The top Justice Department official who forced the resignation of then-U.S. Attorney for Maryland Thomas M. DiBiagio more than two years ago said yesterday that serious problems with the prosecutor's judgment and candor prompted the dismissal.
David Margolis, an associate deputy U.S. attorney general, rejected DiBiagio's assertions this week that his probe of corruption in the Ehrlich administration led to his dismissal. In fact, Margolis said, Jervis S. Finney, the top legal adviser to then-Gov. Robert L. Ehrlich Jr., had long defended DiBiagio's work.
Margolis said Finney called Justice Department officials in 2004 - once to request that DiBiagio's job be spared and again to prolong his tenure. Margolis noted that those would be odd requests from an administration that DiBiagio portrayed as worried about a looming federal investigation into its ties to gambling interests.
Finney could not be reached for comment last night.
"I'm 150 percent sure that we made the right decision with Tom," Margolis said. "I'm a million percent sure ... that it was done on the merits, whether you agree with it or not."
Margolis said DiBiagio's ouster was prompted in large measure by internal e-mail messages published by The Sun in July 2004, in which the prosecutor called for three "front-page" corruption indictments before Election Day. The gambling investigation never came up, according to Margolis.
In an interview published yesterday in The New York Times, DiBiagio compared his fate to that of eight U.S. attorneys from around the country who have been fired more recently.
DiBiagio did not return calls seeking comment yesterday.
Still, members of Congress, some who have criticized the recent dismissals as unwarranted and politically motivated, are now seeking answers about DiBiagio's departure in 2004.
"It is a story which may show inappropriate political pressure on the Baltimore attorney for pursuing an investigation related to gaming, which implicated subordinates of the governor," Sen. Arlen Spector, a Pennsylvania Republican, said yesterday at a hearing in Washington. "Or it may be explained in what the story refers to as his pressure tactics and performance rating. So there are a lot of nuances."
Sen. Benjamin L. Cardin, a Maryland Democrat and member of the Senate Judiciary Committee, called yesterday for an investigation into DiBiagio's firing.
"Anytime allegations arise that politics may have interfered in the prosecution of federal cases, we must take it seriously," Cardin said in a statement. He said he was "not familiar with the specific conditions surrounding" DiBiagio's departure.
When DiBiagio announced his resignation two years ago, he insisted that the departure was long planned, citing personal reasons. But in an opinion piece in The Sun a little more than a year later, DiBiagio wrote that he had been under constant pressure to aim low and look the other way from potentially corrupt officials.
"The pressure finally culminated in a threat that I would be 'hurt' if I continued," he wrote in January 2006.
In the first half of 2004, DiBiagio's office had subpoenaed records from top Ehrlich aides while pursuing allegations of improper influence by gambling interests.
Lawyers familiar with the investigation said it centered on Richard E. Hug, Ehrlich's chief campaign fundraiser, who solicited donations from horse racing and gambling interests for a nonprofit group, Citizens for Maryland's Future. The group planned to run ads supporting Ehrlich's initiative to legalize slot machines in Maryland. Hug has denied any wrongdoing.
But after the federal investigators began their probe, the donation effort was abandoned and the investigation was closed, according to prosecutors and attorneys involved.
In the Times article, DiBiagio added details, alleging a direct threat from Ehrlich's associates. If he pursued the investigations, he told the Times, "the practical impact was to intimidate my office and shut down the investigations."
He also told the FBI of the "threat" against him, the article said. Officials at the Justice Department said yesterday that they had no information about any formal complaint by DiBiagio.
In the end, hobbled by the political pressure, he decided to resign, DiBiagio said.
Ehrlich confirmed last year that the federal prosecutor had subpoenaed records from his communications director, Paul Schurick, and said that his office had cooperated. But there was no basis for the investigation, Ehrlich said in an interview yesterday.
"It was basically just a fishing expedition, I think," Ehrlich said.
Ehrlich's influence was largely responsible for the selection of DiBiagio, whom the governor had known since they were young lawyers. But the former governor said he tried to keep an arms-length relationship with him to avoid any appearance of impropriety.
That became increasingly difficult as DiBiagio began to alienate much of the state's political community, Ehrlich said. During DiBiagio's tenure, the Justice Department "was not exactly friendly to us," Ehrlich said, particularly in the prosecution of state police Superintendent Edward Norris for his actions while Baltimore police chief.
At the same time, Ehrlich said, he felt the need to defend the man he had recommended for the job.
