I strongly oppose this resolution and fear the precedent this Committee will be setting should it be approved. I oppose this resolution on four separate grounds:

First, issuing subpoenas to our federal line prosecutors is a bad idea because it injects politics into prosecutorial decision-making process in a dangerous and unseemly way.

Second, the form of this resolution is objectionable since it makes no provision for consultation with the Ranking Member of the Judiciary Committee and, indeed, I was not consulted about my views on this resolution.

Third, the Justice Department has provided voluminous information on the Peter Lee case and, in my view, the two individuals being subpoenaed are entirely unnecessary for us to understand what happened in that case. One subject of the subpoena, Jonathan Shapiro, who is currently the Chief of Staff to the Lt. Governor of California, has already been interviewed by Senator Specter and the transcript is available for any interested Member to read. The other individual, Michael Liebman, is a current line attorney at the Justice Department and is wanted for questioning about a meeting he attended in 1997 with the FBI case agent and DOD officials. The FBI agent, DOD officials and Mr. Liebman’s supervisors have all already been interviewed. Questions about prosecutorial decisions should be directed to the supervisory personnel. In fact, five supervisory attorneys have been interviewed or have testified about the Peter Lee case, including John Dion, the Acting Chief of the Internal Security Section who had direct responsibility for supervising the Lee case, and Mark Richard, who was a Deputy Assistant Attorney General and Dion’s direct supervisor during the Lee case. Transcripts and notes of these interviews and testimony are available for any interested Member to read.

Finally, issuing the subpoena to Michael Liebman, a current Justice Department line attorney, is nothing more than grandstanding since this subpoena is judicially unenforceable. Moreover, this federal prosecutor is currently assisting the United States Attorney’s Office for the District of New Mexico with the prosecution of Wen Ho Lee. We should not be distracting him.

Let me explain each of these reasons.

First, compelling the testimony of line attorneys will chill prosecutorial discretion and the free exchange of ideas and opinions within prosecutors offices. Line prosecutors within our United States Attorney’s Offices and the Department of Justice should be free to make critical prosecutorial decisions on the basis of the facts before them free from political pressure and fear of public political second-guessing.

My concern is not new, nor is a partisan one. In September 1993, Chairman Hatch wrote to the Attorney General to urge her to oppose “having career line attorneys interrogated by, and appear before, Congressional committees for the purpose of defending or otherwise explaining their conduct of a particular case.” The Attorney General responded to Chairman Hatch by letter dated January 5, 1994 and agreed that “permitting Congressional examination of line prosecutors carries substantial danger of chilling the objective exercise of that discretion and of generating the appearance of political influence on prosecutorial decisions.” The Attorney General reaffirmed that decisions regarding prosecution are decisions of the Department of Justice and not of its line attorneys and reiterated that personalizing decisions at the line attorney level could only have “a detrimental impact on the proper administration of justice.” The Attorney General assured the Chairman that she intended to oppose the interrogation of line attorneys “in all but the most exceptional circumstances.”

Chairman Hatch did not think the Attorney General went far enough – he opposed, in another letter, even permitting an exception to the line attorney policy for “exceptional circumstances,” claiming such an exception would “unnecessarily politicize[] DOJ.”

I agree with the opinion of this Chairman. Line attorneys should not be subpoenaed. Prosecutorial decisions are not personal to line attorneys – they are the decisions of the DOJ leadership.

As a former prosecutor I can assure you that I would have strongly resisted having my line attorneys questioned in a political forum. It is critical to our system of justice that prosecutors have the ability to freely and candidly exchange opinions and ideas without threat of political criticism or pressure.

Standing alone, these are sound and important policy reasons to object to this resolution for subpoenas to Michael Liebman, a line attorney at the Department of Justice, and Jonathan Shapiro, a former line attorney at the United States Attorney’s Office in the Central District of California.

Second, issuing these subpoenas is not only bad policy for our criminal justice system, it is bad policy for this Committee. When the Committee started down this road that Senator Specter is leading us of issuing subpoenas, I thought we had agreed to an arrangement by which not only would Senator Torricelli have to agree to the need for issuance of a subpoena but I would be consulted as the Ranking Member.

In fact, at our executive business meeting on November 17, 1999, Senator Specter outlined the procedure we would follow, stating: “Senator Torricelli and I have been able to work through most of our joint matters, and we will come to you in a unified way for your concurrence after consultation with the ranking Democrat.” (p. 20). We breached that protocol with the unfortunate and unnecessary issuance of a subpoena to Secretary Cohen at the Department of Defense earlier this month, and we should not let that happen again. This subpoena resolution makes no reference to consultation with the Ranking Member.

Every Member on this Committee being asked to take this step of subpoenaing line attorneys should be given by Senator Specter a detailed outline of exactly what factual matter he wants to elicit. We should consider alternative means to obtain answers to those factual questions, possibly by interrogatories to the Justice Department. Only if those answers are not provided, should we be considering this step. Moreover, we have been advised that Jonathan Shapiro, the former line attorney, has already voluntarily met with Senator Specter and did not refuse to answer any questions.

