District’s Shutdown Plan Is “Idiocy Of Immense Proportions,” Says Former U.S. Attorney
A little law-breaking can be contagious. Mayor Vince Gray risks violating the Anti-Deficiency Act if he keeps the entire city government running during a shutdown without the feds' approval, but he's not alone. D.C. Council chairman Phil Mendelson is set to introduce his own bill Tuesday to keep the city running. Councilmember David Grosso, meanwhile, says the District should build on the shutdown fight and start ignoring the portion of the Home Rule Charter that requires 30 days of congressional review for D.C. legislation.
The mayor and Council aren't afraid of breaking the Anti-Deficiency Act because it's toothless. No one has been prosecuted for it since it became law in 1884. "I can't imagine how Eric Holder would come in and arrest anyone of us for doing this," Grosso said yesterday.
Former D.C. U.S. Attorney Joe DiGenova, though, thinks otherwise. DiGenova tells LL that the act hasn't been tested only because no one has been "dumb enough" to break it. While they likely would avoid the criminal penalty of two years in jail, according to DiGenova, councilmembers, the mayor, and top city employees would be personally liable for fines.
"It's not the city's liability," says DiGenova. "It's the person who authorizes the spending. That would be [Chief Financial Officer] Natwar Gandhi, that would be anyone on the city council."
Of course, DiGenova isn't Holder—or current U.S. Attorney Ron Machen. DiGenova, a Ronald Reagan appointee whose pursuit of District officials culminated in Marion Barry's prison stay, has a taste for local prosecutions that a comparatively more District-friendly Democratic administration might lack.
Case in point: DiGenova doesn't buy the idea that standing up to a dysfunctional Congress would get publicity for the District's autonomy fight. "If the city thinks that by violating this law it hopes to make its case for self-rule, this is idiocy of immense proportions," says DiGenova.
DiGenova's been out of office for decades, and an even an overzealous Department of Justice might be loathe to prosecute in front of a District jury. Instead, the key to whether the District can run rests with another lawman: District Attorney General Irv Nathan. Gandhi's decision on whether to spend money during a shutdown depends on Nathan's approval, according to a spokeswoman for Gandhi.
It's not clear whether Gray's attempt to classify all city employees as "essential" will win Nathan over. Nathan's spokesman declined to comment, saying the attorney general's legal advice to the city is confidential. DiGenova, though, thinks he has an idea of where the attorney general is headed.
"Mr. Nathan is probably going to send a letter to everybody," he says. "Warning them in writing that they are probably about to undertake something that could be disastrous to them personally."
Photo by Darrow Montgomery