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U.S. Might Not Try Pro-Israel Lobbyists
Meanwhile, Rep. Harman Denies Offering to Influence Case

By R. Jeffrey Smith, Walter Pincus and Jerry Markon
Washington Post Staff Writers
Wednesday, April 22, 2009

The U.S. government may abandon espionage-law charges against two former lobbyists for a pro-Israel advocacy group, officials said yesterday, as a prominent House lawmaker denied new allegations that she offered to use her influence in their behalf.

Rep. Jane Harman (D-Calif.) accused the government of an "abuse of power" in wiretapping her conversations, following news reports that she had been recorded in 2006 on FBI wiretaps that officials at the time said raised questions of possible illegal conduct.

Harman's expression of outrage added a political dimension to the prosecution of the two former lobbyists, who were charged in 2005 under a World War I-era espionage law with conspiring to give national defense information to journalists and Israeli Embassy officials.

With the trial set to begin June 2, the Justice Department is reviewing whether to proceed as planned or withdraw the indictments after a series of adverse court rulings, according to law enforcement sources and lawyers close to the case.

Defense attorneys recently subpoenaed a number of senior Bush administration officials, including former secretary of state Condoleezza Rice, former national security adviser Stephen J. Hadley, and former high-level Defense Department officials Paul D. Wolfowitz and Douglas J. Feith.

Transcripts of the FBI wiretaps depict a possible trade of favors in which Harman expressed willingness to discuss the American Israel Public Affairs Committee prosecution with senior administration officials and, in return, backers of Israel would provide Democrats with additional campaign contributions and support Harman's efforts to become chairman of the House Permanent Select Committee on Intelligence, according to two sources with direct knowledge of the matter who spoke on the condition of anonymity.

In that job, Harman -- who was already the panel's senior Democrat -- would have maintained access to some of the nation's most sensitive secrets, through intelligence briefings typically reserved for just four to eight top lawmakers.

After the 2006 election, Harman's promotion was shouldered aside by a fellow Californian with whom she has long had difficult relations, newly chosen House Speaker Nancy Pelosi (D). And the Justice Department, after prolonged internal discussions, dropped its investigation of Harman without briefing congressional leaders, who are normally notified whenever a lawmaker is implicated in a national security investigation, according to two additional sources.

Although the government's probe of Harman was disclosed in 2006, the existence of transcripts depicting what she said in the phone calls surfaced this week on the Congressional Quarterly Web site. She told reporters yesterday that as far as she knows, the calls in question were conversations with U.S. citizens that took place within the country.

In a letter to Attorney General Eric H. Holder Jr., Harman said she never contacted the Justice Department or the White House to "seek favorable treatment regarding the national security cases on which I was briefed, or any other cases." She also said that "it is entirely appropriate to converse with advocacy organizations and constituent groups," and expressed concern that the allegations about what she said in her conversations might have "a chilling effect on other elected officials who may find themselves in my situation."

Harman further called on the department to release in full any transcripts and other material involving her that were collected during the federal probe, so she could make them public.

Matthew A. Miller, a Justice Department spokesman, said: "We are reviewing the congresswoman's letter," adding that the department had no further comment.

The two former lobbyists, Steven J. Rosen and Keith Weissman, worked until 2005 for AIPAC, an influential advocacy group. They were fired after government officials told the group's officers about recordings and video in which the lobbyists discussed classified information with journalists and Israeli Embassy officials. One of the journalists is a Washington Post reporter.

The government's case sparked controversy because it was the first effort to apply the law to people who did not work for the government and who were engaged in an exchange of information that many consider routine in Washington.

Harman came to the attention of the FBI when she was heard conversing with someone whom the FBI was wiretapping under a law permitting domestic surveillance of suspected foreign intelligence agents, according to the sources with knowledge of the wiretaps. In that conversation, her supporter, who was the target of the wiretap, allegedly discussed speaking to Pelosi about additional contributions to Democrats if Harman was appointed committee chairman, the sources said. That development prompted a preliminary FBI investigation of Harman herself.

A friend of Harman's who spoke on the condition of anonymity to avoid a clash with her said that some of the congresswoman's friends advised her at the time to scale back her effort to become chairman because it was clearly not working. "Jane was pulling every lever -- the Hill, downtown -- everything," said the friend. "It got to the point that you wanted to head the other way when you saw her coming. She wouldn't let it go."

Harman has repeatedly described herself as a friend of AIPAC, and the nonprofit Center for Responsive Politics says that she has received $347,688 in campaign contributions since 1989 from groups that take a pro-Israel stance. She is slated to appear on a panel to discuss "an insider's look at the Middle East" at AIPAC's May 3 policy conference.

Pelosi decided not to give Harman the chairmanship "for ideological reasons," including Harman's decision not to oppose the war in Iraq, according to a Pelosi aide. Pelosi denied that any pro-Israel donors to the Democratic Party threatened to withhold donations if she appointed someone other than Harman to lead the committee. "Everybody knows that I don't respond to threats so it wouldn't be useful to use them, but it isn't true, no," she said.

The Justice Department decided not to proceed with a criminal case against Harman or to notify congressional leaders of the preliminary investigation because the evidence was at best murky and such cases are hard to prove, one former government official said yesterday.

The Justice Department's decision to review the case against the former lobbyists was triggered by recent court rulings that make it harder for the government to win such convictions, according to the law enforcement sources and lawyers close to the case. Those decisions included an appeals court ruling that allowed the defense to use classified information at trial. A lower-court judge also said prosecutors must show that the two men knew that the information they allegedly disclosed would harm the United States or aid a foreign government and that they knew what they were doing was illegal.

The review is a legal analysis examining the recent court rulings and whether prosecutors can meet their burden of proof, the sources said. They said the review was not begun by political appointees from the Obama administration and would have been undertaken even if Republicans had retained the presidency. They also said it is unrelated to the revelations about Harman.

"It's not because 'Oh, this is getting ink, it's getting too hot, we need to drop it,' " said one law enforcement source, who was not authorized to speak publicly about the case. "We would never do it for that reason."

Any decision to seek to drop the charges would require approval from a federal judge.

Staff writers Spencer S. Hsu, Paul Kane and Lois Romano; research editor Alice Crites; and staff researcher Julie Tate contributed to this report.

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