Letter to Attorney General John D. Ashcroft

March 10, 2004

The Honorable John D. Ashcroft
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

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, downloaded, 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 there from 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 there from. 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 decision making 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

HERB KOHL

CHARLES E. SCHUMER

EDWARD M. KENNEDY

JOSEPH R. BIDEN, Jr

DIANNE FEINSTEIN

RICHARD J. DURBIN

RUSSELL D. FEINGOLD

JOHN EDWARDS

cc:Deputy Attorney General James Comey