Let me start with a hypothetical.

Let's say that immediately after the San Diego Union-Tribune article revealing that Rep. Randy "Dirty Duke" Cunningham had made several hundred thousand dollars by selling his home to a defense contractor above market value -- and that contractor subsequently sold the home at a big loss -- that the U.S. attorney for San Diego, Carol Lam, did nothing.

Continued reporting by the Union-Tribune turned up further evidence of wrongdoing by Cunningham and pointed to possible co-conspirators Brent Wilkes and Dusty Foggo purchasing expensive gifts for Cunningham in return for lucrative defense contracts.

And despite this, Lam did nothing.

When asked why she was not investigating Cunningham, Lam said that she was waiting for an informant to come forward with an eyewitness account of a conspiracy to steer government contracts to specific companies in return for cash and gifts.

That isn't what happened. Lam initiated an investigation and in rather short order got Cunningham to resign and plead guilty to corruption charges.

But imagine that was what had happened. Imagine if that was the standard for starting an investigation. Imagine the outcry from the media; from the liberal blogosphere -- and they'd be right to be outraged.

I've told you that story because that's what happened with the U.S. attorney for Seattle, John McKay, and the non-investigation of the 2004 Washington gubernatorial election. Stefan Sharkansky has identified nearly 500 illegal votes in that election that was decided by only 133 votes.

Sharkansky finally got to interview McKay last week, and McKay's defense of his decision not to launch an investigation is jaw-dropping.

[McKay] explained in the interview that the threshold of evidence he was looking for was for an informant to come forward with an eyewitness account of a conspiracy to change the outcome of the election. Short of that, he would not even send FBI agents to interview election officials about illegal ballots. That is an extraordinarily high, and I would argue, unreasonable, hurdle to overcome. Clearly there can be serious crimes by individuals which do not constitute a conspiracy yet corrupt the election, and there can be serious crimes that no eyewitness would ever come forward on his own to report.

He explained that the main thing his office did to investigate the election was to monitor the civil contest trial in the first half of 2005. The judge ruled in the end that "No testimony has been placed before the Court to suggest fraud" and McKay concurred with that finding. But that is not the same as concluding that no crimes were committed. The civil trial had a fixed and relatively short time schedule. Discovery was limited by the litigants' time and resources and the willingness of county election officials to comply with discovery requests. Civil discovery is not an adequate substitute for an investigation by law enforcement. Civil litigators deposing fact witnesses do not have the same skill set or legal tools as do law enforcement agents. And King County, in particular, was motivated to conceal evidence of illegal vote counting from the court. County officials ran down the clock, stonewalling discovery requests and public records requests for information that could have been useful to the litigants. It was only months after the trial that I managed to uncover, through public records requests, the documentary evidence that county election officials counted nearly 500 illegal votes, which were not known to the court. I showed McKay a few examples of the illegal votes that I uncovered. He called this information "troubling", and acknowledged that he had not been aware of it. Of course, some or all of these 500 illegal votes could have been tabulated through mere garden-variety negligence and not out of criminal intent. However, it is highly unlikely that anybody can establish whether there was criminal intent without sending an investigator to interview the election workers involved. I certainly can't claim to establish intent solely by examining documents. And election workers are reluctant to risk retribution by going to law enforcement. (In his speech, McKay mentioned that his former office is going to trial with a case against the Hells Angels using only circumstantial, not direct evidence, because Hells Angels members rarely testify against one another. Yet he seemed to miss the irony that he was asserting that the circumstantial evidence of hundreds of illegal votes was not sufficient to merely dispatch an agent to interview election workers who fear retribution and aren't likely to come forward on their own)

Sharkansky's account of his conversation with McKay is jaw-dropping. Frankly, it seems that McKay was just too darn lazy to be bothered with what would be a difficult and unpopular investigation.

McKay's been in the news lately because he was one of the eight U.S. Attorneys shown the door several months ago. This should leave no doubt that the Bush administration was right -- at least in this case -- to can McKay.

I bow to Deputy District Attorney Patrick Frey's superior legal analysis of the McKay case.

So you have a U.S. Attorney who thought the election stank, but still waited for a confession or an informant before investigating — and consequently was unable to uncover hundreds of illegal votes that a single blogger managed to uncover in his spare time, with public records act requests. Then he announces to the press that there was “no evidence” of voter fraud.

Pathetic. Simply pathetic. He didn’t deserve to keep his job.

Case closed.