Official: Justice Dept. slowed probe into phone jamming

McClatchy NewspapersDecember 19, 2007 

WASHINGTON — The Justice Department delayed prosecuting a key Republican official for jamming the phones of New Hampshire Democrats until after the 2004 election, protecting top GOP officials from the scandal until the voting was over.

An official with detailed knowledge of the investigation into the 2002 Election-Day scheme said the inquiry sputtered for months after a prosecutor sought approval to indict James Tobin, the northeast regional coordinator for the Republican National Committee.

The phone-jamming operation was aimed at preventing New Hampshire Democrats from rounding up voters in the close U.S. Senate race between Republican Rep. John Sununu and Democratic Gov. Jeanne Shaheen. Sununu's 19,000-vote victory helped the GOP regain control of the Senate.

While there were guilty pleas in the New Hampshire investigation prior to the 2004 presidential election, involvement of the national GOP wasn't confirmed. A Manchester, N.H., policeman quickly traced the jamming to Republican political operatives in 2003 and forwarded the evidence to the Justice Department for what ordinarily would be a straightforward case.

However, the official, who requested anonymity because of the sensitivity of the matter, told McClatchy that senior Justice Department officials slowed the inquiry. The official didn't know whether top department officials ordered the delays or what motivated those decisions.

The official said that Terry O'Donnell, a former Pentagon general counsel who was representing Tobin, was in contact with senior department officials before Tobin was indicted.

In October, the House Judiciary Committee opened an investigation to determine whether partisan politics undermined the federal probe.

The official said that department officials rejected prosecutor Todd Hinnen's push to bring criminal charges against the New Hampshire Republican Party.

Weeks before the 2004 election, Hinnen's supervisors directed him to ask a judge to halt action temporarily in a Democratic Party civil suit against the GOP so that it wouldn't hurt the investigation, although Hinnen had expressed no concerns that it would, the official said.

Paul Twomey, a lawyer for the state Democratic Party, said the delay spared Republicans embarrassment at the peak of the campaign because a pending deposition would have revealed that several state GOP officials knew about the scheme, which was hatched by their executive director, Charles McGee. The delay also stalled the case beyond its statute of limitations, depriving Democrats of full discovery, he said.

Citing longstanding policy, spokesman Peter Carr said the Justice Department wouldn't comment on its investigation.

Four men have been convicted in the scandal, including McGee and Republican consultant Allen Raymond, who arranged to jam the phones. Their cooperation led to Tobin's indictment.

In mid-October 2004, Tobin resigned as the Bush-Cheney campaign's regional director after a news report disclosed allegations of his involvement. Bush narrowly lost New Hampshire, the only state he won in 2000 that went for Democrat John Kerry.

Hinnen, now an aide to Democratic presidential candidate and Delaware Sen. Joseph Biden, said he couldn't comment on the investigation.

Tobin was convicted in December 2005 of charges related to the scheme, but won a new trial on appeal. His lawyers didn't respond to e-mailed questions.

National Republican committees have paid more than $6 million to Washington law firms to defend Tobin and fight the civil suit, raising suspicions that there's more to the scandal.

Rep. Paul Hodes, a New Hampshire Democrat who requested the House inquiry, said he considers the delay in indicting Tobin to be ``a miscarriage of justice.''

At the outset, the federal investigation hit a snag when Thomas Colantuono, the U.S. attorney for New Hampshire, withdrew from the case in early 2003 because his wife was a Bush-Cheney campaign worker. Justice Department officials then assigned the case to Hinnen, a prosecutor in the Computer Crimes Section.

HOW THE INVESTIGATION BEGAN

The official with detailed knowledge of the case gave this account of how the case unfolded:

In early 2004, Hinnen got approval from John Malcolm, the deputy chief of the Justice Department's Criminal Division, in early 2004 to investigate Tobin. Malcolm left the department soon afterward.

Hinnen then sought approval from Malcolm's successor, Laura Parsky, to prosecute Tobin but wasn't told until late summer to write a formal, detailed prosecution memo, which he did in early September.

On Oct. 1, 2004, Hinnen got the green light to prepare an indictment, but was directed to first give Tobin lawyer O'Donnell a chance to make his client's case. O'Donnell requested delays and then told Hinnen, Parsky and other senior officials that an unidentified lawyer had advised Tobin that the jamming was legal.

Hinnen argued to his superiors that it was irresponsible for the department to allow Tobin to serve as a Bush campaign official when it had evidence that he'd hindered people from voting.

In late October 2004, Justice Department officials told Hinnen it was too close to the election to bring such a politically sensitive indictment, putting it off until late November.

In early 2005, Hinnen submitted a lengthy memo arguing for a criminal indictment treating the New Hampshire Republican State Committee as a corporate entity. Hinnen noted that the party lacked an ethics policy at the time of the phone jamming and that its officials had refused to share with prosecutors the results of an internal investigation of the scheme.

Craig Donsanto, the chief of the department's Election Crimes Branch, objected to an indictment, arguing that the state GOP's ``shareholders'' are the voters.

Ultimately, John Keeney, a career deputy assistant attorney general, directed Hinnen to drop the idea.

Keeney, Donsanto and Parsky, now a San Diego County judge, didn't respond to phone calls.

In August, 2005, Hinnen was detailed for 18 months to a National Security Council job in the White House, leaving other prosecutors to handle Tobin's trial.

McClatchy Newspapers 2007

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