On January 23, 2012, Senator Shaheen ordered the U.S. attorney in NH to investigate Senator Ayotte for obstruction of justice in a longstanding federal civil suit and for lying to the NH Executive Council, who act on nominations submitted by the governor.
Ayotte's nomination hearing took place in March, 2009. She was questioned on whether her office covered-up for state prosecutors on allegations that they fabricated evidence and withheld, mischaracterized, and destroyed videotape evidence in the underlying case that led to the civil suit. She responded in an evasive, 1200 word email that did not address the facts. Nevertheless she was confirmed, only to announce her resignation three months later to run for the senate.
Two previous investigations of Ayotte on the same matters had been ordered by New Hampshire Federal Judge Joseph Laplante in June, 2007 and again in November, 2007. Each investigation was covered-up by the former Republican U.S. Attorney.
Holder was in NH this past April 19, 2012 to honor a fallen police chief murdered while serving a warrant to a known drug dealer.
This writer had a scheduled appointment with U.S. Attorney John Kacavas five days later on April 24,2012. On that morning, a call was received from the U.S. Attorney's Office cancelling the appointment without comment. But the Office did admit that Kacavas spoke with Holder at the ceremony. On May 1, 2012 a letter was received from the U.S attorney stating that he had closed the investigation due to the fact that the statute of limitations had expired in the underlying case. He ignored the fact and refused to reconsider that Ayotte's transgressions of 2007, 2009, and 2011 fell well within the federal five-year statute of limitations, and furthermore, he refused to reconsider the numerous applications of law prevalent in the underlying case that toll the statute.
Had the investigation gone forward there was the strong liklihood that, at the very least, Ayotte would have resigned. At worst she would be facing a federal indictment for obstruction of justice.
What may seem to be an unusual paradox, the shutting down of an investigation that could quickly result in Ayotte leaving the senate, is found in the administration's position on prosecutorial misconduct. Simply put, the administration feels that prosecutor's should be able to continue to "bend" the law without the fear of civil penalties in order to take violent criminals off the street. When they go overboard, the rational is that attorney discipline and judicial review boards are effective deterrents to clear-cut and egregious violations as found in this case, which alleges prosecutors fabricated probable cause.
However, it is well known that review boards time and time again allow this type of behavior in the "best interest of the law."
The administration's position is found in an Amicus Brief written by now Associate Supreme Court Justice Elena Kagan, while she was counsel to the president. See
Supreme Court Case No. 08-1065: Pottawattamie County Iowa, v. McGhee.
Ten attorney discipline complaints resulting from this case have been filed against state prosecutors dating back to 2000. In not one instance has the Attorney Discipline Office asked for witness statements to support probable cause, yet it has issued findings of no misconduct in all cases.
The most recent complaint was against Ayotte in March, 2011. The main issues were: (1) that Ayotte refused to turn over witness statements and other chargeable documents in a case her office investigated and (2) that she did not hold prosecutors accountable for violations of the NH Rules of Professional Conduct.
Despite being faced, once again, with withholding information, Ayotte refused to even respond to the complaint. And the Attorney Discipline Office did not make any attempt whatsoever to seek the truth other than inform her that a complaint had been filed.
Since there are allegations of fraud on the court in the federal case, Ayotte's actions to obstruct/conceal constitute a federal felony.
This case needs to be reopened. A finding against Ayotte will send a strong message to the Supreme Court that professional review boards purposefully ignore facts, resulting in findings of no misconduct and make no effort to secure documents that are absolutely necessary to support their findings.
Holder should be severely criticized for not following through on the many statements he has made that "no one is above the law".
On January 28, 2011, he announced the opening of a new unit to handle disciplinary action stemming from Office of Professional Responsibility findings in which intentional or reckless professional misconduct is alleged.
In his statement, he said "current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions, but this new Unit will help change that by providing consistent, fair, and timely resolution of these cases, “In the vast majority of cases, Department attorneys meet their professional obligations but when allegations of misconduct occur, all parties deserve a fair and timely resolution. This Unit will be instrumental in achieving that goal and will also further the Department’s mission of meeting its ethical obligations in every case.”
Attorney General Holder must be held accountable to stand by his own words in the many questions raised by the U.S. attorney's notice to Senator Shaheen to close the case.
And three of those questions are: Did Holder inform the president that Ayotte was under investigation? Will an investigation reveal that Holder ordered U.S. Attorney Kacavas to close the case or did the U.S attorney make that decision himself?
Additional info: Google: DaveColtin December 2, 2010 (YouTube link addressing these matters at the nomination hearing for the new chief justice of the New Hampshire Supreme Court)
