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The Justice Department says its criminal probe of safety problems at Alaska Airlines has been severely hampered by a controversial federal ethics law enacted last year. In documents provided to a Senate committee, the department says that a measure that forces federal prosecutors to adhere to state ethics rules has stymied the long-running investigation into the airline’s safety and maintenance practices. Seattle-based Alaska Airlines has been the target of a federal grand jury in San Francisco since early 1999, when a mechanic claimed that workers at the airline had falsified repair records for Alaska passenger jets. Earlier this year, after Alaska Airlines Flight 261 plunged into the Pacific Ocean, killing all aboard, the Justice Department, along with the Federal Aviation Administration, widened its inquiry into the company’s safety operations. Department officials, as well as lawyers in the U.S. attorney’s office in San Francisco, declined to discuss the grand jury’s investigation, which has yet to produce a single indictment. But in a report prepared for the Senate Judiciary Committee, the DOJ says the grand jury’s work was “stalled for many months” because of the so-called McDade Amendment, a law implemented last year that forces federal prosecutors to follow state ethics codes. California, like most states, has an ethics provision that prohibits lawyers from directly contacting a party who is represented by counsel. The Justice Department claims that lawyers for Alaska Airlines used the rule to prevent the Federal Bureau of Investigation and other investigators from speaking with mechanics and other airline employees. In the early stages of the Alaska investigation, the department’s report says, attempts by the FBI to seize documents and interview workers at Alaska Airlines’ hanger facility in Oakland, Calif., were blocked by lawyers for the company who “interceded, claimed to represent all airline personnel, and halted the interviews.” Because of the California ethics law, the report says, the federal prosecutor was forced to end the interviews and recall the agents. The report explains that prosecutors then attempted to subpoena the workers to the grand jury. Again, the request was met with a response by company lawyers, who lined up attorneys separate from the company to represent each worker before they testified before the grand jury. “Because the attorney for each witness insisted on a grant of immunity, and because of scheduling conflicts with the various attorneys, the investigation was stalled for many months,” the report says. “When the witnesses finally appeared before the grand jury, they had trouble remembering anything significant to the investigation.” The Justice Department report also mentions the Jan. 31 crash of Alaska Airlines Flight 261, which crashed into the Pacific Ocean, killing 88 people aboard. The National Transportation Safety Board’s investigation has focused on defects in the plane’s jackscrew assembly and horizontal stabilizer, which controls the up-and-down movement of the aircraft. In the wake of the crash, the report says, the FBI received information that the plane had experienced mechanical problems on the first leg of its flight from Puerto Vallarta, Mexico, to Seattle. But agents could not interview the airline’s employees after the crash because of the ethics law, the report says. “Those interviews that are most often successful — simultaneous interviews of numerous employees — could not be conducted because of fear that they might result in ethics proceedings against the prosecutor,” the report says. Alaska Airlines maintains that it has fully cooperated with FBI and FAA investigators during the government’s investigation. It has denied any wrongdoing at its Oakland facility. The company has retained Los Angeles’ O’Melveny & Myers to represent it in the criminal investigation. CHANGE OF POLICY For years, as a matter of Justice Department policy, federal prosecutors were told that they didn’t have to follow state ethics rules — particularly ones related to bypassing lawyers and contacting potential witnesses directly. The policy was intended to aid prosecutions of organized crime in the 1980s and was first detailed in a memo by then-Attorney General Richard Thornburgh in 1989. The department’s rule was clarified under Janet Reno in 1994. In October 1998, Congress passed a law that made federal prosecutors subject to state ethics codes. The law was named for former Rep. Joseph McDade, R-Pa., who was the subject of an eight-year federal bribery investigation. McDade was eventually acquitted. The law went into effect last year, over strenuous Justice Department objections. Since then, the department hasn’t given up the fight to overturn it. And its efforts have support in the Senate Judiciary Committee, where bills offered by the committee’s chairman, Sen. Orrin Hatch, R-Utah, and Sen. Patrick Leahy, D-Vt., would establish separate ethical proscriptions for prosecutors. The Hatch bill would repeal McDade. The Leahy bill would specifically allow prosecutors to contact witnesses regardless of whether they were represented by counsel. Neither bill has made it out of the judiciary committee. “This law has resulted in significant delays in important criminal prosecutions, chilled the use of federally authorized investigative techniques and posed multiple hurdles for federal prosecutors,” Leahy said on the floor of the Senate last month. Both the American Bar Association and the National Association for Criminal Defense Lawyers lobbied Congress hard for the McDade law. Kevin Driscoll, a senior legislative counsel for the ABA, said that his organization is reviewing the Justice Department’s complaints about the law’s implementation. But, he added, the ABA’s support of McDade has not changed. William Moffitt, a D.C. criminal defense lawyer who is president of the NACDL, says that the Justice Department is “looking for reasons to complain” about McDade. “They don’t have the unfettered ability to intimidate and they don’t like that,” Moffitt said. “People ought to be able to go to the general counsel (of a corporation) if they are subpoenaed and they ought to be able to be told to get a lawyer.” Few details of the grand jury’s investigation of Alaska Airlines have come to light. The airline says that it has received three subpoenas for information related to 12 specific aircraft. In a filing with the Securities and Exchange Commission last month, the airline’s parent company, Alaska Air Group Inc., said one subpoena asked for the repair records for the MD-83 craft that crashed in January. Matt Jacobs, a spokesman for the U.S. attorney’s office in San Francisco, declined comment on the status of the investigation, as did the press office for Justice Department in Washington. The FAA conducted a separate probe of the Alaska Airline’s maintenance procedures and proposed a $44,000 fine, which the airline is contesting. The agency recently threatened to shut down the airline’s repair facilities in Oakland and Seattle if it did not provide a sound plan for improving its safety protocols.

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