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RAY SUAREZ: Now, three views on the Mueller nomination: Dan Lyons worked with him at the U.S. Attorney’s office in San Francisco, he’s now a criminal defense attorney in Delaware; Timothy Lynch is the director of the project on criminal justice at the Cato Institute; and Bill Wallace is a staff writer and investigative reporter with the San Francisco Chronicle, he has covered the federal court system there extensively.
RAY SUAREZ: Dan Lyons, let’s start with you. If you were going to be escorting your friend, the designee, around Capitol Hill, what would you want people to know about him?
DAN LYONS: Well, I guess I would start and talk about how it was when I met him. I worked with him for two years, side by side, as a young prosecutor. He showed me that he has the utmost ability at the time, the utmost energy and dedication to the job — but most importantly, the highest in integrity. And that is the most important attribute a prosecutor can have.
RAY SUAREZ: He didn’t start out to be a criminal prosecutor, did he?
DAN LYONS: No, he did not. He started out with one of the big firms in San Francisco, working on the civil side. As I recall, he got bored with that and came over to our office. When he got to our office, he worked on the civil side as well, and he got bored with that. And I still remember the I day he walked into the criminal division and at that point didn’t know where the men’s room was. But he was a quick learner.
RAY SUAREZ: You tried a case against him, didn’t you?
DAN LYONS: I did. Bob and I worked together as prosecutors in the late 70s. I left, came back to the east coast, was a prosecutor here for a while, then went into private practice. In 1988, I had a client who was indicted in Massachusetts. I knew Bob was in Massachusetts, but I did not know this would turn out to be his case. It was a white-collar case that we tried for about a month in the western part of Massachusetts, and it was really a spirited battle. I must say, though, Bob kicked my butt.
RAY SUAREZ: Let’s go next to Bill Wallace, tell us about the US Attorney’s office that Bob Mueller found upon his arrival in San Francisco.
BILL WALLACE: Well, actually the US Attorney’s office in San Francisco is very similar to the FBI. It was an office that was very much under a cloud in those days. They had punted a number of high-profile cases. There were some problems with agent testimony and some of the trials that were ongoing. And essentially, administratively, the office was kind of a mess. Mueller was sent in here basically to clean house, reorganize the place and get everything running. He has done a fantastic job from the taxpayer point of view. They are handling 78 percent more cases now than they were when he first came in. They’ve increased the number of gun cases by more than doubling them. They have kept the drug cases at about the same level as they were under his predecessor, but the quality of the cases has really improved greatly. More importantly, while fraud cases are still running about 18 percent a year, the quality of the fraud cases and white collar crime cases here are very, very good now, including an indictment of a couple of medical software executives last year in a $9 billion stock swindle. Those types of cases didn’t happen in San Francisco before.
RAY SUAREZ: In a federal district the size of San Francisco, the US Attorney isn’t expected to try that many cases himself, but as an administrator, you think he has done what he was hired to do?
BILL WALLACE: I think very much so. The office was really facing a tremendous morale problem when he came in here. He took control. He reappointed all the major heads. He reorganized the department, set up some new initiatives, which are still going on. He appointed seven women, chiefs or deputy chiefs under him. It’s really kind of a humming operation right now.
RAY SUAREZ: Tim Lynch, when you look at Mr. Mueller’s record, what do you see?
TIMOTHY LYNCH: One thing that concerns me greatly is one of the ongoing problems that we have had with the FBI has been the failure of that agency to turn over evidence that it has in its possession over to the trial court and over to people accused of crimes and to their defense teams. We saw it in the Waco case, we saw it in the Ruby Ridge case, and we saw it most dramatically just a few weeks ago in the Timothy McVeigh case where we have thousands of documents suddenly discovered on the eve of an execution. Now, if Mr. Mueller had a record and a reputation of demanding more openness from the government, more accountability from the government, then I think a very good case could be made he is the right man for the job and could come into the Bureau to correct some of these problems.
Unfortunately, his record and reputation indicate otherwise. He has advocated policies in the northern district of California that seek to insulate and to shield the government from its legal disclosure obligations. There is a landmark case called “United States versus Brady,” which basically said that if the government has evidence in its possession that tends to show that the person being prosecuted is innocent, then it violates the due process guarantee in the Constitution for the government to have that evidence, but then to conceal it and not turn it over to the trial court or to the defense team.
