Order on Documents Signals Justice Dept. May Pursue Foley

By Dan Eggen and Allan Lengel
Washington Post Staff Writers
Thursday, October 5, 2006

Federal prosecutors yesterday ordered the House of Representatives to preserve all documents and other materials related to Mark Foley's electronic communications with male teenage pages, signaling an intensifying investigation by the FBI and the Justice Department into possible criminal activity by the disgraced former GOP congressman.

The three-page "preservation letter" -- sent to House Counsel Geraldine R. Gennet from the office of acting U.S. Attorney Jeffrey A. Taylor in Washington -- indicates that law enforcement officials are preparing, if necessary, to seek grand jury subpoenas for records or searches of Foley's Capitol Hill office, said law enforcement officials and legal experts.

FBI agents also continued to seek out current and former pages who may have had contact with the former Florida congressman, who resigned Friday after some inappropriate comments he made to pages in e-mails and online instant messages became public.

One law enforcement source said more than two pages but fewer than six had been interviewed as of late yesterday, and FBI agents are still trying to determine how many pages may have communicated with Foley. Investigators are not limiting their interests to participants in the congressional page program, sources said.

The Florida Department of Law Enforcement also confirmed yesterday that it has begun its own preliminary inquiry.

The legal developments only served to worsen the expanding political crisis for House Republicans just five weeks before the midterm elections, as Speaker J. Dennis Hastert (R-Ill.) fought to hold on to his job amid fierce criticism of the way he and other GOP leaders handled the Foley scandal. Foley's former chief of staff, Kirk Fordham, announced yesterday that he was resigning from his current job as chief of staff for Rep. Thomas M. Reynolds (R-N.Y.), and he said he had warned Hastert's office about Foley's worrisome conduct more than three years ago.

Although the Justice Department's inquiry is still defined as a preliminary investigation, the demand to preserve records and other moves by Justice investigators significantly increase the likelihood that prosecutors will soon open a full criminal investigation and bring the case before a grand jury, several officials said.

The letter was also aimed at avoiding another legal conflict with the House, which strenuously objected in May when FBI agents raided the office of Rep. William J. Jefferson (D-La.) seeking evidence in a bribery investigation.

On other fronts, the Justice Department and the FBI are preparing to use administrative subpoenas to obtain subscriber information for the e-mail accounts at the heart of the case, according to law enforcement officials. Authorities said their job will be made more difficult because providers such as AOL do not keep records of instant messages, the real-time text chat used in the sexually explicit exchanges Foley is accused of engaging in.

Foley sent e-mails to pages from an AOL e-mail account with the screen name "Maf54," and he used the same identification for chats on AOL's popular AIM service, according to ABC News, which obtained the communications from former pages.

Law enforcement officials said earlier that the FBI had not yet demanded information from AOL or other communications providers in connection with the case. AOL spokesman Andrew Weinstein said the company would not comment regardless of whether such a demand had been received.

Weinstein said AOL servers do not record instant messages, although it is possible to do so under a court order. That, Weinstein said, means AOL could not retrieve Foley's past instant messages -- which appear to have been sent primarily in 2003. But users can easily copy, save or print such exchanges themselves.

The focus of the probe so far is on whether Foley might be liable for charges of crossing state lines or using electronic communications to entice a minor into sexual acts, but investigators "have not ruled out any number of possible crimes that could be looked at," said one official, who along with others requested anonymity because of the ongoing investigation.

David Schertler, a former federal prosecutor now in private practice in the District, said federal law would apply to "whoever persuades, induces or entices," by telephone or e-mail, a minor to engage in sexual activity, whether or not a sex act occurred. "Some of the comments that are in those e-mails could be interpreted as violations of the statute. Whether or not they present a compelling case is another matter," Schertler said.

The chat exchanges attributed to Foley so far include lewd discussions of body parts and sex acts and hint at intimate meetings that either happened or were sought by Foley.

Two law enforcement officials said the ages of the boys communicating with Foley could be a serious complication, however. Federal law defines a minor as anyone under 18, but many jurisdictions set a lower age of consent for sexual acts. Federal officials say they take into account the age of sexual consent in a local jurisdiction when determining whether a federal law has been violated.

In the District, for example, the age of consent is 16, although lawmakers this year passed legislation allowing prosecution of ministers or other people of authority who have sex with someone 17 or younger.

Officials said there has been no attempt at this point to raid or seize the records in Foley's office.

Stuart F. Pierson, a former federal prosecutor who is now a lawyer with the D.C. firm Troutman Sanders LLP, said getting to Foley's computers may require negotiation with the House counsel's office.

"There are a lot of sensitivities searching a congressman's office," he said.

Hastert indicated to reporters Monday that House leaders "expect everybody to cooperate" and would not stand in the way of investigators. Foley's attorney, David Roth, also pledged full cooperation with the FBI. "Nothing will be altered," he said.

Staff writer Mary Beth Sheridan and staff researcher Madonna Lebling contributed to this report.

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