House of rean Influence Inquiry.8 All counsel were Standards of Official Conduct of the House of Representatives, by resolution or otherwise, then excused from the meeting and the com­ Representatives of the United States, of which such action as the committee may deem ap­ mittee voted, ayes nine, nays zero, to adopt the Hon. John J. Flynt, Jr. is chairman, in propriate in the circumstances; and the following resolution. Room H140 of the Capitol Building, in the (C) to report to the appropriate Federal RESOLUTION WITH RESPECT TO THE CONTEMPT city of Washington, on November 17, 1977, or State authorities, with the approval of the OF HANCHO C. KIM at the hour of 2:00 p.m., then and there to House of Representatives, any substantial produce the things identified on the attached evidence of a violation, by a Member, officer, Resolved, That the Chairman of the Com­ schedule and to testify on deposition touch­ or employee of the House of Representatives, mittee on Standards of Official Conduct shall ing matters of inquiry committed to said of any law applicable"to the performance of submit to the House of Representatives the Committee; and you are not to depart with­ his duties or the discharge of his responsi­ Report of the Committee on Standards of out leave of said Committee. b111ties, which may have been disclosed in a Official Conduct In Proceedings Citing committee investigation: Now, therefore be Rancho c. Kim for Contempt of Congress To any employee of the Committee on Stand­ ards of Official Conduct or any U.S. Marshal it and the said Chairman shall offer a resolu­ Resolved, That the Committee on Stand­ tion directing that the Speaker of the House to serve and make return. WITNESS my hand and the seal of the House ards of Official Conduct be and it is hereby of Representatives certify the said Report authorized and directed to conduct a full and with respect to the refusal of the said Rancho of Representatives of the United States, at the city of Washington, this 14th day of July, complete inquiry and investigation to deter­ C. Kim to answer a question at a deposition mine whether Members of the House of Rep­ being conducted by the committee pursu­ 1977 FLOYD SPENCE. resentatives, their immediate fa.mil1es, or ant to the authority of H. Res. 252, 95th Con­ their associates accepted anything of value, gress, First Session, to the United States At­ Attest: EDMUND L. HENSHAW, Jr., directly or indirectly, from the Government torney for the District of Columbia, pursuant of the Republic of Korea or representatives to Title 2, United States Code, Sections 192 Clerk. Any questions as to compliance should be thereof. The scope of the inquiry and inves­ and 194, to the end that the said Rancho C. tigation shall be determined by the commit­ Kim may be proceeded against in the man­ referred to David H. Belkin, Deputy Chief Counsel, (202) 225-7984. tee in its discretion and may extend to any ner and form provided by law. matters relevant to discharging its responsi­ Such disclosures of any proceedings in ex­ APPENDIX II b111ties pursuant to this resolution. ecutive session with respect to the witness SEc. 2. The committee shall report to the Rancho C. Kim as may be necessary to effec­ [H. Res. 252, 95th Cong., 1st sess.] House of Representatives any findings, con­ ~uate this resolution are hereby authorized. RESOLUTION clusions, and recommendations it deems P.rovided, however, That this resolution Whereas article I, section 9, clause 8 of proper with respect to the adequacy of the shall be of no force or effect if the Special the United States Constitution prohibits any present Code of Official Conduct or the Fed­ Counsel determines that the said Rancho c. person holding Federal office, including eral laws, rules, regulations, and other stand­ Kim has submitted to a full and complete Members of Congress, from accepting any ards of conduct applicable to the conduct deposition prior to Friday, May 19, 1978. present, emolument, office, or title from any of Members of the House of Representatives Provtded further, That if the Special Coun­ foreign government without the consent of in the performance of their duties and the sel determines that the said Rancho c. Kim Congress; and discharge of their responsib111ties ( 1) to pro­ ls persisting in his contemptous conduct after Whereas Congress has forbidden the receipt tect the House of Representatives against the Friday, May 19, 1978, the Committee at a of political contributions from a foreign na­ exertion of improper influence by or on be­ subsequent meeting thereof wm consider tional, including a foretgn government (2 half of foreign governments and (2) to pro­ whether to initiate civil contempt proceed­ U.S.C. 441e); and hibit Members of the House of Representa­ ings against the said Rancho C. Kim. Whereas the Federal Criminal Code pro­ tives from receiving things of value under circumstances that conflict, or appear to con­ Although the committee's resolution gave hibits the receipt of anything of value by any Kini the opportunity to avoid a contempt Member of Congress to influence his per­ flict, with their obligations to perform their proceec;ting by answering the Committee's formance of his official duties or to reward or constitutional duties without regard to pri­ question, Kim appeared on May 18, 1978, compensate him, other than as provided for vate gain or benefit. with his attorneys, at a deposition before the by law, for the performance of those duties SEC. 3. The committee, after appropriate Honorable M1llicent Fenwick a Member of (18 U.S.C. 201, 203); and notice and hearing, shall report to the House the Committee, and persisted in his refusal Whereas rule XLTII of the Rules of the of Representatives its recommendations as to to answer the question. Mr. Kim also refused House of Representatives sets forth the Code such action, if any, that the committee to answer related questions.11 of Official Conduct for Members, officers and deems appropriate by the House of Repre­ sentatives as a result of any alleged viola­ RECOMMENDATION OF THE COMMITTEE employees of the House of Representatives and, among other things, prohibits the ac­ tion of the Code of Official Conduct or of any Pursuant to the resolution set forth above, ceptance of any gift of substantial value, di­ law, rule, regulation, or other standard of the Committee recommends the adoption of rectly or indirectly, from any person, organi­ conduct applicable to the conduct of such the following resolution: zation, or corporation having a direct inter­ Member, officer, or employee in the perform­ Resolved, That the Speaker of the House est in legislation before the Congress; and ance of his duties or the discharge of his re­ sponsibilities. certify the Report of the Committee on Whereas information has come to the at­ Standards of Official Conduct with respect to SEC. 4. (a) For the purpose of conducting tention of the House of Representa:tives al­ any inquiry or investigation nursuant to this the Proceedings against Hancho C. Kim leging that Members of the House of Rep­ which reJ>ort details the refusal of the said resolution the committee ls authorized to resentatives have been the object of efforts require-- Rancho C. Kim, to answer a question in a by certain foreign governments or persons proceeding being conducted by the said Com­ ( 1) by subpena. or otherwise- and organizations actin~ on behalf of foreign mittee pursuant to the authority of H. Res. governments (including the Government of {A) the attendance and testlmonv of any 252, 95th Congress, 1st Session, to the U.S. the Republic of Korea) to influence the Mem­ person at a hearing or at the taking of a. Attorney for the District of Columbia, pur­ bers' official conduct by conferring things of deposition by any member of the committee; suant to Title 2, United States Code, Sections value on them or on members of their im­ and 192 and 194, to the end that the said mediate families or their business or polit­ (B) the production of such things; and Hancho C. Kim may be proceeded against ical associates; ;:-.nd (2) by interrogatory the furnishing under in the manner and form provided by law. Whereas clause 4(e) (1) of rule X of the oath of such information as it deems neces• Rules of the House of Representatives en­ sary to such inquiry or investigation. 8 The transcript of this portion of the trusts the Committee on Standards of Offi­ (b) The authority conferred by subsection committee's meeting of May 17, 1978, is set cial Conduct with particular responsib111ty- (a) of this section may be exercised- forth in Appendix IX. (A) to recommend to the House of Repre­ ( 1) by the chairman and the ranking mi­ 9 See the letter of Leon Jaworski, special sentatives from time to time such adminis­ nority member acting jointly, or, if either counsel to the committee conducting the trative actions as it may deem appropriate declines to act, by the other acting alone, Korean Infiuence Inquiry, set forth in ap­ to establish or enforce standards of official except that in the event either so declines, pendix X. The transcript of these proceed­ conduct for Members, officers, and employees either shall have the right to refer to the ings is set forth in appendix XI. of the House of Representatives; committee for decision the question whether September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29583 such authority shall be so exercised and the "Order Conferring Immunity Upon and his opinion in Kirby v. Illinois, 406 U.S. 682, committee shall be convened promptly to Compell1ng Testimony and Production of 689 (1972): render that decision; or Information from Rancho C. Kim." Mr. Kim "The initiation of judicial criminal pro­ (2) by the committee acting as a whole. and his counsel appreciate this opportunity ceedings is far from a mere formalism. It is (c) Subpenas and interrogatories author­ to set forth the reasons why Mr. Kim should the starting point of our whole adversary ized under this section may be issued over not be compelled to testify at this time. system of criminal justice. For it is only then that the government has committed the signature of the chairman, or ranking INTRODUCTION minority member, or any member designed itself to prosecute, and only then that the On September 27, 1977, a grand jury im­ adverse positions of government and de­ by either of them. A subpena may be served paneled by the United States District Court by any person designated by the chairman, fendant have solidified. It is then that a de­ for the District of Columbia. returned a two­ fendant finds himself faced with the prose­ or ranking minority member, or any member count indictment against Rancho C. Kim. designated by either of them and may be cutorial forces of organized society, and im­ Count I alleges tha"t Mr. Kim conspired with mersed in the intricacies of substantive and served, either within or without the United confederates of the government of the Re­ States on any national or resident of the procedural criminal law." public of Korea to defraud the United States For this reason, compelling Mr. Kim to United States or any other person subject to and the Congress of the United States of the jurisdiction of the United States. testify before the Committee while he is their respective rights to function free from preparing his defense to criminal indictments (d) In connection with any injury or in­ corrupt and improper infiuence, in violation vestigation pursuant to this resolution, the arising out of events which are the very sub­ of Title 18, U.S.C. § 371. Count II charges that ject of the Committee's investigation is con­ committee may request the Secretary of State Kim violated 18 U.S.C. § 1623 by committing to transmit a letter rogatory or request to a stitutionally impermissible. To do so, vio­ perjury before a grand jury inquiring into lates Kim's Fifth Amendment privileges foreign tribunal, officer, or agency. lobbying activities of the Korean Govern­ (e) Subpenas for the taking of depositions against self-incrimination and his Sixth ment. Specifically, Kim is accused of falsely Amendment rights; it is also "fundamen­ or the production of things may be return­ testifying before the grand jury about $600,- able at specified offices of the committee or at tall; unfair" and thus violates the Due Proc­ 000 that he allegedly received from Sang ess Clause of the Fifth Amendment. a scheduled hearing, as the committee may Keun (S.K.) Kim, an agent of the Korean direct. A. Violation of the Privilege Against Central Intelligence Agency. ("K.C.I.A.") A Self-Incrimination (f) The chairman, or ranking minority copy of the indictment is attached as Exhibit member, or any member designated by either 1. Requiring Mr. Kim to appear before the of them (or, with respect to any deposition, On September 27, 1977, a grand jury im­ Committee on the eve of two trials in answer to interrogatory, or affidavit, any per­ paneled by the United States District Court which he is a criminal defendant violates his son authorized by law to administer oaths) for the District of Maryland also returned Fifth Amendment privileges against self-in­ may administer oaths to any witness. an indictment charging Mr. Kim and his wife, crimination. The Committee seeks to compel (g) For the purposes of this section, Soonduk E. Kim with two counts of Income testimony from Kim a.bout the precise mat­ "things" includes books, records, correspond­ Tax Evasion in violation of Title 26, U.S.C. ters for which he has been indicted; his testi­ ence, logs, journals, memorandums, papers, § 7201. The essence of these charges against mony will preview for the Government the documents, writings, drawings, graphs, the Kims is that they filed false returns be­ defenses he will assert at the trials. The charts, photographs, reproductions-record­ cause they failed to report income during Fifth Amendment prohibits such a. "dress­ ings, tapes, transcripts, printout, data com­ the years in question. Counsel has been ad­ rehears:i.l" for the Government. This viola­ pilations from, which information can be vised by the Government that the alleged tion is not cured by granting Kim use im­ obtained (translated, if necessary, into rea­ source of the unreported income which the munity pursuant to 18 U.S.C. § 6001 et seq. sonably usable form), tangible objects, and Government will urge was received by the As a preliminary point, we question other things of any kind. Kim's related to activities of Mr. Kim for whether Congress intended the application SEC. 5. For the purpose of conducting any and on behalf of the South Korean Govern­ of the use immunity device to compel testi­ inquiry or investigation pursuant to this ment. As the Government concedes, this tax mony from an already indicted defendant. resolution, the committee is authorized to case essentially tracks the indictment pend­ Title 18 U.S.C. § 6002, the central provision sit and act, without regard to clause 2(m) ing against Rancho Kim in the District of of the immunity statute, provides that use of the rule XI of Rules of the House of Rep­ Columbia. Indeed, the funds allegedly re­ immunity may be conferred "whenever a resentatives, during the present Congress at ceived by Rancho Kim from K.C.I.A. opera­ witness refuses, on the basis of his privilege such times and places within or without the tives. K. Kim, which are at the core of the against self-incrimination, to testify or pro­ United States, whether the House is meeting, charges made by the District of Columbia vide other information ..." (Emphasis has recessed, or has adjourned, and to hold Grand Jury, also constitute the allegedly added.) As noted above, once an individual such hearings, as it deems necessary. unreported income which is the basis of the has been indicted he can no longer be classi­ SEC. 6. The committee is authorized to seek District of Maryland indictment. A copy of fied as a witness because the commencement to participate and to participate, by special the indictment is attached as Exhibit 2. of the criminal prosecution transforms llim counsel appointed by the committee, on be­ The trial against Mr. Kim in the District of into a defendant. The traditional purpose half of the committee and the House of Rep­ Columbia is scheduled to commence on Jan­ of use immunity is to compel testimony from resentatives in any judicial proceeding con­ uary 9, 1978; the tax case against Mr. and a witness without foreclosing the possibility cerning or relating in any way to the inquiry Mrs. Kim in Maryland is presently set for of a subsequent prosecution. The application or investigations conducted pursuant to this trial on December 5, 1977. As such, Mr. Kim of the device to compel testimony from an resolution. is now engaged in preparing his defense to already indicted defendant was never con­ SEc. 7. The authority conferred by this these indictments. Clearly, the indictments contemplated by Congress and is therefore resolution is in addition to, and not in lieu allege criminal activity arising out of events unauthorized. of the authority conferred upon the commit­ which are the very subject matter of this If the immunity statute was intended to tee by the Rules of the House of Representa­ Committee's investigation. Therefore, as more apply even after an individual has been in­ tives. In conducting a.ny inquiry or investi­ fully explained below, we believe that com­ dicted, it is unconstitutional as so applied. gation pursuant to this resolution, the com­ pelling Mr. Kim to testify before the Com­ In Kastigar v. United States, 406 U.S. 441 mittee is authorized to adopt special rules of mittee under these circumstances is not only (1972) the Supreme Court held that the use procedures as may be appropriate. legally improper because it infringes upon his immunity statute did not on its face violate SEC. 8. Any funds made available to the Fifth and Sixth Amendment Rights and other the Fifth Amendment. However, Kastigar committee after the adoption of this resolu­ privileges, but also practically unwise because does not foreclose inquiry as to whether an tion may be expended for the purpose of it forces Mr. Kim to litigate issues before the immunity order issued pursuant to the stat­ carrying out the inquiry and investigation committee that should properly be addressed ute fails to provide immunity coextensive authorized and directed by this resolution. in the first instance by the trial courts. with the scope of the Fifth Amendment privilege in a particular instance. Applica­ I APPENDIX III tion of United States Senate Select Commit­ Compelling Kim to testify at this time tee on Presidential Campaign Activities, 361 (Before the Committee on Standards of violates his constitutional rights F Supp. 1270, 1279 (D.D.C. 1973). Official Conduct of the House of Represent­ There is a distinction of great moment The grant of use immunity in the present atives). between subpoenaing for questioning a. wit­ circumstances will not afford Mr. Kim pro­ In re Hearings Conducted ness (even one who might subsequently be tection coextensive with the Fifth Amend­ Pursuant to House Resolution 252. indicted) and subpoenaing an indicted de­ ment for at least two reasons. MEMORANDUM SETTING FORTH THE CONSTI­ fendant for questioning on the subject of First, the Courts have held on numerous TUTIONAL AND PRACTICAL REASONS WHY the crimes for which he is charged. The occasions that once an individual has been RANCHO C. KIM SHOULD NOT BE COM­ filing of the indictment marks the com­ indicted he may not be compelled to testify PELLED To TESTIFY mencement of a. "criminal prosecution." At before a grand jury. United States v. Doss, The United States House of Representatives that point, the full panoply of protective -- F. 2d -- (6th Cir. September 23, 1977) Committee on the Standards of Official Con­ rights guaranteed to a criminal defendant (En Bauc) (while a grand jury is free to duct is contemplating calling Mr. Rancho C. by the Constitution attaches. The impor­ question a target of an investigation, it may Kim as a witness. Toward this end on Octo­ tance of the beginning of a criminal prose­ not question an already indicted defendant ber 14, 1977, the Committee procured an cution was emphasized by Justice Stewart in on the subject about which he has been 29584 CONGRESSIONAL RECORD-HOUSE September 15, 1978 charged); United States v. Lawn, 115 F. Supp. placed a five minute limit on the cross­ dlana highway official. Hutcheson was con­ 674 (S.D.N.Y. 1953). Indeed, this doctrine examination that may be conducted by any victed of a federal crirpe for refusing to has been acknowledged even when the in­ individual member of the Committee. These answer 18 of the Committee's questions· per­ dividual has been granted immunity. In re limitations are in dlrect contravention of taining to the use of union funds in con­ Liddy, 506 F. 2d 1293, 1299 (D.C. Cir 1974) .1 Mr. Kim's constitutional right to confront nection with efforts to forestall the <;tate This constitutional principle is fully appli­ and cross-examine witnesses.5 bribery indictment. His refusal to answer cable here. Simply put, once an individual In addition, the Committee's proposed was not based upon the privilege against has been indicted the Fifth Amendment course of action violates the most fundamen­ self-incrimination,7 but rather on his right privilege against self-incrimination prohibits tal tenets of the Sixth Amendment right to to due process of law; he argued that the him from being compelled to testify about counsel. Mr. Kim and his counsel are pres­ Committee's interrogation required that he the subject of the indictment under any ently engaged in preparing a defense to two either prejudice his defense or commit per­ clrcumstances.2 very serious criminal indictments. The Com­ jury and that it was a "pretrial" of the state Second, the Courts have recognized that mittee is not only interfering with this prep­ charges before the Committee. there are practical, if not theoretical, limits aration, but also ls compelling Mr. Kim to A majority of the Court rejected these ar­ to the protection afforded by use immunity. disclose, on the eve of trial, factual matter guments,s finding that many aspects of the For example, in Goldberg v. United States, that the Constitution intended would be Due Process argument were premature and 472 F. 2d 513 (2d Cir. 1973), the Court while voluntarily disclosed only to defense counsel. could not be addressed until after a state upholding a grant of immunity to compel We point out these clear violations of the conviction. grand jury testimony of an individual ar­ Sixth Amendment not so much to demand However, Chief Justice Warren, Ln a dis­ rested for an offense,3 made clear that use a. full-blown trial before the Committee, but senting opinion joined by Justice Douglas, immunity would not adequately protect him rather to demonstrate the inappropriateness asserted that the interrogation was violative if he were indicted by the same grand jury of compelling Mr. Kim's testimony at this of the Due Process Clause. He put the con­ that had heard his immunized testimony. time. stitutional issue as follows: "Is it a viola­ The Court reasoned that no level of precau­ C. Violation of Due Process tion of the constitutional guarantee of due tion could insure that the grand .1ury had Fundamental fairness, as embodied in the process of law for a legislative committee, not indicted on the basis of the individual's under the circumstances of this case, to in­ comoelled testimony. due process clause of the Fifth Amendment, has always been a touchstone of the Ameri­ quire into matters for which the witness is We contend that the same type of practi­ a.bout to be tried under a pending indict­ cal difficulties render the protection of use can criminal justice system. If the Commit­ tees seeks to compel Mr. Kim to testify at ment?" Id. at 628. Both Warren and Douglas immunity inadequate here. While the Com­ answered the question affirmatively. mittee's sessions will be closed, we respect­ this time, that time-honored principle will The majority opinion responded to the fully submit that a. realistic assessment of be violated. dissent in a way that clearly indicates that the situation makes it impossible to con­ Mr. Kim has been indicted for committing it did not disagree with the dissenters' con­ clude that the Government will not gain, perjury before a grand jury investigating the stitutional analysis. Rather, it disagreed with however inadvertently, some advantage, how­ lobbying activities of the Korean Govern­ their factual premise. ever subtle, from Mr. Kim's compelled testi­ ment. He is charged with lying to the grand "It should be noted that although this mony on the eve of his criminal trials. Such jury when he testified that the K.C.I.A. op­ Congressional inquiry was related to the sub­ an advantage gained from testimony com­ erative, S. K. Kim, never left money at his ject matter of the state indictment, the pelled from the mouth of the defendant con­ home. By now inquiring into these precise questions that were asked of the petitioner travenes the cherished protections of the areas, the Committee pl.aces Kim in an intol­ did not bear directly on his guilt or inno­ Fifth Amendment privilege against self­ erable position where he is forced to either cence of the state charges. Id. at 615 n. 16." incrimina.tion. repeat the testimony which has already re­ The clear implication ls that if the ques­ B. Violation of Sixth Amendment Rights ·sulted in a perjury indictment or change tions did bear directly on the pending those answers and thereby confess to a crime The Sixth Amendment affords a criminal charges the majority would have agreed that for which he has been indicted. Specifically, there was a due process violation. defendant a. series of protective rights; It if Kim stands by his earlier testimony and guarantees a speedy and public trial, the In the present case, the questions to be denies receipt of any money from S. K. Kim asked will bear directly on Mr. Kim's guilt or right to confront and cross-examine the wit­ he leaves himself open to a possible second nesses against him, the right to have com­ ln.nocence on the criminal charges. For this indictment for perjury, since the grant of reason, Hutcheson supports the proposition pulsory process for obtaining witnesses in his immunity explicitly excludes from its pro­ that the questioning here will be funda­ favor and the right to the assistance of coun­ tection a prosecution for perjury.G And if, mentally unfair and violative of due process. sel. As the Supreme Court held in Kirby v. he changes his testimony and admits receipt The inherent unfairness of the situation lll'lnois, supra., 406 U.S. at 690, all of these of the money he will have prejudiced his de­ is not apparent only to Mr. Kim. In a brief rights attach upon the filing of an indict­ fense to the perjury indictment by having hearing regarding the immunity order, Chief ment. Because the Committee ls compelling made inconsistent statements while under Judge Bryant of the United States District Mr. Kim to testify about the precise sub­ oath. See 18U.S.C.