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Election Case Came Up in Judgeship Interview

Six U.S. attorneys — part of a group of eight who were fired in December — testified Tuesday on Capitol Hill about improper phone calls and threats they'd received from congressional staff members, members of Congress and Department of Justice officials.

John McKay of Seattle was one of the fired prosecutors. He told lawmakers that in 2004, he received a call from Rep. Doc Hastings' (R-WA) top assistant at the time, Ed Cassidy, regarding an investigation into the disputed election of Washington state's Democratic governor, Christine Gregoire. The election was extremely close and dogged by allegations of voter fraud. Cassidy is now on the staff of Minority Leader John Boehner (R-OH).

McKay discussed his testimony with Melissa Block. Their conversation is excerpted below:

Could you tell us about the phone call you got from Ed Cassidy, who was then the chief of staff for Rep. Hastings?

Mr. Cassidy called my office. When I was told he was on the line, I was, of course, immediately concerned to be taking a call from a congressman's chief of staff in the middle of this heated issue about the [gubernatorial] election in Washington state.... I knew that Congressman Hastings was involved in some of the public debate surrounding that. And of course, I was the chief federal prosecutor, and I wasn't involved in any debate. I was keeping very, very quiet, as was the FBI. So when the call came in, I was immediately alarmed.

What did Congressman Hastings' chief of staff ask you in that phone call?

Well, first he asked me a general question: What was going on? And I told him what was publicly released by my office: that we were requesting anyone with information to contact the FBI; that there were FBI agents assigned to this; that, in effect, it was a preliminary inquiry. And we had made those things public.

Then [Cassidy] went further, which was to begin to ask me about what actions the government might be taking in any inquiry – my office, and the FBI. And as he began to ask me those questions, I interrupted him. I essentially stopped him from that line of questioning, and I said something like, 'I'm quite sure that you are not about to ask me about the status of a federal investigation, or to influence me in a federal investigation, because you and I both know that would be wrong.'

And I think he took the hint, and ended the conversation very quickly.

Ed Cassidy has responded to this, and he says his call was just a routine effort to determine whether allegations of voter fraud were or were not being investigated – that, of course, he knew what the limits were on these conversations.

I agree with him in the sense that he did not get into illegal or unethical territory, because I stopped him.

After you were fired, you heard from another fired prosecutor, Bud Cummins, about a call he got from a Justice Department official, Mike Elston [the chief of staff to Deputy Attorney General Paul McNulty]. What was that phone call about?

Mr. Elston had made it clear that the department was unhappy with the statements of some of the fired U.S. attorneys that were in the media.... Mr. Elston was particularly upset by the idea that we would be cooperating with congressional investigators, or that we might testify before Congress.

Mr. Cummins related to us ... that the department would view that as an escalation of this conflict, and that they would respond accordingly. And what he said was that they were likely to have to release information about our own personnel files.

And I think the way he characterized it was that the Justice Department would pull their gloves off?

Right, and that we could expect to be trashed. So it was a threat.

Did you originally decline to testify because you felt intimidated?

Oh, not at all.... I had no desire to speak publicly. Our view was, if we were subpoenaed by the Congress... it would be our duty to answer those questions.

You are in the studio talking to me now, though.

I am here now because all of this information has... come out now. I think, given the gravity of some of the allegations, the public should know about them.

How do you interpret the fact that all eight of you were dismissed at the same time?

There's no question that this was unprecedented in the Justice Department. And I think the sad thing about that is that they have opened themselves to the kind of speculation and criticism that the attorney general writes about this morning in his op-ed [in USA Today]. And that is that people question whether they did it for political purposes. They question whether they did it to inhibit political-corruption prosecutions. And I think that's extremely unfortunate, because it undermines the confidence of the public in the United States Department of Justice.

Do you think that's the case, that it was done for political reasons?

I can't speculate on that. I think that the shifting statements by the Department of Justice need to stop immediately. They should acknowledge their true reasons, and get this over with. Because I don't want to believe that the Department of Justice would remove its federal prosecutors for doing their jobs.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

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