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The Scooter Standard

Libby was hounded, Villafuerte is to be promoted - but why?

By Andrew C. McCarthy, National Review Online, October 30, 2009

While the most transparent administration in history continues to stonewall Congress on its legal theories for supporting a would-be dictator in Honduras, dismissing a civil-rights case against nightstick-wielding Black Panthers, and flouting the plain language of the Constitution on the D.C. Voting Rights Bill, it's time once again to check in on the president's equally laughable commitment to disinfect the Justice Department, removing all traces of political taint.

When it was Scooter Libby in the crosshairs, Democrats were awfully sanctimonious about the grave felony of lying to the FBI. The cornerstone of our legal system, they reminded us, was the obligation of every American - or at least every American who is not the 42nd president of the United States - to provide truthful information when questioned in an investigation. After all, this is America. Thanks to our Constitution, no one is forced to submit to interrogation by the police, the FBI, a grand jury, Congress, or a judge. If we have any good-faith concern that answering questions may incriminate us, the Fifth Amendment gives us the right to remain silent. But with that privilege, we were reminded, comes an obligation: If one chooses to speak, one must speak truthfully. If one doesn't speak truthfully, that is a serious offense, because false answers obstruct justice, sending our investigators on wild goose chases and taxing the resources of our overburdened courts.

The offense is especially egregious, Democrats lectured, when the prevaricator is a government official - especially a lawyer. Unlike laymen, government officials serve the public, implying a solemn trust to support, rather than impede, the administration of justice. And lawyers know better than anyone how lying perverts the truth-seeking process. Thus, there was no getting around it: It didn't matter that the FBI's grilling of Libby arose out of a contentious policy debate, that he did not commit the crime for which he was actually being investigated (in fact, nobody did), or that his prosecution effectively criminalized our politics. He was a public official, he was a lawyer, and he lied to the FBI, so he had to be prosecuted to vindicate all that is good and right. Case closed.

Well what if he were not only a lawyer and a public official? What if he were also a political operative for a top Democrat? What if he were the candidate nominated by Pres. Barack Obama to be the top federal law-enforcement official in the state of Colorado - the United States attorney responsible for making such judgment calls as deciding who should be prosecuted for making false statements to FBI agents?

Meet Stephanie Villafuerte. She is a former prosecutor from Denver, where she was chief deputy to Bill Ritter when he was district attorney. In 2006, when Ritter successfully ran for governor of Colorado, she was one of his top aides.

During the heated campaign, Ritter was rocked by the revelation that, while he was DA, his office had given lenient treatment to hundreds of illegal aliens. They were permitted to plead guilty to crimes far less serious than the ones they actually committed, enabling them to avoid deportation. The illegals included a heroin dealer who - thanks to a sweetheart plea deal - was released and went on to commit a sexual assault in California.

That alien's name is Carlos Estrada-Medina. That was problematic because, when Ritter's office had dealt with him on the drug case, he had used the alias "Walter Ramo." When the Republican running against Ritter ran an ad about the case, Villafuerte, the veteran prosecutor, realized that it would only have been possible for Ritter's opponent to confirm that "Ramo" was Estrada-Medina if someone had accessed the National Crime Information Center (NCIC) database. It is a federal crime to access the NCIC system for purposes unrelated to law enforcement, such as political campaigns.

The FBI investigated the matter and learned that the NCIC database had been accessed by three actors: the Denver DA's office, a private investigator from Texas, and a federal immigration agent named Cory Voorhis. Voorhis, who was livid about the revolving door Ritter's office had left unlocked for illegal aliens, maintained that he had had both a legitimate law-enforcement purpose and the permission of his supervisor to run the check. Nevertheless, he was the only person prosecuted for the disclosure that so embarrassed Ritter. Voorhis was acquitted at trial, but he has not been able to get his job back - even though an internal investigation determined that the supervisor who testified against him gave false testimony. (Unlike Voorhis, the supervisor hasn't even been disciplined, much less charged with a crime.)

But what made the Denver DA's office check the NCIC database? It wouldn't have been to help Ritter's political campaign, would it?

