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WASHINGTON-Is the controversy over the recent firings of eight U.S. attorneys simply “an overblown personnel matter,” in the words of Attorney General Alberto Gonzales last week, or likely to lead to serious ethical and criminal charges? Lawyers who represent people involved in government investigations disagreed last week on whether information revealed thus far about the firings rose to the level of criminal misconduct, but they did agree that there were potentially serious ethical questions. And some reluctantly suggested that an internal investigation of the U.S. Department of Justice’s handling of the firings by a highly respected, arm’s-length investigator-� la U.S. Attorney Patrick Fitzgerald’s investigation of the leaked identity of CIA agent Valerie Plame-may be needed to get to the bottom of the matter and to restore public confidence in the appointments of U.S. attorneys. These lawyers did agree that the most problematic areas, from a legal and ethical standpoint, were: the three congressional contacts about potential or ongoing investigations by two of the fired U.S. attorneys, and departmental communications with the U.S. attorneys that could be interpreted as an attempt to obstruct or interfere with the congressional investigation. “From my 35-year vantage point, this one is a pretty serious matter,” said Stanley M. Brand of The Brand Law Group in Washington. “I served as general counsel to the House and I’ve represented scores of members and others in government investigations. A direct call to a U.S. attorney by a sitting member about a pending grand jury matter is a highly unusual thing to do.” Besides facing ethical complaints in their respective chambers, Senator Pete Domenici and Representative Helen Wilson, Republicans from New Mexico, who admitted contacting U.S. Attorney David Iglesias about a grand jury investigation, also face problems under 18 U.S.C. 1505, an obstruction of justice statute, said Brand. The statute forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing or impeding any pending proceeding before a federal department or agency, or Congress. “Having people call a U.S. attorney and suggest, threaten, or whatever was done, to bring indictments in time for an election or even ask him where he is in an investigation raises a prima facie question under that statute and under precedents applied in this area for years,” explained Brand.Department complications The department has its own problems under Section 1505, he and others added, depending on the nature of a phone call from Michael Elston, chief of staff to Deputy Attorney General Paul McNulty, to fired U.S. Attorney H.E. Cummins. In that call, Elston cautioned Cummins that public comments by him and others fired could force the department to defend its actions more fully. In a subsequent e-mail to his colleagues, Cummins said he told Elston that the fired prosecutors had turned down multiple invitations to testify. “He reacted quite a bit to the idea of anyone voluntarily testifying and it seemed clear they would see that as a major escalation of the conflict meriting some kind of unspecified form of retaliation.” Last week, the Senate Judiciary Committee minority ranking member, Arlen Specter, R-Pa., pressed Cummins on whether Elston’s comments were threatening or “friendly advice.” Cummins said “friendly advice” was one way to characterize the conversation. But his colleagues who received Cummins’ e-mail viewed Elston’s message as a threat. Earlier in the hearing, Specter had said that if the prosecutors had been threatened not to testify before Congress, “That’s a crime.” Aitan Goelman of Washington’s Zuckerman Spaeder, a Justice Department prosecutor for nine years, agreed. “Not only can you not obstruct an investigation by the executive branch, you can’t obstruct an investigation by Congress, either.” But proving obstruction is very difficult, he added.’Hugh legal concerns’ A former U.S. attorney now doing white-collar defense work said that the firing controversy presents “huge legal concerns,” but primarily for the members of Congress who contacted the prosecutors. Declining to speak on the record because his firm had been approached to represent a party in the controversy, he said there are not only congressional ethics rules and the federal obstruction of justice statute involved, but potential problems with the federal Hatch Act and separation of powers. But he and Robert S. Litt, a partner in Washington’s Arnold & Porter and a former principal associate deputy attorney general in the Clinton Justice Department, said they did not see potential criminal culpability in the department’s actions. “What the members of Congress did was unethical, inappropriate and just plain dumb,” said Litt. But the Elston-Cummins conversation, he added, could be viewed in two ways-a threat or friendly advice. “It depends on whether the performance reasons for the dismissals were genuine or a pretext,” he said. “Other than that, the problems are largely political rather than legal or ethical.”After a meeting last week with Gonzales, Senator Charles Schumer, D-N.Y., who is leading the Senate inquiry into the firings, said Gonzales indicated he would make Justice Department officials available for questioning about the matter.

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