[Congressional Record (Bound Edition), Volume 150 (2004), Part 4]
[Senate]
[Pages 4308-4310]
[From the U.S. Government Publishing Office, www.gpo.gov]




  THE PROBE INTO THE IMPROPER ACCESS OF JUDICIARY COMMITTEE COMPUTER 
                                 FILES

  Mr. LEAHY. Mr. President, yesterday the Judiciary Committee met in 
public session to discuss how best to proceed with the investigation 
into the theft and dissemination of confidential Judiciary Committee 
computer files. Over the last several weeks and months Democratic 
Senators have shown great patience with the process.
  Last week, the chairman of our committee made the report of the 
Sergeant at Arms into this matter publicly available. For days, 
Senators have been consulting about the follow-up investigation that is 
now needed. Over the last few weeks a number of Senators, Republicans 
and Democrats, have acknowledged that these matters, now documented in 
the report of the Senate Sergeant at Arms, warrant further 
consideration by law enforcement officials. Along with other Senators, 
I have reached across the aisle to urge all Senators to now join us in 
a request for a special counsel to conduct the investigation necessary 
to complete action and assure accountability for this unprecedented 
partisan espionage within the Senate. Yesterday I renewed that 
invitation to join in our request for the appointment of a special 
counsel of the highest integrity and independence to follow up on this 
matter.
  I had hoped that we could move forward together, and yesterday we did 
achieve a bipartisan majority of the Judiciary, which has now joined in 
requesting a criminal investigation by an independent prosecutor.
  On Wednesday, March 10, nine Senators on the committee sent a letter 
to the Justice Department seeking the appointment of special counsel in 
this matter. Thursday morning, March 11, nine Republican Senators wrote 
to Chairman Hatch and noted:

       [W]e are now certain that only a determination by a 
     professional prosecutor as to whether any laws were violated 
     will bring this matter to a just and timely resolution.

  Yesterday all members on the Judiciary Committee endorsed having a 
professional prosecutor free from politics consider these matters 
without regard to partisanship.
  Last night Republicans and Democrats joined in another letter to the 
Justice Department to request ``appointment of a prosecutor of the 
highest integrity and independence to investigate and, if appropriate, 
prosecute all potential crimes related to the access and dissemination 
of Judiciary Committee staff files'' outlined in the report by the 
Senate Sergeant at Arms.
  Someone who is removed from politics is essential. As we outline in 
our March 10 letter, many of us are concerned that it be special 
counsel and that the Attorney General recuse himself from the process 
for a number of reasons. In the March 12 letter from Senators Schumer, 
Graham, Durbin, Chambliss, Kennedy and DeWine, they likewise note that 
the prosecutor handling the matter must be ``free from all conflicts 
and appearances of conflict.'' They suggest that Patrick Fitzgerald, 
who has been given responsibility for the investigation of the lead of 
CIA operative Valerie Plame's identity, would

[[Page 4309]]

