The Remarkable Careers of Sometimes Prosecutor David M. Barrett

by James Scanlan, Esq.

Those who examine the materials underlying my Truth in Justice editorials of June 26, July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, February 19, February 22, and March 3, 2011, including the Prosecutorial Misconduct page and the profiles on Robert E. O’Neill, Bruce C. Swartz, Arlin M. Adams, Jo Ann Harris, Paula A. Sweeney, and Robert J. Meyer, will find some remarkable things about the way attorneys under Independent Counsel Arlin M. Adams operated in U.S. v. Dean. Some related events are remarkable as well.

The 1990 appointment of Adams to investigate abuses of HUD housing programs arose out of congressional hearings that began in May 1989. They in turn arose out of an investigation by the HUD Inspector General (IG) of apparent improper influence in the allocation of funds in HUD’s moderate rehabilitation (mod rehab) program. The HUD IG investigation, headed by Supervisory Special Agent Alvin R. Cain, Jr. (who is mentioned or alluded to in many of the referenced Truth in Justice editorials and Addendum 1 hereto) had focused on Thomas T. Demery, Assistant Secretary for Housing from October 1986 until January 1989, and Demery’s seeming favoritism toward persons in the housing industry supporting a charity Demery helped found. After failing to have Demery removed from the mod rehab funding process in 1988, the HUD IG issued an extensive report in April 1989, naming Demery in its title.

The principal congressional hearings, which ran until May 1990, were chaired by the late Congressman Tom Lantos. They are discussed on the Lantos Hearings page of jpscanlan.com, especially in an approximately 25,000-word document that I shall refer to here simply as the Inquiry Document. It discusses the way that Demery, aided by the public relations firm of Hill & Knowlton and his own ardent denials of any impropriety, including denials that he even knew the identity of developers and consultants benefiting from his funding decisions, was generally quite successful in steering the congressional investigation and most of the press interest away from himself. Demery might have been entirely successful but for HUD’s October 1989 release of documents from Demery’s word-processing diskettes, which, among other things, included a November 1, 1987 list of pending mod rehab requests matched with the developers or consultants promoting the requests. That item alone seemed to establish that several of Demery’s sworn statements were false. Limiting the count to matters that are pretty clear, materials eventually available, including confessions by Demery, would seem to indicate that Demery lied to the Lantos subcommittee or the House Banking Committee about 30 times. See Appendix D to my August 30, 1997 letter to Independent Counsel Larry D. Thompson.

There are many remarkable things recorded in the Inquiry Document, especially concerning a congressional committee’s ability and desire to find the truth about something it purports to be investigating. The influence of Hill & Knowlton on the proceedings, discussed in Sections A.3 and B.3 of Part II, should be appraised in conjunction with information first disclosed by John R. McArthur concerning the role, in October 1990, of Hill & Knowlton (then retained by the Kuwaiti government) in presenting before Lantos’s unofficial Congressional Human Rights Caucus apparently false testimony aimed at causing the United States to go to war with Iraq (as discussed, with links provided, in item 1 on the Lantos Hearings page).

But the Inquiry Document was written sometime in 1991, well before an event that may be as remarkable as anything in the hearings themselves. Demery’s November 1, 1987 list had matched a Moore, Oklahoma mod rehab request with David M. Barrett. Barrett was a Washington lawyer and prominent Republican fundraiser who was also a housing developer involved in HUD-related programs. He also had a close relationship with Demery, as reflected, for example, in Demery’s July 29, 1987 letter observing, among other things: “ As always, I expect much fruit to come from the meetings you arrange.” Barrett had caught the attention of the HUD IG investigators early in their investigation, and, in a November 4, 1988 memorandum where the IG sought to have Demery removed from the mod rehab funding process, the IG (at 2) specifically cited Demery’s modifying of a Midland, Texas allocation to make it match the number of units in a Barrett project.

Through most of the Lantos hearings, however, Barrett managed to escape notice. And when a December 11, 1989 New York Times article raised issues about Barrett’s benefitting from his friendship with Demery, Demery responded, much in the categorical manner shown before the Lantos subcommittee: “I had [sic] never had any discussion with Mr. Barrett about Mod Rehab – period.”

