In the span of a year, District of Columbia public school employee Emerson Crawley submitted nearly $7,400 in expense reports for lunches and dinners at an Italian restaurant two blocks from the White House. Court records show he racked up thousands more for food elsewhere and entertainment — including a $225 tab at the Camelot Show Bar, a strip club.
The D.C. government finally got wind of Crawley’s questionable expenses and pitched a criminal case to the U.S. Attorney’s Office for the District of Columbia. Federal prosecutors declined to bring charges. But the D.C. Office of the Attorney General didn’t want to let the case go. In December 2007, local prosecutors filed 17 misdemeanor false claims charges in D.C. Superior Court.
That has kicked off a rare public turf battle between the two sets of prosecutors. The U.S. attorney’s office, which handles not only crimes under federal law but most crimes under D.C. law in Washington, says the local attorney general does not have the authority to pursue the case. The U.S. attorney’s office is insisting charges be dismissed.
Under the District of Columbia Code, the D.C. Council is specifically prohibited from enacting any law “relating to the duties or powers” of the U.S. attorney’s office. But the U.S. attorney is also identified as the default prosecutor for D.C. crimes “except as otherwise provided by law.”
When the D.C. Council made false claims against the D.C. government a crime in 1997, it designated the local attorney general — or the corporation counsel as the job was then called — as the prosecutor. D.C. Attorney General Peter Nickles said his office now is following the council’s mandate. “We decided, for reasons that were appropriate to us, that we should prosecute,” Nickles said. “We thought this was an egregious case.”
While the case against Crawley waits in D.C. Superior Court, the question of prosecutorial authority was taken up by the D.C. Court of Appeals on June 2. In a rare pairing of prosecution and defense, Assistant U.S. Attorney Roy McLeese, who heads the appellate section of the U.S. attorney’s office, and Frederick Cooke Jr., Crawley’s lawyer, shared a table at the hearing.
Afterward, Cooke, a name partner at Washington’s Rubin, Winston, Diercks, Harris & Cooke, said, “In areas of criminal prosecution there really need to be bright lines. As a member of the public you need to know what is criminal conduct and what is not, and you need to know who is the prosecutor and who is not.”
FOLLOW THE MONEY
The D.C. Office of the Inspector General launched an investigation of Crawley, 43, after receiving a complaint from a D.C. public school official, court records show. The office found that, between July 2003 and June 2005, Crawley had paid for food, alcohol and entertainment for himself and staff. He ate at Finemondo, near the White House, often — sometimes twice a day. He occasionally dined alone and yet alleged the meals were for staff meetings. He was reimbursed by the city a total of $11,385.
Court records show Crawley agreed to pay back the District and to undergo a 90-day probation after the U.S. attorney’s office declined to prosecute. He completed the probation in August 2006. Crawley voluntarily resigned in December 2007, the same month the D.C. attorney general’s office filed an information accusing him of making fraudulent claims.
The lawyer who signed the information, Runako Kumbula, did not return calls for comment. Supervisors in the U.S. attorney’s office declined to comment.
In April 2008, Cooke tried to get the changes dismissed. He filed a motion pointing out that the penalty for false claims is a $100,000 fine and up to a year in jail. Under the D.C. Code, the attorney general has authority to prosecute “police or municipal regulations, where the maximum punishment is a fine only or imprisonment not exceeding one year.” Moreover, Cooke noted the bar on the D.C. Council passing laws that “relate” to the powers of the U.S. attorney’s office.
Cooke persuaded the trial judge to send the issue to the appeals court. “It would seem that carving out a specific kind of fraud, which is normally prosecuted by the USAO, to be prosecuted by the OAG, must in some way relate to the powers of the United States Attorney,” Judge Geoffrey Alprin wrote in a January order. Alprin said that, if the city’s position were adopted, there would be no limit on the types of new crimes that the D.C. Council could create and then assign prosecution to the attorney general.
A QUESTION OF CHOICE
Last week in the appeals court, Todd Kim, the District’s solicitor general, argued that the council cannot shift prosecutorial authority from the U.S. attorney to the local attorney general only for crimes that were in place at the time of the D.C. Home Rule Act of 1973, when Congress delegated certain legislative powers to the city. The council, he said, may choose a prosecutor for new crimes.
McLeese of the U.S. attorney’s office argued that Congress never meant to give the D.C. Council free rein to create new crimes and assign a prosecutor. “At the end of the day, the language at issue here is what the Supreme Court calls broad pre-emptive language,” he said.
The questioning from judges Stephen Glickman, Noel Kramer and Kathryn Oberly was lively. Kramer at one point said she was “troubled” by the District’s position and suggested the city go the legislative route to change the language of the law. McLeese had noted in a May 13 brief that a policy argument could be made for the District’s handling of false claims cases. But he wrote, “If such a policy determination were made…the Home Rule Act requires that it be implemented through congressional legislation.”
Nickles said the case is important because it could “spell out what kind of minor crimes should be handled by the U.S. attorney and those that should be handled by the Office of the Attorney General.”
Several defense lawyers expressed puzzlement as to why the District hasn’t been able to work out an agreement with the U.S. attorney’s office to prosecute the case. McLeese noted in the same May brief that the U.S. attorney could voluntarily consent to prosecution by the D.C. attorney general. That hasn’t happened.
“It is unusual that the two prosecuting authorities would be so opposed on a case more than two years old where there is a solution on the sidelines,” said D.C. solo practitioner Paul Riley, who has practiced in Superior Court for more than 30 years.
Former D.C. Attorney General Robert Spagnoletti, now a partner at Washington’s Schertler & Onorato, said it’s not unusual for the U.S. attorney’s office to ditch a lower-value case. What’s unusual, he said, is that federal prosecutors are urging the charges against Crawley be dismissed. “The D.C. government has a different interest and may want a more aggressive stance on corruption issues, however small they may be,” he said.
Mike Scarcella can be reached at email@example.com.