Investigating a Senator
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TERENCE SMITH: For more on the Torricelli investigation and the media attention it is getting, we turn to the senator’s congressional colleague, Representative John Conyers of Michigan; to Evan Thomas, a Newsweek assistant managing editor who is covering the Torricelli case; and to John Barrett, a former federal prosecutor and Justice Department official, who is now a professor at St. John’s University School of Law.
For the record, we invited Senator Torricelli and prosecutor Mary Jo White to join us tonight, both declined. Welcome to you all.
Congressman Conyers, you and your colleagues have been accusing the Justice Department of being the source of these leaks, what is your evidence of that?
REP. JOHN CONYERS: Well, one of them is the newspaper that you beat me to showing again. I showed it to Ashcroft, or the attorney general. Plus, there… I’ve got 11 other quotes from newspapers and wire services all over the country. I don’t think that anybody questions whether they are leaks.
The whole problem, though, is the failure of the Department of Justice to investigate the leaks, and talking about you’ve recused yourself from the case doesn’t mean that you’ve recused yourself as the attorney general from investigating leaks in a matter that is as sensitive as this. Namely, the removal of one Democratic senator could change the balance and composition of the leadership of the United States Senate.
TERENCE SMITH: And are you saying that that’s the motive for these leaks?
REP. JOHN CONYERS: Well, it was… It was two days after Jeffords had changed, left the party that we began to get these leaks. So I wish I could find out what the motives and what the… who’s doing what, but we know that the Department of Justice isn’t doing its job. When I asked the attorney general, has anybody in the White House or the top Republican officials been in touch with anybody in the Department of Justice or you, he says, I don’t know.
TERENCE SMITH: Right, he did. Evan Thomas, you’ve covered cases like this before. You’ve covered this case. And indeed there has been a drum beat of stories about it. Are these leaks different either qualitatively or quantitatively?
EVAN THOMAS: No, I think this is a pretty typical case. There are an awful lot of leaks in The New York Times, that’s true.
TERENCE SMITH: And other papers, I must say. You’ve seen it in The Burgeon Record…
EVAN THOMAS: There are always leaks. When a U.S. senator is being investigated by the feds, you’re going to have leaks. But I think the congressman is assuming an awful lot to say that this is a direct feed by the Justice Department to get a Democratic senator. For one thing, typically in these cases, reporters aren’t just force fed. They do some reporting, and often they talk to witnesses, and they pick up a little bit of information from the witnesses or from their lawyers, and then they take a little bit of information and they get some more information from the feds.
The feds more typically are confirming than just spewing out the information to begin with. Without getting into the sources in this specific case, I can say the pattern is more indirect than a direct feed from a prosecutor.
REP. JOHN CONYERS: Look, my friend, that’s the most beautiful rationale I’ve heard today. In other words, that it’s okay for the Department of Justice, highly placed officials, to be quoted saying they’ve got enough evidence to indict and we are not supposed to think that that’s wrong because they do the wrong thing constantly when members of Congress or high-ranking officials or above… I don’t buy that rationale.
TERENCE SMITH: Okay, congressman, let me ask Professor John Barrett, who has been a federal prosecutor himself, who’s dealt with these issues, what you think of them. Are they wrong as the congressman says, or are they more routine as Evan Thomas suggests?
JOHN BARRETT: Well, I’m afraid I’m in agreement with both of my colleagues. There is a deeply offensive quality to this kind of reporting. It offends anyone’s sense of fair play. And if it’s coming from the government, it is indeed misconduct and perhaps criminal. What Evan Thomas is correct about, though, is that it’s right for journalists to report on these cases and it’s common for journalists to get someplace, often because people who aren’t part of the government but are in the loop of the investigation, the witnesses who are cooperating, the people who are testifying and the lawyers who are defending all of them, are there for the journalists to talk to. So I think they’re both right, and the whole picture is combining probably some government speech with some non-government speech, and all of it is bad for Torricelli.
TERENCE SMITH: Now, to clarify, Professor Barrett, as I understand it, it would be illegal if the prosecutors or anyone were to leak information that had been turned over to the grand jury.
JOHN BARRETT: Yes, but that’s a very narrow… Right, that’s a very narrow category of information. The only thing that’s prohibited by that federal rule is disclosure of information on matters before the grand jury. That doesn’t restrict prosecutors or law enforcement agents from talking about their own thinking, their own hypotheses, their tentative conclusions, their investigative findings outside of the grand jury process, what people have said to them during informal interviews, what documents they’ve uncovered on their own outside of the grand jury. All of that is uncovered by this grand jury secrecy rule. It does violate…
REP. JOHN CONYERS: This is not an ordinary case. This is a case in which the control of the United States Senate turns, and so to say that this is routine business, why don’t we just get an outside counsel and why doesn’t the attorney general have the decency and civility to investigate the leaks?
TERENCE SMITH: Well, and let me ask you this, congressman: Can you tell from what you know which category these leaks, if they are leaks, fit into… that Professor Barrett was talking about. Is it legal or illegal?
