Leura Garrett Canary

Crossposted at Oxdown Gazette.

Personal Information: Leura Garrett Canary

  • Name: Hon. Leura Garrett Canary
  • Employment: United States Attorney for the Middle District of Alabama
  • Address: P. O. Box 197, Montgomery, AL 36101-0197
  • Phone: (334) 223-7280
  • Date Admitted: September 25, 1981
  • Law School: University of Alabama

Leura Garrett Canary was nominated by Pres. George W. Bush to be the United States Attorney for the Middle District of Alabama. Since assuming this position in September 2001, Mrs. Canary has failed to adhere to even the most basic tenets of professional conduct required of her by her membership in the Alabama State Bar, beginning with the Preamble to the Alabama Rules of Professional Conduct which states, in part, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. [Emphasis supplied.]

The following analysis establishes that Mrs. Canary has violated her obligations under the Alabama Rules of Professional Conduct by her continued participation in the prosecution of Gov. Don Siegelman after her supposed recusal from the matter and that her conduct raises a substantial question as to her honesty, trustworthiness and fitness to practice law. Specifically, Leura Garrett Canary violated the following Alabama Rules of Professional Conduct:

  1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
  2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
  3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  5. RULE 3.6 TRIAL PUBLICITY
  6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
  7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
  8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
  9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
  10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  11. RULE 8.4 MISCONDUCT

Statement of Facts

On November 7, 2008, Rep. John Conyers, as Chairman of the House Committee on the Judiciary, and Rep. Linda Sanchez, as Chair of the Subcommittee on Commercial and Administrative Law, sent a letter to Attorney General Michael Mukasey in which they succinctly set forth the facts under which Mrs. Canary – allegedly – recused herself from the prosecution of Gov. Don Siegelman:

Department of Justice records show that United States Attorney Leura Canary recused herself from the Siegelman case on May 16, 2002. According to the Acting United States Attorney responsible for the case, “In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest.” [Footnote] 15 Mr. Franklin further explained that “Ms. Canary had no involvement in the case, directly or indirectly, and made no decisions in regards to the investigation or prosecution after her recusal. Immediately following Ms. Canary’s recusal, appropriate steps were taken to ensure the integrity of the recusal, including establishing a ‘firewall’ and moving all documents relating to the investigation to an off-site location. [Footnote] 16 On October 5, 2007, Mr. Franklin stated again “[Leura Canary’s] recusal was scrupulously honored by me.” [Footnote] 17 These statements have been repeated many times and have been relied on by defenders of the Department’s handling of this politically-sensitive matter.

[Footnote] 15 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 16 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 17 October 5, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://www.wsfa.com/global/story.asp?s+7176844&ClientType=Printable

On May 16, 2002, Mrs. Canary clearly and unequivocally declared that she had recused herself from the prosecution of Gov. Siegelman stating in this press release that:

As to any matters pertaining to any current investigation of state officials or matters of state government which may or may not be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.

It is of the utmost importance to me, as a United States Attorney, that the people in the Middle District of Alabama and throughout the State have confidence in the manner in which matters are handled by me and by the office I serve and that no one has a basis under which to question the integrity of any investigation undertaken by my office. To that end, the Department has assigned responsibility for the supervision of any investigation regarding state officials or matters of state government to First Assistant United States Attorney Charles R. Niven.

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article September 14, 2007 article The Remarkable ‘Recusal’ of Leura Canary, Prof. Horton identified two material misstatements that raise the question of Mrs. Canary’s honesty regarding her recusal from the case:

I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.

Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” …

As far back as September 2007 when he published his article, Prof. Horton questioned whether Mrs. Canary had recused herself in fact and not just in word, noting that Mrs. Canary’s statement that she recused herself is only the beginning of the discussion:

And third, the press statement says she recused herself. But did she?

The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.

I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.

In September of 2007, the evidence that Mrs. Canary had not recused herself in fact from the prosecution that was available to Prof. Horton was limited to Mrs. Canary’s involvement in several press opportunities:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

However, as Rep. Conyers and Rep. Sanchez explain in their letter to Attorney General Michael Mukasey, documents – obtained by both Prof. Horton and Adam Zagorin – have surfaced that establish that Mrs. Canary did not, as a matter of fact, recuse herself from the prosecution of Gov. Siegelman:

Ms. [Tamarah] Grimes[, an employee of the United States Attorney for the Middle District of Alabama,] has provided several emails[*] casting serious doubts on these assertions, however. The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

[Footnote] 18 September 19, 2005, email from Leura Canary to JB Perrine, Steve Feaga, Louis Franklin, Debbie Shaw and Patricia Snyder.

[*Portions of the images of the e-mails released by Ms. Grimes are printed below.]

Regarding Mrs. Canary’s advice that the prosecution seek a gag order against Gov. Siegelman, Adam Zagorin reported on November 14, 2007 at Time.com that the prosecution team did just that:

Prosecutors in the case seem to have followed Canary’s advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman’s public statements about political bias — like the one Canary had flagged in her e-mail — as grounds for increasing his prison sentence. The judge’s action is now one target of next month’s appeal.

Writing at the Daily Beast, Prof. Horton characterized Mrs. Canary’s conduct in this manner:

Canary, attaching a Siegelman campaign missive to one email, noted that Siegelman claimed that the prosecution is politically motivated and that 67 percent of Alabamans agree with him. Canary suggested that her subordinates obtain a gag order against Siegelman to bar him from making any references to the political nature of the charges brought against him. The communication suggested that Canary’s motivation is, just as Siegelman alleges, political in nature. More significantly, it demonstrates that Canary continued to drive the case notwithstanding her “recusal.”

In fact, the prosecutors sought a gag order against Siegelman and persuaded the judge, a former member of the Executive Committee of the Alabama G.O.P., to ratchet Siegelman’s sentence upwards because he claimed he was a victim of a political prosecution led by Republicans. (Recent polling suggests that Alabamans believe by overwhelming margins that Siegelman was a victim of a political prosecution, and newspaper editorial boards across the state called for his release.)

In another email, Canary’s first assistant referred to Canary making staffing decisions surrounding the prosecution of the Siegelman case long after her “recusal.” These allegations are backed up by the fact that Canary repeatedly appeared at news conferences concerning the Siegelman prosecution and granted at least three press interviews to discuss it—all after she said she had removed herself from the case.

In their letter to Attorney General Michael Mukasey, Rep. Conyers and Rep. Sanchez continue to document Mrs. Canary’s unethical conduct:

Ms. Grimes has provided other documents to the Committee that bear on this issue. In one email, Ms. Canary forwards another another article to essentially the same group of recipients. [Footnote] 19 This too appears improper and again raises the question why a recused United States Attorney would be providing such information to the active prosecution team. Another email notes that Ms. Canary was consulted about the decision to add Ms. Grimes to the Siegelman/Scrushy team – referred to as the “big case” – and states that “Leura and Louis both liked the concept[“] and further reports that “Leura asked me to pass this information [regarding Ms. Grimes’ role on the case] on …[.]” [Footnote] 20 We appreciate that a United States Attorney who is recused from a particular matter will continue to play a role in the overall administration of the office, but question whether participating in detailed discussions about the staffing of the matter from which she has been recused is appropriate and whether messages or information from the recused United States Attorneys should be passed on to new members of the team.

In her July 2007 report to OPR, Ms. Grimes elaborated on this subject, stating that “Leura Canary kept up with every detail of the case through Debbie Shaw and Patricia Watson.” [Footnote] 21 Once again, if this statement is accurate, it raises serious concerns. It is difficult to imagine the reason for a recused United States Attorney to remain so involved in the day to day progress of the matter under recusal.

