Atlanta lawyer Joe Whitley was brought in last spring by a panel of D.C. federal judges to determine whether Chief U.S. District Judge Norma Holloway Johnson had improperly steered cases to Clinton-appointed judges.
At the time, some predicted the probe would be wrapped up in a matter of weeks. But four months later, the investigation continues in full swing. Public records and interviews with courthouse insiders point to a steady hum of activity beneath the relatively calm surface of the court.
“It is my impression that every active [district] judge has been talked to by Whitley or his people,” says a courthouse source.
Over the past two months, according to courthouse sources, Whitley, a partner at Atlanta’s Alston & Bird, and two firm associates who are working with him have interviewed dozens of people — prosecutors and defense lawyers, as well as judges. And at least one source says he believes that Whitley is close to finishing his work and could wrap up by Labor Day.
Whitley himself is not discussing his closely guarded, politically sensitive investigation, and neither are the five judges who appointed him, two of whom sit on the trial court and three on the U.S. Court of Appeals for the D.C. Circuit.
These sources also indicate that Michael Madigan, a partner at the D.C. office of Akin, Gump, Strauss, Hauer & Feld who represents Johnson, has been nearly as active in talking to the same people to prepare his defense.
At issue is a claim, first advanced by the conservative group Judicial Watch and then by some Republicans on Capitol Hill, that Johnson used her authority as chief judge to funnel campaign finance cases involving Democrats to Clinton appointees, who would presumably be softer on the defendants.
The cases include closely watched prosecutions like those of 1996 Democratic fundraisers Charlie Trie and Maria Hsia.
Johnson, a Jimmy Carter appointee, has denied wrongdoing and has said she skipped the usual random case assignment process to promote judicial economy, not to aid political sympathizers. The court rule allowing special nonrandom assignments has since been abolished.
The investigation has had an impact on the court’s activities. In addition to souring some personal relations on the bench and taking up the time of judges and court officials over allegations that many in the courthouse see as groundless, the Whitley probe has also spilled over into the campaign finance cases.
On Aug. 10, in a hearing on post-trial motions in the Hsia case, Hsia attorney Nancy Luque told Judge Paul Friedman, a 1994 Clinton appointee, that he ought to recuse himself because of the Whitley investigation. Hsia was convicted by a jury in March but has not been sentenced. In an exchange first reported by the BNA Money & Politics Report, Luque reasoned that Friedman would feel subtle pressure to come down hard on Hsia because of the investigation into whether Clinton-appointed judges were tapped for assignments on the assumption that they would go easy on defendants.
“I, as Miss Hsia’s counsel, need to make sure that the environment you make decisions in is an environment absolutely free from any kind of influence, conscious, unconscious, subconscious, or otherwise,” Luque, a partner at the D.C. office of Reed Smith Shaw & McClay, said in court, according to a transcript.
While not ruling on the motion to disqualify him, Friedman expressed skepticism from the bench. He stated that he and other federal judges should feel immune to political pressure of all types.
“You hang up your political connections — you leave them at the door when you walk in the building on Day One,” the judge said at the hearing. “[N]o one is a Democrat or a Republican once they walk in the door and put on the robe. You take an oath of office.”
At the hearing, Luque revealed that she had been contacted by both Whitley and Madigan and had “resisted questioning.”
“I think it doesn’t reflect well on the court to even repeat the questions” that were asked of her, Luque said in court.
Luque declines to elaborate further on the contacts she has had with both sides. John McEnany of the Justice Department’s campaign finance task force also revealed at the hearing that he has been interviewed by Whitley, and Luque mentioned in court that Charles LaBella, former head of the task force, and Eric Yaffe, another Hsia prosecutor, had also been interviewed. LaBella and Yaffe could not be reached for comment.
Although many judges are not discussing their contacts with Whitley or Madigan, a courthouse source indicates that all 13 active district judges have had conversations with Whitley or his staff — Alston & Bird associates William Jordan and Jason Klitenic — and that some have spoken to Madigan. U.S. District Judge Gladys Kessler says she spoke with Whitley and an associate some time in the past two months. She declines to discuss what was said. Whitley has also been talking with defense attorneys other than Luque. Edward Shohat of Miami’s Bierman, Shohat, Loewy & Klein, who represented a minor figure in the campaign finance probe, says he had a five-minute conversation with Whitley or someone on his staff.
Madigan declines comment on the investigation, other than to characterize as “totally inaccurate” a recent opinion article in The New York Times that claimed Johnson was refusing to cooperate voluntarily with Whitley.
If Whitley finds that Johnson did not act improperly, he will recommend to the five-judge panel that the matter be dismissed. According to the court’s rules, if Whitley finds wrongdoing, he could ask the panel to reprimand her, strip her of new cases for a period of time, or even ask her to retire early from the bench. Final action would be in the hands of the D.C. Circuit’s Judicial Council, a seven-member governing body.