By Amy Goldstein and Carrie Johnson
Washington Post Staff Writers
Wednesday, August 1, 2007
The night before the government secured a guilty plea from the manufacturer of the addictive painkiller OxyContin, a senior Justice Department official called the U.S. attorney handling the case and, at the behest of an executive for the drugmaker, urged him to slow down, the prosecutor told the Senate Judiciary Committee yesterday.
John L. Brownlee, the U.S. attorney in Roanoke, testified that he was at home the evening of Oct. 24 when he received the call on his cellphone from Michael J. Elston, then chief of staff to the deputy attorney general and one of the Justice aides involved in the removal of nine U.S. attorneys last year.
Brownlee settled the case anyway. Eight days later, his name appeared on a list compiled by Elston of prosecutors that officials had suggested be fired.
Brownlee ultimately kept his job. But as Attorney General Alberto R. Gonzales confronts withering criticism over the dismissals, the episode in the OxyContin case provides fresh evidence of efforts by senior officials in the department's headquarters to sway the work of U.S. attorneys' offices.
Justice Department officials said it was not unusual for senior members to weigh in on major criminal cases, and a spokesman, Dean Boyd, said the department "encourages healthy internal debate and discussion on complex cases like this one."
Several former federal prosecutors also said that defense attorneys routinely try to appeal to high-ranking department officials in an effort to derail prosecutions. Still, Brownlee and other former prosecutors said nighttime calls such as Elston's, coming just hours before the end of a long, complex case, are unorthodox, particularly when the department's criminal division already has signed off on a case.
Brownlee said the head of the criminal division had authorized him that afternoon to execute the plea agreement. In his testimony and in an interview afterward, Brownlee recounted that he asked Elston whether he was calling for his boss, Deputy Attorney General Paul J. McNulty, and Elston replied, "No."
"I told him to leave it alone, to go away," Brownlee said, "and he did."
But Elston's attorney, Robert N. Driscoll, said his client had telephoned Brownlee at the direction of McNulty, who that evening had received an appeal for more time by Mary Jo White, a defense lawyer representing an executive for OxyContin's manufacturer, Purdue Pharma. White is a former Manhattan U.S. attorney.
A Justice official, who spoke about internal deliberations on the condition of anonymity, also said McNulty had asked his chief of staff to place the call.
Elston was McNulty's top aide until he stepped down in June amid the controversy over the prosecutors' firings. McNulty also has resigned, effective Friday, becoming the sixth senior aide to Gonzales involved in the controversy to leave the department in recent months.
Brownlee -- who testified that he had not received negative performance reviews -- said that he was "concerned" about his name appearing on the firing list and that he spoke to McNulty about it. "He assured me that Mr. Elston was a good man," Brownlee said. "I had my own views."
In addition to assembling the Nov. 1 list of five prosecutors, including Brownlee, who were recommended for dismissal, Elston also played a controversial role in trying to quell the political uproar after the firings took place. Four of those prosecutors have told Congress that Elston warned them that Gonzales might criticize them in public if they spoke out about the circumstances of their removal.
Yesterday, Driscoll said on Elston's behalf that there was no connection between Brownlee's appearance on a firing list and the fact he had settled the case the next day in spite of Elston's call for more time. Driscoll said that the Nov. 1 list reflected recommendations his client had received from others in the administration, not his own views.
The OxyContin case arose from a four-year investigation into the marketing of a powerful drug that was, according to federal drug officials, a direct or partial cause of 146 deaths in 2000 and 2001 and possibly in 318 others during that period.
After the settlement agreement last fall, prosecutors in May announced a $635 million plea agreement with Purdue Pharma. Under its terms, the company entered a guilty plea to a single felony count, and three former officials pleaded guilty to misdemeanor charges. The terms were criticized as too lenient, both by consumer advocates, such as Public Citizen's Health Research Group, and Arlen Specter (Pa.), the Senate Judiciary Committee's ranking Republican.
Two former Justice Department officials from Democratic administrations and one from a Republican administration said that headquarters officials sometimes called U.S. attorneys' offices to relay concerns from defense lawyers, particularly in sensitive cases where defendants had made elaborate presentations to avert indictment. Two weeks before the plea agreement, lawyers for Purdue Pharma and the former executives met with criminal division officials, including a McNulty aide, people involved in the case said.
Others said Elston's timing and message were atypical. "Normally, there's a lot of deference given to U.S. attorneys in matters of timing," said Michael R. Bromwich, a former Justice Department inspector general. "The kind of micromanagement that this suggests could easily have a chilling effect in some circumstances."