Probe of Judiciary Goes Slowly

Posted May 12, 2004 at 6:44pm

More than two months after being asked by Senators to undertake a probe of thousands of improperly accessed Democratic memos, the Justice Department has yet to request mounds of evidence that have been assembled by Sergeant-at-Arms Bill Pickle.

At this point, all the evidence compiled by Pickle and his aides — including more than 4,600 memos from computer servers and hard drives, plus reams of testimony from more than 100 Republican and Democratic staffers — remains in Pickle’s possession. Pickle’s office declined to comment on where precisely the evidence is being held.

In addition, no members of the Senate Judiciary Committee, nor their aides, have been contacted by prosecutors in the case. Key figures in the case, including former GOP staffer Manuel Miranda, have not been contacted either.

Two weeks ago, top officials at Justice referred the case to Manhattan-based U.S. Attorney David Kelley, removing Attorney General John Ashcroft and his top aides from the handling of the case.

Officials at Justice deferred all comment on the case to aides for Kelley, who did not return calls seeking comment on the matter.

The investigation does include some unusual constitutional issues that pose logistical problems.

In anticipation of a request from Kelley on the matter, top legal officials in the Senate began to discuss how the evidence could be transferred without trampling on Congressional privileges regarding an executive branch investigation in the legislative body’s daily workings.

“There’s a separation of powers thing there,” Judiciary Chairman Orrin Hatch (R-Utah) said this week.

After concluding his investigation and presenting it to Judiciary in early March — citing a few potential criminal violations in the accessing and dissemination of the files — Pickle gave an overview of the case to Justice officials in mid-March at the request of a bipartisan group of Judiciary Senators.

Once Kelley’s aides from the Southern District of New York formally request the Pickle material, the chamber’s procedures, specifically Rule 11, will go into effect. That rule places all proprietary rights to memos, testimony and other Senatorial papers with the chamber and its top officials. The rule requires a resolution of the Senate before any material is transferred to either the executive or the judicial branch.

Most times, Rule 11 requests are handled routinely — a process that has taken place a half-dozen times so far this year, often by unanimous consent as daily sessions wind to a close.

But Hatch and his aides are considering the impending request to be a highly unusual matter: In this case, the committee that has oversight responsibility for the Justice Department has requested a federal prosecutor to undertake a criminal investigation that will touch on the committee’s inner workings.

“Just by the separation of powers issue, there are going to be some unique interactions,” said one Republican aide. “This could be a precedent for the future.”

The aide said Hatch’s senior staff has begun preliminary discussions about the issue with the Senate’s Legal Counsel Office, which handles all Rule 11 requests.

A somewhat similar investigation has been ongoing of the House and Senate Intelligence committees, whose chairmen and ranking members asked the FBI in July 2002 to investigate a potential leak of information in the joint investigation into how terrorism-related intelligence was handled before Sept. 11, 2001. That probe, however, appears to have focused narrowly on the issue of the leak.

In the Judiciary investigation, Kelley’s prosecutors would have to explore the day-to-day activities of the panel — both majority and minority — and how aides interacted with outside groups on the highly contentious issue of fighting the judicial nomination wars.

So far, both sides appear anxious for him to get started, with neither side considering objecting to the investigation or preparing to fight any resolution that would hand over the mountain of evidence compiled by Pickle.

Conservatives such as Sens. John Cornyn (R-Texas) and Saxby Chambliss (R-Ga.) have taken an attitude of “letting the chips fall where they may,” but they also hinted that once Kelley looks into the issue, he might be able to investigate the nature of the memos themselves. Conservative activists allege that the memos show Democrats colluding with liberal groups in a potentially criminal manner to block presidential nominations.

“I imagine he would be at liberty to pursue it,” Cornyn said this week.

Pickle’s report found that Miranda and another former Judiciary aide, Jason Lundell, had downloaded 4,670 memos and documents over an 18-month period.

Miranda, who joined the staff of Majority Leader Bill Frist (R-Tenn.) in 2003, officially quit his job under pressure in early February. Lundell, who downloaded the overwhelming majority of the memos, left the committee staff a few months ago after being placed on leave.

Lawyers for the two men, as well as conservative activists, argue that no laws were broken in Lundell’s accessing of the memos, since he was able to do so on a shared computer server that was not password-protected.

Sen. Patrick Leahy (D-Vt.), the panel’s ranking member, called the actions “criminal” and led the charge for Kelley’s appointment, contending that Ashcroft, a former Judiciary member during his Senate term, should not oversee the case.