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FOLLOWING IS TEXT OF WASH POST ARTICLE STATING PROSECUTOR WHO DISCLOSED FBI USE OF INCINDIARY DEVICES WILL BE INDICTED.
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Former Assistant U.S. Attorney Bill Johnston is facing fraud charges for potentially misleading federal investigators looking into the Waco tragedy. (Rod Aydelotte - AP)
By David A. Vise
Washington Post Staff Writer
Friday, September 1, 2000; Page A01
The whistleblower who sparked a probe into whether the federal government was responsible for the deaths of 74 Branch Davidians near Waco, Tex., has been notified he faces criminal charges after acknowledging he withheld notes from special counsel John C. Danforth's investigators and misled a federal grand jury about the papers.
Prosecutors have told former assistant U.S. attorney William Johnston they will seek to indict him on charges of perjury, obstruction of justice, making false statements and obstructing a congressional investigation unless he agrees to a plea bargain.
Though he acknowledges withholding three pages of notes he feared would be used to smear him, Johnston, 41, asserted that he did not commit a crime and will not plead guilty to a felony, which would cause him to lose his law license in Texas.
If Danforth's prosecutors follow through on their threat to indict Johnston, it would mark the first and only criminal prosecution to come out of the $12 million probe, which began a year ago with Johnston's disclosure of evidence that FBI agents had used incendiary tear-gas projectiles during the 1993 raid in Texas.
It also would stand in sharp contrast to the former senator's decision not to indict several other people who committed wrongdoing, including a junior FBI lawyer who misled investigators.
What makes Johnston's case different, sources familiar with it said, is that he triggered the Danforth probe and then did not cooperate fully with investigators, drawing the ire of front-line prosecutors working on the case.
Danforth's "treatment of Bill is completely the opposite of the way he treated other people who misstepped during the course of this investigation," said Michael Kennedy, Johnston's lawyer. "The only distinction I can see between Bill's mistakes and the mistakes of other people is that he is a whistleblower who caused a tremendous amount of embarrassment."
Danforth, his staff and Justice Department officials all declined to comment on any aspect of the pending indictment.
On Aug. 31, 1999, Johnston wrote a letter to Attorney General Janet Reno, contending that FBI agents had fired potentially incendiary devices at the Branch Davidian compound before it went up in flames during the now infamous FBI raid of April 19, 1993.
Johnston contended in a written statement to The Washington Post that he sent the letter directly to Reno after notifying his immediate superiors, to no avail, that the attorney general and other senior law enforcement officials were misleading the public and Congress with statements that no potentially flammable devices had been used.
Johnston discovered the incendiary projectiles after allowing documentary filmmaker Mike McNulty to search through evidence of the raid kept in a Waco storage room. Texas law enforcement officials who examined the tear-gas canisters confirmed that they had the potential to catch fire.
Johnston's letter to Reno caused a huge controversy when it became public because it raised the possibility that the FBI may have been responsible for starting the blaze, as some relatives of the dead and FBI critics had long claimed.
In fact, Danforth's probe determined last month that the FBI did not cause the fire, and a jury in a civil lawsuit brought by families of the dead also found in favor of the FBI. Danforth also concluded that there was no "massive cover-up" by the government of the use of potentially flammable devices.
Since 1993, Johnston has been a critic of the FBI's handling of the Waco siege. He wrote Reno on March 23, 1993, for example, to complain that FBI agents had "altered the crime scene" where four law enforcement agents were shot and killed by pushing Branch Davidian vehicles away from the compound.
Johnston admits that he withheld from Danforth's investigators several pages of notes he took in 1993 because he feared they would be used by adversaries inside the Justice Department to damage his reputation by making it appear he had covered up the FBI's use of flammable devices.
Johnston's notes included the word "pyrotechnic" and the abbreviation "incind," which Kennedy said stood for "incendiary."
Johnston said he took the notes as he prepared the ultimately successful case against Branch Davidians who had shot and killed the four Bureau of Alcohol, Tobacco and Firearms agents in February 1993, two months before FBI agents stormed the compound and ended the 51-day siege at Waco.
Johnston did not recognize the significance of those words at the time because he was focused on his prosecution, Kennedy said. Other government officials have acknowledged, at congressional hearings and elsewhere, learning long before 1999 about incendiary tear-gas rounds being fired, without recognizing the importance of that information at the time.
Johnston said he did not recall taking the notes he intentionally failed to turn over. He also claimed he has been subjected to intimidation tactics, including an anonymous fax to him from the U.S. Attorney's Office in San Antonio of notes showing that he had attended a 1993 meeting at which an FBI agent referred to the use of "military rounds." In fact, Kennedy said, Johnston did not attend the meeting.
"The implied threat was clear," Johnston said. "I had better keep quiet about the incendiary ammo or else someone was planning to make it look as though I had concealed its use myself."
