Election Case Came Up in Judgeship Interview During a September 2006 job interview, the White House counsel's office asked a U.S. attorney why he had "mishandled" an investigation of the close Washington governor's race. The interview with John McKay, former U.S. Attorney for the Western District of Washington, was for a federal judgeship — a post McKay did not receive.
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Election Case Came Up in Judgeship Interview

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Election Case Came Up in Judgeship Interview

Election Case Came Up in Judgeship Interview

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More now on the story of eight U.S. attorneys who were fired by the Justice Department, that are now questioning the motives behind their dismissal. One of those fired prosecutors is John McKay, who was U.S. attorney for the western district of Washington State. In congressional testimony and in the interview you're about to hear, McKay claims a top aide to a Republican congressman called to ask about an inquiry the prosecutor was conducting into alleged vote fraud.

It all revolved around the hotly contested governors' race in Washington State in 2004. The Democrat was declared the winner after three recounts, by 200 votes. Then John McKay got a call from Ed Cassidy, who was chief of staff to Republican Congressman Doc Hastings.

Mr. JOHN McKAY (Fired Prosecutor by the Justice Department): Mr. Cassidy called into my office. When I was told that he was on the line, I was, of course, immediately concerned to be taking a phone call from a congressman's chief of staff in the middle of this heated issue about the election in Washington State.

BLOCK: That would have seemed like an unusual thing at the time?

Mr. McKAY: Not unprecedented, but very unusual - and of course, in the context of the election, and I knew that Congressman Hastings was involved in some of the public debate surrounding that. And of course, I was the chief federal prosecutor and I wasn't involved in any debate. I was keeping very, very quiet, as was the FBI. So when the call came in, I was immediately alarmed.

BLOCK: What did Congressman Hastings's chief of staff ask you in that phone call?

Mr. McKAY: Well, first he asked me a general question: what was going on? And I told him what was publicly released by my office - that we were requesting anyone with information to contact the FBI, that there were FBI agents assigned to this, that in effect it was a preliminary inquiry. And we had made those things public. Then he went further, which was to begin to ask me about what actions the government might be taking in any inquiry.

BLOCK: Your office in other words?

Mr. McKAY: Of course, my office and the FBI. And as he began to ask me those questions, I interrupted him. I essentially stopped him from that line of questioning. And I said something like, you know, I'm quite sure that you are not about to ask me about the status of a federal investigation, or to influence me in a federal investigation - because you and I both know that would be wrong. And I think he took the hint, and ended the conversation very quickly.

BLOCK: Ed Cassidy has responded to this. And he says his call was just a routine effort to determine whether allegations of voter fraud were or were not being investigated. That he, of course, knew what the limits were on these conversations.

Mr. MCKAY: Well, let's put it this way. I don't think there's any question that he was in dangerous territory in placing a phone call to the United States attorney at that time. I agree with him in the sense that he did not get into illegal or unethical territory, because I stopped him.

BLOCK: After you were fired, you and the fellow U.S. attorneys were fired, another U.S. attorney got a phone call from someone in Justice named Mike Elston, and he testified about that yesterday. What was that phone call about?

Mr. MCKAY: Mr. Elston had made it clear that the department was unhappy with statements of some of the fired U.S. attorneys that were in the media, in particular, a Washington Post article. But Cummins, who was our colleague who sent us that e-mail, then stated that Mr. Elston was particularly upset by the idea that we would be cooperating with congressional investigators or that we might testify before Congress.

Mr. Cummins related to us in the e-mail that the department would view that as an escalation of this conflict and that they would respond accordingly. And what he said was that they were likely to have to release information about our own personnel files.

BLOCK: I think the way he characterized it was that the Justice Department would pull their gloves off.

Mr. MCKAY: Right, and that we could expect to be trashed. And so it was a threat.

BLOCK: And again, you didn't get that phone call directly. You heard about it through an e-mail from a fellow U.S. attorney.

Mr. MCKAY: That's exactly right.

BLOCK: There was an op-ed piece today in USA Today from the attorney general, Alberto Gonzales, who called this whole thing an overblown personnel matter. He says that you and the other U.S. attorneys who were fired simply lost my confidence.

Mr. MCKAY: That is the first time I have ever heard that from the attorney general of the United States. I'm not sure I would have expected him to call me, but one would have thought that before December 7th, when all of us were fired, that someone would've indicated that we were doing something that was putting us in disfavor with the attorney general.

BLOCK: If you back up a bit from all of this and you look at what happened and the number of you who were dismissed at the same time, how do you interpret that?

Mr. MCKAY: Well, there's no question that this was unprecedented in the Justice Department. And I think the sad thing about that is that they have opened themselves to the kind of speculation and criticism that the attorney general writes about this morning in his op-ed, and that is that people question whether they did it for political purposes. They question whether they did it to inhibit political corruption prosecutions. And I think that's extremely unfortunate, because it undermines the confidence of the public in the United States Department of Justice.

BLOCK: Do you think that's the case, that it was done for political reasons?

Mr. MCKAY: I can't speculate on that. I think that the shifting statements by the Department of Justice need to stop immediately. They should acknowledge their true reasons and get this over with, because I don't want to believe that the Department of Justice would remove its prosecutors for doing their jobs.

BLOCK: John McKay, thanks very much for coming in.

Mr. MCKAY: Thanks for having me here.

BLOCK: John McKay is a former U.S. attorney from Washington State. He now teaches at the Seattle University School of Law.

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