In the course of its investigation, the FBI interviewed Villafuerte. According to interview notes obtained by the Denver Post, Villafuerte told the agents she had had no conversations with anyone at the DA's office about Estrada-Medina, the illegal alien whose treatment by that office - while Ritter was running it and Villafuerte was working for him - became such a problem while Ritter was running for governor and Villafuerte was working for him.

To say those statements to the FBI are highly suspect is to make a gross understatement. To put the matter in context, Villafuerte did not quit the DA's office to work on the Ritter campaign. She took a leave of absence. From the office's perspective, she was slated to return - either as a highly influential friend of the newly elected governor or as an up-and-coming Democratic party insider. That is, she was someone whose phone calls to her once and future office, where she had been a top official, were not going to be ignored.

And we now know she did make a phone call. During the investigation, the FBI learned that in September 2006, before the office's NCIC check, Villafuerte called the DA's spokeswoman, Lynn Kimbrough, and left a message that she was calling was about . . . Estrada-Medina. The bureau also found that, following Villafuerte's call, there was a series of calls between Kimbrough and the first assistant DA, Chuck Lepley, during which Lepley ordered a subordinate to run the NCIC check on Estrada-Medina.

Meantime, as Michelle Malkin reports, after Ritter won the gubernatorial race, Villafuerte "was rewarded with a job as a principal deputy to Governor Ritter." The daughter of Mexican immigrants, she is the governor's "point person" on immigration matters. And now, she is President Obama's U.S. attorney nominee.

Quite simply, the version of events Villafuerte is reported to have given the FBI is a world away from reality. At the very least, it's obvious that she had contact with her office about Estrada-Medina - which she's said to have denied. And notwithstanding Kimbrough's lawyerly denial that anyone from the Ritter campaign specifically asked the DA's office to search the database, even a rookie prosecutor (and Villafuerte was no rookie) would know that you wouldn't need to say, "Hey, can you run an NCIC check on that guy for me?" Speaking prosecutor-to-prosecutor, "What's the story with this Estrada-Medina guy?" would more than suffice.

There is abundant reason to believe that Villafuerte did not give truthful answers when she was questioned by the FBI. Indeed, despite numerous inquiries by the Colorado press about her communications with the DA's office around the time of the NCIC check, she has steadfastly refused to answer questions about the matter.

She certainly has that right. Nobody is obligated to confess to the media. But as Democrats stressed with Scooter Libby, everyone - especially a lawyer who is a public official - is required to speak truthfully to the FBI. According to post-Clinton Democratic standards, such public officials who lie to the FBI should be prosecuted for false statements. According to anyone's sensibilities, such public officials have no business exercising prosecutorial powers, which include enforcing the laws that oblige the rest of us to refrain from impeding criminal investigations.

As Ed Whelan notes, Attorney General Eric Holder has claimed that the Obama administration is being deliberate in nominating U.S. attorneys because it insists on having the "best people" - nominees "who are highly qualified, who understand what immense power they will be given as United States attorneys, who understand that they are to enforce the law in an impartial, nonpolitical way." It's a crock, of course.

Holder himself has notoriously abused his immense prosecutorial powers (think Marc Rich, FALN pardons, the Al Gore investigation, the New Black Panthers party investigation, the Bill Richardson investigation, etc.), and he is nothing if not a partisan, hyper-political operator. (A prosecutor who actually is impartial and nonpolitical doesn't keep telling you all the time about how essential it is to be impartial and nonpolitical - he just does his job ethically because it would be unfathomable to do it any other way.)

The Senate, however, with strong Republican assent, gave Holder the benefit of the doubt, confirming him in the vain hope that he'd live up to his lofty, self-indicting rhetoric. After nine months of Obama-style "transparency" and "non-political" justice, that experiment ought to be over.

On the current record, it would be irresponsible to confirm Stephanie Villafuerte as U.S. attorney for Colorado. An agent's career has been ruined, the administration of justice in Denver has been politicized, and the FBI has been toyed with. Villafuerte must be made by the Senate Judiciary Committee to answer the questions she's been dodging on the matter of Carlos Estrada-Medina. If she won't answer, she shouldn't be confirmed. And if she misled the FBI, the Scooter standard should mean that not being confirmed is the least of her problems.