[Footnote] 19 September 27, 2005, email from Leura Canary to Steve Feaga, Louis Franklin, JB Perrine, and Patricia Snyder.

[Footnote] 20 April 6, 2005, email from Patricia Snyder to Steve Doyle

[Footnote] 21 July 30, 2007 Letter to H. Marshall Jarrett from Tamarah Grimes.

On November 21, 2008, Adam Nossiter at the New York Times reported that:

Yet in her complaint, the Justice Department employee, Tamarah T. Grimes, cited several instances suggesting Ms. Canary maintained a close watch on the case. Ms. Grimes said a legal aide in the office reported on Mr. Siegelman’s trial to Ms. Canary or her top deputy “every day, sometimes several times per day by telephone.” Once, she observed Ms. Canary “frantically pacing in the executive suite” after a courtroom blowup, “pleading with someone” to get on the phone to “tell Louis he has to control his temper.”

Ms. Grimes also disclosed an e-mail message written by Ms. Canary commenting on legal strategy in the case and suggesting to aides that Mr. Siegelman not be allowed to “comment on court activities in the media.” Ms. Grimes, who is also in a dispute with the department related to her accusations that the Siegelman prosecution team had harassed her, cited the affidavit of a former legal aide in the Montgomery office, Elizabeth Jane Crooks, who wrote that “the morning that the trial started, the U.S. attorney herself carried food and beverage over to the courthouse to support the ‘Trial Team.’ ”

Mr. Siegelman’s lawyers have reacted with anger to these contentions, saying they demonstrate that Ms. Canary never really took herself out of the case. “She was supposed to be recused precisely because her involvement would reek of political conflict of interest, yet she remained involved,” they wrote in a filing to the 11th Circuit court this week.

Mrs. Canary has denied any wrongdoing both personally and through her subordinates. In reviewing Mrs. Canary’s conduct, neither her nor Mr. Franklin’s statements that Mrs. Canary recused herself need not – and indeed must not – be accepted at face value. To the contrary, her denials of improper motives or conduct must be evaluated based on the totality of the circumstances. As provided in the adopted Terminology of the Alabama Rules of Professional Conduct, for Mrs. Canary to believe that her conduct was proper, she must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.”

For example, in her May 16, 2002 press release, Mrs. Canary admitted that “it would not be appropriate for me to discuss any investigations that may or may not be under review in my office.” However, as Prof. Horton notes in his article The Remarkable ‘Recusal’ of Leura Canary, Mrs. Canary made this statement to the Los Angeles Times:

Leura Canary said that suggesting she exerted political influence over the case was “a ridiculous assertion” because it was handled by a career prosecutor, Franklin, in conjunction with the public integrity section of the Justice Department in Washington.

As noted above, Prof. Horton reported on several interactions between Mrs. Canary and the press regarding the prosecution of Gov. Siegelman after her alleged recusal:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

Mrs. Canary’s denials were echoed by Louis V. Franklin, Sr., Acting U.S. Attorney in the Siegelman/Scrushy Prosecution:

When the investigation first began, Leura Canary was not the U.S. Attorney for the MDAL. Initially, the investigation was brought to the attention of the Interim U.S. Attorney, Charles Niven, a career prosecutor in the U.S. Attorney’s Office. Niven had almost 25 years of experience as an Assistant U.S. Attorney in the office prior to his appointment as Interim U.S. Attorney upon U.S. Attorney Redding Pitt’s (currently attorney of record for Defendant Siegelman in this case) departure.

Ms. Canary became U.S. Attorney in September 2001. In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest. Although Department of Justice officials reviewed the matter and opined that no conflict, actual or apparent, existed, Canary recused herself anyway to avoid even an appearance of impropriety. I, Louis V. Franklin, Sr., was appointed Acting U.S. Attorney in the case after Charles Niven retired in January 2003. I have made all decisions on behalf of this office in the case since my appointment as Acting U.S. Attorney. U.S. Attorney Canary has had no involvement in the case, directly or indirectly, and has made no decisions in regards to the investigation or prosecution since her recusal. Immediately following Canary’s recusal, appropriate steps were taken to ensure that she had no involvement in the case. Specifically, a firewall was established and all documents relating to the investigation were moved to an off-site location. The off-site became the nerve center for most, if not all, work done on this case, including but not limited to the receipt, review, and discussion of evidence gathered during the investigation.

* * *

Armed with cooperation agreements from Bailey, Young and Kirsch, the investigation continued. In June 2004, a special grand jury was convened to further assist in the investigation. An indictment was returned under seal against Mr. Siegelman and ex-HealthSouth CEO Richard Scrushy on May 17, 2005. The first superseding indictment was filed and made public on October 26, 2005, charging Siegelman, Scrushy, Siegelman’s former Chief of Staff Paul Hamrick, and Siegelman’s Transportation Director Gary Mack Roberts. …

However, as specifically noted by Rep. Conyers and Rep. Sanchez in their letter to Attorney General Michael Mukasey, it was during this exact time frame specified by Acting U.S. Attorney Franklin in which Mrs. Canary clearly was not recused in fact from the prosecution of Gov. Siegelman:

The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

In light of the evidence presented by Ms. Grimes and the contradictions between her actions and her contradictory, self-serving statements, Mrs. Canary’s denials are simply not believable. In short, “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, and, therefore, Mrs. Canary should have known that her conduct was improper even if she actually (and, in that case, quite incompetently) did not know her conduct was improper.

If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct. Although the Alabama State Bar Office of Legal Counsel has the authority to begin an investigation on its own volition, a state bar system will not normally begin a formal investigation until it receives a formal complaint. A formal grievance complaint can’t be filed online, but anyone – whether a resident of Alabama or not or otherwise involved in this matter – can easily file a grievance against Mrs. Canary with the Alabama State Bar in just three simple steps:

  1. Print, complete and sign the official Alabama Complaint Against a Lawyer;
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Rules Violated by Leura Garrett Canary:

  1. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
  2. RULE 3.3 CANDOR TOWARD THE TRIBUNAL
  3. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  4. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  5. RULE 3.6 TRIAL PUBLICITY
  6. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
  7. RULE 4.1 THRUTHFULNESS IN STATEMENTS TO OTHERS
  8. RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER
  9. RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
  10. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  11. RULE 8.4 MISCONDUCT

*Portions of the images of the e-mails released by Ms. Grimes. The complete images of the e-mails can be found here.

September 19, 2005 e-mail from Leura Garrett Canary:

Image

September 25, 2005 e-mail from Leura Garrett Canary:

Image

April 6, 2005 e-mail from Patricia Snyder to Stephen Doyle:

Image

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h/ts: Legal Schnauzer, WriteChic Press, at-Largely and capt.

Thanks are also due to Scott Horton for all his contributions to reporting on the Siegelman prosecution.

Text of the Alabama Rules of Professional Conduct violated by Mrs. Canary

Theodore F. Stevens

Crossposted at Oxdown Gazette.

Theodore F. Stevens, the United States Senator from Alaska was convicted of seven (7) felonies on October 27, 2008. His conviction violates the Alaska Rules of Professional Conduct. Although an inactive member of the Alaska Bar Association, Mr. Stevens remains subject to the obligations imposed by the Alaska Rules of Professional Conduct.

