Flanigan Withdraws as Nominee for Deputy Attorney General

By Dan Eggen and R. Jeffrey Smith
Washington Post Staff Writers
Saturday, October 8, 2005

The Bush administration's choice for deputy attorney general has withdrawn his nomination amid mounting questions from Senate Democrats over his dealings with indicted Republican lobbyist Jack Abramoff and over his role in shaping controversial interrogation policies.

Timothy E. Flanigan wrote President Bush on Thursday that he was dropping out as a candidate because of "uncertainty concerning the timing of my confirmation," which has been delayed several times since Bush nominated him in May.

But members of the Senate Judiciary Committee said they were surprised by Flanigan's decision, given that the panel had just scheduled a second hearing on Oct. 18 and had agreed to vote on Flanigan Oct. 20. Aides said that a new nominee will take longer than that to vet and approve.

If Flanigan had appeared to testify at a second hearing, he was likely to face additional questioning from Democrats in two areas of recent controversy: the administration's decision-making on the treatment of detainees in the war on terrorism; and links between senior administration officials and Abramoff, who is the subject of a broad federal investigation of his lobbying activities and has been indicted on bank fraud charges in an unrelated case in Florida.

Many of the committee's Democrats had accused Flanigan of dodging questions and said his withdrawal should not be used to close off further inquiries.

"While Mr. Flanigan's nomination has been withdrawn, troubling questions remain about the Bush administration's torture policies and Abramoff's dealings with the administration and the Republican leadership of Congress," said Sen. Richard J. Durbin (D-Ill.).

Several Democrats had also complained about Flanigan's lack of experience as a courtroom prosecutor. Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, compared Flanigan to the former head of the Federal Emergency Management Agency, Michael D. Brown, who resigned amid complaints over the U.S. response to Hurricane Katrina.

Flanigan is a senior vice president and general counsel to Tyco International. Company spokeswoman Sheri Woodruff said he will remain at the company in those positions.

Justice Department officials declined to comment publicly about Flanigan's withdrawal because it involved a personnel issue. One official said it had nothing to do with concerns over torture policies or possible disclosures in the Abramoff case, but was the result of persistent delays in the confirmation process that had complicated Flanigan's professional and personal life.

Attorney General Alberto R. Gonzales -- who was confirmed amid his own controversy earlier this year -- has struggled to fill many key slots and has complained to Senate leaders about delays in the nomination process. The head of the Criminal Division, Alice Stevens Fisher, was recently given a recess appointment by Bush after her April confirmation stalled.

Flanigan served as Gonzales's deputy in the White House counsel's office, where he participated in White House discussions about an Aug. 1, 2002, memo prepared by the Justice Department suggesting strategies that officials could use to defend themselves against criminal prosecution for torture.

The memo, drafted at the request of the CIA, contended that only physically punishing acts "of an extreme nature" would be prosecutable, and that those committing torture with express presidential authority or without the intent to commit harm were probably immune from prosecution.

During at least one of the meetings attended by Flanigan, those involved heard detailed descriptions of the interrogation methods the CIA wanted to use, such as open-handed slapping, the threat of live burial and "waterboarding," a technique that produces the sensation of drowning.

Flanigan said at his Judiciary Committee hearing that certain aspects of the 2002 memo were "inappropriate in a sort of sophomorish way" and that he supported the administration's revision of that memo in December 2004.

But he declined to say, in response to Democratic senators' questions, whether he had expressed support or opposition for the original version and said the Justice Department's briefings about the memo were "reasonable." Flanigan also declined to say whether specific techniques would be allowed under administration rules and wrote that he did "not believe that the term 'inhumane' treatment is susceptible to a succinct definition."

In the Abramoff case, Flanigan had direct dealings with the lobbyist after he left the White House and became Tyco's general counsel; in that post, he was responsible for overseeing a contract Tyco signed in 2003 with Greenberg Traurig, Abramoff's employer at the time.

Abramoff had promised to help defeat proposals for imposing tax penalties on firms -- such as Tyco -- that were incorporated in offshore banking havens, and he bragged to Flanigan about his connections to then-House Majority Leader Tom DeLay (R-Tex.) and to White House senior adviser Karl Rove, according to Flanigan's statements to the committee last month.

In April 2004, Greenberg Traurig informed Tyco that Abramoff had misspent $1.5 million of the more than $2 million that Tyco had paid him in lobbying fees, by diverting the funds to companies that Abramoff controlled. Flanigan assured the committee, in his written answers, that he had cooperated in the firm's investigation and also that Tyco had turned over pertinent evidence to the Justice Department.

But the Democrats then wondered why Flanigan -- who said he was "shocked and disappointed" by Greenberg Traurig's disclosure -- had not caught the alleged misconduct himself. Flanigan responded that Abramoff had fooled even his own employer.

He also said that he had turned over to his company, for use in its lobby, a $250 digital picture frame that Abramoff gave him as a Christmas gift in 2003.

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