The more the public has learned about the investigations into John Falcicchio’s sexual harassment of women, the more inadequate those efforts appear. 

The latest example came during Wednesday’s Council hearing on the scandal that has cost the city more than $1 million (so far) and sent Mayor Muriel Bowser’s top aide packing.

Councilmembers and witnesses alike tripped over themselves as they tried to avoid second-guessing how various city officials managed the fallout from the sexual harassment allegations Falcicchio. But the proceedings left Loose Lips wondering: Is it too much to hope for a little common sense from some of D.C.’s most senior leaders?

The report on the independent investigation of this scandal, released last month, went out of its way to avoid casting too many aspersions on the Mayor’s Office of Legal Counsel. The MOLC oversaw internal reviews of the two harassment complaints against Falcicchio filed by government employees last spring.

But as councilmembers questioned Bowser’s lawyers and independent investigators about the latest report’s findings Wednesday, the number of missed opportunities to develop a clearer picture of the environment Falcicchio cultivated within the District government came into focus.

That’s not to say that no one will ever pull on these various threads. Inspector General Daniel Lucas testified that he made multiple referrals to law enforcement agencies for further consideration of criminal charges against Falcicchio. The OIG oversaw the independent report produced by the law firm Arnold & Porter. But Lucas would not say which agencies he’s contacted.

Still, the hearing laid out a series of approaches investigators could’ve pursued that would have made a real difference in answering some huge lingering questions about Falcicchio’s behavior. Now that more than a year has passed since his resignation, some of the best chances to seize crucial information from Falcicchio and other witnesses might have come and gone.

“What continues to trouble me is that somebody who has been so powerful in the District government for decades, and who is now, we hear in media reports, trying to worm his way back into power in the District of Columbia, is continuing walking the streets without any legal penalty,” said Ward 1 Councilmember Brianne Nadeau, who chaired the hearing. “For me, when that happens, that will be closure for everyone involved .… Men like this do not stop just because they lose a job. Men like this think they’re invincible, they think that rules don’t apply to them and that women are just property and don’t care at all about the careers they have ruined.”

The hearing had its fair share of surprises, but among the most galling revelations: Falcicchio’s government-issued cellphone and laptop have been sitting in the offices of Bowser’s attorneys since he resigned. And no one has looked through them.

Considering that one of Falcicchio’s accusers have already provided extensive evidence that he sent unwanted explicit messages, it is beyond LL’s comprehension that investigators could let this happen. Arnold & Porter lawyers reported that they could only find limited evidence of whether Falcicchio let his workplace relationships interfere with hiring and firing decisions. The attorneys made a point of calling out the MOLC’s failure to access either Falcicchio’s personal or government cellphones. But, apparently, the MOLC had his government-issued phone the whole time and did nothing with it.

Vanessa Natale, the MOLC’s deputy director, said Wednesday that Falcicchio turned his phone over to Betsy Cavendish, Bowser’s general counsel, when he resigned, and it later made its way to the MOLC’s office. She didn’t want to look through it for fear of corrupting any evidence, she said.

“Why wouldn’t you check his government phone and see what else might be in there, if that could be a liability for the government or be a concern about another victim?” Nadeau asked during the hearing. LL has the same question, particularly because City Paper asked for copies of communications from that phone via a public records request and did not receive any. 

“We had what we needed” to prove Falcicchio had likely harassed his two accusers, Natale reasoned, particularly via copies of explicit messages he sent one woman from his personal cellphone that she subsequently provided. They figured that he confined much of this activity to that device, and they’d already secured copies of his emails from government servers, Natale added. 

Bowser administration officials have a penchant for using WhatsApp to conduct sensitive discussions on government phones, and there is every reason to believe Falcicchio did so too. (For what it’s worth, one Green Team source tells LL that Falcicchio conducted the vast majority of his business via his personal phone; and LL and other reporters typically only ever heard from Falcicchio on a number that the source confirmed was his personal cell.)

Ideally, investigators would’ve seized Falcicchio’s phones (both work and personal) as soon as these allegations came to light to prevent him from deleting sensitive data, said Deborah Curtis, a partner at Arnold & Porter who led the firm’s review of the matter. But, of course, the MOLC didn’t have the subpoena power to make that happen. Moving forward, other investigators with more robust authority could ask Google, Apple, or cell service providers to hand over text messages, photos, or other information stored in the cloud, she said.

