THE LEAHY LETTER
Largely lost amid the furor of yet another memo from an FBI agent blasting headquarters was the letter sent last Friday to FBI director Robert Mueller from Senate Judiciary Committee chairman Patrick Leahy.
As reported over the Memorial Day weekend, parts of the Leahy letter related to new charges that agents at FBI headquarters sat on intelligence that might have led to some additional arrests of U.S.-based al Qaeda terrorists planning the September 11 bombings.
But more interesting parts of the letter, which highlight growing unhappiness with Mueller on Capitol Hill, fell through the cracks. "It's too soon to say that Mueller is in trouble, way too soon," says a Republican Senate Judiciary Committee staffer. "Bush has made it abundantly clear that Mueller is his man, but the Judiciary Committee has lost all confidence that it can deal with Mueller and that Mueller will deal honorably with them."
The focus of Leahy's ire, and that of Republican Judiciary Committee members Arlen Specter and Charles Grassley, who signed on to the letter, was Mueller's demand that no written transcript of his or any other FBI agent's testimony be compiled at last week's Judiciary Committee hearing. That hearing focused in the so-called "Phoenix memo."
Leahy and Mueller locked horns over the FBI director's demand that no transcript be kept, and finally, after a heated debate, Specter stepped in and persuaded Leahy to go along, if only to get the hearing moving.
"We prepared for that hearing for several weeks," says a Democratic Judiciary Committee staffer. "We spoke with Mueller's people. We negotiated the hearing time. At no point did they raise the issue of the transcript. He sandbagged us and put us in an embarrassing position. This is probably the first open hearing the committee has held in years where there is no written record. And it may be one of the most important hearings we've held in the past ten years."
Yet when Mueller and his crew finished their hearing with Senate Judiciary, they next appeared at a Senate Select Intelligence Committee hearing, where the "Phoenix memo" was discussed and Mueller allowed a full transcript to be recorded.
Leahy's letter demands that Mueller explain his reasoning for barring one and allowing another transcript. "Until the Minneapolis memo [charging FBI headquarters impeded the so called "20th terrorist" investigation] popped up over the weekend, the transcript issue was really what had made Leahy and Specter hot," says another Democratic Judiciary staffer. "Now, we have a lot more to be hot about, like, why Mueller knowing about that letter didn't bring it to us before his hearing. Even [former FBI director Louis] Freeh didn't pull these kinds of stunts."
SETTING UP SMITH
Senate Republicans were somewhat surprised that one of George Bush's nominees to the federal appeals bench, Judge D. Brooks Smith, passed the Senate Judiciary Committee by a 12-7 vote. Three Democrats, including Joe Biden, crossed over to put Smith before the full Senate.
Smith was in some ways a more controversial -- some would say questionable -- nominee than Judge Charles Pickering, who was turned back by the Democratic controlled committee. Smith has had a large number of his cases reversed on appeal by higher courts, and had to face financial conflict of interest charges regarding work his wife performed while he was hearing related court cases. Longtime liberal crybaby and failed Democratic candidate Ralph Neas, president of People for the American Way, which single-handedly defeated Pickering, opposed Smith. So did the New York Times in a lead editorial.
So why did Smith sail through? Democratic staffers on the Judiciary committee cite several reasons. "First, we have to give the administration some victories or else there is concern they really will be able to use the lack of confirmations as a campaign issue," says one Judiciary aide. "The other reason is that Smith and some of the others are probably worth bringing before the whole Senate for a vote, if only to give other Senators a chance to weigh in on his qualifications."
The second reason strikes some as more plausible, if only because some Republican senators on the Judiciary Committee are said to have told the White House they expect Smith to be a tough vote on the floor. "We don't expect Biden, for example, to support Smith on the full Senate vote," says one staffer to Pennsylvania Sen. Arlen Specter. "They just wanted Smith out so they could say later that they gave him a full Senate vote, and to give others a chance to sound off on Smith in front of the cameras."
Other Democratic leadership staffers interviewed denied there is a concerted plan to bring more nominations to the floor just to shoot them down. "If we feel a nominee shouldn't be held up further, and deserves a hearing by the full Senate, it's up to the chairmen. In the case of Smith, Senator Leahy felt this nominee deserved it," says a leadership staffer. "Republicans can't complain when we bring forth these nominees for a vote, when that's what they've been asking for. What's the saying about be careful for what you wish for?"