§1623(c) ("In any pros­ Court for the District of Columbia expressed jects for which he has been indicted, the ecution under this section, the falsity of a his discomfort with the proposed course of Sixth Amendment protections are fully ap­ declaration set forth in the indictment or action. plicable. We respectfully submit that the information shall be established sufficient "The CouaT. Well, I guess you gentlemen procedures contemplated by the Committee for conviction by proof that the defendant will have to wait a few minutes. There is an do not respect these rights. while under oath made irreconcilably con­ odor to this that I don't quite understand. One of the most central rights afforded a tradictory declarations material to the point "Mr. FoRTUIN. I am sorry. I didn't hear criminal defendant is the right to confront in question in any proceeding before or an­ you. and cross-examine his accusers. Yet, the cillary to any court or grand jury") . Aside ...... he COURT. There is a little odor to this Committee has denied counsel's request to from the obvious self-incrimination problems that I don't quite relish. This has never question witnesses appearing before the that have already been discussed, placing a been done before, has it. Nobody under Fed­ Committee.' Indeed, the Committee has criminal defendant in this "Catch-22" dilem­ eral indictment has ever been called under ma. ls contrary to the most basic elements these circumstances, have they? i While noting that there was "respected of fundamental fairness. "Mr. FoaTUIN. I don't know, your Honor. I authority" for this proposition, the Court The Supreme Court case of Hutcheson v. don't know the answer to that question. in In re Liddy was not directly confronted United States, 369 U.S. 598 (1962) is instruc­ transcript, at 16." o with the question because Liddy had already tive. Hutcheson, a president of a labor union, Weighed against the inherent unfairness been convicted at the time he was called was summoned to testify before the Senate of Mr. Kim's dilemma ls the fa.ct that there before the grand jury. Select Committee on Improper Activities in ls no apparent need for the Committee to !l Cf. 18 U.S.C. § 3481 (defendant ls incom­ the Labor or Management Field. At the time question him at this time. Therefore, we re­ petent to testify except at his request). he was summoned he was under a state In­ spectfully submit that there is no justlflca­ 3 Goldberg is not authority for the com­ dictment for the alleged bribery of an In- tlon for the Committee to refuse to delay its pulsion of testimony pursuant to a grant of questioning of Mr. Kim until after his crimi­ immunity of an already indicted defendant. nal trials. See, In re Tuso, 357 A.2d 1 (N.J. At the time he was summoned before the 5 The committee has agreed In its letter of Super. Ct. App. Div. 1976). grand jury, Goldberg only had a complaint Oct. 28, 1977, to subpena witnesses suggested filed against him. In In re Liddy, supra., the to it by Mr. Kim. However, this ls an empty 7 At the same time, the assertion of the Court treated Goldberg as only a potential agreement because the most critical witnesses privilege in a Federal proceeding would ha.Ye defendant. Nor is Application of United are unavailable. been admissible in a State criminal case. States Senate Select Committee on Presi­ GIndeed, a. strong argument can be made s Only six justices participated; the ma­ dential Camvaign Activities, supra, to the that the committee's approach violates the jority consisted of four. contrary. The witness there also had not spirit if not the letter of the double jeopardy o Chief Judge Bryant issued the order, but been indicted. cause because the Government may be af­ left open the possibility of challenging its 'Letter of Counsel to committee of Oct. 20, forded two chances to secure a conviction for propriety before Judge Flannery who will be 1977. what is in reality only one act of perjury. presiding over the criminal case. September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29585 If Mr. Kim is ordered by the committee to Title 18 U.S.C. § 2515 prohibits the use as to answer all questions based upon illegal testify, he will decline to do so by ass~ting evidence before this Committee of the fruits electronic surveillance. the marital privilege and will decline to of illegal electronic surveillance. CONCLUSION answer questions based upon illegal sur­ "Whenever a.ny wire or oral communica­ As Justice Brennan stated in a concurring veillance tion has been intercepted, no pa.rt of the opinion in Hutcheson v. United States, supra, A. Marital Privilege contents of such communication a.nd no evi­ dence derived therefrom ma.y be received in 369 U.S. at 624: Ha.ncho Kim is a. defendant in not only evidence in any trial bearing or other pro­ "When a congression!ll inquiry and a the conspiracy a.nd false statement case pend­ ceeding in or before any court, grand jury, criminal prosecution cross paths, Congress ing in the District of Columbia. but a. code­ department, officer, agency, regulatory body, must accommodate the public interest in !enda.nt a.s well with his wife in the ta.x legislative committee, or other authority of legitimate legislative inquiry with the public evasion case now pending a.gs.inst them in the United States, a State, or a. political sub­ interest in securing the witness a. !air trial. the United States District Court for the Dis­ division thereof if the disclosure of that in­ Whether a. proper accommodation has been trict of Maryland. The United States Attorney formation would be in violation of this chap­ made must be determined from the vantage ha.s already urged before the Grand Jury in ter." (Rmphasis added.) point of the time of petitioner's appearance that case that Mrs. Kim's inclusion a.s a. co­ In Gelbard v. United States, 408 U.S. 41 before the Committee." de!endant was appropriate under the evi­ (1972), the Supreme Court held that the For the reasons set forth herein, we re­ dence then available, and this committee will refusal to answer questions before a. grand spectfully submit that the proper accommo­ recall that s. K. Kim testified that she was jury because they were based on mega.I elec­ dation demands that the Committee stay present and witnessed the delivery of $300,000 tronic surveillance was a. defense to a. civil its questioning until such time as the prej­ o! K .C.I.A. funds to her husband in Septem­ contempt charge. The Court stated: udice to Mr. Kim's right to a fair trial is ber of 1974. Counsel for Rancho Kim wishes "The purposes of § 2515 and Title HT ai:; a. eliminated. to candidly advise the Committee that should Respectfully submitted. he be ordered to testify, he will assert on whole would be subverted were the plain command of § 2515 ignored when the victim WILLIAMS & CONNOLLY, behalf of himself and his wife, both of whom DAvm POVICH, a.re accused of criminal tax evasion in viola­ of a.n mega.I interception ls called as a. wit­ ness before a grand .1ury and as~ed 'llles­ KENDRA E. HEYMANN, tion of 26 U.S.C. § 7201, a marital privilege tlons based upon that Interception. More­ LoN S. BABBY, not to testify against their spouse. This priv­ Attorneys for Hancho Kim. ilege is, of course, separate a.nd distinct from over, § 2515 serves not only to protect the the right of the accused not to testify against privacy of communication, but also to en­ himself as guaranteed by the Fifth Amend­ sure that the courts do not become partners EXHIBrr 1 TO APPENDIX III ment of the United States Constitution. Here to 1llegal conduct: the evidentlary prohibi­ (In the United States District Court for the the accused, in this case Mrs. Kim, has the tion was enacted also "to protect the in­ District of Columbia. Holding a Criminal spousal privilege prohibiting her husband tegrity of court and administrative pro­ Term, Grand Jury Sworn in on June 7, 1978.) ceedings." Consequently, to order a grand from testifying against her, in addition to United States of America. v. Rancho C. Kim his Fifth Amendment privilege against self­ jury witness, on pain of imprisonment, to incrimination. disclose evidence that § 2515 bars in une­ INDICTMENT Under Rule 501 of the Federal Rules of quivocal terms is both to thwart the congres­ The Grand Jury Charges: Evidence, "the privilege of a witness, per­ sional objective of protecting individual pri­ COUNT I vacy by excluding such evidence and to en­ son . . . shall be governed by the principles 1. At all times pertinent to this indict­ of the common law as they may be inter­ tangle the courts in the illegal acts of Gov­ ernment agents. ment the Korean Central Intelligence Agency preted by the courts of the United States in (hereafter the KCIA) was an agency of the the light of reason and experience." It is an "In sum, Congress simply cannot be un­ Government of the Republic of Korea. established federal rule of evidence that derstood to have sanctioned orders to pro­ 2. At all times material hereto, General either spouse may be barred from testifying duce evidence excluded from grand jury pro­ Yang Doo Wan, also known as Lee Sang Ho against the other. Hawkins v. United States, ceedings by § 2515. Contrary to the Govern­ (an unindicted co-conspirator herein) was 358 U.S. 74 (1958); United States v. Fields, ment's assertion that the invasion of privacy an assistant to the Director of the KCIA with 458 F.2d 1194, 1198-1199 (3d Cir. 1972). is over and done with, to compel the testi­ offices in Seoul, Korea. Under Rule llOl{c), "(T)he rule with re­ mony of these witnesses compounds the 3. At all times material hereto, Sang Keun spect to privileges applies a.t all stages of all statutorily proscribed invasion of their pri­ Kim (an unindicted co-conspirator herein) actions, cases and proceedings," and specifi­ vacy by adding to the injury of the inter­ was an employee of the KCIA stationed as a cally, to contempt proceedings under sub­ ception the insult of compelled disclosure. diplomatic officer at the Embassy of the Re­ paragraph (b). The marital privilege is "not And, of course. Title III make., illegal not public of Korea in Washington, D.C. only for the benefit of the husband, wife and only authorized lnnterceptions, but also the 4. Beginning on or about August 15, 1974, children, but for the benefit of the public disclosure and use of information obtained a.nd continuing thereafter until in or a.round a.s well. Such a belief has never been unrea­ through such interceptions. 18 U.S.C. § 2511 April 1976 (the exact date being unknown to sonable and is not now." Hawkins v. United (1); see 18 U.S.C. § 2520. Hence if the pro­ the Grand Jury), in the District of Columbia, States, supra at 77. There is no reason why hibition of § 2515 is not available as a de­ the State of Maryland, the Republic of Korea, it should not apply with equal vitality to fense to the contempt charge, disclosure and elsewhere, Rancho C. Kim, the defendant these proceedings. through compelled testimony makes the wit­ herein, did willfully and knowingly, combine, counsel for Rancho Kim is mindful that ness the victim, once again, of a federal conspire, confederate a.nd agree with Yang the Committee may seek to circumvent the crime. Finally, recognition of § 2515 as a de­ Doo Wan, Sang Keun Kim and diverts other invocation of the privilege by granting im­ fense "relieves judges of the anomalous duty persons who are presently known and un­ munity to Mrs. Kim. Such a procedural of finding a person in civil contempt for fail­ known to the Grand Jury, to defraud the device, however, will not overcome the priv­ ing to cooperate with the prog.pcutor in a United States and the Congress of the United ilege since the granting of immunity under course of conduct which, if pursued un­ States in connection with the performance 18 U.S.C. § 6002 relates solely to the wit­ checked, could subject the prosecutor him­ of their lawful governmental functions and nesses' self-incrimination and not to testi­ self to heavy civil and criminal penalties." rights: mony against the spouse. The dependency In re Grand Jury Proceedings, Harrisburg, (a) of and concerning the right of the of the indictment against both Mr. a.nd Mrs. Pennsylvania (Egan), 450 F.2d at 220 (Ro­ Congress and the Executive Branch of the Kim makes all the more viable the marital senn, J., concurring). "And for a ~ourt. on pe­ United States to have their deliberations and privilege under the circumstances of these tition of the executive department, to sen­ official actions conducted honestly and im­ proceedings. If the Committee wishes to pre­ tence a witness, who is herself the victim partially as the same should be conducted, vail upon the Department of Justice to dis­ of the illegal wiretapping, to jail for refusal free from corruption, fraud, improper and miss the indictments now pending against to participate in the exploitation of that undue influence, dishonesty, malfeasance, Mr. and Mrs. Kim, counsel would reevaluate crime in violation of the explicit command unlawful impairment and obstruction, and the appropriateness of the spousal privilege of Section 2515 is to stand our whole system (b) of and concerning the right of the in these proceedings. But as the matter now of criminal justice on its hel\ci." In re Evans. United States to have United States Con­ stands, the privilege prohibits Rancho Kim 146 U.S. App. D.C. 310, 323, 452 F.2d 1239, 1252 gressmen and other government officials from testifying against his wife, and under (1971) (Wright, J., concurring)." Id. at transact the business of the Congress of the the circumstances here, the indictment pre­ 51-52." United States a.nd other departments and cludes him from testifying at all. The re?.sonlng of Gelbard is fully applicable agencies of the United States free from cor­ B. Illegal Electronic Surveillance here. Congress cannot be understood to ruption, fraud, improper and undue con­ If called to testify before the Committee, have sanctioned orders to produce evidence tracts and influence, dishonesty, malfeas­ Mr. Kim would request a.n opportunity to excluded from proceedings before legisla­ ance, unlawful impairment a.nd obstruction. determine whether the questioning was in tive committees by § 2515. There ls reason 5. It was a part of the said conspiracy that any way derived from the product of elec­ to believe that questioning to be propounded Hancho c . Kim would conduct a clandestine tronic surveillance, and the legality of that to Mr. Kim may be derived from electronic operation in the United States called "Op­ surveillance. survelllance. Mr. Kim ls justified in refusing eration White Snow" !or the purposes of in- CXXIV--1860-Part 22 29586 CONGRESSIONAL RECORD- HOUSE September 1.5, 1978 creasing foreign aid to the Republic of Korea District of Columbia, Sang Keun Kim re­ Kim and Sang Keun Kim from the telex ma­ and of creating a favorable attitude toward ceived a letter from General Yang Doo wan chine at the home of Rancho C. Kim to a the Government of the Republic of Kore•a and in which Sang Keun Kim was instructed to telex machine at KCIA haadquarters in Seoul, its officials. assist Hancho C. Kim in a secret operation. Korea. 6. It was further a part of the said con­ 2. In or around September 1974, Hancho 17. On or about April 30, 1975, Rancho C. spiracy that Hancho C. Kim would receive a c. Kim advised Sang Keun Kim that they Kim transmitted a letter and attachments substantial amount of money from the KCIA would work together on a se.cret opera ti on to reflecting his personal views on economic and for the purpose of distributing the money to be financed by the KCIA for the purpose of political conditions in the Republic of Korea members of the Congress of the United States influencing members of the Congress of the to an official in the Executive Branch of the on behalf of the Government of the Republic United States and others. United States. of Korea and its officials. 3. On or about September 9, 1974, within 18. On or about May 5, 1975, Rancho C. 7. It was further a part of the said con­ the District of Columbia, Sang Keun Kim Kim purchased a second new 1975 Cadlllac spiracy that Hancho C. Kim would endeavor received from General Yang Doo Wan and with funds obtained from the KCIA. to indoctrinate, convert, induce, persuade, other officials and employees of the KCIA a 19. Jn or around May 1975, Hancho C. Kim and in other ways influence members of the personal check in the amount of $100,000.00 traveled to Seoul, Korea, where he conferred Congress of the United States and Executive written on the checking account of Tong with officials and employees of the KCIA. Branch officials with reference for formulat­ Sun Park. 20. In or around June 197!S, in the District ing, adopting and changing the foreign pol­ 4. On or about September 9, 1974, within of Columbia, Sang Keun Kim received a ices of the United States for the benefit of the District of Columbia, Sang Keun Kim, letter from Park Wang-Kyu, an assistant to the Government of the Republic of Korea. acting pursuant to written instructions from General Yang Doo Wan, advising Sang Keun 8. It was further a part of the said con­ General Yang Doo Wan, deposited the check Kim that Sang Kuen Kim would receive spiracy that Hancho C. Kim would period­ referred to in Overt Act Number 3 in his per­ $300,000.00 for delivery to Rancho C. Kim. ically report on his activities to, and receive sonal checking account at the Riggs National 21. In or around June 1975, Sang Keun instructions from, General Yang Doo Wan Bank. Kim received $300,000.00 in United States and other officials of the KCIA. 5. On or about September 11, 1974, within currency throu~h the diplomwtic pouch, and 9. It was further a part of the said con­ the District of Columbia, General Yang Doo Sang Keun Kim delivered the $300,000.00 spiracy that Hancho C. Kim would travel to Wan and other officials and employees of the to Hancho C. Kim as instructed by the the Reoublic of Korea to discuss with General KCIA caused United States currency in the KCIA. Yang rioo Wan and other officials of the KCIA amount of $256,000.00 to be delivered to Sang 22. On or about June 24, 1975, Hancho c. his accomplishments and the means of at­ KeunKim. Kim dined with two Congressmen and their taining the future goals of the said agree­ 6. On or about September 11, 1974, within famllles at the Sans Soucl Restaurant in ment. the District of Columbia, Sang Keun Kim Washington, D.C. 10. In order to accomplish the objects of received written instructions from General 23. In or around August 1975, Rancho C. the conspiracy the following means, among Yang Doo Wan to deliver to Hancho C. Kim Kim traveled to Seoul, Korea, where he con­ others, were used by Hancho C. Kim, and the $256,000.00 referred to in Overt Act Num­ ferred with officials and employees of the his co-conspirators: ber 5 and $44,000.00 from the funds deposited KCIA. (a) Hancho c. Kim utilized his home at in Sang Keun Kim's personal checking ac­ 24. On or about January 22, 1976, Hancho 6404 Martins Lane, Lanham, Maryland, where count, referred to in Overt Act Numbers 3 C. Kim lield a catered dinner for two Con­ he entertained Congressmen, received and and 4. gressmen and their famllles at his home. stored KCIA funds, operated a telex machine, 7. On or about September 12, 1974, Sang 25. In or around February 1976, Sang Keun and received instructions from, and sent in­ Keun Kim delivered $300,000.00 in United Kim traveled to Seoul, Korea, and conferr·ed formation to, the KCIA; States currency to Hancho C. Kim on behalf with officials and emnlovees of the KCIA (b) Hancho C. Kim received a total of of the KCIA for the purpose of financing the regarding the clandestine operation involv­ $600,000.00 in United States currency from clandestine operation referred to in Overt ing Rancho C. Kim. the KCIA to support Operation White Snow, Act Number 2. In Violation of 18 U.S.C. § 371. which was delivered to him at his home by 8. On or about September 17, 1974, Hancho COUNT II Sang Keun Kim; C. Kim ordered and subsequently paid for (c) Hancho c. Kim expended a portion of a new 1975 Cadillac with funds obtained from 1. On or about Seotember 22, 1976, within the KCIA funds to purchase two new auto­ the KCIA. the District of Columbia, Rancho c. Kim, mobiles and expensive furnishings for his 9. On or about September 19, 1974, Rancho the defendant herein, duly took an oath in home, to entertain at home and at expensive C. Kim contributed $10,000.00 to Findlay a proceeding before a grand jury of the restaurants, and to make contributions to an College, Findlay, Ohio, with funds obtained United States, emoaneled and ~worn in on educational institution, all in order to im­ from the KCIA. June 7, 1976, in the United States District press Congressmen and others as to his finan­ 10. On or about October 8, 1974, Hancho C. Court for the District of Columbia (here­ cial condition. Kim caused directly and indirectly the in­ inaner the grand jury), inquiring into mat­ (d) Hancho c. Kim approached and spoke sertion of an article in the Congressional ters then and there pending before the grand with members of the House of Representa­ Record by a member of Congress which was jury. tives of the United States about the economic favorable to the Government of the Republic 2. Rancho c. Kim, having taken the afore­ and political conditions in the Republic of of Korea and its officials. said oath that he would testify truthfully, Korea for the purpose of influencing the atti­ 11. On or about November 8, 1974, Rancho did willfully and knowingly and contrary to tude of such members of the United States C. Kim transmitted a letter and attachments said oath, make a false material declaration Congress in favor of the Government of the reflecting his personal views on economic and which he did not believe to be true. Republic of Korea; political conditions in the Republic of Korea 3. At the time and place aforesaid the ( e) General Yang Doo Wan wrote letters to an official in the Executive Branch of the grand jury was conducting an investigation to Sang Keun Kim instructing Sang Keun United States. into various allegations of lllegal payments Kim to deliver money to, and otherwise as­ 12. In or around January 1975, Hancho C. made by agents of the Government of the sist, Hancho C. Kim on behalf of the KCIA. Kim traveled to Seoul, Korea, where he con­ Republlc of Korea to members of the Con­ (f) Ha.nciho C. Kim frequently met Sang ferred with officials and employees of the gress of the United States and to officials of Keun Kim to report on the progress of Oper­ KCIA. the United States Government. in possible ation White Snow, after which Sang Keun 13. On or about February 25; 1975, Rancho violation of the faws of the United States. Kim did transmit the aforesaid information C. Kim caused directly and indirectly the in­ 4. It was material to the aforesaid inves­ to General Yang Doo Wan by means of thP. sertion of an article in the Congressional tigation to determine whether Hfl.ncho C. Korean Embassy diplomatic pouch; Record by a member of Congress which was Kim had received money from officials and (g) Hanoho C. Kim rented telecommu­ favorable to the Government of the Republic employ1>es of the Government of the Repub­ nications (telex) eQuipment from R.C.A. of Korea and its officials. lic of Korea for the purpose of making pay­ Global Communioations, Inc., in order to di­ 14. On or about March 3, 1975, Rancho C. ments to members of the Congress of the rectly and Quickly report upon his activities Kim tran~mitted two letters and attachments United States. in the United States to General Yang Doo reflecting his personal views on economic and 5. On September 22, 1976, within the Dis­ Wan and other officials of the KCIA, and on political conciitions in the Republic of Korea trict of Columbia. Rancho c. Kim appeared numerous occasions transmitted such reports to an official in the Executive Branch of the as a witness before the grand .tury, and then to Seoul, Korea; and the United States. and there being under oath testified falsely (h) Hancho C. Kim traveled to Seoul, 15. In or around March 1975, Rancho c. with respect to the aforesaid material mat­ Korea, and reported to General Yang Doo Kim had a telex machine installed in his ter as follows: Wan and other officials of the KCIA on past home in Lanham, Maryland, for the purpose Question. [By Paul Michel, Attorney, De­ and planned future activities of Operation of directly and quickly reporting upon his partment of Justicel: What ls the name of White Snow. activities in the United States to officials of the gentleman who sold your wife the movie OVERT ACTS the KCIA. projector? In furtherance of the consniracy, the fol­ 16. From on or about March 1, 1975, Answer. [Hancho Kim]: Sung Gun Kim. lowing overt acts were committed: through July 1, 1976 one hundred forty one (Grand Jury Transcript p. 86) 1. On or about September 3, 1974, in the (141) telex messages were sent by Rancho c. September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29587 Question. You mentioned that on some of signed, and by ma111ng and causing to be States Government, American media and the the occasions of his visits Mr. Kim brought malled, in the District of Maryland, a false American academic community, he had spent something. and fraudulent income tax· return on behalf over $700,000. (Tr. Sl2, S63). Hancho Kim Answer. He bring the newspapers once in a of themselves, which was filed with the In­ is thus one of three individuals named in while Korean newspapers. After he read in ternal Revenue Service, wherein it was stated the Committee's public hearings who, accord­ his office. that their taxable income for said calendar ing to proof adduced at those hearings, per­ (Grand Jury Transcript p. 91-92) year was the sum of $15,556.29, and that the sonally delivered cash to Members of Con­ amount of tax due and owing thereon was gress. the sum of $2,939.72, whereas, as they then From the foregoing, it is apparent that the Question. Did he leave anything at your and there well knew, their