"I was put in a very interesting position here," Ehrlich said. "He was doing things I didn't necessarily like, but I had a very high-stakes issue going on because I had to support him. He was my guy."
DiBiagio, who was nominated as U.S. Attorney for Maryland by President Bush in 2001, is now an attorney in the Washington and Baltimore offices of the law firm Beveridge & Diamond.
DiBiagio's supporters have long pointed to his office's prosecution of Norris and investment banker Nathan A. Chapman Jr. - issues first raised in articles by The Sun - as evidence of his success in rooting out public corruption.
Ehrlich said yesterday that he understands DiBiagio's desire to defend his legacy. By the time he left office, DiBiagio's staff was undermining him in the press, and officials around the state were "calling for his head," the former governor said.
But that doesn't make DiBiagio's allegations true, Ehrlich added. "Just putting two and two together, I think he's feeling a sense of frustration," Ehrlich said. "This was an opportunity to vent that when the Times called him."
Despite providing more details about the slots investigation, DiBiagio has never publicly identified the Ehrlich associates who allegedly pressured him.
Local defense attorney David B. Irwin, an Ehrlich ally who served on one of his judicial nominating committees, expressed empathy for DiBiagio's situation. Irwin said he had discussed the prosecutor's future before he left, suggesting the possibly of working for law firms in Baltimore or Washington.
But Irwin rejected the idea that political pressure from Ehrlich's camp forced DiBiagio out.
"He was an equal-opportunity subpoena-er," Irwin said, noting that DiBiagio's prosecutors had demanded documents in cases affecting both political parties.
Irwin said never talked to DiBiagio on behalf of Ehrlich about taking a judgeship - a carrot that DiBiagio told the Times that a lawyer close to the former governor had offered.
According to Margolis, the decision to remove DiBiagio came after prosecutors in his office told Justice Department investigators that DiBiagio's intemperate leadership made their lives unbearable.
Another controversial episode that raised questions about DiBiagio's candor focused on a statement DiBiagio made to the news media after the mysterious death in 2003 of one of his former assistant prosecutors, Jonathan P. Luna, who was found stabbed and drowned in a Pennsylvania creek.
Before she resigned, then-Assistant U.S. Attorney Lisa M. Griffin wrote in an e-mail to DiBiagio and other members of the staff that she was "deeply embarrassed to hear that you led the press to believe that Jonathan was not in jeopardy of losing his job. That wasn't so."
His most controversial move came in a series of internal e-mails published by The Sun in July 2004, in which DiBiagio called for three "front-page" corruption indictments before Election Day.
DiBiagio said at the time that he was simply pushing his staff to work harder, and said that his references to "front page" and November were not politically motivated, as some critics suggested.
But after the e-mail became public, the Justice Department issued a rare public reprimand to DiBiagio, saying that from then on, Washington would have to approve all Maryland corruption cases.
Margolis acknowledged the memo's role in DiBiagio's firing but declined yesterday to specify other reasons why DiBiagio was let go.
After DiBiagio's ouster, his replacement shut down some of his most prominent cases. Interim U.S. Attorney Allen F. Loucks dismissed the indictment against the former director of the governor's crime office, Stephen P. Amos, and ended the federal investigation of the Baltimore City Council's financial practices without charges.
Yesterday, William E. Moschella, the principal associate deputy attorney general, told a House Judiciary subcommittee that it was DiBiagio's attempts to time prosecutions to the election cycle that concerned his superiors.
"There were inappropriate e-mails and a staff meeting initiated by Mr. DiBiagio in which he specifically called for public corruption cases within a specific time frame," Moschella said. "It was so egregious that the deputy attorney general at the time ... had to write him a letter saying, 'You will not turn any more corruption cases without running it by me first."
Rep. Melvin Watt, a North Carolina Democrat and committee member, challenged Moschella.
"Wasn't it before the election of Governor Ehrlich, and he was trying to get a prosecution done ... before that election and you are saying that an instruction from the Department of Justice to him not to pursue an investigation and charges before the election is not related?" Watt asked.
"We didn't tell him not to pursue any specific case," Moschella responded. He said a subsequent review showed that DiBiagio's office "was in disarray, poorly managed," and that his staff "had extremely poor morale."
matthew.dolan@baltsun.com andrew.green@baltsun.com matthew.brown@baltsun.com
Sun reporter David Nitkin contributed to this article.