| Jim McDevitt's Non-Disclosure | |
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By Tim Connor |
12/12/2007 |
U.S. attorney didn't report personal ties to River Park Square
In answering questions to determine his fitness to serve as a United States Attorney six and a half years ago, Jim McDevitt did not disclose his personal involvement in the River Park Square controversy to President Bush or to then-Attorney General John Ashcroft.
This revelation is part of what is contained in McDevitt's November 21, 2007 response to a grievance filed with the Washington State Bar Association (WSBA) by former Spokane City Councilwoman Cherie Rodgers. It comes as two Assistant U.S. Attorneys from Western Washington are, according to Rodgers, working through thousands of pages of River Park Square documents to determine what, if any, criminal charges should be brought against one or more participants in the ill-fated public/private partnership.
McDevitt has asked the WSBA to defer investigation of Rodger's grievance against him until the new Department of Justice investigation by Assistant U.S. Attorneys Robert Westinghouse and Kurt Hermanns has been completed.
Rodgers filed the grievance in mid-October after McDevitt refused to answer questions that Rodgers and I put to him in a September 19th letter. Our questions to him were part of our continuing efforts to hold McDevitt accountable to remarks he made on the Mark Fuhrman radio program that aired on KGA out of Spokane on August 6th. During the interview, McDevitt disputed accusations of criminal activity involved in the River Park Square transactions and said he would "welcome anybody" bringing forward "the best evidence" of criminal misconduct.
Rodgers and I did this on August 20th, and McDevitt responded immediately by recusing himself and his office from investigating the evidence we provided him. Much of the package turned over to McDevitt were documents, billing records, and deposition transcripts that detailed the activities of McDevitt and his then-law partners in finalizing the RPS garage transaction. [See "McDevitt's Fingerprints" and "Indictments Sought."]
What Rodgers and I didn't know is what McDevitt disclosed to President Bush and then-Attorney General John Ashcroft in 2001, as his nomination for U.S. Attorney was being processed.
Our September 19th letter sought this information as well as McDevitt's own explanation as to whether and how he complied with a Washington state rule (RPC Rule 1.7, governing conflicts of interest for Washington state lawyers) as his nomination to serve as the U.S. Attorney for the Eastern District of Washington went forward. Specifically, we asked whether the former Preston, Gates & Ellis attorney notified the President of his involvement in the RPS transactions and whether he'd obtained written consent after making a full disclosure.
McDevitt's response to the WSBA contains the information that Rodgers and I were seeking. Attachments submitted with his November 21st letter do show he disclosed that Preston Gates & Ellis (one the nation's largest law firms) was a named defendant in the suit by RPS garage bondholders. But they also reveal that he did not inform the President and the Justice Department about his personal involvement, and that he did not obtain written consent documenting that the President and Attorney General had been informed about his direct involvement in the RPS controversy.
"I'm livid that he [McDevitt] didn't disclose to the President and the Attorney General that he was personally involved in the River Park Square transaction," Rodgers says.
In response to Rodgers's grievance, McDevitt doesn't dispute that he would have been required to comply with the pertinent state ethics rules for conflicts of interest--if he had a conflict. But McDevitt contends there was no conflict of interest "which would require any disclosure," and even if there were a conflict, that he satisfied the rule requirements by disclosing that Preston, Gates & Ellis was a defendant in the RPS civil litigation.
McDevitt contends no conflict of interest existed because:
1) His involvement in the RPS transaction was minimal, and,
2) The U.S. Government was not a party to the garage litigation and was not expected to become a party.
Rodgers disputes this and, in her bar complaint, highlighted the Rule1.7(b) language that requires disclosure of "the lawyer's own interests" and the evidence, from McDevitt's billing records, of his "deep involvement" in closing the River Park Square garage transaction.
Rodgers also disputes McDevitt's contention that the U.S. Government didn't have a stake in the River Park Square controversy. Not only had the U.S. Internal Revenue Service initiated a major investigation by the time McDevitt's nomination went forward, she notes, but the central rule regarding securities fraud is Rule 10(b)(5) requiring full disclosure of material facts to securities buyers. The rule was promulgated under the Federal Securities Exchange Act of 1934 and is regularly the basis for federal criminal securities fraud cases brought by U.S. Attorneys.