“They’re not a law enforcement agency, so they couldn’t compel it,” Curtis said, referring to the MOLC. “And that sort of bleeds into our other recommendation, which is, at some point they could have sought advice about whether they want to turn this over to law enforcement.”

Curiously, Curtis never received this same power herself. She said her team considered asking for a subpoena from the inspector general’s office, which does possess that investigative tool. But ultimately, Curtis said, they decided against it. Specifically, Arnold & Porter was attempting to interview a Metropolitan Police Department officer on the mayor’s protective detail who Falcicchio’s first accuser said could corroborate her allegations of harassment as well as the other bad behavior in the workplace that she described. That officer spoke to the MOLC during its investigation, but would not talk to the independent investigators.

Curtis said they “weighed that against the importance of the testimony” in opting not to subpoena him, but Lucas made it sound like he wasn’t especially ready to lend them his subpoena powers anyway.

“In my view, issuing that subpoena is not allowing the independent counsel to independently conduct their investigation,” Lucas said, even though it seems Arnold & Porter did not share those same reservations. “What I concluded was, based on what they got from the record [of the previous interview], that they were able to draw the conclusions that they needed.”

But LL will note that the MOLC judged this MPD officer was “not a cooperative witness,” according to the Arnold & Porter report, and he “may have had a motive to be evasive.” (The section discussing that motive is redacted.) The transcript of the officer’s interview with the MOLC shows him giving a series of one-word answers to an attorney’s queries, who also “did not ask meaningful follow-up questions.” Maybe he would’ve been more forthcoming under oath.

The Arnold & Porter attorneys noted another major shortcoming in the MOLC’s response: Just one investigator was assigned to handle this massive, extremely sensitive case.

“We didn’t want to treat [Falcicchio] differently than anybody else,” Natale offered in response, noting that the office only had one person designated to handle sexual harassment cases. “We didn’t want to make it like, ‘Oh, he’s special, we’re going to have special lawyers or special people take care of him.’ That’s the naive part.”

LL would argue that Falcicchio’s extremely influential position in the government, rivaling only the mayor herself, probably did warrant special treatment. But, as Nadeau observed, Natale deserves credit for being willing to admit some fault here, something that is “uncharacteristic” of the Bowser administration as a whole. 

Natale took a more antagonistic attitude toward the attorney general and another lawmaker, Ward 5 Councilmember Zachary Parker, which was a bit more representative of the administration’s usual posture. Parker pressed her repeatedly on why her office has refused to hand over all of the investigatory documents to Attorney General Brian Schwalb as he considers criminal charges against Falcicchio, and the hearing quickly got heated.

As LL reported Tuesday, Schwalb has been asking for the files related to the MOLC’s investigations for more than a year now without much luck. Natale has, at times, claimed she could only provide them if she’s subpoenaed, so as to protect the confidentiality of witnesses. Ultimately, she told Parker that she’d offered to hand over all of the material related to the second Falcicchio accuser, since the AG’s investigation of criminal charges has focused on that woman’s allegations.

“It just seems outrageous that something of this magnitude and importance in relation to the mayor’s team, [and] the mayor’s team gets to determine what documents are shared,” Parker said. “I think we should be very concerned by the appearance of malpractice here.”

“Well, that’s quite a word to use when you’re talking to me,” Natale responded, going on to call him “extraordinarily inflammatory and misleading.” Parked doubled down on his accusation. And Natale responded: “This is no cover up.”

There is some dispute between the AG and Natale about how sincere the MOLC really was about turning over any documents, considering that it never actually did so ahead of this hearing. But Nadeau, in an effort to turn the temperature down, asked if Natale would be willing to send over the information she’d previously offered as soon as Wednesday. Natale agreed. Nadeau confirmed after the hearing that Schwalb’s office found this arrangement acceptable. 

The dispute is a small microcosm of what LL has found so maddening about the whole affair. Everyone in the government has talked a good game about doing a thorough investigation, but even the process of sharing information between two offices that are (hypothetically) on the same team has been like pulling teeth. 

Bowser and her deputies have insisted up and down that there’s no cover-up. And it may well be the case that there’s no grand conspiracy to hide information about Falcicchio from public view. But is there really much of a difference, in practice, behind a concerted cover-up and a series of goofs and petty turf wars if it all leads to the same outcome?

“Each step of the way, we have seen the executive branch take a fundamentally flawed approach, one that seems intent on protecting the predator, not the victims,” Nadeau said. “The government should care about holding accountable the guy who did this to our employees.”