Mr. EHRLICH. Thank you, Mr. Chairman.

I thank you all for appearing before us today. Before I begin my formal remarks, i would just like to make a couple of points.

Mr. ZELIFF. Bob, we have rechanged the order, and I apologize. Would you be willing to hold off?

Mr. EHRLICH. Sure.

Mr. ZELIFF. What I would like to do is have our colleague, Mr. Barr, for 15 minutes first.

Mr. BARR. Thank you, Mr. Chairman.

Mr. Johnston-is it Johnson or Johnston?

STATEMENT OF BILL JOHNSTON, ASSISTANT U.S. ATTORNEY, DEPARTMENT OF JUSTICE

Mr. JOHNSTON. It is Johnston with a T.

Mr. BARR. That is what I thought. You have a law degree?
Mr. JOHNSTON. Yes, sir.

Mr. BARR. And you serve as an assistant U.S. attorney, a prosecutor?

Mr. JOHNSTON. Yes, sir, I do.

Mr. BARR. OK. I have a law degree, and I served as a U.S. attorney, so we have two things in common. I suspect we have something else in common, and that is, neither of us are particularly enamored with Mr. David Koresh. Am I correct in that we share that in common?

Mr. JOHNSTON. Based on what I did, he did some bad things.

Mr. BARR. Based on what I know he did also, and I think that is something that we do have in common.

Let me, if I could, Mr. Johnston, ask you a few questions. Define very succinctly for me "dynamic entry."

Mr. JOHNSTON. I hadn't heard that term, "dynamic entry"

Mr. BARR. Neither had I.

Mr. JOHNSTON. I suppose it means some active movement in a search warrant.

Mr. BARR. Let me kind of back up then. Do you know what the term "dynamic entry" means?

Mr. JOHNSTON. I could give you a definition that I think it

means.

Mr. BARR. OK.

Mr. JOHNSTON. Shall I?

Mr. BARR. Please.

Mr. JOHNSTON. A search warrant or a

Mr. ZELIFF. Could you pull that mike up a little closer to you? Mr. JOHNSTON. Yes, sir.

Police activity in connection with a search warrant that involves an entry where the persons are not invited in. In other words, as opposed to like where the police call ahead of time and are invited in or do some low-profile entry, it would be more in the nature of a moving search warrant like you might see on television where agents are running instead of walking and so forth.

Mr. BARR. Was the entry in this case a dynamic entry?

Mr. JOHNSTON. I wasn't there, but based on what I see on television, in keeping with the definition I have just given, I think it

was.

Mr. BARR. OK. You were not at the scene?

Mr. JOHNSTON. No, sir.

Mr. BARR. OK. And did you have any discussions at any time prior to the dynamic entry or whatever it was on February 28, 1993, with ATF concerning a dynamic entry?

Mr. JOHNSTON. Not concerning that term. They discussed-they mentioned almost in passing that they were going to do something, I learned, in the nature of having agents in cattle trailers. I didn't know the details of the raid plan.

Mr. BARR. OK. Are you familiar with testimony in a previous court case concerning efforts by a defense attorney to questionraise questions with a witness as to whether or not you had told them that your office or you would not approve a search warrant or an affidavit in support of a search warrant unless it contemplated a dynamic entry?

Mr. JOHNSTON. I have, and it's a gross mischaracterization of anything I've said.

Mr. BARR. You are familiar with that in the prior proceedings. Mr. JOHNSTON. I heard of that, yes, sir.

Mr. BARR. Would it be fair to say, Mr. Johnston, that the purpose of an investigation in support of a potential prosecution involves an effort to see that justice is done?

Mr. JOHNSTON. Absolutely.

Mr. BARR. Would you share with me a concern that Federal employees, whether they are involved in law enforcement or non-lawenforcement activities, if they violate the law or engage in wrongdoing, that they should be prosecuted and brought to justice? Mr. JOHNSTON. Absolutely.

Mr. BARR. Would you also agree with me that an effort to do so through an internal-that is, within the Government-investigation ought to be a search for the truth?

Mr. JOHNSTON. I think any investigation ought to be a search for the truth or it's not much of an investigation.

Mr. BARR. Certainly one involving allegations of wrongdoing on the part of officials sworn to uphold the law?

Mr. JOHNSTON. Yes, sir.

