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JUSTICE DEPARTMENT
National Journal
© National Journal Group Inc.
Thursday, May 3, 2007
The chief of staff to Deputy Attorney General Paul McNulty has told congressional investigators that phone calls he placed to four fired U.S. attorneys -- calls that three of the prosecutors say involved threats about testifying before Congress -- were made at McNulty's direction.
Michael Elston, the chief of staff, told congressional investigators in a closed-door session on March 30 that McNulty specifically instructed him to make the phone calls after the Justice Department's No. 2 official learned that the fired prosecutors might testify before Congress about their dismissals.
A transcript of Elston's confidential interview with the congressional investigators was made available to National Journal.
The U.S. attorneys have said that Elston, in effect, told them that if they kept quiet about their dismissals, the Justice Department would not suggest that they had been forced to resign because of poor performance.
At least one member of Congress has questioned whether the phone calls might constitute obstruction of justice.
In his interview with congressional investigators, Elston adamantly denied that he ever tried to discourage the prosecutors from testifying before Congress. He said that he was directed by McNulty to tell the fired U.S. attorneys that the Department of Justice did not have a formal position as to whether they should testify.
At least one member of Congress has questioned whether the phone calls might constitute obstruction of justice.
Elston said that McNulty directed him to place calls to fired U.S. attorneys Paul Charlton of Arizona, Bud Cummins of Arkansas, and John McKay of Seattle, all of whom said they felt pressured to keep quiet. Elston also placed a call to federal prosecutor Kevin Ryan of San Francisco, as directed, but did not speak to him. The calls were placed between January and March of this year -- before details about the political motivations for the firings became public.
On Wednesday, the House Judiciary Committee made public formal correspondence from three fired prosecutors who said they thought that Elston was trying to intimidate them into keeping quiet.
In an interview with National Journal, McKay, reacting to Elston's disclosure that McNulty directed him to make the calls, said, "Because [Elston] was the chief of staff to the deputy attorney general, I always assumed that the phone call was authorized and directed by the DAG. If Elston is telling the truth, it is all the more troubling."
McKay, who was the first of the prosecutors whom Elston called, described Elston's message to him: "The attorney general was not going to disclose that I or the other U.S. attorneys were fired or forced to resign.… 'We have no intention of naming people.'"
McKay said that Elston never specifically suggested an explicit quid pro quo whereby Justice officials would not say that McKay had been fired for cause or poor performance if McKay did not talk to the media or Congress about his firing. However, McKay said, "a reasonable person would have felt both offended and threatened" by Elston's call.
McKay said that the message he took away from the conversation was, "If you remain silent, we will not out you as someone who was forced to resign."
McKay said that he made contemporaneous notes of his conversation with Elston, and dated them -- something, he said, that was not his ordinary practice. He did so because of his concerns about what Elston was telling him, according to McKay.
Charlton said he got a similar phone call from Elston on the same day. In formal response to written questions posed to him by the House Judiciary Committee, Charlton said, "I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general's."
Cummins testified before the Senate Judiciary Committee on March 6, at which time a contemporaneous e-mail he wrote within an hour of his phone call with Elston was released. In the e-mail, which he sent to five of his fellow prosecutors, Cummins said that the "essence of [Elston's] message" was that if any of the fired U.S. attorneys had pressed their case in the media or before Congress, senior aides to Attorney General Alberto Gonzales might "feel forced to somehow pull their gloves off" and accuse the prosecutors of ineptitude or poor management.
Cummins also wrote in his e-mail that Elston had called him because he was upset about comments Cummins had made in the press about his firing. "[Justice officials] feel like they are taking unnecessary flak to avoid trashing each of us," Cummins said in the e-mail to his fellow prosecutors. "I also made it a point to tell him that all of us have turned down multiple invitations to testify. He reacted quite a bit to the idea of anyone voluntarily testifying, and it seemed clear that they would see this as a major escalation of the conflict meriting some kind of unspecified form of retaliation."
McKay, one of the prosecutors who got the e-mail, said: "[Cummins] wanted to send a message to all of us. We got that message, loud and clear: If you talk to the press or go to Congress, the Department of Justice will not consider you a friend. I considered it an act of intimidation."
In his interview with congressional investigators, Elston said that he called Cummins and the other U.S. attorneys "at the deputy attorney general's direction" and "to reassure them that the attorney general was not going to name names."
