Waco whistle blower may face prosecution by special council

Friday, September 1st 2000, 12:00 am
By: News On 6

The former prosecutor who warned last year of a possible cover-up of federal actions in the Branch Davidian siege has been told he is being targeted for prosecution by Waco special counsel John C. Danforth.

Friends and associates of former Assistant U.S. Attorney Bill Johnston say he has been told by the special counsel's office that he will soon be indicted on charges of obstruction of justice, perjury and lying to investigators.

They say he has been told that the charges stem from his withholding of several pages of pretrial notes from the 1994 federal prosecution of surviving Branch Davidians. They say that Mr. Johnston's action was a mistake driven by his concern that his notes would be misused by others in the U.S. attorney's office who were angry about his public criticism of the Justice Department's handling of the Waco tragedy.

Mr. Johnston declined to comment Thursday, referring questions to his criminal defense attorney, Michael Kennedy of New York City. Mr. Kennedy released a statement Thursday confirming that the Waco special counsel has threatened Mr. Johnston with federal prosecution in Texas and St. Louis.

"This law office and Mr. Johnston believe that he was unfairly targeted for his frequent criticism of the U.S. government and for blowing the whistle on the government's efforts to mislead the public about the government's use of pyrotechnic devices against the Branch Davidians," said Mr. Kennedy, whose past clients include New York socialite Ivana Trump and Whitewater defendant Susan McDougal.

Officials with Mr. Danforth's St. Louis office declined to comment Thursday.

Mr. Johnston's friends and former law enforcement associates are rallying support for the embattled former prosecutor, starting a legal defense fund for an aggressive court battle.

"We're raising money. I'm spending most of my time today working on calling on some people with deep pockets," said David Smith, a former Waco city manager. "We're ready to fight 'em. I think that they're going to find that this community is 100 percent behind Bill."

Several Waco officials said U.S. District Judge Walter Smith was so dismayed by the special counsel's treatment of Mr. Johnston that he recently told Mr. Danforth's investigators that they faced arrest if they carried firearms into his courthouse and would be allowed access to the building only like that given to the public.

Judge Smith, who has presided over all of the litigation arising from the 1993 Branch Davidian standoff, declined to be interviewed Thursday.

But other officials said two investigators for Mr. Danforth who had previously used offices in the courthouse have not returned since the judge told them he was ending his court's cooperation with Mr. Danforth's inquiry and told them he considered their actions against Mr. Johnston a witch hunt.

"People here who know the details are just livid," said Carey Hobbs, a local plant owner also raising defense funds. "You meet somebody and talk to them about it, and tears run down the cheeks of grown men."

Letter to Reno

Mr. Johnston was among five assistant U.S attorneys and Justice Department lawyers who prosecuted survivors of the 51-day siege, which began with a gunfight in which four federal agents died. The shootout began when federal Bureau of Alcohol, Tobacco and Firearms agents tried to search the sect's compound and arrest leader David Koresh on firearms charges.

The siege ended on April 19, 1993, with a fire that burned the compound with Mr. Koresh and more than 80 followers inside.

The case drew new attention last summer after a former FBI official told The Dallas Morning News that bureau agents had used tear gas grenades capable of sparking fires on the last day of the siege.

Justice Department officials initially ridiculed the admission but later acknowledged that pyrotechnic devices were used in the FBI's final tank and tear gas assault.

Mr. Johnston wrote Attorney General Janet Reno exactly one year ago Wednesday to warn that some of her Justice Department subordinates may have withheld evidence about the FBI's use of pyrotechnic grenades.

Ms. Reno had banned use of anything that might spark a fire in the final assault.

Ms. Reno asked Mr. Danforth last September to review government actions in the standoff and determine why officials had so long denied that the FBI had used anything capable of sparking fires.

Mr. Johnston went public shortly after writing Ms. Reno, saying last August that he spoke out after being shown 6-year-old documents detailing the FBI's use of military pyrotechnic gas.

The documents suggested that Mr. Johnston might have attended a fall 1993 meeting where FBI agents told prosecutors about using several military gas rounds.

Mr. Johnston did not recall the meeting, and friends say Mr. Danforth's investigators recently told him that they do not believe he was there.

