If U.S. Attorney Ellsworth will step forward, we will swear him in and proceed.
Mr. Ellsworth, thank you for joining us. Will you please raise your right hand? Do you swear that the testimony that you will give before this Senate subcommittee will be the truth, the whole truth and nothing but the truth, so help you, God?
Mr. ELLSWORTH. I do, Senator.
Senator SPECTER. Thank you very much for joining us, Mr. Ellsworth. I understand that you do not have a prepared statement so we do not have to admit that for the record, and that is fine.
Mr. ELLSWORTH. That is correct, and it looks like we are running a little behind time, anyway.
Senator SPECTER. Well, take a few moments, as much time as you reasonably need to give us an overview and an outline, starting with a little bit of your own background and how long you have been the U.S. attorney.
TESTIMONY OF MAURICE 0. ELLSWORTH, FORMER U.S. ATTORNEY, DISTRICT OF IDAHO
Mr. ELLSWORTH. I have not been the U.S. attorney for 2 years now, but I was the U.S. attorney for 8 years.
Senator SPECTER. How long you had been U.S. attorney, what did you do prior to that, and what have you done since?
Mr. ELLSWORTH. Sure, Senator.
I was the U.S. attorney for 8 years from July 1985 until August 1993. Prior to that time, I was here, in Washington, DC, in the Interior Department. I was the Associate Solicitor for Audit and Investigation with the Interior Department from March 1981 until I became the U.S. attorney in July 1985.
Senator SPECTER. And before that?
Mr. ELLSWORTH. Prior to that, I was in private practice in Idaho for a couple of years, and prior to that I was a Blame County prosecuting attorney in Blame County, ID, and prior to that, I was in private practice, and prior to that I was in law school.
Senator SPECTER. Give us your brief overview on this entire matter, please?
Mr. ELLSWORTH. Well, it is hard to know exactly where to begin. I guess maybe, there has been a lot of indication or at least at the time of the trial, some of the publicity that went out, to suggest that Mr. Weaver was in some way targeted by the Government. I cannot speak for all of the agencies that were involved, but certainly from the perspective of the U.S. attorney's office, nothing could be further from the truth.
I probably first became aware of Mr. Weaver at a time that I do not even recall and that would have been when his file came into my office. The routine that we handled in the U.S. attorney's office was that agents would call in and they would speak with the duty attorney of the day who would essentially fill out a case-opening sheet and that would then be put into a file and ultimately that file would be assigned to an assistant U.S. attorney as the assigned attorney.
Mr. Weaver's case apparently came in, in a routine manner, as a case from the Bureau of Alcohol, Tobacco and Firearms. And I routinely assigned it, probably with several other cases, on the same day to Assistant U.S. Attorney Ron Howen, and never thought anything more of it or was any further aware of it.
The first awareness I had of Weaver, as such, was one day when I was sitting in my office in January or February 1991, and I was going through my mail and I had a letter in a hand-written enve lope which I am sure the committee has copies of, the Queen of Babylon letter and Servant of the Queen of Babylon letters.
And I read those letters and they had some pretty apocalyptic kind of large and language that, at least, contained what I thought must be a veiled threat toward the office and toward the Government and it was signed by Mrs. Vicki Weaver.
I contacted the Marshals Service and said that I had this letter that I would like for them to look at and perform a threat assessment to determine whether or not those letters were, constituted any sort of threat or anything that they might be aware of with regard to my office. And someone from the Marshals Service—I am not sure who it was—one of the deputies picked up the letters and got back to me either that afternoon or the next day, I do not recall which, and said we think this pertains to a case in your office you are currently prosecuting and have indicted an individual named Randall Weaver for selling illegal firearms, shortened shotguns. And we do not perceive these as probable threats to you or your office, but we do think it is a statement that he is not going to appear for his trial date. So that was the first awareness that I have or that I recall of Mr. Weaver.
Following that time, there were a number of contacts by the Marshals Service as they contacted us about their efforts to arrest Mr. Weaver. Of course, the bench warrant had been issued when he did not appear and subsequently my office indicted him for failure to appear.
I think it was in the spring of 1991, maybe early summer, that there was a gentleman from the Marshals Service in Washington who came to the office and indicated they were out doing some sort of surveillance and trying to figure out what kind of approach to use to arrest Mr. Weaver. They mentioned the possibility of some sort of a frontal assault up there, but they were concerned about that there were children and so forth. And they did not know what the best approach would be.
I said that I would not support any sort of a frontal assault-type of approach, although obviously I did not have supervisory or directory authority over the Marshals Service and fugitive apprehension was their responsibility.
I suggested to them that maybe they ought to contact Judge Ryan and see just how strongly he felt about this since there was obviously a problem. I was told, subsequently, and I do not know just when it was, by one of the marshals that Judge Ryan had been contacted and that he had made a statement to the effect that he wanted Weaver brought down or he wanted him arrested or something like that.
And the marshals, we were not in constant contact. I mean this was one of many cases in the office and, you know, hardly a focus of attention. But the marshals did mention that they were undertaking various efforts to get Mr. Weaver down. And they suggested that his, that they had received some further communications from that, from Mr. Weaver, that he was not, he had been tricked by the Government before, he was not going to be tricked again. He was not going to come down.
At some point, we cautioned the marshals about contacting the Weavers directly. The concern being that the Justice Department had guidelines on communications with represented persons. We knew that Mr. Weaver was represented by an attorney and cautioned them to attempt to get the permission of his attorney for contacts with Mr. Weaver. But I am trying to recall—at one point I know I told the marshals that or the marshals indicated that they had some suggestion that Mr. Weaver had been seen around the town and that they might be able to arrest him if he came into town. And I suggested that why did they not post a marshal up there tomorrow the road that came down from his place down into the town and try to arrest him in that sort of a circumstance. The marshals go back to me and said that they did not have the personnel to do that and it was too expensive.
