By Solomon L. Wisenberg  

     Perhaps the strangest development in recent weeks in the Waco matter is the letter from Assistant United States Attorney ("AUSA") Bill Johnston to Attorney General Janet Reno [ * ] [ text of letter ] .

Solomon L. Wisenberg

Barnes & Thornburg, LLP  


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Johnston is the Chief of the Waco Division of the United States Attorney's Office for the Western District of Texas and has long been involved in Branch Davidian issues. He was the original AUSA in charge of the Davidian Investigation and helped draft the search warrant affidavit which served as the underpinning for the February 28, 1993, ATF raid on the Davidian Compound. Johnston's letter was released to the press within days of being sent to Reno and bears all the markings of a document written for publication. The letter, allegedly penned to inform Reno that elements within the Department of Justice ("DOJ") might be keeping information from the Attorney General, is unusual in several respects.

     For openers, Johnston goes out of his way to criticize both the DOJ and the FBI. He reiterates an earlier charge that the FBI compromised evidence during the Branch Davidian siege and also chastises DOJ for not criminally prosecuting two ATF supervisors who allegedly lied during an investigation of the ATF raid. It was not necessary to make either of these criticisms (and I express no opinion here as to whether or not the criticisms are valid) in order to inform Reno that materials were being hidden from her. Moreover, such gratuitous complaints are stunning coming from a supervisory official within the DOJ. DOJ made a policy decision not to prosecute the ATF officials in question. AUSA Johnston was free to resign from the Department in disgust, give up his supervisory position and go back to the line, or simply keep quiet. What is virtually unprecedented is for him to remain in his high profile management job while publicly taking pot shots at the Department.

     Johnston also paints a picture of himself in the letter as a pariah who has been punished in the past for speaking truth to power and who is now being set up as a possible scapegoat. While it is certainly conceivable that elements within DOJ Washington, angry at Johnston for allowing an independent filmmaker to view some of the physical evidence, were trying to set him up or keep him quiet, he is hardly a helpless whistleblower. This "pariah" remains the Chief of the Waco Division, six years after the ATF raid. He has lasted through three United States Attorneys since 1993. He is a darling of the statewide media and a favorite of Senator Phil Gramm and United States District Judge Walter Smith, the only federal district judge in Waco and a man of immense power. To go after Bill Johnston is to offend Senator Gramm and Judge Smith and not many defense attorneys in Waco or United States Attorneys in San Antonio want to do that. Johnston's letter implies that current United States Attorney Bill Blagg has been part of a longstanding effort to punish the Waco Division for an earlier (1993) letter that Johnston sent to Reno. This is a preposterous and unfair charge. Blagg, unlike Johnston, has absolutely no dog in the Waco hunt. He was a San Antonio criminal defense attorney while Johnston was stationed at the command post on the day of the ATF raid.

     Perhaps the oddest part of Johnston's letter pertains to his discussion of a three page fax sent to him by DOJ Washington a few days previously. The first page contained a paralegal's notes of a 1993 pre-trial interview of an FBI Special Agent. The second page was a printed summary of this and other interviews. The third page consisted of a partial FBI 302 (that is, typed interview notes) taken of another FBI Special Agent. Each of these pages related to the firing of military rounds into a concrete bunker (apart from the main wooden Davidian building) on April 19, 1993, the final day of the siege. Apparently the pages were not turned over to defense attorneys during the criminal trial or to plaintiffs' attorneys in the pending wrongful death action. (It has since been revealed that the military rounds were incendiary, thus contradicting longstanding FBI and DOJ assertions that no incendiary devices were fired by the FBI on the final day.) The second page listed Johnston as an interviewer of the first FBI Special Agent. According to Johnston, "[t]his suggests that I was present during the interview." In fact, it suggests that Johnston conducted the interview.

The second page also contained a handwritten "privileged" notation at the top and a handwritten "DOJ witness do not disclose" notation at the bottom. Johnston's letter hints strongly that forces within DOJ were keeping these pages (as well as other information) from Reno. But close examination of the fax banners at the top of the first page reveals, among other things, the following partially obscured words: "OFFICE OF ATTY GENERAL." Johnston also maintained that the words "military round" would have meant little to him in 1993. The paralegal's notes, however, reveal that the reference to "military gas rounds" was connected to a discussion of rebuttal evidence related to "Smoke from Bunker" which "came when these guys tried to shoot gas into the bunker." The printed summary on the second page noted that "SMOKE ON FILM CAME FROM ATTEMPT TO PENETRATE BUNKER W/1 MILITARY AND 2 FERRET ROUNDS." Thus, the notes definitely contain more than mere throwaway references to "military rounds." (This does not necessarily mean, however, that Johnston and his colleagues had to turn the notes over pursuant to Brady v. Maryland.)

     Some of the original criminal defense attorneys from the Davidian trial have stated that Johnston's latest letter to Attorney General Reno is more cya than whistleblowing in nature. They are obviously not impartial observers. Whether or not they are correct, the letter is certainly the latest unusual development in a very unusual case.

*   In the interest of full disclosure I should state that I formerly prosecuted cases in the Western District of Texas, though I had no involvement in the Branch Davidian matter. AUSA Johnston has often been mentioned as a future United States Attorney, and in the past I have also considered applying for that position. The opinions expressed in this article are my own, and are not those of my law firm, its clients, or Findlaw.

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