AG assures Senate Judiciary Committee he has done his job

Pago Pago, AMERICAN SAMOA — Attorney General Faunu’ulelei Falefatu Alailima-Utu reassured members of the Senate Judiciary Committee yesterday that he had followed to the letter, everything required of him in the Senate Resolution which he received early last month.

The resolution which was submitted to the AG’s Office on February 6, 2024 “seeks to investigate the misuse of the unbudgeted and unobligated revenue of Fiscal Year 2023 in the amount of $26 million, calls for the Attorney General to petition the court for an Independent Prosecutor to conduct a fair and impartial investigation into the unlawful use of these funds that are in direct violation of Public Law 37-12.”

The resolution stipulated that the AG must submit to the Senate within 30 days, a report of the findings and recommendations of the preliminary investigation which he must perform, to determine whether there were valid grounds to warrant further investigation by an Independent Prosecutor.

If this was the case, then he must petition the court to appoint an Independent Prosecutor to conduct further investigations and determine if the allegations of violation of the anti-deficiency law against Treasurer Malemo Tausaga, are proven to be true or not.

If the allegations are confirmed, the IP then proceeds to file charges against the accused in court, but if he finds that there is not enough evidence, then he can dismiss the case.

Today, Friday, February 8, 2024 is the 30th day since the Senate resolution was submitted to the AG’s Office.

Last week Tuesday in a meeting before their regular session, Senate President Tuaolo Manaia Fruean sought the advice of Senate members on what course of action to pursue if the AG does not respond within the 30 days stipulated in the resolution.

Tuaolo pointed out that the last day falls on the final day of their current session (today) before their mid-term recess.

However on Monday this week, Fono leaders were copied in a letter from AG Fainu’ulelei to Acting Governor Laapui Talaeuga E.V. Ale, informing him that “an Application to the High Court for Appointment of an Independent Prosecutor regarding Treasurer Malemo Tausaga’s alleged violation of the anti-deficiency law under American Samoa Code Annotated (ASCA) 10.0601.

“I am grateful to Governor Lemanu and you for allowing my Office to do our work without interference or undue influence,” the letter stated.

As reported by Samoa News this past Tuesday, senators were not happy with the AG’s letter because it had specifically mentioned Treasurer Malemo’s name without any proof that he had conducted a preliminary investigation into the allegations against him.

However, AG Fainu’ulelei informed senators at yesterday’s hearing that he had in fact already conducted a preliminary investigation and that the report of his findings and recommendations has been delivered directly to Committee Chairman Senator Tuiagamoa Tavai as required by law.

Fainu’ulelei explained that the law dictates that only the Chairman and members of the Senate Judiciary Committee are privy to the report and that they are not to disclose its contents to anyone in or outside the Fono.

He said that his office is also prohibited from revealing any information connected to their preliminary investigation.

He stated that this is the fifth petition from his office to the court for the appointment of an Independent Prosecutor to investigate allegations of violations of the law against certain government officials, and that the court had been very forthcoming in reviewing the petitions.

The AG shared that he had watched the youtube recording of last Monday's discussion and expressed his disappointment with the very public slanderous attacks and false accusations of intentional dishonesty made against him by some senators, when he had done what everything the Resolution instructed.

"You have done your part, I have done mine, let us now leave it in the hands of the Judiciary who will make a decision based on the results and recommendations of the Independent Prosecutor's investigations," Fainu'ulelei reasoned.

Committee Chairman Tuiagamoa thanked Fainu'ulelei for his detailed explanation of the matter; however, he stated that he had not received the report that the AG had said was delivered directly to him.

Tuiagamoa pointed out that if the report had been submitted together with the copy of his letter to Acting Governor Laapui on Monday, then he would have received it and the current hearing would not have been necessary.

Senator Malaepule told the AG that the Senate's concern was the mention of Treasurer Malemo Tausaga's name in his letter to Acting Governor Laapui, when nothing was said of a preliminary investigation done by his office.

Malaepule thanked the AG for following due process but pointed out that the governor and lieutenant governor or the Fono for that matter, should not be involved in any way in his decision making because his office is guaranteed the power and authority under the law to make decisions independently  in circumstances like this.

The Manu'a senator elaborated that by acknowledging the governor and lieutenant governor “for allowing my Office to do our work without interference or undue influence,” as stated in his letter, it implies that he had sought their advice on the matter.

Fainu'ulelei responded to Malaepule's comments by explaining that he wrote the letter to Acting Governor Laapui as a courtesy notice, and he had submitted a similar courtesy notice to Senator Togiola Tulafono when he was Acting Governor at one time during their administration with the late Governor Tauese P.F. Sunia in 2000, while he had been Acting AG.