Then the case went on. It got into the fall, I think, and they determined that they were going to discontinue any sort of efforts for the winter and then take up the matter in the spring.
At some point, again, I do not recall when it was, but the marshals were up there and had started putting in their electronic surveillance and their video monitoring and so forth. And I sort of facetiously said to them, gee, for all the money you are spending, why do you not just build a fence around the place and call it a Federal prison?
Obviously that was not a realistic suggestion but I mean it was kind of indicative of the concern that I had that a lot of resources were being devoted to this case.
At any rate, in the spring of 1992, I was told that the case was, they were developing some plans, but the case was going to be put on hold for a while because marshals or then Marshal-designate Hudson was, his confirmation was, pending before the Senate and that they did not want to do anything until he had been confirmed.
And then I was told in early August or sometime in August 1992 that he had been confirmed and that they were going to start actively trying to figure out a way to get Mr. Weaver down again. That was the last I had heard until I was sitting in my office one afternoon and Marshal Johnson called me up and said that they had been up on the hill, there had been a shooting and one of their people was down. And I immediately went up to his office, and began to try to get more information.
Senator SPECTER. Mr. Ellsworth, there are three questions that I would like your responses to. We are going to go on 5-minute rounds because it is very late in the day.
I have asked the staff to make available to you a couple of letters, one which you wrote and one which was written for you by Assistant U.S. Attorney Howen. I begin with this letter of August 6, 1993, which will be made a part of the record without objection.
[The letter from Mr. Ellsworth to Janet Reno follows:]
U.S. DEPARTMENT OE JUSTICE,
DISTRICT OF IDAHO,
August 6, 1993.
Hon. JANET RENO, Attorney General, U.S. Department of Justice, Washington, DC.
DEAR GENERAL RENO: This letter is a formal objection to the manner in which the Department of Justice is proceeding with its review of the handling of recent case of U.S. v. Randall Weaver and Kevin Harris in the District of Idaho. At the outset, I must state emphatically I do not object to review by the Office of Professional responsibility (OPR) or investigators of the Department. of Justice per se. My
objection is to the involvement of agents of the FBI in the conduct of the inquiry. Although I have very high regard for and am friends with many FBI agents, I do not feel the FBI's participation in this review is at all a propriate.
It is my understanding a "full inquiry" is to be conducted into all aspects of the investigation and prosecution of the Weaver/Harris case. The FBI was a major player in that investigation and prosecution. Not only the conduct of FBI special agents in the field but also decisions and actions of FBI personnel in Washington, D.C., as well as FBI policies and procedures, are appropriate subjects of the inquiry. Indeed, from a prosecution perspective, some of the principal problems encountered in the case were a direct result of actions of FBI headquarters personnel. Much of the criticism of the government by the media, the public, and even the U.S. District Court in Idaho concerning this case was directed at the FBI. In the face of such serious questions, it is incomprehensible to me that agents of the FBI would be assigned to this matter.
When I was initially contacted for an interview concerning this case by Barbara Berman of OPR, I voiced concern with the FBI's involvement in the inquiry. Nonetheless, I agreed to the interview and was assured by the FBI agents involved they have "no horse in this race" and are committed to a fair and factual investigation. I do not question their desire to be objective, only their ability. On more than one occasion during my interview, they attempted to explain or even rationalize FBI policies or procedures after I identified problems my office had confronted in the trial as a result of actions of the Bureau. This would seem to indicate they have already made a judgment, apparently in the FBI's favor, regarding some of the problems we encountered. I do not intend this as a criticism of them but I fear FBI agents are so immersed in the policies, procedures and culture of the FBI it is impossible for them to objectively examine Bureau actions and policies as they relate to this case. This is especially so when some of the issues under review could involve their superiors within the Bureau. It is unfair to the other agencies whose actions are being examined, as well as the FBI agents themselves, to put them in this situation.
The Assistant U.S. Attorneys who handled the Weaver/Harris case did a very good job trying to deal with bad facts under very difficult circumstances. Many of the difficulties were caused, or at least aggravated, by the FBI. It is neither proper nor fair to now have the either of this office, and the Marshals Service scrutinized by agents whose first loyalty is to the FBI. I doubt the public or Congress will gain much comfort from an investigation where one of the principal agencies under scrutiny was a major player in conducting the investigation. Indeed, a reporter who has learned the FBI is involved in conducting this inquiry has already done a story portraying serious conflicts of interest.
In conclusion, I request the Department re-examine the manner in which the OPR inquiry is to be conducted. I strongly suggest that the agents and agency assigned to assist truly have “no horse in this race."
Sincerely,
MAURICE 0. ELLSWORTH,
U.S. Attorney.
Senator SPECTER. I go to page one. This is where you say in the second paragraph, picking up in mid-sentence, "some of the principal problems encountered in the case was the direct result of actions of FBI Headquarters personnel." Now, specify, if you will, the problems that you were referring to that you had with FBI Headquarters and the prosecution of this case.
Mr. ELLSWORTH. From the outset of this case there was a total lack of cooperation from the FBI.
Senator SPECTER. Why was that?
Mr. ELLSWORTH. I wish I knew. I wish to this date that I knew.
Senator SPECTER. What problems were caused by their lack of cooperation?
Mr. ELLSWORTH. Well, we never had, I do not believe, the U.S. attorney's office has yet to this day ever had complete access to all the files in this case.
Senator SPECTER. Why not?
Mr. ELLSWORTH. I do not know. We asked for them repeatedly.
Senator SPECTER. What kind of information were you looking for that they did not give you?
Mr. ELLSWORTH. We were initially trying to get copies of the shooting report, copies of all the incident reports. We had been told that various reports had been done. I know there was one report that we did get a copy of that the FBI initially did which was a first-draft shooting report which showed the location, had the location of the HRT team in the wrong place and
Senator SPECTER. Why could you not get something as fundamental as a shooting report?
