By Jason Leopold
t r u t h o u t | Report
Friday 16 November 2007
John McKay, the former US attorney for the Western District of Washington, pieced together thousands of pages of internal Justice Department (DOJ) emails released earlier this year, reviewed public documents and pored through hundreds of pages of sworn testimony his former boss, Alberto Gonzales, gave to Congress about the firings of at least nine US attorneys last year.
McKay said evidence in the public record demonstrates the former attorney general and his underlings may well have obstructed justice.
McKay was one of the nine US attorneys fired in December 2006 for reasons that appear to be politically motivated. The DOJ's inspector general, Glenn Fine, is conducting an investigation to determine whether Gonzales perjured himself before Congress or sought to influence the testimony of Monica Goodling, the DOJ's former White House liaison who used a political litmus test to hire and fire attorneys, and resigned in disgrace earlier this year. McKay said that a special prosecutor should be appointed to further probe the circumstances behind the US attorney firings if the inspector general's report determines federal laws may have been broken.
In an upcoming issue of the Seattle University Law Review, Mckay said the firing of at least two US attorneys, David Iglesias of New Mexico, and Carol Lam of San Diego, appears to demonstrate Gonzales and top DOJ officials may have obstructed justice by interfering with public corruption cases and ongoing criminal investigations Iglesias and Lam had been involved in at the time of their dismissals.
McKay discussed elements of his Law Review article at a conference of former US attorneys in Miami earlier this month. Iglesias, as well as Bud Cummins, the former US attorney for the Eastern District of Arkansas, were also in attendance and participated in a panel discussion to talk to their colleagues about their firings and how it has impacted the integrity of the DOJ. About 100 former US attorneys from the Reagan, George W. Bush and Clinton administrations attended the conference, sponsored by the National Association of Former United States Attorneys.
At the conference, a resolution was passed that includes nine bullet points, one of which says "a United States attorney should never be asked to resign or be terminated because a Senator, Representative or other elected official has complained to the Department of Justice or White House regarding the US attorney's refusal to bring charges."
The resolution has been sent to newly appointed Attorney General Michael Mukasey. McKay's Law Review article calls for similar resolutions. He recommends Mukasey should "move immediately to ... take steps to prevent the abuses of his predecessor," including, "limiting the points of contact between the Justice Department and the White House; eliminating all but specially designated Congressional liaisons."
In an interview, Iglesias said the resolution adopted at the conference in Miami underscores that the legal community still views the firings as a serious matter. He added that the former US attorneys who attended the conference were outraged over the politicization of the DOJ and "they expressed how bad they felt about what happened to us."
Iglesias said former DOJ official Mike Battle, who played a role in the firings to the extent he personally contacted the US attorneys to fire them, attended the conference as well. Iglesias said Battle told him he had nothing to do with selecting the US attorneys for dismissal. He was simply the messenger.
"I believe he was being honest," Iglesias said.
In his Law Review article, and at the conference, McKay singled out Iglesias's firing saying it could result in "criminal charges" against Gonzales and other former senior DOJ officials "for impeding justice."
"The elements of a prima facie case of obstruction of justice are: (1) the existence of the judicial proceeding; (2) knowledge of or notice of the judicial proceeding; (3) acting 'corruptly' with intent to influence, obstruct or impede the proceeding in the due administration of justice; and (4) a nexus (although not necessarily one which is material) between the judicial proceeding sought to be corruptly influenced and the defendant's efforts," McKay writes in a 34-page article, which is still in draft form and expected to be published in January. "The [federal] omnibus clause is a 'catchall' provision, which is broadly construed to include a wide variety of corrupt methods."
In testimony before Congress earlier this year, Iglesias said that a few weeks before the 2006 midterm elections he received telephone calls from New Mexico's Republican Senator, Pete Domenici, and the state's Republican Congresswoman, Heather Wilson, inquiring about the timing of an indictment against a popular Democratic official in the state who was the target of a corruption investigation. Iglesias told Domenici and Wilson he could not discuss the issue of indictments with them. A couple of weeks later, Iglesias's name was added to a list of US attorneys selected for termination.
McKay writes that when Gonzales testified before Congress about the circumstances behind the firings Gonzales admitted "he took multiple phone calls from Domenici concerning [Iglesias], urging that he be replaced, and has admitted that [President Bush] spoke with him about the 'problems' with Iglesias."