joint taxable in­ Committee must obtain at the earliest pos­ home, or with you-aside from the movie come for said calendar year was substantially sible moment the testimony of Hancho C. projector and some copies of this Korean in excess of $15,556.29, upon which said tax­ Kim to determine to whom, if anyone, he newspaper? able income there was due and owing to the made cash payoffs in amounts aggregating Answer. Absolutely not. United States of America an income tax sub­ several hundreds of thousands of dollars, as (Grand Jury Transcript p. 92-93) stantially in excess of $2,939.72. he claimed in statements to Kim Sang Keun. In violation of Section 7201, Title 26, Such testimony is essential to enable the United States Code. Committee to fulfill its mandate.2 Question. Fine. Did he ever bring and leave JERVIS S. FINNEY, Accordingly, in pursuing the inquiry, with you, or at your house, any money? U.S. Attorney. Members of the Special Staff notified Kim's Answer. Absolutely, positively, no sir. I like EDWIN R. PIERCE, attorney of the Committee's desire to take to ma.ke it--very strongly about it. Special Assistant U.S. Attorney. his testimony in executive session. Kim's (Grand Jury Transcript p. 93) JEFFREY s. WHITE, attorney advised that if called as a witness Special Assistant U.S. Attorney. Kim would assert his Fifth Amendment priv­ ilege not to testify, on the grounds that his 6. The aforesaid testimony of HANCHO C. APPENDIX IV KIM, as he then and there well knew and testimony might tend to incriminate him. believed, was not true in that on or about NOVEMBER 14, 1977. The Committee thereafter voted unanimous­ September 12, 1974, and in or around June THE COMMITTEE ON STANDARDS OF OFFICIAL ly to obtain an order of immunity from the 1975, the exact date being unknown to the CONDUCT United States District Court pursuant to the grand jury, RANCHO C. KIM did in fact re­ In the Matter of Hancho C. Kim, a Witness provisions of Title 18, U.S.C., Sections 6002 ceive at his home money in the aggregate Before the Committee on Standards of Offi­ and 6005. of $600,000.00 in United States currency from cial Conduct. Thereafter, Committee Counsel filed with the person who RANCHO C. KIM referred to MEMORANDUM the United States District Court for the Dis­ as "Sung Gun Kim," but who in fact is Sang trict of Columbia an application for an Order The Special Counsel and the Special Staff Conferring Immunity Upon and Compelling Keun Kim, an agent of the Korean Central conducting the Korean influence inquiry Intelllgence Agency. pursuant to House Resolution 252 submit Testimony from Hancho C. Kim. The De­ (Violation of 18 U.S.C. § 1623.) this memorandum to advise Members of the partment of Justice indicated that it had no BENJAMIN R. CIVILETTI, objection to this order and that, in its opin­ Committee on Standards of Official Conduct ion, its case against Kim and his wife could Assistant Attorney General, Criminal ("Committee") with respect to the appro­ Division, Attorney for the United priate disposition of the claims set forth in be adequately protected by immediately date States. stamping and sealing all evidence to be used the "Memorandum Setting Forth the Con­ against Kim in any trials. On October 13, stitutional and Practical Reasons Why EXHmrr 2 TO APPENDIX III 1977, Chief Judge William B. Bryant of the Rancho C. Kim should Not Be Compelled to United States District Court for the District (In the United States District Court for Testify" (the "Memorandum") submitted by the District of Maryland.) of Columbia signed the order submitted by Hancho C. Kim ("Kim"). Committee Counsel. That order provides in United States of America v. Hancho C. Kim DISCUSSION part as follows: and Soonduk E. Kim The facts "(N) o testimony or other information com­ (Tax Evasion, 26 U.S.C. § 7201) On February 9, 1977, in the wake of press pelled under the order (or any information INDICTMENT reports of efforts by the Government of the directly or indirectly derived from such tes­ The Grand Jury Charges: Republic of Korea to influence United States timony or other information) may be used foreign policy by paying off Members of Con­ against the witness in any criminal case, ex­ COUNT I gress, the House of Representatives unani­ cept a prosecution for perjury, giving a false That on or about Aprll 15, 1975, in the Dis­ mously adopted House Resolution 252. That statement, or otherwise failing to comply trict of Maryland, Hancho C. Kim and Soon­ resolution "directs" this Committee inter with the order." duk E. Kim. residents of Lanham, Maryland, alia, to conduct a "full and complete in­ In the meantime, on September 27, 1977, who during the calendar year 1974 were mar­ quiry to determine whether Members of the a Federal grand jury sitting in the District ried, did willfully and knowingly attempt to House of Representatives accepted anything of Columbia indicted Hancho Kim for con­ evade and defeat a large part of the income of value, directly or indirectly, from the spiracy to defraud the United States and for tax due and owing by them to the United Government of the Republic of Korea or perjury. The perjury count of the indictment States of America for the calendar year 1974, representatives thereof." charges Kim with lying when he denied be­ by preparing and causing to be prepared, by Pursuant to said resolution, on October 19 fore the grand jury having received money signing and causing to be signed, and by and 20, 1977, the Committee heard testimony from Kim Sang Keun. That same day, Kim ma111ng and causing to be malled, in the in public session from Kim Sang Keun, who and his wife were indicted by a Federal grand District of Maryland, a false and fraudulent had been First Secretary and later Counsel­ jury sitting in Baltimore. Both were charged income tax return on behalf of themselves, lor at the Korean Embassy in Washington, which was filed with the Internal Revenue with income tax evasion for the years 1974 D.C., from October 1970 through November, and 1975. Service, wherein it was stated that their tax­ 1976, at which time he defected to the able income for said calendar year was the United States (Tr. 101-05) .1 He testified that On November 3, 1977, Counsel to the sum of $9,740.79, and that the amount of tax he had delivered $600,000 in cash to Rancho Committee advised Kim's lawyer that the due and owing thereon was the sum of Kim which, according to Hancho Kim was Committee intended to proceed to take testi­ $1,683.60. whereas, as they then and there to be used, and was in fact used in pa.rt, to mony from Kim in executive session pur­ well knew, their joint taxable income for buy off Members of the House of Representa­ suant to the immunity order it had ob­ said calendar year was substantially in ex­ tives and influence them in the performance tained. The following day, Kim's lawyer told cess of $9,740.79, upon which said taxable of their duties. (E.g., Tr. 130-31, 146-47, SS, Counsel to the Committee that in spite of income there was owing to the United States Sl0-13, Sl9). Indeed, Hancho Kim, in reports the immunity order Kim believed he should of America an income tax substantially in that he made to Kim Sang Keun, indicated stm not have to testify and requested an excess of $1,683.60. the identity of five Congressmen, referred opportunity to raise the reasons upon In violation of Section 7201, Title 26, to by the code name "Advance Guard," whom which Kim relied to justify this belief before United States Code. Kim had allegedly paid off in furtherance of the Chairman and Ranking Minority Mem­ COUNT II this venture. (Tr. S23). Hancho Kim boasted ber of the Committee. Kim's request was That on or about Aprll 15, 1976, in the to Kim Sang Keun that in carrying out the District of Maryland, Hancho C. Kim and plan to pay off Members of Congress and to 2 The assertion by Hancho Kim that "there Soonduk E. Kim, residents of Lanham, Mary­ influence the Executive Branch of the United is no apparent need for the committee to land, who during the calendar year 1975 were question" Kim at this time is frivolous on married, did wllfully and knowingly attempt 1 References in parenthesis are to pages of its face. It will take a considerable amount to evade and defeat a large pa.rt of the in­ the official transcript of public hearings held of time following Ha.ncho Kim's testimony come tax due and owing by them to the by the committee on October 19-21, 1977. to corroborate or refute his testimony and United States of America for the calendar References to pages of the transcript for the the reasons for resolving allegations against year 1975, by preparing and ca.using to be second day of hearings a.re preceded by the Members of Congress at an early date a.re prepared, by signing and causing to be letter "S." compelling. 29588 CONGRESSIONAL RECORD- HOUSE September 15, 1978 granted on Friday, November 4, 1977, and "This argument presupposes that the sta.t· frontation of witnesses only by an "accused" these proceedings followed. ute's prohibition will prove impossible to en­ in "criminal prosecutions." Here the Com­ I. KIM'S MAJOR CONTENTIONS: COMPELLING force. The statute provides a. sweeping pro­ mittee's proceedings are not criminal, and HIM TO TESTIFY WOUJ,D VIOLATE HIS CON­ scription of any use, direct or indirect of the Hancho Kim is not an "accused." The Sixth STITUTIONAL RIGHTS compelled testimony and any information Amendmeni; does not apply. derived therefrom .... 2. Kim has retained one of the largest Kim's major contentions, which will be and most experienced criminal law firms in addressed individually below, all rest in • • the country, which has been representing part on the claim that if Kim testifies before "This total prohibition on use provides a Kim for almost a year. The papers submitted this Committee at this time he wlll not comprehensive safeguard, barring the use of by Kim make it clear that even at the receive a fair trial in any of his criminal compelled testimony as an "investigatory present time a partner in the firm and two cases. A complete answer to Kim's major lead," and also barring the use of any evi­ associates have responsibility for Kim's case. contentions is that they are being asserted dence obtained by focusing investigation on The suggestion that with these overwhelm­ in the wrong place. The Courts are fully a witness as a result of his compelled dis­ ing resources available to him, Kim cannot competent to see that Hancho Kim is not closures. prepare for testimony before the Committee convicted except at a fair trial. If Hancho "A person accorded this immunity under and for trial, is frivolous on its face. In any Kim can receive a fair trial, the Courts wlll 18 U.S.C. Sec. 6002, and subsequently pros­ event, if Kim's attorneys are impeded in their see to it that he gets one. If Hancho Kim ecuted, is not dependent for the preserva­ preparation of the criminal cases by Kim's cannot receive a fair trial-and we firmly tion of his rights upon the inte~lty and good testimony before this Committee, adjourn­ believe that he can-the Courts wm set fa.1th of the prosecuting authorities. As stated ments should be requested from the Courts. him free.3 In either event, however, the legis­ in Murphy: lative branch is separate from and co-equal "'Once a defendant demonstrates that he C. Kim's due process claims to the other branches of government and has testified, under a ... grant of immunity, Additionally, Kim claims that compelling it is entitled to the testimony of one of the to matters related to the federal prosecution, him to testify at this time is fundamentally three most significant witnesses in an ex­ the federal authorities have the burden of unfair and, therefore, violates his constitu· tremely important Congressional investiga­ showing that their evidence is not tainted tional right to due process of law. In tion. There is no reason, in the words of by establishing that they had an independ­ Hutcheson v. United States, 369 U.S. 599, 628 Mr. Justice Harlan: ent legitimate source for the disputed evi­ (1962), the Supreme Court explicitly held "to thwart the exercise of legitimate Con­ dence, 378 U.S., at 79 n. 18.' that it is not "a violation of due process of gressional power, on the basis of conjecture "This burden of proof, which we reaffirm law for a legislative committee ... to in­ that (the courts) may later abuse an in­ as appropriate, is not limited to a negation quire into matters for which the witness is dividual's reliance upon federally assured of taint; rather, it imposes on the prosecu­ about to be tried under a pending criminal rights.... tion the affirmative duty to prove that the indictment." evidence it proposes to use is derived from a In Hutcheson the witness had been in· • • • • • legitimate source wholly independent of the dlcted in a state court and was then com­ "Surely a congressional committee which pelled to appear before a Senate committee. ts engaged in a legitimate legislative in­ compelled testimony. "This is very substantial protection, com­ He refused to testify on due process grounds vestigation need not grind to a halt when­ and was prosecuted for contempt. ever responses to its inquiries might po­ mensurate with that resulting from invok­ ing the privilege itself. The Supreme Court affirmed his convic­ tentially be harmful to a witness in some tion. There is nothing to distinguish Sinclair United "The privilege assures that a citizen ts not distinct proceeding, v. Hutcheson from this case.5 States, supra ( 279 U.S. at 295), or when comoelled to incriminate himself by his own testimony. Jt usually operates to allow a citi­ Moreover, the instances of alleged un· crime or wrongdoing is disclosed. McGrain v. fairness set forth by Kim lend no support Daugherty, 273 U.S. 135, 179, 180. Hutcheson zen to remain silent when asked a. question requiring an incriminatory answer. This to his argument. Kim argues that compelling v. United States, 369 U.S. 599, 612, 618 him to testify at this time somehow puts (1961) ." statute, which operates after a witness has given incrimlnatory tec;timony affords the him on the horns of dilemma: Another complete answer to Kim's major "Specifically, if Kim stands by his earlier contentions 1s that they are premature. Kim's same protection by assuring that the com­ pelled testimony can in no way lead to the testimony and denies receipt of any money testimony wm be taken in executive session from S. K. Kim he leaves himself open to and may not be released to the public or the infliction of criminal penalties. "We conclude that the immunitv provided a possible second indictment for perjury, Justice Department until after Kim's crim­ since the grant of immunity explicitly ex­ inal trials. by 18 U.S.C. Sec. 6002 leaves the witness and the prosecutorlal authorities in substantially cludes from its protection a. prosecution for A. Kim's fifth amendment claims the same po"lition as if the wit.ness has perjury. And, if he changes his testimony Kim first argues that, notwithstanding the claimed the Fifth Amendment priviJe!le. The and admits receipt of the money he wUl order of immunity which under the law must immunity therefore is coextensive with the have prejudiced his defense to the perjury guaranty and does guaranty that his testi­ privilege and suffices to supplant it (foot­ indictment by having made inconsistent mony will not be used in any way to incrim­ notes omitted)."' statements while under oath." (Memorandum inate him, h1s testimony will nonetheless The reasoning of Kastigar and subsequent at 8) (footnote omitted). be used to incriminate him because "his testi­ court decisions make clear that the fact that This argument is based on the mistaken mony wm preview to the government the Kim has already been indicted is of nu con­ view of the law that if Kim gives truthful defenses he wm assert at the trials" (Memo­ senuence. United States v. Frumento. 552 testimony which is inconsistent with his to 50~ allegedly per.1urious testimony it could be ra.ndum at 4), and it is "impossible con- - F.2d 534 (3d Cir. 1977): In re Liddy, F .2d 8 elude that the government wm not gain, 1293 (D.C. Cir. 1974): In re Buonacoure, 412 admitted against him in his criminal trial. however ina.dvertently, some advantage. how­ F. Supp. 904 (E.D. Pa. 1976), are all cac:es in ever subtle" (Memorandum a.t 6) from Kim's which a witness was comoelled to te.c;tify un­ ~ J<'lm's feeble attempt to distinlluish the testimony. This same claim was raised and der immunity after the witness had been Hutcheson case on the grounds that there squarely re.1ected in Kastigar v. Untted States, indicted. the committee agreed not to question Hutcheson on matters for which he was 406 U.S. 441, 459-462 (1971), which held that B. Kim's sixth amendment claims Court.c; must make sure that no testimony under indictment (Memorandum at 9) is of Kim next argues that taking ht.s testimony no avail since the Court assumed in decid­ given under immunity by a defendant in a at thic; time wlll violate his Sixth Amend­ criminal ·case is used in any way in that crim­ ing the case that the evidence which the ment right to counsel because ( 1) under the committee did seek to elicit could have been inal case and which held that Courts a.re Sixth Amendment he is entitled "to be con­ used ap;ainst him as evidence of guilt at his competent to administer this rule. :rn Kasti­ fronted with the witnessec; ae"ainst him" and criminal trial. 369 U.S. at 607. gar the Supreme Court wrote as follows: (2) the burden of preparing for Kim's testi­ ftJn support of this argument Kim cites "Petitioners argue that use and derivative­ mony before the Committee will interfere tit1e 18, United States Code, sec. 1623(c) use immunity wlll not adequately protect a with his preparations for trial. Both claims which provides that the crime of per.1ury witness from va.rlons pQC:slble lncrlmlna.tine; are without merit. may be estab1ished by proof that the defend­ uses of the compelled testimony . . . It wm 1. The Sixth Amendment mandates ccin- ant made "irreconcilably contradictory dec­ be difficult and oerha.os lmoossible, the argu­ larations" while under oath. This statute, ment goes, to identify, by testimony or cross­ ' The cases cited by Kim (Memorandum at the argument goes, establishes that if Kim exa.mlnation, the subtle vira.vs in which the 5) to the effect that a person who has been contradicts his prior sworn statement, this compelled testimony may disadva.ntM'e a. wit­ indicted may not be compelled to testify contradiction could be used at his criminal ness, especially in the jurisdiction granting before a grand jury have no applicabillty to trial to prove perjury. Kastigar, however, the immunity. this case. In those cases, the grand jury was makes clear that the statute not be used in being used to obtain evidence against the this manner and the Courts have explicitly 3 The Department of Just.ice clearly agrees witness and the cases stand only for the so held. United States v. Patrick, 542 F.2d that Kim can be tried following his testi­ proposition that a grand jury's job is over 381, 385 (7th Cir. 1976); see also United mony before this committee since it has once an indictment has been filed. Such cases States v. Frumento, above, 552 F.2d at 541 indicated that it has no objection to the plainly do not apply where the witness ls n. 11. Moreover, title 18, United States Code, taking of Kim's testimony .bY this commit­ granted immunity by and testimony is taken sec. 1623(c) by its terms applies only to tee a.t this time. before a committee of Congress. testimony "before or ancillary to any court September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29589 Kastigar, above makes it clear, however, B. Electronic surveillance suant to House Resolution 252 on behalf of that no such use of the immunized testi­ Kim next claims that if called to testify the Committee on Standards of Official Con­ mony could be ma.de. The precise argument before the Committee he is entitled to a.n duct of the United States House of Repre­ made by Kim was raised and rejected in opportunity to determine whether the ques­ sentatives. United States v. Frumento, 552 F.2d 534, tioning before the Committee is in any way 2. I submit this statement in response to 541-544 (3d Cir. 1977) in terms that apply derived from illegal electronic surveillance. claims ma.de by Ha.ncho C. Kim that the with full force to Kim's argument. In Fru­ (Memorandum a.t 13). questioning of him by the Committee may mento the witness, Pisciotta, suggested the Annexed hereto as Exhibits A and B a.re be based upon illegal electronic surveillance. same dilemma. suggested by Kim here: sworn statements of John W. Nields, Jr., 3. I have responsibility for the questioning "That dilemma., Pisciotta contends, con­ Chief Counsel to the Special Staff to the of Rancho C. Kim, a witness before the Com­ sists of the following: if his testimony is Commitee on Standards of Official Conduct mittee, along with John W. Nields, Jr., Chief untruthful (i.e., exculpatory a.s to him). he and Thomas M. Fortuin, Counsel to the Spe­ Conusel to the Special Staff. I also have will be subject to prosecution for perjury; cial Staff, who will be responsible for the knowledge of the files and records of the yet, if the testimony is truthful (i.e., incul­ questioning of Mr. Kim and who have knowl­ Special Staff upon which such questioning pa.tory), it can be used against him to im­ edge of the records and evidence obtained will be based. peach his testimony a.t any subsequent by the Special Sta.ff on which questioning of 4. I am not aware of any electronic survell­ prosecution. But Section 6002 imposes no Kim will be based. la.nce, legal or otherwise, in which the voice such dilemma., mandates no such choice, These affidavits establish that there is no of Rancho C. Kim was overheard. In any and, as a. result, permits no such conse­ event, the questioning of Rancho C. Kim will evidence that Kim has ever been the subject be based exclusively on investigations con­ quences. of electronic surveillance and that any ques­ "The threat of a. perjury prosecution, as ducted by the Special Staff, which did not tioning of Kim will not be based upon any include any electronic surveillance or the it is implicated in half of Pisciotta.'s sup­ illegal electronic surveillance. The law is posed dilemma. is real enough. obtaining of information gathered there­ well established that, absent some showmg from. . by the witness of illegal electronic survel~­ I state under penalty of perjury that the "However, for his 'dilemma.' to move this lance, there is no burden on the government Court to rule that Section 6002 immunity foregoing is true and correct. Executed on even to "confirm or deny" the existence of this 14th day of November, 1977. does not provide the full measure of Fifth In re Grand Jury (Vigil), wiretapping. 524 THOMAS M. FORTUZN. Amendment protection, he must demon­ F. 2d 209, 214 (10th Cir. 1975), cert denied, stra. te that his truthful immunized state­ 425 U.S. 927 (1976). In any event, the law Certificate of service ments could be used against him. This he is clear that the statements of Nields and I hereby certify that on November 14, 1977, cannot do. Fortuin are a more than sufficient response I served a copy of the attached Memorandum to Kim's argument. In re Archuleta, Dk~. N:>. and the Exhibits thereto on the attorneys for "We reiterate our adherence to this prin­ 77-1286, Slip Op. 5321, 5326-5328 (2d Cir. Ha.ncho Kim by causing a copy thereof to ciple: except a.s the basis for a. prosecution August 19, 1977); United States v. Yanagita, be hand-delivered to: for perjury a. witness's immunized testi­ 552 F. 2d 940 (2d Cir. 1977); United States v. William & Connolly, 1000 Hill Building, mony may not be used against him. Grusse, 515 F. 2d 157, 159 (2d Cir. 1975) Washington, D.C. 20006. Attention: David "Pisciotta.'s dilemma., then, is illusory. His (Lumbard, J., concurring); See Gelbard v. Povich, Esq. testimony could be used against him only in United States, 408 U.S. 41, 71 (1972) (White, THOMAS M. FORTUIN. the event of a. prosecution for perjury, but J. concurring) ("Of course, where the Gov­ in no other way and for no other reasons. ernment officially denies the fa.ct of electronic APPENDIX V Pisciotta. is fully protected by Section 6002 surveillance of the witness, the matter is at (Before the Committee on Standards of immunity from having any truthful testi­ an end and the witness must answer."). Official Conduct of the House of Representa­ mony he may give~ven though incul­ CONCLUSION tives.) pa.tory-used against him. (Footnotes omitted)." Kim has set forth no grounds justifying a In re Hearings conducted Pursuant to refusal to answer when called to testify be­ House Resolution 252. U. KIM'S MINOR CONTENTIONS: MARITAL PRIVI­ fore the committee. MEMORANDUM IN RESPONSE TO MEMORANDUM LEGE; ILLEGAL ELECTRONIC SURVEILLANCE Respectfully submitted. OF SPECIAL COUNSEL WITH RESPECT TO CLAllllS In addition to the claims set forth above, LEON JAWORSKI OF HANCHO KIM Kim raises two additional arguments which Special Counsel. In a Memorandum dated November 11, are completely spurious: First he asserts that JOHN W. NIELDS, Jr., 1977, Hancho C. Kim, by his undersigned the marital privilege justifies him in refusing Chief Counsel. counsel, set forth the legal and practical rea­ to testify in a. Congressional proceeding even THOMAS M. FORTUIN, sons why he should not be compelled to though his wife is not a party to the proceed-· Counsel. testify before the Committee at this time. In Ing; and second, he alleges that he is justified EXHmIT A an effort to answer that Memorandum, Spe­ in refusing to answer questions because the Statement of John W. Nields, Jr. cial Counsel to the Committee has made sev­ questions may be based upon illegal elec­ eral arguments in favor of calling Mr. Kim. tronic surveillance, even though there is no 1. I am Chief Counsel to the Special Staff conducting the Korean Influence Inquiry We appreciate this opportunity to respond evidence that Kim or his wife have ever been briefly to those arguments. the subject of such surveillance. pursuant to House Resolution 252 on behalf of the Committee on Standards of Official I. A. Marital privilege Conduct of the United States House of Rep­ Special Counsel misconceives the nature o/ The simple and complete answer to Kim's resentatives. the committee's obligation to accommodate claim that the marital privilege justifies his 2. I submit this statement in response to its inquiry with Mr. Kim's constitutional refusal to testify is the well established rule claims made by Rancho C. Kim that ~he rights that "the privilege applies only in favor of a questioning of him by the Committee may Both in its Memorandum of November 14, person against whom, as a party to the cause, be based upon illegal electronic survellla.nce. the testimony of a wife or husband is of­ 1977, and during oral argument before the I have responsibility for the questioning Chairman and Ranking Minority Member of fered." 