Judge Malcolm Wilkey, Retired

Special Counsel
c/o Attorney General William Barr
Department of Justice
Washington. D.C. 20530

Dear Judge Wilkey:

I have appointed myself "Special Journalist" to investigate your investigation into whether any crimes were committed by members of the House of Representatives in connection with the so-called House Bank.

This is your formal notice of investigation and first set of interrogatories.

The issue under investigation by the Office of Special Journalist is whether any crimes, abuses of prosecutorial power, or sleazy political stunts have been, are being, or may in the future be committed in connection with your inquiry.

I. Factual Predicate

The factual predicate of the investigation includes allegations that your inquiry is being exploited for partisan political advantage by the Attorney General and/or other members of the Bush Administration.

Anonymous informants no less reliable than the Justice Department witnesses in the Manuel Noriega case have reported to this Office that such a political conspiracy may exist; that its members may include the Attorney General, U.S. Attorney Jay Stephens, and others; and that you may have been its witting or unwitting tool.

Among the allegations are the following:

(1) That public disclosures to date contain not a shred of evidence that any serious prosecutor would consider a reasonable basis for suspecting criminal activity by any House member.

(2) That while a handful could conceivably owe back taxes for any overdrafts large enough to be considered interest-free loans, that’s no crime, as you well know.

(3) That in spite of this, you, the Attorney General (your former law clerk), and Stephens have recklessly cast a cloud of criminality over the Congress by making public assertions including, but not limited to, your April 6 statement to The New York Times that some House members "may very well be prosecuted.”

(4) That your statements also suggest you have awarded yourself a roving commission to fish through the spending habits and other financial affairs of dozens (or even hundreds) of members of Congress against whom no plausible allegation or suspicion of criminal wrongdoing exists.

(5) That to this end you have employed four prosecutors, seven FBI agents, and assorted accountants since your March 20 appointment, to continue an inquiry that Stephens began six months ago.

(6) That the foreseeable effect of your comportment to date has been to fan the flames of public hysteria and misinformation regarding this phony scandal, to the benefit of the Republican Party of which you have long been a loyal member and from which you have received coveted appointments over a period of 38 years.

II. Jurisdiction

The jurisdictional predicate of the investigation is an ample supply of paper and ink.

This Office finds that appointment of a Special Journalist is necessary because the mainstream media have a crippling conflict of interest.

To-wit, they have been blinded to the suspicious circumstances surrounding your investigation by their lust for spreading nonsense (e.g., hundreds of false reports that lots of House members "bounced" checks), the better to hype into a major scandal what was in reality a modest perk (i.e., interest-free overdraft privileges, at the expense of other House members-not the public).

The principal criminal statutes implicated by this Office’s investigation include the usual blunderbusses-conspiracy, mail fraud, wire fraud, money-laundering, et cetera. Our favorite is 18 U.S.C. §595:

"Whoever, being a person employed in any administrative position by the United States…. uses his official authority for the purpose of … affecting … the election of any candidate for the office of President…. Member of the Senate [or] … House, … shall be fined not more than S1,000 or imprisoned not more than one year, or both."

III. Pro Forma Disclaimer of Bias

In notifying you of the pendency of the investigation, we intend no suggestion of any predisposition to find you guilty.

To the contrary, we wish to convey the same tone of sober impartiality that you doubtless intended when you told The New York Times that some House members may have committed "no prosecutable offense." and "others may very well be prosecuted."

The Office of Special Journalist will issue formal charges, and appoint ourself "special judge" and "special jury" to try the case in our newspapers, only if the facts so warrant.

You have been a public servant of true distinction, with an unchallenged reputation for intelligence and integrity. This creates a basis for optimism that you will moot the need for further investigation by this office-soon-by doing the right thing: publicly and unambiguously clearing all House members of criminality, except for any named individuals against whom you have specific, credible evidence.

Allegations have, however, come to our attention casting much doubt on your much-advertised impartiality in this matter.

