Justice Dept. accused of being 'gun-shy'

WASHINGTON — The Justice Department has shut down a wave of high-profile investigations of members of Congress over the past few months, drawing criticism that the government's premier anticorruption agency has lost its nerve after the disastrous collapse last year of its case against former Sen. Ted Stevens.

This month, lawyers for Sen. John Ensign, R-Nev., announced that federal prosecutors had told them they would not charge the senator with conspiring to help a former aide, with whose wife he had had an extramarital affair, violate a lobbying law.

A few days later, lawyers for Rep. Jerry Lewis, R-Calif., facing scrutiny for steering government spending to campaign donors, said they were told that their client would not be charged either.

Other federal corruption investigations known to have been ended without charges this year had focused on Tom DeLay, the former House majority leader and Republican of Texas; Rep. Don Young, R-Alaska; and Rep. Alan Mollohan, D-W.Va.

"They're gun-shy," said J. Gerald Hebert, the executive director of the Campaign Legal Center, a nonpartisan group that seeks greater disclosure of how money influences politics.

But in interviews, Jack Smith, chief of the Public Integrity Section at the Justice Department, and his supervisor, Lanny Breuer, the assistant attorney general for the Criminal Division, hotly contested the contention that prosecutors were in retreat from taking on congressional corruption.

"It's just not the case that anyone is gun-shy," Breuer said. "If a case cannot be brought, it's because we've taken a hard look and made the determination that this case cannot be proved beyond a reasonable doubt. And with all due respect to those outside the department, they haven't seen the evidence. They don't know the materials, and we've looked at it all."

Smith took over the section six months ago. One of his first steps, he said, was to review every open case and push for a conclusion one way or the other, saying it was not fair to let inquiries linger unnecessarily.

Breuer said, "There is no question that if we thought a case was not going where it needed to, because the facts were what they were and it was too old, that we should make the tough decision and move on."

Peter Zeidenberg, a former public-integrity prosecutor, said prosecuting lawmakers had become more difficult in recent years because of federal-court rulings. They narrowed what counts as "honest services fraud" or an "official act" for the purposes of a bribery charge, and banned certain searches that could expose legislative information protected by the Constitution's "speech and debate" clause, he said.

It does not appear, however, that any of the recent decisions not to charge members of Congress turned on those rulings.

The case against Stevens, R-Alaska, who died in August, collapsed because the trial team had improperly failed to disclose mitigating evidence.

In the fallout, the trial team found itself under investigation, the section's top two leaders were reassigned and one trial-team member later committed suicide.

But Smith said morale in the section was now good and hundreds of lawyers had applied for openings there. He also has instituted practice runs for trials, in which veterans critique opening statements and offer advice, while telling prosecutors to focus less on the number of cases they bring than on bringing "high impact" cases with deterrent effects.

As an example, he pointed to the recent indictment of 11 Alabama state legislators, staff members and lobbyists over an alleged vote-buying scheme. (One lobbyist pleaded guilty to bribery charges Monday.)

Smith also pointed to the case against the lobbyist, Paul Magliocchetti. A former aide to John Murtha, the late Democrat of Pennsylvania and House Appropriations Committee chairman, Magliocchetti pleaded guilty to making illegal campaign contributions in September.

Still, the record of a wider investigation into a circle of lawmakers who had steered federal spending to Magliocchetti's clients is murkier.

One main figure, Murtha, died in February. Another, Rep. Peter Visclosky, D-Ind., and an appropriations subcommittee chairman, was subpoenaed in May 2009, but there has been no public sign of developments.

The investigation into a third lawmaker with ties to Magliocchetti's firm, Mollohan, was closed in January. Several months later, he was defeated in the primary.