Mr. ELLSWORTH. Senator, I do not know.
Senator SPECTER. How about the rules of engagement?
Mr. ELLSWORTH. We got a copy of the rules of engagement, learned of the rules of engagement issue maybe a month or so into the case.
Senator SPECTER. Into the trial?
Mr. ELLSWORTH. Pardon me?
Senator SPECTER. Into the trial?
Mr. ELLSWORTH. No, after the incident, once we were preparing, after we had indicted the case, but as we were working on the discovery.
Senator SPECTER. That was a pretty important point, was it not?
Mr. ELLSWORTH. We felt it was a very important point. That is why we wanted to have access to people in Washington, DC, in the headquarters office to determine who had authorized the change in the rules of engagement—
Senator SPECTER. You wanted to find out who had authorized the
change in the rules of engagement?
Mr. ELLSWORTH. Yes, we did.
Senator SPECTER. And what response did you get?
Mr. ELLSWORTH. No response. I came to Washington one time. My assistant, Ron Howen, and Kim Lindquist came back here either two or three times, I am not sure which. The one time that I was back here we met with Justice Department officials, some people in the Criminal Division, and they had told us they would try to arrange meetings with the FBI
Senator SPECTER. Did you ever have any meetings with the FBI?
Mr. ELLSWORTH.We had no meetings with the FBI. The FBI people declined to meet with us.
Senator SPECTER. I would like you to give some thought to the specifics that the FBI declined to help you with and to provide that to us in writing. I would like you to give some thought to that and give us a written response as detailed as you can.
I go now to page 2 of this letter you wrote to Attorney General Reno, you were responding to an investigation which Justice was doing on the way the trial was handled and the way the investigation was being handled by FBI agents.
And you wrote here, on page 2, picking up in the middle of the sentence, going right to the core of the issue, "I fear FBI agents are so immersed in the policies, procedures, and culture of the FBI it is impossible for them to objectively examine Bureau actions and policies as they relate to this case."
Now, would you amplify on your concerns as to why you felt it was improper for the FBI to investigate the way this case was handled by your office, and others involved in the case when part of the inquiry, itself, refers to what the FBI did in this case?
Mr. ELLSWORTH. Yes, Senator.
Well. first, as I start out the letter, I indicated we had no problem with our conduct being examined by an investigative team or a review team of the Department of Justice. My concern was with FBI agents being involved in this process because every indication we had from the early days, when people would not meet with us and we could not get access to documents or files from the FBI was, that this was coming from higher up in the Bureau. It was not coming at the working agent level or even at the supervisory level in Idaho or even at the supervisory level in Salt Lake City which is the region that Idaho is under. The problem was in Washington, DC, and at the higher levels in Washington. My feeling was that that put these individual agents in the position of essentially investigating their own superiors and after having dealt with the FBI for the number of years that I had, as U.S. attorney, there is a unique culture to the FBI. There is an almost institutional arrogance, if you wifl. on the part of some people in the FBI—
Senator SPECTER. Institutional arrogance?
Mr. ELLSWORTH. Yes.
Senator SPECTER. What do you mean by that?
Mr. ELLSWORTH. Well, I caution that I am not directing this at all FBI agents, because some, I have some very good FBI agent friends. I have the highest regard for the integrity and ability and qualifications of many people in the FBI. But there are some people within the supervisory levels of the FBI who have the attitude that any FBI agent, the most lowly FBI agent, the agent that started yesterday is superior to an agent from any other agency of the Federal or State or local Government, no matter how seasoned, no matter how experienced, no matter how qualified. And that any FBI agent who steps into a case automatically should be in charge and knows more than anybody else who may be involved.
That is part of the institutional feeling within the Bureau that I have observed over the years. And that is the culture I guess, if you will, of the FBI that I was referring to in this letter and the concern that I had that any FBI—well, as I indicate in the letter— the agents who interviewed me initially for this report, as I began to voice concerns about—well, they first said that they were there to be objective. That they have, as I said in the letter, they have no horse in this race. They proceeded, as the interview went on, when I would voice concerns about this Bureau policy or that Bureau policy one of the policies was the Bureau has a strong policy of never recording interviews, they just do 302's. But they do not— they take notes and do 302's. We were always trying to get them to record interviews so we would have an actual verbal record of what had been said rather than written notes and the interpretations of an agent that were filtered through an agent. That is contrary to FBI policy.
So when I would mention things like this that were concerns of mine, these agents would begin to explain to me why the FBI did things this way, why this was FBI policy and so forth. So I did not feel that they were, despite their desires, perhaps to be objective, that they were, in fact, objective. And that an other agency who may be being reviewed was going to be able to get a fair evaluation from these folks.
Senator SPECTER. Senator Feinstein.
Senator FEINSTEIN. Thank you very much, Mr. Chairman. Mr. Ellsworth, you know ATF Agent Byerly?
Mr. ELLSWORTH. Yes, I do.
Senator FEINSTEIN. And you talked with Agent Byerly?
Mr. ELLSWORTII. Yes, I have.
Senator FEINSTEIN. And did you discuss Mr. Weaver's criminal record?
Mr. ELLSWORTII. No.
Senator FEINSTEIN. You have never discussed his criminal record with him?
Mr. ELLSWORTH. Not to my recollection.
Senator FEINSTEIN And no questions were asked of you about his criminal record?
Mr. ELLSWORTH. I am not following the train of your question. I do not recall ever—
Senator FEINSTEIN. You do not recall?
Mr. ELLSWORTH. I. I do not recall ever being asked about Mr Weaver's criminal record.
Senator FEINSTEIN. OK. What do you know of Mr. Weaver's criminal record?
Mr. ELLSWORTH. I do not know anything of Mr. Weaver's criminal record. My recoIlectiom is that I was told, as we were preparing for the trial of this case, that he did not have a previous criminal record.
