Joint Hearing Of The House Committee On the Judiciary's Subcommittees- Federal Justice System's Selective Prosecution

Interview

Joint Hearing Of The House Committee On the Judiciary's Subcommittees- Federal Justice System's Selective Prosecution

REP. SCOTT: The hearing will come to order. Good morning, I'm pleased to open this hearing on Allegations of Selective Prosecution, The Erosion of Public Confidence in Our Federal Judicial System

For some months now we've been looking at the issue of whether some United States attorneys were fired because of their unwillingness to bring politically-based prosecutions. Of course, there's evidence -- if there is evidence that some U.S. attorneys were fired for their failure to bring politically-based prosecutions, that leaves the question of whether any of those not fired kept their jobs because they were willing to bring such prosecutions. Today's hearing focuses on this aspect of the question as the continuing investigation of the issue of whether there is inappropriate politicization within the Department of Justice.

Looking at instances in which prosecutions appear to have been politically motivated. United States Supreme Court Justice Robert Jackson once said, "While the prosecutor, at his best, is one of the most beneficient forces in our society, when he acts from malice or other base motives, he is one of the worst. Therefore, he should have as nearly as possible a detached and impartial view of all groups in his community."

Unfortunately, however, evidence has come to light that the United States Department of Justice may be falling far short of holding a detached and impartial view. Allegations have risen that U.S. attorneys have aggressively investigated political opponents for activity that was only technically criminal or not even criminal at all, then timed the announcement of indictments to affect elections. U.S. attorneys have also been accused of selectively prosecuting only Democrats for activities in which Republicans have engaged in similar activities.

In fact, the latest statistics in one study that we'll hear today, showed that of 375 investigations of political candidates and office holders initiated under the Bush administration's Department of Justice, 80 percent have been against Democrats. And this disparity in the Department's focus calls its objectivity into question. And we have researched the trend and uncovered a number of disturbing incidents that raise -- incidents that raise questions as to the Department's impartiality. And since we announced plans to conduct this hearing, a steady flow of cases has come to our attention that deserve attention, but time prohibits us from detailing fully.

We will hear about a number of specific cases today, but I want to focus briefly on just one case that highlights both the doubtfulness and the selectiveness of prosecutorial activity. Paul Minor was a major Democratic contributor in Mississippi, and trial lawyer who had won two major lawsuits against companies that may have been involved with the U.S. attorney. He was indicted for guaranteeing loans and providing houses for Mississippi Supreme Court Justice Oliver Diaz. The Justice had recently won an election to the Mississippi high court over a close friend of the U.S. attorney and was indicted on corruption charges for his dealings with Paul Minor.

Like a number of other cases we'll hear today, the indictments were announced 90 days before a major election, in this case the 1903 (sic) gubernatorial election, and that announcement was widely seen as an attempt to paint the Democratic Party as corrupt. The dubiousness of the allegations comes from the fact that although there were, in fact, financial dealings between Paul Minor and the Justice, there was no evidence of influencing the Justice or even an attempt to influence him. The prosecution offered no evidence that the Justice presided over any cases that Paul Minor brought before the court. Moreover, investigators never even reviewed the Justice's fellow jurists to determine whether he had improperly influenced any cases involving Paul Minor or anyone associated with him.

And finally, the activity for which Paul Minor was indicted had been commonplace in Mississippi, and prosecutions for such impropriety had never been brought in the past. Ultimately, Paul Minor and the Justice were acquitted of any charges of activity between them, however the acquittal was long after the Mississippi gubernatorial race which was run (sic) by the Republican candidate.

The allegation of selectivity in the case stems from the fact that the U.S. attorney apparently ignored activity of a major Republican contributor and brother-in-law to a Republican U.S. senator. The Republican contributor also made loans to the Justice, and was Paul Minor's co-owner of the very building that the Justice used as his residence for which Paul Minor was indicted. Yet the Republican contributor was not even investigated, let along indicted. In fact, when the investigating FBI agent brought the evidence about this very Republican contributor to the attention of the U.S. attorney, the agent was transferred to an antiterrorism unit in Guantanamo Bay, Cuba and was replaced by an agent who had contributed to the Republican Governor Haley Barbour's campaign.

Mr. Minor had entered a lengthy and articulate motion to dismiss the charges against him, which the trial court did not grant. However, without objection, I'd like to enter Mr. Minor's Motion to Dismiss on the record so the details of the allegation here can be fully recognized. This is just one of a growing list of cases in which U.S. attorneys have allegedly attacked political rivals while allowing similar activity by its allies to go unchallenged. It is incumbent upon us, as part of our Congressional oversight responsibilities, to determine to what extent these determined allegations are true, and that's why we're holding this hearing.

I'd like to now recognize my friend and Virginia colleague, the distinguished ranking member of the subcommittee, the Honorable Randy Forbes who represents Virginia's 4th Congressional District.

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REP. SCOTT: The hearing will come to order. We have a distinguished panel of experts from whom we'll hear testimony today. Our first witness is the honorable Richard Thornburgh of the law firm of Kilpatrick (sic/Kirkpatrick) & Lockhart Preston Gates and Ellis. Mr. Thornburgh serves as an active adviser and counselor to the firm's government affairs clients with respect to matters concerning federal, state and local government. He served as governor of Pennsylvania, United States attorney for the western district of Pennsylvania, and was the attorney general for the United States under President Reagan and under President George Herbert Walker Bush. He has a Bachelor's degree from Yale and an LLP from University of Pittsburgh Law School.

