The State Bar of Texas will take no disciplinary action against Bill Johnston, the former federal prosecutor convicted of a felony earlier this year after admitting that he lied to a federal grand jury.
Johnston, who is in private practice in Waco, said he has heard nothing from the State Bar since pleading guilty in February to misprision of felony and acknowledging that he withheld evidence during Special Counsel John Danforth's Branch Davidian investigation.
He declined additional comment.
Mark Pinckard of the State Bar general counsel's office said that staff attorneys in Fort Worth and Austin have monitored Johnston's case since his conviction in St. Louis and have determined that no action will be taken against Johnston.
Misprision of felony, which typically involves someone who knows of a felony and does not report it, is not an offense that falls under the State Bar's rules of compulsory discipline, Pinckard said. The State Bar does not consider the "underlying facts" of a case, Pinckard said, only the type of conviction.
Johnston knew that when he accepted the plea offer from Danforth's special prosecutors. However, he also was aware that the felony conviction left him open to possible disciplinary action from the bar, including disbarment or suspension.
Broadus Spivey of Austin, State Bar president, said he is pleased that Johnston's law license will remain intact, adding that it was the proper decision "when all the underlying facts are considered." He called Johnston a hero for standing up to the government "when the government was wrong."
"People can say that it's hard to justify a lie, but there are times in reality when a lie is more noble than the truth," Spivey said.
Spivey likened Johnston's situation to World War II-era Nazi Germany, asking what one would do if Hitler put out an edict that all male children be killed and storm troopers are banging on the door.
"You have hidden your children behind a couch. Are you going to say that they are hiding behind the couch? It is a strange thing in this country where you get prosecuted for doing the right thing," Spivey said. "It presents a real interesting conflict.
"I don't know Bill Johnston, but I do know that there were some very bad things that the government was trying to conceal. Perhaps he did violate the law, but I would be very reluctant if I was on a (bar grievance) panel to do anything to a person who has the guts to stand up to the government when the government was wrong. I have to say that the man is a hero in my book."
Spivey acknowledged that it is "very unusual" for the State Bar to take no action against an attorney who is convicted of a felony. However, in Johnston's case, he said it makes him "proud of our grievance process."
Johnston was placed on probation for two years in June. He admitted that he failed to turn over his personal notes that Danforth's investigators have said revealed that Johnston knew at least seven years ago that the FBI used tear-gas devices that were capable of sparking a fire on the final day of the government standoff with David Koresh and his followers.
Revelations in 1999 that those devices were used, which had long been denied by the FBI, led former Attorney General Janet Reno to appoint Danforth to investigate government actions during the siege at Mount Carmel.
Johnston helped prosecute 11 Branch Davidians on murder charges in 1994 and helped draft the search warrant that the ATF used to storm Koresh's compound east of Waco. He has said that if he was told before the Davidian criminal trial that the FBI used incendiary tear-gas devices, the significance of the term "incendiary" did not register with him.
He didn't turn over his personal notes from a pretrial meeting in which he jotted down the abbreviation "incind." because he didn't trust his Justice Department colleagues, to whom he had become a "pariah," Johnston has said.
Johnston wrote letters to Reno about the FBI's use of the pyrotechnic devices because he has said that his supervisors and other Justice Department officials were continuing the cover-up and misleading Reno. He
claims that he was wrongfully singled out for prosecution as a whistle-blower, especially when others who also were caught lying were not prosecuted.
Danforth's prosecutors, however, countered that Johnston was not the whistle-blower he claimed to be and was an active participant in the cover-up.
Johnston admitted that he removed pages from his notes before certifying to the Justice Department that he had turned over all materials he had relating to the Branch Davidian case.
Congress and a federal judge in Waco also had ordered Johnston to turn over all related materials. When Danforth's office asked him about the notes, he lied to Danforth's assistants and to the grand jury, special prosecutors said.
As part of the plea bargain with Johnston, Danforth's special prosecutors dropped a five-count indictment that charged Johnston with obstructing justice and lying to the grand jury and Danforth's investigators. A conviction on any of those counts would have resulted in compulsory State
Bar discipline.
Assistant U.S. Attorney Jim Martin of St. Louis, formerly a special prosecutor on Danforth's staff, declined comment on the State Bar's decision in Johnston's case, except to say that no one from the State Bar contacted Danforth or his former staff to ask about the facts of the case.
In a motion filed before Johnston's guilty plea, Martin asserted that Johnston incorrectly claimed that the "Texas bar does not consider misprision of felony to involve moral turpitude" and that "the Bar will look at the actual offense of conviction rather than the underlying felony concealed."
Martin cited a 1995 Texas Supreme Court case that held that misprision of felony does not involve moral turpitude per se. However, the court said that the State Bar "could pursue discipline based on the general underlying facts of the attorney's conduct."
"Moreover, the court very clearly stated that 'the willful concealment of non-confidential information would involve moral turpitude,' " Martin wrote.