Elston said that McNulty only wanted him to tell Cummins that the department had no position on whether he should testify: "[McNulty] also told me to be very careful when I called Bud back and to make it very clear to him the Department of Justice had no position on whether he testified or not. And that he could testify if he wanted to, or not testify. It was entirely up to him.
"And that conversation sticks in my mind because the deputy attorney general was very earnest and being very careful. And having no experience on Capitol Hill... I followed his instruction."
Congressional investigators asked Elston about an e-mail in which Gonzales's then-chief of staff, D. Kyle Sampson, wrote to other Justice Department officials that he did not think it was a good idea for Cummins to testify. Elston also told investigators, "The deputy attorney general [McNulty], I think, concurred with that."
During the interview with investigators, Elston also said that in his February 20 phone call to Cummins it was the prosecutor who expressed a desire to remain loyal to the department and to not testify. "[Cummins] said a number of things, but one of them was, 'I still want to be on the team, and I don't have any hard feelings,' " Elston testified. " 'I would like to be a federal judge someday, and I didn't think the Democrats are going to nominate me.'"
In an interview, Robert Driscoll, Elston's attorney, said that the U.S. attorneys might have been mistaken in their accounts of their phone calls with his client. "From the information I have seen, none of the fired U.S. attorneys quote Mike as making any type of explicit threats, and each one focuses more on their interpretation of the conversation than [on] what Mike actually said. Their interpretations appear in some instances to be unjustified, based on their own descriptions."
Justice Department spokesman Brian Roehrkasse disputed the notion that Elston’s phone calls to the fired prosecutors could have been viewed as an attempt to keep them from testifying before Congress. At the time the first phone calls were made in January, Roehrkasse said, the issue of the prosecutors' dismissals had attracted so little attention that it would have been highly unlikely that any of prosecutors would have thought that they might be called upon to appear before Congress.
The stakes are high for McNulty if key members of Congress or investigators believe that he directed Elston to discourage any of the U.S. attorneys from testifying.
At the March 6 Senate Judiciary hearing, Sen. Sheldon Whitehouse, D-R.I., asked Cummins and three others U.S. attorneys what they would have done in their capacity as federal prosecutors had they learned that an interested party in one of their investigations had tried to discourage a witness from providing information or testifying. All four said that they would have investigated the matter to determine a possible obstruction of justice.
"Mr. Cummins, let me ask you first. I'd like to ask you to put your U.S. attorney hat back on," Whitehouse said. "You're still in office, and think of a significant grand jury investigation that you led as United States attorney in your district. And consider that a significant witness in that grand jury investigation has just come into your office to relate to you that prior to his grand jury testimony he was approached about his testimony and [told]... essentially exactly the words that Mr. Elston approached you. What would your next step be as United States attorney?"
Cummins responded: "We take intimidation of witnesses very seriously in the Department of Justice and the U.S. attorney's office, so we would be very proactive in that situation."
Attempting to moderate his statement, he added: "I would qualify that by saying that at the time this discussion was had, we weren't under a subpoena; the idea of testifying was just kind of a theoretical idea out there. And I would say … to the extent we talked about testimony at all, it was the idea that running out and volunteering to be part of this would not be viewed charitably by the people that it would affect."
Whitehouse pressed Cummins: "But if that sort of approach had been made to a witness in an active proceeding that you were leading, and you were extremely proactive about it, that would lead you where?"
"Well, we'd certainly investigate it and see if a crime had occurred."
"And the crime would be?"
Cummins responded: "Obstruction of justice. I think there are several statutes that might be implicated -- but obstruction of justice."
Whitehouse posed the same question to John McKay, the fired U.S. attorney from Washington state.
McKay responded: "I would be discussing it with the assigned prosecutor and federal agents."
"With regard to?"
"With regard to possible obstruction of justice."
Whitehouse next put the question to David Iglesias, the fired U.S. attorney from New Mexico:
Iglesias replied: "Same answer, sir. I would contact the career [assistant U.S. attorney] and probably the FBI and talk about what's the evidence we have to maybe move forward on an obstruction investigation.
Finally, Whitehouse looked toward Carol Lam, the fired U.S. attorney from San Diego.
She answered without hesitation: "Fundamentally the same answer: witness intimidation."
By Murray Waas
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