Next witness will be Donald Shields, Professor Emeritus of the University of Missouri at St. Louis. He has conducted extensive research and authored a document entitled, "An Empirical Examination of the Political Profiling of Elected Officials and Report on Selective Investigations and/or Indictments by DOJ's U.S. Attorneys Under Attorneys-General Ashcroft and Gonzalez." He has a Bachelor's degree and a Master's degree from University of Missouri and a Ph.D. from the University of Minnesota.

Our final witness will be Mr. Douglas Jones of the law firm of Whatley Drake & Kallas. He served as U.S. attorney for the northern district of Alabama from 1997 to 2001, and since entering private practice he's been appointed as a special attorney general for the state of Alabama. He holds a Bachelor's degree from the University of Alabama and a jurisdoctorate from Cumberland Law School at Stanford University. Mr. Thornburgh?

MR. THORNBURGH: Chairman Scott --

REP. SCOTT: Excuse me. As you'll note the lights before you we're asking our witnesses to do the best they can to confine their testimony to five minutes. The light will go from green to yellow to red which will indicate that the time is up. I'm sorry. Mr. Thornburgh?

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REP. SCOTT: Thank you.

And I thank all of our witnesses for their testimonies. As has been suggested, the full written statements in their entirety will be entered into the record.

And I'd like to enter into the record a petition in support -- urging the United States Congress to investigate the circumstances surrounding the investigation, prosecution and sentencing and detention of Don Siegelman, the former governor of Alabama. It's signed by 44 former state attorneys general urging the Congress to take that action. Without objection that will be placed in the record.

Mr. Thornburgh, we cut your testimony off. Was there more that you wanted to say -- particularly about -- I think you were about to talk about the FBI agent?

MR. THORNBURGH: If I could just take a minute to summarize my testimony. It's set forth at length in my written statement, but one troubling aspect of this investigation and prosecution -- and I think further evidence that it was motivated by something other than the search for justice -- relates to the conduct of FBI Agent Bradley Orsini, a lead agent assigned to Dr. Wecht's case -- as well as the case against the former mayor -- and an agent with unseemly past.

Agent Orsini, while in Newark, New Jersey was investigated for years by the FBI's Office of Professional Responsibility and found to have falsified official records and FBI Form 302s. He was reprimanded twice for falsification of evidence spanning years, demoted and suspended without pay for 30 years -- 30 days, and placed on probation for a year before transferring to Pittsburgh in September 2004. There are currently motions pending regarding Orsini's actions in connection with three highly publicized warrants he obtained in this case, in admitted violation of Department of Justice policy.

Following disclosure of his past reprimands for serial falsification of evidence, at the mandate of the 3rd Circuit Court of Appeals, prosecutors told three different federal courts that they do not wish to sponsor Orsini as a witness and went so far as to attempt to prevent us from even bringing up his role at trial. This, we suggest, is further evidence of irregularities in the conduct of the investigation and prosecution in this case.

One final troubling incident, Mr. Chairman: At the news conference announcing the indictment of Dr. Wecht, the United States attorney touted the 84-count indictment against Dr. Wecht, but then added that he had, in his -- in her own words, literally provided unclaimed cadavers to a local Catholic university in exchange for lab space -- an allegation we will prove to be totally false and unfounded in trial, and which was never even discussed in the pre-indictment meetings we had with Ms. Buchanan and her staff. Predictably, Dr. Wecht -- the Democrat, scientist and educator -- was forthwith labeled a body snatcher and a media feeding frenzy ensued. The U.S. attorney thus succeeded in the department's apparent mission of casting Democrats in a negative light during the election year.

This, it seems to me -- as part of the cumulative record here -- indicates a failure and breakdown in the supervision of the conduct of this investigation and prosecution. And we bring it to the committee's attention for that purpose.

REP. SCOTT: Thank you.

When you were attorney general under two different presidents, could you tell us about the number of people in the Department of Justice that could communicate with numbers of people in the White House, and what implications that has in terms of limiting the politicization of the Justice Department?

MR. THORNBURGH: The primary vehicle for communication between the White House and the Department of Justice was communications between myself and the White House counsel, who was then C. Boyden Gray. I made a rather strict rule about the department speaking with one voice. And unless otherwise exempted in a particular case, that voice to the administration, to the news media and indeed to the Congress was to be the attorney general. Obviously, for practical reasons, that was not always the case. But any conduct, with the White House in particular, would be subject to review by our office.

REP. SCOTT: And why was that important to keep -- what implications did that have on politicization in charging decisions?

MR. THORNBURGH: It was designed to have a prophylactic effect to prevent anyone with designs upon affecting department investigations from attempting to contact people in the Department of Justice. We had a couple of instances where we learned of that and apprised the White House accordingly that that was not the way that we intended to conduct the business of the Department of Justice.

REP. SCOTT: Thank you. My time is about up. I yield to the gentleman from Virginia.

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