At Senate hearing, McKay vigorously defends his work

WASHINGTON — John McKay insists he did not want to talk publicly about his abrupt dismissal as U.S. Attorney for the Western District of Washington in December.

But when he testified before two congressional committees on Tuesday, McKay delivered a vigorous defense of his work and the performance of his office. He challenged the Justice Department's shifting explanations about why he was asked to resign.

He revealed that soon after the hotly contested 2004 governor's race in Washington state, the chief of staff to Rep. Doc Hastings, R-Pasco, called him to ask about the status of any federal investigations into voter fraud.

He even suggested after Tuesday's hearings that bitterness over his refusal to pursue the fraud allegations played a part in his failure to win a federal judgeship.

Yet once the TV lights were off and the drama had ended for the day, it was still hard to identify exactly why the Department of Justice had fired McKay and seven other U.S. attorneys in December, let alone to determine whether the firings were justified.

McKay joined five other former U.S. attorneys testifying under subpoena in a pair of hearings on Capitol Hill, all of them sharing their disbelief and frustration over how their government careers were abruptly ended.

The prosecutors said they could see no clear reason why they were let go other than political motives, noting that supervisors in Washington, D.C., had praised their work and given them glowing performance evaluations since President Bush took office in 2001.

One of them, Carol Lam of San Diego, successfully prosecuted former U.S. Rep. Randy "Duke" Cunningham, R-Calif., and yet was dismissed shortly after indicting two of his partners in a sweeping bribery case.

New Mexico's David Iglesias told lawmakers he felt pressed by Sen. Pete Domenici, R-N.M., last October to rush indictments against Democrats before Election Day in November.

Arkansas' Bud Cummins wrote other fired prosecutors in an e-mail last month of a "message" conveyed by a Justice Department official that if they continued to talk with news reporters, the agency "would feel forced to somehow pull their gloves off" and fight back.

"The department stands by the decisions" to fire the eight prosecutors, William E. Moschella, principal associate deputy attorney general, told the House Judiciary Subcommittee on Commercial and Administrative Law.

"To be clear," he said, "it was for reasons related to policy, priorities and management that these U.S. attorneys were asked to resign."

Senate and House Democrats were not satisfied and pledged to continue to investigate the firings.

Call from Hastings aide

The spotlight fell on McKay early in the day, during the Senate Judiciary Committee hearing, when Sen. Dianne Feinstein, D-Calif., asked him if he had ever been contacted by any members of Congress about ongoing investigations.

McKay responded that "some weeks" after the 2004 election, after a third recount had determined that Democrat Christine Gregoire had narrowly defeated Republican Dino Rossi in the governor's race, Ed Cassidy, Rep. Hastings' then-chief of staff, called McKay.

"I was told the purpose of the call was to inquire on behalf of Congressman Hastings" about the status of ongoing investigations of voter fraud, McKay said.

McKay said he was "concerned and dismayed by the call," given Cassidy's job and the sensitivity of the election.

McKay said he informed Cassidy that his office had already asked the public to contact the FBI with any evidence of voter fraud, so it could be investigated.

Cassidy then began to ask McKay whether any future action would be taken by the U.S. Attorney's Office with regard to the governor's race.

"When Mr. Cassidy called me on future action, I stopped him and I told him I was sure that he wasn't asking me on behalf" of Hastings, McKay told the Senate committee, "because we both knew that would be improper. [Cassidy] agreed it would be improper, and he ended the conversation in a most expeditious manner."

McKay said he didn't pursue the fraud allegations because there was no evidence to support them.

Cassidy is now a senior adviser to House Minority Leader John Boehner, R-Ohio, and, among other things, advises Boehner on congressional ethics.

Hastings chaired the House Ethics Committee from February 2005 until Democrats took control of the House earlier this year. He's now the ranking Republican on the committee.

Cassidy said in a statement Tuesday that his conversation with McKay "was a routine effort to determine whether allegations of voter fraud in the 2004 gubernatorial election were, or were not, being investigated by federal authorities."

He said he understood the ethical boundaries of such a conversation and didn't violate them. Congressional rules prohibit House and Senate members from discussing ongoing investigations with federal prosecutors.

Hastings, in a statement also issued Tuesday, called Cassidy's conversation with McKay "entirely appropriate."

"It was a simple inquiry and nothing more — and it was the only call to any federal official from my office on this subject either during or after the recount ordeal," Hastings said.

Hastings said Tom McCabe, executive vice president of the Building Industry Association of Washington, which backed Rossi, contacted his office in July 2005 to ask that Hastings urge the White House to fire McKay.

"I flat-out refused to do so, which Ed Cassidy told him in the bluntest of terms," Hastings said.

Brian Roehrkasse, a Justice Department official, strongly denied that McKay's handling of the 2004 governor's race had anything to do with his dismissal.

"Absolutely not," Roehrkasse said. "Any suggestion to that effect is flatly false."

Nonetheless, while talking to reporters after the hearing, McKay implied that Republican unhappiness with the 2004 election might also have scuttled his chances to become a federal judge.

Pursuit of judgeship

When U.S. District Judge John Coughenour took senior status in July, it opened a seat on the bench in the Western District of Washington.

McKay said at the time that he was interested in the job and had applied.

He said Tuesday that during interviews with Harriet Miers, former White House counsel, and William Kelley, deputy counsel, he was asked to explain "criticism that I mishandled the 2004 governor's election."

McKay further implied that Hastings was the source of the criticisms to the White House.

"I think that you should ask Congressman Hastings if he contacted the White House in connection with my application to be district judge or contacted the justice department," McKay said.

Todd Young, Hastings' chief of staff, said that as the senior Republican in Congress from Washington state, Hastings and Democratic Sen. Patty Murray jointly oversaw a panel that picked candidates to fill recent judicial vacancies in Tacoma and Seattle. Consequently, Young said, Hastings had regular contact with the White House about judgeships.

But, Hastings said in a statement: "Neither I nor any member of my staff — past or present — ever contacted anyone at the White House or the Department of Justice about whether John McKay should be removed as U.S. attorney or whether he was qualified to be a federal judge."

Moschella, the associate deputy attorney general, appeared before the House Judiciary Committee to explain the Justice Department's reasons for the dismissals.

Discussing McKay, Moschella noted that sentences meted out in the Western District of Washington were among the lightest in the nation.

"We need to do our part to ensure we get the maximum number within the sentencing guidelines," Moschella said. "That was certainly a consideration."

McKay countered at the hearing that federal judges, not prosecutors, are responsible for sentencing defendants.

A Justice Department official added after the hearing that the agency also felt McKay's office too rarely appealed light sentences.

Moschella also noted that McKay was a "vigorous and strong proponent of a particular information-sharing system called LINX."

Though many local law-enforcement officials and the U.S. Navy praised McKay's work on LINX, Moschella said Justice Department headquarters "had a difference" with McKay about the program.

Moschella did not clarify the exact nature of the difference between headquarters and McKay over LINX, but a Justice Department official said after the hearing that Deputy Attorney General John McNulty in late 2006 was pushing for an alternative communications system known as OneDOJ.

"You can't have multiple information-sharing systems," the official said.

McKay said he had never heard previously that LINX or sentencing concerns were the reasons for his dismissal.

"I accept what they said today," McKay said after the hearings. "I wonder what they're going to say tomorrow."

Mundy reported from Washington, D.C.; Bowermaster reported from Seattle. Reporter Mike Carter and the Los Angeles Times and Associated Press contributed to this report.

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com.

Alicia Mundy: 202-622-7457 or at amundy@seattletimes.com.