8 Wigmore on Evidence, Section 2234, of Rancho C. Kim, a witness before the Com­ page 232 (McNaughton rev. 1961) (emphasis the Committee, Speical Counsel has suggested mittee, along with Thomas M. Fortuin, that Mr. Kim's constitutional claims are pre­ in the original). Since Kim's wife is plainly Counsel to the Special Staff. I also have not a. party to any proceedings before the mature and are addressed to the wrong forum. knowledge of all of the files and records of This position erroneously assumes that only Committee and, of course, could not be, the the Special Staff. marital privilege has no application in this the court and not the Committee has the 4. I am not a.ware of any electronic sur­ obligation to safeguard Mr. Kim's constitu­ case.1 Thus, Kim's wife is in no way preju­ veillance, legal or otherwise, in which the diced by her husband's testimony before the tional rights. voice of Rancho C. Kim was overheard. In As the Supreme Court stated in Baranblatt Committee and the ma.rt.ta! privilege does any event, the questioning of Hancho C. Kim not apply. v. United States, 360 U.S. 109, 112 (1959), will be based exclusively on' investigations "[T)he Congress, in common with all conducted by the Special Staff, which did not branches of the Government, must exercise include any electronic surveillance or the its powers subject to the limitation placed or grand jury" and, therefore, does not apply obtaining of information gathered there­ to testimony before congressional commit­ from. by the Constitution on governmental action tees. (Title 18, United States Code, sec. 1621, more particularly in the context of this case I state under penalty of perjury that the the relevant limitations of the Bill of Rights.• which does apply to congressional commit­ foregoing is true and correct. Executed on tees, has no similar provision.) this 14th day of November, 1977. We respectfully submit that the Special 1 Kim's testimony before this committee Counsel has ignored this responsibility and could not be offered in any proceeding which JOHN W. NIELDS, Jr. the resultant obligation of the Committee EXHmIT B does inv~ve Mrs. Kim since it would be to accommodate its legitimate legislative in­ mere heresa.y in that proceeding. 4 Wigmore Statement of Thomas M. Fortuin quiry with the constitutional rights of an on Evidence, section 1079, p. 180 {Chad­ 1. I am Counsel to the Special Stair con­ already indicted defendant. bourne ed. 1972). ducting the Korean Influence Inquiry pur- Indeed, rather than being premature, the 29590 CONGRESSIONAL RECORD- HOUSE September 1.5, 1978 claims made by Mr. Kim are timely and supra, involved an already convicted indi­ directly on the witnesses' guilt or innocence properly addressed to the Committee. Jus­ vidual. In the very first sentence of its on the State charges. In the present case, the tice Brennan's statement in Hutcheson v. opinion, the Court stated: proposed inquiry does bear directly on the United States, 369 U.S. 599, 624 cited in our "This appeal requires us to determine question of guilt or innocence of the crimes earlier Memorandum, warrants repetition: whether a. defendant who has been tried and charged. In these circumstances, Hutcheson "When a congressional inquiry and a crim­ convicted but not yet sentenced, and whose supports the conclusion that the due process inal prosecution cross oaths. Congress must post-trial motions were still pending at the clause prohibits this inquiry. accommodate the public interest in legiti­ time the government sought his testimony The thrust of Mr. Kim's due process argu­ mate legislative inquiry with the public in­ at the trial of his codefendants, may be com­ ment is that the Committee is placing him terest in securing the witness a fair trial. pelled to testify under a grant of immunity. in a constitutionally intolerable position be­ Whether a orouer accommodation has been 552 F. 2d at 535. (Emphasis added.)" tween the Scylla of a perjury charge and the made must be determined from the vantage Nor is In re Buonacoure, supra, authority Charybdis of possible self-incrimination. point of the time of petitioner's appearance .for the Special Counsel's position. In that Despite Special Counsel's assertion to the before the Committee." (Emphasis added.) case, the individual was indicted only after contrary, that dilemma is real rather than Despite Special Counsel's invitation to do he refused to testify pursuant to an im­ illusory. If Mr. Kim is compelled ·~o repeat so, we therefore respectfully urge the Com­ munity order. Indeed, the Court explicitly his earlier testimony, he faces the very real mittee not to n. bdi~~ . te iti;; cleRr responsib111ty. left open the question of whether the indict­ prospect of a second perjury indictment. It The "proper accommodation" may be accom­ ment would have to be dismissed if the in­ is no answer to say that the prosecutorlal plished by simply delaying the questioning of dividual expressed a willingness to testify. decision wm be made by the Department of Mr. Kim until such time as it would not 412 F . Supp. at 908. Thus the Court did not Justice, for the fundamentally unfair situa­ prejudice his criminal trials. decide the question of whether the Govern­ tion of forcing Mr. Kim to repeat his testi­ n. ment should be required to dismiss the in­ mony or confess to criminal charges will dictment, thereby expunging Buonacoure's have been the Committee's creation. Special Counsel has not adequately answered status as an indicted defendant, as a quid D. Marital Privilege Mr. Kim's claims pro quo for his testimony. This Committee A. Violation of Privilege Against Self­ is not in a position to offer such a quid pro Special Counsel has responded to the claim Incrimination quo. of marital privllege by arguing that it has In sum, we stand on our earlier assertion no applicabillty because Mrs. Kim is not a Special Counsel argues that Kastigar v. party to the Committee's proceedings. This United States, 406 U.S. 441 (1972), is disposi­ that an indicted individual, on the eve of trial, has never been compelled to testify in narrow view of the privilege is patently tive of Mr. Kim's claim that compelling him unacceptable. to testify at this time violates his privilege the circumstances involved here. Special against self-incriminA.tion. However. Kastigar Counsel admitted this fact before Chief The marital privilege is not an evidentiary dealt only with a challenge to the immunity Judge Bryant, and his efforts to find ex­ rule grounded upon ensuring the admissibll­ statute on its face: it did not foreclose in­ amples have failed to turn up an analogous ity of only reliable evidence; rather, it re­ quiry as to whether the statute provided ade­ application of use immunity. flects the far more lmportant and far-reach­ ing policy of safeguarding marital and famil­ quate protection Ml apoliecl in l'J, particular B. Violation of Sixth Amendment Rights iar harmony. instance. Judge Sirica made this point in Once an individual has been indicted, the Application of United States Senate Select 'full pano';)ly of Sixth Amendment rights at­ Mr. and Mrs. Kim are co-defendants in a Committee on Presidential Campaign Ac­ tach. These rights follow him wherever he is criminal indictment. Under circumstances, tivities, 361 F. Supp. 1270, 1279 (D.D.C. 1973); compelled to a.pp.ear and testify about the the underlying policy of the marital privi­ accord, In re Baldinger, 36" F. Supp. 153 (C. subject matter of the indictment. They are, lege is fully applicable here. To say that Mrs. D. Cal. 1973). Indeed, as noted in our earlier therefore, fully applicable here. Kim is. not a partv to the proceedings ad­ Memorandum, the Courts have recognized Special Counsel has failed to respond to vances nothing, because strictly speaking that there are practical limitations to use the core of Mr. Kim's Sixth Amendment there are no parties to the proceedings. The immunity as a protective device which ren­ argument; that is, that the right to assist­ highly technical approach taken by Special der it constitutionally inede,..ui:i.te in certA.in ance of counsel guarantees that an individ­ Counsel ignores this fact and, more impor­ circumstances. See, e.g., Goldberg v. United ual about to stand trial will not be com­ tantly, the sound policies that justify the States, 472 F. 2d 513 (2d Cir. 1973). pelled to disgorge information to anyone privilege. Nothing in Special Counsel's argument other than defense counsel. The Committee's Conclusion refutes the contention that use immunity proposed compulsion of testimony is in For the reasons set forth both here and in cannot provide protection coexistence with direct conflict with that right and with the our earlier Memorandum, we respectfully the Fifth Amendment Jn t"'e Tlresent cir­ critical right to confront and cross-examine submit that it would be legally improper and cumstances. For instance. Special Counsel witnesses. practically unwise to compel Hancho Kim cannot provide an absolute guarantee that In addition, Special Counsel did not re­ to testify at this time. We respectfully re­ no intormation wm be released-however spond to the argument that the preparation quest that the questioning of Mr. Kim be inadvertently, by the Committee or its staff. of Mr. Kim for testimony before this Com­ postponed until a time when the Commit­ Nor can Special Counsel a.ssure that a.ction mittee will constitute a major interference tee's important mandate may be accom­ of the Committee subsequent to Mr. Kim's with preparation for trial. plished without violating Mr. Kim's consti­ testimony-such as a contempt citation or C. Violation of Due Process tutional rights. the subpoenaing of additional witnesses­ Respectfully submitted. wm not aid the Government in its prosecu­ Quoting from the dissent's statement of tJhe issue, Special Counsel states: "In Hutche­ WILLIAMS & CONNOLLY, tion of Mr. Kim. KENDR~ E. HEYMANN, son v. United States, 369 U.S. 599, 628 (1962), Special Counsel places great weight on the Supreme Court explicitly held that it is DAVID POVICH, three cases, In re Liddy, 506 F. 2d 1293 (D.C. not a 'violation of due process of law for a LONS. BABBY, Cir. 1974); United Stn.tes v. Frumento, 552 legislative committee ... to inquire into Counsel for Hancho Kim. F. 2d 534 (3d Cir. 1977); In re Buanacoure, matters for which a witness is about to be 412 P. Supp. 904 (E.D. Pa. 1976). However, tried under a pending criminal indictment.'" APPENDIX VI none of these cases involves the grant of Memorandum at 9. A careful reading of the immunity to an indicted individual awaiting [Korean Influence InvestiP:ation Pursuant to trall. case, however, reveals that the majority H. Res. 252) made no such holding. Indeed, in light of its In 11e Liddy, supra, dealt with the oro9riety HOUSE OF REPRESENTATIVES, response to the dissent, it is fair to say that COMMITTEE ON STANDARDS OF of a grant of immunity to an individual if the majority viewed the issue in those already convicted of a crime. The fact of OFFICIAL CONDUCT, terms, it would have found a violation of due Washington, D.C., May 9, 1978. conviction was critical to the Court's deci­ process. sion. After reco1mizing "that there is respect­ First, it is important to note that the Re Rancho C. Kim. able authority for the propositions that one Hutcheson Court did not consider the self­ DAvn POVICH , Esq. who has been formally charged may not be incrimination implications that result from Williams & Connolly, called before the grand jury to testify about compelling an indicted individual to testify Washington, D.C. his alleP"eti crimes unless he knowingly con­ about the precise subject for which he had DEAR MR . POVICH: This letter is to inform sents". 506 F. 2d at 1299, the Court stated: been indicted. Rather than wrestle with that you that the Oommittee subpoena directed "Liddy ts not in the position of one who serious question, the Court expressly left it to your client Rancho C. Kim, dated and has been indicted and. before toeing trial, for another day. 360 U.S. at 612. served on him on November 17, 1977, and hPs been caJI"'d to toe~tlfy before the indict­ The Court was concerned only with adjourned sine die on January 12, 1978, is ing grand jury. Rather, Liddy has been whetrer it was there inherently unfair to returnable on Monday, May 15, 1978, at 10:00 tnclicted and convicted for the crimes about compel Hutcheson to testify. While the ma­ a.m. in Room 2360 of the Rayburn Rouse which the grand jury now seeks his testi­ jority found no due process violation, it is Office Building. mony. Id. at 1300." clear that central to the result was the fact Sincerely, Similarly, United States v. Frumento, that the questions being asked did not bear JoHN J. FLYNT, Jr., Chairman. September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29591

APPENDIX VII Mr. KIM. I aon't unaerstand. St1U I don't ord, but it is very detrimental to him at (United States District Court for the Dis­ get it, that money. What money you spe­ this period of time, and I question how much trict of Columbia.) cifically have in your mind? information. Mr. FORTUIN. Any money. Mr. FORTUIN. May we have a brief recess? Misc. No. 77-0208; filed October 14, 1977 Mr. PovicH. I am going to advise the com­ Mr. PREYER. We will take a short recess. In the Matter of the Application of­ mitt"!e that at the moment there is a crim­ We will be right back. (United States House of Representatives inal tax case pending against the witness and [Recess.] Committee on the Standards of Official con­ his wife, which is the direct product of the Mr. PREYER. We will resume the deposition. duct.) allegations concerning receipt of money by The Chair will direct the witness to an- ORDER CONFERRING IMMUNITY UPON AND COM• him from Sang Keun Kim, the very subject swer the question. I would overrule the ob­ PELLING TESTIMONY AND PRODUCTION OF IN• matter of your inquiry. jections to it. FORMATION FROM HANCHO C. KIM As you know, there has already been a Mr. BARNETT. Congressman Preyer, can I The United States House of Representatives trial. Sang Keun Kim has testified that he say something? Committee on the Standards of Official Con­ gave Mr. Kim certain sums in 1974 and 1975, Mr. PREYER. Sure. duct, having made written application pur­ and in connection with that trial also is Mr. Mr. BARNETT. It seems to me that Tom suant to Title 18, United States Code, Sec­ Kim's denial that he received any money is playing games with us, and I think that tions 6002 and 6005, for an order conferring from Sang Keun Kim in 1974 and 1975, his is unfortunate. We had an understanding up front that Mr. Kim would answer everything immunity upon Hancho C. Kim (the "Wit­ denial under oath before a grand jury, and ness") and compelling him to testify and Mr. Kim was convicted of perjury with re­ possible, but that when the trials were pend­ spect to his denial, and conspiracy with re­ ing, as one of them still is, it would put him provide other information before it in any in an intolerable position to answer certain proceeding held pursuant to the authority of spect to his receipt of the money. In light of that, and because of the pend­ questions. We have offered and I think have H. Res. 252, 95th Cong., 1st Sess., a.nd the been as forthcoming as possible in answering Court finding that all procedures specified by ing tax case against him for the receipt of the very money in question, I request him any questions about contacts with the U.S. Section 6005 have been duly followed, it is officials or U.S. Congressmen, and in fact, hereby this 13th day of October, 1977, concerning that at this time. The tax case is pending in Baltimore. No trial date has been strangely, when Tom restated what he was Ordered that the said Witness in accord­ interested in a moment ago, he said he is ance with the provisions of Title 18, United set, but I am hopeful that the matter can be tried within a reasonable period of time. interested in what happened to the money, States Code, Sections 6002 and 6005, shall not not where the money came from or where be excused from testifying or providing other We have previously indicated to the com­ mittee that we have no objection to answer­ it was received. information in any proceeding of the afore­ We also have been willing to answer any­ said Committee held pursuant to the author­ ing any questions concerning Mr. Kim's con­ tact with any Member of Congress or any thing about any payments, and I think have ity of H. Res. 252, 95th Cong., 1st Sess., on done so. the ground that the testimony or other infor­ American Government official, but when you get down to the specific question of the re­ It puts Mr. Kim in an intolerable position mation sought may tend to incriminate him; to be asked this question, and it is clear that and ceipt of this money, which he has previously denied, and he has denied under oath, and he we were brought up here simply for the pur­ It is further ordered that the said Witness pose of putting him in an intolerable situa­ appear in accordance with any duly author­ has been convicted of, I question whether or not it is really a proper inquiry at .this time. tion, because that was the first question out ized Committee subpoena. and testify and of the interrogator's mouth. I think that if provide such other information that is sought We don't wish to obstruct the committee in pursuit of information, but really for all you would not reconsider your ruling, we with respect to the matters under inquiry would ask for the opportunity to appear be­ and investigation by said Committee· and intents and purposes, that matter has been laid to rest. fore the full committee, and argue to the It is further ordered that no testi~ony or Mr. FoRTUIN. I don't understand how when committee as I understand we have the right other information compelled under this he got convicted for having denied receiving to do that at this time that question is both Order (or any information directly or in­ the money before that lays it to rest. It seelllS unnecessary and inappropriate, and that is directly derived from such testimony or to me it is to the contrary. It hasn't been with all due respect to you and the ruling other information) may be used against the laid to rest at all. We don't know where the you have made. But I am sure you under­ Witness in any criminal case, except a prose­ money came from or what happened to it stand the position we are put in. cution for perjury, giving a false statement, from this witness. Mr. PREYER. Surely. or failing to comply with this Order. Mr. PovrcH. No. You have a witness who Mr. FORTUIN. Let me respond to that, be­ WILLIAM B. BRYANT, has testified to the very specifics with re­ cause you accused me of playing games with Chief Judge. spect to these transactions and this money, you and in a way I think that is completely and the jury found that the Government unfair. We reached an agreement prior to the APPENDIX VIII had established those matters, I assume be­ first trial which is different from what you [House of Representatives Hearings Before yond a reasonable doubt, and convicted him. state, Mr. Barnett. It was the following, that the Committee on Standards of Official Con­ If the committee is saying that they are not we would not go into certain areas that the duct--Korean Investigation-Deposition of satisfied with that--- witness claimed to have certain problems if Hancho C. Kim] Mr. FORTUIN. No, we are not saying any­ we could be satisfied by the witness' testi­ mony in other areas that we did not have to KOREAN INVESTIGATION thing. We want to know from this witness what he did with the money, that is all. go into them. In other words, if we were sat­ HOUSE OF REPRESENTATIVES, Mr. PovrcH. This witness has denied re­ isfied that the witness was being candid and COMMITTEE ON STANDARDS OF ceiving the money. He denied under oath. upfront with us in discussing his dealings OFFICIAL CONDUCT, He still denies receiving the money. The with members of Congress, we would not go Washington, D.C., May 15, 1978. conviction doesn't change matters any. If it into that until the trial was concluded. The parties to the deposition met at 10 :05 changed matters, I would be very happy to Mr. BARNETT. The trials were concluded. a.m., in room 443, Cannon House Office come in at this stage and say all right, in Mr. FORTUIN. I don't know whether it is Building. the normal case, in a criminal case, where a trial or trials. Present: Representative Richardson person is convicted you say okay, we have Mr. BARNETT. I think John Nields will re­ Preyer. been convicted, I am now willing to tell you member. Also present: Thomas M. Fortuin, Counsel; everything that happened, but in this case Mr. FoRTUIN. John Nields and I, whatever, Jeffrey Harris, Deputy Chief Counsel; and the conviction does not change this witness' we have gone over this testimony. We have David Pavich and Robert Barnett, Counsel testimony. He still denies ever receiving the had this witness here on, I believe, four occa­ to witness. money. sions and we are not frankly satisfied by his Mr. PREYER. Mr. Kim, will you be sworn? Mr. FORTUIN. He hasn't denied anything. testimony, and Mr. Nields and I and Mr. Do you solemnly swear the evidence you He is going to have to deny that on the Harris having discussed it have decided that will give before this committee will be the record and under oath. we could not be satisfied with the witness' truth, the whole truth, and nothing but the Mr. PovicH. The problem is that you are testimony, that his testimony is not satis­ truth, so help you God? inquiring into the very matters of the pend­ factory in that area, and it has always been Mr. KIM. I do. ing tax case. If you want to ask him the very the understanding that we had every rig~t Mr. PREYER. Thank you, Mr. Kim. question that he was asked before the grand at any time to inquire of the witness in any Mr. FORTUIN. The record should reflect the jury, did you receive any money, which is area if we were not satisfied with the testi­ continued testimony of Hancho C. Kim, pur­ essentially what this is, and he says no, and mony that he gave. suant to the order of immunity previously he has now been convicted of it, his answer Frankly, we are not satisfied with his testi­ identified for the record. is the same. mony. We have always had the right to ask Mr. Kim, did there come a time when you Mr. FORTUIN. Let's get his answer then. these questions, and at your request, we have received some money from Yim Sang Keun? Mr. PovicH. I think that he is in an in­ foreborne until the critical trial which is the Mr. KIM. Would you kindly raise that ques­ tolerable situation. He has a pending tax first trial, is over, and we don't believe that tion again, please? case against him concerning this money. He we can forebear any longer. Mr. FORTUIN. Yes. has just been convicted of answering the There is testimony before the cominittee in Did there come a time when you received very same question that you have already public that the man received $600,000 1n some money from Kim Sang Keun? asked. You may want to put it on the rec- cash with the understanding that he would 29592 CONGRESSIONAL RECORD-HOUSE September 15, 1978 distribute it to politicians, principally mem­ Mr. PovxcH. That there was a plan that Mr. FoRTUIN. And the witness has been eva­ bers of Congress, and I just don't see how was never carried out? sive, nonresponsive on each and every o·c­ we can responsibly leave that testimony on Mr. HARRIS. Let's assume, for example, that casion. the state of this record without inquiring the evidence was that some officials of the Mr. PovrcH. That remark, I think, is in­ of this witness if he got that money and if he Korean Government said the money would appropriate: The record will s:i:ieak for itself. did get it, what he did with it, and what his be sent and it never was. We would be in­ Mr. HARRIS. Let me just put a procedural understanding was of what he was to do with terested to know that also, and that is of matter on the record so we are clear about lt when he got it. It seems to me that is Importance to us. Basically what I am say­ what is happening here because I think there very simple. ing, what I am trying to do is demonstrate is some confusion. The procedure here is that Mr. PovrcH. You have asked him about the to you that our interest is very broad in this the witness will either answer or refuse to payments of money to congressmen, and we matter and that these are matters that i!ore of answer. What happens before the full com­ have permitted him to answer in those areas, critical importance to us. We have interests mittee is an appeal. It is not an argument and he has answered fully and you have the beyond the question of whether he actually de novo on the contempt. The contempt is benefit of your entire Investigation, and there ever delivered money to members of Con­ committed here this morning by the refusal. has never been any questions as far I know gress. Of course, we are interested in that If the committee does not agree with your by the committee or by the U.S. attorney as well. position when you a.rgue before it, the com­ which has equally Investigated this matter Mr. PoVICH. But these questions essentially mittee does not agree with your argument, that he has ever paid any congressman any have already been asked a.nd answered, and the contempt has already been committed, money. what you are saying is that you want him to and at that point you do not have the op­ Mr. FORTUIN. That is what we are trying to reanswer them again. portunity to purge, and I think we ought to ftnd out. Mr. FoRTUIN. No, no, we want him to answer be very clear about that because I think Mr. PovicH. You know you can always say them truthfully. He has answered them there may be some confusion. you are trying to find that out. There comes falsely. Now we want him to answer them Mr. BARNETT. Judge Preyer, Mr. Kim does a time when somebody has to be satisfied as truthfully. That is pretty simple it seems to not refuse to answer nor does he decline to the U.S. attorney was in open court when he me. answer. We ask that you allow us to argue said we are satisfied he didn't pay any money, Mr. PovrcH. That is not true at all. to the committee as to our basis for his ob­ he must have put In his pocket. Mr. FoRTUIN. We would like the truth. jection to the question. Now If you have some information at all Mr. PovrcH. That is not true at all. You are Mr. PREYER. I think you can argue that that any congressman received any money simply saying that you want him in the pos­ point to the committee, but for the purpose from this man, then I am perfectly happy to ture again of being prosecuted again for the of the record here, I think the Chair would say that his denials of that may not be sat­ very same matters which he has previously have to rule that the witness has declined to isfactory to the committee, but I really ques­ testified to. If in fact the earlier testimony answer the question or refused to answer the tion whether or not the committee In fact is true, it is not going to change. You want question, and the matter ls referred to the has any information from congressmen or to prosecute him again for it. He has already full committee to determine whether or not anyone else other than s. K. Kim, and that been prosecuted once. the witness should be held in contempt of Information is second or thlrdhand at most What I tried to do is avoid this statement. Congress. that this person was supposed to have give~ What I tried to do was to have you question Does that put it In the proper parliamen­ or did in fact give any money to any con­ the witness to matters that he could answer, tary-- gressman. which related to his contact with congress­ Mr. FoRTUIN. I think you should direct the Mr. HARRIS. Mr. Povich, one of the other men and the Congress of the United States wl tness to answer the question and we should areas that the U.S. attorney ls not Investl­ and government officials, which I thought was have his refusal on the record and then you gatln~ and that this committee has been the very core of the committee's inquiry. should find that his refusal ls contemptuous specifically mandated to Investigate by the When you get now into other areas which here and then in essence the committee Congress ls not only the question of whether he has previously answered for which he has either decides to back you up and go along Mr. Kim gave money to any congressman been the subject of criminal trial for perjury with the proceeding or it doesn't, but it but whether any Korean Government offictai and which he has been convicted essentially seems to me the contempt is committed here directed him to or conceived or planned to you are putting him nothing more than back and now. pay Members of Congress, and this com­ in the position of restating this very same Mr. BARNETT. Judge Preyer, I think it is in mittee would be Interested to know, for position, which is his position, and then say­ no one's Interest to force a contempt of Con­ example, the money that was given to an ing okay, now we will go ahead and prosecute gress. I would ask that we be allowed to a.p­ him again for perjury and I think that that pear before the committee and make our Individual, and that Individual was supposed is an intolerable position to place this Wit­ argument before we all get ourselves in a to pass it on to Members of Congress. ness in. situation from which no one can return. Whether he did or did not ls a senarate Under the circumstances, I have to join Mr. FoRTUIN. The record should be clear question, but both questions are of interest With Mr. Barnett and most respectfully ask, that Mr.