By Alexander Bolton - 02/16/06 12:00 AM EST
Justice Department officials are negotiating with the Senate’s legal counsel over access to Judiciary Committee documents on the committee’s investigation of a memo scandal that roiled the upper chamber two years ago, according to a source familiar with the situation.
The Senate legal counsel is in turn consulting with committee staff about the sensitivity of the documents to determine what can be turned over to the executive branch, decisions that could have an impact on how much access future administrations have over legislative documents.
But while the Senate legal counsel is conducting negotiations, lawmakers will make the final decision about what is shared.
The complicated negotiations appear to be slowing down the Justice probe, or at least postponing any decision by prosecutors about whether to bring charges or drop the case.
The Senate rarely turns over its documents to the Justice Department to use in an investigation. The most recent instance The Hill learned of occurred July 20, 2004, when the Senate agreed to a resolution authorizing the chairman and vice chairman of the Select Committee on Intelligence to provide Justice officials with committee records relevant to a probe into the involvement of U.S. government officials in the Peruvian counternarcotics air interdiction program.
Senate lawyers are said to be concerned about setting a precedent that would allow officials of the executive branch to obtain wide-ranging access to Senate documents in order to conduct investigations. One fear is that future administrations could use an investigation as a pretext to peruse the sensitive documents of opposition lawmakers.
The current investigation stems from the controversial publication in the fall of 2003 of internal Democratic memoranda that two former Republican committee aides admit to accessing on a computer server shared by Republican and Democratic members of the Judiciary Committee.
Several of the published memos, written by aides to Democratic Sens. Dick Durbin (Ill.) and Edward Kennedy (Mass.), who were leading the opposition to President Bush’s conservative judicial nominees, discussed strategy and the views of liberal advocacy groups opposing the nominees.
The uproar over the memos’ publication resulted in the resignation of Manuel Miranda, then the top aide handling judicial nominations for Senate Majority Leader Bill Frist (R-Tenn.). Miranda admitted to accessing the documents. A junior Judiciary Committee aide who admitted to downloading and reading the Democratic files also resigned.
After the Senate sergeant at arms investigated the matter and produced a report, Judiciary Committee Democrats and three Republicans requested in March 2004 for federal prosecutors to investigate.
Democratic Sens. Kennedy, Durbin, and Charles Schumer (N.Y.) and Republican Sens. Mike DeWine (Ohio), Saxby Chambliss (Ga.) and Lindsey Graham (S.C.) sent a letter to then-Attorney General John Ashcroft requesting an investigation.
The lawmakers asked Ashcroft to appoint a “professional prosecutor who is free from all conflicts or appearances of conflict.” Ashcroft gave the case to David Kelley, then the U.S. attorney for the Southern District of New York.
Kelley negotiated with the Senate legal counsel over drafting a resolution to obtain evidence from the Senate in the spring of 2004. But by March of last year, Kelley’s effort seemed to have ground to a halt, though the prosecutor had reportedly interviewed current and former Republican aides.
The lack of progress prompted Durbin to send a letter to Attorney General Alberto Gonzales in September asking for information on the status of the probe and suggesting the appointment of a new special prosecutor to “invigorate this investigation and move it forward in a timely manner that will yield results.”
Around that time, Michael Garcia replaced Kelley as the U.S. attorney for the Southern District. Garcia has since renewed the office’s investigation into the memo issue.
It is unclear whether the U.S. attorney’s office refocused its investigation because Garcia replaced Kelley or because of Durbin’s letter to Gonzales.
Durbin told The Hill that he was not aware of negotiations between law-enforcement officials and the Senate legal counsel over Judiciary Committee documents.
He also said that he did not remember whether he sent letters demanding action to the Justice Department other than the September missive that was made public but added that his staff had contacted department officials.
“My staff talked with them by phone,” he said.
Kennedy said that he was not aware of discussions between federal prosecutors and the Senate legal counsel.
The Republican aides may have accessed more than 4,000 Democratic documents from the Judiciary Committee server.
Some conservative activists who have followed the controversy speculate that Durbin and Kennedy may be reluctant to give prosecutors wide access to their files because of their political sensitivity.
The Senate legal counsel considers all committee documents protected by the Speech or Debate Clause of the Constitution, which the Founding Fathers drafted to protect Congress from harassment by the executive branch. Individual lawmakers can decide to share documents with law-enforcement officials, but the whole Senate must pass a resolution waiving Speech or Debate protections for prosecutors to use them as evidence.
Miranda could not be reached for comment yesterday. In an interview earlier this week, he said that he was not aware of any recent activity by prosecutors. He said he thought that the Senate legal counsel had decided not to allow prosecutors access to Senate documents.