"Gonzales has even admitted that one of the reasons that Iglesias was fired was because Senator Domenici had "lost confidence" in Iglesias," McKay writes. "While these allegations are troubling under any analysis, a thorough and independent investigation is necessary to determine whether criminal laws have been violated. Among the considerations facing the inspector general is whether the actions of former Attorney General Gonzales constituted obstruction of justice by removing Iglesias. That [Gonzales] had knowledge of the high profile public corruption case being investigated by Iglesias in New Mexico is virtually certain, given that [Gonzales] has admitted speaking to Domenici and would almost certainly be expected to have such knowledge as the leader of the Justice Department. Under the broad language of [the federal statute regarding obstruction of justice], it would be hard to imagine that 'corruptly influence' would not extend to firing of the United States attorney in the middle of a public corruption case because he 'lost confidence' of a senator who sought to manipulate the indictments for crass political advantage."
McKay said that the firing of Lam, the former US attorney for the Southern District of California, is just as troubling because it took place while Lam was "supervising the highest profile public corruption prosecution in America," Randy "Duke" Cunningham, the Republican congressman from San Diego.
Cunningham pleaded guilty in March 2006 to mail and wire fraud and conspiracy to commit bribery and is serving an eight-year federal prison term. At the time of Cunningham's sentencing, Lam said in a prepared statement the investigation would continue "with respect to other co-conspirators."
The co-conspirators Lam was referring to included Kyle "Dusty" Foggo, the former executive director of the CIA, who resigned from the agency in early May 2006, a few days before search warrants were executed on his residence. McKay believes Lam's dogged pursuit of Cunningham's co-conspirators in the spring of 2006, a year in which Republicans faced tough reelection campaigns, may have led directly to her firing.
"Lam alerted the Justice Department that FBI agents would, at her direction, search Foggo's home in connection with the Duke Cunningham case, and the following day [former Gonzales Chief of Staff] Kyle Sampson emailed the White House from the attorney general's office that 'we have a real problem with Carol Lam' and urged that she be dismissed at the conclusion of her term," McKay writes. "Given the wide publicity of the Cunningham political corruption case ... it is reasonable to conclude that Gonzales, [former Deputy Attorney General Paul] McNulty, Sampson and other senior Justice Department officials were aware of the underlying judicial proceeding being handled by Carol Lam, Gonzales, McNulty and Sampson, at minimum, will have to demonstrate that their complicity in the removal of Lam had nothing to do with her aggressive prosecution of power Republicans for public corruption. In addition to the Sampson email ... investigators will seek to establish whether other senior officials knowingly sought her removal in connection with the Cunningham investigation. If such evidence is found, removal of the United States attorney in where the US attorney was personally supervising the case would undoubtedly come within the omnibus provisions of the federal obstruction of justice statute."
McKay discusses the politics surrounding his own firing as well as that of Paul Charlton, the former US attorney for Arizona. Moreover, he uses the public record to demonstrate Gonzales and McNulty may have knowingly lied to Congress, a felony.
"McNulty also may have sought to conceal an important phone call from Senator Domenici regarding US attorney Iglesias, instructing Monica Goodling to delete reference to that call from his Senate testimony," McKay writes, drawing upon Goodling's prepared testimony before Congress earlier this year, to back up his argument. "Others who likely have serious concerns (and even more likely who have retained criminal defense lawyers) are Kyle Sampson and former McNulty staffers Will Moschella and Michael Elston Sampson appears to have knowingly concealed from Congressional investigators the forced resignation of Todd Graves from the Western District of Missouri, and the role of Karl Rove in securing the appointment of Timothy Griffin in Eastern District of Arkansas to replace the US attorney Bud Cummins."
McKay adds that Elston may have lied about the criteria the DOJ and/or the White House used in placing the nine US attorneys on a list. Moschella has maintained that the White House was not involved in the firings but evidence that has surfaced thus far has contradicted his assertions.
If the DOJ's inspector general investigation concludes further investigation into possible federal crimes is warranted and refers the case to the US attorney's office for the District of Columbia to probe the matter, McKay said a special prosecutor should be appointed instead because the US attorney in DC is Gonzales's former chief of staff.
"The Justice Department must seek a special prosecutor who will be seen as independent of the White House and of the Justice Department itself," McKay writes.
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