But at a hearing on May 23, 1990, Lantos was possessed, perhaps reluctantly, of a Barrett Chronology that recorded Demery’s connections with Barrett reflected in Demery’s phone logs and word-processing diskettes, including the November 1, 1987 list matching Barrett’s name with the Moore, Oklahoma mod rehab request. So Lantos asked at least a few questions about Demery’s contacts with Barrett. In the hearing Demery acknowledged he had discussed the request with Barrett. But Demery also stated, though falsely, that the request matched with Barrett was not funded. Barrett then received some limited attention in the subcommittee’s final report, though rather less attention than seemed warranted based solely on information in the Barrett Chronology, the IG’s November 4, 1988 memorandum, and the May 23, 1990 hearing. See Sections II.B.1.c and III.B of the Inquiry Document

Publicly available information such as that recorded in the materials just mentioned would have provided Independent Counsel Arlin M. Adams a basis for a conspiracy charge involving Demery and Barrett that would have been considerably stronger than many conspiracy charges Adams did pursue. Such charge could well have involved a friend of Barrett named John Mamoulides, a district attorney in Jefferson Parrish, Louisiana who was also involved in housing matters, and who, along with Barrett, would arrange various things for Demery in the New Orleans area. For example, on November 23, 1987, the same day that Demery was causing the funding of the Moore, Oklahoma mod rehab request (while apparently leading HUD Secretary Samuel R. Pierce, Jr. to believe that it was funded because of interest of an Oklahoma Senator) Demery’s phone logs indicated that Barrett was advising Demery that Barrett and Mamoulides would take care of Demery’s accommodations in an upcoming trip to New Orleans. Any charge would likely be much stronger once the publicly available information was augmented with the types of information readily available to an Independent Counsel. The last overt act of such a conspiracy, so far as I know and assuming that neither Demery nor Barrett ever told Independent Counsel investigators anything false or misleading about their interactions and Demery’s funding decisions, would have occurred at the May 23, 1990 hearing when Demery falsely denied that the request he had matched with Barrett on the November 1, 1987 list was funded.

But Adams had plenty of other things to charge Demery with, which Adams in fact did, first in a 9-count indictment in June 1992, then in a 19-count superseding indictment in December 1992 (including causing, on November 23, 1987, the funding of another mod rehab request on the November 1, 1987 list for someone who had provided him free accommodations). The referenced Inquiry Document suggests that Barrett was among a large number of persons whose connections with Demery might have formed a basis for prosecution. Indeed, but for a preoccupation with finding that it had been unfair for the HUD IG to single out Demery in the title of the mod rehab report, the Lantos subcommittee might well have found that few decisions Demery made in the many programs he administered were made for reasons other than to benefit a friend or compensate someone for past or future favors.

In any event, the failure of Adams’ attorneys to take an interest in Demery’s connections with Barrett caused the Barrett story to remain dormant until May 24, 1995. On that day – which, coincidentally, may have been the day after the limitations period expired on a conspiracy involving Demery and Barrett – the D.C. Circuit’s Division for the Purpose of Appointing Independent Counsels (usually referred to as the “Special Division”) appointed Barrett to the position of Independent Counsel to investigate whether HUD Secretary Henry Cisneros lied about payments to a mistress during his background investigation. The next day, a Washington Post account of the appointment was largely devoted to recording opinions on what an excellent Independent Counsel Barrett would make, with only passing reference to Barrett’s mention in the matters investigated by Lantos. On the same day, the New York Times gave Barrett’s involvement in those matters much greater attention, quoting Lantos’s observation that the appointment was “mindboggling.”

Independent Counsel Arlin M. Adams, who had met with the Special Division on May 15, 1995 to discuss his own resignation, apparently raised no objection to the Barrett appointment either before or after it took place. Four year later, Adams would tell the Washington Post that he could not recall being asked about it. See Addendum 1 hereto.

The Barrett tenure as Independent Counsel would be a matter of some controversy, at least for its protraction. In January 1997, when Barrett had expended but $902,000, a Legal Times article would bear the title “What’s Taking David Barrett So Long?” In January 2006, when Barrett was forced, against his will, to shut down the investigation, it had expended $22,750,000 – some of that, according to an Acknowledgment included in Barrett’s report (at sixth page), paid to John Mamoulides (who retired from his district attorney position in 1996). While for a time some observers supported Barrett’s claims that a cover-up had thwarted his investigation, the prevailing view was probably closer to that of former Justice Department official Robert S. Litt (now General Counsel of the Office of the Director of National Intelligence), who in a May 21, 2005 letter described the investigation as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” For reasons expressed in many editorials here, I do not automatically regard a Justice Department official’s appraisal of prosecutor conduct as insightful, or even as bearing a relationship to reality. I do, however, believe that the 1997 Legal Times piece was aptly titled.

