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For a criminal defense lawyer in Washington, having friends in the right places can sometimes influence whether a case moves forward or quietly evaporates. But this time, working the back channels has made no difference for Joseph diGenova and Victoria Toensing. Between them, the husband-and-wife team have 60 years of experience as federal prosecutors, congressional staffers, and white collar criminal defense attorneys. DiGenova served as U.S. attorney for the District of Columbia under President Ronald Reagan. Toensing was a high-ranking official in the Justice Department’s Criminal Division. Both are familiar faces on the Sunday talk show circuit and have often carried water for the Bush administration and the Republican Party. For months, the two have been trying to impress upon their allies at Main Justice that Colm Connolly, Delaware’s top federal prosecutor, who was personally leading an investigation of their client, was out of control and needed to be reined in. None of their efforts have paid off. DiGenova and Toensing appealed to the Justice Department last year to stop Connolly from subpoenaing their law firm records. The department refused to step in, and they were hit with a contempt charge for failing to comply. In January, diGenova and Toensing filed a complaint with the department accusing Connolly, a George W. Bush appointee, of violating prosecutorial ethics rules, harassing grand jury witnesses, and lying in an affidavit filed in federal court. Their request for an immediate investigation of Connolly was denied. And on May 26, one day after diGenova and Toensing’s last-ditch effort to stave off prosecution by taking their complaints directly to DOJ Criminal Division chief Christopher Wray, their client, the top public official in Delaware’s New Castle County, was indicted on eight charges of racketeering and mail and wire fraud. “It’s an abuse of RICO based on manufactured charges,” Toensing says. “DOJ’s message to prosecutors is: ‘Have at it, we won’t stop you.’ “
Sitting in his office, 100 miles away from the nation’s capital, Connolly is undeterred by the criticism being lobbed by his prominent adversaries. When 39-year-old Connolly took office as U.S. attorney just weeks after the Sept. 11 terrorist attacks, he made it clear public corruption would be a top priority. Connolly says he’s long “been concerned about the incestuous nature of Delaware politics and the level of corruption. “I made it my mission to go after it,” he says, squashing a bug on the conference table with a business card. Connolly, who first joined the office as an assistant U.S. attorney in 1992, made a name for himself as the lead prosecutor in the sensational murder trial of Thomas Capano. Capano, a prominent Delaware attorney from a wealthy family, was convicted of first degree murder in 1999 and sentenced to death for killing his mistress, Anne Marie Fahey, the governor’s scheduling secretary. (In the inevitable made-for-TV movie, Connolly was portrayed by actor Steven Eckholdt.) To build his case against Capano, Connolly relentlessly pursued friends and acquaintances of the suspect’s entire family for anything he might use against them. Ultimately, he got Capano’s younger brother Gerard to crack by threatening to prosecute him on drug- and gun-related charges. Boston trial lawyer Joseph Oteri, who represented Capano, calls Connolly “a zealot, in the best sense of the word. “He is totally committed to everything he does,” Oteri says. “He doesn’t know any limits to the amount of work he does. But he never crosses the line.”
On May 26, the day after diGenova and Toensing — along with D.C. criminal defense attorney Hamilton “Phil” Fox III — had their audience with Wray and other top Justice Department officials, Connolly secured federal grand jury indictments against New Castle County Executive Thomas Gordon and Chief Administrative Officer Sherry Freebery on an array of charges under the Racketeer Influenced and Corrupt Organizations Act, or RICO. The government alleges that Gordon, represented by diGenova and Toensing, and Freebery, represented by Fox, illegally used county employees to perform campaign activities on county time and that they conspired to conceal a $2.3 million payment to Freebery from a wealthy Delaware resident. If found guilty, the officials face up to 20 years in prison and $250,000 in fines on each of the counts. Sutherland Asbill & Brennan partner Fox, who served in the Justice Department’s Organized Crime and Racketeering Section in the 1970s, is likely to argue the case if it goes to trial. He declined to comment. Among the charges against Gordon and Freebery: that the pair established a phone bank in Freebery’s home to support two candidates in the 2002 county election and directed several employees to work there on county time. Gordon and Freebery have conceded that the campaign activity occurred but say that it was performed voluntarily, in accordance with the county code, and with the approval of New Castle County attorneys. To U.S. Attorney Connolly, the case is not about politics; it is about theft, plain and simple — the theft of services that were paid for, and rightfully belonged to, the county. “Fundamentally, what Freebery is alleged to have done is steal,” he states in a legal brief. “ She took what rightfully belonged to the County — the services of its employees for which the County paid — and made them her own, and she used the mails in furtherance of her fraudulent efforts.”
