Political whodunit: The curious downfall of John McKay

Political whodunit: The curious downfall of John McKay

From left, Carol C. Lam of California, David C. Iglesias of New Mexico, John McKay of Washington State and Harry E. Cummins III of Arkansas at a Senate Judiciary Committee hearing in Washington on March 6, 2007.

By Associated Press

SEATTLE (AP) - Despite hours of congressional testimony and the release of volumes of Bush administration e-mails, the political knifing of John McKay remains a whodunit.

The documents suggest the former U.S. attorney's Republican star was rising as recently as last August, when a high-ranking Justice Department official tried to grease his path to a federal judgeship, saying "it's highly unlikely that we could do better in Seattle." Barely a month later, on Sept. 13, that same official - the attorney general's now former chief of staff, Kyle Sampson - put McKay on a list of U.S. attorneys to be fired by the end of the year.

What happened between those dates to cause the stunning turn in McKay's fortunes and leave him teaching law at Seattle University? Attorney General Alberto Gonzales on Friday would say only that Sampson's previous effort on McKay's behalf "doesn't represent the views of the department, nor does it represent my view."

But again, what happened? Was McKay too brash in pushing the Justice Department to improve information sharing among law enforcement, a goal that had been advocated by the 9/11 Commission? Was his office too ready to let criminals receive sentences below the guideline range? Did his bid for the judgeship revive old complaints that he had failed to diligently investigate claims of voter fraud during the 2004 election?

A look at the events surrounding McKay's abrupt downfall.

---

In April 2005, then-Deputy Attorney General James Comey ordered the Justice Department's law-enforcement agencies, including the Drug Enforcement Administration and FBI, to make their investigative files available to state and local officers through a computer system called Law Enforcement Information Exchange, or LInX.

McKay was directed to oversee the pilot program, and he was later made the chairman of a national Justice Department working group on information sharing.

He often traveled out of state - typically at the request of other U.S. attorneys - to promote LInX.

But McKay also believed the DOJ was dragging its feet when it came to endorsing LInX as a national program.

In June 2006, he e-mailed Comey's replacement, Paul McNulty, and another DOJ official: "We are at a critical juncture in which huge demand among U.S. attorneys resulting from a strong LInX program and successes are smack up against serious failures by the DOJ law enforcement components to comply."

He noted that when the Department of Defense offered $5 million to expand LInX to Los Angeles, the DOJ responded with a "long silence."

On Aug. 30 - two weeks before he wound up on Sampson's list - McKay sent McNulty a letter, co-signed by 16 U.S. attorneys. It thanked him for his leadership and outlined LInX successes, but parts were worded strongly: "We are puzzled by the delays we are experiencing in the face of our written requests and briefings and trust you understand how urgently we seek your input and assistance."

McKay spoke with McNulty before sending the letter to ensure he would welcome it, but it was not well received. McNulty e-mailed the letter's signers: "I am quite disappointed .... It reads like a letter from Capitol Hill, not one from friends on the same team." At least one U.S. attorney, Karin Immergut of Oregon, apologized, saying she hadn't paid much attention to its tone before she signed it.

Was McNulty's displeasure serious enough to place McKay among the "Gonzales Eight," derailing an otherwise stellar career?

Talking points drawn up by the Justice Department in light of criticism over the firings cite McKay's "insubordination" and "temperament issues," as well as "extensive focus and travel outside of district to advocate policy changes." It also criticized his office for "large downward departures" from guideline sentencing ranges - a decision made by judges, not McKay.

McKay doesn't buy any of it. He said he was never told of "temperament issues" or problems with his travel. An extensive DOJ review of his office last spring was overwhelmingly positive. The 65-page evaluation mentioned not a word about any failure to appeal low sentences.

----

As McKay pushed the LInX program last summer, a commission of three Republicans and three Democrats was vetting potential replacements for Seattle U.S. District Judge John C. Coughenour.

Many figured McKay, a President Bush appointee who had served for five years as the Justice Department's top lawyer in Western Washington, would get the job. He was a supporter of the Patriot Act and his office had won terrorism convictions - he himself had handled the sentencing and appeal of "millennium bomber" Ahmed Ressam. He was well-loved by law enforcement, and he had been the top litigator in a highly regarded Seattle law firm.

Plus, his brother Mike had chaired Bush's campaigns in the state.

But when the commission named three potential nominees in early August, McKay wasn't on the list.

He was stunned. A close friend in the White House counsel's office - McKay won't say who - told him the administration believed Republican members of the judicial selection commission opposed him for not diligently investigating claims of voter fraud during the 2004 governor's election, which Republican Dino Rossi lost by 129 votes after two recounts.

"That was what they understood as being the reason I was not selected," McKay said. "That was the first I had heard inside the White House that they were concerned about this."

McKay thought the allegation grossly unfair. Even though the Justice Department's public integrity section said his office likely would not have jurisdiction over the state election, McKay and four other prosecutors worked with FBI agents to review evidence of voter fraud. Prosecutors even grilled a top Republican Party lawyer about evidence he claimed to have.