-- to the committee, and hence your argument Judge Preyer, that the committee consider that you just made I think falls short of Mr. BARNETT. And I think the chairman our complete inquiry. this. would be pleased to allow us that procedure Mr. PREYER. As you and Mr. Barnett have if asked, and I think probably the ra.nking We are not only Interested In what in fact indicated, you do have the right to appeal minority member would agree to that pro­ the witness may have done with the money, this to the full committee. I take it that the cedure, given what is clearly a misunder­ but what he was directed to do with ft if he witness will decline to answer the question. standing about an understanding agreement got it, who directed him, and what his For the sake of appealing it to the full com­ that has been reached here, in an unfortu­ understanding was of the purpose of the mittee, I think we should get this declina­ nate situation in a pretrial context. So I transfer to him. tion on the report. Now whether he carried out that purpose would ask, Judge, that we proceed to the Is a separate question. Mr. PovicH. Yes, I think we can state that committee without forcing the issue. Mr. PoVIcH. Are you saying now you are the witness does not wish to do so until the Mr. FoRTUIN. Judge, the record should be matter is considered by the full committee. clear that all the objections that were raised limiting your inquiry as to whether-- here today were previously raised at a hes.r­ Mr. HARRIS. What I am saying, au I am Mr. FORTUIN. Not until Mr. Povich-the saying ls that-- witness must answer the question now or re­ ing before. Mr. Flynt and Mr. Spence. Briefs fuse to answer the question. If he refuses to were submitted. We submitted a brier. Mr. Mr. PovxcH. Because those questions have Povlch and Mr. Barnett submitted a reply been answered as wen. answer the question, that conduct is con­ temptuous. brief. We had an oral argument going on for Mr. HARRIS. What I am saying is that until Mr. BARNETT. No. an hour and the very same objections that we get past the question of whether he re­ they are now making were overruled. Mr. FORTUIN. Wait a minute, Mr. Barnett, ceived the money, the other questions which Mr. PoVIcH. Right, but the record should are of critical importance to us, namely, let's get it straight. He cannot then purge that contempt after the committee makes a also reflect that In light of all that, this what was the purpose of the receipt of the question was not asked. This question was money, what was he supposed to do with ruling in the other direction. The ruling here is the ruling. not asked. We have been here four or five It, things of that nature, don't arise. times, I don't know, Judge Preyer, but each Mr. PovrcH. Right. In other words, you are Mr. BARNETT. He has not refused to answer .time we have tried to give you the informa­ saying that unless there was receipt of the the question. Let's be cle.ar. We have asked tion without answering the very same ques­ money, then In fact there is no further need for the right to argue to the full committee tion or without being asked and being re­ to inquire into the rest. our objection to the question, and then he quired to answer the very same question for will decide whether to refuse to answer based which this person was just convicted of an­ Mr. HARRIS. Well, If he didn't receive the upon the ruling. of the committee. We do not money or If there was no agreement to re­ swering, so the posture ls a little different wish to put him in contempt. I think we than to say that the matter has been fully ceive money-what I am saying ls that the have tried to avoid doing that. receipt of the money In one sense is a pred­ argued and heard. icate for the other questions. However, even Mr. PovicH. We have been here four times It was fully argued and it was fully heard, 1f he didn't receive It, let's assume there in an attempt to avoid that. and In light of that argument, and in light was a plan which was never carried out, that Mr. BARNETT. Five. of those hearings and after consideration by would be of interest to us also. Mr. POVICB. Five. the committee and its chairman and the September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29593 ranking minority members, the questions Mr. FoRTUIN. Mr. Kim, do you recall the [Whereupon, at 10:50 a.m., the committee weren't asked, and now they are, and we question? was adjourned.) simply urge most respectfully that before the Mr. PovzcH. I believe the question was, did question is asked and this person be ordered you receive any money from Sang Keun APPENDIX IX to answer, that the matter be taken before Kim? EXECUTIVE SESSION-PENDING BUSINESS the committee which hea.rcl it before. Mr. FoRTUIN. That ls correct. Mr. BARNETT. Judge, if this man answers Mr. Pov1cH. Do you recall the question? HOUSE OF REPRESENTATIVES, the question yes, he ls potentially subject to Mr. KIM. Yes, I do. COMMITTEE ON STANDARDS a serious tax llablllty. He ls given the leaks Mr. FORTUIN. What ls your answer? OF OFFICIAL CONDUCT, that have come out of the committee about Mr. PovzcH. The answer I would make for Washington, D.C., May 17, 1978. this man before which I am sure you are the witness ls the answer which I have just The committee met in executive session at familiar with also subject to basically re­ given to Judge Preyer. We don't decline. We 6:25 p.m., ln room 2360, Rayburn House Office .moving his right to appeal his previous con­ don't refuse. In essence, we are mute until Building, Hon. John J. Flynt, Jr. (chair­ viction, because as Justice Frankfurter once such time as we have the advice of the full man of the committee) presiding. said, judges read the newspapers. If he says .committee, the chairman and the ranking Present: Representatives Flynt, Bennett, no, he ls subject to perjury, another perjury minority member. we make that request most Hamilton, Preyer, Flowers, Spence, Quillen, charge on the same grounds as to which he respectfully in every attempt not to be con­ Fenwick, and Caputo. has already been convicted, and if he says temptuous of this committee, to resolve what Also present: Jeffrey Harris, Thomas M. no, I suppose he ls also subject to contempt we think ls a very, very difficult problem, Fortuln, John W. Nlelds, Jr., professional staff of Congress proceedings, so he ls in an in­ one which we have fought with for a long members; John M. Swanner, statr director; tolerable situation, and I think we all under­ time, and we most respectfully request that David Belkin, Barbara Rowan, Martha Talley, stand that, and we ought to find a way to the matter be brought to the chairman's at­ committee counsel; Robert Bermingham, in­ bring it before the committee and let the tention and that he advise us to what the vestigator; Peter White, deputy special coun­ committee decide how to proceed. committee's ruling ls. sel; and Leon Jaworski, special counsel to Mr. PREYER. I think it ls for the committee .Mr. BARNETr. And we ask for the opportu­ the committee . to decide how to proceed and to determine nity to appear before the committee on behalf Mr. NIELDS. While Kim Dong Jo ls not in if they wish to make any sort of accommo­ of Mr.Kim. the country, Hancho Kim ls, who was given dations, but I think the role of the Chair Mr. PREYER. The Chair rules that the wit­ $600,000 by the KCIA to pass on to congress­ here would not be to make that accommoda­ ness has refused to answer the question, and men. Until this point in time he has denied tion or that decision. My role would be lim­ that his refusal ls contemptuous. receiving the money. He ls convicted of per­ ited to directing him to answer the ques­ The matter ls referred to the full com­ jury and ls to be sentenced on Friday. Heap­ tion, and then if he refuses, to send the mittee on appeal from that ruling, and the peared before Judge Preyer earlier this week whole matter to the full committee. Let them witness and counsel are requested to appear and again refused to answer the question resolve the various questions involved. As a before the full committee and permission to and, as I understand, Judge Preyer directed matter of procedure, I think that ls the role argue their position ls granted. him and his attorney to appear before t.hls of the Chair here. The deposition will recess at this time. committee today to argue the question of Mr. BARNETT. Judge, for the reason that Mr. FORTUIN. Judge, before we adjourn-­ whether he should be held in contempt. I Kim articulated his refusal to answer would Mr. ·BARNETT. I think you shouldn't have think Judge Preyer already held him In con­ put him in an irrevocable sltu!ltlon. That ls a live phone there. Why don't you handle tempt. Rather than argue with the commit­ why I have asked that you refer it to the that and then hang it up? It ls probably the tee, we should refer the thing to the House. committee which ls your prerogative with­ Washington Post. Mr. Fortuln, I believe, was the person who out directing him to answer and putting an Mr. FoRTUIN. My understanding is that the handled it and wm handle it from here on. answer on the record. I think the Chair does committee is meeting at 5:30 on Wednesday, Mr. FoRTUIN. The objections this witness not want to put himself in the position, and I would think that the subpoena should raises were raised when he first appea.red allow me to say I don't think you want to be adjourned for further proceedings at that before the committee on November 17 of Last put yourself in the position, of in effect de­ time and that counsel should be directed year. Mr. Spence sat and heard those as did ciding this question alone, which ls what you to make any submissions in a written form Chairman Flyrut, and they had an oral argu­ would do if you direct him to answer. that they intend to make prior to that date, ment lasting an hour. They submitted briefs; We would like to have the opportunity to and to appear at 5.30 this Wednesday. we submitted an answering brief, and they make our argument to the committee. If we Mr. PoVIcH. It ls impossible for me to do submitted a reply brief so the arguments lose, then we will all decide how to proceed, that. I wlll tell you why. I am involved now have been extensively argued in the past, so but your directing him to answer will in in trying to prepare by that time, believe it it would seem to me that although they have effect decide the question. or not, from the end of today to Wednesday, asked to be heard, I think maybe you should Mr. PREYER. The Chair thinks the way to a presentence memorandum for the court in hear them, but I don't think it would be . bring it to the committee procedurally is to connection with this trial, and I simply have inappropriate to perhaps impose a time llmi­ direct him to answer, and I have no doubt not got time to do another one for the com­ tation on how long you want to hear them the committee would have full power to make mittee, and I most respectfully request that and how much argument you have on th!B any sort of accommodations that it sees fit our appearance before the committee be matter because it has been extensively to meet the kind of objections you are scheduled some other time after the sen­ briefed and both the Chairman and Mr. raising. tencing, which ls Friday. Spence have ruled in a written opinion. Mr. BARNETT. Could we take a brief Mr. FoRTUIN. Mr. Povlch, you have asked which we have attached as appendix 3 to the adjournment? for a request to bring something to the com­ report that we have submitted to you, which Mr. PREYER. Surely. mittee's attention. I don;t know how many ls the order of Chairman Flynt and Mr. [Recess.) lawyers you have over there, but I am sure Spence in which he discusses the various Mr. PovzcH. We would like to renew our that you can find some way to do it in that claims that have already been raised. TheJ request that the full committee and the period of time. have had an oppoctunlty to be hea.rd before chairman and the ranking minority mem­ Mr. POVICH. I am doing it, Mr. Fortuln. I the committee. ber consider the situation we are in. We mean the number of lawyers has nothing to Mr. NIELDs. And they are here now. don't wish to be in contempt of the commit­ do with it. I am doing it. I am the only one Mr. BENNETr. Let's have them in. tee. We have appeared on four occasions, in that really knows enough about this case Mr. PREYER. I might state I didn't honor an effort not to be in contempt and give to write it. It would take more time for me that appeal just to give us som~thlng more the committee the information which It has to explain it to some associate and have them to do. They have the right to appeal here requested. However, we are in an extremely do it than if I sat down and tried to do it from my ruling. Is that right? dlmcult position which we would like to myself. The number of lawyers has nothing Mr. FoRTUIN. I am frankly not completely argue to the committee, and the witness to do with It. I am the one that has to write clear on it. They certainly have the right t.o does not decline to answer. He doesn't re­ it. I am the one that has to think about it. make the request and it seems to me we fuse to answer. He simply at this point, I am the one that ls responsible for it. I granted the request. we wish to really stand mute until such time can't delegate that to anybody else. Mr. NIELDs. Nothing can happen without as the committee can consider the situa­ The matter is sufficiently important for me a vote of the committee and the vote of the tion. If the committee then does consider it, to handle it. I have handled this case for committee ls in a sense an a-ppeal and they then we will come back and either have to some time. I don't at this point plan on want to appear before the committee and ar­ answer or decline or refuse to do so. dumping it on someone else. gue it should not vote. Mr. PREYER. Procedurally the Chair feels Mr. PREYER. Ordinarily the Chair would be Mr. BENNETT. I think there ls a value in that it must rule that the witness either very sympathetic to that sort of request, but holding in contempt because they were in answer or refuse to answer, and that l! he in view of the sentencing tha-t ls set for Fri­ contempt. Is there something else to be refuses to answer, that his refus!ll would be day, it would appear to be important to pro­ gained? contemptuous and the matter would be re­ ceed with this matter before then, so the Mr. NIELDS. Very much so. He has simply ferred on appeal to the full committee. Chair will adjourn the matter until 5:30 refused to answer our questions. I suggest you formally ask htm the Wednesday before the full committee. I wm Mr. FoaTUIN. We want t.o know what he question. leave it at that. did with the '800,000. 29594 CONGRESSIONAL RECORD-HOUSE September 15, 1978 Mr. FLYNT. I introduce you to the commit­ fore you decide this matter. The commit­ face left and Hancho Kim seems to be put tee, Mr. Barnett and Mr. Povich. tee has it. I am certain we can get it made in this unfortunate position of not only STATEMENTS OF ROBERT BARNETT AND DAVID available to you very quickly if you haven't being convicted, not only facing a sentence, POVICH, COUNSEL FOR HAN~HO KIM read it. not only maybe having his appeal rights un­ Mr. BARNETr. Thank you, Mr. Chairman. I will not argue those points tonight. I dercut, maybe not only having his second Mr. Chairman, if it is all right, I would like will simply argue the substantive problem trial prejudiced, but he is now here tonight to proceed initially and Mr. Povich will have that we are faced with in the time frame at a quarter to nine after 6 months, and I a few comments too, if that is all right. we which we come before you. think is going to get the wrath of the will be very brief and to the point. Comm! ttee counsel asks Mr. Kim a ques­ Congress dumped on him. I think it is par­ Mr. FLYNT. You may proceed as you see flt. tion. I can't repeat it verbatim, but the ticularly unfortunate because there is a way Mr. BARNETT. May I say at the outset that sense of it was, "Did there come a time out of all this and there is a way to deal I am grateful for the opportunity that the when you received money from S. K. Kim?" with it, and I will mention that and then I committee and the chairman have given us Mr. Hancho Kim, as I say, did not answer will leave because I know you have time to be here tonight. I will say that this com­ that question. problems. mittee has always been very courteous to my If he answers the question at this time, It seems to me we could proceed the way law firm and particularly to me. I have been he will suffer irreparable injury in the con­ we have been proceeding for the past 6 here before and I am grateful for the oppor­ text in which we come before you. If he an­ months. That is, ask Hancho Kim anything tunity to be here again. swers "Yes, I received the money," he ob­ you want about whether he intluenced con­ I have great respect for the committee and viously will under oath have contradictory gressmen, whether he bribed congressmen, for its goals and I wish to come before the sworn testimony. If he answers the ques­ whether he bought gifts for congressmen, committee today with a particular problem tion, "Yes," there is a high likelihood it will whether he threatened congressmen, whether and as briefly as possible explain to you what prejudice the appeal. There is an even he improperly sought to intluence congress­ it is. higher likelihood which I will get to in a men, but leave the area that is the subject We represent, as the Chairman said, Mr. moment, that will prejudice his sentencing of both his current conviction and his pend­ Hancho Kim, who is an American citizen cur­ on Friday. If he answers the question no, he ing trial alone until that is completed. Then rently standing convicted, as I am sure you ls certainly arguably guilty of perjury again everyone can make an intelligent and un­ all know, of conspiracy and perjury in the because that is the very question that he pressured decision as to whether to answer United States District Court. He has been was convicted of perjury for. that question or not answer the question, before this committee, members of the com­ It is phrased differently, but it ts the with full knowledge that if you don't answer same question . the question, the consequences follow. mittee, members of the staff, ~m several occa­ sions. He has also been before the Senate He is in an impossible situation at this I ask you to let us over until next week, Ethics Committee, has testified, and has been time and he is particularly in an impossible and by that I don't mean let us escape. By released from his obligations there. Although situation because-and I feel very badly say­ that I do.n't mean give us some great deal. he is convicted of these crimes that I men­ ing this, but I am going to candidly and By that I don't mean let us go home to tion, I think it is important to put one fa.ct honestly say I think some people are trying Korea-he is an American citizen; he ls not on the record and it is a fact that has been to influence the judicial process in this way. going there anyway. By that I don't mean acknowledged by the U.S. attorney and that rt is not any of you, but I think it is your let the man wash out and be set free. is that there is no evidence that we are aware staff; it may be some members, but I think But all I ask is that you not in this con­ of, that he is aware of, and I venture that unfortunately there is a misguided attempt text, at this time, cause this problem for you are aware of, that he has bribed, de­ here to intluence the ongoing judicial process. this man. Let us have the sentencing on frauded, threatened or in any way compro­ Let me ten you what I mean. The judge Friday; let the judge decide unimpaired by mised the Congress of the United States or has not asked Hancho Kim, "Did you re­ a recommendation or an intluence or report a member of the Congress of the United ceive the money from S. K. Kim?" The pro­ or anything from this committee as to what States. That was admitted in open court by bation officer has not asked Hancho Kim the consequences are of Hancho Kim's act, the U.S. attorney. "Did you receive the money from s. K'. and he is prepared to accept those, and what We come before you today with two prob­ Kim?" But this committee has asked it and the consequences are of his conviction. lems; one, a t ime problem, and, second, a I believe, if you will question your staff, it I would say that it is a reasonable request substantive problem. We have asked Con­ is with the full expectation that they will I make. I would say it is a request that will gressman Preyer to allow us to come here then go to the judge and say, "The man is not subject this committee to criticism. I today and · we have asked the Chairman to now admitting his crime, so go hard on would say it is not a request that would allow us to appear and argue briefly and him" or "The man is being uncooperative, make people be able to say, "This committee you have allowed us to do that and that 1s so go hard on him." has cut a deal," or "Let the man off easy" or why we are here. "Let the man escape." Don't get me wrong. I am not saying this I say it is a request that will allow people I am sure you know the background. Mr. committee doesn't have the pP-rfect right, to say this committee had some compassion Kim was asked a question; he did not an­ if asked by the judge sua sponte on its own for this man, who is a compassionate figure swer the question; we asked for the oppor­ to go before the judge and make a renresen­ at this time, and still allow this committee tunity to come here. Mr. Preyer was presid­ tation as to Hancho Kim's cooperativeness or to proceed with its very important goals and ing at the time. noncooperativeness. I understand you have needs after we get past the crunch period The time problem is this: Mr. Kim ts done that before and you wm probably do of this sentencing and this second trial. being sentenced on Friday, sentenced for it again. I just dislike, and I really fael badly I say again, I am grateful for your listen­ the convictions I have mentiond, for per­ about and resent the fact that I think we ing to me. I ask you, please, to read the ar­ jury and for conspiracy. On Friday a judge are here tonight at a quarter ~o nine, after gument we have made on the legal points. I of the United States wm possibly take away 6 months of possibility of asking this ques­ am not going to argue those because I know his freedom, possibly for an extended period tion, 6 months of possibility of coming be­ you are busy, and, please consider whether of time. We hope not. We wlll do everything fore a judgment on this issue. in an attempt to intluence that process. we might not be allowed to answer any we can to prevent it, but the reality is that question you want. And what I see as the is a possib111ty on Friday. I think we have a great system and I critical area, the contact with congressmen There is also an appeal pending. As a think you all believe in it or you