Naked City

When In Doubt -- Indict

When in doubt, go after the whistleblower. That appears to be the thinking behind Waco Special Counsel John C. Danforth's apparent plan to indict former federal prosecutor Bill Johnston, an outspoken critic of the Department of Justice's activities during and after the deadly standoff outside Waco between federal police and the Branch Davidians in 1993.

Last Thursday, Michael Kennedy, a lawyer for Johnston, told reporters that Danforth's office has informed Johnston that he will be indicted on charges of perjury, obstruction of justice, and making false statements. If Danforth follows through on the threats, it may result in a new faceoff, this one between federal officials in Waco who are loyal to Johnston and federal officials in Washington and St. Louis who are loyal to Danforth and Attorney General Janet Reno. Even if Danforth wins a criminal case against Johnston, which is far from certain, an indictment may reveal some unsavory tactics by prosecutors and investigators working for Danforth, an ordained minister who has long prided himself on his rectitude.

Jan Diltz, a spokesman for Danforth, refused to comment on any aspect of the investigation or on potential indictments of Johnston or Ray and LeRoy Jahn, two assistant U.S. Attorneys from San Antonio who, like Johnston, helped prosecute several Branch Davidians after the siege ended. Last week, Gerald Goldstein, a lawyer who represents the Jahns, told reporters that his clients were also facing possible indictment by Danforth. Goldstein would not say what charges might be brought.

While the Jahns may be charged, Danforth appears to be focusing his fire on Johnston, the former assistant U.S. Attorney who, during his long career with the agency, earned a reputation as an honest, hard-nosed prosecutor. But Johnston didn't earn many brownie points with high-ranking DOJ officials in Washington. He twice wrote Reno to alert her to possible wrongdoing in the Waco matter. During the 1993 siege, he told Reno that the FBI had intentionally altered important evidence at Mount Carmel shortly after five Davidians and four agents from the Bureau of Alcohol Tobacco and Firearms were killed during the Feb. 28, 1993 shootout. On August 31, 1999, Johnston again wrote Reno to warn her that people within the Dept. of Justice may have been withholding evidence about the FBI's use of pyrotechnic rounds. The letter effectively ended Johnston's career with the federal government. He resigned his post in February and now practices law in Waco.

It was Johnston's letter that helped convince Reno to appoint Danforth to reopen the matter. On July 21, after spending nearly a year and some $12 million investigating a very narrow segment of the Waco controversy (the events that occurred on or after April 19, 1993), the former U.S. senator from Missouri issued his preliminary report, which found that there was no evidence of a "massive conspiracy and cover-up" after the 51-day siege, and that there was no evidence to support allegations that the military played an active role in the standoff.

The threat of an indictment against Johnston has infuriated his friends in Waco and has caused a number of longtime DOJ employees to question what one called the "Gestapo-like tactics" being used against Johnston because he blew the whistle on miscreants in the department. "It's despicable. It's shameful," said one source in the department. "I'm embarrassed to be part of the Department of Justice."

The focus of Danforth's investigation, according to sources close to Johnston, are some handwritten notes Johnston made prior to the 1994 criminal trial against the Davidians. Johnston later allegedly withheld the notes from investigators, fearing they would be used against him by his enemies within the Department of Justice.

Sources within the department also allege that Danforth's prosecutors warned Johnston several weeks ago that if a favorable profile of him slated for the September issue of Texas Monthly magazine appeared in print, Johnston would be indicted. Texas Monthly editor Evan Smith confirmed that Johnston told Pam Colloff, a writer for the magazine, that people in Danforth's office had threatened him with prosecution if the story appeared. Smith decided to run the story. "It's an issue of revenge, not criminality," Smith said. "Freedom of speech is freedom of speech, end of story. ... The content of our story is irrelevant to the investigation."

Sources close to Johnston say that Danforth's prosecutors also insisted during their interrogation of Johnston that he serve time in prison, and that he lose his law license and not apply to have it reinstated. Roy Minton, the Austin lawyer who represented Johnston in some of the negotiations with Danforth's prosecutors, said the officials insisted Johnston be charged with perjury, a felony. "They said that was the reason they wanted to charge him with a felony, because they wanted him to lose his law license," said Minton.

Experts on Waco are puzzled by the news that Johnston may be indicted. "That's clearly retaliation for whistle-blowing," said Stuart A. Wright, a sociology professor at Lamar University in Beaumont who has written extensively about the Waco controversy. "The people who remained loyal to the Department of Justice were not targeted even though they sinned. Johnston's sin was disloyalty. That's why they are going after him."

Ironically, Johnston has been one of the few federal officials brave enough to say federal officials should have been prosecuted for breaking the law during and after the standoff. In July, Johnston told the Chronicle that the Dept. of Justice should have prosecuted ATF commanders Phillip Chojnacki and Chuck Sarabyn for lying about what happened at Mount Carmel. The Treasury Dept. found that the two commanders lied when questioned about whether they knew the element of surprise had been lost when they decided to go ahead with the raid on Mount Carmel. Prosecuting Sarabyn and Chojnacki "would have been the right thing," said Johnston at the time. "It would have let people see that the government process works. But the Justice Department doesn't do the right thing. They do what is easy."

By going after Johnston, Danforth appears to be ignoring numerous instances of malfeasance by other DOJ officials whom he cites in his report. Danforth points out that FBI commander Dick Rogers failed to correct Reno when she told Congress in 1993 that no pyrotechnic tear gas rounds were used against the Davidians during the final assault. Yet he says in his report (www.osc-waco.org) that he "will not pursue any further investigation of Rogers or any member of the HRT." Likewise, the report says that FBI attorney Jacqueline Brown "lied to the Office of Special Counsel during the course of this investigation," but that Danforth's office "declines to pursue a criminal prosecution" against her.

So why go after Johnston? Michael Caddell, the lead attorney for the Davidians, says it's all about power. The only person Danforth is prosecuting is "the guy who doesn't have any friends in Washington," said Caddell. "At the end of the day, there's no accountability for the government officials who have lied, covered up, or withheld information."

If Danforth does issue obstruction of justice indictments against Johnston and the Jahns, he may have a hard time getting a conviction. "Obstruction of justice cases are very difficult to prove because you have to prove malicious intent," said Susan Klein, a former federal prosecutor who is now a law professor at the UT School of Law. "I've never heard of anyone charging a prosecutor criminally for failing to turn over exonerative evidence."