Senator FEINSTEIN. So you were under the impression that he did not have a criminal record'?
Mr. ELLSWORTH. That is correct.
Senator FFINSTEIN. And there was no way that you could give to Agent Byerly the, well, the conclusion that he did have a criminal record of any kind or was involved in any other criminal activities?
Mr. ELLSWORTH. Not that I am aware of, Senator.
Senator FEINSTEIN. OK. Let me ask you about your letter of October 17 to Ron Evans and Dave Hunt of the Marshals Service in which you say, "Pursuant to our phone conversation concerning the proposed negotiated surrender of Randall Weaver, I cannot authorize further negotia1ions or discussions along this line with defendant or his agent for two reasons. First, since the defendant is represented by Mr. Hofmeister, all contact with the defendant must be through his lawyer and not by ex parte means"
You mean US. marshals can never talk with someone they are asked to serve a search warrant on? Or excuse me, warrant for their arrest on?
Mr. ELLSWORTH. Senator, first, I must note that I did not write this letter. The letter was written by my assistant. Obviously I was a U.S. attorney and I take responsibility for any communication that came out of my office, but this is the first time I have ever seen this letter so—
Senator FEINSTEIN. So, Mr. Howen did not discuss this with you but did this all on his own?
Mr. ELLSWORTH. Did not discuss this letter, per se. As I indicated in my initial comments, we did express concern, had expressed con-
cern to the Marshals Service that communications with represented persons are a concern and there are specific guidelines within the Department of Justice that address that issue.
Senator FEINSTEIN. I did not know that. I will look them up, certainly, because you are essentially saying that no deputy marshal can talk to anybody that they have to serve a warrant on?
Mr. ELLSWORTH. I am not saying that, Senator. I am just saying that there are guidelines within the Department of Justice which address that issue and address obtaining the permission of counsel if the person is represented.
Most of the time or oftentimes, when the marshals arrest someone they are not represented by counsel and, of course, they would give them their standard Miranda rights. But if the person chose to talk with them, that would be up to the person arrested. But in a situation where you have an individual who is, as in this case, represented by counsel and you know they are represented by counsel there are specific Justice Department guidelines in terms of what can and how those communications are to occur.
Senator FEINSTEIN. Are you aware of any situation in which the marshals were told to go get him?
Mr. ELLSWORTH. No, I am not, Senator.
Senator FEINSTEIN. And not to try to negotiate any further his release or wait him out?
Mr. ELLSWORTH. No, I am not.
Senator FEINSTEIN. Because I am of the distinct impression that both you and the judge wanted him brought down that mountain, period, the end.
Mr. ELLSWORTH. Senator, that is not correct. I do not know what the judge's feelings were. I was told that he said, bring him down. My own personal opinion, as I indicated earlier, was why do you not station a marshal up there and wait for him to come down. And then facetiously I said, why do you not just build a fence around the place and leave him up there?
I did not have strong feelings at all that he be brought down. I thought that there was an inordinate amount of money and effort being used to attempt to get him down.
Senator FEINSTEIN. Thank you, Mr. Chairman, my time is up.
Senator SPECTER. Thank you very much, Senator Feinstein.
Senator Thompson.
Senator THOMPSON. Mr. Ellsworth, of course. you as a U.S. attorney were responsible for conducting the trial against Weaver and Harris, is that correct?
Mr. ELLSWORTH. Yes, I was.
Senator THOMPSON. The one that we have been talking about that lasted a couple of months where he was charged with murder and conspiracy and various other charges?
Mr. ELLSWORTH. Right.
Senator THOMPSON. And the FBI is, the investigative arm, really, that you have to utilize to gather the facts to prosecute the case with, is that correct?
Mr. ELLSWORTH. That is correct.
Senator THOMPSON. And we know that the results were not very successful from the standpoint of your office in that case. They were convicted of a couple of relatively minor offenses and acquitted on all the other offenses, is that correct?
Mr. ELLSWORTH. That is correct.
Senator THOMPSON. Now, you have indicated that you did not get sufficient cooperation from the FBI. Could you be a little more specific in terms of the kind of information that you were trying to get that you were having trouble getting or never did get?
Mr. ELLSWQRTH. Sure. To go back a little bit from that point, let me talk about during the time that the siege was ongoing when Weaver was still up on the mountain and the FBI was up there with all the other law enforcement people.
I had contact with Gene Glenn, who was the special agent in charge, who is a special agent in charge for the Idaho/Utah region. And I contacted him several, times while they were up there and expressed my concern. My assistant U.S. attorney, Ron Howen, had gone up there and he was actually up at the base camp to be there in case warrants needed to be drafted or advice needed to be given. For example, when we got a wiretap authorization, he went out and gave minimization lectures to all of those who were involved.
Senator THOMPSON. So the kind of information that you wanted that you did not get.
Mr. ELLSWORTH. Excuse me, I had to give that little bit of background because I contacted Gene Glenn and said, when this case, -when we get him down I want the whole area cordoned off and I want a thorough crime scene investigation. I want a total forensic investigation done.
And he assured me that would happen. I contacted him again because I was told people were going up the mountain. They were closing in and the area that was secured was getting smaller and smaller and areas like the Y and so forth had been, that had previously been out of touch, were now people were going through there. I reiterated to Mr. Glenn that I wanted that area sealed off, that I wanted to make sure that we had a thorough forensic investigation, that we were able to find shell casings, that we were able to find all the kinds of evidence that you would normally do in a crime scene investigation.
I was, again, assured basically, I was kind of told, you know, that was not my business, that was his business. He was a law enforcement agent and they were in charge and they would take care of it.
When the surrender finally occurred, then the next thing I saw after that was a news conference with media and everybody else under the sun walking around up there and they had one little area cordoned off where they had a bunch of weapons out for display and people were walking around the house and everything else.
