Memorandum for: Vice Chairman, Senate Select Committee on Prisoners of War and Missing in Action
From: John F. McCreary
Subject: Legal Misconduct and Possible Malpractice in the Select Committee
1. As a member of the Virginia State Bar, I am obliged by Disciplinary Rule DR-1-103(a) to report knowledge of misconduct by an attorney "to a tribunal or other authority empowered to investigate or act upon such violations." Under Rule IV, Paragraph 13, of the Rules for the integration of the Virginia State Bar, this obligation follows me as a member of the Bar, regardless of the location of my employment, for as long as I remain a member of the Virginia State Bar. Therefore, I am obliged, as a matter of law and under pain of discipline by the Virginia State Bar, to report to you my knowledge of misconduct and possible prima facie malpractice by attorneys on the Select Committee in ordering the destruction of Staff documents containing Staff intelligence findings on 9 April 1992 and in statements in meetings on 15 and 16 April to justify the destruction.
2. The attached Memoranda For the Record, one by myself and another by Mr. Jon D. Holstine, describe the relevant facts, which I summarize herein:
a. On 9 April 1992, the Chairman of the Senate Select Committee, Senator John Kerry of Massachusetts, in response to a protest by other members of the Select Committee, told the Select Committee members that "all copies" would be destroyed. This statement was made in the presence of the undersigned and of the Staff Chief Counsel who offered no protest.
b. Later on 9 April 1992, the Staff Director, Frances Zwenig, an attorney, repeated and insured the execution of Senator Kerry's order for the destruction of the Staff intelligence briefing text. I personally delivered to Mr. Barry Valentine, the Security Manager for SRB-78, the original printed version of the intelligence briefing text. I also verified that the original was destroyed by shredding in the Office of Senate Security on 10 April 1992, along with 14 copies.
c. On 15 April 1992, the Staff Chief Counsel, J. William Codinha of Massachusetts, when advised by members if the Staff about their concerns over the possible criminal consequences of destroying documents, minimized the significance of the act of destruction; ridiculed the Staff members for expressing their concerns; and replied, in response to questions about the potential consequences, "Who's the injured party," and "How are they going to find out because its classified." Mr. Codinha repeatedly defended the destruction of the documents and gave no assurances or indications that any copies of the intelligence briefing text existed.
d. On 16 April, the Chairman of the Senate Select Committee, Senator John Kerry, stated that he gave the order to destroy "extraneous copies of the documents" and that no one objected. Moreover, he stated that the issue was "moot" because the original remained in the Office of Senate Security "all along."
e. I subsequently learned that the Staff Director had deposited a copy of the intelligence briefing text in the Office of Senate Security at 1307 on 16 April.
3. The foregoing facts establish potentially a prima facie violation of criminal law and a pattern of violations of legal ethics by attorneys in acts of commission and omission.
a. It is hornbook law that an attorney may not direct the commission of a crime. In this incident two attorneys, one by his own admission, ordered the destruction of documents, which could be violation of criminal law.
b. Neither the Staff Chief Counsel nor any member of the Select Committee made a protest or uttered words of caution against the destruction of documents, by admission of the Chairman, Senator Kerry. The Chief Counsel has an affirmative duty to advise the Staff about the legality of its actions, and, in fact, had earlier issued the general prohibition to the Staff against document destruction.
c. The Chief Counsel's statements during the 15 April meeting to discuss the document destruction showed no regard for the legality of the action and displayed to the Staff only a concern about getting caught. By his words and actions, he presented to the Staff investigators an interpretation of the confidentiality and security rules that the rules of the Select Committee may be used to cover-up potentially unethical or illegal activity.
d. The Staff Director's action in placing an unaccounted for copy of the intelligence briefing text in the Office of Senate Security on 16 April constitutes an act to cover-up the destruction. Throughout the 16 April meeting, all three attorneys persisted in stating that the document had been on file since 9 April. This is simply not true.
4. I believe that the foregoing facts establish a pattern of grave legal misconduct - possibly including orders to commit a crime, followed by acts to justify and then to cover-up that crime. Even absent criminal liability, the behavioral pattern of the attorneys involved plays fast and loose with the Canons of Legal Ethics and establishes that one or more of the attorneys on the Select Committee are unfit to practice law. I am obliged to recommend that this report be filed with the appropriate disciplinary authorities of the State Bars in which these attorneys are members.
John F. McCreary, Esquire
Memorandum for: Vice Chairman, Senate Select Committee on Prisoners of War and Missing in Action
From: John F. McCreary
Subject: Possible Violations of Title 18, U.S.C., Section 2071, by the Select Committee and Possible Ethical Misconduct by Staff Attorneys.
1. Continuing analysis of relevant laws and further review of the events between 8 April and 16 April 1992 connected with the destruction of the Investigators' Intelligence Briefing Text strongly indicate that the order to destroy all copies of that briefing text on 9 April and the actual destruction of copies of the briefing texts plus the purging of computer files might constitute violations of Title 18, U.S.C., Section 2071, which imposes criminal penalties for unlawful document destruction. Even absent a finding of criminal misconduct, statements, actions, and failures to act by the senior Staff attorneys following the 9 April briefing might constitute serious breaches of ethical standards of conduct for attorneys, in addition to violations of Senate and Select Committee rules. The potential consequences of these possible misdeeds are such that they should be brought to the attention of all members of the Select Committee, plus all Designees and Staff members who were present at the 9 April briefing.
