By John J. Kelly
Former U.S. Attorney
This past week New Mexicans were treated to a rare glimpse into the professional and ethical challenges faced on a daily basis by U.S. attorneys.
Sen. Pete Domenici, R-N.M., in his statement defending his call to then-U.S. Attorney David Iglesias, says that the FBI completed its work on the courthouse corruption case "months" before the call. He expresses concern about "unresolved new federal cases" and the inability of the federal prosecutor to "move more quickly on cases."
The clear inference is that the courthouse corruption case should have been indicted earlier, and Iglesias is to blame for delaying the process.
Domenici's critique is misleading and unfair. In a high profile, multi-defendant investigation, the FBI's report is just the starting point for the prosecutor's case evaluation. Routinely the prosecutor will want additional interviews conducted, key testimony locked in before the federal grand jury, and pre-indictment pleas negotiated with lower level targets who agree to testify.
In an investigation like this one, an exhaustive prosecution memorandum would have been drafted, and vetted both by supervisory prosecutors within the office and by the Criminal Division at Main Justice. This internal review is time consuming and can result in significant changes to both the offenses charged and the targets against whom the government decides to seek indictments.
The senator's point is also unfair because the New Mexico U.S. Attorney's Office (one of the busiest in the country) is substantially understaffed due in large part to Congress' decision to divert scarce resources overseas. In this environment the U.S. Attorney's Office inevitably has to move more slowly than it would like.
Iglesias faced an ethical dilemma as well. The telephone calls from U.S. Rep. Wilson and Domenici signaled that a timely announcement of courthouse corruption indictments could affect the outcome of Wilson's congressional race with Patricia Madrid. Department of Justice ethical guidance makes clear that a U.S. attorney may not use his official authority or influence to interfere with an election.
In my judgment, had Iglesias returned grand jury indictments at any time during the months of September or October (with reason to believe that they could affect the election) he almost certainly would have faced charges of misconduct and unethical behavior.
Evidence that he had rushed the indictments would have certainly resulted in defense motions to dismiss with prejudice for prosecutorial misconduct.
Iglesias should have promptly reported the Wilson and Domenici overtures to the Department of Justice, but Iglesias and his colleagues are not to be faulted for taking their time to get the case right. U.S. attorneys are duty bound to maintain absolute independence from the legislative branch while enjoying a professional relationship with the congressional delegation on broad criminal justice policy and budgetary matters.
The congresswoman and the senator abused that relationship when they called Iglesias, no matter how oblique were their references to the courthouse corruption investigation.
John J. Kelly served as U.S. attorney for seven years during the Clinton administration, leaving the job to run against Rep. Heather Wilson in 2000.
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