FBI praise for the work of ousted Philadelphia U.S. Attorney David W. Marston was deleted by the Justice Department from a key affidavit before the document was made public.
Sen. Malcolm Wallop (R-Wyo.), who yesterday revealed the excised passage in the sworn statement of Justice official Russell T. Baker Jr., said that the action raised new questions about whether Carter administration officials concealed information on the Marston firing to "protect their own image."
Particularly "outrageous," Wallop said, was a deletion of a Baker conversation with Nell Welch, the top FBI official in Philadelphia, last September.
"Welch urged me to report back to Washington that Philadelphia was a 'cesspool' of political corruption, that Marston was doing an excellent job, and that it was important to retain him," Wallop quoted from the uncensored version of the Baker affidavit. "I reported that to Mr. Civiletti and Associate Attorney General [Michael J.] Egan upon my return."
Wallop raised the issue at Senate Judiciary Committee hearings on the nomination of Benjamin R. Civiletti to be deputy attorney general. He said the affidavit appeared to be "artfully" excised to conceal facts rather than to protect pending investigations as the Justice Department had claimed.
Baker and several other Justice Department officials signed affidavits as part of an internal Justice Department inquiry into what Attorney General Griffin B. Bell knew of an alleged investigation of Rep. Joshua Eilberg (D-Pa.) by Marston's office.
Marston had implied that he was being fired because Eilberg was under investigation by his office, and that the congressman had called President Carter last November to urge his dismissal.
Bell and President Carter said that the decision to replace Marston had been made long before the call from Eilberg. The internal investigtion showed in any case that Eilberg wasn't under investigation by Marston's office when the congressman called the president, they said.
Marston did leave his post after a showdown meeting with Bell in late January. He announced Monday that he was a candidate for the Republican nomination for governor of Pennsylvania.
The Justice Department had released the affidavits in an effort to show that Bell and Carter were innocent of charges that they might have known of the alleged Eilberg investigation and were thus guilty of obstructing justice.
Deletions were made in several of the affidavits, Justice officials said so the department wouldn't be confirming that Eilberg, in fact, later did become a subject of a criminal investigation.
Two Justice officials involved in reviewing the affidavits, however, said yesterday that they felt all the statements could have been released without deletions.
Ralph Hornbolower III, formerly of the office of professional respsonibility, and Richard Rogers, of the freedom of informtion and privacy office, both said Bell aide J. Philip Jordan overruled their recommendation.
Jordan said in a telephone interview that he decided to make the Welch deletion because "It was irrelevant to the inquiry and it made the FBI look like it was taking a political position" in recommdending Marston's retention.
Other deletions were made, he said, to follow Bell's view that "Eilberg has rights too" and that his name shouldn't be released as being under investigation.
Jordan said he had had called Welch before making the deletion, and said the FBI official was "appalled" that Baker, then Civilett's deputy in the Criminal Division, had included the conversation in his affidavit.
"The only reason to leave the statement in the affidavit was to avoid just the kind of charge of cover-up that Sen. Wallop seems to be making," Jordan added. "We balanced that and decided to take it out."
At the hearing yesterday, Civiletti told Wallop that he hadn't been involved in making the deletions.He told reporters later that he "guessed" the Welch comments were excised because "you don't release documents that hold up a particular city to public ridicule."
The revelations about the deletions overshadowed anther confrontation at the hearing yesterday. Sen. James Abourezk (D-S.D.) challenged Civiletti on the FBI's role in the arrest of an American citizen in Israel late last year on charges that he was a Palestinian terrorist.
The committee went into secret session for nearly an hour to hear testimoney from two FBI officials in the matter.
Afterward Abourezk said he was angry that some of questions hadn't been answered. He threatened to hold Civiletti's nomination captive until he gets answers.
Abourezk declined to comment on the substance of the closed-door testimony.
Sources said that Civiletti cited a presidential executive order and Justice Department guidelines for exchanging information with intelligence agencies of friendly countries as a basis of the FBI faction.
The FBI passed on information about the American, Sami Esmail, to the Israelis in 1976, sources said. Esmail was arrested when he traveled to Israel in December to visit his dying father, and now faces trial there. He claims he was tortured.