David W. Marston, the federal prosecutor in Philadelphia whose dismissal last week raised charges of a criminal cover-up, said last night that he told his Justice Department superior only once about the "possible" criminal liability of the congressman who had urged his firing.
"I thought I put them on notice," the ousted Republican U.S. attorney said shortly after the department had released affidavits describing official awareness of Martson's preliminary investigation of Rep. Joshua Eilberg (D-Pa.). Eilberg's call to President Carter in early November triggered a move to expedite Martson's replacement.
The sworn statements of nine Justice Department officials support previous public claims that Attorney General Griffin B. Bell was no aware of any such investigation until a few weeks ago.
The statements show that Eilberg's name had surfaced only in a preliminary way in an investigation of possible financial fraud at Hannemann Hospital in Philadelphia when Martson told Russell T. Baker Jr., a top Criminal Division official, last Nov. 16 that the congressman was trying to oust him.
That information never reached Bell at the time, the affidavits show, because it did not get passed up the chain of command.
The statements leave unresolved the conflict over who Baker told about Eilberg's potential involvement.
Baker said he told his boss, Criminal Division chief Benjamin R. Civiletti, and was told to advise Bell's top patronage aide, Associate Attorney General Michael J. Egan. He did not tell Egan, Baker said. Civiletti said he never heard anything about the investigation.
The controversy over Martson's ouster centers on whether President Carter or Bell were aware of the investigation of Eilberg when he was urging they replace the Philadelphia prosecutor last year. It was announced Tuesday that an internal Justice Department investigation, based on the affidavits, had found no wrong doing on their part.
This did not quiet the political furor Martson's dismissal set off, however.
Martson, for instance, attacked that internal investigative precedure again yesterday during an appearance at the National Press Club.He said the circumstances of the Eilberg phone call to the President should be investigated by a grand jury.
"I don't think we ought to have a double standard where we use a different process where important people are involved," he said.
On Capitol Hill, meanwhile, Republican strategists were said to be considering whether there was enough substance to the so-called Martson "massacre" to warrant asking that a Watergate-type select committee be formed.