Fired federal prosecutors share secret letters


July 7, 2017

BURLINGTON, Vt. — The top federal prosecutor for Maine was on vacation in Florida earlier this year when his cellphone rang. He recognized the number as coming from the Justice Department in Washington.

July 7, 2017

BURLINGTON, Vt. — The top federal prosecutor for Maine was on vacation in Florida earlier this year when his cellphone rang. He recognized the number as coming from the Justice Department in Washington.

Former U.S. attorneys Thomas Delahanty of Maine and Mike Cotter of Montana provided copies of their resignation letters to the Burlington (Vt.) Free Press after the Justice Department refused to release the letters from all top federal prosecutors who resigned this year.

The caller delivered a stunning demand to U.S. Attorney Tom Delahanty that day in March: Resign by midnight.

With no access to a computer, Delahanty waited until he returned home a few days later before dashing off a note on his personal stationary, addressed to the person who ordered his ouster from office, along with 45 other top federal prosecutors: President Trump.

"I hereby resign as instructed," the final line of the short note stated.

Delahanty in June became the first U.S. attorney fired by the Trump administration to share his resignation letter with The Burlington (Vt.) Free Press, which has been fighting the Justice Department's refusal to release all 46 letters to the public.

Citing a personal privacy exemption to the Freedom of Information Act, the Justice Department claims resignation letters from all U.S. attorneys must remain confidential — even though public records show the FOIA personnel who made that decision never read the letters in question.

Former U.S. attorney for Montana Mike Cotter and Delahanty both said there was nothing in the substance of their letters that was so "inherently personal" to justify the government's insistence on keeping the records secret.

"These FOIA denials — they're bogus," said Cotter, who had served as the top federal prosecutor in Montana since 2009. "There's nothing in the letter that's too private for anybody in the public to read."

Delahanty wanted to keep his personal phone number and email address private. He whited out those details from the copy he shared, and said the Justice Department easily could have done the same.

The Freedom of Information Act specifically allows the government to selectively remove information that should remain private from documents that contain otherwise releasable material — something the Burlington Free Press specifically requested the Justice Department do in the case of the U.S. attorney resignation letters.

The Free Press, which like USA TODAY is a part of the USA TODAY Network, first sought the letters under the Freedom of Information Act in mid-March, and then appealed the Justice Department's refusal in May. Government attorneys also turned down the appeal.

Justice Department representatives have said no to interview requests. When asked to respond to the release of the resignation letters from the two former U.S. attorneys and their comments critical of the agency's decisions, spokeswoman Ashley McGowan responded by email: "The Department of Justice will decline to comment." 

Open-government advocates have criticized the Justice Department's decision to keep the letters from the American people, and especially the refusal of the agency's FOIA staff to read the documents in question before opting for secrecy.

Vermont's senior senator, Democrat Patrick Leahy, suggested calling each of the U.S. attorneys to ask what's in their letters.

Since leaving office, though, the former prosecutors have scattered — some to other jobs in government or the private sector, others to retirement or the hunt for new employment.

Delahanty and Cotter have been the only former prosecutors to share their letters.

Surprised by suddenness of request

Delahanty was in his second stint as U.S. attorney for Maine when the ax fell March 10. He previously served as the state's top federal prosecutor after being appointed by former president Jimmy Carter in 1980 until he resigned after Ronald Reagan became president in 1981.

That transition, Delahanty said, was much smoother than the "massacre on Friday, March 10" of dozens of U.S. attorneys under Trump.

The situation was particularly troubling, Delahanty said, because Justice Department officials including new Attorney General Jeff Sessions had assured U.S. attorneys they would be allowed to remain in office until a new prosecutor was in place.

"We were, let's say, surprised not by the fact that we were being asked to resign but by the suddenness of it," said Delahanty, who was nominated by former president Barack Obama in 2010. "We were told and led to believe on at least three previous occasions that we would be able to stay until our successors were named and qualified, thus creating an easier transition."

The president appoints U.S. attorneys to lead regional offices that prosecute criminal cases and represent the government in civil proceedings such as lawsuits. The Senate must confirm the appointees.

The country's 93 U.S. attorneys typically step down after a change in presidential administrations. Some began handing in their notice after Trump's inauguration Jan. 20. Then on March 10, Sessions demanded the immediate resignations of the remaining 46 top federal prosecutors appointed by previous presidents.

'You're done'

In Montana that day in March, Cotter was meeting with lawyers on his staff to review their work and discuss pending cases. Like Delahanty, he said the new Justice Department team in Washington had made clear that U.S. attorneys would be allowed to stay in office for a time.

The day before, Trump surrogates made public accusations that Obama appointees in the Justice Department had been acting against Trump as "saboteurs and subversives," Cotter said. "That came out on Thursday night. By noon the next day, we were all gone."

Dana Boente, the acting deputy attorney general at the time, called at midday Friday and demanded Cotter step down. The prosecutor asked whether he could stay until a successor arrived.

"He said, 'No, you're done,' " Cotter recalled. "I said, 'Dana, tell the president I'm not the leaker.' He said, 'I know you're not the leaker, Mike.' "

Cotter called the demand "a gut-shot."

"I was terribly disappointed," he said. "It was very unprofessional. You don't treat people like that. You just don't."

Courtesy/Source: USA Today