wouldn't and leave the other area until a point wher~ technical matter, I guess it isn't pending be here. It separates the Judicial from the it won't so significantly prejudice the man's until sentence is pronounced, but you know legislative from the executive. Traditionally criminal proceeding, judicial proceeding. we will be appealing and there will be an the judicial does its job and the legislative I will be happy to answer any questions appeal from this conviction. We think there does its job. There is often an overlap of and I thank you for listening to me. are valid and important grounds we will functions and that is the genius of the sys­ Mr. FLYNT. Are there any questions? raise. tem of checks and balances. Mr. Povich, have you any statement? There ts also a third time factor. There But I feel this is in an improper way, that Mr. PoVIcH. I have nothing. is stm another indictment pending against this is a very improper way for the congres­ sional branch, the legislative branch, to im­ Mr. FoaTUIN. There has been an indication Mr. Kim, in this case against Mr. Kim and here that we are attempting to affect the his wife, a tax case involving, as you prob­ pose itself on the ongoing judicial process. Let the man be sentenced. If he has done judiciary in some way. We very frankly are. ably all know-and I apologize if I am tell­ something wrong and has been convicted We think the judge should know on Friday ing you things you already know-involving and the judge wants to dump on him, let if this man has been contemptuous to the the very money whioh was the subject of the him dump on him, but don't help. Hancho Congress and has refused to answer a ver;y first conviction and is the reason we are Kim has, unfortunately, become the Korean simple question and that is "did you get here tonight. punching bag. He ts not a sympathetic figure, any money from operatives of the KCIA and We would like tonight to reasst!rt the I recognize that, and I recognize that noth­ if you did, with what understanding, and argument that Mr. Spence and Mr. Flynt ing was done to Tongsun Park-through no what did you do with it?" have been kind enough to hear from us once fault of your own, may I say-and nothing It is very clear evidence that the man re­ before. was done to S. K. Kim and there again there ceived $600,000. We want to know if he did, We would ask the members of the com­ may have been a very valid, legislative reason what he did with it. He suggested that he mittee to please read our written brief be- but Hancho Kim seems to be the only Korean would be prejudiced if he answered that September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29595 question before the committee. That ls friv­ proceeding. It ls our hope that no untoward Mr. BARNETT. I am asking you to please let olous. He has been granted immunity; the consequences would result to the witness. us confront the question, answer It or not proceedings are In executive session. Mr. FLYNT. Let me clear up one thing. This answer it, answer It one way or the other way I know of nothing to date that has oc­ committee has no powers to vote contempt after the sentencing on Friday and after the curred with respect to this man that has proceedings. All we can do ls recommend to tax case which will hopefully be disposed of leaked, and If anything did leak, the de­ the House. fairly soon, if I am not Incorrect. I am not fendant would have an application he could Mr. FoRTUIN. That ls correct. asking you to wait until after the appeal. make In the District Court to adequately pro­ Mr. FLYNT. There is no way that could Mrs. FENWICK. After the tax case might be tect him. come up before Friday. There ls no way on any time. I think we have adequately protected him earth that it could under the ruies of the I am not a lawyer, obviously, but common and the Idea that his appeal would be hurt House. sense just tells me that we have got to find in any way or that his sentencing would be Mr. FoRTUIN. But the committee could out some things, We are not Interested In hurt In any way if he truthfully answered adopt a resolution that it would not refer the putting Mr. Hancho Kim in jail. We want to the question is frivolous. It would not occur. matter for a contempt proceeding if the wit­ know what ls going on with members of The problem the witness faces that Mr. ness purged his contempt tomorrow. If he did Congress. It is important to know whether Barnett alludes to simply ls no problem. If not do that, the committee would proceed. or not this money came directly from the he truthfully answers the question he has Mr. FLYNT. The committee could or could Korean Government for a specific purpose to no problem. That cannot be used against not do a lot of things. I don't think it is a Mr. Hancho Kim and whether or not he him in any fashion In any criminal proceed­ question of what the committee could do, received that money and handed it out to ing; it could not be the cause of contempt; but what the committee would do. members of Congress. it could not even be used in the sentencing Mr. FoRTUIN. In that way, hopefully, a Mr. BARNETT. Mrs. Fenwick, I respectfully proceeding in my understanding of the law. contempt proceeding would be avoided, and say I agree with you, with a caveat. It seems His only problem ls If he refuses to answer the witness would be afforded the ooportu­ to me at this time, given the balancing you the question and that ls what he has done. nlty to testify. It would only be if, after the must do when we leave this room, that ls He has answered a very simple type question ruling tonight by the committee, the witness satisfied by asking him-and I hope you come or has been asked to. We have to have the continued to refuse to answer the question to the deposition and ask him the very answers now. The time ls coming as to when that was put to him that a contempt pro­ question, who did he give money to, when the man has to make his decision on co­ ceeding would eventuate: so that we are did he give money, what did he do In Korea, operating or whether he ls going to continue hoping there would be no such proceeding, who did he pay, who did he bribe, who did to conceal as what appears to be an agent but that ls up to the witness and his attor­ he have over to dinner, who did he give of the Korean Central Intelligence Agency. neys. gifts to, who does he know personally, what This ls a tremendous amount of money Mr. BARNETT. This ls very interesting be­ has he done, has he asked people to put he took with the understanding he would cause Mr. Fortuln has already made a judg­ things in the record. influence congressmen. Whether he did or ment on what is a truthful answer. You He wm answer that, but I hope you wlll did not ls the reason we have the inquiry. notice what was said there. He has already understand he ls only-asking you to not The suggestion there ls a time problem we judged that if the man said, "No, I did not--" inquire in the very narrow area of receipt have created I think ls again completely un­ that ls an untruthful answer and that ls of money from S. K . Kim. Only because it fair. I called defense counsel over two weeks perjury. ls the very question that he was asked and ago and I told him we desired to bring this The judgment has already been made, what convicted of perjury for and it puts him in matter on before the sentencing so the judge an investigator's opinion ls of what the truth an incredible Catch 22 situation. could be informed. If the man was unco­ ls. I don't think that is his job. Mrs. FENWICK. If he ls already convicted of operative, that he was uncooperative. I got no Mr. FLYNT. Is that your interpretation of perjury on that particular question, what response. what you said? difference does it make to him to get Mr. FoRTUIN. No. If he answers the ques· Last week I asked you, Mr. Chairman, to tion, whatever his answer is, we are bound another? direct the witness to appear on Monday of Mr. BARNETI'. Mrs. Fenwick, it makes a lot this week because I was unable, after I would by it. His contempt is purged whether I be­ lieve it is truthful or false. All he has to do of difference to him. It makes a great dif­ say many phone calls, to get the counsel In is answer the question in any fashion. If it ference to him. this case to agree to a time convenient to is false, he later subjects himself to pen­ Mr. BENNETI'. Tell us why. them and convenient to us. It was only then Mr. BARNETI'. He ls convicted of another that you directed they appear and it was alties, but the contempt would be at an end and the contempt would be purged if he crime and maybe goes to jail for another 5 only for that reason that we are delayed as answers the question in any fashion whether years. far as we are. I think it ls absolutely com­ I believe it is true or I believe that it ls Mrs. FENWICK. It is the same old crime. pe111ngly important that we have the testi­ Mr. BARNETT. But he can be prosecuted for mony of this man and that we have it im­ false. Mr. BARNETI'. If he said, "No, I did not re­ a second oerjurv. mediately on the important issues that are ceive the money," they go to the judge and Mr. FLYNT. It ls the same generic crime raised. He is more than happy to make de­ but not the same offense. nials to us about issues that we cannot con­ say, "Look, he is unredeemed. He is still giv­ ing the same story." Mr. BENNETI'. Why doesn't he just tell the trovert, that we know nothing a.bout. truth? On the important issues relating to the If he answers the question "yes" It ls the other result. Mr. BARNETI'. Mr. Quie, you make a.n im­ money he refuses to answer any questions. It portant comment. You said, "That ls the seems to me that answer is contemptuous Mrs. FENWICK. Why doesn't he just tell the truth? important question." I would respectfully and the man should be held accountable. suggest that that ls not the important ques­ Mr. FLYNT. Do you want to respond to Mr. BARNETT. I think that ls precisely what we are after. tion. that? The important question ls whether your Mr. BARTLETI'. No, I think he has basically Mr. SPENCE. That was the question I wanted to ask. How would he be harmed If he colleagues were influenced, ought to be ln­ admitted the point I was ma.king, that it is fiunced or taken over by him and others and an attempt to influence the process. I would answered this question either way before Friday? were ready to come in here and tell you say he never called me or I never got any what you wanted, and we have tried, I think, message. Mr. BARNETT. Let's UJ,ke the two examples. He must answer the question either yes or no. on five occasions. Some of you had the un­ Mr. PoVICH. He called me. If he answers the question "yes, I received fortunate experience of sitting through some Mr. FLYNT. I have one question that I want the money," he has under oath acknowledged of those. to direct to Mr. Fortuin. the falsity of his statement and has contra­ I would suggest that--I recognize that 1s Is the purpose of this to seek to have the dictory testimony on the record. That is an important question, Mr. Qule, but, given judge impose a more severe sentence than number one. Number two, there ls a. likeli­ the possible ha.rm and given the balancing we he otherwise would? hood, although one does not like to say this, a·re asking you to do, it seems to me it ls a but things have leaked, as Mr. Flynt and Mr. question: At this time and under these pe­ Mr. FoRTUIN. No; buit I would say if the culiar circumstnces, that is not as critical. man were to be contemptuous and held In Spence well know, because we have been be­ contempt--a.nd my hope is he would not be, fore them on this, about this man from Mr. BENNETT. How can an Ethics Commit­ frankly. I would hope--.a.nd my suggestion to this committee. tee decide not to do something that is be­ the committee would be, Mr. Chairman, that No fault of yours, I recognize that. The fore it to do simply to make it easier for a they hold the witness in contempt, with the judges read the newspapers. The appeal is man who ls convicted of perjury not to pay understanding-and the committee has done severely prejudiced. the penalty that the law says he shall pay? this before-that if he purges his contempt Most importantly, the second case is stm I a.m not trying to do you in. I am just by answering the questions within the next pending, the tax case. That tax case concerns trying to understand what I am being asked 24 hours that the contempt would be of no precisely this issue. He a.gain has in effect to do. It looks like to me an Ethics Commit­ force and effect. waived his right to remsin silent, which is his tee would have no business in making it My hope ls, and I think it ls the commit­ constitutional right, on the precise issue for easier for a criminal to escape penalty. tee's hope that we would get the truthful which he is being tried. Mr. BARNE'IT. No, sir. Please don't misun­ testimony of this witness in that fashion. It Mr. CAPUTO. It seems to me the tax case derstand me. is our hQpe there would be no contempt and appeal goes way beyond Friday. Mr. BENNET!'. That is my impression. 29596 CONGRESSIONAL RECORD-HOUSE September 15, 1978 Mr. BARNETI'. That ts a result of my lnarttc­ show them to you. It has been in the paper, rupt any Congressmen and made any con­ ulateness. and I think several people are fammar with tribution to any Congressman, the offer of im Mr. BENNETI'. You are pretty a.rttculate. what has been in the paper. I wm show them muntty is withdrawn. Mr. Povtch, your client You have impressed me with this. to you. I am not accusing you of being sieves. goes to trial. Mr. BARNETT. I don't want to lose because I respect you too much for that. But I could, He did not testify. He denies he ever re­ I can explain my point. if you wish, submit for the record the things ceived the money. As I understand, your question is: Are we that have leaked about him and try to show That is the posture we are at now. He asking you to go easy on the man? you how they prejudiced him. has been through a terrible ordeal, as I have Mr. BENNETT. You are asking us to delay Mrs. FENWICK. From this committee? been with him, for the past year and a half. action so this man wm escape a penalty that Mr. BARNETT. Yes. The trial was horrendous. It was a net worth would otherwise be put upon him. Mr. FoRTUIN. I am not aware of any of that, tax case, essentially. They put in all the ex­ Mr. BARNETT. I am not asking that. I am absolutely none of it. penditures and said it must have come asking, do not influence the process with your Mrs. FENWICK. Maybe it leaked from the from S. K. Kim, because he had no other predicament, or very valid goal, or very valid Justice Department, but I am not aware of source of income. The jury convicted him of concern or punishment. Do not at this time anything that leaked from this committee. conspiracy and lying to the question, "Did influence that process, which I frankly ac­ Mr. BARNETT. I am not saying it came !rom you receive money from s. K. Kim," all of knowledge ts going to come down on his head. a 1nember sitting at this table or staff. I can this unexplained expenditures that he had. I ask, don't add to what the judge already show you the newspaper articles about oc­ I wanted to continue working with the has; don't influence---! feel in an improper currences in executive session of this com­ committee under the same basts as long as way-the ongoing judicial procedure. mittee when Mr. Hancho Kim was present, no we could talk in terms of corruption, of Mr. BENNETT. What ts improper? Justice Department employee or anybody fraud, of what you have done vis-a-vis the Mr. FLOWERS. You are asking us to believe e~e. · Congress, the Senate, the executive depart­ him when he says he didn't give any of this Mr. PovICH. Excuse me. I have listened long ment, fine. But I was not faced with a con­ money to Members of Congress, because we enough to make a statement and then I wm viction I wanted to appeal, I was faced With don't have a receipt of the money. leave you. a tax case concerning the money and I said. Mr. BARNETT. I missed the question. Mr. FLYNT. Mr. Povich. "Stay away from the money, and please stay Mr. FLowERs. You are asking us to believe Mr. PovicH. I think all the lawyers should away from the question, did you receive any him when he says he didn't give this money leave the room or talk some commonsense. money from s. K. Kim," because that is what to Members of Congress? Let me explain what the problem ls. precipitated the whole thing. Mr. BARNETT. Not if you have contradictory Hancho Kim, in late 1977, was under in­ Mr. Fortuin called and said they wanted evidence. You can impeach him up and down vestigation for this case. He was in Korea. to resume the question after the conviction, the road. When we learned that he was about to be and I said all right. we finally got around to Mr. FLOWERS. You are asking us not to ask indicted, we told him he should return, and it and Judge Preyer was present. I entered the question if he had the money to give to he did, and face trial. He was charged with into the meeting in good faith; I thought them. two counts and convicted of both. He did Mr. BARNETT. I am asking you not to ask we were going to continue wlth the type of not take the stand at the trial and didn't thing-I knew that Mr. Fortuln wanted to him the very narrow question of where that testify. Neither he nor his wife or any mem­ ask more questions. money came from. Ask him about all the ber of his family testifted. The first question out o! the box was, money in the world. Three witnesses were present~d, and he "Did you receive any money from S. K. Kim? Mr. FLOWERS. Which is the whole conspir­ was convicted. He was convicted on the ques­ It was the confrontation and the only rea­ acy theory. tion, when asked in a grand jury, "Did you Mr. QuxE. Could I ask a question on this son it was a confrontation on that day, 2 or receive any money from S. K. Kim in your 3 days ago, was because he was about ready thing? What ts the difference now if we home," and his answer to the grand jury was to be sentenced. dldn 't do anything untll after the two cases, no. The jury found he lied when he answered And the chairman's question really has the past case and the sentencing on Friday, that question. not been answered. I think. "Did you ask and then he perjures himself afterwards? We have met with this committee on sev­ that question so that we might have some Mr. BARNETT. No; you can recommend to eral occasions. We met under an informal influence on the sentencing," and I think the U.S. attorney that the man be prosecuted arrangement. The arrangement was we felt the question was asked for that purpose. I again, and you have a perfect right to do that we had information indicating that Hancho don't know how a judge would react to a if you believe that is perjurious. I think Mr. Kim had not corrupted or defrauded the letter or statement from this committee as Fortutn does. I hope you don't. U .s. Congress or any Member of Congress, to whether he did or did not. I have asked Mr. FLOWERS. What if the answer ts true? and we were perfectly w11ling and happy to Judge Flannery, "Do you want Mr. Kim to Mr. BARNETT. You are making the Judg­ give the information to this committee. give you an explanation of where he received ment what the truth ts in your opinion. During about four or ftve sessions, we did the money that 1t was shown that he spent?" Mr. Qum. Whatever ls the truth. so, and he was questioned extensively about The judge said, "The man did not testify; he Mr. BARNETT. If he answers the truth, cer­ the information and contacts with Congress­ has a right not to testify; I am not going tainly they wouldn't prosecute him for per­ men, and we felt that was in further answer to ask him that question. Jf he wants to jury, but this ls-- of legitimate business of this committee, tell me, fine, but I am not going to hold it Mrs. FENWICK. Why do you say he wouldn't and we felt it was fair to the committee be­ against him." be prosecuted for perjury if he answers the cause there were some Members of the Con­ Perhaps the committee would tell the truth? gress who were under attack, and we felt the judge what happened here, that he has de­ Mr. BARNETT. Mrs. Fenwick, that ls what a committee and those Members were entitled clined to testify. The judge may or may not perjury prosecution seeks to determine, to that information. take it into consideration. I am trying to whether his answer which he, under oath, At that very tlme, the Justice Department give you basically the posture we are in. asserted was the truth, was, in fact, the was also conducting its investigation. The To be perfectly honest with you, Mr. Kim truth-what you and I believe ls the Justice Department, I should say to you, of­ has never said anything other than the fact truth-- fered him immunity from prosecution at the of two prongs, "Did you receive the money?" Mrs. FENWICK. I don't care about that. All beginning of this investigation. They sald, "No." I am saying is if he comes before us and tells "Come forward and tell us the truth," the "Did you pay or corrupt any Congressmen?" the truth, why ls he in danger of perjury truth being, of course, admit that you re­ "No." from us? ceived the money from S. K. Kim and tell us That part has proven to be essentially true. Mr. BARNETT. He ts not. what you did wlth it. There has never been an indication of it. Mr. CAPUTO. Hts sentence will be stiffer. In fact, the Government, in the closing Mr. BARNETT. He ts not guilty of perjury. At that time, they were expecting, of course that he received the money. He hadn't met argument, said, It ts clear that he received Mrs. FENWICK. If he comes to us and tells the money, but as far as we are concerned, I a lie, that ls a second crime, and he gets a the Congressmen. I think the only one he knew was Congressman Guyer. There was guess he didn't pay any Congressmen; he new sentence. If he comes in front of us ·and must have put lt in his pocket." That was tells the truth, presumably that ts admitting extensive investigation of Congr~sman Guy­ er, and they wanted to question him about tt. their answer. guilt and will make the sentence he ts going Mr. FLYNT. We wm recess to answer the to get-- He dented receiving the money: he dented corrupting anybody, including Congressman quorum and come right back. Mr. FORT'O'IN. That ls not true. rBrief recess. l Mrs. FENWICK. That ls bis argument. Guyer, and I don't think the evidence showed Mr. FLYNT. The committee wm come to Mr. FoRTUIN. He has a grant of immunity he made a political contribution of $10 'to order. and could not be brought to the judge. any Congressman, no one whatever. Mr. Spence, were you in the process of The testimony here cannot be used in any The Justice Department, after its investi­ asking a question when we recessed? fashion. gation, came to the conclusion you are right; Mr. SPENCE. I don't think so. I think I had Mr. CAPUTO. He ts saying it will leak out. we are withdrawing the oft'er of immunity asked what I had. Mrs. FENWICK. It won't and I resent that, because you cannot be of help to us. We don't Mr. FLYNT. Mr. Bennett? Mr. Barnett, if you will excuse me. want you to come in and say, yes, you re­ Mr. BENNETT. Well, I really don't have a Mr. BARNETT. A'1'ain, it was an accusation. ceived the money. What we are interested tn question. I do have the same concern I had I wm bring in the newspaper articles and is Congressmen, and since you did not cor- before. Here we have a committee of Con- September 15, 1978 CONGRESSibNAL RECORD-HOUSE 29597 gress and we have a man who is going up even consider leaving it off. I am just trying 1978 with respect to the contempt of Rancho through appeal; he has another case and es­ to narrow down as to what your specific ob­ C. Kim. That Resolution provides, in pa.rt, as sentially we are being asked to have com­ jection is. follows: passion on him not to ask a precise word­ Mr. PovICH. The specific objection is this: "This resolution shall be of no force or ef­ ing, and as I heard your words, I heard you If you ask a precise question-- fect if the Special Counsel determines that say that he said that he had not taken the Mrs. FENWICK. What precise question? the said Ha.ncho C. Kim has submitted to a money at his home. Mr. PovrcH. Did you receive any money full and complete deposition prior to Pri­ So it looks like a rather technical thing, from Kim Sang Keun. day, May 19, 1978." and I find myself in an awkward position of Mrs. FENWICK. Suppose we didn't use that? I regret to report to you that on May 18, thinking about judicial processes, adjusting Mr. FLYNT. That is why we are here. 1978, Mr. Kim appeared with his attorneys to the calamity that has been brought upon Mrs. FENWICK. Suppose we didn't ask, at a deposition before the Honorable Mil­ a man of his own violation. In other words, using that man's name. That is what I am licent Fenwick and persisted in his refusal he apparently did something and he is paying asking you. Did you receive directly or in­ to answer the question which provided the a penalty for it. Why should a court adjust directly any money you have reason to be­ basis for the contempt proceeding against to the fact that a man is going to get caught lieve came from the Government of Korea; him. Mr. Kim also refused to answer related and pay a penalty for what he did. would he answer? questions. Now, I must say that I don't understand Mr. PovICH. Yes; I think he would answer Sincerely, if if somebody is trying to put pressure on the the other question. The problem is he LEON JAWORSKI, court procedure, and if that is so, for my answered the other question, though, he Special Counsel. two bits, I would say it is wrong. I don't would-- think anybody has any business who is work­ Mrs. FENWICK. Just answer. If we asked EXHIBIT XI ing for this committee becoming deeply in­ him, did you ever receive any money directly volved in the outside activities of a man who or indirectly that you have reason to be­ [House of Representatives Hearings Before is up for trial. My own personal reaction lieve came from the Government of Korea, the Committee on Standards of Official Con­ is that you ought not to tell the judge about would he answer it? duct--Korean Investigation-Deposition of it at all. I mean, not that it is a secret, but Mr. BARNET!'