Fired U.S. attorney testifies about 2004 call

WASHINGTON - The fired U.S. attorney for Western Washington testified Tuesday that a former top aide to Rep. Doc Hastings called him in the weeks following the hotly contested 2004 Washington state governor's race to ask whether his office was going to investigate allegations of voter fraud.

John McKay, one of eight U.S. attorney's fired by the Bush administration in December, said he found the call from Hastings aide Ed Cassidy "unusual and serious." But he added that he cut the phone conversation off before Cassidy could veer into "improper or illegal territory."

Though he chose his words carefully in speaking with reporters following an afternoon House hearing, McKay said he thought Cassidy was trying to step up the pressure on him to investigate possible election fraud. He said he believed Cassidy was calling on behalf of Hastings.

"I knew immediately what he wanted," McKay said. "My antennae were up. It was very dangerous territory. I considered the call the same as if it was from a member (of Congress)."

Cassidy denied there was anything inappropriate about the phone call.

In a statement, Cassidy described his call to McKay as a "routine effort to determine whether the allegations in the 2004 gubernatorial election were, or were not, being investigated by federal authorities."

Hastings also defended Cassidy's phone call.

"It was a simple inquiry and nothing more - and it was the only call to any federal official from my office on this subject either during or after the (election) recount ordeal," Hastings said in a statement.

McKay's testimony, along with that of five other ousted U.S. attorneys, came as committees in both the House and Senate began to probe the firings. For weeks, Justice Department officials have downplayed the firings as internal administrative decisions based on concerns about each of the attorney's performances. But Democrats have called the firings politically motivated.

Hastings is currently the ranking Republican on the House Ethics Committee. Cassidy was his longtime chief of staff and his top aide on the Ethics Committee. Cassidy is now a senior adviser to House Minority Leader John Boehner of Ohio, offering advice on such things as ethics and election law.

Cassidy attended the House hearing, sitting in the second to last row and listening to the testimony as he worked on his Blackberry. During a break, Cassidy told reporters he remains close to Hastings even though he no longer works for him.

"We talk every day about one thing or another," Cassidy said. "Doc was the best man at my wedding."

Democrat Chris Gregoire won the 2004 race for governor, after three recounts, by 129 votes. McKay testified his office, after consulting with the Justice Department's Voting Rights Section, decided not convene a grand jury to investigate the election.

"There was no evidence of criminal wrongdoing and nothing to take to the grand jury," McKay told the House Judiciary Committee's commercial and administrative law subcommittee.

Even so, McKay said he was under enormous pressure from Washington state Republicans to investigate.

McKay said he received a phone call from Cassidy in late December 2004 or in January 2005. McKay said he had never spoken to Cassidy previously, but he knew he was the top aide to the state's senior Republican.

Cassidy asked McKay what his office was doing to investigate, and McKay said he responded by citing information already "publicly available." When Cassidy pressed, McKay said he told him to stop and the call ended.

"This call was disconcerting to me," McKay said.

McKay said he did not report the call to the Justice Department because he and his leading prosecutors decided the conversation ended before it "crossed the line." Federal law requires that U.S. attorneys report any improper contacts to the Justice Department.

During the House hearing, William Moschella, principal assistant U.S. attorney general, said McKay was fired because of "policy differences" over a criminal information reporting system and his failure to aggressively appeal sentences that didn't meet federal sentencing guidelines.

McKay said he was a leader in developing the criminal tracking system, adding that the Justice Department had been supportive. He said he had never heard about the differences over sentencing guidelines until Moschella's testimony.

After the hearing, McKay said his handling of the 2004 governors race came back to haunt him when he was being interviewed about a federal judgeship by then White House Counsel Harriet Miers and others in her office. During the interview in August or September 2006, McKay said, he was asked, not by Miers, to explain criticism of how he had "mishandled" the governor's race investigation.

McKay did not get the nomination for federal judge. He refused to speculate on whether it was a result of his decision not to investigate the governor's race.

Cassidy said the phone call to McKay came after Hastings became chairman of the House Ethics Committee in February 2005 and he became Hastings' top aide on the committee. McKay had placed the timing of the phone call earlier, before Hastings became chairman. Hastings served as chairman until the Democrats regained control of the House in the last election.

Cassidy said he understood the "permissible limits" on his conversation with McKay, respected the "boundaries" and ended the conversation before they were breached.

Hastings said if McKay found Cassidy's call troubling, he should have called him to complain.

"Ed Cassidy's call and the conversation that took place were entirely appropriate," Hastings said.

Hastings also indicated that Tom McCabe of the Building Industry Association of Washington had contacted his office in July 2005 asking that he urge the White House to fire McKay.

The congressman said he "flat out" refused to do so and Cassidy had told McCabe that in the "bluntest of terms."