Normally, I’d let this particularly misguided piece from Judicial Watch pass with no more than a tweet, but one of its several misleading claims stuck out.
That would be its insistence that the “sweet deal” that D.C. Council member Harry Thomas Jr. signed with Attorney General Irvin B. Nathan “means no indictment, no admission of wrongdoing and Thomas keeps his job.”
Nathan in his Washington Post op-ed published Sunday explained in detail why there is no admission of wrongdoing in the civil settlement. But beyond that, the claim that the agreement “means no indictment” is on one level utterly wrong — federal prosecutors continue to review the case and may well seek indictments — and on another level, attributes to Nathan’s office powers it does not have.
Though Nathan is the city’s top legal officer, his ability to enforce District law is strictly limited, and he has no ability to criminally prosecute Thomas, or anyone else, for stealing from the city.
Certainly observers other than Judicial Watch have made the same mistake in assuming that Nathan could have pursued criminal charges. But in a particularly egregious and recent abridgement of home rule, the attorney general has been specifically barred from doing just that.
In August 2009, the D.C. Court of Appeals — the District’s highest local court — ruled on the case of Emerson Crawley, a former D.C. Public Schools employee alleged to have stuck the city with $7,400 in non-work-related expenses (including a trip to a strip club). Federal authorities reviewed the findings and decided for undisclosed reasons not to prosecute Crawley. So the AG’s office, under Peter Nickles, decided to have a crack at the case and filed charges in D.C. Superior Court. Both Crawley and the local U.S. attorney’s office said no way, arguing that criminal prosecutions of false claims violations were a purely federal responsibility under the District charter. The Court of Appeals agreed.
Crawley’s lawyer, incidentally, was Frederick D. Cooke Jr., who is now defending Thomas. Crawley was sued under the city’s false claims act, the same law Nathan used to sue Thomas.
The upshot of the Crawley ruling is that city residents have to rely on the feds to criminally prosecute abuses within their local government. The locally accountable lawman is prohibited from policing his own bailiwick.
This is not lost on Nathan, who addressed the issue in an interview with me in late June. Given the finality of a high-court ruling, the fix involves asking Congress to amend the District charter to allow the District attorney general to prosecute local corruption cases as well as the feds. Nathan said he would lobby Mayor Vincent C. Gray (D), the D.C. Council, Del. Eleanor Holmes Norton (D) and congressional oversight committees about proceeding with the necessary changes.
”I’m hopeful we can make the case that those powers should be restored to this office,” he said. “We have a number of cases where the cases are important to us but they aren’t that significant to the U.S. attorney’s office, which has other priorities and bigger fish to fry. ... If the U.S. attorney can’t do it, we should be able to do it.”