Thursday, March 08, 2007


"An absolute fairy tale"

On Tuesday I recapped the allegation made by fired federal prosecutor, Thomas DiBiagio—that he was dismissed to squelch an investigation into links between Maryland Republicans and "gambling interests." DiBiagio also implied that then-Governor Robert Ehrlich had a hand in it.

Clearly DiBiagio wasn't the only person to whom the thought had occurred. At about the time the media were taking notice of the firing spree at the Justice Department, Jervis Finney (described by the Baltimore Sun as Ehrlich's "top legal advisor") decided to place a call to DiBiagio—almost two years after DiBiagio had been fired!

According to the original report—
[B]ecause of lingering suspicions in Maryland political circles that Mr. Ehrlich’s people had a hand in Mr. DiBiagio’s departure in early 2005, ... Jervis Finney, called Mr. DiBiagio a few months ago to deny any involvement, Mr. Finney said.

Mr. Finney said in an interview Monday that he wanted to “clean things up” and to let Mr. DiBiagio know that “neither Gov. Bob Ehrlich or his representatives had asked the Department of Justice to push him out.”

I'm sure the timing was purely coincidental. Associate Deputy Attorney General David Margolis characterized DiBiagio's allegations as "an absolute fairy tale."

Fairy dust

Now when the Department of Justice (DOJ) speaks of "fairy tales" you should expect to find some fairy dust. And sure enough, the first little twinkle appeared when Margolis acknowledged to Eric Rich of the Washington Post that DiBiagio had in fact been forced to leave for other than "personal reasons."

Reporter Rich gave full coverage to rebuttals from the Justice Department and ex-Governor Ehrlich. Nothing to any of the allegations, of course. Why, far from trying to have DiBiagio fired, the Governor's office had tried to save him!

[T]he department official who asked for his resignation dismissed DiBiagio's claim ... that he was ousted because of political pressure over public corruption investigations into the administration of then-Gov. Robert L. Ehrlich Jr.

In fact, the Republican governor's chief legal counsel, Jervis Finney, twice contacted the Justice Department to argue in DiBiagio's behalf, said David Margolis, an associate deputy attorney general. Finney contacted the department in fall 2004, not long after DiBiagio drew a rebuke for ordering his subordinates to produce "front-page" indictments, Margolis said.

Finney, he said, "called me during this process, claiming that I was being too harsh on Tom and that Tom was being railroaded by a bunch of Democrats in the U.S. attorney's office."

I can't tell you how relieved I was to know that the people who really wanted to get rid of DiBiagio were "a bunch of Democrats." But my joy was short-lived. David Johnston at the NY Times reported today that Finney's memory is not meshing well with Margolis's—

Mr. Finney said on Wednesday that he did not remember making the calls. While he said he never pushed for Mr. DiBiagio’s ouster, he said he did not recall ever urging that he be kept on the job either. Mr. Finney added that if he had made such a call, it would probably have been in the limited context of voicing support for Mr. DiBiagio’s position on gun prosecutions in a dispute with the City of Baltimore.

Still there's the matter of DiBiagio's abrasive and insensitive character, which is the stated reason for his dismissal. As the man who fired DiBiagio—David Margolis—said to reporters from the Baltimore Sun,

... the decision to remove DiBiagio came after prosecutors in his office told Justice Department investigators that DiBiagio's intemperate leadership made their lives unbearable.

Margolis was not afraid to flesh out these allegations—

Another controversial episode that raised questions about DiBiagio's candor focused on a statement DiBiagio made to the news media after the mysterious death in 2003 of one of his former assistant prosecutors, Jonathan P. Luna, who was found stabbed and drowned in a Pennsylvania creek.

Before she resigned, then-Assistant U.S. Attorney Lisa M. Griffin wrote in an e-mail to DiBiagio and other members of the staff that she was "deeply embarrassed to hear that you led the press to believe that Jonathan was not in jeopardy of losing his job. That wasn't so."

Good God! A subordinate was murdered, yet DiBiagio lacked the candor to reveal that he was thinking about firing him anyway! No wonder the Justice Department let him go!

The most damning allegation against DiBiagio is said to be an internal memo he wrote in 2004 urging his subordinates to bring "front-page" prosecutions. The memo was interpreted by some to mean that DiBiagio wanted to target Democrats—and we all know that the Justice Department would never want to target Democrats. Yet there's a hint of other reasons for DiBiagio's dismissal—

Margolis acknowledged the memo's role in DiBiagio's firing but declined yesterday to specify other reasons why DiBiagio was let go.

How to proceed?

So many unanswered questions, so little time! Fortunately the Senate Judiciary Committee's investigation into the more recent dismissals at the DOJ offer an ideal venue for taking a further look into the matter. And it appears that may happen—

Sen. Benjamin L. Cardin, a Maryland Democrat and member of the Senate Judiciary Committee, called yesterday for an investigation into DiBiagio's firing.

"Anytime allegations arise that politics may have interfered in the prosecution of federal cases, we must take it seriously," Cardin said in a statement. He said he was "not familiar with the specific conditions surrounding" DiBiagio's departure.

Even a Republican Senator has taken notice—

"It is a story which may show inappropriate political pressure on the Baltimore attorney for pursuing an investigation related to gaming, which implicated subordinates of the governor," Sen. Arlen Spector, a Pennsylvania Republican, said yesterday at a hearing in Washington. "Or it may be explained in what the story refers to as his pressure tactics and performance rating. So there are a lot of nuances."

And beyond ...

Whatever the truth of Mr. DiBiagio's allegations, they should point the House and Senate enquiries beyond the limited timeframe of the current investigation into Justice Department firings. Mr. DiBiagio's case goes back at least to 2004. How many other federal prosecutors have resigned "for personal reasons" since that time? How many were fired or resigned abruptly since 2001? It would be interesting to ask the attorneys themselves about the circumstances under which they left. A simple invitation to come forward might be sufficient.

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