Yet, if Barrett’s tenure as an Independent Counsel was remarkable, it is not clear that it was more remarkable than the appointment itself. The Inquiry Document presents an unflattering picture of Tom Lantos’s conduct of the HUD hearings. But it is hard to disagree with him as to the remarkable nature of the Barrett appointment. In that regard, it may rival the recent appointment of Robert E. O’Neill as United States Attorney, notwithstanding, among other things, that he lied on his application for the position.

Barrett is again on the Washington scene as part of a lobbying firm called Barrett Capitol Strategies. The firm touts its extensive Capitol Hill and agency contacts – the assets that made Barrett a major beneficiary of HUD programs and that may as well have caused him to receive only limited attention in the Lantos hearings and none from Independent Counsel Arlin M. Adams, and, for that matter, that may have led to his appointment as Independent Counsel. Barrett’s Barrett Capitol Strategies biography only briefly mentions his role as Independent Counsel, adding:

Upon completion of his investigation Barrett was awarded the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award. The inscription reads, “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation,” signed Louis Freeh, Director.

In light of the encomium from FBI Director Freeh, one might wonder whether Barrett’s investigation was as improvidently protracted as many believe. I do not doubt that Barrett received the award, just as I did not doubt it when the award appeared in Barrett’s biography while he was Independent Counsel. But as reflected by the earlier biography, Barrett received the award prior to the 2006 conclusion of his investigation. Presumably, he received it, for whatever reason, no later than June 2001, the last month in which Louis Freeh served as Director of the FBI.

Would but that we could all so easily recast problematic episodes of our pasts. Compare Robert E. O’Neill’s representation that a District of Columbia Bar Counsel investigation of his conduct in U.S. v. Dean was initiated by the convicted defendant rather than by Bar Counsel itself, as discussed, for example, in the September 26, 2010 Truth in Justice item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.”

Addendum 1 – David M. Barrett and Judge Thomas F. Hogan
Through no fault of his own, David M. Barrett – or, rather, the mention of his name – may have had an important role in the outcome of U.S. v. Dean, which was tried before Judge Thomas F. Hogan, a close friend of Barrett. The document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” discusses the way that, shortly before calling Supervisory Special Agent Alvin R. Cain, Jr. to provide immensely improbable testimony in seeming contradiction of the defendant’s testimony, Independent Counsel attorneys sought to undermine the defendant’s credibility in Hogan’s eyes by bringing to his attention the defendant’s innocuous off-the-stand remark about Barrett and Hogan. (Compare that document’s interpretation of factors influencing Hogan with the interpretation in my February 23, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.”) The document styled “The Responsibility of Independent Counsel Arlin M. Adams for the Appointment of Independent Counsel David M. Barrett” addresses the likelihood that the manner in which Independent Counsel attorneys had used the statement about Barrett and Hogan influenced the decision of Independent Counsel Arlin M. Adams not to bring to the attention of the Special Division the varied matters calling into question the suitability of Barrett to serve as Independent Counsel.

Addendum 2 – Thomas T. Demery’s Sworn Denials That He Ever Lied to Congress
Thomas T. Demery also had an important role in U.S. v. Dean. In 1992, the Independent Counsel indicted Demery for perjury for lying to Congress. In the course of reaching a plea agreement that did not include a perjury charge, Demery acknowledged that the statements underlying his perjury charges in the indictment were false and also acknowledged things that would have formed bases for similar charges. Pursuant to an agreement whereby he might avoid prison if he provided completely truthful testimony as a cooperating witness, Demery testified for the government in the Dean case. In doing so, just as he had repeatedly and unequivocally lied to Congress, Demery repeatedly and unequivocally denied that he had ever lied to Congress. Section B.6 of the Prosecutorial Misconduct page and the materials it references address the varied remarkable – nay, astonishing – things Bruce C. Swartz and other Independent Counsel attorneys, as well as retained counsel, said to make the courts in the Dean case believe that trial counsel Robert E. O'Neill did not recognize that Demery’s denials of ever having lied to Congress were false, as well as the Independent Counsel’s implied representation to the court in Demery’s own case that Demery had provided completely truthful testimony in fulfillment of his plea agreement. That section and Section E.3 of the O’Neill profile also address the improbability that Demery would have falsely denied having lied to Congress unless instructed to do so by O’Neill.