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Judge Steered House Check Scandal Probe

By Matt Schudel
Washington Post Staff Writer
Monday, September 7, 2009

Malcolm R. Wilkey, 90, a retired Justice Department official, federal judge and ambassador who led the 1992 investigation into the scandal surrounding the internal bank of the U.S. House of Representatives, died Aug. 15 at his home in Santiago, Chile. He had prostate cancer.

In a long and varied career, Judge Wilkey prosecuted international drug smugglers, led federal efforts to integrate public schools in the South and participated in several key rulings on the U.S. Circuit Court of Appeals in Washington from 1970 to 1985.

His greatest impact in Washington might have come in 1992, when Attorney General William P. Barr -- once Judge Wilkey's law clerk -- asked his former boss to investigate improprieties related to the House of Representatives' private bank. Despite the grumbling of many congressmen, Judge Wilkey subpoenaed the bank's records and found evidence, he said, of a "classic check-kiting scheme." During a 39-month period before the bank closed in December 1991, he discovered that House members had more than 24,000 overdrafts without paying any penalties. The privilege was criticized as a form of interest-free loans available only to congressmen.

"By honoring literally thousands of checks that most commercial banks would have returned for insufficient funds," Judge Wilkey said, "the House bank permitted members to engage in conduct that would have been impossible, and in some circumstances even criminal, for the general public."

Several congressmen attempted to have Judge Wilkey's subpoenas quashed, but in the end he cited more than 300 House members for overdrawing their private bank accounts, sometimes by hundreds of thousands of dollars. Three House members were convicted of felonies, and a fourth pleaded guilty to a misdemeanor. The manager of the bank, House Sergeant-at-Arms Jack Russ, was convicted of embezzlement and other crimes.

There was immediate fallout from Judge Wilkey's nine-month investigation, as 77 members of the House resigned, retired or lost reelection bids. Democrats, who were disproportionately implicated in the scandal, accused the Republican judge of leading a partisan witch hunt.

"He was a man of conservative outlook, but he was too much the scholar to be involved in partisan politics," a longtime friend, former Washington Times editor and publisher James R. Whelan, told The Washington Post last week.

Griffin Bell, attorney general under President Jimmy Carter (D), also came to Judge Wilkey's defense. "I'd be glad to have him as an investigator of something I was involved in," Bell said in 1992. "He's a wise man. We need some wise people on the job with all these problems."

Malcolm Richard Wilkey was born Dec. 6, 1918, in Murfreesboro, Tenn., and grew up in Madisonville, Ky. He won a scholarship to Harvard University, where was elected to Phi Beta Kappa before his graduation in 1940.

During World War II, he was an Army officer under Gen. George S. Patton and participated in the Battle of the Bulge. After the war, he returned to Harvard and graduated from law school in 1948.

He practiced law in Houston before joining the 1952 presidential campaign of Dwight D. Eisenhower. After Eisenhower's election, Judge Wilkey was named U.S. attorney in Houston, where he prosecuted Mexican drug traffickers and a Texas political boss. He came to Washington in 1958 to lead the president's Office of Legal Counsel.

Later that year, Eisenhower dispatched Judge Wilkey to Little Rock, where the state's governor, Orval E. Faubus, closed the city's public schools rather than comply with a federal desegregation order. Judge Wilkey, backed by U.S. marshals, tried to enforce the order, but the Little Rock schools remained closed for the entire year. They reopened in 1959, fully integrated.

"Coming from Texas, Kentucky and Tennessee, I had never been any civil rights campaigner," Judge Wilkey wrote in "As the Twig Is Bent," his 2004 memoir. "But I had always agreed with the view of the President and the Attorney General: the Supreme Court had issued an opinion 9-0, based on the Constitution, calling for desegregation 'with all deliberate speed.' "

Judge Wilkey worked as a legal adviser to the Kennecott Copper Corp. in New York from 1963 to 1970, when President Richard M. Nixon appointed him to the U.S. Court of Appeals for the D.C. Circuit. He replaced Warren E. Burger, who had been named chief justice of the United States.

Judge Wilkey twice voted to support the White House in cases related to the Watergate break-in. He dissented in a landmark 1973 case, in which the appeals court ruled 5 to 2 that Nixon had to turn over White House tape recordings to special prosecutor Archibald Cox and a grand jury. The decision was unanimously upheld by the Supreme Court.

In 1976, Judge Wilkey wrote a controversial decision that reversed the convictions of Watergate burglars Bernard L. Barker and Eugenio R. Martinez, who had been sentenced for breaking into the office of Daniel Ellsberg's psychiatrist. Ellsberg had released the top-secret Pentagon Papers, which detailed the history of U.S. involvement in the Vietnam War.

One of Judge Wilkey's most significant rulings came in a 1982 case involving the Federal Energy Regulatory Commission. In his decision, Judge Wilkey declared the "legislative veto," or "one-house veto," unconstitutional. Under that practice, a single branch of Congress could overturn the actions of federal regulatory agencies without the president's approval.

He wrote that the congressional veto violated the separation of powers doctrine of the Constitution by allowing Congress "to expand its role from one of oversight, with an eye to legislative revision, to one of shared administration." The principle was upheld a year later by the Supreme Court in a separate case.

After retiring from the bench, Judge Wilkey served as U.S. ambassador to Uruguay from 1985 to 1990, as the country emerged from a long military dictatorship.

In 1991 and 1992, Judge Wilkey helped arrange reparations by the government of Chile to the family of Orlando Letelier. A Chilean diplomat and critic of the regime of Chilean leader Augusto Pinochet, Letelier was killed in a car bombing in Washington in 1976. (His American assistant, Ronni Moffitt, was also killed.) Under the agreement, the Letelier and Moffitt families received hundreds of thousands of dollars, but the Chilean government did not admit guilt in the bombing.

Judge Wilkey settled in Santiago in 1990 with his Chilean-born wife, Emma Secul Wilkey, whom he married in 1959. She is his sole survivor.

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