REP. JOHN CONYERS: How in the world can I do that? That’s the attorney general’s job.
TERENCE SMITH: And you have in fact asked for that sort of an investigation?
REP. JOHN CONYERS: We’ve sent… We’ve sent the Attorney General a dozen questions about this. We’ve asked for an investigation. We’ve asked for outside counsel, and we can’t get a thing out of him. He doesn’t know. He said, I’ve recused myself. So I don’t know if my department is leaking or not.
TERENCE SMITH: Exactly.
REP. JOHN CONYERS: Which implies that he doesn’t care.
TERENCE SMITH: Evan Thomas, is it realistic in a case like this when so much detailed information about the investigation has come out, is it realistic to believe that that comes from anywhere other than the prosecutors?
EVAN THOMAS: Yeah, initially, I think it comes from a lot of different course sources. Now the prosecutor may be confirming some of it, but there are a lot of parties involved in this case. There are witnesses. There are little fish that the prosecutors have gone after on their way to fishing for the big fish. It’s not all that hard to get information in these cases. Typically, typically the prosecutor is in the role of confirming something. I’m not excusing that. In fact, when it’s grand jury information, it’s illegal. But I am saying that it’s fairly typical and it doesn’t begin with the prosecutors.
REP. JOHN CONYERS: We’re talking about quotes from federal officials and U.S. attorneys. We’re not talking about little fish and outside information. We’re… the citations I have are from Justice Department investigators, federal agents, FBI wiretap. That’s not little fish and fooling around. This is coming… this is an orchestrated activity. And by the way, have you seen the letter that then-Senator Ashcroft sent out about Torricelli, in which he had found him literally guilty of corruption before he had ever become attorney general?
TERENCE SMITH: That was…
REP. JOHN CONYERS: Did you know about that?
TERENCE SMITH: Yes, we do. That was a campaign letter, but it is on the record. Professor Barrett, go ahead.
JOHN BARRETT: Well, I think that Congressman Conyers is right. And I hope he understands that we’re in really quite great agreement that it’s…
REP. JOHN CONYERS: Well, I’m glad to know that.
JOHN BARRETT: …that it’s offensive if the government is doing this to Senator Torricelli. Evan Thomas is right. And Evan Thomas, frankly, is reporting this case, so when he says there are witnesses and there are lawyers who are providing information, I think that’s very important. That’s information to take to the bank. But the confirming that he points to is where the misconduct begins. If that confirming is being done by the government, it’s unfair. And if it’s confirming grand jury activity, it’s illegal.
REP. JOHN CONYERS: Well, Professor Barrett, don’t you think that we ought to investigate the leaks?
JOHN BARRETT: I agree completely that there should be… there should be a leaks investigation.
REP. JOHN CONYERS: And don’t you think there ought to be outside counsel?
JOHN BARRETT: Well, that’s a question under the attorney general’s regulations, that is obviously in his discretion. His standards say that if there were special circumstances and it would serve the public interest, then you could change prosecutors from the traditional Department of Justice prosecutor, Mary JO White in the current case, to a special appointee, something like Senator Danforth did on the Waco matter last year.
REP. JOHN CONYERS: Or that was done in the Bill Gray case.
JOHN BARRETT: Or in the Bill Gray leaks case, that’s correct.
TERENCE SMITH: Evan Thomas, you were trying to say something.
EVAN THOMAS: Well, I’m not aware of a… a leaks investigation never found anything. I mean, the history of leaks investigations is they do not find the leak because…
REP. JOHN CONYERS: Oh, yes, they did.
EVAN THOMAS: …prosecutors are not willing to put journalists under oath and force them to fork up their sources.
REP. JOHN CONYERS: The Department of Justice found people leaking in the Bill Gray case. And they were rounded up and they were fired.
EVAN THOMAS: That’s correct.
REP. JOHN CONYERS: — these -
EVAN THOMAS: But that’s the only example I’m aware of in the last two decades.
TERENCE SMITH: All right, let me ask Professor Barrett this: Are you, as a former prosecutor, arguing that these rules should be tightened up?
JOHN BARRETT: Well, I think that leading law enforcement is really demanding and a highly important position that requires restraint. And it’s a top down process that’s hard when you get way down the ladder, but a U.S. attorney and attorney general, whoever is the boss, can issue clear commands down through the troops to keep your mouth shut. I hope that’s happened in this case. It should happen.
TERENCE SMITH: Congressman Conyers, what are you and other Democrats on the Hill going to do about this?
REP. JOHN CONYERS: Well, we are trying to get the attorney general to do what he ought to do, mainly investigate the leaks, mainly appoint an outside counsel. We want to see if this is a violation of the rules of procedure 6-E. But we are trying to… You know, we’re not trying to inflame the case. We’re just trying to see that justice is done. And by the way, the criminal justice in America is under severe scrutiny right now. And I think if this is what can happen to a United States senator, think of what could happen to ordinary citizens.
TERENCE SMITH: Okay. Gentlemen, we’re going to have to leave it there for tonight. Thank you all three very much.