be an ``ideal candidate'' and that his mandate is a good model for that 
of the prosecutor to whom is assigned responsibility for investigation 
of the matter of the Judiciary Committee computer files.
  With respect to the Sergeant at Arms' report, I, again, thank him and 
his staff for operating in a nonpartisan way and in the best tradition 
of the Senate. The report shows, without question, that the secret 
surveillance and stealing of confidential computer files was 
calculated, systematic and sweeping in its scope. After reading the 
report, there is a lot more that we do know: We know that more than 
4,000 computer files were stolen. We know that the stealing of 
Democratic computer files occurred over an extended period of time, 
from at least 2001 into 2003. We know that numerous staff members of 
Republican Senators and Republican Senate leadership were aware of this 
activity. We know that what was done was improper, unethical and likely 
criminal.
  However, after reading the report, there is still a lot that we do 
not know. We do not know how the computer files and the information 
contained therein were exploited. We do not know whether the stolen 
computer files or the information in them were shared with the 
Department of Justice directly or indirectly. We do not know whether 
they were shared with the White House directly or indirectly. We do not 
know whether they were shared with any of the nominees. We do not know 
what stolen files or information contained therein was shared with 
partisan advocacy groups on the right. Those are among the questions 
that a special counsel with the tools to conduct a criminal 
investigation and compel testimony and information may discern. Indeed, 
the Sergeant-at-Arms report acknowledges many of its limitations and 
those on the authority of that office to get all the facts.
  I hope Senators who care about accountability and the rule of law, 
and those interested in repairing the damage by this unprecedented 
spying campaign will support our request for the prompt appointment of 
a special prosecutor to conduct the criminal investigation into the 
theft of our computer files that is still needed. I hope the Justice 
Department will move quickly, properly assign this matter, and conduct 
an investigation to get to the bottom of the unprecedented wrongdoing 
that we have suffered.
  I ask unanimous consent that copies of the letters of March 10, March 
11 and March 12 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                   Washington, DC, March 10, 2004.
     Hon. John D. Ashcroft,
     Attorney General, U.S. Department of Justice,
     Washington, DC.
       Dear Attorney General Ashcroft: We write to request that 
     the Department of Justice open a criminal investigation into 
     the theft and use of Democratic computer files from the 
     Senate Judiciary Committee computer server and appoint a 
     special counsel to conduct that investigation.
       A criminal investigation into the theft and use of these 
     files is warranted. In addition to press accounts since the 
     middle of November 2003 about the stolen computer files, 
     there has been an investigation by Senator Hatch of his staff 
     and a Senate Sergeant-at-Arms inquiry into this matter. 
     Neither of these investigations had the tools a federal 
     prosecutor has available to compel testimony or subpoena 
     evidence in order to investigate fully who stole or spied on 
     Democratic computer files and how the stolen files were used.
       Based on the recent report of the Sergeant-at-Arms, it 
     appears that from some time in 2001 until at least the spring 
     of 2003, and possibly until November 2003, staff of 
     Republican Senators stole and used information from internal 
     and confidential Democratic office computer files, including 
     memoranda from counsel to Senators. Republican staff 
     knowingly exceeded authorized access and intentionally 
     accessed materials on government computers which they knew, 
     from the directory and subdirectory titles, they were not 
     entitled to access, and thereby obtained information used for 
     their advantage and possibly in violation of law. They read, 
     download, printed, and used such files for their own personal 
     and partisan purposes. Employees from Senator Hatch's 
     Judiciary Committee staff and from Majority Leader Frist's 
     Republican Senate leadership staff have resigned in 
     connection with these activities. We believe that the 
     unauthorized accessing, reading, downloading, printing, and 
     use of these files constitute violations of multiple federal 
     and local criminal laws and warrant criminal investigation.
       It would be in the public interest to appoint an outside 
     special counsel to investigate these crimes because of the 
     conflict of interest these cases present to the Department. 
     We also respectfully suggest that it would be appropriate for 
     you to recuse yourself from the consideration of this request 
     for a special counsel. Your direct involvement in this matter 
     would present a conflict of interest due to your recent 
     service as a United States Senator and your close personal 
     and political relationships with some of the Senators whose 
     offices are subjects of the investigation and with other 
     Members of the Judiciary Committee. In addition, several 
     former Republican Judiciary Committee staff members, 
     including two with supervisory responsibilities during the 
     period in question, now serve in senior positions within the 
     Department of Justice and others have in the recent past.
       Among the many outstanding questions is whether the stolen 
     computer files or information derived therefrom was shared 
     with the Department of Justice or White House directly or 
     indirectly. You and your staff were actively engaged in 
     issues relating to judicial nominations during the period 
     when the activities at issue here were being carried out. As 
     you know, a number of Senators recently wrote to ask about 
     your and the Department's knowledge of, or involvement in, 
     the matter of the stolen computer files and information 
     derived therefrom. Any thorough investigation would have to 
     address these issues as well.
       Only a special counsel can investigate this matter in a 
     manner that will have credibility with the public. It is 
     plainly in the public interest to appoint a special counsel. 
     Political appointees should not investigate this matter when 
     the very purpose of the wrongdoing was to assist with 
     politically sensitive judicial confirmations sought by this 
     Administration and managed, in large part, by the Department. 
     We trust that you, or your designee, will agree that a 
     special counsel with a reputation for integrity and impartial 
     decisionmaking and with appropriate experience and resources 
     should be appointed to conduct such an inquiry. Among those 
     resources would be the expertise of the Computer Crimes and 
     Intellectual Property Section of the Criminal Division, which 
     has assisted in the investigation and prosecution of similar 
     federal crimes. We respectfully request that a special 
     counsel of the highest integrity and independence be 
     appointed and that the special counsel receive a broad and 
     clear mandate for independent action, including the 
     discretionary ability to report to Congress and to the public 
     and protection against termination unless the appointing 
     official finds and certifies to extraordinary improprieties.
       Thank you for your prompt consideration and action in 
     response to this request.
           Sincerely,
         Patrick Leahy, U.S. Senator; Herb Kohl, U.S. Senator; 
           Charles E. Schumer, U.S. Senator; Edward M. Kennedy, 
           U.S. Senator; Dianne Feinstein, U.S. Senator; Richard 
           J. Durbin, U.S. Senator; Joseph R. Biden, Jr., U.S. 
           Senator; Russell D. Feingold, U.S. Senator; John 
           Edwards, U.S. Senator.
                                  ____



