(A report for Nieman Watchdog by the Justice Integrity Project.)
In September 2008, the Bush Justice Department appointed career federal prosecutor Nora Dannehy to investigate allegations that Bush officials in 2006 illegally fired nine U.S. attorneys who wouldn’t politicize official corruption investigations.
But just four days before her appointment, a federal appeals court had ruled that a team of prosecutors led by Dannehy illegally suppressed evidence in a major political corruption case in Connecticut. The prosecutors’ misconduct was so serious that the court vacated seven of the eight convictions in the case.
The ruling didn’t cite Dannehy by name, and although it was publicly reported it apparently never came up in the news coverage of her appointment.
But it now calls into question the integrity of her investigation by raising serious concerns about her credibility — and about whether she was particularly vulnerable to political pressure from within the Justice Department.
Now, almost two years later, Dannehy has provided arguably the most important blanket exoneration for high-level U.S. criminal targets since President George H.W. Bush pardoned six Iran-Contra convicts post-election in late 1992.
The DOJ announced on July 21 that it has “closed the case” on the nine unprecedented mid-term firings because Dannehy found no criminal wrongdoing by DOJ or White House officials.
But the official description of her inquiry indicates that she either placed or acceded to constraints on the scope of her probe that restricted it to the firing of just one of the ousted U.S. attorneys, not the others — and not to the conduct of the U.S. attorneys who weren’t ousted because they met whatever tests DOJ and the White House created.
And although reaction to the closing of the inquiry has been muted, some observers are accusing her of a whitewash.
“This is an outrageous act of cowardice and cover-up!” former Alabama governor and alleged political prosecution victim Don Siegelman emailed me regarding DOJ’s decision and the failure to interview him.
(The Supreme Court vacated much of Siegelman’s conviction last month after years of controversy, including charges by Republican whistleblowers that he was prosecuted primarily because he was a Democrat. As a result, House Judiciary Committee leaders and Siegelman’s first trial judge, U.W. Clemon, last year separately urged Attorney Gen. Eric Holder to investigate suspected DOJ prosecution irregularities in what Clemon called “the most unfounded” prosecution he’d witnessed in nearly three decades on Alabama’s federal bench.)
Dannehy’s probe, my reporting suggests, was compromised from the beginning.
She was appointed by Bush Attorney General Michael B. Mukasey on Sept. 29, 2008. On Sept. 25, the Second U.S. Circuit Court of Appeals in New York City found misconduct in a 2003 trial she had led.
The court found that the prosecution suppressed evidence that could have benefited the defendant, Connecticut businessman Charles B. Spadoni. Spadoni had been convicted of bribing former state Treasurer Paul Silvester to invest $200 million of state pension money with his firm.
But the appeals court found that prosecutors had failed to turn over to the defense an FBI agent’s notes of a key interview they conducted with Silvester’s attorney. In doing so, the court ruled, “the government deprived Spadoni of exculpatory evidence going to the core of its bribery case against him.”
The court reversed Spadoni’s convictions on seven counts of racketeering, racketeering conspiracy, bribery and wire fraud, leaving intact only an obstruction of justice conviction.
Prosecutors found by a court to have committed misconduct typically face some sort of internal investigation within the Justice Department. Whether there was any such investigation, and why or why not, is not publicly known.
As it happens, the Spadoni case also raises concerns relative to the ongoing federal probe of potential Bush administration wrongdoing in covering up torture that is being led by John H. Durham, another prosecutor from Connecticut. Durham supervised Dannehy’s decade-long prosecution of Spadoni.
He also was appointed by Mukasey in 2008. Durham’s initial charge was to investigate suspected destruction of torture tapes by CIA personnel. In 2009, Holder expanded that probe to other decision-making, including by DOJ personnel.
Until now, neither DOJ nor anyone else has linked Dannehy and Durham by name to the prosecutorial misconduct against Spadoni, as far as I can determine. The court decision doesn’t cite specific actions by the two. But it clearly refers to their case, and the information is readily available online in Lexis and in any good law library.
In April, as the acting U.S. Attorney for Connecticut, Durham signed a DOJ filing denying the merit of the appeals court finding of prosecution misconduct, while calling for Spadoni’s continued prosecution for the remaining charge of obstruction of justice for deleting computer files in advance of a potential subpoena.
I sought additional comment beyond the court filings from Dannehy, Durham and Thomas Carson, DOJ’s spokesman for its Connecticut office. Carson wrote me, “We have no further comment, as the matter is still pending.
The DOJ’s letter said Dannehy found that the evidence “did not demonstrate any prosecutable criminal offense” in the 2006 firing of former New Mexico U.S. Attorney David Iglesias, and stated that there was no basis to broaden the investigation beyond his circumstances.
Iglesias, a Bush appointee whose 2008 book In Justice had a chapter entitled, “All Roads Lead to Rove,” wrote me last year that he largely wants to put his ordeal behind him. Now returned to his original field of working in military justice, he told investigative reporter Jason Leopold this week:
I’m glad the matter is finally over. I’m gratified the Justice Department took the matter seriously enough to appoint an experienced corruption prosecutor to investigate. I will not second-guess her findings. I hope this scandal prevents future administrations and political leaders from attempting to politicize U.S. Attorneys.
House Judiciary Committee Chairman John Conyers issued this comment:
It is clear that Ms. Dannehy’s determination is not an exoneration of Bush officials in the U.S. attorney matter as there is no dispute that these firings were totally improper and that misleading testimony was given to Congress in an effort to cover them up.