These allegations include, but are not limited to, statements by our informants that as a judge of the United States Court of Appeals for the D.C. Circuit from 1970 until 1984, you evinced a disdain for Congress and an enthusiasm for aggrandizing executive power that may have been tinged with partisan Republicanism.

See, e.g., Nixon v. Sirica, 487 F.2d 700, 764-99 (D.C. Cir. 1973) (Wilkey, J., dissenting) (arguing that the courts and Congress have no constitutional power to require the President to comply with a subpoena).

We also have some doubt whether you appreciate the difference between ethical sloppiness and criminality.

See U.S. v. Diggs. 613 F.2d 988 (D.C. Cir. 1979) (Wilkey, J.) (affirming congressman’s conviction of having employees kick back part of their salaries, and holding that even defendant’s use of this money for official congressional expense was criminal despite absence of violation of any specific statutory or ethical rule); id. at 1005-1006 (Leventhal, J., dissenting) ("The majority today joins the trial judge and the prosecution in stressing form over reality….There is a fundamental difference between breach of ethics and criminal violations. What is shenanigans, bad taste, and borderline is not the same as what is criminal.").

Informants also report that similar – Congress-bashing proclivities took strong root in your alleged co-conspirator Barr during, if not before, his clerkship for you in 1977and 1978, as illustrated by some of his recent speeches in distant cities where his words were unlikely to reach those who will pass on his budget requests.

IV. Special Journalist’s Initial Interrogatories

If it seems far-fetched to suggest that you could be deemed in violation of criminal laws, this Office wonders whether it is any sillier than whatever theory you are pursuing.

Which brings us to out interrogatories:

1. Just what theory does underlie your inquiry?

2. We note that Paul McNulty, spokesman for you and the Justice Department, says you will not identify any criminal laws that may have been violated, nor say whether (after six months of "preliminary inquiry") you have any evidence that any law has been violated. Do you?

3. Do you know something we don’t know? Or is your investigation as frivolous as appears from the public record?

4. If there were crimes, who were the victims?

5. How broad an inquiry did you intend to suggest when you told The New York Times that if a House member had written "checks for suspiciously large sums, $515.000, $10,000 to cash, well, this would be worthy of further detailed inquiry as to the purpose for which that was put"?

6. Do you suspect members of Congress of cashing big checks so they can play high-stakes bingo, or moonlight as loan sharks, or rent high-class prostitutes, or buy cocaine by the kilo, or bananas by the ton, or what? Got any evidence?

7. What business do you or the Justice Department have lavishing taxpayers’ money on a grandiose election-year fishing expedition into the financial affairs of members of Congress? See 18 U.S.C. §595, supra.

8. Doesn’t this bear some resemblance to the Nixon White House’s conspiracy in 1972 (two years after the said Nixon put you on the federal bench) to urge the IRS to investigate 575 members of Democratic nominee George McGovern’s staff and campaign contributors? See Resolution of Impeachment of Richard M. Nixon, Art. II, and H.R. Report 93-1305 at 143-44, as adopted by House Judiciary Committee, July 29, 1974.

9. …By the way, do you recall that the White House tapes used by the House committee and the Watergate Special Prosecutor to prove this conspiracy to abuse the IRS’s power were among the tapes that you as a judge would have allowed Nixon to keep secret? See Nixon v. Sirica, supra.

10. Do you recall that the IRS had the good sense to tell the White House in 1972 to take a flying leap?

11. Do you have the good sense to do the same?

12. When you were Ambassador to Uruguay from 1985 to 1990, or at any time before or since, have you ever smoked marijuana, snorted cocaine, imbibed yerba maté, bounced checks, joined in illegal CIA activities, made an illegal U-turn, or done anything else of which your mother might not have approved?

13. According to our informants, members of Congress find it insulting and offensive to be spoken of as suspected criminals. How do you like it, Judge Wilkey?