Dear Speaker Pelosi,
You have recently taken on a new and historic role as the first woman speaker of the United States House of Representatives. Please allow me to add my congratulations to the many others you have received.
I am sure that in preparation for your new role you have probably studied the actions of your predecessors to understand the powers and prerogatives of your office. However, you may not yet be fully sensitized to some of the restrictions and new ethical burdens placed upon you, in part because these particular burdens have come into play so rarely in our country’s history.
What I am referring to is the infrequent but very important role the House plays as the sole authorized prosecutorial body in the case of Presidential impeachment. I have seen it reported in the press that you have publicly stated that “impeachment is off the table.” As a former prosecutor of public corruption and fraud against the government cases, this statement is deeply, deeply disturbing to me. Predetermining the outcome of a criminal investigation prior to the completion of that investigation and the uncovering of all the facts, is one of the very worst abuses of prosecutorial discretion and a grievous breach of the canons of ethics for prosecutors.
When he was NY State Attorney General, Elliot Spitzer was oft heard to remark that “as a prosecutor, you must follow the facts and the law where ever they may lead you, even if it somewhere you wish you did not have to go.” His was a correct statement of the standard that all prosecutors, even intermittent prosecutorial entities like the U.S. House of Representatives, must follow.
You have only to look at the outrage and calls for resignation or firing of Alberto Gonzales from his post as US Attorney General for attempting to influence the outcomes of investigations through manipulation of the hiring and firing of United States Attorneys to appreciate the inappropriateness of announcing an outright pre-determination of the charging decision. In no way do I mean to suggest that you have made your statements in bad faith, I realize that the infrequency with which the House finds itself in the role of a prosecutorial entity makes it unlikely that the ethical strictures placed upon a prosecutorial entity will be a regular part of Congressional culture. This is an unfamiliar role for you.
Recent events, including the information that was revealed in the course of the trial in U.S. v. Libby, have opened the possibility that there may have been violations of the Espionage Act either in the release of the classified information regarding the identity of Valerie Plame Wilson and/or the release of the National Intelligence Estimate (NIE) to reporter Woodward, Sanger and Miller. Depending on the particular violation under the Espionage Act, statutory penalties range all the way to life imprisonment. This is an extremely serious crime.
During the press conference announcing the indictment of Mr. Libby, Special Counsel Patrick Fitzgerald indicated that the Espionage Act was one of the potential crimes he was investigating, and investigation stalled by the obstruction of justice committed by Mr. Libby:
QUESTION: … it's a little hazy I think for many of us — you say that Valerie Plame's identity was classified, but you're making no statement as to whether she was covert. Was the leaking of her identity in and of itself a crime?
FITZGERALD: …And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act….So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act. I don't buy that theory… [emphasis added]
In the case of the decision to disclose the classified information that was Ms. Wilson’s covert status there are at least two possible perpetrators, Mr. Libby and Vice President Cheney, and impliedly a third in President Bush. In the decision to disclose the NIE to Woodward, Sanger and Miller, it has been alleged and Mr. Libby’s lawyers argued at trial that only three people in the world knew that the NIE had been declassified: the President, the Vice-President and Mr. Libby. However, no contemporaneous record of such declassification has ever made its way into the public record.
Although it is true that the President has the authority to classify and de-classify on his own authority, what he does not have the right or power to do is to lie and try to re-write history by belatedly claiming to have previously de-classified something when in fact no such event had occurred.
The grand jury testimony of Mr. Libby contains none of the self authenticating details that one would expect if indeed Mr. Libby were describing past event that had actually occurred:
Q. And the next question was, what did the Vice President tell you about his conversation with the President when the President gave you the green light to share some of the NIE information with the press which turned out to be Judith Miller?
A. He told me to go ahead and talk to — that we should go ahead and, and talk to the press about the NIE. I don't remember whether he said Judith Miller at that point or, or we should go ahead and talk about it. And, you know, I said, the President cleared it? And he said, "yes," or something. I didn't use those words necessarily, but that was — I made sure that, that he had talked to the President, the President said that we should talk about it.
Q. Do you know if he met with the President in person or spoke to him by telephone?
A. I don't know.
Q. And do you know if the Vice President was in town, in Washington, when he talked to the President about it or was out of town?
A. I believe he was in town when he talked to, talked about it.
Q. And do you know whether the President was in town when he talked to the President about it?
A. I think that he talked to the President — I believe they were both in town when they talked about it, but I, I don't know, but that was my impression.
Q. Any other detail that the Vice President imparted to you about his conversation that he had with the President?
A. No, sir.
I don’t know whether the decision not to seek charges under the Espionage Act was solely related to the “sand in the umpire’s eyes” resulting from Mr. Libby’s choice to engage in perjury and obstruction of justice or whether it was the result of a realization that with respect to at least the President, and possibly the Vice-President, the charging decision was not the Special Counsel’s to make.
You see, Madame Speaker, only the United States House of Representative has the authority — the prosecutorial discretion, if you will — to decide whether to seek indictment of the President of the United States. If that case involved a conspiracy with the Vice President, I suggest the same might hold true.
So, whatever the Special Counsel may or may not believe in his heart of hearts, under Department of Justice guidelines and the canons of prosecutorial ethics, he has little right to opine publicly about those beliefs, whatever they may be. Under ordinary circumstances he has only the option to indict and try to convict or else refrain from comment. In a unique circumstance, if the investigation reveals that the perpetrators are President in conspiracy with the Vice President, the Special Counsel would not even have the option of indictment, for that is the sole and exclusive province of Congress.
Further, bound as he is by grand jury secrecy laws, the only option open in such an unusual circumstance would be to carefully document the investigation and it’s findings, prosecute any related and ancillary cases, and hope that Congress would examine the information already in the public realm. To do so, Congress might consider making the necessary record and taking the necessary steps to unseal the grand jury information, and continue the investigation using its own investigatory powers and authority, and ultimately arrive at its own decision whether or not a prosecutable case exists and should be charged.
Ma’am, this is Congress’s non-delegable duty. And it is a sacred duty. I do not know how any such investigation will turn out, or what the reasonable conclusions flowing therefrom will be. I do know that the recent hearings conducted by the House Committee Oversight and Government Reform have added disturbing new facts to the mix. Although it is a sober and sad task to investigate one’s own President, you cannot shirk this burden, it came with your new role as Speaker. For the sake of the American People and the Constitution you have sworn to uphold, I urge you to find within yourself the strength to follow the facts and the law wherever they may lead you, even if it is somewhere you wish you did not have to go.