. That is really rephrasing the Rancho C. Kim] I think it is tasteless to get yourself involved same question, Mrs. Fenwick. KOREAN INVESTIGATION in another matter, and we are people who Mrs. FENWICK. No; it is leaving out the HOUSE OF REPRESENTATIVES, are supposed to be judicial and mak~ a de­ namo of the man. COMMITTEE ON STANDARDS OF termination on the merits as it may be and Mr. PovicH. The answer is I would like to OFFICIAL CONDUCT, leave it up to the people who are employed think he would, and the problem-.- Washington, D.c., May 18, 1978. to be the prosecutors in another trial. Mrs. FENWICK. Would you advise him to? The parties to the deposition met at 2:00 It seems to me, in other words, it is not Mr. PovrcH. I have to advise him, but the p.m., in Room 2125, Rayburn House Office up to us to rectify all of the sins of human­ decision as to whether he wishes to answer a Building, Washington, D.C. kind. question or not is his own. But let me say to Present: Representative Fenwick. Mr. BARNETl'. That is precisely what I am you the problem is this: If the person who Also present: John W. Nields, Jr., chief asking, Mr. Bennett. asked the question, then came to the con­ counsel; Jeffrey Harris, deputy chief counsel; Mrs. FENWICK. Will you yield? clusion, and the committee came to the con­ Thomas Fortuin, counsel; Robert Bucknam, Mr. BENNETT. I will yield. clusion that answer was wrong, then it would recommend, I assume, a prosecution for investigator. Mr. FLOWERS. Let's don't argue the thing perjury. Edward Bennett Willia.ms, Esq.; David out here. Mrs. FENWICK. You bet. Povich, Esq., Robert B. Barnett, Esq., on be­ Mr. BENNETT. I yield back my time. half of Mr. Kim. Mrs. FENWICK. I think that if Mr. Hancho Mr. PovrcH. Right. But the problem is if the very same question is asked that was Mrs. FENWICK. We are ready to begin. Mr. Kim would answer our questions, we would Kim, do you solemnly swear that the testi­ have nothing to say to the judge. There would asked in this case, which was the subject of the criminal prosecution, and he answered mony you will give before this committee in be no reason. If Mr. Hancho Kim does not that question, and he answered it in the the matter now under consideration will be answer our questions, I think we should tell negative, then the problem is, would that be the truth, the whole truth, and nothing but the judge. Maybe I am wrong, but I think the truth, so help you God. he should come and talk to us. I think he reported to the judge on the threshold of sentencing, and that is the reason why 1 Mr. KIM. I do. should tell us what we want to know. That am here. I am not concerned about the ques­ Mrs. FENWICK. Thank you. is my judgment. tion being asked after the sentencing. Mr. FoRTUIN. The record should reflect the Mr. SPENCE. Mr. Chairman, I think we Mr. FLOWERS. Mr. Chairman? continued deposition of Mr. Ha.ncho C. Kim, should ask any questions we have of the Mr. BARNETr. You phrased what our con­ pursuant to the order of immunity previ­ attorneys, and if we don't have any questions cern was, Mr. Bennett. If you can find any ously identified for the record. to direct at them, we can let them go and way to accommodate that, we would be Mr.Kim-- make our decision. Mr. WILLIAMS. May I say something before Mr. BENNETr. You may have something else pleased. Mrs. FENWICK. Then we will be up against we begin. to say. My name ls Edward Bennett Willia.ms. I Mr. PovicH. We have answered a lot of the tax appeal, right? Mr. BARNETl'. No. am here representing Mr. Kim. I would like questions. The thing that brought us to the to say something before we begin on the stalemate was the problem of that precise May I s':l.y one brief thing? I want to thank record. you for letting us come: I know, if nothing question. We are not saying we don't want to My associates, Mr. Barnett and Mr. Povich, answer any questions. We don't wish to be else, we have impressed you that we are seri­ brought me up to date on the posture of this contemptuous. What happened to us was the ous a.bout this, and that is all we hoped. matter in the last hour. And I have to say to difficult question was asked 2 days before Please read our written brief, if you will. I would really appreciate it. And for your you that except for the fa.ct that they told sentencing. Perhaps, as the chairman in­ me this is the case, I would find it incredible, quired, "Was it asked in order to provide a courtesy, we are very grateful, as is Mr. Kim, our client. but they told me, and I know it is true. vehicle to go to the court or not"-- As you know, Mrs. Fenwick, Mr. Kim has Mrs. FENWICK. I foresee all kinds of things. Thank you all. been convicted by a jury in the District of Suppose we say OK, we will be delighted to Mr. FLYNT. Thank you very much. And wm Columbia of perjury and conspiracy. That have Mr. Hancho Kim come here and we everybody vacate the room except the com­ took place on April 8. He is to be sentenced won't ask him whether Mr. So-and-So gave mittee and the staff director and the re­ by the judge tomorrow morning at 10 a.m., him that money; we will only ask him porters? I believe. whether he has reason to believe that he I am told by my associates that the ques­ ever received any money directly or indirectly tion was put to Mr. Kim, precisely the ques­ through the agency of the Government of APPENDIX X [Korean Infiuence InvestJgatlon Pursuant tion which was the subject matter of the Korea. Will he answer that? per.1ury in the indictment on which he now Mr. PovicH. I think he would answer all to H. Res. 252] U.S. HOUSE OF REPRESENTATIVES, stands convicted. We a.re here now presum­ questions. The problem is-- ably because that question will be put to Mrs. FENWICK. Would he answer that COMMITTEE OF STANDARDS OJ' OFFICIAL CONDUCT, him a.gain. question? And then if he said yes, he had I am further told, Mrs. Fenwick, 1ha.t my received it directly or indirectly, was it for Washinqton. D.C .. May 18, 1978. Re: Contempt of Rancho c. Kim. associates were told that what Mr. Kim did any specific purpose? In other words, I am here would be reported to the judge. trying to find out what you really are balk­ Hon. JOHN J. FLYNT, Jr .• ing at, because it seems to me that anybody Chairman, Committee on Standards of Of­ Mr. F011.TUIN. Let's get that straight for who is .an American citizen, who wants to ficial conduct, U.S. House of Represen­ the record. help an investigation of Congress, owes it to tatives, Washington, D.C. Mr. WILLIAMS. I would like to finish. You that committee to answer the question. DEAR Ma. CHAmMAN: I am writing you this just let me finish and will have plenty of Now if there is one particular peculiar letter to report to you pursuant to para.­ time to make what statement you wish for question. I don't think it matters whether graph three of the Resolution adopted by the record. he got it in his home or where; we might the Committee at its meeting on May 17, I am told that also, 'by my assoclaltes, they 29598 CONGRESSIONAL RECORD-HOUSE September 15, 1978 were told by Mr. Fortuin, after he had a con­ has already been determined by a jury to advise Mr. Kim to assert his constitutional versation with Mr. Nields, that if Mr. Kim to be perjurious beyond a reasonable doubt, rights not to answer, the privilege against answered the question in the same way as I must say to you quite frankly that I don't self-incrlmination. he had answered it previously, on which he know whether or not that could properly I also now gravely doubt whether you are stands convicted of perjury, that that would be communicated to a judge, although my in pursuit of a valid legislative purpose. be reported to the judge. reaction is that it could. It would seem to Mr. FORTUIN. On what do you base your So I have concluded, Mrs. Fenwick, that me that whether or not that could ls a mat­ objection? this proceeding is an intrusion into the ter for the future. If the witness gave that Mr. WILLIAMS. On the record as it exists function of the judiciary. I h a ve concluded answer under oath then you could certainly so far. This witness• multiple appearances that it is a breach of Mr. Kim's immunity argue to us that pursuant to the grant of before this committee, in which he has re­ grant, a. breach of the contra.ct between Mr. immunity it should not be considered by sponded to questions, and the Senate com­ Kim and the government of the United the judge, you could argue to the Dep1rt­ mittee, and the whole record as it exists at States. And I have further concluded this: ment of Justice or to the judge. That would this moment on the eve of his sentence that Mr. Kim stands in an absolutely incred­ come at a future time. before Judge Flannery tomorrow morning. ible position before you here. At this time all the committee wants is Mr. HARRIS. Have you read the record, Mr. He has three options. He can answer the answers to its questions. And the immunity Wllliams? question in accordance with his understand­ has been granted. It is complete. The argu­ Mr. WILLIAMS. No. Which record? ing of a truthful answer, which answer has ments that you have raised have been Mr. PovicH. He can't read the record. You already been adjudicated perjurious, so that raised by your partners, both before the have not provided us with a transcript. he would be susceptible to another perjury chairman and the ranking minority member. Mr. HARRIS. Have you asked to review it? conviction if he answers truthfully. before Judge Preyer. before the entire com­ Mr. WILLIAMS. Why would you ask me if He can refuse to answer, in which instance mittee. They have been overruled. I read it, if you have not given it to us? he has been threatened with an adjudication Mr. WILLIAMS. Well-- Mr. HARRIS. Because other witnesses have of contempt under section 192 of Title 2, Mrs. FENWICK. Suppose we proceed from had the privilege of reading the record when and also potential contemp~ of the House 'the other end. Suppose that one question they requested it. via a proceeding conducted in the very that you say is so crucial, we wait until the Mrs. FENWICK. It is available. Chambers of the House. end to ask. Is that possible? I would just like to say, for the purpose of Thirdly, his third option, and apparently Mr. NIELDS. No, absolutely not. the record, this committee was established this ls the only other option, ls to give an Mrs. FENWICK. OK. There doesn't seem under resolution of the House, and that is answer which he believes to be false, to com­ to be any common sense way out of a dilem­ the purpose of this committee, to carry out mit perjury here, under oath-he has just ma which lawyers seem to construct. You the obligation imposed upon us by the House been sworn to tell the truth-and if I may have a grant of immunity which means that of Representatives, and no other. coin a phrase. that ls a "trllemma" on which whatever he says cannot be used against We are trying to discover actions Involving no American waR ever intended to be hoisted. him provided it is the truth. Congressmen, and that is what ls of interest So I suggest to you, Mrs. Fenwick, that the Mr. WILLIAMS. You see, the problem is, to this committee only. immunity which he has been granted, and Mrs. Fenwick, that he has answered this Mr. NIELDS. I would like to supplement the which we contend has been breached, is not question. He was defended most vigorously statements of Mrs. Fenwick. Under House as broad, as his constitutional right, his in court by my associates. They contended Resolution 252 this committee has several constitutional right to remain silent, for the that he did not commit perjury. That ls stlll mandates, one of which ls to ascertain reason that he has not been immunized from our contention and wlll be on appeal. And if whether and the extent to which there were a possible indictment for perjury for his he answers the same way that he answered efforts on the part of the Korean Government answer here, and if he testifies in the same heretofore, lt wm be the contention of the or agents or representatives thereof to influ­ way as he previously testified in the prior counsel here that he has committed perjury. ence Congressmen by conferring things of proceeding. out of which arose his perjury They have already said to you that they value on them. indictment, he faces the possiblllty of in-' would take that to the judge. And they Mrs. FENWICK. It is on account of the Con­ crimlnation. also probably would take lt to the Depart­ gressmen, Mr. Wllliams. So that we have a unique situation here, ment of Justice. So that he would be clearly Mr. BARNETT. Let's let Mrs. Fenwick explain one I suppose that was never contemplated facing incrimination. And that ls why I say the purpose. I would like to hear it. by the law-makers when they passed the the immunity grant is not sufficient. But I Mrs. FENWICK. It ls all there in the resolu­ testimonial immunity statute: that he faces don't want to argue the law here. I just tion, which I am sure you have had a copy incrimination by giving a truthful answer. want to state our position. I think we can of, haven't you, 252. Have you got a copy or Having said that, I want to say this re­ all remain friends. I have the greatest respect 252? We have to do our duty. SP.ectfully to you, Mrs. Fenwick. We are go­ for you, Mrs. Fenwick. I am here to represent I would like to understand, Mr. W1111ams, ing to refuse to answer. this man and to protect his rights. And we what you were telling us. We were given to Mrs. FENWICK. I knew it, Mr. Williams. don't have to have any bad feelings over understand yesterday that ithere wa.s only Don't think that these legalltles have ob­ it. one key question that Mr. Kim wa.s in a fuscated the matter for me. At least I a.m I have stated our position, and I would peculiar situation, unwilling or unable---or I not a lawyer. But I presume these are your respectfully ask to be excused. don't know exactly which word wa.s used-to associates, as you said they were, and I Mr. FORTUIN. I think the record should re­ answer. heard them last night. I am not a lawyer. flect that we sent to your office this morn­ He was not unwllllng to answer other ques· But I must tell you tn all honesty. as an ing a copy of the committee's resolution tlons, but I understand from your statement American citizen, I am not impressed. of last evening, which begin, "Resolvea, That at this minute that that ls not--my under­ Mr. WILLIAMS. We are not here to im­ the chairman of the commtttee- standing was incomplete? press you. Mr. WILLIAMS. We have read tt. I agree it Mr. WILLIAMS. No. I think. Mrs. Fenwick, Mrs. FENWICK. I know, I know. You are here should be part of the record. if the committee really wants the informa­ to win your case. Mrs. FENWICK. Well, I would like to ask tion that it purports to want, that it can Mr. WILLIAMS. I am here to defend Mr. you-and maybe we ought to have a recess­ get it. But it can get it when this man's Kim's rights. but I would like to ask counsel for the com­ criminal proceedings are over. Mrs. FENWICK. I am sure Mr. Fortuin has mittee why lt is we cannot proceed starting I don't understand the unw1111ngness of something more intelligent to say than I in the middle instead of in the beginning. this committee to awa.it that because I have had to say. Mr. NIELDS. Why don't we have a recess. wouldn't be here making the kind of argu­ Mr. FORTUIN. I think some of the things Mrs. FENWICK. OK. ment that I made here a moment ago if he you have said are incorrect. [Whereupon a recess was taken.) didn't have criminal proceedings staring I think that there ts no question that the [The following proceedings were ha.d fol­ him in his face. immunity is as complete as his fifth amend­ lowing the recess.) He has some tomorrow morning at 10 a.m., and so we are not offering you an insoluble ment right. We have indicated that if the wit­ Mr. FoRTUIN. Mr. Kim, Mrs. Fenwick has ness chose to take a contempt, we would suggested, and I think it is a good Idea, that problem. communicate that to the judge, because we we ask you some quei:tlons that are not We are offering you a problem that I think belleve under the authorities that the judge precisely the question that you were asked is quite easy of resolution. All you have to could take his refusal to answer pursuant to before the grand jury, and which was found do is postpone his appearance until his crim­ a grant of immunity under consideration. to be perjurlous. We do believe we will have inal proceedings are over, and he wlll come If he were to answer the questions in a truth­ to come bar.k to the other question ul­ back. We wm bring him back. I assure you ful fashion, that could under no circum­ timately. But we would like to ask those he will come back. stances pursuant to the grant of immunity questions first. Mrs. FENWICK. Are you referring to the under my understanding be communicated Let me ask you first, you do know a man sentencing tomorrow morning? to the judge or be used against him in a by the name of Kim Sang Keun, is that Mr. WILLL\MS. He has a sentence tomorrow sentencing proceeding, and we would not correct? morning. and he has a case pending against communicate it. Mr. WILLIAMS. My advice to Mr. Kim is him in Baltimore. In the third situation, if the witness were going to be the same. I can save you and Mrs. Mrs. FENWICK. I wish you would be more to answer a question in a manner which Fenwick some time. On this record I am going clear. So you are asking this comm!ttee to September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29599 postpone any further action until this case only our client can make that declsio1! I Rancho C. Kim was a witness before this in Baltimore, which might be next au­ simply want that to be very clear. committee in connection with the Ko­ tumn-- Mr. WILLIAMS. You have made it clear. rean investigation which has been con­ Mr. WILLIAMS. I don't think that ls likely, Mr. FoRTUIN. Mr. Kim, you unders·tand we Mrs. Fenwick. I think I am probably asking lawyers ultimately all go home, and that any ducted pursuant to the provisions of you for not much more than a 40-day ad­ action can only be brought against you, do House Resolution 252 of the 95th Con­ journment. you understand that? gress, first session. Mrs. FENWICK. Forty days? Mr. WILLIAMS. He understands that. Mr. Kim was being deposed by a mem­ Mr. WILLIAMS. Yes, 40 days. Mr. FoRTUIN. And having understood that, ber of the committee, the gentleman Mrs. FENWICK. Well, I would want to-I and in view of the proceedings here today, from North Carolina of the Budget Act prohibits consid­ thorities. tion of the Committee on Rules, I call up eration of le.gislation authorizing new House Resolution 1326 and ask for its budget authority which is reported after immediate consideration. May 15 preceding the fiscal year in DISPENSING WITH CALENDAR The Clerk read the resolution, as fol­ WEDNESDAY BUSINESS ON which that authority is to take effect, WEDNESDAY NEXT lows: and, since various sections of the H. RES. 1326 bill authorize new budget authority Mr. BRADEMAS. Mr. Speaker, I ask Resolved, That upon the adoption of t his in fiscal 1979, even though the bill was unanimous consent that the business resolution it shall be in order to move, sec­ not reported until August 11 of this year, in order under the Calendar Wednesday tion 402 (a) of the Congressional Budget Act of 1974 (Public Law 93-344) to the contrary a waiver is necessary in order to bring it rule be dispensed on Wednesday of next notwithstanding, that the House resolve it­ up. On August 16, 1978, Chairman GIAIMO week. self into the Committee of the Whole House of the Budget Committee wrote to the 1 The SPEAKER pro tempore. Is there on the State of the Union for the considera­ Rules Committee indicating the Budget objection to the request of the gentle­ tion of the bill (H.R. 11733) to authorize ap­ Committee's support for this waiver on man from Indiana? propriations for the construction of certain the grounds that the chairman of the There was no objection. highways in accordance with title 23 of the United States Code, for highway safety, for Subcommittee on Surface Transporta­ mass transportation in urban and in rural tion, Mr. HOWARD, suffered an unfortu­ ADJOURNMENT TO MONDAY, areas, and for other purposes. After general nate illness, and the work of the com­ debate, which shall be confined to the bill mittee was delayed. SEPTEMBER 18, 1978 and amendment made in order by this res­ Under the terms of this rule, the 2 Mr. BRADEMAS. Mr. Speaker, I ask olution and shall continue not to exceed two hours of debate time would be divided unanimous consent that when the House hours, one hour to be equally divided and between the Public Works and the Ways adjourns today it adjourn to meet at controlled by the chairman · and ranking minority member of the Committee on Pub­ and Means Committees, and the commit­ noon .on Monday next. lic Works and Transportation and one hour tee amendment in the nature of a sub­ The SPEAKER pro tempore. Is there to be equally divided and controlled by the stitute recommended by the Public objection to the request of the gentleman chairman and ranking minority member of Works Committee is made in order as from Indiana? the Committee on Ways and Means, the b111 an original bill for the purpose of amend­ Mr. ANNUNZIO. Mr. Speaker, reserv­ shall be read for amendment under the five­ ment. That substitute in turn is protected ing the right to object, I shall not object, minute rule. It shall be in order to consider against points of order for failure to but I would like to ask the distinguished the amendment in the nature of a substi­ tute recommended by the Committee on comply with clause 7 of rule XVI, the acting majority leader this question: Public Works and Transportation now print­ germaneness rule; clause 1 (p) (3) of rule I know there has been mention made ed in the b111 as an original b111 for the pur­ X, which prohibits specific road legisla­ about the completion time next week, pose of amendment under the five-minute tion in general road legislation; and but could the gentleman give us a better rule, said substitute shall be read for amend­ clause 5, rule XXI, which prohibits ap­ idea? The gentleman stated the times ment by titles instead of by sections, and propriations in a legislative measure. when we will go into session and as to all points of order against said substitute Mr. Speaker, as I mentioned earlier, approximately when we will adjourn or for failure to comply with the provisions of this is a modified open rule. Beginning at recess on Monday, Tuesday, Wednesday, clause 7, rule XVI, clause l(p) (3) , rule X and clause 5, rule XXI are hereby waived. line 15 on page 2 of the rule it is stated and Thursday, and that is on our sched­ No amendment to title V of said substitute, that no amendment to title V of the sub­ ule. I ask this question only so that we and no amendment to said substitute chang­ stitute shall be in order except amend­ can make plans. ing or modifying said title, shall be in order ments recommended by the Committee Mr. BRADEMAS. Yes, Mr. Speaker, if except amendments recommended by the on Ways and Means. Title Vis that por­ the gentleman will yield, I will be glad Committee on Ways and Means. At the con­ tion of the bill reported by the Ways and to respond. clusion of the consideration of the blll for Means Committee which extends the The House will adjourn by 7 p.m. on amendment, the Committee shall rise and report the b111 to the House with such highway trust fund for 5 years to Sep­ Monday and Tuesday, by 7: 30 p.m. on amendments as may have been adopted, and tember 30, 1984, postponing the tax re­ Thursday, by 9 p.m. or thereabouts on any Member may demand a separate vote in ductions scheduled to take effect with Wednesday, and by 3 p.m. on Friday. the House on any amendment adopted in the the expiration of the trust fund. Mr. ANNUNZIO. Mr. Speaker, I thank Committee of the Whole to the b111 or to Mr. Speaker, when the Rules commit­ the acting majority leader, and I with­ the committee amendment in the nature of tee heard testimony on this bill on Au­ draw my reservation of objection. a substitute. The previous question shall be gust 16, no objections were expressed The SPEAKER pro tempare. Is there considered as ordered on the bill and to amendments thereto to final passage without the rule requested by the two commit­ objection to the request of the gentleman intervening motion except on motion to tees and that is the rule before us today. from Indiana? recommit with or without instructions. Mr. Speaker, I have no requests for There was no objection. time, and I reserve the balance of my The SPEAKER pro tempore. The gen­ time. tleman from Missouri New York with Mr. Bauman Brown, Mich. Cunningham Ell berg Lent Schulze Marriott. Bedell Broyhill D'Amours 29604 CONGRESSIONAL RECORD-HOUSE September 15, 1978 Daniel, Dan Ireland Quillen Goldwater Marriott Santini operating subsidies. The only question I Daniel, R. w. Jenkins Rahall Hannaford Mathis Sarasin Dapielson Johnson, Calif. Railsback Harrington Metcalfe Sebelius have is how UMTA might determine Da.vis Johnson, Colo. Rangel Harsha Milford Shipley what the operating losses are under the de la Garza Jones, Okla. Regula Hawkins Miller, Calif. Sisk bulk ticket program. De:aney Jones, Tenn. Reuss Heckler Moorhead, Pa. Skubitz Derrick Jordan Rhodes Horton Murphy, Ill. Smith, Iowa Mr. MINETA. For the past 4 years, the Devine Kastenmeier Richmond Huckaby Myers, Gary Smith, Nebr: Califomia Public Utilities Commission Dickinson Kaz en Rinaldo Jacobs Myers, John Spellman has been monitoring Southern Pacific to Dicks Kemp Roberts Jeffords Myers, Michael Stark Dodd Kildee Robinson Jenrette Ni'C Steiger determine losses on this commuter line. Dornan Kindness Roe Jones, N.C. Oakar Symms The PUC has legal responsibility, under Downey Kostmayer Roncalio Kasten Pepper Taylor State law, to establish fares. PUC data, Drinan Krebs Rose Kelly Pickle Teague from its monitoring of SP, can be used to Duncan, Oreg. LaFalce Rosenthal Keys Pike Thone Duncan, Tenn. Lal?omarsino Roybal Krueger Poage Tsongas determine operating losses. Early Latta Rudd Leggett Pressler Van Deerlin Mr. HOWARD. Based on that type of Eckhardt Leach Russo Lent Pritchard Walsh documentation of operating losses, Edgar Lederer Ryan Lott Quie Waxman Edwards, Calif. Le Fante Satterfield Lujan Risenhoover White UMTA could fund 50 percent under sec­ Edwards, Okla. Lehman Sawyer Luken Rodino Wilson, Tex. tion 315 of this bill. EU berg Levitas Scheuer McCloskiey Rogers Wright Mr. MINETA. I thank the gentleman, English Livingston Schroeder McCormack Rooney Wydler and I appreciate his yielding to me. Erlenborn Lloyd, Tenn. Schulze McKinney Rostenkowski Young, Alaska Ertel Long, La. Seiberling Mann Rousselot Young,.Tex. Mr. HOWARD. Madam