Kennedy also acknowledged that when Johnston was questioned before a grand jury and privately by Danforth's prosecutors, Johnston was not truthful about withholding the notes. Johnston also concedes that "I was at times less than candid with their inquest."
After 17 years as a prosecutor, Johnston resigned as the senior U.S. attorney in Waco last February after becoming a pariah for "breaking the code of silence," Kennedy said.
Kennedy claimed the real reason Johnston is being singled out by Danforth--while an FBI lawyer and several others who committed similar errors are not--is that he spoke out.
"It is ironic that Danforth sees the major [problem] is the public's loss of confidence in government as a result of people saying government did a lot of bad things," Kennedy said. "Danforth blames the media, filmmakers with dark theories and whistleblowers. These are the people in his mind who are the real culprits, because they have created public cynicism about government."
When he released his Waco report last month, Danforth said, "Although the government did nothing evil on April 19, 1993, the failure of some of its employees to fully and openly disclose to the American people the use of pyrotechnic devices undermined public confidence in government and caused real damage to our country."
Danforth has told Congress that he has nearly completed his work as special counsel and has no intention of bringing criminal charges against a junior FBI attorney who misled investigators because it would be like "hitting a gnat with a sledgehammer."
In his written statement, Johnston said that over the past year, prosecutors working for Danforth have attempted to "coerce" him into pleading guilty.
"The Danforth people will . . . need to account for their own actions, specifically for the climate of deceit, intimidation, vindictiveness and scant regard for constitutional rights in which their supposed search for truth has been conducted.
"Mr. Danforth's prosecutors and investigators have lied to me, made me false promises, cursed me with profanity and threatened to throw me in jail. [Danforth prosecutor] James Martin told my law partner in Waco that my 'life is over.' Not my career, mind you; my life."
Kennedy said he did not believe Danforth was aware of the hardball tactics allegedly employed by his prosecutors.
U.S. District Judge Walter Smith Jr., who presided over the criminal and civil Waco trials, recently attempted unsuccessfully to contact Danforth to intervene on behalf of Johnston, who is highly regarded by the defense bar and other legal officials in Waco.
After being rebuffed by prosecutors working for the former senator, Smith responded by ordering the postal inspectors conducting the probe for Danforth out of the offices they occupied in his Waco courthouse.
Kennedy said prosecutors sent him a letter Wednesday outlining the scope of the pending indictment. He also said his client had not been offered the chance to plead guilty to a lesser misdemeanor charge that would not lead to revocation of his law license.
"They are going to indict," Kennedy said. "The only question is when."
FOLLOWING IS TEXT OF WASH POST ARTICLE STATING PROSECUTOR WHO DISCLOSED FBI USE OF INCINDIARY DEVICES WILL BE INDICTED.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Former Assistant U.S. Attorney Bill Johnston is facing fraud charges for potentially misleading federal investigators looking into the Waco tragedy. (Rod Aydelotte - AP)
By David A. Vise
Washington Post Staff Writer
Friday, September 1, 2000; Page A01
The whistleblower who sparked a probe into whether the federal government was responsible for the deaths of 74 Branch Davidians near Waco, Tex., has been notified he faces criminal charges after acknowledging he withheld notes from special counsel John C. Danforth's investigators and misled a federal grand jury about the papers.
Prosecutors have told former assistant U.S. attorney William Johnston they will seek to indict him on charges of perjury, obstruction of justice, making false statements and obstructing a congressional investigation unless he agrees to a plea bargain.
Though he acknowledges withholding three pages of notes he feared would be used to smear him, Johnston, 41, asserted that he did not commit a crime and will not plead guilty to a felony, which would cause him to lose his law license in Texas.
If Danforth's prosecutors follow through on their threat to indict Johnston, it would mark the first and only criminal prosecution to come out of the $12 million probe, which began a year ago with Johnston's disclosure of evidence that FBI agents had used incendiary tear-gas projectiles during the 1993 raid in Texas.
It also would stand in sharp contrast to the former senator's decision not to indict several other people who committed wrongdoing, including a junior FBI lawyer who misled investigators.
What makes Johnston's case different, sources familiar with it said, is that he triggered the Danforth probe and then did not cooperate fully with investigators, drawing the ire of front-line prosecutors working on the case.
Danforth's "treatment of Bill is completely the opposite of the way he treated other people who misstepped during the course of this investigation," said Michael Kennedy, Johnston's lawyer. "The only distinction I can see between Bill's mistakes and the mistakes of other people is that he is a whistleblower who caused a tremendous amount of embarrassment."
Danforth, his staff and Justice Department officials all declined to comment on any aspect of the pending indictment.
On Aug. 31, 1999, Johnston wrote a letter to Attorney General Janet Reno, contending that FBI agents had fired potentially incendiary devices at the Branch Davidian compound before it went up in flames during the now infamous FBI raid of April 19, 1993.
Johnston contended in a written statement to The Washington Post that he sent the letter directly to Reno after notifying his immediate superiors, to no avail, that the attorney general and other senior law enforcement officials were misleading the public and Congress with statements that no potentially flammable devices had been used.
