JUSTICE (DEPT.) IS SERVED

Wes McKinley had been out on the trail with his herd several days when he finally rounded up a copy of last Friday's paper.

And there the foreman of Colorado Special Grand Jury 89-2 learned that the Department of Justice's long-awaited internal review of the Rocky Flats investigation had determined "no basis existed" for Congressional charges that the prosecution had been mishandled. That the Justice Department's main office had not influenced the plea negotiations with Rockwell, the weapons plant's operator at the time. That the decision not to prosecute had been a "sound exercise of prosecutorial discretion." And that, in barring McKinley's grand jurors from issuing their own report detailing their two year investigation into Rocky Flats--and suggesting exactly what crimes could have been prosecuted--Justice officials acted in good faith, applying "traditional grand jury standards," according to the report.

"In light of the detailed analysis and conclusions in the report," Attorney General Janet Reno announced, "there should be no remaining doubt that the prosecutors acted energetically and consistently with the highest professional standards."

All in all, the news accounts reminded McKinley of another story, a story about the cowboy who won the title of world's greatest salesman. How? When his wife found a pair of panties in his pickup, he asked her: Are you going to believe what your lyin' eyes tell you or what I tell you?

Congressman Dan Schaefer, the ranking Republican on John Dingell's House Subcommittee on Investigations and Oversight, was running to the airport Thursday afternoon when word came down that Justice had finally released its report. Odd timing, he thought, since Congress was clearing out for the weekend; Schaefer picked up a copy on his way to Colorado. By Monday, as he headed back to Washington, he'd barely skimmed the surface, much less started to negotiate all the undercurrents at the Capitol.

For months, Dingell's subcommittee--charged with investigating thirty cases in which the Justice Department allegedly was soft on the prosecution of environmental crimes--has wrestled with the notion of granting immunity to the Rocky Flats grand jurors and allowing them to testify before Congress. Since Rocky Flats is in Schaefer's back yard and the case dates back to a Republican administration, the decision on whether to request immunity rests largely with the Colorado congressman.

While Republicans in Colorado have pressed for immunity, Republicans in D.C. have pushed in the opposite direction. But rather than stop at defending the department's work, Justice's report also attacks Congress--and that may not play well with either party on Capitol Hill.

Much of this report rebuts the work of an earlier House subcommittee: Howard Wolpe's January 1993 report on the Rocky Flats prosecution--or lack thereof. Wolpe's investigation had traced the impetus for the Rockwell plea bargain from the Colorado prosecutors back to Main Justice. Speaking darkly of backroom deals, Wolpe called for the grand jurors not just to be granted immunity, but pardoned altogether. So it's hardly surprising that the Justice report ends with a warning that the Rocky Flats case "dramatically illustrated" how easily internal deliberations of Justice attorneys "can be misunderstood and distorted in a political forum, especially where complex and subtle prosecutorial judgments are involved...The congressional maligning of the line prosecutors in this case provides strong incentives for prosecutors to stay away from politically charged environmental cases in the future."

But the Justice report also offers evidence that the department's own politics were at play: The authors note--proudly, for some strange reason--that the decision to oppose any report from the jurors "was the only notable example of Main Justice overruling the line prosecutors."

And that may be reason enough for Dingell's subcommittee to reconsider the Rocky Flats case. "Our interest all along has been the influence of D.C. on this decision," Schaefer says.

Given that interest, will the subcommittee finally request that the jurors be allowed to testify before Congress, as they asked just eighteen short months ago? "This is a lengthy process," Schaefer responds, "and we need to cover all other bases first."

Attorney Jonathan Turley has been pitching the jurors' case to Congress. By now he not only has the bases covered, but the rest of the field as well. Every piece of the investigation has been studied and studied again, he says--except for the knowledge only the grand jurors possess, knowledge of how their quest for justice was obstructed. "We have supplied various legal memoranda to the committee staff showing past cases in which grand jury proceedings have been opened up to Congress," Turley says, "including the release of entire transcripts. Our case for immunity is strengthened by the fact that the prosecutors in this case have already testified before Congress, even though they are covered to the same extent by the grand jury secrecy rule. Any lingering questions over the legality of immunity can be answered by a federal judge, who must sign off on any immunity grant by Congress. The sole operative question in this case is whether Congress is prepared to hear perhaps disturbing testimony from the grand jurors."

The Justice Department apparently wasn't: Its investigators didn't contact Turley, much less speak with his clients. The report notes that lack in footnote 92: "We recognize that these conclusions rely in large part on the prosecutors' views of the evidence. As stated, this review could not encompass an independent examination of the underlying evidence. To a certain extent, this is a limitation inherent in the process."

Or in the prosecutors.

 
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