Third, these subpoenas are totally unnecessary. We should not lose sight of the enormous level of cooperation that the Justice Department has already provided to Senator Specter and this Committee, including on the Peter Lee matter and the many other matters that have been reviewed. The Justice Department has provided hundreds of thousands of documents in connection with these oversight investigations:
hundreds of thousands of documents on Waco alone;
over 3,000 pages of documents on the Wen Ho Lee case;
over 4,000 pages of documents on various campaign finance cases;
with respect to the Peter Lee case, we have been provided with numerous
classified documents and over 400 pages of unclassified documents, including:
the information filed against Lee
plea agreement
transcript of sentencing hearing
defendant’s sentencing memo
government’s response to sentencing memo
probation order
filings relating to the bond agreement
press releases from the United States Attorney’s Office
DOE impact statement
government’s sentencing memorandum with attachments
government’s FISA notification
notice of filing under seal
judgment & commitment
defendant’s ex parte motion relating to judgment & commitment
satisfaction of judgment
defendant’s ex parte motion relating to community service
defendant’s motion to terminate probation & Gov’t opposing motion
government’s motion to unseal plea agreement & order to unseal
scientific articles on Doppler Radar
Lee’s foreign travel forms
letters from Lee’s supporters pre-sentencing
Letters in support of probation for Lee

In addition, over 30 people have been interviewed on the Peter Lee case alone, including 11 people made available by the Department of Justice, four of whom were FBI agents. The Department has also provided staff unfettered access to classified and investigative files, including the FBI files. Notwithstanding that cooperation, we are now asked to issue subpoenas to a current and former line attorneys who had some involvement with the Peter Lee case.

Michael Liebman is a line attorney in the Internal Security section of the Justice Department. It is my understanding that Liebman’s testimony is sought to clarify what happened at a November 1997 meeting between DOJ and DOD regarding the Lee prosecution – a meeting at which DOJ sought to determine whether DOD was aware of any information that could undercut a prosecution of Lee on charges that in 1997 he had divulged classified information about submarine wakes. As it turned out, there was information that could have undercut a prosecution.

In addition, in his interview with Senator Specter, former line attorney Shapiro stressed that information in a Navy letter would have constituted Brady material and he would have, in fairness, disclosed it to the defense since it was EXCULPATORY.

This meeting is apparently being focused on by this oversight investigation because of the decision made not to prosecute Lee on the 1997 charges. There is no reason to subpoena Liebman to testify. There is no dispute between DOJ and DOD about which materials were provided by DOJ to DOD for their review. The FBI agent and DOD officials who were present at this meeting have all already been interviewed.

In addition, James Robinson, the Chief of the Criminal Division at DOJ, confirmed by letter dated March 23, 2000 that five supervisory attorneys have been interviewed about the Peter Lee case. John Dion, the Acting Chief of the Internal Security Section with direct responsibility for supervising the Lee case, was questioned three times about the Lee case, once under oath. Mark Richard, who was Dion’s direct supervisor and at the time a Deputy Assistant Attorney General with supervisory responsibility for the Internal Security Section, was interviewed once, as was Bruce Schwartz, who succeeded Mr. Richard in that position. In addition, Richard Drooyan, who was First Assistant United States Attorney in the Central District of California, where the Lee case was prosecuted, was interviewed twice. Nora Manella, who was the United States Attorney in that district during the Lee prosecution and who now is a federal judge, was interviewed once. Mr. Robinson confirmed that “neither Mr. Liebman nor Mr. Shapiro made any final prosecution decisions in the Lee case. Every one of those decisions was made by their supervisors, each of whom the Subcommittee has interviewed.” (Robinson ltr. at p 3.)

To the extent the oversight investigation is focused on the prosecutorial decision not to pursue additional charges against Lee, any questions should be directed to the DOJ supervisors responsible for that decision, not at line attorneys.

I understand and agree with the frustration that has developed in the last week about the unavailability of Mark Richard to testify on April 5th – a date that the Justice Department had previously cleared – but which Mr. Richard apparently cannot make because of another commitment overseas. Mr. Richard’s unavailability, however, is not a reason to subpoena Mr. Liebman.

Jonathan Shapiro was the line prosecutor in the Central District of California on the Peter Lee case and has already been interviewed twice personally by Senator Specter. He is no longer with the United States Attorney’s Office and is currently the Chief of Staff to the Lieutenant Governor of California. The second interview of Shapiro was in California and was on the record. As I indicated, a transcript of that interview is available for review. We have been advised that Mr. Shapiro did not refuse to answer any questions during these interviews – should there be additional questions, those too apparently could be resolved without needing to resort to the extraordinary step of subpoenaing Mr. Shapiro.

Finally, we also need to be clear about how these subpoenas would be enforced. Compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, under 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, under 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department – which will likely not prosecute itself for failing to make one of its line attorneys available.

Thus, the only legal way to enforce the subpoena to Mr. Liebman would be to hold him in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. Not many of us relished our role as jurors during the impeachment trial and we are not anxious to reprise that role.