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Calendar No. 183 Calendar No. 183 104TH CONGRESS S. REPT. 1st Session SENATE 104±137 " ! RESOLUTION FOR DISCIPLINARY ACTION SEPTEMBER 8 (legislative day, SEPTEMBER 5), 1995.ÐOrdered to be printed Mr. MCCONNELL, from the Select Committee on Ethics, submitted the following R E P O R T [To accompany S. Res. 168] The Select Committee on Ethics, having considered an original Resolution for Disciplinary Action, reports favorably thereon and recommends that the resolution do pass. Pursuant to Article I, Section 5, Clause 2 of the United States Constitution, Senate Resolution 338 (88th Congress), as amended, and Rule 5(f) of the Committee's Supplementary Procedural Rules, the Select Committee on Ethics submits this Report in support of its recommendation to the Senate that Senator Packwood be ex- pelled from the Senate. If the Committee's recommendation is not approved by 67 Sen- ators, a secondary Resolution of Disciplinary Action will be pre- sented to the Senate, recommending a penalty of censure with loss of Committee chairmanship for the duration of Senator Packwood's term and the stripping of his seniority. I. PROCEDURAL HISTORY On December 1, 1992, the Committee announced that it had opened a Preliminary Inquiry into allegations by a number of women that Senator Packwood had engaged in sexual misconduct. On February 4, 1993, the Committee announced that it was ex- panding the scope of its inquiry to include allegations of attempts to intimidate and discredit the alleged victims, and misuse of offi- cial staff in attempts to intimidate and discredit. Almost immediately after opening its inquiry, the Committee began the process of taking the deposition of every woman who was willing to come forward with an allegation of misconduct by Sen- ★99±010 (Star Print) (1) 2 ator Packwood, and interviewing or taking the deposition of every witness who could corroborate those allegations, or who could exon- erate Senator Packwood, or who might have information that could shed light on the allegations. The Committee also mailed a letter and questionnaire to almost 300 women former staff members of Senator Packwood, asking if they wished to provide to the Commit- tee information relevant to the Committee's inquiry. Altogether, Committee staff interviewed, took the deposition of, or obtained an affidavit or statement from at least 210 witnesses in connection with the allegations relating to sexual misconduct or intimidation. The Committee reviewed at least 9,600 pages of documents in connection with this aspect of the inquiry. The Committee also served two requests upon Senator Packwood for documents that were relevant to the Committee's inquiry, and subpoenaed docu- ments from several other persons. Although Senator Packwood pro- vided a number of documents to the Committee in response to these document requests, he did not provide to the Committee any entries from his diaries, which he had kept daily since 1969, and which had been transcribed by his former secretary. On October 5, 1993, the Committee began Senator Packwood's deposition, anticipating that at its conclusion, the Committee could proceed to review all of the evidence that had been gathered, and conclude the Preliminary Inquiry by the end of 1993. On the second day of Senator Packwood's deposition, it became clear from his tes- timony that he had, at least cursorily, reviewed his diaries, and that they contained information that was relevant to the com- plaints that had been made against him. The deposition was halt- ed, and Senator Packwood's attorneys and Committee counsel worked out an agreement for the Committee staff to review Sen- ator Packwood's diaries. Committee staff immediately began that review; over the next six days in October 1993, staff reviewed, in the presence of Senator Packwood's attorneys, between 4,000 and 6,000 diary pages for the years 1969 to 1989, designating almost 300 pages for copying. This review came to a halt, however, when Committee staff discovered passages from 1989 that indicated possible misconduct by Senator Packwood in areas unrelated to the Committee's then-pending in- quiry into allegations of sexual misconduct and intimidation. These entries raised questions about whether Senator Packwood may have improperly solicited financial support for his wife from indi- viduals with interests in legislation. When Senator Packwood's attorney was informed that these en- tries raised new issues of potential misconduct, Senator Packwood's attorney asked that the Committee treat these issues as a separate matter, and not act upon them until the current inquiry into al- leged sexual misconduct and intimidation was concluded. Commit- tee counsel informed Senator Packwood's attorney that the Com- mittee was obligated to follow up on any information of potential misconduct within its jurisdiction that came to its attention. Sen- ator Packwood's attorney indicated that in light of this, they would