Over the course of Connolly’s investigation of New Castle County, the relationship between the prosecutor and the defense lawyers grew increasingly hostile. In November 2003, Connolly secured a subpoena from the Delaware grand jury seeking materials from diGenova and Toensing related to their involvement in the retention of law firm Kirkland & Ellis by New Castle County. DiGenova and Toensing had referred the county to Kirkland. While not unheard of, subpoenaing an attorney to testify on client matters is unusual, and U.S. attorneys must receive approval from DOJ’s Criminal Division before doing so. To overcome the attorney-client privilege, prosecutors must demonstrate that the lawyer’s services were sought to advance a crime or fraud. In this case, Connolly appears to be chasing evidence to support charges that Gordon and Freebery hired Kirkland & Ellis at the county’s expense as part of a criminal scheme to cover up illegal activity. According to last week’s indictment, Kirkland & Ellis D.C. partner Thomas Yannucci sent a letter to the local newspaper in February 2002 threatening the paper with a libel suit if it published a report on a suspicious $2.3 million loan made to Freebery by a county resident. The transmission of the letter across state lines forms the basis for one of the mail fraud charges against Gordon and Freebery. The grand jury also subpoenaed Yannucci and Kirkland partner Thomas Clare. Clare testified in 2003. In a statement released last week, the firm said that “none of the allegations suggest that Kirkland & Ellis knew about, or participated in, the alleged criminal conduct.” “I’ve never heard of hiring a law firm being against the law,” says Toensing, who says she suspects Connolly used the subpoena as an attempt to disqualify her own firm from further involvement in the case. “He already had all the information from Kirkland,” she says. “Anything that we would have had to add would be duplicative.” After losing a motion to quash the subpoena in the trial court and failing to convince the Justice Department to intervene, diGenova and Toensing were held in contempt by a Delaware federal judge. They turned to Charles Cooper, another Reagan-era DOJ official, and Michael Kirk of D.C.’s Cooper & Kirk to take their case to the U.S. Court of Appeals for the 3rd Circuit. Arguments were held March 25. In the wake of last week’s indictment of the Delaware officials, it is unclear whether the 3rd Circuit will still rule on the case. Because the appeal took place pre-indictment, much of the government’s evidence, including an affidavit from Connolly outlining his theory under the crime-fraud exception, remained secret — even from diGenova, Toensing, and their lawyers. Kirk calls the case “extraordinary.” “I’ve never argued an appeal before where I didn’t know what the district court ruled, didn’t know what the charge was, and didn’t know what the evidence was,” Kirk says. “As you can imagine, you’re arguing in the dark.”
Outraged by Connolly’s tactics, diGenova and Toensing decided in January to go over the U.S. attorney’s head. After being held in contempt, they filed a complaint against Connolly with DOJ’s Office of Professional Responsibility, accusing Connolly of misconduct. The complaint includes statements from several witnesses who claim that Connolly asked them inappropriate questions in front of the grand jury about their intimate relationships and the sex lives of others. One New Castle County employee says Connolly brought her to tears with his demand that she reveal the name of her newborn son’s father. “I went in there knowing I had done nothing wrong, knowing I had not witnessed any illegal or inappropriate activities of my superiors, and I left there feeling like a whore,” says Jennifer Oberle, a 31-year-old political aide to Gordon and Freebery. Another county employee says she was “creeped out” when Connolly asked whether her adult son had a girlfriend and where the couple slept when visiting. “It was very bizarre,” says Regina Marini, 52, another aide to Gordon and Freebery. “He grilled me for four hours without a break. At one point, I asked for clarification and Connolly yelled at me, ‘You don’t ask the questions, I do.’ “ In January 2004, a retired Federal Bureau of Investigation agent came forward with claims that Connolly called him at the bureau in early 2001 to report that Freebery had purchased a home on the Delaware shore that appeared beyond the means of a public official. At the time, Connolly was a lawyer in private practice. The agent has since worked as an investigator for diGenova and Toensing. In their complaint to the Justice Department, the defense lawyers say Connolly’s phone call, which he tried to keep secret, proves that the prosecutor is on a witch hunt. “Everybody who has prosecutorial experience knows if you have any involvement with a case prior to taking your government position, you’re supposed to recuse yourself,” Toensing says. “Here we have a U.S. attorney who starts an investigation as a private citizen, wants that fact hidden, and then picks up on that investigation when he gets into office.” The Justice Department has refused to address the defense lawyers’ allegations while the case is pending. A May 10 letter to the defense team states, “It is OPR’s policy, absent extraordinary circumstances or a judicial finding of misconduct by a Department attorney, not to investigate allegations of misconduct that are related to or could be raised in the course of pending litigation.” Toensing calls the Justice Department’s position irresponsible. “It’s a legal Catch-22,” she says. “After the case is over, the damage has been done.” Connolly says the charges are “baseless” and that he welcomes an investigation. He adds, “It’s frustrating to be attacked personally for doing one’s job.” In turn, Connolly has accused Toensing of pressuring a New Castle County employee to sign a false declaration in support of a court filing. The employee later retracted her statement and signed an affidavit backing Connolly. “I felt a lot of pressure from Ms. Toensing, and I knew that ultimately my failure to complete the declaration to her satisfaction could end up with negative pressure affecting my position with the County,” the employee’s second affidavit states. Toensing says it was actually Connolly who intimidated the witness into changing her statement. “I am so furious that my name is even in there like that that I can’t even stand to talk about it,” Toensing says. She adds, “I think it’s bad public policy to send the message out to prosecutors that their conduct will not be reviewed until a case is over. There’s nobody to guard the henhouse.”

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