Leak probe latest big case for US prosecutors

WASHINGTON (AP) — Ronald Machen and James Cole have pursued their share of headline-makers, taking on between the two of them a major league baseball pitcher, government contractors, members of Congress, a federal judge and a mayoral campaign.

The two Justice Department officials are accustomed to overseeing big cases and riling defendants with their decisions, but it's their involvement in an Obama administration crackdown on national security leaks — including the secret gathering of telephone records of Associated Press reporters and editors and the emails of a Fox News journalist — that has invited unusually broad and bipartisan condemnation.

Attorney General Eric Holder says he removed himself from the AP leak investigation, leaving Machen, the U.S. attorney for Washington assigned to run the case, and Cole, the Holder deputy who made the decision to seek the phone records, as focal points for anger over the intrusion into newsgathering operations. Lawyers describe both men — whose careers have blended public service with private practice — as intelligent, methodical and aggressive, with track records that include tough demands for documents they think are needed to construct a case but also displays of restraint and negotiation.

"There are real stakes on both sides," former Deputy Attorney General Jamie Gorelick, who worked with Machen at the law firm of WilmerHale, said of leak investigations. "You have the national security imperative on one side, and you have the equities and interests of a free press on the other."

The Justice Department says it's trying to hunt down sources of information for a May 2012 AP story that disclosed details about a foiled bomb plot in Yemen. Cole has said the department followed its rules on news media subpoenas. Machen, who was assigned the probe last year, hasn't discussed the investigation publicly and wasn't available for an interview, his spokesman said. Though few cases are analogous, the AP investigation bears parallels to another leak probe involving Machen's office, in which investigators prosecuting a State Department expert on North Korea obtained a search warrant for some private emails of a Fox News correspondent.

A furor over the AP and Fox investigations prompted President Barack Obama last month to order a review of the Justice Department policy under which the government obtains journalists' records. Cole participated Thursday in a meeting with Holder and news executives where government officials expressed a commitment to changing guidelines on issuing subpoenas in criminal investigations involving reporters.

Washington's top prosecutor since 2010, Machen, 44, has balanced the leak probe with running an office unique in its responsibility for both federal crimes and local offenses typically prosecuted by district attorneys. He's known as an ambitious, demanding and driven manager who involves himself heavily in strategy talks and decision-making on cases that generate headlines or that he considers critical, including investigations into District of Columbia politics and the campaign of its mayor, Vincent Gray.

"He has a management style that is going to cause some conflict with people who are like him — who are determined, vigorous, smart people who are trying to make the right decisions," said former prosecutor Tom Zeno, who calls his ex-boss meticulous and engaged.

The former Stanford football player attended Harvard Law School, where he excelled in a trial advocacy workshop for his ability to present evidence and listen to witnesses' responses, recalled Professor Charles Ogletree, who counseled Machen as he mulled career options.

Machen prosecuted violent crimes as a young lawyer under Holder, then the U.S. attorney. He left the federal government for a private law firm, where he represented corporations facing government investigations, before returning to the U.S. attorney's office. He maintains a visible public presence in Washington, with appearances at graduations, award ceremonies and community forums. The office's annual report features more than a dozen pictures of him alongside police, colleagues and schoolchildren.

"I think he really is a true believer. He sees himself as the protector of the public interest," said lawyer Frederick Cooke, whose clients include an ex-District of Columbia Council chairman prosecuted by Machen's office for bank fraud.

Machen's record includes some significant wins — including convictions of two district council members, three mayoral campaign aides and federal workers in a massive bid-rigging fraud. His office recently secured guilty pleas from former U.S. Rep. Jesse Jackson Jr. for misusing campaign money and from a Mexican drug cartel member for killing a federal agent.

The office has shown aggressive maneuvering in certain high-profile violent crime prosecutions. A man arrested for shooting at the White House was charged with attempting to assassinate President Barack Obama, even though Obama wasn't there at the time. Another man who shot a security guard at the headquarters of a conservative Christian lobbying group became the first defendant prosecuted under a local anti-terrorism statute. But the office also turned aside public cries for action when it found insufficient evidence to prosecute nightclub employees initially charged in the death of a man who threw a brick at the club. The charges were dropped.

Other investigations, however, have plodded along unresolved or ended with nothing to show. He's drawn criticism over use of government resources for pursuing select people — former major-league pitcher Roger Clemens, among them — with dogged resolve. After the first perjury prosecution ended with a mistrial, the office added to its trial team and again went after Clemens, who was acquitted after less than 10 hours of deliberations.

"We believed from the beginning that the case should not be brought against Roger and that the government was fixated on obtaining a conviction in one of these baseball-steroid cases," said Michael Attanasio, a lawyer for Clemens, adding that he hoped the office would have skeptically examined the case's shortcomings.

"Instead, the government added more resources and more vigor to their efforts," he said.

For two years, Machen has presided over an ongoing investigation into the district's mayoral election campaign, a probe dominated recently by a behind-the-scenes court fight over access to millions of documents belonging to a well-connected contractor and political donor. The investigation has already secured guilty pleas from three former campaign aides. But it's also cast a lingering cloud over a city government preparing for a 2014 mayoral election, creating mounting public pressure for Machen to conclude it soon.

"He's very thorough and methodical and takes his time and follows the evidence, but during that process, he can and will be very aggressive at every opportunity. That does not always equate to justice," said A. Scott Bolden, a criminal defense attorney who's represented clients prosecuted by Machen.

Another lawyer, Bill Coffield, said that though he might not always agree with the office's prosecutorial decisions, "I feel as though I've gotten a fair shake" if Machen is involved.

Cole, the deputy attorney general, has spent even longer under the spotlight.

A former deputy chief of the Justice Department's public integrity section, he successfully prosecuted a New Orleans federal judge for bribery — even persuading a drug dealer cooperating with the probe to keep quiet about it. He won a guilty verdict against former Idaho Rep. George Hansen for knowingly filing false financial disclosure reports, though the conviction was vacated and Hansen was released early from prison.He also investigated a House of Representatives check overdraft scandal, where he demanded access to records of lawmakers' check transactions.

In 1995, he was called on as special counsel to lead a congressional ethics investigation of House Speaker Newt Gingrich that concluded with a reprimand and a $300,000 penalty.

More recently, while in private practice, he counseled accounting firm Arthur Andersen on document management and compliance procedures during the Enron scandal and did independent consulting work for insurance giant American International Group Inc., which received a government bailout worth more than $180 billion at the height of the credit crisis. He was confirmed as deputy attorney general in 2010, pledging to senators that "we must continue to do everything in our power to protect Americans from the threat of terrorism, consistent with the rule of law," according to his prepared remarks.

"He has the highest amount of integrity. I just don't think of him as a political actor at all," said Georgetown University law professor Paul Butler, who worked with Cole at the Justice Department.

Speaking of the leak probe, Butler added: "Frankly, part of what this episode is doing is educating people about the law and how much power prosecutors have."