One such official, former attorney general Alberto Gonzales, who was forced out over the scandal, commented to CNN, “I feel angry that I had to go through this. That my family had to suffer through and what for?”
But several close observers of the case cried cover-up.
Human rights attorney and Harper’s blogger columnist Scott Horton wrote, in a post titled, “Another Audacious Whitewash at DOJ”:
Rather than look at the entire U.S. attorneys scandal, Dannehy settled on a probe of a single case: that involving New Mexico U.S. Attorney David Iglesias. This is the one case in which the available evidence showed that the decision was taken by President Bush himself, in the White House….
The probe should have examined the entire pattern of terminations as a common scheme and taken it as a basis for action. Instead, other related cases were – as I am informed by persons involved in them – shunted off to the Justice Department’s “roach motel,” the Office of Professional Responsibility, where they will likely languish without any serious investigation, much less any action.
Nora Dannehy’s decision to take no action, coupled with all the lame rationalizations of inaction that preceded it, is another self-administered bullet wound to the integrity of the Justice Department…How can a Justice Department hold its own personnel to a lower standard under the law than they hold other public officials? This is a formula for disaster.
Investigative reporter Wayne Madsen repeated this week in a subscription-only post his 2009 report that Dannehy and her family have benefited from career-building decision-making that sometimes conflicts with her “tough” reputation. In charting the Dannehy family’s career progressions during the past decade, Madsen cited, for example, her husband’s appointment in 2007 to become director of the FBI’s Terrorist Screening Center.
In addition, Alabama legal affairs blogger Roger Shuler, who has closely documented what he has described as political prosecutions in the Deep South, last week published “Shirley Sherrod Is Not the Only One Who Has Been ‘Put Through Hell.’” The article compared the plight of Alabama DOJ whistleblower Tamarah Grimes to that of Sherrod, the Georgia employee of U.S. Department of Agriculture who was fired after false accusations were made against her this month.
Grimes was fired in June 2009 from her job as a paralegal in the Middle District of Alabama, eight days after writing a letter to Attorney General Eric Holder outlining misconduct in the prosecution of former Governor Don Siegelman. Grimes remains without a job and says she has faced significant financial and emotional stress….Tamarah Grimes has an important message for the Obama administration. It did, to its credit, try to get things right in the Shirley Sherrod matter. But its double standard on matters of “injustice” is glaring.
My Justice Integrity Project published a profile of Grimes that includes background on her and DOJ’s reaction, which is to deny all of her allegations of government misconduct or that she was falsely accused of saying she had taped a colleague.
A Republican, Grimes has told me that she has wanted to testify to Congress or any other official body about the waste and unfairness she witnessed, including by the Bush political holdover Middle District U.S. Attorney Leura Canary, who continues to run the office that prosecuted Siegelman. Grimes is now out of work and about to lose her home to foreclosure.
What’s next? “Nora Dannehy has not contacted me,” Grimes wrote me of DOJ’s nationwide probe. “If the DOJ is conducting its own ‘inquiry’ history tells us that it is one hundred percent whitewash.”
The nine U.S. Attorney firings by the Bush administration led to a firestorm in Congress upon their disclosure in 2007, partly because of fears that many of the remaining U.S. attorneys in the nation’s 93 offices were forced to make politicized decisions to keep their jobs. Then-attorney general Alberto Gonzales’s chief of staff, Kyle Sampson, had recommended to White House senior advisor Karl Rove that they populate prosecution offices with “loyal Bushies.”
For years, defendants in official corruption cases around the nation have been counting on DOJ to investigate any wrongdoing involved in the purge. A study by University of Missouri professor of investigations of official corruption investigations during the Bush administration involving local officials, candidates and fund-raisers showed that the 1,200 targets were nearly 5:1 Democrats. The impact of so many investigations, many resulting in convictions that deeply affected the nation’s political map and policy-making, is important not simply to defendants but to a wider group of those concerned about government policy across the range of potential decision-making.
I set up the Justice Integrity Project to investigate such cases under both the Bush and Obama administrations. In this I have followed the March 2007 words of New York Times columnist Paul Krugman, who said the real story isn’t the firing of nine prosecutors. Instead, he warned, the public needs to know what the remaining 84 presidentially appointed U.S. attorneys were doing to keep their jobs.
Dannehy never contacted obvious witnesses who may have been victimized by wrongdoing. Is there a good reason for that, or is it part of a pattern in which prosecutors tend to find scant wrongdoing against their colleagues? A question reporters need to pursue is whether a culture of error and cover-up prevailed in the Department of Justice under Bush and continues under President Obama. It is one thing to want to look forward, as Obama stated as he took office. But it is wrong and immoral for our criminal system not to examine what appear to be obvious abuses that discredit the justice system, local and regional politics, and, indeed, our nation’s standing in the world as a beacon of democracy and civil rights.
Ironically, the appeals court finding of misconduct by Durham and Dannehy leaves only a disputed obstruction of justice count against Spadoni, focusing on his deletion of files from his computer. This action by a businessman fearful of receiving a subpoena parallels in certain ways the conduct Durham is investigating by CIA personnel, who allegedly destroyed videotapes showing the torture of terror suspects.
Andrew Kreig is executive director of the Justice Integrity Project, and also a free-lance investigative reporter, attorney and radio host based in Washington, DC. His e-mail is firstname.lastname@example.org.