RAY SUAREZ: So what are you saying Bob Mueller has done?
TIMOTHY LYNCH: He has instituted a policy in the northern district of California that we don’t see in many other prosecutorial offices around the country. It’s called Brady waivers. He has basically asked all the prosecutors on his staff when they enter into plea bargain negotiations, to make sure that the defendants sign what is called or come to be known as a Brady waiver, which means if he pleads guilty, he agrees that he is not going to come forward with a Brady claim later on. As a practical matter, what this means is a person could enter into a plea bargain, plead guilty; he could be sitting in jail, and evidence could be disclosed later on, evidence that tends to show that he is innocent; evidence that should have been turned over by the prosecutors, but because he signed the Brady waiver, he is not going to have a legal remedy to get a new trial.
RAY SUAREZ: Now, that’s a pretty serious thing the way you paint it. Is there any evidence to demonstrate that Bob Mueller, while he was running the San Francisco office, has allowed innocent people to be prosecuted of crimes or take a plea and go to jail?
TIMOTHY LYNCH: Well, I don’t know about cases that he has been individually involved in as a prosecutor, but this is a systemic policy that he has instituted and defended. It’s a very controversial issue in California. Again, this policy is not in place in other prosecutorial offices around the country. It’s raised eyebrows around the country, because what it’s trying to do is to shield the government, to insulate the government from its legal disclosure obligations. It basically immunizes prosecutors from claims of misconduct, because again, when this evidence comes to light, because the waivers have been signed, it basically is trying to forestall legal motions for new trials or legal motions to show prosecutorial misconduct.
RAY SUAREZ: Dan Lyons, what is your reaction to what Timothy Lynch just was talking about?
DAN LYONS: You know, a criminal trial is a search for the truth. What I’m hearing here is that Bob has a policy that is designed to cut off never ending litigation long after a conviction. My suggestion to defendants who enter into plea negotiations with the government, if they are innocent, they shouldn’t plead guilty, and so therefore they will be projected against the “discovery” years later, as Mr. Lynch says, of Brady material. It does not sound like a bad policy to me. You have to remember something. I’m a criminal defense lawyer now and have been for the last 18 years.
RAY SUAREZ: And, Bill Wallace, how does that mesh with what you know about the way Bob Mueller has run that office, and the traffic and information, for want of a better term?
BILL WALLACE: Mr. Mueller has been a very closed-mouth man. He likes to joke with reporters, that if you ever have a question about a case, you can call him any time of day or night, and he’ll be happy to give you a “no comment.” By the same token, when Mueller came into office here in San Francisco, the cases that were in trouble in San Francisco were ones that had fallen into harm’s way because of the actions of law enforcement agents. And I have not heard a complaint from anybody that I’m aware of anyhow that Mueller has withheld Brady material that should have been disclosed in any of the cases that have been pending during his administration.
On the other hand, he just is not a person that will release anything from the US Attorney General’s Office to the press, other than material that is already on the public record. He has made essentially one of his US Attorney Assistants the conduit for all press contact with the office, and it makes it a more difficult job to try and find out internal things that are going on. But there were cases where agents had lied and had suborned perjury. One customs agent has taken a kickback from an informant in a major Thai hashish smuggling ring. All of those cases ran into the trouble all due to the fact that there were agents that were out of control. One of the first things Mueller did was he established that he was in charge. Everybody else was answering to him. And essentially if you made a mistake, you better never make it again, because that was going to be the last chance you ever got.
RAY SUAREZ: Tim Lynch, your read on whether this is the right choice for the FBI right now.
TIMOTHY LYNCH: Well, again, this is a recurring problem with the FBI, Not turning over evidence in its possession.
RAY SUAREZ: Let me put it better. Is the Brady waiver issue a crippling thing for this nomination in your view?
TIMOTHY LYNCH: The thing is we don’t know all that much about Robert Mueller. What we do know from what I’ve discovered about his policy on these Brady claims is troubling, especially in light of the fact this has been a pattern of problem at the FBI. He doesn’t seem to be the right person to come in and correct this problem. I think in the coming weeks, there is going to be closer scrutiny of the rest of Mr. Mueller’s record. We’ll have to see whether or not Senators are concerned enough to raise questions about whether or not he is the right man for the FBI at this time.
RAY SUAREZ: Tim Lynch, Bill Wallace, Dan Lyons, thank you all.