Mr. BARR. With that in mind then, I would ask you, would it be appropriate in an investigation of alleged wrongdoing by Federal officials that the Government deliberately and explicitly direct that evidence not be gathered, that witnesses not be interviewed, that no record of interviews be kept, that the passage of time hopefully will cause witnesses' memories to dim?

Would that be a fair search for the truth, or would that be more in the nature of damage control or a coverup?

Mr. JOHNSTON. Well, what you're describing doesn't sound like— and I don't know if you are asking that in hypothetical with reference to this case, sir.

Mr. BARR. It's not hypothetical. I am going to show you some documents that establish it is not hypothetical. If I could have a clerk. If you would, please, Mr. Johnston, these are three documents which were contained in the documents made available to this body by virtue of the subpoena. One is a memo from Robert McNamara to John Simpson and others, Treasury Department, dated 14 April 1993. Subject: Preliminary investigative plan. It says that this is law enforcement sensitive and it involves an investigation of ATF,

and it states, on page 2, "DOJ does not want Treasury to conduct any interviews or have discussions with any of the participants who may be potential witnesses."

Then later in that same subparagraph it talks about, while we may be able to wait for some of them-witnesses-to have testified in the criminal trial, the passage of time will dim memories.

Then later on, it states at the very bottom of page 2, the prosecutors are concerned that anything negative even preliminary could be grist for the defense mill. And that document goes on.

Another of the documents that you have before you is another Treasury Department document, this one from Ron Noble, Assistant Secretary for Enforcement, dated September 17, 1993, and it reflects an interview that took place on March 1, 1993, "ATF initiates a shooting review."

And then it goes on, Troy tells review they immediately determined that these stories did not add up; that is, interviews with Rodriguez, Matteson, Chojnacki, Cavanaugh, Sarabyn. Then it says Johnston at this point advised Hartnett to stop the ATF shooting review because ATF was creating Brady material.

Because Chojnacki had not yet been interviewed, Johnston authorized that interview, but no notes were created. A third document, which you have before you, is another Department of Justice document dated April 9, 1993, again from Robert McNamara, to Ron Noble.

While the subject matter at the beginning of that document has to do with the Waco press release, in the middle of it, it says Justice prosecutors in Washington and in Waco said that any words which would-which could be interpreted as being critical of ATF must be avoided since it would play into the defense attorney's hands and aid the defense attorneys in making ATF the issue, and then that document goes on.

There are some other documents that I have before me, and I'll make these available. These are not as clear as these typewritten documents. They are notes that again were furnished to us pursuant to subpoena. And if I could have a clerk deliver those to Mr. Johnston, please.

One reads as follows. And this is document number 00014137. It says, T. Rangers, perhaps for Texas Rangers, Ray Jahn does not want them, Chojnacki, Phil, Ray, interviewed, because Jahn does not want any more exculpatory statements generated.

The other one I think that we've already dealt with in previous testimony had to do with Mr. Jahn advising Ron Noble not to open an envelope. And the final one here involves, again, and I apologize for the lack of clarity, but we have to deal with what we have. It again involves some handwritten notes.

The first word at the top of the page looks like LeRoy, and it says, statements from agents, A-G-T-S, I presume that means agents, should they go to U.S.A., which I presume is U.S. attorney, or us. Do they want us to create new, and then there's a blank, and then it concludes by saying, asking questions to which would require us to create new documents, parenthetically it says exculpatory.

These documents to me, Mr. Johnston, raise very troubling questions about what was going on here. We heard at the very begin

ning today, an article here in the paper talking about damage control and this is dated today, July 19. And I have some very serious concerns here that this started a long time ago. I'm-and I have a background as a prosecutor and I would presume that these sorts of memos, and I know you didn't generate them, at least it doesn't appear that you did. They came from another lawyer at the Department of Justice, Mr. McNamara, I believe, and I don't know who wrote the handwritten notes, but these are documents that were furnished by the Government, presumably generated by the Government as part of an investigation to determine, I suppose, among other things what went wrong and what agents might have done wrong.

I mean we know that there were things done wrong. I mean agents were terminated because of that, because of misstatements, because of misleading activities. Was this-I mean what's going on here?

Mr. JOHNSTON. OK. I cannot speak to the references to Ray and LeRoy Jahn. They were here and it appears there are references to them and exculpatory matters. I was not concerned about exculpatory matters. The truth is the truth. I can speak to the note that has my name in it, which talks about Hartnett and the shooting review.