Although the state bar system requires that a formal complaint be filed to begin a formal investigation, anyone can file a grievance against Mr. Stevens. You don’t need to be a resident of Alaska or otherwise involved in this matter to file a grievance. Since a grievance can’t be filed online, I’ve simplified the process as much as possible so you can easily file a grievance against Mr. Stevens with the Alaska Bar Association in three simple steps:

  1. Print, complete and sign the official Attorney Grievance Form – Alaska Bar Association (.pdf);
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Personal Information:

Name: Theodore F. Stevens
Bar: Alaska
ID No:
Status: Inactive

Grievance Information: Alaska

Allegation: Theodore F. Stevens has been convicted of seven (7) felonies.

On October 27, 2008, a jury of his peers unanimously entered a verdict finding Theodore F. Stevens guilty of was convicted of seven (7) counts of felony making false statements. Accordingly, Mr. Stevens is in violation of Rule 8.4. Misconduct , which provides that:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) state or imply an ability to improperly influence a government agency or official; or,

(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. (SCO 1123 effective July 15, 1993)

ALASKA COMMENT

Paragraph (d) of the ABA Rules was omitted because it is too vague. See the ABA Legal Background Section. All improper conduct is already regulated under the other rules.

COMMENT

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

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Patrick J. Rogers

Crossposted at Oxdown Gazette.

Patrick J. Rogers is the New Mexico attorney who represents and advises the Republican Party of New Mexico on its voter suppression efforts. I have documented from the public record Mr. Rogers’ conduct that violates the New Mexico Rules of Professional Conduct. Unfortunately, the state bar system requires that a formal complaint be filed to begin a formal investigation, but you don’t need to be a resident of the state or even involved in the matter to file a grievance. Anyone can file one, but a grievance can’t be filed online, so I’ve simplified the process as much as possible. If you agree, you can easily file a grievance against Mr. Rogers with the State Bar of New Mexico in three simple steps:

  1. Print, complete and sign the official Form for Complaint against a Lawyer in New Mexico;
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Personal Information:

  • Name: Patrick J. Rogers, Shareholder, Modrall Sperling
  • PO Box 2168, Albuquerque, NM 87103-2168
  • Telephone: (505) 848-1800
  • Fax: (505) 848-1891

Grievance Information: New Mexico

Introduction

Along with the privilege to practice law, each member of the State Bar of New Mexico, including Patrick J. Rogers, must also comply with the special duties and responsibilities that arise from that privilege. As described in the Preamble to the New Mexico Rules of Professional Conduct:

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

* * *

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

* * *

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (Emphasis supplied.)

On October 17, 2008, Melanie Dabovich of the Associated Press reported that the “Republican Party of New Mexico alleges 28 people voted fraudulently in one Albuquerque state House district in the June Democratic primary.” After releasing the registration cards for “10 of the suspect voters[,]” Mr. Rogers, “an attorney who advises the state GOP, says the party plans to turn the suspect registration cards over to [state Attorney General Gary] King’s and [District Attorney Kari] Brandenburg’s offices.” ACORN investigated these claims and, as a result, “confirmed with the Bernalillo County Clerk that the voters in question were all legitimate” and that the voters identified by Mr. Rogers and his client were not engaged in the criminal conduct of ‘voter fraud’ but were, to the contrary, victims of false allegations of voting fraud.

Although his client, the Republican Party of New Mexico, officially distanced itself from making further allegations of voter fraud, Mr. Rogers continued to press the matter. Under the guise of conducting additional investigation of the baseless voter fraud allegations, Mr. Rogers retained a private investigator to conduct further ‘review’ of the voter fraud charges and supervised this investigator’s review of the voters he and his client had previously identified, even though each voter had been cleared of any wrongdoing.

Considering this conduct and the circumstances surrounding his conduct, as detailed more specifically below, Patrick J. Rogers has violated the following New Mexico Rules of Professional Conduct:

16-102. Scope of representation.
16-116. Declining or terminating representation.
16-401. Truthfulness in statements to others.
16-403. Dealing with unrepresented person.
16-404. Respect for rights of third persons.
16-503. Responsibilities regarding nonlawyer assistants.
16-802. Judicial and legal officials.
16-804. Misconduct.

Allegation: Patrick J. Rogers engaged in conduct designed to intimidate and harass New Mexican voters by retaining and supervising a private investigator to ‘investigate’ baseless allegations of voter fraud in violation of federal laws that prohibit voter intimidation.

On October 17, 2008, Melanie Dabovich of the Associated Press reported the activities of Patrick J. Rogers and his client, the Republican Party of New Mexico:

ALBUQUERQUE — The Republican Party of New Mexico alleges 28 people voted fraudulently in one Albuquerque state House district in the June Democratic primary.

Party representatives said at a news conference Thursday they found the suspect voters in a review of 92 newly registered voters in House District 13.

“We really have a bombshell — evidence of voter fraud in the 2008 primary in Albuquerque,” said State Rep. Justine Fox-Young, an Albuquerque Republican. “We are presenting undeniable proof that there was voter fraud in the June election.”

* * *

The Republicans released voter registration cards for 10 of the suspect voters, saying they showed missing or inaccurate Social Security numbers or birth dates.

In some cases, more than one voter was registered using the same Social Security number. In others, people who the Republicans said had no Social Security number on public record were registered.

* * *

Pat Rogers, an attorney who advises the state GOP, says the party plans to turn the suspect registration cards over to King’s and Brandenburg’s offices.

In response, Project Vote properly characterized these allegations as spurious:

ACORN and Project Vote launched back in a news conference call on October 10. “This is the third election cycle in a row where we’ve seen partisan interests take the same issue—which is canvassers trying to defraud ACORN by not doing their work and instead fabricating applications—and trying to exaggerate that and turn it into an argument that there is ‘widespread fraudulent voting’ going on,” said Project Vote executive director Michael Slater. “These allegations have been debunked now in several election cycles, and we’ll find by the end of this election cycle they’ll be debunked as well.”

The next day, October 18, 2008, the Associated Press again reported these baseless allegations:

ALBUQUERQUE —The community activist group ACORN fired back Saturday at New Mexico Republicans and their claims of voter fraud in June’s Democratic primary.

ACORN organizers said that since the vote-fraud charges were leveled by GOP leaders on Thursday, they have contacted four or five of the 28 allegedly “suspect” Albuquerque voters.

They said those voters confirmed that the allegations, including problems on voter registration forms like inaccurate Social Security numbers or birth dates, were simply wrong.

But State Republican Party representatives said only two voters out of 16 named in their investigation have come forward to deny the charges, and they stand by their assertion that voter fraud remains a problem in New Mexico. “The bottom line is that two out of 16 is not a good batting average,” said Pat Rogers, an attorney who advises the GOP.

* * *

Rogers said a private investigator hired by the state Republican Party found [Brittany] Rivera and others like her have Social Security numbers on their voter registration forms that are being used by other people. They may be legitimate voters and could be victims of identity theft.

