Statement of Senator Leahy Ranking Member, Senate Committee on the Judiciary in Opposition to Senator Specter’s Resolutions Seeking Issuance of Subpoenas to Charles Labella and to the Department of Justice “Regarding Loral Hughes” at The Executive Business Meeting of the Senate Committee on the Judiciary

April 27, 2000

The Weekly Subpoena Resolution: Unfortunately, my earlier statements about a-subpoena-a-week continue to hold true. This Committee is spending more time and paying the most consistent attention to issuing subpoenas than any other topic. Once again, I have not been consulted about these subpoenas requests.

Today, we are being asked to consider resolutions authorizing the Chairman to issue two subpoenas – one for the personal appearance and testimony of Charles LaBella and one to the Department of Justice for the production of “any and all documents relating to the Department’s input into the decision to grant waivers to Loral Space and Communications Ltd. and the Hughes Electronics Corporation to launch their satellites from Chinese rockets and/or relating to the Department’s assessment and investigation of alleged technology transfers to China from Loral and Hughes.” While I oppose both subpoenas for the reasons detailed below, I will ask that only the subpoena to the Department of Justice be held over for consideration next week.

No Subpoena to FBI Director Freeh: At the outset, I want to note my relief that Senator Specter did not put on the agenda for today’s meeting a subpoena for the personal appearance and testimony of Director Louis Freeh of the Federal Bureau of Investigation. Issuing a subpoena to the FBI Director would have been unprecedented. Director Freeh has never been subpoenaed by any committee or subcommittee in either the House or the Senate. On the contrary, he has always made himself available to Congress when asked and when it was appropriate for him to do so.

I understand that the Director raised significant concern about the appropriateness of his appearance at a public hearing to discuss his confidential discussions with the Attorney General regarding ongoing criminal matters. The answer to his concern is not to compel him to testify by issuing a subpoena and putting our top federal law enforcement officer in the untenable position of determining whether his only recourse is to move to quash a Judiciary Committee subpoena. I am glad that the majority on this Committee is not –at least at this time – pursuing a subpoena to compel the testimony of FBI Director Freeh.

LaBella Subpoena: With respect to the subpoena to Mr. LaBella, I note that we were advised at the last executive meeting that a subpoena for the personal appearance of Chuck La Bella would not be needed. In fact, the subpoena resolution the majority approved at the last Committee meeting specifically stated that “in light of Mr. La Bella’s commitment to appear voluntarily before the Committee upon an invitation to do so,” the subpoena did not require a personal appearance. Now we’re told that a subpoena is needed for his personal appearance.

The Subpoenas Will Adversely Affect Ongoing Criminal Investigations: I oppose both the subpoena to Mr. LaBella and to the Department of Justice for documents relating to Loral and Hughes for the same reason. These subpoena requests mean that this Committee is being asked to interfere in pending criminal investigations.

The subpoena to Mr. La Bella is sought to compel his testimony about campaign finance cases, despite the fact that many campaign finance investigations remain pending. Public release of the La Bella memoranda and public discussion of the details of its contents could have significant adverse consequences on pending investigations. These memoranda provide analyses of both the strengths and weaknesses of the government’s proof and legal theories. The Department of Justice has made those internal prosecutors’ memoranda available for review under strictly controlled circumstances, as appropriate given their contents. Indeed, they are now available in Senate Security for any interested members to review.

Public release of these documents or public discussion of them for political purposes will serve only to provide defense lawyers representing campaign finance defendants with a roadmap to the government’s case. Not only that, but these defendants will now have access to internal government documents that they would not be able to get in discovery.

In addition, issuing a subpoena for “any and all” Loral and Hughes documents is equally irresponsible. I received a copy yesterday of a letter from Wilma Lewis, the United States Attorney in D.C., to Senator Specter asking that any requests for documents from her Office be suspended. This request is entirely reasonable and should be honored.

According to Ms. Lewis, the United States Attorney’s Office has “an open active investigation” into allegations of unlicensed export of defense services and that thousands of documents in the possession of her office could be responsive to the pending requests from this Committee. Ms. Lewis explained that her office is at an “important point” in the investigation and will be making “critical prosecutorial decisions and recommendations” in the near future. Ms. Lewis confirmed that if this Committee were to subpoena responsive documents from her office, not only would we adversely affect the investigation from a litigation standpoint, we also would be diverting the attention of the key prosecutors in that case. Instead of working diligently to conclude their investigation, these prosecutors would now be required to sift through THOUSANDS of documents and to redact those documents to protect grand jury material. I would hope that this Committee would honor Ms. Lewis’s request.

The Justice Department Has Not Ignored this Committee’s Prior Requests for Documents. It is true that the resolutions of last fall called for the production within weeks of, among many other things, documents relating to campaign finance and the Loral and Hughes investigations.

However, last fall attorneys from the Justice Department met with staff in order to prioritize the NUMEROUS requests. From that point on, the documents produced first were those identified by staff as having greater priority. Thus, the Justice Department has worked with staff to produce documents generally in the order identified by staff. With a few exceptions, this system has worked well – when Senator Specter asked that Wen Ho Lee documents be given a priority, they were; and when Senator Specter asked that Peter Lee documents be given a priority, they were.

Given this arrangement it is unfair to claim now that the Justice Department has failed to respond to requests for Loral and Hughes documents and that a subpoena is now necessary.

In fact, in the last few weeks, when staff indicated that the investigation would soon be focusing on Loral and Hughes, the Justice Department apparently made efforts to comply with the document requests. A letter yesterday from the Office of Legislative Affairs makes that clear. This letter states that “the Department is engaged in a comprehensive search for any documents” on the “waiver” aspect of the Loral and Hughes investigations (i.e. documents that would not imperil the criminal investigation). The letter further confirms that as records are located, staff will be informed.

Given this cooperation, there is just no need – other than political posturing – for this subpoena.