Judge Malcolm Wilkey, Retired "Special Counsel" c/o Attorney General William Barr Department of Justice Washington, D.C. 20530

Dear Judge Wilkey:

By open letter of April 20, 1992, the Office of Special Journalist notified you of our self-appointment to investigate your investigation of the so-called House Bank.

You are hereby notified that our grand jury (a rubber stamp, like yours) has returned an indictment charging you with four counts of prosecutorial misconduct:

(1) knowingly presenting the House of Representatives with a grotesquely overbroad subpoena for financial records of all 435 members;

(2) smearing the Congress with a false aura of criminality, for the purpose and with the effect of coercing members to abandon their constitutional rights to challenge said subpoena;

(3) betrayal of your own first principles;

(4) false pretense of impartiality, while acting like a ventriloquist’s dummy for your very partisan former law clerk. Attorney General William Barr.

Our investigation continues into whether you may have committed more serious offenses. These may include conspiracy to abuse the Justice Department’s authority to help President Bush and other Republican candidates under the guise of non-partisan criminal investigation.

We have been so impressed (though hardly pleased) by the boldness of your drift-net fishing expedition into House members’ financial affairs that we are using your subpoena as a model. Accordingly, we hereby demand that you supply the Office of Special Journalist, by Thursday, May 7, with:

A. All extant banking, credit-card, investment, gambling, speech-honoraria, and other financial records; all tax returns; and all professional and personal correspondence, telephone records, and medical records, for you since birth, and for your wife since you were married.

B. Everything sent from, to, or created within your office, and that of the Attorney General, since your appointment as Special Counsel, including all correspondence; telephone records; notes; papers; calendars; diaries; love letters; birthday cards; Post-it slips; audiotapes; videotapes; Dictabelts; computer tapes, disks, and other digital storage media; and contents of trash cans.

C. All term papers you wrote in law school, college, and high school.

We need the records enumerated in (A) above to help us fish through your life history in search of any evidence of naughtiness. (We wonder, for example, whether you may have been involved in any of the Central Intelligence Agency’s hanky-panky in Chile during your stint from 1963 to 1970 as general counsel of the Kennecott Copper Corp., which had major holdings there.) We; need the records in (B) to gather evidence on whether you are acting as a puppet of, or political co-conspirator with, the Attorney General and/or the White House. We need the records in (C) so as to poke through your early years for any evidence of incipient grandiosity, plagiarism, or whatever.

If you fail or refuse to supply all of the records demanded above, it will be presumed that you have something to hide. See Wilkey, Letter to Honorable Thomas Foley, April 21, 1992 at 2-3.

We ask for no more than we would in the case of any partisan prosecutor run amok. See Wilkey, Letter to Members of the House of Representatives, April 27, 1992 (hereinafter Wilkey Extortion Letter) at 1 ("What we need and why we need it is really no different from any inquiry into any troubled financial institution after it is closed."); id (likening House Bank to "a failed S&L or a fraudulently operated BCCI").

After all, Al Capone cheated on his taxes; how can we be sure you haven’t done something similar until we check? See Wilkey Extortion Letter at 2 ("It has been claimed that there have been no violations of law ii the operation Of the House banking facility. How can anybody possibly make such a claim? There has been no investigation focused on possible criminal law violations.")

If you are thinking about objecting that our demands are overbroad or invasive of your privacy, save your breath; you are equitably estopped by your own efforts to invade the privac of several hundred innocent individuals. See also Wilkey Extortion Letter at 3-4.

And don’t try to hide behind the august titles (Judge, Special Counsel, Ambassador, Chairman, etc.) that have been bestowed on you by various Republican politicians. See Wilkey Extortion Letter at 4 ("In our America, the criminal law knows no specially privileged groups."); but cf. Nixon v. Sirica, 487 F.2d 700, 762 (D.C. Cir. 1973) (Wilkey, J., dissenting) (claiming that President is above the law).

To the extent that the records reveal no wrongdoing, we will return them as soon as we get around to it, keeping copies only of those that interest or amuse us.

Following are particulars of our indictment:

(1) Knowingly Overbroad Subpoena. The grotesque overbreadth of your "grand jury" subpoena is self-evident. Representing the executive branch, you seek to coerce surrender of the most private financial records of all members of a co-equal branch of Government that is controlled by an opposing political party. And in doing so you cite no specific basis for suspecting any House member of criminal activity.

Even if the courts uphold this outrageous exercise in overreaching as within your prosecutorial powers, you will be tried by the Office of Special Journalist for gross abuse of prosecutorial discretion. See R. Jackson, "The Federal Prosecutor," Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940 ("It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.").

(2) Falsely Smearing Congress. This count is based on, inter alia, the statements in your above-cited letters, especially those comparing the House Bank-which bounced very few checks and lost not a dime of taxpayer funds, as far as appears from the public record-with criminal enterprises like BCCI and failed S&Ls.

We are still investigating the circumstances of your vague, inflammatory statement that "our preliminary inquiry has already unearthed evidence that a classic check kiting scheme may have occurred." (Wilkey Extortion Letter at 2.) This statement clearly had the effect, and presumably the purpose, of generating headlines implying that you have evidence that House members (not merely staff functionaries) were involved in criminal fraud (not merely floating themselves interest-free overdrafts).

We await your evidence. It better be good.

(3) Betrayal of First Principles, Your hypocrisy is suggested by the fact that your subpoena would clearly be unconstitutional under the principles laid down in your own dissent in Nixon v. Sirica supra. 487 F.2d at 762-99. There, you adopted a separation-of-powers worldview of "Tripartite Privilege" in which none of the federal government’s three branches could be compelled by the others to surrender its internal documents.

One possible defense to this charge might be an assertion (should you choose to make it) that you concocted the views you advanced in Nixon v. Sirica solely for the occasion, to help the Watergate cover-up efforts of the President who appointed you.

(4) False Pretense. This consists of Barr’s statements, implicitly seconded by you, that your job is to ensure that the House Bank investigation will be "impartial," "independent," and untainted by partisanship.

This Office has a wealth of circumstantial evidence suggesting the contrary, including the facts recited above; the public statements by the President and the Attorney General joining in your intemperate efforts to intimidate House members; and details like your use of the Attorney General’s stationery to send your blustering epistles.

We also take journalistic notice of allegations that you have been a friend and political fellow traveler of George Bush’s for decades; that when you started angling from the bench for a Reagan administration job in 1981, then Vice President Bush was your chief patron; and he was instrumental in getting you your 1985 appointment as Ambassador to Uruguay.

We are still investigating the then Vice President’s role, if any, in your apparent solicitation, and initial acceptance, in 1981 of a lucrative appointment as an arbitrator on the Iran-U.S. Claims Tribunal-a full-time job that you sought to take without relinquishing your seat on the U.S. Court of Appeals for the D.C. Circuit, perhaps violating the Code of Judicial Conduct.

This Office is also checking into whether it’s true, as we heard on the grapevine, that you hired Barr as your law clerk in 1977 on the recommendation of then CIA Director George Bush or his associates at the agency, where Barr had worked from 1973 to 1977.

True or not, it all seems a bit too cozy for us to buy the idea that anything about your investigation has ever been impartial, or was ever so intended.

The investigation continues.