In the disclosure information that McDevitt shared with the WSBA, Rodgers points out, there is no mention at all of the IRS investigation that ultimately led, in June 2004, to a lengthy finding that the RPS transaction violated several provisions of federal tax rules.
Rodgers has until mid-December to respond to McDevitt's reply to the WSBA.
Rodgers also disclosed that she has been in contact with Robert Westinghouse, the Seattle-based Assistant U.S. Attorney who, along with Kurt Hermanns, a Tacoma-based Assistant U.S. Attorney, has been assigned to take a fresh look at the River Park Square controversy to, in Westinghouse's words, "determine if there has been federal criminal wrongdoing."
Westinghouse and Hermanns were assigned to the investigation after McDevitt announced in mid-August that he was recusing himself in response to the letter and documents that Rodgers and I provided him.
The two of us have been seeking a meeting with Westinghouse and Hermanns since September to discuss the case and present new evidence. The meeting is not yet scheduled because, according to Rodgers, Westinghouse and Hermanns need more time to go through the voluminous RPS documents trail.
Rodgers says she contacted Westinghouse by phone in mid-November and came away encouraged by his expressed commitment to the case.
"He [Westinghouse] said they were deeply committed to this investigation," Rodgers said, "and he wanted to reiterate that."
One concern both she and Westinghouse have, Rodgers acknowledged, is whether the statute of limitations on applicable federal criminal statutes may have expired. It was an issue Westinghouse alluded to in an October 5th letter in which he reported that part of the assignment was to determine "whether at this late date, there are any remaining federal criminal offenses that are subject to prosecution."
Rodgers said that in their phone conversation Westinghouse told her "it looks like there will be several cases of the statute of limitations expiring and that we'll have to sit down and talk about it."
Still, Rodgers said, she is encouraged by what Westinghouse told her about the thoroughness of the investigation, including numerous trips he's made to Spokane and undertaking a fresh review of the RPS document trail.
"As we were talking," Rodgers said, "he told me that one of his interns had come by that day and told him they'd received another thirteen hundred pages of documents that needed to be reviewed."
Rodgers said Westinghouse assured her that she and I would get our meeting with the investigators, but not until they could "get up to speed" on the documents.
Since filing our letter and materials with McDevitt in August, Rodgers and I have written and been in contact by phone with Congressional oversight committees, the Department of Justice's Inspector General and the Department's Office of Professional Responsibility.
We've also sought assistance from Washington state Congressional offices, including Senator Patty Murray who, as Camas Magazine readers (see "April Fooled") would recognize, played a remarkably active role in helping secure a $22.65 million loan for Cowles real estate companies over Rodgers's objections and the objections of then-Spokane Mayor John Talbott.
In a September 21st letter to Sen. Murray, Rodgers and I asserted that Murray's office had been misled by a December 1997 memo from McDevitt's former law partner, Mike Ormsby, in which Ormsby reported that a federally-backed loan from the city to River Park Square would be "properly collateralized."
"That was untrue," we wrote. "The facts are now very clear that the loan wasn't properly collateralized and that, as a consequence, federal grant funds for Spokane's poorest neighborhoods were jeopardized."
Murray responded with a September 26th letter reporting that she could not be of assistance in encouraging an investigation of River Park Square because "while I appreciate your concerns, this case is primarily a judicial matter and outside the limit of my authority."
Neither Sen. Maria Cantwell, nor Rep. Cathy McMorris Rodgers have yet responded to similar appeals seeking their assistance in securing an independent investigation of the River Park Square case.
END
Documents
Cherie Rodgers's Grievance
Jim McDevitt's Reply
October 5, 2007 Letter from Asst. U.S. Attorney Robert Westinghouse
Rodgers and Connor Letter to Sen. Patty Murray, Sept. 21, 2007
Attachment--Ormsby Memo to Murray's Office, Dec. 3, 1997
Murray's Response
Rule 1.7 as it existed at the time McDevitt was nominated
Copyright (c) 2007
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