The AG recalled that his office had conducted a preliminary investigation on alleged violations of the law by certain senior government officials at the time, and he had also written a courtesy notice to Acting Governor Togiola. Fainu'ulelei stated that if Togiola had been present, he would remind him of that courtesy notice.

"The courtesy notice informed Acting Governor Togiola that certain members of his cabinet had been referred in his petition to the court for investigation by an Independent Prosecutor," the AG explained.

"I also want to clarify that another requirement under the law, is to submit the names of individuals suspected of allegedly violating the law, so that it is clear who will be investigated and the violation that they allegedly committed."

At that stage of the hearing, Senator Togiola had not arrived at the Senate chambers.

However, about 10 minutes later, Togiola arrived and when he was given the floor, he began by quoting part of the AG's letter to Acting Governor Laapui where it states, "I am grateful to Governor Lemanu and you for allowing my Office to do our work without interference or undue influence."

"Why did you include this particular sentence in your letter?" Togiola asked. "This sentence reflects that you had sought their advice on your course of action in this matter. In other words, you have given up the power vested in your office to make your decisions independently."

Togiola pointed out that the governor and lieutenant governor have no authority under the law to interfere or influence the AG's decisions, and quoted ASCA Section 4.0802 of the law.

"Only the AG has the power to make a decision based on the results of his preliminary investigation and if he finds valid grounds to continue the investigation, he petitions the court for an Independent Prosecutor to investigate the individuals implicated," Togiola emphasized. "This is because the individuals under investigation are government employees and the AG's Office cannot investigate them because there is a conflict."

Togiola continued by pointing out that according to ASCA Section 4.0802 subtitled Disclosure of Information, it clearly prohibits like you alluded to in your testimony, the disclosure of any information pertaining to your investigation.

"However, you have revealed to the acting governor and everyone that the letter is copied to, that it is Treasurer Maledmo who is under investigation for alleged violation of the anti-deficiency law!" Togiola argued. "Why? In my legal opinion, this confidential information is prohibited to be disclosed under that section of the law, unless it is approved by the court."

Fainu'ulelei responded that it was his understanding that he was subpoenaed to explain why he had submitted his petition without conducting a preliminary investigation.

However, he reiterated that the courtesy notice is of utmost importance in these circumstances and recounted the time when he was Acting AG in 2000 and Togiola was Acting Governor where he had submitted a courtesy notice on the case of cabinet members implicated for alleged violations of the law.

"When my office made the decision to file charges against those implicated in court, I came to your office on a courtesy call to inform you about it because of your position of Acting Governor," the AG explained.

However, Togiola cut him off and reminded him that it was the AG's Office that filed the charges against the government employees who were implicated.

Fainu'ulelei protested that it was true it was his office who filed the charges in court but there was no difference in the circumstances.

Togiola again cut him off, arguing that there were a lot of differences because by taking on the case against the government officials, the AG's Office was not affected by the non-disclosure clause of the Independent Prosecutor Law which has completely different terms and conditions.

He also pointed out that the AG had come to the Governor's Office on his courtesy call to inform him that his office was proceeding with the case in court after filing criminal charges against those implicated.

Fainu'ulelei reiterated the importance of the courtesy notice and stressed that no information in that notice is revealed to anyone outside his office and declared that he had never sought the governor and lieutenant governor's advice on the matter.

After their exchange, Committee Chairman Tuiagamoa ended the hearing and thanked the AG for testifying.

However, it was AG Fainu'ulelei who had the last laugh during his final remarks at the expense of the Senate president.

"I was watching the youtube recording of the Senate discussion on Monday when Senator Togiola recommended to President Tuaolo to send another letter demanding an explanation as to why I was not acting on the Resolution," Fainu'ulelei recalled. "But Tuaolo replied that he was sick of writing letters and suggested that the AG be pulled in (koso mai le Loia Sili) and explain to our faces, the reason for his inaction!

"I didn't know whether to laugh or cry!

“Because only animals are pulled in like that as the president suggested. But I will humbly comply with anything that the honorable members of the Senate tell me to do.

“So if I am to be pulled in like an animal, I would prefer to be an ass (donkey) because that is the animal that our Lord and Savior rode on his way to Jerusalem before his trials and tribulations which Christians around the world will be commemorating soon!"

The senators (including President Tuaolo) exploded with laughter, ending what had been an intense hearing in a lighter mood.