Senator THOMPSON. Well, what about specifically with regard to the trial. You are preparing for the trial. You are going through this long exhaustive, highly publicized trial. You need certain things.
Mr. ELLSWORTH. Right.
Senator THOMPSON. You know, for example, that when a Federal witness testifies, that he is going to have to turn over any state ment that he has made to the defense, at least at that time, if not before.
Mr. ELLSWORTH. Right.
Senator THOMPSON. The defense, I am sure, made a raft of motions for certain documents and all of that.
Mr. ELLSWORTH. They did, Senator.
Senator THOMPSON. What kind of cooperation did you get, what kind of documents were not provided that should have been? I recall, for example, that there was one report with regard to a drawing that Mr. Horiuchi made that indicated figures that he saw in the window before the shot that was fired that killed Mrs. Weaver and shot Mr. Harris, that that was late in coming and even resulted in the judge fining the FBI because it was sent fourth class mail and did not get there until about the end of the trial.
Mr. ELLSWORTH. That is correct.
Senator THOMPSON. I will finish with this. I will let you relate to that. My time is running out. I will just ask you, the chairman asked you to provide a list of things of the nature we have been talking about. I would specifically be interested in those things that have yet to be made public that never came out in the trial, that never have been submitted by the FBI, things that you thought were important to the investigation that was conducted that you needed for the trial, that you feel like that you were stone-walled on and never did get. Could you do that for us?
Mr. ELLSWORTH. I could do that except that I do not know what those things are myself. That was the problem. We did not know. We were requesting to see everything and we were told that we could not see, we would see what they allowed us to see and that was all. And to this day, I do not think that I or any of my former assistants have ever seen all the files or documents or materials related to this case.
Senator THOMPSON. One last question. Who is the highest level, within the FBI, that you talked to about this matter?
Mr. ELLSWORTH. It was either Mr. Coulson or Mr. Kahoe and I do not recall which. That was when we were having a problem getting some witnesses out to Idaho that we wanted to interview. We were told, we were initially told that they were going to be there, and then we were told the next morning, no, the FBI had decided they would not send them. I got, again, it was either Mr. Coulson or Mr. Kahoe on the phone and I said, we want them here. He said, well, you do not need them. I said, you will have a grand jury subpoena for them which was unprecedented—you do not grand jury subpoena FBI agents—but you are going to get a grand jury subpoena. And I was told, they would be available.
Senator THOMPSON. What witnesses were they?
Mr. ELLSWORTH. This was the HRT people.
Senator SPECTER. Thank you, Senator Thompson.
Senator Craig.
Senator CRAIG. Thank you very much, Mr. Chairman.
Mr. Ellsworth, for the record, you and I have been friends for somewhat of an extended period of time, well over probably now two decades, is that correct?
Mr. ELLSWORTH. Approaching that, Senator.
Senator CRAIG. All right. This was also a high-profile case in Idaho. I think it is now recorded to have been a case that drew on for a good long while, if not the longest case tried in Idaho history, is that correct?
Mr. ELLSWORTH. That is correct.
Senator CRAIG. It was tried in the Federal courthouse in Boise, is that correct?
Mr. ELLSWORTH. Correct.
Senator CRAIG. At that time the profile of this case was such because of the security involved there were a good deal or a great many officers, guards, a great deal of television, a very high-profile case, is that correct?
Mr. ELLSWORTH. That is correct.
Senator CRAIG. Following the case, do you recall a series of conversations we had, and I recall at least one where you were terribly frustrated because information was not made available and it was the information that Senator Thompson alluded to a few moments ago, do you recall that?
Mr. ELLSWORTH. Yes, I do, Senator.
Senator CRAIG. I think you also, I recall a conversation in which you said that your ability to try the case had been tremendously handicapped by the FBI.
Mr. ELLSWORTH. Yes, Senator.
Senator CRAIG. Can I make this assumption, that obviously this was the responsibility of your office to try the case, it was a tremendous1y high-profile case, and by your testimony today you indicate, as you did to me well over a couple of years ago, that you were handicapped greatly by it and that that was a difficult, if not an embarrassing situation for you because for a lot of reasons, but partly because it was such a high-profile case?
Mr. ELLSWORTH. Yes, it was, Senator. It was a very difficult situation, a very frustrating situation. One which I have never experienced before and hope to never experience again.
Senator CRAIG. Well. I hope you will make a great effort to catalog, if you will, the information that the chairman has asked for. I think that is critically important in our building of a record as to how all of this transpired and how public policy may or may not have been misused in this instance.
For the first time today, I heard Federal marshals suggest a theory that I had not heard before and that was that Randy Weaver may have shot his son in the cross-fire. Was that theory ever brought before the court at the time you were trying the case?
Mr. ELLSWORTH. To my recollection it was not brought before the court. It was mentioned or discussed as one of the possibilities in terms of the analysis. There was always a question in the minds of everyone as to who shot Sammy Weaver? I believe Mr. Cooper when he says that he is convinced he did not shoot Sammy Weaver but there was never any indication, well, we were never able to determine. That goes to the very heart of the issue I mentioned about the forensic investigation that was done or not done. Even months after the initial incident, in the spring of, I think it was in February or March 1993, while we were attempting to put together this case for trial, one of my assistants and a private consultant that we hired to help us do some crime scene analysis, shooting analysis, trying to do a shooting reconstruction report for us because the FBI had told us that they could not do one, we hired a private consultant to do that. And he and one of my assistants and some other law enforcement, I think some of the marshals' people went up on the hill there and tried to find more evidence. And they dug some snow around where some of the things had occurred and found some additional shell casings, I believe, and another piece of the butt plate from the gun and so forth, that had not been found before.
Senator CRAIG. How long after the shooting did these findings occur?