proceed to mask additional categories of material in the diaries. Senator Packwood's attorneys were informed that additional mask- ing was not acceptable, and if Senator Packwood was not willing to produce his diaries according to the original agreement, the 3 Committee would consider subpoenaing them. In response, Senator Packwood broke off all further cooperation, refusing to allow the Committee to finish reviewing his diaries from 1989 through 1993, and refusing to provide the Committee with copies of approxi- mately 170 pages from earlier years that Committee counsel had designated as relevant to the inquiry relating to allegations of sex- ual misconduct and intimidation. On October 20, 1993, the Committee unanimously voted to sub- poena Senator Packwood for production of his diary tapes and tran- scripts. When he failed to comply, the Committee introduced a res- olution on the floor of the Senate to authorize the Committee to go to court to enforce the subpoena. After two days of debate by the Senate, this resolution was approved on November 2, 1993 by a vote of 94 to 6. The Committee was forced to apply to the United States District Court for the District of Columbia to enforce the subpoena on November 22, 1993, and the matter was heard by Judge Thomas Penfield Jackson on December 16, 1993. The Committee took the deposition of Senator Packwood's diary transcriber on November 22, 1993. Shortly thereafter, on December 10, 1993, the Committee received an affidavit from her, indicating that after the initiation of the Committee's inquiry, Senator Pack- wood took back from her some audiotapes that she had not yet transcribed, telling her that he was concerned about a subpoena. He returned those tapes to her, and when she listened to them, it seemed to her that he may have made some changes to the tapes. In a second deposition to the Committee, she testified that Senator Packwood confirmed to her that he had, in fact, made changes to the audiotapes. On December 15, 1993, the Chairman and Vice-Chairman de- cided to investigate the issue of possible alteration of the diaries as an inherent part of the Committee's Preliminary Inquiry. All of the information provided by the diary transcriber regarding possible al- teration of the diaries was publicly provided to Judge Jackson, who ordered that the diary transcripts, as well as the corresponding audiotapes, be deposited with the Court for safekeeping pending the Court's decision on enforcing the Committee's subpoena. Judge Jackson granted the Committee's application and on Janu- ary 24, 1994 ordered the diaries to be turned over to the Commit- tee. After hearing from both sides, on February 4, 1994, he estab- lished guidelines for the Committee's review of the diaries. Senator Packwood appealed Judge Jackson's Order to the Court of Appeals, and also requested that the Court of Appeals stay Judge Jackson's Order that he turn his diaries over to the Committee while his ap- peal was being considered. The Court of Appeals denied this re- quest, and Senator Packwood appealed to Supreme Court Justice William Rehnquist to stay Judge Jackson's Order. On March 2, 1994, Justice Rehnquist denied Senator Packwood's request. Sen- ator Packwood then withdrew his appeal of Judge Jackson's Order from the Court of Appeals. Judge Jackson's Order of February 4, 1994 established a process for the Committee's review of Senator Packwood's diaries wherein Senator Packwood would be allowed to mask certain portions of his diaries. The Judge's Order designated Kenneth Starr as Special Master for the Court to review the Senator's masking. The Com- 4 mittee received the first volume of masked diary transcript on March 30, 1994 and the last of the transcripts on April 29, 1994. These transcripts, numbering more than 2600 pages of single- spaced entries covering virtually every day from 1989 through 1993, were compiled in ten volumes. Upon completion of the Com- mittee staff's review of Senator Packwood's typewritten diaries, the Committee expanded its inquiry again on May 11, 1994 to include additional areas of misconduct by Senator Packwood, including so- licitation of financial support for his spouse from persons with an interest in legislation in exchange, gratitude or recognition of his official acts. The Committee began receiving masked audiotapes from Mr. Starr in October 1994. The Committee received the last of the audiotapes corresponding to the ten transcript volumes on January 13, 1995 and additional diary pages and tapes on January 24, 1995. There was a final delivery of ten duplicate tapes on February 27, 1995. The Committee received and reviewed in excess of 350 audiotapes. Senator Packwood's deposition was taken again from January 17 through January 21, 1995. Committee staff attorneys conducted the Preliminary Inquiry with the assistance of an investigator from the Office of Special In- vestigations of the General Accounting Office.
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