                                                  U.S. Senate,

                                   Washington, DC, March 11, 2004.
     Hon. Orrin G. Hatch,
     Chairman,
     Senate Committee on the Judiciary.
       Dear Chairman Hatch: A week has passed since the public 
     release of the Report on the Investigation into Improper 
     Access to the Senate Judiciary Committee's Computer System 
     (Mar. 4, 2004) prepared by the Sergeant at Arms of the United 
     States Senate. The Sergeant at Arms' report sets forth in 
     great detail factual findings regarding the improper access 
     of computer files belonging to Democratic staff members of 
     the Senate Committee on the Judiciary (the committee) by two 
     former Republican committee staff members. As explained in 
     the Sergeant at Arms' report, this investigation was 
     initiated in November of last year, shortly after the Wall 
     Street Journal and Washington Times printed articles in which 
     they acknowledged receipt of Democratic staff memoranda.
       While it is not our place as members of the committee to 
     decide whether any of the acts described in the Sergeant at 
     Arms' report constitute criminal violations of Federal law, 
     we nevertheless are convinced that this is a very serious 
     matter that needs to be reviewed and considered by the proper 
     authorities at the earliest opportunity. As you know, our 
     goal has always been to approach this investigation in the 
     least politicized manner possible. We had hoped that the 
     committee would debate the proper course of action and arrive 
     at a bipartisan agreement on how to proceed with the 
     information revealed in the Sergeant at Arms' report. 
     However, we are now certain that only a determination by a 
     prosecutor as to whether any

[[Page 4310]]

     laws were violated will bring this matter to a just and 
     timely resolution. We commend your commitment to a thorough 
     investigation of this matter as it affects the very integrity 
     of our committee.
           Sincerely,
         Jon Kyl, John Cornyn, Jeff Sessions, Larry E. Craig, Mike 
           DeWine, Arlen Specter, Lindsey O. Graham, Charles E. 
           Grassley, Saxby Chambliss.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                   Washington, DC, March 12, 2004.
     Hon. John D. Ashcroft,
     Attorney General, U.S. Department of Justice,
     Washington, DC.
       Dear Attorney General Ashcroft: We write to request that 
     the Department of Justice appoint a prosecutor of the highest 
     integrity and independence to investigate, and, if 
     appropriate, prosecute all potential crimes related to the 
     access and dissemination of Judiciary Committee staff files 
     outlined in the attached Report from the Senate Sergeant at 
     Arms. We consider this breach of Senators' privacy to be a 
     matter of the utmost seriousness. While we very much 
     appreciate the fine work of the Sergeant at Arms, we note 
     that the attached Report itself suggests many avenues of 
     additional inquiry that have not been--and indeed could not 
     have been--pursued by this preliminary Senate investigation.
       Because of the potential for perceived and actual conflicts 
     of interest, the undersigned members of the Judiciary 
     Committee agree that this matter must be handled by a 
     professional prosecutor who is free from all conflicts and 
     appearances of conflict--or, if appropriate, a special 
     counsel--who has full investigatory, charging and reporting 
     authority; who will conduct a thorough investigation; and who 
     will not be removable from this assignment except in case of 
     extraordinary improprieties. Patrick Fitzgerald, the U.S. 
     Attorney for the Northern District of Illinois, has been 
     given such independence in the investigation of the leak of 
     CIA operative Valerie Plame's identity, and we believe that 
     his mandate should be a model for the mandate of the 
     prosecutor in this case. Indeed, we agree that Mr. Fitzgerald 
     himself would be an ideal candidate for this investigation as 
     well. At a minimum, any special counsel or other prosecutor 
     appointed in this matter should be of Mr. Fitzgerald's 
     integrity and have the same degree of independence.
           Sincerely,
     Charles Schumer.
     Richard J. Durbin.
     Edward M. Kennedy.
     ------ ------
     Saxby Chambliss.
     Mike DeWine.

                          ____________________