Mr. ELLSWORTH. This would have been 6 or 7 months. But it goes to, as I say, the issue I addressed initially that I had wanted a complete and thorough crime scene review, forensic analysis and I was told by some of the people that were up there that as soon as Randy Weaver came down everybody was just anxious to get out of there and they left. And, in fact, we had had anticipated or I had expected that the FBI would send in a different team. Obviously, the people who had been there for 11 days or however long the stand-off was, would be tired and wanting to get out of there. But if they would have brought in a new forensic team to do a complete investigation and analysis I think it may have been very enlightening on the very question that you are asking, but that was never done.
Senator CRAIG. So the theory that Randy Weaver shot his son certainly could not be used or was not used in court, largely because of a lack of evidence?
Mr. ELLSWORTH. That is correct, Senator.
Senator CRAIG. Thank you. Mr. Chairman, my time is up.
Senator SPECTER. Thank you, Senator Craig.
Mr. Ellsworth, did you receive a reply to this letter to Attorney General Reno?
Mr. ELLSWORTH. I did, Senator. I do not have a copy of it. It is probably in the files of the U.S. attorney's office in Boise. This letter was written 1 week before I left the U.S. attorney's office and I—maybe I do have a copy, now that I think about it because I think I received that reply actually after I left the U.S. attorney's office. So it probably would not be in those files.
Senator SPECTER. Well, we would be interested in the reply. And the letter of' October 17, 1991, that Senator Feinstein referred to will be made a part of the record.
[The letter referred to follows:]
U.S. DEPARTMENT OF JUSTICE,
UNITED STATES ATTORNEY,
District of Idaho, October 17, 1991.
RON EVANS/DAVE HUNT, U.S. Marshal's Service, FBI USCH, Boise, ID.
Re United States v. Randall Weaver; Criminal No. 90—092—N--HLR
DEAR RON AND DAVE, Pursuant to our phone conversation of October 15, 1991, concerning the proposed negotiated surrender of Randall Weaver, I cannot authorize further negotiations or discussions along this line with defendant or his agent for two reasons. First, since the defendant is represented by Everett C. Hofmeister, appointed counsel, all contact with the defendant must be through his lawyer and not by ex parte means. Department of Justice policy and the Cannons of Ethics prohibit direct or indirect contact with a defendant who is represented by counsel for any negotiation purpose. Second, the four areas of proposed negotiation are either not within my power to grant or bind the government, to broad in their scope, or are the type of matters properly addressed in a plea agreement in exchange for guilty pleas, but not mere surrender.
For these reasons, any further negotiation for the surrender of Mr. Weaver must be made through his lawyer, or at least, with his express knowledge and consent.
Sincerely,
MAURICE 0. ELLSWORTH,
United States Attorney.
RONALD D. HOWEN,
Assistant United States Attorney.
Senator SPECTER. Mr. Ellsworth, I know you have come a long way for this hearing, but when you have had a chance to get the reply from Attorney General Reno—
Mr. ELLSWORTH. The reply did not come from her. I believe it came from the Deputy Attorney General as I recall.
Senator SPECTER. Well, because of the reply to your letter to Attorney General Reno and a specification of the other matters that the FBI did not provide to you, I would like you to consider coming back. Some of the people have not had a chance to question you because of the circumstances. People had a lot of commitments that they had to return to. And the content and substance of your letter, I think, requires more scrutiny and more analysis.
For example, the investigation of the alleged coverup is being investigated by FBI agents. We have had a disclosure about the destruction of a document which has been made public. The reassignment of the No. 2 man in the FBI, the later suspension of the ex-No. 2 man with others, and the coverup that is being investigated by FBI agents which goes to the core question that you have raised in your letter in a very profound way. Where you raise the question about "FBI agents being so immersed in the policies, procedures, and culture of the FBI that it is impossible for them to objectively examine Bureau actions and policies as they relate to this case."
I do not want to get into that with you. I will just ask you one question. Do you think, based on what you said there, that the FBI can investigate a coverup of the FBI?
Mr. ELLSWORTH. I have a very difficult time accepting that they can, which is not to say, as I said at the beginning, I have the highest regard for the integrity and abilities of a number of many, many FBI agents I have worked with over the years that I would not question them in any respect. But there are others who I do not feel that way about and there are things about the Bureau culture, the Bureau supervisory structure, the Bureau point-counting structure, if you will, in terms of cases and priorities that trouble me and make me not comfortable at all that they can or should be the final decision makers on events happening within their own agency.
Senator SPECTER. Mr. Ellsworth, it is just fundamental that someone, some agency cannot investigate itself. That is the fundamental reason why we have congressional oversight, why Senators and Members of the House of Representatives sit on oversight matters, because of the inherent conflict of interest in having a self-investigation.
And, as you say, the large majority of FBI agents you know are fine. Some may not be, but even the very best have an inherent conflict of interest, even when they are detached for a specific investigation, because they have to go back to the Federal Bureau of Investigation, they have to deal with the same people.
And the experience that you have had and that you articulate in your letter are very core issues which this subcommittee is going to have to examine in some greater detail. I think it is important as the matters relate to this prosecution you had, because your prosecution may well have touched some of the same issues which are involved in our oversight hearing at the critical time when the case was lost.
And do you think that there was a casual relationship or would you have had a better chance to win the case had you had cooperation from the FBI? That is practically a self-answering question.
Mr. ELLSWORTH. We certainly would have had a better chance. I mean there are clearly problems with the case. Any time you have got the wife and minor son dead at the hands of Federal agents, you have got some pretty hefty strikes against you in pursuing a prosecution.
