Former U.S. Attorney John McKay Takes the Gloves Off on the White House

He has written what sounds like a closing argument for locking up most of the Bush administration.

This story has been alterterd to include Attorney General Michael Mukasey's decision to argue the case himself. In two weeks, government attorneys will stand before the U.S. Supreme Court, seeking a stiffer sentence for the man who ruined New Year's Eve 2000, would-be millennium bomber Ahmed Ressam. Their argument, according to newly filed legal briefs in D.C., centers on whether additional time should be added to Ressam's relatively light 22-year stretch. Attorney General Michael Mukasey will himself argue the U.S. case, the Justice Department announced this week. John McKay, the U.S. attorney for Western Washington who prosecuted Ressam and later filed the appeal for a longer sentence, won't be there to argue the case. As you might have heard, he and eight other U.S. attorneys were fired by the Justice Department in December 2006 for "personnel reasons"—or, based on testimony and evidence since presented at congressional hearings, were ousted en masse for falling out of neocon lockstep with the Bush White House. McKay, ever the prosecutor, hasn't gone quietly. He told some of his story to Senate investigators, and has now added new details in an article for the Seattle University Law Review (McKay is currently a professor at SU's law school). In an e-mail to Seattle Weekly, he also indicates that the Ressam sentencing might have abetted his ouster. Taken as a whole, McKay's Law Review article sounds like a closing argument for locking up most of the Bush administration. Though he once picked his words cautiously when speaking of the Bush Justice Department, McKay refers to former Attorney General Alberto Gonzales as a "liar" with "sinister" motives, and says other Justice and White House officials also perjured themselves in Senate hearings as part of a possible criminal conspiracy. Though Gonzales' intent was damage control, McKay writes, the AG ironically "managed to drive the fired U.S. attorneys together and convince them that he was hiding a sinister purpose in their dismissals and lying to the Senate to cover it up." In particular, "it was the Attorney General's exchange with Senator [Diane] Feinstein that galvanized the soon-to-be former U.S. Attorneys, who began to communicate with each other almost daily by e-mail and telephone conference calls." Gonzales told Feinstein the administration was following standard Senate procedure to nominate replacements for the fired attorneys. But the attorneys knew differently. McKay writes: "In Seattle, for example, no known efforts had been underway by either the White House or the Justice Department to recruit or interview was clear the Justice Department planned to name their own interim U.S. Attorneys under the new powers granted them in the amendments to the USA Patriot Act." McKay's best guess on the cause of his firing is the notion that he declined to undertake a political prosecution in 2005: Republican leaders complained to the White House about McKay's supposed failure to investigate possible vote-tampering in the 2004 Washington gubernatorial election between Republican loser Dino Rossi and Democratic winner Chris Gregoire, which involved a triple recount. (McKay says his office did investigate and found no federal violations.) Responding to a request for further comment last week, McKay said in an e-mail: "My thoughts about my dismissal are pretty fully set out in the article." The pivotal sentencing of the Al Qaeda–trained Ressam might also have been among the reasons McKay was fired, he adds in his brief e-mail. "I don't have any reason to believe the Ressam case was a cause," McKay writes in response to a question about the upcoming high court case. "But then again, they have given many and conflicting reasons." Prosecution of Ressam was one of McKay's career achievements, but political ramifications of the sentencing were mostly unexplored in Attorneygate hearings. Imprisoned since 1999 after being caught in Port Angeles with more than 100 pounds of explosive material in his car trunk— which he'd planned to use to set off a bomb at Los Angeles International Airport—Ressam aided the government by fingering and testifying against other terror suspects. He faced decades in stir, but his cooperation earned the lesser term, handed down in July 2005 by U.S. District Court Judge John Coughenour in Seattle. Here, the judge was critical of the Bush administration's lack of constitutional due process for terror suspects while also holding them incommunicado. "Some believe [Sept. 11] renders our Constitution obsolete," Coughenour said. But, he added, the Ressam case showed how terror suspects can be prosecuted in "the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel." Though McKay had sought a 35-year sentence after Ressam stopped cooperating late in the game, the prosecutor said he was satisfied and did not take issue with Coughenour's comments. A month later, however, McKay unexpectedly filed an appeal seeking additional time for Ressam, leading an appeals court to order resentencing because Coughenhour failed to explain in writing, as required, his basis for setting down the lesser term. At issue now before the U.S. Supreme Court is whether one of the nine counts against Ressam carries a mandatory 10-year term. Mukasey will argue the government's case, and Ressam's attorney, federal public defender Tom Hillier of Seattle, will speak for the defense. Oral arguments are set for March 25. The high court might clarify whether time can be added, but when the resentencing is held here, it's anyone's guess what Coughenour might do. "He could add, subtract, or do nothing," says Hillier, who's had regular contact with Ressam, currently locked away in the bleak solitude of Colorado's supermax federal pen. "He's pretty stoic," says Hillier. "He's not one to complain." If his current sentence holds and he gets time off for good behavior, says Hillier, Ressam will be free around 2017, at which point he'll be deported. McKay hasn't explained why he changed his mind and filed the Ressam appeal. Did pressure come from the White House upon hearing Coughenour's comments? For his part, Hillier says that Justice appeal decisions are usually made by D.C., so "it was probably out of John's hands." Whether or not Ressam blowback was involved, 2005 was McKay's Waterloo year, he says in his Law Review article, and by 2006 the Bushies had him on their hit list. McKay is convinced that "the idea of replacing all of the U.S. Attorneys originated at 1600 Pennsylvania Avenue," where "White House Senior Counselor Karl Rove openly campaigned against perceived voter fraud abuse," mentioning Washington as one of the offending states. Since that time, Rove, Gonzales, and others, dragged down in whole or part by Attorneygate, have left their posts. To this, writes McKay, "The resignations of the Attorney General, the Deputy Attorney General, the Associate Attorney General and much of their senior staff have undoubtedly been a relief to those who have observed the faulty memories, political maneuverings, and outright incompetence at the Justice Department."

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