Stefan Sharkansky's paper chase of Prof. John McKay

If you have the least bit interest in the general competence of the election system, or wonder about the Washington gubernatorial outcome of 2004, or want to know if this John McKay guy is as righteous as he seems, or are curious about how things work inside the U.S. Justice Department, read the transcript of an interview of McKay by conservative blogger Stefan Sharkansky. Sharkansky got some time with the former U.S. attorney on Sunday, May 20, in Wenatchee, Wash., at the Mainstream Republican confab, where McKay spoke. The transcript reads like McKay is Prof. Charles Kingsfield and Sharkansky is law student James Hart. As a matter of fact, McKay is a law school professor, though he's joining Getty Images as general counsel. For those of you just tuning in, Sharkansky is the primary blogger at Sound Politics and has been watchdogging the 2004 election since the statewide recounts that led to a Republican lawsuit the following year. As we know, a Superior Court judge found no reason to overturn the result that gave Democrat Chris Gregoire the governor's mansion over Republican and former state Sen. Dino Rossi by 129 votes. Ever since, Sharkansky has been digging through King County documents (it's taken months and years to get some of them) to uncover evidence he says points to corruption in the King County Records, Elections & Licensing Services Division. I don't know anyone without a political stake in the outcome of the 2004 election who thinks there was anything but incompetence going on there, but Sharkansky has been on a jihad, using an awfully broad brush to slather stuff all over Democratic and even some Republican leaders. The problem is that two noteworthy Republican officer holders long ago determined, after looking at the lawsuit discovery material and other facts, that there was insufficient evidence to pursue a criminal investigation. One was King County Prosecutor Norm Maleng, and the other was McKay, who was U.S. attorney for Western Washington. McKay, of course, was fired in December by the Justice Department for who-knows-what. Now that he's out of government, he can talk more frankly. So Sharkansky smartly went to Wenatchee to ask him about the decision not to look further into election irregularities, and he got quite a bit of time with McKay, with several other journalists joining in. We pick it up with McKay bearing down on Sharkansky about what, precisely, he has evidence of. McKay: ... But let me ask you this – who in there would you send to jail? Who's going to jail for that? Sharkansky: Election officials. McKay: Which one? Name names. Sharkansky: I could speculate ... McKay: No, who do you want to go to prison? Right now. Don't speculate. You can't speculate about who gets handcuffed and sent to prison. Who is it? I don't want to put you on the spot, but just tell me, who it is? I mean where's the evidence of a crime? Who participated in it? Where are the allegations upon which we could investigate a crime? Sharkansky: Well, clearly these ballots should not have been counted. There were 170 of these from unregistered voters. McKay: Okay, and you think the person who counted them should go to jail? And you think you have proof of that, that they committed a crime? Sharkansky: I was told by someone who worked on this election and was very close to what happened is that they were given specific instructions. McKay: To count illegal ballots? Sharkansky: To count illegal ballots. McKay: Did that person go to the FBI? Sharkansky: This person is afraid of retribution. This came to me and I put it in the newspaper. That's a start. McKay: Well, that may be the way that the public are going to look at the problems associated with that election. Again I think that's meritorious. But look, it's 129 votes ... the creepy stuff's going to come out. And it's creepy and it's bad and it should get fixed. And we should take advantage of that. But there's still no evidence of a crime, and circumstantial doesn't cut it, McKay says. There has to be intent. Sharkansky: Here's a scenario. Let's say you're a clerk in the bowels of the elections office and you're going through provisional ballots. And you see this provisional ballot, it says they already cast an absentee, but I see they're from a Seattle precinct and it's an elderly woman, so I'll guess they probably voted for the Democrat so I'll stick it in the do-count pile and nobody will notice. McKay: What do I think of that? I think that if that person wants to incriminate themselves and testify what they did, I'd be interested. Sharkansky: And if they don't incriminate themselves? McKay: How do you know they had the thought they must be a Democrat and that's why they put it over there? Sharkansky: I don't. McKay: Well that's the issue. Because in criminal law, we have to have criminal intent. And so, really a major demarcation here is criminal intent. And in election cases, the most common federal election cases ... of the kind that influence the outcome of an election, we're talking about criminal conspiracies. And I don't limit it to this, don't get me wrong, but what I'm talking about is a criminal conspiracy to impact the election, you have an informant who was going to say I was there. I sat in there. I was serving the coffee or I was part of it. I regret it. But you know, I was part of it and our objective was to make sure that a certain political party won that election no matter what. No matter how people voted, we were going to deliver the election to a person or party in this fashion. And those are the cases where people go to prison. Sharkansky: Now I'm no lawyer, but isn't there something ... res ipso loquitur, where there's something that's so obviously wrong ... McKay: No, that's civil law. Res ipso loquitur doesn't work in criminal law ... that means "the thing speaks for itself." There's powerful evidence of a crime, it could be circumstantial, it could be direct. Things don't speak for you, we have to show what your intent is. McKay didn't completely deflate Sharkansky's balloon. He urged the blogger to show the FBI documents he's uncovered since the lawsuit trial, to determine if there's new evidence that changes McKay's earlier determination. Update 5/23/2007: Sharkansky has now posted his own narrative account of his interview with McKay.