* * *

However, the voters accused of the crime of voter fraud by Mr. Rogers and his client, the Republican Party of New Mexico, were, in fact, innocent of these charges. With the assistance of ACORN, these voters were able to prove their innocence of the charge of voter fraud. After “ACORN confirmed with the Bernalillo County Clerk that the voters in question were all legitimate,” the New Mexico Republican Party backed off their allegations of voter fraud. In spite of the fact that the voters identified by Mr. Rogers and his client were absolutely cleared of any impropriety by the Bernalillo County Clerk, Mr. Rogers and his private investigator continued to press the matter. Under the apparent guise of conducting additional investigation of the voter fraud allegations, and even though the named voters were cleared of any wrongdoing, Mr. Rogers continued to retain and supervise the services of Mr. Alfredo Romero to conduct additional ‘review’ of the voter fraud charges:

Among those who said she was blindsided and angered by the Republicans’ allegations was 18-year-old Brittany Rivera. At a news conference, she said she was at first scared to learn she’d been labeled as a “suspect” voter and her name and personal information had been forwarded to law enforcement. “You guys are trying to scare us new voters,” Rivera said of the GOP. “I think it’s wrong.”

According to Rivera and her mother, she accurately filled in and mailed her registration form on time after her mother picked up the paperwork for her at the nursing home where she works.

She said being targeted as a bogus voter is “crazy,” and she is now “more determined” to vote in the future. She said she planned to vote Saturday, when early voting began in New Mexico.

Group slams GOP ‘hacks’ over voting charges, Associated Press, October 18, 2008.

Several days later, on October 23, 2008, Gwyneth Doland reported in the New Mexico Independent that Mr. Rogers suddenly refused to either confirm or deny that he had hired an investigator in this matter:

ALBUQUERQUE – Republican Party attorney Pat Rogers refused to say Thursday if a private detective who visited the addresses of two of the 10 Albuquerque voters cited at a news conference last week about voter fraud was working for the GOP.

* * *

When asked by the New Mexico Independent if the private investigator worked for Rogers’ law firm, Rogers said, “I have no interest in responding to ACORN’s accusation.”

Reminded that the accusations came from the voters themselves, Rogers said, “You need not to accept what ACORN says.”

When asked the question again, Rogers said, ”I am not responding to any questions. I am not being quoted. This is off the record.”

However, the New Mexico Independent’s Gwyneth Doland confirmed that Mr. Rogers’ investigator had indeed continued to visit voters, including [name redacted] and Emily Garcia:

Guadalupe Bojorquez said a man who identified himself as a private investigator by the name of Al Romero visited the home of her 67-year-old mother on Wednesday.

“She calls me and she’s panicked because there is this man outside and he’s telling her he’s an investigator and he wants to come in to the house,” Bojorquez told NMI. She said her mother then put the man on the phone.

“I asked him, but he wouldn’t tell me who he worked for. He just said he wanted to verify that she was a legitimate voter and he wanted to see her documents. I told him ‘No,’ and we argued for a little bit.

“He said ‘You have to realize we’re just trying to protect the people, we just want to make sure that she’s a legitimate voter and if she votes and she’s not supposed to, then it’s illegal.’

“He was pressuring me so much that I told him that she’s not going to do anything until she speaks to her attorney.”

Bojorquez said she asked the man several times whom he worked for. Eventually, she said, “He told me he worked for Pat Rogers.”

Rogers is the Republican attorney who also made claims of voter fraud in 2004 and 2006. He was cited in the federal Department of Justice report about the firing of U.S. attorneys as one of the New Mexico GOP activists who complained to the Department of Justice about then-U.S. Attorney David Iglesias.

By law, private investigators are licensed by the state Regulation and Licensing Department. According to the department’s Web site, there is an Alfredo Romero who has a current private investigator license. In addition, three men named Albert or Alberto Romero have current security guard licenses.

Jenais Griego told NMI that she too had been visited by a private investigator on Wednesday. Her grandmother, Emily Garcia, was one of the people whom Republicans described last week as an ineligible voter.

“I asked him if he had a badge and he pulled out a white and blue laminate card with his name on it,” Griego. “It wasn’t even a badge, but it said ‘Al Romero, private investigator.’ He came in and he started asking me about my grandmother and I was trying to tell him that she didn’t live here. He’s like ‘OK, so let me just write some stuff down.’”

Griego said that Romero asked her questions about her grandmother’s voter registration card; her grandmother lives in a trailer down the street, but receives her mail at the house, she said.

“It freaked me out when he got upset, when I did tell him that, regardless of what happens, my grandmother is voting and it’s OK for her to vote.”

“He tried to tell me to tell her to be careful when she’s voting. He was trying to tell me stuff to scare her from voting.”

Bojorquez also said her mother felt wary about the visit.

“My mom is confused because she doesn’t understand why she’s being put through this because she voted. She doesn’t trust anybody anymore,” Bojorquez said, requesting that her mother’s name not be published again.

These visits by Mr. Rogers’ investigator were also confirmed by Zachary Roth at TPMMuckraker:

Minority voters in New Mexico report to TPMMuckraker that a private investigator working with Republican party lawyer Pat Rogers has appeared in person at the homes of their family members, intimidating and confusing them about their right to vote in the general election.

* * *

The visits to minority voters by the P.I. appear to be connected to last week’s effort.

* * *

Guadalupe Bojorquez, who works in law enforcement in Albuquerque, told TPMmuckraker today that her mother, [name redacted], was one of the ten voters whose names were released by the GOP. After this happened, said Bojorquez, her mother had been contacted by the voter registration group ACORN. Bojorquez, with ACORN’s help, confirmed with the county clerk that her mother, who does not speak English, is indeed eligible to vote, and had been when she voted in June.

Nonetheless, Bojorquez said that her mother yesterday received a visit from a man who asked for her personal information, including an ID, in reference to her eligibility to vote. Bojorquez told TPMmuckraker that according to her mother, at one point the man asked what she would do if immigration authorities contacted her.

After Bojorquez’s mother, frightened, refused to let him in the door, the man waited outside her house. Eventually, Bojorquez’s brother arrived at the house, emboldening Bojorquez’s mother to go outside, call Bojorquez, and put her on the phone with the man.

Bojorquez said the man told her he wanted to make sure her mother knew that she shouldn’t be voting, and continued to ask for her mother’s personal information. When Bojorquez said that no information would be handed over unless the man revealed who he was employed by, he said he was a private investigator hired by Pat Rogers. He told Bojorquez his name was Al Romero, and left a number at which Bojorquez could contact him.

Bojorquez added that in fact, her mother has already voted in the general election, by absentee ballot — which she is eligible for because she has trouble walking — so Romero’s efforts on that front were in vain.

Another Albuquerque woman had a similar experience.

Jenais Griego told TPMmuckraker that yesterday, as she arrived home with her kids, a man in a beige Chevy Silverado pulled up, removed a notebook from his pocket, and said he was looking for Emily Garcia. Garcia is Griego’s grandmother — Griego said Garcia, who works as a home care-giver, lists Griego’s address for her mail — and, like [name redacted], was one of the voters named by the GOP last week as having voted fraudulently in June.

Griego said she allowed the man in, and when she asked him for identification, he pulled out a card that gave his name as Al Romero. She said the man had a redacted copy of Garcia’s voter registration form, and asked whether Garcia intended to vote. He said if she intended to do so, she needed to make sure she was properly registered.

As with Bojorquez and [name redacted], Griego said that Garcia had already confirmed after the GOP press conference that she was indeed a valid voter. An ACORN worker had come to her house to explain that the GOP had questioned her registration, and, along with Griego, they had contacted the county clerk to ensure that she could legitimately vote, and had done so in June.

So when Romero asked Griego whether Garcia intended to vote, Griego replied that she did. At that point, said Griego, Romero became “angry” and “upset,” and left abruptly.

Rogers did not return several calls from TPMmuckraker seeking comment. But last week he said that the state party had hired a private investigator in connection with vote fraud*. And asked yesterday by the New Mexico Independent about the confrontations with voters, he replied: “I have no interest in responding to ACORN’s accusation.”