Chairman, the Evans, Colo. Long, Md. Sharp Markey Runnels legislation before the House today en­ Evans, Del Lundine Shuster Marlenee Ruppe Evans, Ga. Mcclory Sikes compasses a wholly new approach to the Fary McDade Simon So the motion was agreed to. surface transportation needs of all Fascell McEwen Skelton The result of the vote was announced America. For the first time in our his­ Fenwick McFall Slack tory, we are addressing in a single legis­ Findley McHugh Snyder as above recorded. Fish McKay Solarz IN THE COMMITTEE OF THE WHOLE lative package the destructive conges­ Fisher Madigan Spence Accordingly, the House resolved itself tion of our cities and the equally de­ Fithian Maguire St Germain structive isolation of small-town, rural Flippo Mahon Staggers into the Committee of the Whole House Flood Marks Stangel and on the State of the Union for the con­ America, where millions of people must Florio Martin Stanton sideration of the bill, H.R. 11733, with travel daily over inadequate, dangerous Flynt Mattox Steed ro1ds and highway bridges to bring their Foley Mazzoli Steers Miss JORDAN in the chair. goods to market, their children to Ford, Tenn. Meeds Stockman The Clerk read the title of the bill. Forsythe Meyn er Stokes By unanimous consent, the first read­ school. Fountain Michel Stratton I ask my colleagues to consider care­ Fowler Milculs.ki Studds ing of the bill was dispensed with. fully every aspect of this enormously Frenzel Mikva Stump The CHAIRMAN. Under the rule, the Fuqua Miller, Ohio Thompson gentleman from New Jersey of this section author­ Mr. SHUSTER. Madam Chairman, the The bill, on which I have been working izes six pilot projects to develop, refine, Federal-Aid Highway Act of 1973 au­ for the past 2 years, does a good job in and evaluate techniques which could thorized the creation of a special cate­ addressing each of the major problems then be applied on a national scale. These gory of primary roads, below the inter­ confronting urban transportation to­ 1-year projects are critical in that the state in importance but above the bal­ day. Among other things, the bill: techniques developed must be capable of ance of the primary system, designed to First. Seeks to keep transit fares rea­ producing measurable results in order to serve as connectors between interstate sonable by improving the delivery of Fed­ evaluate their effectiveness. routes and supplement the Interstate eral operating assistance to transit au­ Madam Chairman, in drafting this System as major traffic arteries. thorities. Our committee has developed proposal, it became clear that in order The 1973 law authorized each State a good, compromise distribution formula for the pilot projects to accomplish these to designate approximately 5 percent of that most cities seem satisfied with; objectives, they must be located in areas its eligible mileage as priority primary Second. Seeks to maintain previous that lend themselves to measurement. routes. commitments made by the Urban Mass While not spelled out in the bill, a num­ Highway 71, stretching from I-44 in Transportation Administration for new ber of conditions should obviously be the State of Missouri to the Arkansas construction projects; present in the pilot project areas: border, hooks up with Highway 71 in the Third. Seeks to accelerate the modern­ First, the area must be a well-defined State of Arkansas. This route is desig­ ization and rehabilitation of existing television market area. nated priority primary in Arkansas, but public mass transportation systems. The Second, it must have a high traffic ac­ has never been so designated in Mis­ Urban Mass Transportation Administra­ cident and fatality rate, defined as sub­ souri. tion estimates that $14 billion will be stantially above the national and State The gentleman from Missouri (2). Therefore, less than fully funded proj­ million authorization a year for fiscal ects could receive additional funding years 1979-82 is necessary in meeting our I am also grateful for section from either future appropriations au­ national energy needs. In addition, the 106 which contains three important thorized by previous acts, or from the same money levels, for energy impacted measures. new authorization contained in this act. railroad crossings are required to help First, the railroad grade crossing Mr. SHUSTER. With respect to the alleviate traffic jams at such junctions elimination demonstration project in Clinton Parkway project, I would again in small towns in Appalachia where coal Hammond, Ind., authorized in title Ill ask the subcommittee chairman if it is train traffic will be on the increase. of Public Law 93-503 and amended by his intention that this project be fullY Madam Chairman, I want to take this section 140<0 of Public Law 94-280, is funded in line with recent cost esti opportunity to thank Chairman HowARD now placed with the other enumerated mates? who by inspecting the future sight of the demonstration projects authorized in East End Huntington Bridge in Hunting­ section 163 of the Federal-Aid Highway Mr. HOWARD. It is my intention that ton, W.Va., gave the residents of the area Act of 1973, as amended. This change, the Clinton Parkway project receive full the hope that Federal assistance is not a although technical in nature, transfers funding, and it is my expectation that thing of the past. the authorized project from the urban the additional $2,681,000 will be approved In conclusion, Madam Chairman, I mass transportation chapter and places by FHWA from new appropriations au­ hope that my colleagues will join me in it with similar projects under the chap­ thorized by this or previous acts. supporting this bill which takes major ter dealing with Federal-aid highways. Mr. SHUSTER. Thank you very much steps forward toward our goal of a com­ It also removes the individual funding Madam Chairman. plete, safe highway system for our designation, and in substitution, allows Mr. HOWARD. Madam Chairman, I citizens. the Hammond project to draw from the yield 1 minute to a distinguished member Mr. HOWARD. Madam Chairman, I funds authorized in section 163 (p)-(as of the committee who has worked hard yield 1 minute to the gentleman from relettered by the bill. The amendment on this legislation, the gentleman from Indiana funds that September 15, 1978 CONGRESSIONAL RECORD-HOUSE 29613 could be used would be 45 percent of the :Kentucky ------­ 351,666,000 would reject some long-overdue equity project's total cost while the maximwn Maryland ------­ 80,480,000 into State highway construction plans. Mississippi ------25,994,000 Ignoring the ARC network further amount of ARC funds would be 6-0 per­ New York ______197, 115, 000 cent. Any combination of these two Fed­ North Carolina.______114, 859, 000 through inequitable formulas will prove eral funds would be permitted as long as far more costly than ever expected. Ohio ------85, 103,000 neither exceeds its specified maximwn Pennsylvania ------282,373,000 Lacking equal footing with the inter­ level and the two combined constitute no South Carolina ______2,750,000 state program, the important links in more than 90 percent of the project's Tennessee ------­ 203,009,000 the Appalachia highway chain will most 96, 811, 000 total cost. WestVirginia Virginia. ------______likely remain uncoupled. Highway con­ Three examples: 465,488,000 struction is an economic snowball. Pre­ If a State decides to pay for 10 percent ceding the final purpose of laying a new of a project with its own funds, it could Total ------1,977,515.000 roadway is the immediate objective of use ARC funds to a maximum of 60 per­ Let me remind the House of the objec­ putting people to work. ARC spokesman, cent and pay for the remaining 30 per­ tive set forth by the Appalachian Re­ John Whisman, commented on this fea­ cent with highway trust funds. gional Development Act of 1965 with ture of the ARC highway program during Using the same 10-percent minimwn in respect to highways: a Public Works Subcommittee appear­ State funds, a project could be financed To provide a highway systetn which will ance in March 1975. His words are worth with a maximum of 45 percent in high­ open up an area or areas with a develop­ recalling: way trust funds, in which case 45 percent mental potential where comtnerce and cotn­ While the pritnary purpose of the Appa­ would be paid for with ARC highway tnunlca.tion have been inhibited by a. la.ck lachian Developtnent Highway Program 1s dollars. of access. long-range developtnent of the Region, it is Should a State decide to invest 20 per­ The key words are "open up" and important to retnetnber the itntnediate effects "access." Social, cultural, industrial, ed­ of its construction. The Federal Highway cent of its own funds in a project, the Adtninistration has estitnated that nation­ remaining 80 percent could be financed ucational, and economic access start wide in 1973 each $100 million of federal-aid by various combinations of highway with good roads. The act says so, and construction in highways generates an aver­ trust and ARC funds, as long as the every piece of tangible evidence gathered age of 3,500 direct and- 3,500 indirect jobs- former does not exceed 45 percent and to date showing any semblance of prog­ 1,800 in the manufacturing sector; 1,300 in the latter does not exceed 60 percent of ress throughout the region points to good wholesale trades, transportation and service the total cost. roads as the reason for that growth. The sectors; and 400 in tnining and other sectors. Comptroller General told the Congress On this basis the Appalachian Highway pro­ Madam Chairman, it is critical that I gram would be generating approximately point out that the funding formula in a detailed November 1976, report on the: ARC highway system in West Vir­ 7,000 direct and 7,000 indirect jobs in both change does not constitute a raid on the 1975 and 1976. In discussing the longer-rang~ highway trust fund. Section 125 of the ginia: development itnpa.ct of the Appalachian act has no effect on the apportionments While West Virginia. has tnade progress in Highway program, it must be remetnbered made from the trust fund. Non-Appa­ cotnpleting its portion of the systetn, lack of that since the Appalachian and Interstate lachian States will continue to receive progress in adjoining states has limited Highway were designed to cotnpletnent each regional accessib111ty and, consequently, Ap­ other, it is difficult to sort out the contribu­ their usual allocations and not one cent palachian econotnic development. Con­ tion of either partner a.lone; and, neither less as a result of our ARC Highway· tinued funding litnitations which delay highway systetn has been cotnpleted. How­ formula proposal. At the same time, I highway progra.tn impletnenta.tion appear in­ ever, sotne early effects of the combined underscore the fact that the Federal consistent with the purpose of the Act. highway progratns are already visible. Th~ Government will not be called upon to tnajor economic effects of the highway sys­ provide even one additional dollar to en­ The Comptroller General recom­ tem are those dealing with changes in em­ act the formula change. mended that the Congress consider "pro­ ployment and industrial growth • • • An posals for accelerating completion of the earlier ARC study showed that more than Section 125 language simply changes highway system to achieve the overall three-fifths of all new industrial locations the manner in which ARC dollars, high­ objective of improving the economic are within 20 tninutes of a new highway, and way trust funds, and State funds can be status of Appalachia." almost one-half were within 10 tninutes mixed and matched to complete the Ap­ Section 125 of the act before us, gentle­ travel tittle. This satne study identified 1,149 palachian highway network. The pro­ men, does exactly that. new plants since 1965, representing over vision provides-at a time when State 200,000 new jobs • • • Altogether, 24 highway corridors were funds are scarce-an option for stretch­ In light of the importance of section ing State funds by lowering the State's originally designated for inclusion into the ARC highway network. The network 125 and the significant economic impact matching burden to 10 percent. Not only this formula change will have upon the will Appalachian highway work be stim­ was designed to tie into the Interstate System and other existing Federal high­ future growth and development of the ulated but actual construction will also Appalachian region, I urge the House to generate jobs and favorably affect the ways. According to the Appalachian Re­ approve the Surface Transportation economic health of the entire region. Assistance Act of 1978. A frequent cry from the Appalachian gional Commission, of the 2,900-mlle system, a total of 1,415 miles is actually Mr. ULLMAN. Madam Chairman, I States is that they are pinched by a lack yield myself 5 minutes. of State matching funds. I am sure this completed (of which 1,397 miles has been is true. But it cannot be said that there opened to traffic) with an additional 206 Madam Chairman, let me first stat.e has been a lack of Federal funds spe­ miles under construction as of March 31, that it has been a pleasure to work cifically for ARC corridor construction. 1978. with the distinguished gentleman from A total of $1,977,515,000 in Federal funds Throughout our efforts to alter the New Jersey (Mr. HOWARD)' the dis­ for the ARC highway network has been funding formula we have stressed that tinguished gentleman from Pennsyl­ allocated to the 13 States from the begin­ the ARC highway program needs to be vania (Mr. SHUSTER), the distinguished ning of the program through fiscal year competitive with the Interstate Highway chairman of the full committee, the gen­ 1978

EXCISE TAXES ALLOCATED TO THE HIGHWAY TRUST FUND AND PRESENT LAW TAX RATES

Excise Tax (and section of the Code) Present tax rate Tax rates scheduled as of Oct. 1, 1979 1

Retailers: Diesel and special motor fuels 4 cents per gallon. 1 Y:z cents per gallon. (sec. 4041). Manufacturers: Gasoline (sec. 4081). 4 cents per gallon. 1 Y:z cents per gallon. Lubricating oil (sec. 4091). 6 cents per gallon. 6 cents per gallon. Trucks, buses, trailers (sec. 4061 (a)). 10 percent of manufacturers price. 5 percent of manufacturers price. Truck and bus parts (sec. 4061 (b)). 8 percent of manufacturers price. 5 percent of manufacturers price. Tires for highway use (sec. 4071(a) (l)).2 10 cents per pound. 5 cents per pound. Tubes (sec. 4071 {a) (3)). 10 cents per pound. 9 cents per pound. Tread rubber (sec. 407l(a) (4)). 5 cents per pound. None. Other: · Use tax on highway vehicles in excess of Annual tax of $3 per 1,000 pounds. None. 26,000 pounds gross weight (sec. 4481).

1 At that time, revenues would go into the general fund, absent NoTE.-Under the House and Senate energy tax bills (H.R. 5263 legislation to extend the trust fund. in conference), the excise taxes (except for the use tax on heavy 2 Sec. 4071 also imposes a tax of 5 cents per pound for nonhigh­ highway vehicles) applicable to buses used in public transportation way tires, except for a tax of 1 cent per pound on "laminated tires" and school buses would be repealed; that ls, the taxes on gasoline, (not used on highway vehicles). Revenues from these two taxes also diesel and other motor fuels; the taxes on the purchase of buses and go into the trust fund but are not scheduled for a. change in rate on bus parts; the tax on lubricating oil; and the taxes on tires, tubes Oct. 1, 1979. and tread rubber. As approved by the Committee on users and vehicles using these highways. nues would have forced us into uncom­ Ways and Means, title V provides for A final report is due to the Congress on fortable options of either a sharp in­ a 5-year extension of the highway trust or before January 15, 1982. crease in highway excise taxes or sharp fund, from September 30, 1979, through In addition, the bill directs the Secre­ cutbacks in program levels or, regret­ September 30, 1984, and postpones the tary of the Treasury to review and fully, a dip into the general revenues for scheduled rate reductions of the taxes analyze each excise tax now dedicated :financing to save the fund. Such a choice allocated to the trust fund for 5 years, to the highway trust fund with respect would have been upon us when the Na­ from October 1, 1979, to October 1, 1984. to· such factors as the ease or difficulty tion could ill afford any of these options. Receipts from the taxes allocated to the of administration and compliance Madam Chairman, it is well known trust fund are estimated to total $41.2 burdens. This study is to be conducted that in cooperation with the gentleman billion during the 5-year extension pe­ in conjunction with the cost allocation from Florida (Mr. GIBBONS), I spon­ riod. study. A final report is due on or be­ sored an amendment which would have The bill makes certain changes in the fore April 15, 1982. cut back sharply expenditures of the operation of the trust fund Byrd amend­ Madam Chairman, I urge that title highway trust fund, and the extension ment, which currently provides for V be adopted. of the fund would have been for a con­ reductions in apportionments for the Mr. CONABLE. Madam Chairman, I siderably shorter period of time. Interstate System when anticipated yield myself such time as I may con­ My concerns were fiscal. I do not revenues will be inadequate to cover ex­ sume. doubt for 1 minute the need for the isting expenditures. The changes made Madam Chairman, the distinguished highway program to continue. As a re­ by the bill essentially provide that any chairman of the Committee on Ways and sult of the pressures generated by the reductions will be made on a pro rata Means has discussed title V in detail; Gibbons-Conable amendment, the sub­ basis from all apportioned programs and I have very little to add to it. committee of the Committee on Public which are :financed from the highway Works and Transportation, and the trust fund. I do want to talk a little from a philo­ sophical viewpoint and a fiscal viewpoint chairman and the ranking minority The bill also provides an exemption member made a concession of the com­ from-or credit or refund of-Federal about the condition of the trust fund. I do not pretend to be an expert on high­ mittee that $1 billion would be taken motor fuel excise taxes for fuel used in out of the expenditure side annually taxicabs for qualified taxicab services. ways. That is not the responsibility of the Committee on Wavs and Means, and and that the duration of the fund This exemption applies only to fuel used would be for 1 year less. This constituted .for business purposes and where the I am grateful for the detailed work which has gone into the highway pro­ a major concession in the direction of taxicabs are not prevented from im­ fiscal soundness. plementing a shared-ride program by gram through the diligence of the sub­ either Government regulation or com­ committee, of which the distinguished I appreciate this cooperation and this pany policy. The exemption does not gentleman from New Jersey ur Nation's surface trans­ added $150 million to the funding for crossing in three to four minutes, the in­ portation needs and should be adopted. primary and secondary highways in creased train tramc will ca.use problems. This bill accelerates completion of the rural areas and adopted my proposal for The BN omcials warn against overreaction Interstate System; provides substantial, the creation of a proe:ram to provide by the city, and caution against the much yet warranted, increases in authoriza­ money to county .iurisdictions for im­ talked-about problem of building overpasses proving local roads. The "off-system" and underpasses. Perhaps BN ofilcials have tions for the reconstruction and reha­ sound reasoning for such caution, but per­ bilitation of primary and secondary roads program was funded at $200 haps they don't realize the particular prob­ highways; makes a massive attack on the million. lem trains create for the movement of tramc backlog of unsafe and obsolete bridges in I am most gratified that the Public in Scottsbluff. Another possibility why the this country; expands the "off-system" Works Committee accepted my proposal railroad is against overpasses and under­ rural roads program; and funds urban in its deliberations on this bill to in­ passes is because in many communities the mass transit programs, expanding the crease the "off-system" roads author­ cost of such projects is proposed to be shared money earmarked under these programs by the railroads which would like to avoid ization from $200 million to $300 million such expense. for rural and small urban areas. annually. A big, lumbering coal train going 45 In my State of Arkansas, almost 12,000 Madam Chairman, we have come to mph carries tons of destructive power for miles of interstate and federally aided realize that food is our Nation's most anything that gets in its way, and will be primary and secondary roads would be important product. Food is grown where going faster through Scottsbluff than motor­ eligible for assistance under this bill. The ized vehicles are allowed to travel the city's the land is most productive and there is streets. A youth trying to get across the bridge replacement program will make no strong relationship between these tracks on a bike, a pedestrian, such as an some 8,000 structurally deficient or func­ areas and the geographic location of the older person, walking across and even cars tionally obsolete Arkansas bridges eligi­ ultimate consumer. and trucks operators wm not be geared to ble for funding, including 1,500 such Thus, agriculture is more dependent watching out for a train coming at them at bridges in my district alone. on transportation than almost any other 45 mph. H.R. 11733 extends the highway trust It The ofilcials say the trains will be designed part of our economy. does little good for quietness, but 19 to 23 trains whistling fund for 5 years to accommodate this to produce a bumper crop of food and at each intersection on the average of one 4-year program. There are those of our fiber if you can not move it out of the per hour will not be exactly quiet. Nor is it colleagues who would have us believe countryside to the city grocery shelves comforting to think that the decision on the that the financing scheme of this bill is or to international markets. train's speed will be strictly up to one man, unsound and will result in a draining of A constituent wrote me not long ago the particular train's engineer, who will be the highway trust fund. I cannot agree seconding that proposition: expected to decide as he approaches the with their arguments and will speak to community how safe the tracks and weather We have some of the best truck gardeners that issue when the Giaimo amendment in this country that you can find in the conditions are. to require that program authorizations The Rall Trame Study Advisory Committee state. They raise some of the best produce which is probing the situation should listen must approximate revenues in the trust available anywhere. Most of them cannot and consider what the BN ofilcials tell them, fund is debated next week. get to a highway to get their produce out but they shouldn't be guided strictly by what Madam Chairman, the levels of fund­ to market without having to tear up their they are told. They should consider that if ing requested in this bill are based on vehicles on rough roads . . . All they need trains have to slow down .for towns, they documented needs, not wish lists. The is a way to get their products out to market. fall behind schedules, and that costs rail­ Public Works and Transportation Sub­ We can no longer afford to accept the roads money. · committee on Surface Transportation so short-sighted conclusions that, because There are other considerations, such as ably chaired by my colleague from New most of the people live in congested the present tramc routes available to motor­ ists, new routes which should be constructed, Jersey New York City subway system we had I urge its adoption.• a greater problem also better provide more money to rural Mr. ULLMAN. Madam Chairman, I Committee members need only to view the highways and roads if the people who would ask the gentleman from New York traffic problems at 5 p.m. weekdays at Broad­ intended to ride that subway were to if the gentleman has any further requests way and Overland, and at the North Platte have food to eat. for time? CXXIV--1862-Part 22 29618 CONGRESSIONAL RECORD- HOUSE September 15, 1978 Mr. CONABLE. Madam Chairman, I the request of the gentleman from required to manage more effectively our have no further requests for time. Oregon? relationship is a greater mutual under­ Mr. ULLMAN. Madam Chairman, I · There was no objection. standing of these very differences. have no further requests for time. Given the complex and multifaceted The CHAIRMAN. Does the gentleman nature of our relationship, it is impera­ from New York yield back the balance of INTRODUCTION . OF RESOLUTION tive that parliamentarians of both na­ his time? CALLING FOR MEETINGS BE­ tions gain through personal contact a Mr. CONABLE. Madam Chairman, TWEEN MEMBERS OF CONGRESS greater awareness and a clearer under­ under the circumstances, I have very AND JAPANESE DIET standing of the political realities which little choice. The SPEAKER. Under a previous shape legislative activities in our two Mr. ULLMAN. Madam Chairman, I order of the House, the gentleman from countries. yield back the balance of my time. New York

SENATE-Friday, September 15, 1978 (Legislative day of Wednesday, August 16, 1978) The Senate met at 9: 30 a.m., on the Let the words of my mouth, and the Mr. DECONCINI thereupon assumed expiration of the recess, and was called meditation of my heart, be acceptable in the chair as Acting President pro tem­ to order by Hon. DENNIS DECONCINI, a Thy sight, O Lord, my Strength, and my pore. Senator from the State of Arizona. Redeemer.-Psalms 19: 14. Amen. PRAYER RECOGNITION OF LEADERSHIP The Chaplain, the Reverend Edward The ACTING PRESIDENT pro tem­ L. R. Elson, D.D., otiered the following APPOINTMENT OF ACTING PRESI­ pore. The Senator from West Virginia. prayer: DENT PRO TEMPORE Let us pray. The PRESIDING OFFICER. The Come upon us, O Living Lord, as we clerk will please read a communication THE JOURNAL open our hearts to Thee, and tarry with to the Senate from the President pro Mr. ROBERT C. BYRD. Mr. President, us until eventide and our work is done. tempore

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