The typical protocol with ATF, my understanding is, is after an incident, shooting incident occurs, a shooting review team is created, sometimes out of Washington, sometimes elsewhere. They normally go down and interview the agents. They-I don't know if it's normally recorded or not, but at least notes are taken. That process started. There were at least a couple of-there were some interviews, I don't know how many. This was in early March, I believe.

It was fairly soon after the incident. ATF began-immediately received a great deal of criticism for what they had done and it became obvious at least to me that ATF probably should not investigate ATF as far as the criminal case goes. And I don't have the authority to direct ATF to do something, but I did talk to, I think, Mr. Hartnett, I'm not sure, he can state whether or not, and told him that in line with our hope or at that point it may have been a fact that the Texas Rangers have agreed to investigate this case, let them investigate it, please. Because for ATF to interrogate ATF with the built-in bias and suspicion that already existed, I thought was would be not healthy.

I had no reason to think ATF would in their own interviews cover something up, but there were a lot of people that did. And the Texas Rangers, I believed, would be an objective, a qualified body to investigate it. And yes, sir, I asked the Rangers to do the investigation, all in all.

Now for ATF to have come in and had a Shooting Review Team member interview someone and have the Ranger come in three minutes behind and do the same thing, I thought, was very imprudent. The Texas Rangers, I believed, could ask questions, get straight answers, and develop the truth of what happened. And may I add, in terms of the timing of it, there's some I feel you've alleged on someone's part, maybe mine, that I want people's memories to dim.

In fact, I asked the Texas Rangers to-and I asked the Waco police department the night this happened to begin interviewing ATF agents before the memories dimmed. Waco police detectives, I could name two or three, at my request went to the Hillcrest Hospital in Waco, and taped interviews with agents, while they were still on codeine and so forth. And the Texas Rangers I asked to, as quickly as they could, get interviewing. And they did, sir, and they were all audiotape and all made available. And there were some

Mr. BARR. The reference to memories being dimmed was contained in this memo by Mr. McNamara. And it would be very interesting to ask him some of these questions, but in terms of your prosecutorial background, which from everything I can tell is exemplary, why would-why would the Federal Government, first of all, be committing things like this to writing, but more importantly, why would they be deliberately directing that in terms of an internal investigation to uncover potential wrongdoing? Why would they be explicitly directing that evidence not be accumulated, that interviews not be conducted, that when they are, perhaps there ought not to be any notes taken?

I mean why would that happen? And let me also say I know as a prosecutor, Brady material can sometimes be a pain in the neck to deal with. It's exculpatory in court, but we have mechanisms for it, but it seems to me that the Government was trying to cover something up here.

Mr. JOHNSTON. Well, I sure wasn't. In fact, I was trying to avoid the question of a coverup. If ATF had done this investigation themselves, as I say, I have no reason to think they would have coached their own agents or would have suggested answers to their agents. But I thought it would have been a real easy thing to criticize. And quite objectively, because ATF was under attack so strongly, they may have bonded together in interviews. I don't know. I don't think they would have done it intentionally, but it was extremely important to have objectivity.

My desire for the Texas Rangers to do it was to seek the truth in the most unintimidating circumstance possible. In other words, so that the Texas Rangers could ask ATF agents one-on-one, which they did, audiotaped everything that happened. And I felt the Texas Rangers-the ATF agents would be comfortable talking to the Texas Rangers, whereas they may not be comfortable talking to ATF supervisors and a Treasury review-I mean a-I'm sorry. Mr. ZELIFF. I'm sorry, your time is up. If you'd just kind ofMr. JOHNSTON. I'll try to quickly finish the answer, sir, Mr. Chairman. Because there was conflict within ATF by this time, a lot of agents at the staging area felt the element of surprise had been lost there, a lot of conflict. The Shooting Review Teams are often comprised of people involved in a supervisory capacity. There was conflict between line agents and supervisors, and I felt to give it the best chance of being a truthful interview of each agent, the Texas Rangers should do it, sir. And as to Brady, I'm not afraid of Brady. As to exculpatory matters, I am not afraid of exculpatory matters and was not.

Mr. BARR. Well, that-your sentiments do not seem reflected at all in these documents.

Mr. JOHNSTON. I certainly didn't create them, sir.