Opinion: When federal investigators go dark

The FBI’s disclosure of the expanded investigation into Hillary Clinton’s email server reminded me of the two times I’ve covered statewide candidates who faced federal criminal investigations.

How the Justice Department handled those Missouri investigations contrasts with how the FBI handled the Clinton situation.

Unlike Clinton’s case, the Justice Department went dark about ongoing investigations of those two candidates on the Missouri statewide ballot.

The first I covered was House Speaker Dick Rabbitt in 1976. The St. Louis County Democrat was running for lieutenant governor.

He was a major candidate in a state that was still controlled by Democrats. It was a close race that Rabbitt narrowly lost to Republican Bill Phelps.

It was only after the election that I learned Rabbitt had been under a federal criminal investigation for seeking kickbacks from special interests for favorable treatment of bills sought by auto dealers and the trucking industry.

Rabbitt, now deceased, ended up spending 13 months in federal prison during a time he might have been serving out his term as lieutenant governor.

A federal lawyer later told me the department had a policy prohibiting disclosure of criminal investigations when the subject of the investigation is on the ballot and public disclosure of unproven charges could impact the election outcome.

Sixteen years after Rabbitt’s candidacy, another instance arose in Missouri as to how federal prosecutors handle criminal cases against candidates. It arose during the 1992 campaign for governor by Missouri Republican Attorney General Bill Webster.

Like Rabbitt, his chances of success appeared strong. Republicans had gained electoral strength in Missouri since the Rabbitt era. But there was one major difference from Rabbitt’s situation: It was well known that Webster had potential criminal problems.

There had been numerous stories that as attorney general, Webster had been involved in a potential pay-for-play scheme involving private lawyers hired by his office to handle specific cases that also contributed to Webster’s campaign.

There even were stories of grand jury investigations involving Webster because of grand jury witnesses who talked with reporters. But still the Justice Department said nothing.

There was, however, one method by which the department could have disclosed information about an ongoing criminal investigation. That also became a major campaign issue.

Justice officials can comment about a criminal investigation if knowledge of the investigation has become public along with inaccurate information about the target of the investigation. In Webster’s case, the department could have issued a “de-targeting notification” if the person incorrectly identified as a target requested his or her name be cleared.

During his campaign for governor, Webster repeatedly denied that he was the target of a federal investigation. So reporters repeatedly asked Webster if he had requested a “de-targeting letter” and if not, why not. Webster’s opponent, Mel Carnahan, also raised the issue.

We never got a straight answer from Webster. And Justice Department attorneys said nothing.

Recently, one of Carnahan’s campaign staffers recounted to me their unsuccessful efforts to get something from the federal agency.

It was later that we learned Webster knew he was the investigation’s target.

Ironically, the federal government never proved its case against Webster for the activities that had generated so much news coverage during the campaign – those government contracts with lawyers who contributed to his campaign. Instead, Webster was sent to federal prison after pleading guilty to charges of using state government equipment and staffers for personal and political purposes.

Both the Webster and Rabbitt cases demonstrate the conflicting arguments about the proper role of prosecutors when there is a strong possibility of corruption charges being filed against a political candidate.

It involves issues of the voters’ right to know, the foundation of our legal system of innocent until proven guilty and, finally, keeping the criminal-justice process out of politics.
 
Phill Brooks is director of the Missouri School of Journalism’s State Government Reporting Program. He has been a statehouse reporter since 1970, making him the dean of the Missouri statehouse press corps, and he manages the multimedia website on state government news, MDN.org. Brooks can be reached at column@mdn.org.

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