Reached by TPMmuckraker at the phone number he provided to Bojorquez, Romero said he didn’t have time to talk about the matter. He did not respond to repeated follow-up calls.

*This sentence has been corrected from an earlier version.

In response, Project Vote has requested that New Mexico U.S. Attorney Gregory Fouratt begin investigating these allegations of voter intimidation and vote suppression, including the intimidation of Ms. Rivera, Ms. [name redacted], Ms. Garcia and Mr. “Francisco Martinez, 19, who registered to vote for the first time when volunteers came to his high school in May. Mr. Martinez said Monday that he felt like he was being bullied and intimidated out of his rights as an American. ‘This is my first time voting, and it’s important to me to be part of history,’ Mr. Martinez said.” In his October 23, 2008, letter to U.S. Attorney Fouratt requesting the investigation, Project Vote Election Counsel Donald Wine II wrote:

We here at Project Vote, on behalf of several voters of the State of New Mexico write to request an investigation into increased efforts to intimidate voters and suppress minority voters by representatives of the New Mexico Republican Party.

Members of the New Mexico Republican Party called a press conference last week where they named 10 Albuquerque residents as frauds who they allege voted illegally in the New Mexico primaries. ACORN made contact with 8 of the 10 voters on that list distributed by the New Mexico Republican Party. All of the voters identify as Democratic, all are minorities (9 of the 10 are Latino), and most of them are 18 or 19 years old. One of the voters is a new citizen who was naturalized in 2007 and was voting for the first time. ACORN found that all of the voters they contacted are legitimate voters that were eligible to vote and had no problems with their registrations.

Now that the Republicans have found that the people they alleged were frauds were in fact legitimate voters, they have begun to intimidate these voters. Already, 2 of the 10 voters have been visited by a private investigator in an effort to keep these voters silent. Also, the fact that all 10 of the voters that were named on this list were minority voters, 9 of which are Latino, as well as mostly younger voters, indicates a concerted effort to suppress the vote of a particular class of voters.

This form of intimidation and suppression is in direct violation of Section 12 of the Voting Rights Act of 1965, as well as Section 2. We feel that the right of all Americans to vote is of the utmost importance, and if there is credible evidence of voter intimidation and suppression of a particular class of voters, it should be addressed and promptly prosecuted. We request that you conduct an immediate investigation into the attempts by the Republican Party of New Mexico to intimidate minority, first-time voters into not exercising their right to vote. To the extent that your investigation uncovers that any federal laws have also been violated, we ask that your office refer the matter to the proper federal authorities.

In addition to Mr. Wine’s allegations that Mr. Rogers’ and his investigator’s conduct violated federal law, Zachary Roth at TPMMuckraker also reports that Mr. Rogers’ and Mr. Romero’s conduct likely violates federal law:

Four separate experts on voting rights have confirmed to TPMmuckraker that the behavior of a private investigator apparently hired by a New Mexico Republican party lawyer, that we reported this morning, potentially violates federal voting laws.

Gerry Hebert, a former acting head of the voting rights section of the Department of Justice, told TPMmuckraker that the P.I.’s actions appear to violate the criminal section of the federal Voting Rights Act, which makes it a crime to willfully injure, intimidate, or interfere with a person attempting to vote. Hebert added that a separate statute makes it a crime to conspire to intimidate someone in exercising their right to vote — a provision that could apply to GOP lawyer Pat Rogers or others in the state party who may have been involved in the scheme.

“A matter like that ought to be reported to the DOJ immediately,” said Hebert, adding that he planned to do so.

Jon Greenbaum of the Lawyers Committee for Civil Rights agreed, and added that the activities detailed in TPMmuckraker’s report could violate both criminal and civil voting rights statutes. Greenbaum pointed to a civil provision of the Voting Rights Act which says that it violates the law to intimidate, threaten or coerce someone from voting or not voting.

Greenbaum too said he planned to pass on to the Department of Justice the claims made in our report.

Rick Hasen, a professor at Loyola Law School in Los Angeles and a noted expert on election law, also said that the behavior potentially violated the Voting Rights Act or other federal civil-rights statutes.

And Wendy Weiser, a voting-rights expert at the Brennan Center for Justice, further confirmed that take.

An Albuquerque woman told TPMmuckraker yesterday that a man identifying himself as a private investigator hired by Rogers came to her mother’s house Wednesday asking her mother for personal information and warning her not to vote if she wasn’t properly registered. A second woman in the same city provided a similar report to TPMmuckraker. The voters’ names had been publicly released last week by Rogers and others affiliated with the state party, who claimed that 28 mostly Hispanic people had voted fraudulently in June. It was later determined that many of the people whose names had been released were valid voters.

In spite of the evidence to the contrary, Mr. Rogers may claim that he has fulfilled his special responsibility for the quality of justice and may deny that he engaged in improper conduct or harbored improper motives. However, any such claims or denials are not determinative of whether or not he violated the law and the New Mexico Rules of Professional Conduct by using the law’s procedures to harass or intimidate others. Instead, whether he “actually supposed the fact in question to be true” or not, i.e., whether Mr. Rogers actually believes any denial of improper conduct, “may be inferred from circumstances” in which the alleged misconduct occurred. See Terminology, New Mexico Rules of Professional Conduct. Even if Mr. Rogers actually believed his actions were proper, that belief would only be reasonable if “the circumstances are such that the belief is reasonable.” However, because “a lawyer of reasonable prudence and competence would [have] ascertain[ed]” that Mr. Rogers’ conduct was improper, Mr. Rogers should have known he was acting unethically.

Specifically, the circumstances existing nationally quash any inference that Mr. Rogers may believe that his conduct was appropriate:

It’s worth noting, in response to the news that the FBI has launched an investigation into whether ACORN was involved in a nationwide voter-registration fraud scheme, that the launch of the probe comes at a time national Republicans at several different levels have sought to make an issue out of ACORN — in some cases calling for just such an investigation.

Last week, John McCain told a Florida crowd:

“There are serious allegations of voter fraud in the battleground states across America. They must be investigated.” The GOP standard-bearer has continued to sound the alarm over ACORN since then, and brought it up at last night’s debate.

GOP House leader John Boehner last week called in a statement for ACORN to be de-funded — it is currently eligible for federal housing funds — and charged that over the years, ACORN “has committed fraud on our system of elections, making American voters question the fairness and accuracy of the exercise of their most fundamental right under the Constitution.”

Last week the RNC held at least five separate conference calls with reporters to stoke fears of voter fraud connected to ACORN.

And numerous state- and local-level Republicans have also in the last few weeks called publicly for authorities to look into ACORN.

What’s Behind the Feds’ ACORN Probe?, Zachary Roth, TPMMuckraker, October 16, 2008.

Furthermore, the circumstances surrounding Mr. Rogers’ effort to suppress the vote in New Mexico in 2008 are nothing new. To the contrary, they are part of a multi-year, ongoing effort to challenge the voting rights of New Mexicans, as confirmed by Rep. John Conyers in his letter to United States Attorney General Michael Mukasey:

Mr. Rogers, however, appears repeatedly in the report on the U.S. Attorney firings, prepared by the Department’s Office of the Inspector General and Professional Responsibility, which documented his actions making flawed claims of voter fraud and bringing unwarranted pressure to bear on law enforcement officials, including Mr. Iglesias, in 2006.

