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Tuesday, March 13, 2007 - Page updated at 02:01 AM

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McKay "stunned" by report on Bush

Seattle Times staff reporter

Former U.S. Attorney John McKay said Monday night he was "stunned" to hear President Bush told Attorney General Alberto Gonzales last October that Bush had received complaints about U.S. attorneys who were not energetically investigating voter-fraud cases.

McKay doesn't know if Republican unhappiness over his handling of the 2004 election cost him his job as U.S. Attorney for Western Washington, but the new revelations contained in a Washington Post story are sure to reignite questions about McKay's dismissal and whether it was connected to Washington state's hotly contested governor's race.

"Had anyone at the Justice Department or the White House ordered me to pursue any matter criminally in the 2004 governor's election, I would have resigned," McKay said. "There was no evidence, and I am not going to drag innocent people in front of a grand jury."

The conversation between Bush and Gonzales, along with e-mails and documents that the White House plans to turn over to Congress today, suggests the firings of McKay and seven other U.S. attorneys last year may have been politically motivated, despite previous Justice Department and White House denials, according to The Washington Post.

It is not clear whether the materials shed new light on McKay's firing.

Nonetheless, Bush's concerns about voter-fraud investigations will surely heighten the spotlight on how McKay monitored the 2004 race -- and how local and federal Republican officials reacted to his inquiry.

McKay insists that top prosecutors in his office and agents from the FBI conducted a "very active" review of allegations of fraud during the election but filed no charges and did not convene a federal grand jury because "we never found any evidence of criminal conduct."

McKay detailed the work of his office in a recent interview. He spoke out because he believed Republican supporters of Dino Rossi, still bitter over his narrow loss to Democrat Christine Gregoire, continue to falsely portray him and his office as indifferent to allegations of electoral fraud.

McKay also wanted to make it clear that he pressed ahead with a preliminary investigation, despite the hesitation of Craig Donsanto, the longtime chief of the Election Crimes branch of the Department of Justice, who ultimately concurred with McKay that no federal crimes had been committed in the election.

"No controversy"

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"There should be no controversy at the Department of Justice, or anywhere else in the federal government, about how the 2004 election was reviewed," McKay said.

McKay's work on the 2004 election has become a national issue since he appeared last Tuesday at hearings into the Justice Department's firings of McKay and seven other U.S. attorneys in December. McKay testified that in late-2004 or early-2005 he received a call from Ed Cassidy, then chief of staff for Rep. Doc Hastings, R-Wash., who asked about the status of ongoing investigations of voter fraud.

McKay testified that he immediately cut off the call, telling Cassidy it would be improper for him to discuss the status of any future investigations with Cassidy.

McKay also said that during a meeting last summer with former White House Counsel Harriet Miers and Deputy Counsel William Kelley, to discuss McKay's candidacy to become a federal judge, he was asked to explain why some Washington state Republicans believed he "mishandled" the 2004 governor's race.

McKay described in detail what happened inside his office as controversy mounted over the 2004 balloting.

Two machine counts initially declared Rossi the winner. A third hand recount declared Gregoire the winner, by just 129 votes over Rossi.

GOP sought investigation

Republicans sued in Chelan County Superior Court to have the vote declared invalid because of tabulation errors, improper ballots and alleged fraud.

From the time Republicans filed the case in January until it went to trial in Wenatchee in late May 2005, several prominent Republicans, including former Sen. Slade Gorton and state Republican Party Chairman Chris Vance, publicly called on McKay and the Justice Department to launch a criminal probe.

McKay says he and four attorneys in his office worked closely with the FBI and the Department of Justice to monitor complaints of criminal wrongdoing.

Assistant U.S. Attorney Arlen Storm, who had received special Justice Department training on election crimes before the 2004 race, did the bulk of the day-to-day work. Floyd Short, the chief of the complex crimes unit, closely supervised Storm. Short also spoke regularly with Donsanto and others in Washington, D.C.

First Assistant U.S. Attorney Mark Bartlett and Jeffrey Sullivan, former chief of the criminal division and now McKay's interim replacement as U.S. attorney, also "were directly involved," McKay said.

Bartlett and Sullivan declined to comment because of Justice Department policies that prevent them from discussing a preliminary investigation, "especially one that did not result in a publicly filed court document," said Emily Langlie, a spokeswoman for the U.S. Attorney's office.

Short confirmed his involvement and said McKay was himself highly engaged on election issues.

McKay said one of the first actions he took on the 2004 race came in response to a request from one of his harshest critics.

Tom McCabe, executive vice president of the Building Industry Association of Washington (BIAW), contacted McKay's office in late 2004 or early 2005, alleging he had evidence of forged signatures on absentee ballots cast for Gregoire.

After talking to McCabe, McKay said, he called Mark Ferbrache, supervisory special agent at the FBI, and asked him to assign Special Agent Joe Quinn to review McCabe's evidence.

McCabe confirms he received a phone call from Quinn a few days later, and McCabe sent him documents supporting his forgery allegations.

But McCabe remains dissatisfied with Quinn's response.

"[Quinn] seemed distracted, almost bothered that he was talking to me about it," McCabe said. "He never instituted an investigation; no one was ever questioned.

"It started me wondering whether the U.S. Attorney was doing his job," McCabe said.

McCabe subsequently made repeated calls on the White House to fire McKay. McKay said Quinn examined McCabe's materials "and it was not the conclusion of the FBI that they were forgeries."

An FBI spokesman declined to comment.

One of the biggest controversies of the 2004 race was the casting of hundreds of ballots by convicted felons.

McKay asked Sullivan to create a task force of federal, state and county prosecutors to look into how and why the felons voted in violation of state laws.

Ultimately, Sullivan told McKay "there was no disagreement on the task force" that a federal case could not be brought on the felon voters.

Most of the felons who voted in the 2004 election, according to McKay, received ballots in the mail from the state of Washington. Therefore, he said, it would have been extremely difficult to prove in court that they knew it was unlawful for them to vote, but did it anyway.

Prosecutors and FBI agents took notice when Republican attorney Dale Foreman said during his opening statement in the trial in Wenatchee that he had evidence of fraud in King County.

"I was shocked to see him use the words 'ballot-stuffing' because that is a crime," McKay said. "If you say that, you are ethically bound to prove that."

The team closely followed the testimony and evidence introduced at the trial but saw nothing to confirm federal crimes had taken place.

"No stone unturned"

McKay said that at the conclusion of the trial, Sullivan, Short, Ferbrache and others conducted a conference call with Foreman to see if there was any evidence of criminality that had not been introduced at the trial. "We left absolutely no stone unturned," McKay said. "We were assured by [Foreman] that he did not have any evidence."

Short confirmed the call, and its conclusions.

Foreman did not respond to calls seeking comment.

After the conclusion of the trial and the phone call with Foreman, neither the U.S. Attorney's Office nor the FBI received other credible evidence of federal crimes during the 2004 race.

Consequently, McKay said, "I moved on to other things."

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com

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