State Attorney General Candidate Under Investigation

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September 27, 2006 6:45 PM

The Republican Party candidate for Attorney General for the State of New York, Jeanine Pirro, is  under investigation for allegedly attempting to hire disgraced nominee for head of Homeland Security, Bernard Kerik, to allegedly record her husband having sex aboard his boat with a woman she is allegedly recorded as calling a good friend of hers, according to sources in three separate offices involved in the probe, Pirro confirmed.

Pirro at a press conference called the prosecutor conducting the probe "overzealous" and  "unethical" and "partisan" and suggests that two FBI agents confronting her at 10 p.m. at night was an attempt at intimidation. The prosecutor she characterizes that way won a conviction against her husband for tax fraud.

Pirro characterized the matter under investigation as a "marital matter."

"Nothing happened that is or should be the business of the United States attorney office," Pirro said. "Although I spoke about taping him...there was no taping," Pirro said. 

Pirro said that she was angry and in the midst of "martial discord" during her conversations with Kerik.

"I have no respect for this investigation," Pirro said.

The alleged eavesdropping attempt first came to light to state investigators who were monitoring Kerik's phone calls during a corruption probe that ended with a guilty plea by Kerik in state court.

Those tapes have since been handed over to federal prosecutors who are investigating Kerik for any role he might have played in diverting $1 million in cigarette taxes paid by prisoners and in the past rebated to New York City. Under Kerik, those monies were placed in the Corrections Foundation. His former deputy at Corrections, Frederick Patrick, has already pled guilty to diverting at least $134,000 and has served a year and a day sentence.

Both Pirro and Kerik have lawyers working on the determining the substance of the federal investigation and a possible state investigation. ABC News is waiting for calls back from them.

Both lawyers have told private investigators familiar with the case that it has no merit. But in New York state it is illegal to eavesdrop or wiretap without at least one party's consent. As a former district attorney, Pirro ought to have been aware of the law. Even were the eavesdropping request made while she was in office, however, it is unclear whether it was a crime.  It would only be a crime if it had been carried out. Pirro's campaign has said flatly that no eavesdropping took place.

Pirro and her attorney were recently notified that she was the subject of a federal probe and  possibly a state probe. While Pirro has said that no crime was committed and the case has no merits, the transcripts of the conversations have been reportedly obtained by at least one news organization. Those transcripts allegedly contain foul and abusive language by Pirro as well as extremely unflattering characterizations of her husband. Kerik's answers, under considerable pressure from Pirro at times, appear measured and cautious. However, ABC News has learned, Kerik's alleged involvement extends beyond conversations with Pirro into follow-up discussions with others on how to conduct such a probe. Those conversations are also recorded.

ABC has learned that at least three subpoenas were served on Kerik and his executives recently. It is unclear whether those were in connection with the prison charity probe, a separate tax probe or other matter. However, both the FBI and the IRS were involved in serving the subpoenas, sources said.

In at least one instance, agents told the subjects of the subpoenas that the conversations with Pirro were part of the investigation. Two of the subpoenas were document requests for Kerik's tax records -- his personal ones for the two years after he left his post as New York City Police Commissioner and his business tax records. A third subpoena issued on Friday Sept. 16 was an order for an executive for Kerik to appear before a sitting federal grand jury. 

Bernard Kerik's office has been aware of the existence of government wiretaps on his telephone since mid-summer and has transcripts of those tapes in which Pirro and Kerik are heard discussing the eavesdropping on her husband. It is unclear from the transcripts whether the operation ever took place. Kerik's firm was however hired to tail her husband, convicted felon Al Pirro, and did so several times in recent months. 

Statement from the United States Attorney for the Southern District of New York, Michael J. Garcia:

"This Office is, as Jeanine Pirro said today, investigating allegations recently brought to our attention by other law enforcement agencies, involving possible violations of Title 18, United States Code, Sections 2511(1)(a) and (b). There are two Assistant United States Attorneys assigned to the case. They are both career prosecutors with experience in public corruption matters. They are working in conjunction with an experienced Assistant District Attorney from the Westchester County District Attorney’s Office. Their actions, and those of the FBI agents with whom they are working, have been approved by several layers of supervisors, including me. Because the investigation is ongoing, we will not comment as to its substance, except to say that we do not take politics into account in deciding either the subject matter or timing of our investigations."