On October 24, 2008, Zachary Roth at TPMMuckraker reported further on the circumstances surrounding Mr. Rogers’ conduct:

… Rogers’ role in pressing [fired U.S. Attorney David] Iglesias to pursue voter fraud prosecutions was extensive. According to the OIG report on the firings, Rogers set up a lunch meeting with Iglesias, and met with an FBI agent — among many other activities — to push the issue.

Perhaps most damagingly, the report contains a September 2004 email sent to Iglesias and several staffers for New Mexico’s GOP congressional delegation, in which Rogers admitted that he was interested in the issue in large part for its potential to help the GOP:

I believe the [voter] ID issue should be used (now) at all levels – federal, state legislative races and Heather [Wilson]’s race … You are not going to find a better wedge issue … I’ve got to believe the [voter] ID issue would do Heather more good than another ad talking about how much federal taxpayer money she has put into the (state) education system and social security … This is the single best wedge issue, ever in NM. We will not have this opportunity again … Today, we expect to file a new Public Records lawsuit, by 3 Republican legislators, demanding the Bernalillo county clerk locate and produce (before Oct 15) ALL of the registrations signed by the ACORN employee.

But Rogers is no mere local player on the Republican voter fraud team. He was on the board of the American Center for Voting Rights (ACVR), a fake think-tank which was little more than an effort by GOP operatives to offer an intellectual gloss to politically motivated claims of voter fraud — and which abruptly closed down operations in 2007.

ACVR was run by Mark “Thor” Hearne, who served as national election counsel to President Bush’s 2004 reelection campaign. Jim Dyke — who was the communications director of the Republican National Committee during the 2004 election, and went on to work for both the White House and for Vice President Cheney — was also involved.

Writing in Slate last year, election-law expert Rick Hasen described ACVR’s modus operandi:

Consisting of little more than a post-office box and some staffers who wrote reports and gave helpful quotes about the pervasive problems of voter fraud to the press, the group identified Democratic cities as hot spots for voter fraud, then pushed the line that “election integrity” required making it harder for people to vote. The group issued reports (PDF) on areas in the country of special concern, areas that coincidentally tended to be presidential battleground states. In many of these places, it now appears the White House was pressuring U.S. attorneys to bring more voter-fraud prosecutions.

Here’s Rogers, on behalf of ACVR, telling CNN back in 2004 about the need for “safeguards to make sure that citizens only are voting.”

And now this is the guy who’s involved in pushing voter fraud claims in connection with an investigation in which the FBI is already involved.

Clearly, the background and circumstances in this matter, however, do not permit the inference that Mr. Rogers believed his conduct was appropriate. Accordingly, Mr. Rogers has engaged in conduct that violates the following New Mexico Rules of Professional Conduct:

16-102. Scope of representation.

* * *

D. Course of conduct. A lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

* * *

16-116. Declining or terminating representation.

A. Mandatory disqualification. Except as stated in Paragraph C, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

* * *

16-401. Truthfulness in statements to others.

In the course of representing a client a lawyer shall not knowingly:

A. make a false statement of material fact or law to a third person; or

B. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106.

16-403. Dealing with unrepresented person.

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

16-404. Respect for rights of third persons.

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

16-503. Responsibilities regarding nonlawyer assistants.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

A. a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

B. a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

C. a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved ; or

* * *

16-804. Misconduct.

It is professional misconduct for a lawyer to:

A. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

B. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

D. engage in conduct that is prejudicial to the administration of justice;

* * *

H. engage in any conduct that adversely reflects on his fitness to practice law.

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Full Text of the New Mexico Rules of Professional Conduct violated by Mr. Rogers

Michael J. Elston

On July 7, 2008, CREW filed a complaint against Michael J. Elston with the Virginia Bar for his role in the illegal politicization of hiring practices at the Department of Justice. However, CREW did not file a complaint with the Illinois, Kansas or Missouri Bars, jurisdictions in which Mr. Elston is also admitted, as explained here, but only sent these associations a copy of the Virginia complaint. More importantly, because the CREW complaint addressed only the illegal politicization of hiring practices at the Department of Justice, CREW notably failed to address Mr. Elston’s role in the politicized firing of several sitting United States Attorneys. As set forth below, Mr. Elston is also in violation of the Rules of Professional Conduct for Illinois, Kansas, Missouri and Virginia regarding his role in the United States Attorney firings.

Personal Information:

  • Name: Michael J. Elston, Partner, McGuireWoods LLP
  • Washington Square, 1050 Connecticut Avenue N.W., Suite 1200
    Washington, District of Columbia 20036-5317
  • Telephone: 202-857-1700, Fax: 202-857-1737

Bar Information: Illinois

  • ID No.: N/A
  • Date of Admission as Lawyer by Illinois Supreme Court: November 10, 1994
  • Registered Business Address: Mcguirewoods LLP
    1750 Tysons Blvd, Suite 1800
    McLean, VA 22102-4231
  • Registered Business Phone: (703) 712-5366
  • Illinois Registration Status: Active and authorized to practice law
  • Last Registered Year: 2008
  • Malpractice Insurance: (Current as of date of registration; consult attorney for further information) In annual registration, attorney reported that he/she has malpractice coverage.
  • Public Record of Discipline and Pending Proceedings: None

Grievance Information: Illinois

Bar Information: Kansas

  • ID No.: N/A
  • Status: Unknown
  • On July 2, 2008, Amanda Provorse, Attorney Registration, responded to my e-mail request for Mr. Elston’s status with the Kansas Bar that “Mr. Elston is currently active and in good standing. He was admitted 9/29/1998.”

Grievance Information: Kansas

Bar Information: Missouri

Grievance Information: Missouri

Bar Information: Virginia

  • ID No.: N/A
  • Status: Active
  • Registered Address: 1750 Tysons Boulevard, Suite 1800, McLean, VA 22102-4215
  • Registered Phone: 703-712-5366 and Fax: 703-712-5215
  • Member class: Active

Grievance Information: Virginia

While reviewing this matter, it is important to keep in mind that the privilege to practice law imposes duties and responsibilities on each attorney who accepts a license to practice law. These obligations are described in the Preamble to the Illinois Rules of Professional Conduct :

The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

To achieve these ends the practice of law is regulated by the following rules. Violation of these rules is grounds for discipline.

* * *

The quality of the legal profession can be no better than that of its members. Lawyers must exercise good judgment and candor in supporting applicants for membership in the bar.

Lawyers also must assist in the policing of lawyer misconduct. The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.

These obligations are also expressly stated in the Preamble to the Virginia Rules of Professional Conduct, the Preamble to the Kansas Rules of Professional Conduct and the Preamble to the Missouri Rules of Professional Conduct, which provide, in part, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges,
other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

* * *

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or selfinterested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

It is also important to bear in mind that although Mr. Elston denies improper motives or conduct, his denials and protestation must be evaluated based on the totality of the circumstances. As noted in the Illinois Rules of Professional Conduct, for Mr. Elston to believe that his conduct was proper, he must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.” Additionally, because “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, Mr. Elston reasonably should have known that his conduct was improper.

As detailed more specifically below, Mr. Elston’s conduct violated the following the following rules of professional conduct:

Illinois Rules of Professional Conduct:

Kansas Rules of Professional Conduct

Missouri Rules of Professional Conduct

Virginia Rules of Professional Conduct

File a grievance against Mr. Elston

  1. Print, complete and sign the official Complaint Form for Illinois, Kansas, Missouri (or .pdf) and/or Virginia (or .pdf );
  2. Print and attach this page to the Complaint Form; and
  3. Mail the complaint to the address noted on the Complaint Form.

