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No evidence of election crime, former U.S. attorney says

By Richard Roesler
Staff writer
May 20, 2007

WENATCHEE - Fired U.S. Attorney John McKay said Sunday that the 2004 razor-thin governor’s election in Washington "smelled really bad," but that an extensive, little-publicized investigation by FBI agents and federal prosecutors found no evidence of a federal crime.

"As a citizen and as someone who watched it, I didn’t like it," the Republican former official said. "I didn’t like what happened at all. Through incompetence, through a mistake, whatever it was, I didn’t like the way the election was handled." But a public-corruption case, he said, needed "conclusive evidence of a conspiracy" – something the federal task force was unable to find.

McKay was the breakfast speaker at a weekend gathering of Washington state GOP moderates, the Mainstream Republicans.

Although some political observers have speculated that McKay, a longtime Republican at odds with an unpopular Bush administration, could be a strong crossover political candidate, he said today that he has no imminent political aspirations.

"I have no intention of running for political office now…And I don’t expect to anytime soon," he said.

McKay has been at the center of political storm recently, as one of eight U.S. attorneys fired last year in a controversial move by Attorney General Alberto Gonzales and his deputy Paul McNulty. McNulty has decided to step down by the end of the summer.

"I still don’t know why the Department of Justice fired me," McKay told the group today. Although U.S. attorneys serve at the pleasure of the president, he, several of his former colleagues and members of Congress have questioned whether they were illegally targeted due to political motives. In McKay’s case, the theory – denied by Justice officials – is that the administration was unhappy with McKay’s decision not to bring election charges. Federal prosecutors, McKay says, are supposed to be insulated from political considerations, especially in election fraud or public-corruption cases.

McKay said that when he was called Dec. 7 and told to resign, he intended to leave quietly.

"Frankly, my model in this was Colin Powell," he said. "…I didn’t want to be in the public arena handing spears to the Democrats to throw at the White House."

Yet as administration officials offered a changing timeline and varying public explanations, he said, he and at least 6 of the others decided to speak out.

"If we did remain silent, we were part of the lie," he said.

In New Mexico, U.S. attorney David Iglesias was fired after refusing the requests of a Republican U.S. representative and senator to speed up an indictment involving Democrats. Democrats have also alleged that U.S. Attorney Carol Lam’s firing was related to her prosecution of U.S. Rep. Randy "Duke" Cunningham. An investigation by the Associated Press found last week that at least five of the fired U.S. attorneys, including McKay, "were targets of Republican complaints that they were lax on voter fraud."

Testifying last week before the House Judiciary Committee, Gonzales said he wasn’t sure why his former chief of staff has put McKay on the list.

"That’s something you’d have to ask others involved in this process," he said in response to a North Carolina congressman’s questioning.

"At the end of the day, the recommendations reflected the views of the deputy attorney general," Gonzales told reporters in Washington, D.C. last week, following Democratic calls for his resignation.

In Wenatchee, McKay used a long list of adjectives to describe the controversial 2004 election that ended – after three counts and a months-long court fight – with Democrat Chris Gregoire winning the governor’s office by 133 votes. Republican Dino Rossi, who won the first two counts, is mulling another run next year.

The resulting allegations of double-voting, felon-voting and voting by dead people suggested an election that was "troubling", "creepy", "bad", "stinky" and "nasty," McKay said Sunday.

"I didn’t like what I saw," McKay said. "I thought that the election smelled really, really bad, but what I think and even what it smells like is not relevant."

He said he quietly convened "an extensive inquiry" into the election at the time. Five federal prosecutors and several FBI agents were involved, he said. Among their research: meeting with Building Industry Association of Washington executive director Tom McCabe, who was leading a push to find enough invalid votes to throw out the election.

"Every FBI agent and every federal prosecutor who looked at the evidence concluded that it was completely insufficient to move forward in a federal investigation," he said.

The agents and lawyers also combed all the testimony and documents in a weeks-long court fight over the election, he said.

On Sunday, conservative political blogger Stefan Sharkansky showed McKay some of what Sharkansky says are about 500 illegal votes he’s found by painstakingly matching voter data against ballot envelopes and signatures obtained in two years of public records requests.

"At the very least, it was negligence in the (King County) elections office that you’d want somebody to look at," said Sharkansky, who has documented duplicate ballots and other problems on his website, www.soundpolitics.com.

McKay declined to review the data, saying that it’s no longer his job. He called Sharkansky’s findings "very troubling stuff" and suggested that Sharkansky present the evidence to the FBI and to the current U.S. Attorney, Jeff Sullivan. But he repeatedly cautioned that an improperly cast vote, or errors, or incompetence aren’t enough to trigger federal corruption charges. That, he said, takes conclusive evidence of a conspiracy – like a whistleblower inside an elections office. And that, McKay said, is exactly what his task force was unable to find.

"Votes that were not in compliance with the law don’t mean that a crime’s been committed," he said.

McKay said his task force looked at 100 cases of alleged voting by felons who hadn’t had their voting-rights restored, but decided that a criminal case would be very hard to win.

"The main reason was because the state sent them ballots," he said. Yes, the votes were illegal, he said, but it would be hard to get a jury to convict a person who’d filled out a form mailed to them by election officials.

And the feds are extremely reluctant to intervene in election cases unless they’re clear-cut, he said.

"You didn’t see FBI agents going flooding into south Florida in Bush v. Gore," he said, referring to the allegations of widespread election irregularities in the 2000 presidential election.

"I remain today concerned about what I saw in that (2004 governor’s) election," McKay said. "To our knowledge to today, there was not a crime committed."

The Associated Press contributed to this report.

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