Questions about notes

Mr. Johnston said last August that he believed the documents were sent to him by other prosecutors to stop his efforts to help the Texas Rangers identify shell casings from the standoff that some government critics alleged were pyrotechnic government munitions.

But some friends said they immediately feared Mr. Johnston was making himself a target for federal retaliation.

"I said, Bill, this [letter to Ms. Reno] looks like a suicide note to me. I was surprised that he was able to hang on as long as he did because they do not take kindly to that kind of criticism. The truth is not what they're after," said David Byrnes, a retired Texas Ranger captain who helped lead the Davidian criminal investigation.

"At this point, I don't think anybody inside the federal government except for Bill Johnston has any honor at all," Mr. Byrnes said. "I think he is a victim and a scapegoat in this, and Danforth is falling right in with those people in Justice who want to exact revenge on him."

Mr. Johnston resigned from the U.S. attorney's office in February.

But friends said he continued to be questioned, and Mr. Danforth's investigators grilled him twice before a federal grand jury. In a particularly grueling, three-day interrogation in St. Louis in July, friends said, Mr. Johnston was threatened after telling a senior investigator that an article on his role in the Davidian case was being prepared for the September Texas Monthly.

The article, titled "Law's good soldier," appeared in the magazine's annual issue on the year's 20 most influential Texans.

"They informed him that if he exercised his right to free expression by appearing in Texas Monthly, that would guarantee an indictment," said Rod Goble, a Waco attorney and longtime friend of Mr. Johnston's.

That came within less than a week after Mr. Danforth unveiled his preliminary report on the case, telling reporters that he found no major government wrongdoing and would not prosecute an FBI lawyer whom he alleged had repeatedly lied.

Mr. Goble said Mr. Johnston recounted being told he could avoid prosecution only if he pleaded guilty to a felony and acknowledged that other prosecutors had conspired to cover up the FBI's use of pyrotechnic grenades.

"Bill wouldn't lie for them," Mr. Goble added.

He and other associates said Mr. Johnston was questioned intensively about pages he took from a notebook before turning it over to his superiors. He was ordered to surrender his Davidian records after Judge Smith ordered all government agencies to send his court everything related to the incident.

Mr. Goble and other associates said Mr. Johnston told Mr. Danforth's staff that he removed several pages before sending the notes to superiors in San Antonio.

One page had a reference to incendiary objects, friends said. Mr. Johnston did not recall why he wrote the phrase but knew that colleagues unhappy with his role as a whistle-blower were being allowed to review his files. Friends said he feared those colleagues might use such notes to allege he had failed to disclose the use of pyrotechnics.

Matter of trust

Friends said Mr. Johnston told investigators that he did not immediately disclose his failure to turn over the notes because he did not trust them. They said Mr. Johnston recounted being accused of wrongdoing in his first interview with Mr. Danforth's investigators, and even being told that he was suspected of concealing FBI agents' admissions of firing guns at the Davidian compound.

The FBI has long denied their agents fired any shots, and Mr. Danforth's report released in July concluded that no federal agents fired guns at the end of the standoff.

"I've known Bill Johnston for almost 20 years and have represented dozens and dozens of individuals in cases in which he was the prosecuting attorney," Mr. Goble said. "His integrity is beyond question."

"I can't figure out how Senator Danforth could spend millions of dollars, whitewash federal authorities in high places and then put everything Bill did for several years under a microscope and try to pull things out of context and go after him," he said. "It makes you wonder what they're doing and what they've been smoking."

Michael Caddell, a Houston lawyer who led a recent wrongful-death lawsuit against the government filed by surviving Davidians and their families, said the threatened prosecution of Mr. Johnston raises serious questions about the integrity of Mr. Danforth's Waco inquiry.

"Why single out Bill Johnston? He's not even in the government anymore. He basically got recused from the case, got forced out of the Justice Department, became a pariah," he said. "There are going to be a lot of people shaking their heads.

"It says a lot about the misdirection of the Danforth investigation. It ignores wrongdoing by government officials and whitewashes what even Danforth admits was less than a truthful presentation of what happened at Mount Carmel, and he seeks to go after the one person who tried to get the truth out."