Allegation: Michael J. Elston engaged in conduct that was a violation of federal laws that prohibit the obstruction of justice when he threatened four (4) recently-resigned United States Attorneys.

Michael J. Elston’s participation in the scheme to fire multiple United States Attorneys is at least unethical, if not actually criminal. As set out in greater detail below, Mr. Elston’s role in the firing of numerous United States Attorneys included placing telephone calls to several of these U.S. Attorneys in which he conveyed the threat that the Department of Justice would publicly attack the U.S. Attorneys if they chose to testify to the United States House and Senate. As reported by Paul Kiel at TPMMuckraker on May 2, 2007,

U.S. Attorney for Arizona Paul Charlton told Congress that Michael Elston, the chief of staff to Deputy Attorney General Paul McNulty, called him and warned him to remain silent. “I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the Attorney General’s,” Charlton wrote in answer to questions from the House Judiciary Committee.

Charlton did not expound on the conversation in his answer, only saying that the call occurred after the firing on December 7th, but before the attorney general testified before the Senate Judiciary Committee on January 18th of this year.

It’s not the first time that Elston has been accused by one of the fired U.S. attorneys of trying to intimidate them into silence. Two others have said the same thing.

U.S. Attorney for Little Rock Bud Cummins testified before the Senate Judiciary Committee that Elston had made a similar call to him in mid-February. Cummins produced an email written the day of the call that clearly laid out the threatening undercurrent to Elston’s message.

And U.S. Attorney for Seattle John McKay has said that he got a call from Elston in December. Newsweek reported that McKay says “he also got a phone call from a ‘clearly nervous’ Elston asking if he intended to go public: ‘He was offering me a deal: you stay silent and the attorney general won’t say anything bad about you.'” (Emphasis supplied.)

Prior to this article, Mr. Kiel had reported on the contents of Mr. Cummins’ e-mail on March 7, 2007:

In a February 19th article in The Washington Post, Cummins was quoted on the firings:

“They’re [the Justice Department] entitled to make these changes for any reason or no reason or even for an idiotic reason,… But if they are trying to suggest that people have inferior performance to hide whatever their true agenda is, that is wrong. They should retract those statements.”

The next day, Cummins got a call from Elston. And very unfortunately for the Justice Department, Cummins sent out an email no more than an hour after the call to the other fired prosecutors (you can see it here):

The essence of his message was that they feel like they are taking unnecessary flak to avoid trashing each of us specifically or further, but if they feel like any of us intend to continue to offer quotes to the press, or organize behind the scenes congressional pressure, then they would feel forced to somehow pull their gloves off and offer public criticisms to defend their actions more fully…. I was tempted to challenge him and say something movie-like such as “are you threatening ME???”, but instead I kind of shrugged it off…

Cummins, a lifelong Republican, continues in the email to refer to Elston’s “threat of retaliation” and the “threatening undercurrent in the call.” So it was abundantly clear to him that he was being threatened.

The most inflammatory part of the email is Cummins’ description of Elston’s reaction to the idea of the fired prosecutors testifying before Congress:

“He reacted quite a bit to the idea of anyone voluntarily testifying and it seemed clear that they would see that as a major escalation of the conflict meriting some kind of unspecified form of retaliation.”

Mr. Kiel also reported on these comments from fired U.S. Attorney John McKay:

Now another prosecutor, Seattle’s John McKay, says he got a similar call much earlier, before the firings had even been reported. From Newsweek:

After McKay was fired in December, he says he also got a phone call from a “clearly nervous” Elston asking if he intended to go public: “He was offering me a deal: you stay silent and the attorney general won’t say anything bad about you.”

Murray Waas of the National Journal reported on May 3, 2007 these details regarding Mr. Elston’s conduct:

The U.S. attorneys have said that Elston, in effect, told them that if they kept quiet about their dismissals, the Justice Department would not suggest that they had been forced to resign because of poor performance.

* * *

McKay, who was the first of the prosecutors whom Elston called, described Elston’s message to him: “The attorney general was not going to disclose that I or the other U.S. attorneys were fired or forced to resign.… ‘We have no intention of naming people.'”

McKay said that Elston never specifically suggested an explicit quid pro quo whereby Justice officials would not say that McKay had been fired for cause or poor performance if McKay did not talk to the media or Congress about his firing. However, McKay said, “a reasonable person would have felt both offended and threatened” by Elston’s call.

McKay said that the message he took away from the conversation was, “If you remain silent, we will not out you as someone who was forced to resign.”

McKay said that he made contemporaneous notes of his conversation with Elston, and dated them — something, he said, that was not his ordinary practice. He did so because of his concerns about what Elston was telling him, according to McKay.

Charlton said he got a similar phone call from Elston on the same day. In formal response to written questions posed to him by the House Judiciary Committee, Charlton said, “I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general’s.”

Cummins testified before the Senate Judiciary Committee on March 6, at which time a contemporaneous e-mail he wrote within an hour of his phone call with Elston was released. In the e-mail, which he sent to five of his fellow prosecutors, Cummins said that the “essence of [Elston’s] message” was that if any of the fired U.S. attorneys had pressed their case in the media or before Congress, senior aides to Attorney General Alberto Gonzales might “feel forced to somehow pull their gloves off” and accuse the prosecutors of ineptitude or poor management.

Cummins also wrote in his e-mail that Elston had called him because he was upset about comments Cummins had made in the press about his firing. “[Justice officials] feel like they are taking unnecessary flak to avoid trashing each of us,” Cummins said in the e-mail to his fellow prosecutors. “I also made it a point to tell him that all of us have turned down multiple invitations to testify. He reacted quite a bit to the idea of anyone voluntarily testifying, and it seemed clear that they would see this as a major escalation of the conflict meriting some kind of unspecified form of retaliation.”

McKay, one of the prosecutors who got the e-mail, said: “[Cummins] wanted to send a message to all of us. We got that message, loud and clear: If you talk to the press or go to Congress, the Department of Justice will not consider you a friend. I considered it an act of intimidation.”

* * *

At the March 6 Senate Judiciary hearing, Sen. Sheldon Whitehouse, D-R.I., asked Cummins and three others U.S. attorneys what they would have done in their capacity as federal prosecutors had they learned that an interested party in one of their investigations had tried to discourage a witness from providing information or testifying. All four said that they would have investigated the matter to determine a possible obstruction of justice.

“Mr. Cummins, let me ask you first. I’d like to ask you to put your U.S. attorney hat back on,” Whitehouse said. “You’re still in office, and think of a significant grand jury investigation that you led as United States attorney in your district. And consider that a significant witness in that grand jury investigation has just come into your office to relate to you that prior to his grand jury testimony he was approached about his testimony and [told]… essentially exactly the words that Mr. Elston approached you. What would your next step be as United States attorney?”

Cummins responded: “We take intimidation of witnesses very seriously in the Department of Justice and the U.S. attorney’s office, so we would be very proactive in that situation.”

Attempting to moderate his statement, he added: “I would qualify that by saying that at the time this discussion was had, we weren’t under a subpoena; the idea of testifying was just kind of a theoretical idea out there. And I would say … to the extent we talked about testimony at all, it was the idea that running out and volunteering to be part of this would not be viewed charitably by the people that it would affect.”

Whitehouse pressed Cummins: “But if that sort of approach had been made to a witness in an active proceeding that you were leading, and you were extremely proactive about it, that would lead you where?”

