From:
http://www.dallasnews.com/texas_southwest/165961_waco_09tex.html
Danforth seeks to repair rift with judge over Waco case
Counsel won't discuss stance on ex-prosecutor
09/09/2000
By Lee Hancock / The Dallas Morning News
WACO – Special counsel John C. Danforth met privately Friday
with U.S. District Judge Walter S. Smith Jr., trying to repair a
rift created when the special counsel's investigators recently
threatened to indict a former federal prosecutor who turned
whistle-blower in the Branch Davidian case.
"We're just here to talk to the judge about the relationship
between the court and the office of special counsel. We've
enjoyed a very good and close working relationship, and we want
that to continue," he said.
But the former Missouri senator said before meeting with Judge
Smith that he was not prepared to discuss what action, if any,
his office might take against the former longtime Waco federal
prosecutor, Bill Johnston.
"I can say that that's not something that could come up. The
answer is no, it can't come up in our discussion," he said,
adding that he could not say "one way or another" whether his
office will file criminal charges against "anybody" as a result
of its 11-month, $12 million inquiry.
Judge Smith angrily confronted several of Mr. Danforth's
investigators last month over the special counsel's treatment of
Mr. Johnston, telling them that he was ending his court's
cooperation with the inquiry because of what he said appeared to
be a witch hunt against a respected federal prosecutor.
The judge also told Mr. Danforth's investigators that they were
no longer welcome to carry firearms in the courthouse and would
be given only the same access to the building offered to the
public.
The special counsel's investigators left their courthouse offices
that day and largely stayed away until Friday, when Mr. Danforth
arrived from St. Louis.
Airing concerns
Before entering the judge's chambers Friday, Mr. Danforth
acknowledged that he requested a meeting with Judge Smith, in
part, to air concerns about that incident.
He emerged tightlipped after about an hour in the judge's office,
refusing to say whether he had briefed the judge or listened to
his concerns about reports from Mr. Johnston and his attorneys
that say the special counsel's assistants were threatening him
with felony criminal prosecution.
Mr. Danforth also would not say whether the hourlong discussion
had repaired the strained relationship between his office and
Judge Smith, who has heard all litigation arising from the 1993
standoff.
Judge Smith declined to comment on the meeting. Mr. Johnston has
declined to speak publicly about the case.
His attorney, Michael Kennedy of New York, could not be reached
for comment. But he acknowledged last week that Mr. Danforth's
investigators told him that Mr. Johnston would soon be indicted
on charges of obstruction of justice, lying to federal
investigators and perjury.
Possible indictment
Late Friday, supporters of the 41-year-old former prosecutor said
that they believe his indictment is imminent and the special
prosecutor's visit amounted to a courtesy call before criminal
charges are made public.
"It appears they are determined," said one person familiar with
the case who asked not to be identified. "They have made it
clear."
Mr. Johnston was told in late July that the special counsel's
office believed he committed criminal violations in withholding
pretrial notes from the 1994 prosecution of surviving Branch
Davidians.
He was among five federal prosecutors who brought federal
criminal charges against survivors of the 51-day Davidian siege,
which began with a gunfight in which four federal agents and six
Branch Davidians died. The battle started when federal Bureau of
Alcohol, Tobacco and Firearms agents tried to search the sect's
compound and arrest leader David Koresh on firearms charges.
The siege ended on April 19, 1993, with a fire that burned the
compound with Mr. Koresh and more than 80 followers inside.
The case drew new attention last summer after a former FBI
official acknowledged that agents had used gas grenades capable
of sparking fires on the last day of the siege.
Justice Department officials initially ridiculed the admission
but later acknowledged that pyrotechnic devices were used in the
FBI's final tank and tear gas assault.
Prosecutor's accusations
Mr. Johnston then wrote Attorney General Janet Reno late last
August to warn that some of her Justice Department subordinates
may have withheld evidence from her and the public about the
FBI's use of pyrotechnic grenades. Ms. Reno had banned anything
that might spark a fire in the final assault.
Ms. Reno asked Mr. Danforth last September to review government
actions in the standoff and determine why officials had so long
denied that the FBI had used anything capable of sparking fires.
Mr. Johnston went public shortly after writing Ms. Reno, and
friends and former colleagues said they soon feared Mr. Johnston
would face retribution for publicly embarrassing the Justice
Department and Ms. Reno.
After Mr. Johnston resigned in February from the U.S. attorney's
office, he was taken twice before a federal grand jury in St.
Louis by Mr. Danforth's investigators.
In late July, Mr. Johnston was grilled about three pages he took
from a notebook before turning it over to his superiors. He was
told to surrender his Davidian records after Judge Smith ordered
all government agencies last August to turn over everything
relating to the incident to his court.
Associates said Mr. Johnston acknowledged that he removed several
pages before sending one pretrial notebook to superiors in San
Antonio because one page included a reference to incendiary
objects. They said Mr. Johnston did not recall why he wrote the
phrase in the fall of 1993, but feared that hostile colleagues
might try to use the notes to discredit him.
Friends said Mr. Johnston surrendered the missing pages and
volunteered his personal records from his tenure as a Waco
federal prosecutor. They said he told Mr. Danforth's
investigators that he had not disclosed the notes sooner because
he had been harshly treated and accused of wrongdoing from his
earliest dealings with them.
They said Mr. Johnston recounted being told that he could avoid
prosecution by accepting a felony conviction that would mean the
loss of his law license. He recalled being told he would have to
provide information to help the special counsel's office prove
that his co-counsel in the Davidian prosecution, Assistant U.S.
Attorneys Ray and LeRoy Jahn of San Antonio, had conspired to
conceal information about the use of pyrotechnic gas.
The Jahns have retained San Antonio criminal defense attorney
Gerald Goldstein, who has declined to comment.
Friends of Mr. Johnston said he told Mr. Danforth's investigators
that he knew nothing that might help build a criminal case
against the husband-and-wife prosecution team.
Mr. Johnston's last round of questioning came less than a week
after the special counsel's office released a preliminary report
absolving Ms. Reno and the FBI of wrongdoing in Waco.
No criminal charges
Criticizing what it termed unfounded accusations and a resulting
climate of fear among federal officials involved in the siege,
Mr. Danforth's report concluded that his office would not pursue
criminal charges against an FBI lawyer whom Mr. Danforth said
lied four times to his investigators.
At the time, the former senator said it would be the equivalent
of "hitting a gnat with a sledgehammer" to prosecute a low-level
attorney accused of lying when she said she gave Justice
Department lawyers a 1995 FBI memo detailing use of several
pyrotechnic military tear gas grenades in Waco.
Mr. Danforth's report also repeated the Jahns' explanation that
they were negligent but had not intentionally tried to mislead
when Mr. Jahn told Congress in 1995 that gas used at Waco was
nonflammable and Ms. Jahn made similar representations in legal
filings for the 1994 criminal case.
Mr. Danforth's report made little mention of Mr. Johnston. Mr.
Danforth waved off questions about the former prosecutor when he
released the report, saying he could not discuss any of the
issues still under investigation.
Friday, Mr. Danforth said his investigation is nearly complete.
"We've made good progress," he said, adding that a final, public
release of his investigative findings "will be in the imminent
future."
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