Justice Refers Leaking Case

Posted April 26, 2004 at 6:59pm

The Justice Department has referred a criminal investigation into improperly accessed Senate Democratic memos to the U.S. attorney for the Southern District of New York, acceding to Democratic calls for an independent probe of the matter.

The Justice Department informed Sen. Patrick Leahy (D-Vt.), the ranking member on the Judiciary Committee, in a letter Monday that an investigation into the accessing of more than 4,600 memos had been assigned to David Kelley, the lead federal prosecutor for one of the most critical regions of the nation.

The letter to Leahy, written by Assistant Attorney General William Moschella, called Kelley “an experienced prosecutor of the highest integrity and independence.”

“We are confident the investigation will be handled in a thorough, fair, impartial and professional manner,” Moschella wrote.

Senators and aides assumed the decision to hand the case off to Kelley was made by Deputy Attorney General James Comey, who previously served as U.S. attorney for New York’s Southern District. It marks the second time in less than six months that Attorney General John Ashcroft has allowed Comey to hand off a politically sensitive case involving potentially illegal leaks of information to one of his former colleagues in the Manhattan federal prosecutor’s office. In late December, Comey appointed the U.S. attorney from Chicago, Patrick Fitzgerald, who served as a deputy federal prosecutor in Manhattan before getting the top job in Chicago, to oversee the criminal investigation into the leaked identity of CIA operative Valerie Plame. She is the wife of former Ambassador Joe Wilson, who had been critical of the Bush administration’s handling of pre-war intelligence relating to Iraq.

In a bipartisan letter signed by three Judiciary Republicans and three Democrats early last month, the Senators specifically cited the Fitzgerald appointment as the example they would like to see followed in handling the memo case.

The decision removes Ashcroft and his top deputies at Justice from day-to-day decision-making in a highly sensitive — and highly partisan — case. Before taking over Justice, Ashcroft served on the Judiciary Committee for six years and some of his top DOJ aides worked on the committee with some of the current staffers who would likely have to be interviewed in any subsequent investigation.

The Southern District of New York is considered a top outpost for federal prosecutors, particularly those dealing with complicated financial and technological criminal allegations. It recently has been handling a host of high-profile criminal financial cases, including that of Martha Stewart, who was found guilty of lying to federal investigators probing potential inside stock trades.

Kelly’s prosecutorial background included numerous terrorism cases, including the 1998 bombing of U.S. embassies in Kenya and Tanzania, on which he worked with Fitzgerald.

The appointment of Kelley is a stinging rebuke to conservative activists who long argued that accessing the memos was not a crime since the two former aides at the center of the case did so without hacking into Democratic computer systems. As late as last week, Manuel Miranda had not been contacted by federal investigators and was telling friends he did not expect to be contacted.

In a statement Monday, Miranda said: “I expect that any fair-minded, apolitical law-enforcement professional will quickly conclude what legislators could not — that no crime was committed.”

Miranda worked for Judiciary in 2001 and 2002, when a colleague, Jason Lundell, took at least 4,670 memos off Democratic servers with only a couple of clicks of his computer, a glitch that Leahy’s staff left open. When a dozen or so of the memos were leaked to conservative media outlets in November 2003, Democrats cried foul and an ensuing investigation by Senate Sergeant-at-Arms Bill Pickle laid out the case.

After laying out his report for the Judiciary Committee, Pickle briefed Comey’s top aides six weeks ago about the case.

Senators, both Republicans and Democrats, expressed relief Monday that the case had been referred to Kelley and that they no longer had any control of what happened with the case.

Saying Judiciary and Pickle never should have handled the probe to begin with, Sen. John Cornyn (R-Texas) said he was “pleased” a professional prosecutor would handle the case, letting the “chips fall where they may.”

Sen. Jon Kyl (R-Ariz.) also said Kelley’s appointment would take the politics out of the case. “This is a straightforward matter,” he said. “It needs to have a prosecutor look at it. Forget all the political points.”

Democrats were happy with the appointment, noting that the Pickle report noted that there were many instances in which the in-house investigators did not have full authority to convene a grand jury and subpoenaing witnesses. “With the power available to a federal prosecutor, this matter can now be more thoroughly investigated so that those who engaged in criminal conduct may be brought to justice,” Leahy said.