Omertà: The Story of McNulty’s Enforcer

By Scott Horton

In societies which lack a solid rule of law tradition, the people will often seek protection in smaller units—in families, extended clan groups, or other informal associations—and these may in turn define themselves at odds with the formal legal order. This is one of the lessons of the early chapters of Thomas Hobbes’s Leviathan, which is certainly the first great work of political theory to be published in the English language. While Hobbes wrote at the rule-of-law low ebb of the modern English-speaking world—during England’s Civil War, a time when the King’s justice was reviled—English-speaking countries have by and large had a good time of it. In Italy’s mezzogiorno, however, there was a different tradition. The state was weak, corrupted and distrusted, and criminal associations stepped into this vacuum. The code of conduct they brought with them was called omertà. It dictated absolute silence and non-cooperation with the civil authorities, especially in connection with the investigation of crimes—indeed, it commanded this even of the victim of the crimes.

As we look more deeply into the U.S. attorneys scandal, and consider the testimony of Alberto Gonzales, Paul J. McNulty, William Moschella and Kyle Sampson—and the invocation of the constitutional right-of-silence by Monica Goodling—there are unmistakable traces of the "honor code" of omertà everywhere. This wouldn’t be unusual for a criminal investigation—but for the fact that the subjects are the nation’s senior-most law-enforcement officers.

Paul Kiel takes a close look at the conduct of Michael Elston, who as chief of staff to Deputy Attorney General Paul J. McNulty played a key role in purgegate from the beginning. And his role was as the enforcer—tell the fired U.S. attorneys that if they shut up, all will be okay, but if they talk . . .

Arizona. U.S. Attorney for Arizona Paul Charlton told Congress that Michael Elston, the chief of staff to Deputy Attorney General Paul McNulty, called him and warned him to remain silent. "I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the Attorney General's," Charlton wrote in answer to questions from the House Judiciary Committee.

Arkansas. U.S. Attorney for Little Rock Bud Cummins testified before the Senate Judiciary Committee that Elston had made a similar call to him in mid-February. Cummins produced an email written the day of the call that clearly laid out the threatening undercurrent to Elston's message.

California. Carol Lam writes in her response to the Senate Judiciary Committee’s written questions: On January 5, 2007, I received a call from Michael Elston informing me that my request for more time base on case-related considerations was “not being received positively,” and that I should “stop thinking in terms of the cases in the office.” He insisted that I had to depart in a matter of weeks, not months, and that these instructions were “coming from the very highest levels of the government.” In this and subsequent calls, Mike Elston told me that (1) he ‘suspected” and “had a feeling” that the interim U.S. Attorney who would succeed me would not be someone from within my office, but rather would be someone who was a DOJ employee not currently working in my office, (2) there would be “no overlap” between my departure and the start date of the interim U.S. Attorney, and (3) the person picked to serve as interim U.S. Attorney would not have to be vetted by the committee process used in California for the selection of U.S. Attorneys.

Washington State. And U.S. Attorney for Seattle John McKay has said that he got a call from Elston in December. Newsweek reported that McKay says "he also got a phone call from a 'clearly nervous' Elston asking if he intended to go public: 'He was offering me a deal: you stay silent and the attorney general won't say anything bad about you.'"

Which raises a couple of questions. One is how many other U.S. attorneys got similar calls from Elston? And the other is how Mr. Elston could possibly still be on the payroll of the Department of Justice.