2. The relevant section of Title 18, U.S.C., states in pertinent part: Section 2071. Concealment, removal, or mutilation generally (a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than three years, or both. (June 25, 1948, ch. 645, 62 Stat. 795)
3. The facts as the undersigned and others present at the briefing recall them are presented in the attached Memorandum for the Record. A summary of those facts - and others that have been established since that Memorandum was written - follows.
a. On 8 April 1992, the Investigators' Intelligence Briefing Text was presented to Senior Staff members and Designees for whom copies were available prior to beginning the briefing. Objections to the text by the Designees prompted the Staff Director to order all persons present to leave their copies of the briefing text in Room SRB078. Subsequent events indicated that two copies had been removed without authorization.
b. On 9 April 1992, at the beginning of the meeting of the Select Committee and prior to the scheduled investigators' briefing, Senator McCain produced a copy of the intelligence briefing text, with whose contents he strongly disagreed. He charged that the briefing text had already been leaked to a POW/MIA activist, but was reassured by the Chairman that such was not the case. He replied that he was certain it would be leaked. Whereupon, the Chairman assured Senator McCain that there would be no leaks because all copies would be gathered and destroyed, and he gave orders to that effect. No senior staff member or attorney present cautioned against a possible violation of Title 18, U.S.C., Section 2071, or of Senate or Select Committee Rules.
c. Following the briefing on 9 April, the Staff Director, Ms. Frances Zwenig, restated to the intelligence investigators the order to destroy the intelligence briefing text and took measures to ensure execution of the destruction order. (See paragraph 3 of the attachment.) During one telephone conversation with the undersigned, she stated that she was "acting under orders."
d. The undersigned also was instructed to delete all computer files, which Mr. Barry Valentine witnessed on 9 April.
e. In a meeting on 15 April 1992, the Staff's Chief Counsel, J. William Codinha, was advised by intelligence investigators of their concerns about the possibility that they had committed a crime by participating in the destruction of the briefing text. Mr. Codinha minimized the significance of the documents and of their destruction. He admonished the investigators for "making a mountain out of a molehill."
f. When investigators repeated their concern that the order to destroy the documents might lead to criminal charges, Mr. Codinha replied "Who's the injured party." He was told, "The 2,494 families of the unaccounted for US Servicemen, among others." Mr. Codinha then said, "Who's gonna tell them. It's classified." At that point the meeting erupted. The undersigned stated that the measure of merit was the law and what's right, not avoidance of getting caught. To which Mr. Codinha made no reply. At no time during the meeting did Mr. Codinha give any indication that any copies of the intelligence briefing text existed.
g. Investigators, thereupon, repeatedly requested actions by the Committee to clear them of any wrongdoing, such as provision of legal counsel. Mr. Codinha admitted that he was not familiar with the law and promised to look into it. He invited a memorandum from the investigators stating what they wanted. Given Mr. Codinha's statements and reactions to the possibility of criminal liability, the investigators concluded they must request appointment of an independent counsel. A memorandum making such a request and signed by all six intelligence investigators was delivered to Mr. Codinha on 16 April.
h. At 2130 on 16 April, the Chairman of the Senate Select Committee, convened a meeting with the intelligence investigators, who told him personally of their concern that they might have committed a crime by participating in the destruction of the briefing texts at the order of the Staff Director. Senator Kerry stated that he gave the order to destroy the documents, not the Staff Director, and that none of the Senators present at the meeting had objected. He also stated that the issue of document destruction was "moot" because the original briefing text had been deposited with the Office of Senate Security "all along." Both the Staff Director and the Chief Counsel supported this assertion by the Chairman.
i. Senator Kerry's remarks prompted follow-up investigations (See paragraphs 4 through 9 of the attachment) and inquiries that established that a copy of the text was not deposited in the Office of Senate Security until the afternoon of 16 April. The Staff Director has admitted that on the afternoon of 16 April, after receiving a copy of a memorandum from Senator Bob Smith to Senator Kerry in which Senator Smith outlined his concerns about the destruction of documents, she obtained a copy of the intelligence briefing text from the office of Senator McCain and took it to the Office of Senate Security. Office of Senate Security personnel confirmed that the Staff Director gave them an envelope, marked "Eyes Only," to be placed in her personal file. The Staff Director has admitted that the envelope contained the copy of the intelligence briefing text that she obtained from the office of Senator McCain.
3. The facts of the destruction of the intelligence briefing text would seem to fall inside the prescriptions of the Statute, Title 18, U.S.C., Section 2071, so as to justify their referral for investigation to a competent law enforcement authority. The applicability of that Statute was debated in United States v. Poindexter, D.D.C. 1989, 725 F. Supp. 13, in connection with the Iran Contra investigation. The District Court ruled, inter alia, that the National Security Council is a public office within the meaning of the Statute and, thus, that its records and documents fell within the protection of the Statute. In light of that ruling, the Statute would seem to apply to this Senate Select Committee and its Staff. The continued existence of a "bootleg" copy of the intelligence briefing text - i.e., a copy that is not one of those made by the investigators for the purpose of briefing the Select Committee - would seem to be irrelevant to the issues of intent to destroy and willfulness; as well as to the issue of responsibility for the order to destroy all copies of the briefing text, for the attempt to carry out that order, and for the destruction that actually was accomplished in execution of that order.
4. As for the issue of misconduct by Staff attorneys, all member of the Bar swear to uphold the law. That oath may be violated by acts of omission and commission. Even without a violation of the Federal criminal statute, the actions and failures to act by senior Staff attorneys in the sequence of events connected with the destruction of the briefing text might constitute violations
of ethical standards for members of the Bar and of both Senate and Select Committee rules. The statements, actions and failures to act during and after the meeting on 15 April, when the investigators gave notice of their concern about possible criminal liability for document destruction, would seem to reflect disregard for the law and for the rules of the United States Senate.
John F. McCreary