Johnston discovered the incendiary projectiles after allowing documentary filmmaker Mike McNulty to search through evidence of the raid kept in a Waco storage room. Texas law enforcement officials who examined the tear-gas canisters confirmed that they had the potential to catch fire.
Johnston's letter to Reno caused a huge controversy when it became public because it raised the possibility that the FBI may have been responsible for starting the blaze, as some relatives of the dead and FBI critics had long claimed.
In fact, Danforth's probe determined last month that the FBI did not cause the fire, and a jury in a civil lawsuit brought by families of the dead also found in favor of the FBI. Danforth also concluded that there was no "massive cover-up" by the government of the use of potentially flammable devices.
Since 1993, Johnston has been a critic of the FBI's handling of the Waco siege. He wrote Reno on March 23, 1993, for example, to complain that FBI agents had "altered the crime scene" where four law enforcement agents were shot and killed by pushing Branch Davidian vehicles away from the compound.
Johnston admits that he withheld from Danforth's investigators several pages of notes he took in 1993 because he feared they would be used by adversaries inside the Justice Department to damage his reputation by making it appear he had covered up the FBI's use of flammable devices.
Johnston's notes included the word "pyrotechnic" and the abbreviation "incind," which Kennedy said stood for "incendiary."
Johnston said he took the notes as he prepared the ultimately successful case against Branch Davidians who had shot and killed the four Bureau of Alcohol, Tobacco and Firearms agents in February 1993, two months before FBI agents stormed the compound and ended the 51-day siege at Waco.
Johnston did not recognize the significance of those words at the time because he was focused on his prosecution, Kennedy said. Other government officials have acknowledged, at congressional hearings and elsewhere, learning long before 1999 about incendiary tear-gas rounds being fired, without recognizing the importance of that information at the time.
Johnston said he did not recall taking the notes he intentionally failed to turn over. He also claimed he has been subjected to intimidation tactics, including an anonymous fax to him from the U.S. Attorney's Office in San Antonio of notes showing that he had attended a 1993 meeting at which an FBI agent referred to the use of "military rounds." In fact, Kennedy said, Johnston did not attend the meeting.
"The implied threat was clear," Johnston said. "I had better keep quiet about the incendiary ammo or else someone was planning to make it look as though I had concealed its use myself."
Kennedy also acknowledged that when Johnston was questioned before a grand jury and privately by Danforth's prosecutors, Johnston was not truthful about withholding the notes. Johnston also concedes that "I was at times less than candid with their inquest."
After 17 years as a prosecutor, Johnston resigned as the senior U.S. attorney in Waco last February after becoming a pariah for "breaking the code of silence," Kennedy said.
Kennedy claimed the real reason Johnston is being singled out by Danforth--while an FBI lawyer and several others who committed similar errors are not--is that he spoke out.
"It is ironic that Danforth sees the major [problem] is the public's loss of confidence in government as a result of people saying government did a lot of bad things," Kennedy said. "Danforth blames the media, filmmakers with dark theories and whistleblowers. These are the people in his mind who are the real culprits, because they have created public cynicism about government."
When he released his Waco report last month, Danforth said, "Although the government did nothing evil on April 19, 1993, the failure of some of its employees to fully and openly disclose to the American people the use of pyrotechnic devices undermined public confidence in government and caused real damage to our country."
Danforth has told Congress that he has nearly completed his work as special counsel and has no intention of bringing criminal charges against a junior FBI attorney who misled investigators because it would be like "hitting a gnat with a sledgehammer."
In his written statement, Johnston said that over the past year, prosecutors working for Danforth have attempted to "coerce" him into pleading guilty.
"The Danforth people will . . . need to account for their own actions, specifically for the climate of deceit, intimidation, vindictiveness and scant regard for constitutional rights in which their supposed search for truth has been conducted.
"Mr. Danforth's prosecutors and investigators have lied to me, made me false promises, cursed me with profanity and threatened to throw me in jail. [Danforth prosecutor] James Martin told my law partner in Waco that my 'life is over.' Not my career, mind you; my life."
Kennedy said he did not believe Danforth was aware of the hardball tactics allegedly employed by his prosecutors.
U.S. District Judge Walter Smith Jr., who presided over the criminal and civil Waco trials, recently attempted unsuccessfully to contact Danforth to intervene on behalf of Johnston, who is highly regarded by the defense bar and other legal officials in Waco.
After being rebuffed by prosecutors working for the former senator, Smith responded by ordering the postal inspectors conducting the probe for Danforth out of the offices they occupied in his Waco courthouse.
Kennedy said prosecutors sent him a letter Wednesday outlining the scope of the pending indictment. He also said his client had not been offered the chance to plead guilty to a lesser misdemeanor charge that would not lead to revocation of his law license.
"They are going to indict," Kennedy said. "The only question is when."
