The Case of the Persecuted Prosecutor

As an assistant U.S. attorney, my friend Bill Johnston had done more than any man in America to reveal how the FBI lied about its actions in the Branch Davidian siege. So why did the government try to send him to prison?
The Case of the Persecuted Prosecutor
Photograph by Dan Winters

It was a scene suspended between a Kafka nightmare and the lunacy of Lewis Carroll, a bizarre conclusion to the long national tragedy that began with the raid of the Branch Davidian compound in Waco in February 1993. Bill Johnston, the defendant who stood before a black-robed judge in a St. Louis courtroom awaiting sentencing, was charged, in effect, with concealing evidence of his knowledge of the FBI’s use of pyrotechnic weapons in its final assault on the compound. The former assistant U.S. attorney in Waco, who had helped prosecute eleven surviving Davidians for conspiring to murder federal agents during the initial raid on the compound, Johnston was the improbable villain turned up by a $17 million investigation led by special counsel John C. Danforth—making him the only person to be indicted as a result of all the hearings and investigations into federal misconduct at Waco. Everything about the courtroom scene was upside down and backward. Far from being guilty of covering up what happened at Waco, Johnston, more than any person in America, was responsible for exposing the truth. At the time when the FBI was still denying that it had fired the kind of ammunition that could have caused the fire that killed 82 men, women, and children at the compound, Johnston had broken ranks with his own superiors in the Department of Justice to write Attorney General Janet Reno that there was evidence that the FBI had used pyrotechnics. And yet here he was, a strapping six-four hunk of rawhide—a man who looked more like a rodeo cowboy than a dedicated professional lawman—standing with his shoulders sagging and his head bowed in shame and humiliation, certain that he was on his way to prison.

I was in St. Louis because Bill Johnston is a friend of mine. I have known him for nearly ten years and have written about him several times, most notably when he and two friends, U.S. marshals Mike and Parnell McNamara, instigated the search that led to the arrest, conviction, and execution of notorious serial killer Kenneth McDuff (see “Free to Kill,” August 1992). Johnston, 42, has the kind of instinctive integrity that Gary Cooper personified in Hollywood. A former Sunday school teacher and the author of Texas history books for children, Johnston doesn’t drink or smoke or swear; the strongest language anyone has ever heard him use is “golly.” He is almost too nice for a profession in which duplicity and mendacity are not only common but laudable.

Johnston was originally charged by the Office of Special Counsel with two counts of obstructing justice and three counts of lying to investigators and the grand jury. All of those charges were later dropped in return for Johnston’s plea to a single count of misprision of felony, which covers a variety of sins, including the failure to perform an official duty. The crime, unfortunately, was his own. I wish that I could tell you that Bill Johnston is an innocent victim of a government vendetta, but he isn’t. In 1999, responding to a subpoena to send all of his Davidian-related documents to his superiors, Johnston came across notes that he feared could be interpreted to implicate him in a cover-up, ripped them from a notepad of interviews conducted six years earlier, and later lied about it. What he did was wrong, but if he had not been such an outspoken critic of the Justice Department, he probably would have been given a slap on the wrist, as were others involved in the Waco fiasco.

The accusations of obstruction of justice have a distinct whiff of Orwellian irony. For more than six years the FBI and the Justice Department denied that pyrotechnics were used during the assault. Johnston didn’t obstruct justice—he pursued it, even if it meant blackening the eye of his own agency. That may explain why Danforth and his minions went after him. They made it clear from the start that they expected Johnston to serve prison time and permanently lose his law license. Friends who tried to raise money for Johnston’s defense fund found themselves subpoenaed to appear before the grand jury. “They literally conspired to ruin his life,” says retired Texas Ranger captain David Byrnes, who was in charge of the crime scene at the compound.

Johnston’s guilty plea ended an ordeal that left him a physical, emotional, and financial wreck. His legal bills were soaring. He had resigned from the job that had been the core of his life for thirteen years and opened a private practice, but nobody wanted to hire a lawyer with federal charges hanging over his head. He might well have won a jury trial, but the only realistic choice was to snap up the bone that was offered—a recommendation for probation rather than prison time. But then, three weeks before Johnston was scheduled for sentencing, the Office of Special Counsel suddenly withdrew its recommendation. The reason? Johnston had spoken to a reporter for Texas Lawyer, saying, accurately, that he had not pleaded guilty to any of the charges in the indictment—although he did admit to facts that supported several of the charges. The Office of Special Counsel contended that the interview was an attempt “to trivialize his guilty plea by now denying much of his criminal conduct.” James Martin, Danforth’s top lieutenant, informed the court, “Johnston continues to try to paint himself as the white knight who tried to force the government to tell the truth …”

Would Danforth get his final measure of flesh? Or would Judge Charles Shaw reject the argument? We were about to find out.

When the shooting started at the Davidian Compound on February 28, 1993, Johnston was at the command post for the Bureau of Alcohol, Tobacco, and Firearms (ATF) strike force. He had been assigned to give legal advice to the ATF. The first hours of the standoff were absolute chaos. No one could make a decision. The FBI’s Hostage Rescue Team (HRT) had been flown in from

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