However, if you can paint the picture and show that the father, the person you are prosecuting, is responsible for all of this, that the decisions that he made led inevitably to some of the things that happened you would, in my opinion, stand a pretty good chance. But when the whole theory of the defense case is Government coverup, Government misconduct, and the defense attorney is holding a news conference every day on the courthouse steps talking about Government misconduct, Government coverup and every day in court is making comments along those lines, and then you see the judge sanctioning the Government for not producing evidence and sanctioning the Government for delaying and for various things which were caused by the FBI, that only goes to enhance precisely what the defense attorney is saying. And I think greatly enhances the possibility that an acquittal is going to be the result.
Senator SPECTER. Was the jury sequestered, that is, kept together, or did they have access to all those public press conferences?
Mr. ELLSWORTH. The jury was sequestered but, as I say.—
Senator SPECTER. It slips through?
Mr. ELLSWORTH. Well, it is possible and also the whole theory of the defense was made abundantly clear in the courtroom by the defense attorneys sufficient that when that is backed up by the findings of the court finding the Government in contempt and finding that the Government has proceeded improperly with regard to supplying evidence to the other side, it only enhances that.
I might add, Senator, just along this line, one of the things that was a possible cause of some of this was a decision that my office made at the outset on this case. There were allegations of Government coverup. There were allegations of impropriety and so forth on the part of the Government being made from the very beginning.
We made a conscious decision at the beginning that we were going to, rather than comply with the rules of procedure in terms of what we had to turn over to the defense and when, we decided that we would turn over everything to the defense from the beginning. We would give them all the reports we had. We would give them statements. We would disclose everything and we would have an open-file policy on this case to try to take away. So that we could go into court and say we have given them everything and we have not tried to play hide-the-ball at all.
The FBI strongly disagreed with us on that policy and I think that that contributed to their refusal to provide anything to us bcause they were afraid that we would turn it over to the defense.
Senator SPECTER. One last question which I think needs to be asked and answered; that is, why this complicated indictment? A number of people have testified that the inordinately complex indictment charging a long-term conspiracy was a critical factor in the ultimate loss. Why such a complicated indictment?
Mr. ELLSWORTH. Because it was—you need to understand the big picture in Idaho about the white supremacist movement and the Aryan Nations. My office had been involved in the prosecution, along with the office of the U.S. attorney in San Francisco and the office of the U.S. attorney in Seattle of the Order in 1985, who had been responsible for an armored car robbery in California, for a murder in northern Idaho, for bombings in northern Idaho and in Idaho.
And as a precedent or a precipitating event in that prosecution was a declaration of war that the Order had issued against the United States. It was a declaration of war written by a gentleman named Robert Matthews, who was one of the founders of the Order and who was killed in a fire on Widby Island, WA, in a confrontation with Federal agents back in, I think, 1984. That declaration of war, the last paragraph in Vicki Weaver's letter to me that is attributed to Matthews is a direct quote from the declaration of war by the Aryan Nations, by Robert Matthews against the U.S. Government.
That prosecution had been a very involved conspiracy prosecution of, well a racketeering prosecution. A little over a year later, a group in northern Idaho attempted to reconstitute the Order. And they set off three bombs in Coeur d'Alene, ID. And were responsible for the murder of another individual up there and were plotting various other crimes. We, again, prosecuted them on a complex conspiracy theory going way back outlining their involvement in all of this activity that had occurred previously.
A couple of years later, a third group arose and were plotting to set off a bomb in a nightclub that was frequented by gays and other minorities in Seattle and we prosecuted that case, again, on a conspiracy theory bringing in some of these kinds of activities that to try and explain to the jury and to the public the big picture of what this movement is all about up there.
In this particular case—obviously a long-winded answer to your short question—in this particular case—
Senator SPECTER. Not as long as the indictment.
Mr. ELLSWORTH. In this particular case, the evidence that began to come into us about Weaver's predictions of an apocalyptic confrontation with the Government, the reasons for his move to Idaho, the ideas that he was espousing, just seemed to lend themselves to a conspiracy. We wanted to show that big picture. If we had it to do over again, maybe we would do it differently, but that big picture, we felt was important to the case to show that there was more to this case than a simple sale of a firearm.
Senator SPECTER. When I tried the Teamsters case, many years ago in Philadelphia, the case came out of a McClellan Committee investigation, trial about the same length, actually longer, a little over 10 weeks. We had a single indictment, we won.
Senator Feinstein.
Senator FEINSTEIN. Thank you, Mr. Chairman. That is an interesting point, Mr. Chairman.
Mr. Ellsworth, what is puzzling me in this is that—and this is my conclusion and it may be faulty—but what you are saying is that there was a real breakdown between your office and the FBI. That there was a lack of trust. Is that a correct assessment or how would you characterize it?
Mr. ELLSWORTH. Well, a lack of trust is perhaps a fair characterization, at least on the part of the senior supervisory levels. We were working with some FBI agents at the local level and, as in any prosecutorial law enforcement officer relationship, there is give-and-take and there is disagreements and resolutions to those disagreements and those kinds of things occurred. But at the supervisory levels at the Washington level of the FBI, there was obviously a breakdown of trust or a breakdown of communications or something. Because they would not communicate with us. They would not supply information to us. It was, again, I never have understood and still do not understand why.
Senator FEINSTEIN. Well, I am sure you have tried to figure out why. Why do you think? Now, this is your conjecture, but fortunately this is not a court.
Mr. ELLSWORTH. Well, as I indicated to Senator Specter one thing was there was a fundamental disagreement about our open disclosure of evidence policy. But I do not think that that was all of it. I think there was more.
Senator FEINSTEIN. Let me stop you right here. On the open disclosure of evidence, could you not have sat down—I can understand in this case why certain evidence might have been very sensitive. Why would you not sit down with them and work something out? Were they not amenable to that?
Mr. ELLSWORTH. We tried to sit down with them. They would not. We tried and tried to meet with those people, they would not meet with us.
Senator FEINSTEIN. Well, how did they think you could get a conviction if you could not get the evidence?
