Springfield State Journal Register

March 12, 2004

Memo case to be sent to Justice
But senators split on wording request


WASHINGTON - The Senate Judiciary Committee agreed Thursday to ask the Justice Department to determine whether any crime occurred when two Republican staffers secretly accessed 4,670 mostly Democratic computer files, including nearly 2,000 belonging to Sen. Dick Durbin, D-Ill.

But late-night negotiations reached only limited agreement on the specifics of that request. Three Republicans and three Democrats out of 19 committee members signed a letter asking Attorney General John Ashcroft to appoint a special counsel to investigate the theft and dissemination of Democrats' computer files.

Chairman Orrin Hatch, R-Utah, left the negotiations without agreeing to sign.

Nevertheless, Durbin said, "we will have a good, positive impact because we have three senators from each side of the aisle. I hope the Department of Justice will take that seriously."

Durbin said other Republicans refused to sign because they didn't want an investigation to include those who received the stolen memos.

"If they're stolen property and they receive them, that's a crime," Durbin said. "The reason they didn't want to follow up is they know that the groups that received them are some of their strongest supporters."

Republican opponents of the letter were not available for comment.

In addition to Durbin, the letter was signed by: Sens. Edward Kennedy, D-Mass.; Charles Schumer, D-N.Y.; Saxby Chambliss, R-Ga.; Lindsey Graham, R-S.C.; and Mike DeWine, R-Ohio.

Earlier in the day, Republican and Democratic members alike said they wanted to present a unified front in responding to the breach of trust and confidentiality they say occurred.

The committee's referral for possible criminal prosecution took place one week after it received a report from Senate Sergeant-at-Arms William Pickle detailing how two former GOP committee staffers deliberately and secretly accessed thousands of computer files, mostly belonging to Democrats. The memos discuss political strategy for blocking judicial nominations.

Concluding nearly four months of investigation, the report states that others may have had access to the computer files. But Senate investigators don't have subpoena powers to compel testimony as a grand jury would.

Durbin said he wanted to request a special counsel - someone with a reputation for independence such as U.S. Attorney Patrick Fitzgerald of Chicago - to avoid any partisan conflicts.

"If Patrick Fitzgerald calls me and tells me there is nothing to prosecute, then I'll accept that," Durbin told his fellow committee members Thursday.

Pickle recommended that the committee turn the report over to the U.S. attorney for the District of Columbia.

But Durbin said one of his former staffers, whose computer documents were stolen, went on to work for the U.S. attorney for the District of Columbia. Although he no longer works there, his wife still does, creating a conflict of interest.

Former Republican staffers also now work in the Justice Department, creating a conflict there too, senators said.

Several Republicans said they would have no objections to Fitzgerald, whose reputation for independence led him to be chosen to investigate who outed CIA agent Valerie Palme.

"The nature of this is unique, and it might be in everyone's best interest if a special counsel handles this," said DeWine.

The letter suggests Fitzgerald as a model of the type of prosecutor the signers would like to see chosen.

Hatch repeatedly said he wanted to "depoliticize" the issue.

On Wednesday, Democrats including Durbin wrote Ashcroft, demanding a special counsel and stating that Ashcroft's direct involvement in the matter would be a conflict of interest for any prosecutor he would name. That act angered some committee Republicans, who believed it to be an overly partisan tactic.

Durbin apologized Thursday morning, saying the letter had been a "mistake" and that he'd like to see the matter end on a "bipartisan note."

Previously, Durbin and other Democrats wrote the White House and Justice Department to determine whether the Democrats' memos were used to prep any judicial nominees who appeared before the committee.

Pickle said that the Justice Department is not required to appoint a special counsel and that it would be unlikely for Fitzgerald to be chosen as he's already involved in a major case.