In the end, there was none, McKay said. A Chelan County judge who ruled on the GOP's election challenge agreed, tossing the lawsuit with prejudice.

McKay called Harriet Miers, then the White House counsel, in August and asked for an interview with the intent of correcting the record and making his case for the judgeship.

But others were already working on McKay's behalf. Sampson e-mailed associate White House counsel Robert Hoyt Aug. 8: "I heard that our U.S. attorney, John McKay, got screwed by Washington's judicial selection commission. What do you know? Can we let them know that we want to consider him along with the recommended candidates?"

Miers agreed to interview him. McKay met with her and other White House lawyers on Aug. 22.

Their first question, McKay said, was "Why would the Republicans oppose you?"

---

In Washington, the two Democratic senators have an agreement with the Bush administration that is designed to remove politics from the appointment of judges. If Bush nominates someone selected by a bipartisan commission, the senators will support that person's confirmation.

The senators name the Democratic members of such commissions. The senior GOP congressman in the state, Hastings, picks the Republicans.

Hastings represents a largely rural district in central Washington, and many of his constituents were angry about Rossi's loss to Chris Gregoire in the 2004 governor's race. Ed Cassidy, then his chief of staff, called McKay in late 2004 or early '05 to check whether McKay was investigating; that call is expected to be the subject of an ethics investigation in the House.

Last spring, Hastings appointed J. Vander Stoep, an old friend who had served on previous judicial selection commissions, as co-chairman of the one vetting Coughenour's potential replacements. Vander Stoep was a top adviser to Rossi's campaign.

Hastings also named conservative Republican lawyer Dick Derham, and, at Vander Stoep's suggestion, University of Washington law professor Craig Allen.

The Democratic members of the commission - attorneys Helen Howell, John Wolfe and Jenny Durkan - were surprised when they saw the makeup of the Republican side.

They expected King County Prosecutor Norm Maleng to be involved. Maleng is one of the most respected Republicans in the state on law enforcement matters and had served on other judicial selection commissions.

Vander Stoep and Hastings' chief of staff, Todd Young, said Maleng wasn't invited because Hastings likes to mix up the commission members, so the same people aren't always picking candidates for the bench.

Maleng is an outspoken fan of McKay, and almost certainly would have voted for him. A candidate needs four votes to advance. McKay got three, all from the Democrats.

---

On Aug. 8, a few days after the committee selected three finalists for the judge's job, Vander Stoep got a call from Robert Hoyt, associate White House counsel. At Sampson's behest, Hoyt was inquiring about McKay's judicial application.

Vander Stoep also received an angry call from the godfather of the state GOP, former Sen. Slade Gorton. Gorton, who declined to be interviewed, was "outraged ... very, very upset" that McKay didn't make the list, according to former King County Prosecutor Chris Bayley.

Vander Stoep said he told Gorton and Hoyt that McKay was "a fine administrator, but he's tried fewer than 10 cases." He told Hoyt one more thing: that McKay "doesn't share the president's judicial philosophy." During McKay's interview, Vander Stoep said, he gave an ambivalent answer about whether he would follow precedent in cases where fairness or policy made him wish to rule otherwise.

According to a copy of McKay's judicial application obtained by The Associated Press, he wrote: "I believe all justice must be tempered by compassion and mercy; yet a fair society is built on the rule of law - not the desires of individuals, including judges."

McKay listed 14 complex criminal and civil cases he had been directly involved in.

Durkan, the Democratic co-chairwoman of the commission and a lawyer for Gov. Chris Gregoire during the election, said McKay was obviously qualified to make the commission's short list. She also said Vander Stoep's account of the interview "does not comport with my recollection." She declined to discuss it further because the commission's proceedings are confidential.

McKay's supporters bristled at the suggestion that he was unqualified, and said his resume compared favorably to those of Ben Settle, a public utility lawyer recently nominated to the federal bench in Tacoma, and Marc Boman, a partner at Perkins Coie in Seattle who made the short list for Coughenour's spot. Settle did much of his trial work as a military lawyer in the 1970s; Boman did most of his as a deputy prosecuting attorney in King County from 1978-81. Vander Stoep voted for each of them.

---

Some questions remain. Namely: If Vander Stoep kept McKay off the bench for inexperience, where did the White House counsel's office get the idea that it was the 2004 election? It could have come from McKay's own camp: The e-mail chain suggests Sampson heard McKay had gotten "screwed" on the judgeship from Debra Yang, the former U.S. attorney in Los Angeles and a friend of McKay. Sampson then passed that information to Hoyt.

Also unanswered: Who was the White House's "political lead" in Washington state, to be notified of McKay's firing? State Attorney General Rob McKenna, Hastings, Rep. Dave Reichert, Vander Stoep, then-state GOP chairwoman Diane Tebelius, and Mike McKay have all denied knowing who it was. Rossi did not return calls for this story.
Icon
Current Temp 51 °F
Light Rain
More Weather
More Weather

Travel Times

Traffic

On Demand

Resources and info you need to prepare for the switch to DTV.

YouNews

This content requires the latest Adobe Flash Player and a browser with JavaScript enabled. Click here for a free download of the latest Adobe Flash Player.