Mr. ELLSWORT. Well, some of that evidence was peripheral to the case, it may not have been direct. I mean we were trying to find out information, for example, about the rules of engagement and those kinds of things. Those were not directly implicated in the case in our case-in-chief.
Part of the reason we wanted to understand more about those was because we expected when the defense put on its case, that those were going to be critical issues and we wanted to know what the answers were. We wanted to know how to blunt the defense's attack on those issues. And also understand if there were problems out there or issues out there that were harmful to our case to know, to craft strategies to deal with those.
Senator FEINSTEIN. Well, we now know and I think probably one of the few points where there is real agreement on this panel and this is just my conjecture is that the rules of engagement were very flawed. Because if you follow them literally they say one thing. And if you follow them in, you have to combine them with something else and then figure it out. So it is probably not a good single piece of paper to have around.
But, aside from the rules of engagement, were there other things as well that they feared if they gave you that would jeopardize a conviction?
Mr. ELLSWORTH. I do not know about feared about it would jeopardize a conviction or feared that it would embarrass the FBI. I mean I think that was the bigger concern. The—
Senator FEINSTEIN. So it is your belief then that you believed that the FBI was hiding something and did not want to give it to you because of your policy of turning everything over to the defense?
Mr. ELLSWORTH. Right. And obviously it was, the reality was it was going to come out at some point, and that was what, that was the flaw in their position from my perspective was that it was going to come out at some point, so why not get it out now and deal with it?
Senator FEINSTEIN. I have 1 minute and I have one more question. Earlier this week, Henry Hudson, the former director of the U.S. Marshals Service, testified that he asked your office to ask Judge Ryan to withdraw the bench warrant for Weaver's arrest and reissue it under seal to draw Weaver off the mountain.
He further testified that your office refused to do this, saying it was unethical and Judge Ryan was opposed to it.
Mr. ELLSWORTH. I do agree that I refused his plan. I thought it was a stupid plan.
Senator FEINSTEIN. Could you tell me why you thought it was a stupid plan, please?
Mr. ELLSWORTH. We discussed it. I discussed it with my staff and concluded that there were several problems with the plan and why we would not do it. One, I did not think that it would work.
Senator FEINSTEIN. What plan are you referring to?
Mr. ELLSWORTH. The plan to dismiss the indictment and reindict him secretly. Is that not the plan we are talking about?
Senator FEINSTEIN. Right, that is correct.
Mr. ELLSWORTH. OK. One, I did not think it would work. Weaver had already made statements to the effect that he had been tricked once by the Government and he was not going to be tricked again. But so, and he had been tricked when the ATF arrested him in the first instance we found out.
Two, I was very concerned about what the court would do with that. I mean the Government is all the time being accused of duplicity and those kinds of things and I was afraid that if we were to do that that ultimately the court would find that that was improper conduct on the part of the Government to be a misuse of the grand jury to have dismissed the indictment, and then to reindict him, secretly.
And, the third and probably most compelling reason that I refused to go along with that plan was that if Weaver should happen to fall for it and come down the mountain, we had been told that he was armed and dangerous and that he was looking for law en forcement. If he came down and some local sheriff or police officer or whatever should happen to stop him for a traffic offense or whatever, I was concerned that he might say, aha, they tried to trick me, they are coming to get me, and shoot some law enforcement officer who did not eyen know that he was dealing with an armed fugitive.
Senator FEINSTEIN. Then clearly you knew a confrontation was inevitable, is that what—by this action the confrontation becomes inevitable. If you knew if he came down peacefully he was going to go after law enforcement, the only thing left then was to take him on the mountain. And you knew he was not going to surrender peacefully on the mountain because you had received all those letters and you knew he would not surrender. So, why would you object to some way to save human life to get him off the mountain?
Mr. ELLSWORTH. My concern was to save human life, the human life of a State or local law enforcement officer who stepped into the situation not knowing what he was confronting, that he was just stopping somebody for a traffic offense and suddenly he is being shot by the individual being stopped who thinks that he is a Fed coming to trick him again.
I would prefer to have him up on the top of the mountain where the law enforcement officers that went up there to deal with him knew what they were dealing with. They knew they were dealing with an individual who was armed and potentially dangerous and knew that they were there with regard to service a Federal process.
And, as a practical matter, with regard to Henry Hudson's suggestion, Henry is a former U.S. attorney, he knew that if he felt so strongly that they had a great plan that would get him down there is a process within the Department of Justice where an agency and a U.S. attorney have a disagreement they can take that to the Assistant Attorney General for the respect, the relevant division which would be the Criminal Division in this case, and each side present their position. And the Assistant Attorney General would make a decision.
And if they are not in agreement with that decision of the Assistant Attorney General then they can, either side can appeal that to the Deputy Attorney General who is the direct supervisor of both the head of the Marshals Service and of the U.S. attorney and the Deputy Attorney General could order the U.S. attorney to dismiss the indictment.
So he had a remedy if he felt that that was a plan that was the best plan under the sun to get Mr. Weaver down.
Senator FEINSTEIN. And one other question. I think this is important because I was somewhat concerned when you called the original arrest of Mr. Weaver when ATF and others put the car on the one-lane bridge, so that he had to stop and they could arrest him peacefully. The implication, I felt, was that you felt that that was something they should not have done.
And, yet, it seems to me, that it was a pretty good thing to do to arrest somebody without anybody getting killed.
Mr. ELLSWORTH. No. I thought that was fine, but what I am saying was Weaver was arrested under a rouse. He was arrested by a situation that was created to avoid a confrontation—
Senator FEINSTEIN. And it worked.
Mr. ELLSWORTH [continuing]. And it worked and he had made a statement that that was not going to happen to him again.
Senator FEINSTEIN. OK. Thank you very much.
Senator SPECTER. Thank you very much, Mr. Ellsworth.
That concludes the hearing today. We will resume at 10 o'clock Tuesday morning.