“Well, we’d certainly investigate it and see if a crime had occurred.”

“And the crime would be?”

Cummins responded: “Obstruction of justice. I think there are several statutes that might be implicated — but obstruction of justice.”

Whitehouse posed the same question to John McKay, the fired U.S. attorney from Washington state.

McKay responded: “I would be discussing it with the assigned prosecutor and federal agents.”

“With regard to?”

“With regard to possible obstruction of justice.”

Whitehouse next put the question to David Iglesias, the fired U.S. attorney from New Mexico:

Iglesias replied: “Same answer, sir. I would contact the career [assistant U.S. attorney] and probably the FBI and talk about what’s the evidence we have to maybe move forward on an obstruction investigation.

Finally, Whitehouse looked toward Carol Lam, the fired U.S. attorney from San Diego.

She answered without hesitation: “Fundamentally the same answer: witness intimidation.” (Emphasis supplied.)

Lara Jakes Jordan adds in this article on June 16, 2007:

“I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general’s,” wrote Paul Charlton, the former U.S. attorney in Nevada.

John McKay, former top prosecutor in Seattle, said he perceived a threat from Elston during his call. And Carol Lam, who was U.S. attorney in San Diego, said that “during one phone call, Michael Elston erroneously accused me of ‘leaking’ my dismissal to the press, and criticized me for talking to other dismissed U.S. attorneys.”

A fourth former U.S. attorney, Bud Cummins in Little Rock, Ark., had made a similar accusation in an e-mail released in March. At the time, Elston said he was “shocked and baffled” that his Feb. 20 conversation with Cummins could be interpreted as threatening.

Finally, Dan Eggen and Amy Goldstein report in the Washington Post on June 16, 2007:

Former U.S. attorney John McKay of Seattle told Congress that on Jan. 17 — before McKay stepped down — he received a call from Elston that he “greatly resented.” He said Elston attempted to “buy my silence by promising that the attorney general would not demean me in his Senate testimony.”

“My handwritten and dated notes of this call,” McKay told Congress, “reflect that I believed Mr. Elston’s tone was sinister and that he was prepared to threaten me further if he concluded I did not intend to continue to remain silent about my dismissal.”

Paul K. Charlton, who was the U.S. attorney in Phoenix, said that he, too, received a call that day in which Elston offered “a quid pro quo agreement: my silence in exchange for the attorney general’s.” Another former prosecutor, Carol C. Lam of San Diego, said Elston accused her of “leaking” word of her dismissal to the press “and criticized me for talking to other dismissed U.S. attorneys.”

Former U.S. attorney Bud Cummins of Little Rock also recounted a Feb. 20 conversation with Elston that Cummins said contained a “threatening undercurrent” warning that Justice Department officials would retaliate if he or his colleagues spoke to journalists or volunteered to testify in Congress.

As described by fired United States Attorneys John McKay, Bud Cummins, Paul Charlton and Carol Lam and as reported in the public record as noted above, the conduct of Mr. Elston clearly establishes that he committed criminal or deliberately wrongful acts that reflects adversely on the his honesty, trustworthiness and fitness to practice law. Additionally, Mr. Elston clearly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

Allegation 2:

Michael J. Elston engaged in conduct that was a violation of federal laws that prohibit politicization of hiring within the Department of Justice when he selected candidates for employment based on political criteria.

As described in thisletter to Senator Patrick Leahy, Chairman, Committee on the Judiciary, United States Senate, and The Honorable John Conyers, Jr., Chairman, Committee on the Judiciary, United States House of Representatives from A Group of Concerned Department of Justice Employees, dated April 9, 2007, Mr. Elston engaged in conduct that was a violation of federal hiring laws:

Needless to say, many people were upset and confused. Why had so many potential interviewees been removed from the list? [Italics in original] Top supervisors requested answers, and on December 5 a meeting was held with Michael Ellston [sic], Chief of Staff to Deputy Attorney General Paul McNulty. Many division attorneys and staff were present, and Mr. Ellston [sic] was offensive to the point of insulting. Claiming that the entire group had not “done their jobs” in reviewing applicants, he said that he had a “screening panel” go over the list and research these candidates on the Internet; he refused to give the names of those on his “panel.” Mr. Ellston [sic] said that people were struck from the list for three reasons:grades, spelling errors on applications, and inappropriate information about them on the Internet, When the meeting attendees protested that these interviewees had excellent grades, Mr. Ellston [sic]replied that a Harvard graduate in the bottom half of the class was more desirable than the top students at a second-tier law schools. Although Mr. Ellston [sic] stated that he would entertain appeals to his decisions, few of these appeals were granted.

When division personnel staff later compared the remaining interviewees with the candidates struck from the list, one common denominator appeared repeatedly: most of those struck from the list had interned for a Hill Democrat, clerked for a Democratic judge, worked for a “liberal” cause, or otherwise appeared to have “liberal” leanings. Summa cum laude graduates of both Yale and Harvard were rejected for interviews. There are also reports that officials at Harvard’s Career Placement Office called DOJ personnel to ask why their students were not getting interviews and also to ask why decisions had not yet been made about the Summer Law Intern Program.

These allegations were confirmed by the United States Department of Justice Office of Professional Responsibility and Office of the Inspector Generals in their report,An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program, which provided the following details regarding Mr. Elston’s conduct:

…. However, we believe the most significant misconduct was committed by ELSTON, the head of the Screening Committee. ELSTON failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. We also concluded that ELSTON deselected some candidates – and allowed the deselection of others – based on impermissible considerations.

* * *

As explained below, we concluded that ELSTON violated federal law and Department policy by deselecting candidates based on their liberal affiliations. First, the data analysis indicates that highly qualified candidates with liberal or Democratic Party affiliations were deselected at a much higher rate than highly qualified candidates with conservative or Republican Party affiliations. Second, ELSTON admitted that he may have deselected candidates in a few instances due to their affiliations with certain liberal causes. ELSTON also was unable in specific cases to give a credible reason as to why highly qualified candidates with liberal or Democratic Party affiliations were deselected.

While ELSTON generally denied that he considered political or ideological affiliations in evaluating candidates, he admitted when questioned about certain candidates that he considered aspects of those candidates’ ideological affiliations in his evaluation. ….

In addition, ELSTON consistently was unable to provide credible explanations as to why he denied the appeals of the highly qualified candidates who had liberal or Democratic Party affiliations. His proffered reasons were also inconsistent with other statements he made or actions he took. ….

Similarly, we did not find credible ELSTON’s explanation that he may have denied the appeal of a highly qualified candidate who had worked for the Center for the Study of Sexual Minorities in the Military because he concluded the candidate would not “stand up for the law with respect to sentencing and Department policy” due to the statement in her essay that she would be able to exercise prosecutorial discretion as a federal prosecutor. We also did not credit ELSTON’s other explanation for denying this candidate – that she was not academically qualified because she was in the top third rather than the top quarter of her class at Stanford Law – since it was inconsistent with his actions in approving other candidates from lower-tier law schools with lower grades. During his interview, ELSTON also frequently pointed to lines in candidates’ essays that may have been a basis for deselecting candidates because he said these statements could be indications that the candidates would improperly follow their own consciences rather than the Department’s policies. These included statements such as the candidate wanting to work for the Department because the job would allow the candidate “to consider what is best for my country.”

In addition to ELSTON’s failure to provide credible explanations for his actions during his interview, we concluded that ELSTON was not candid with others in the Department who questioned him during the hiring process about why candidates were being deselected. ….

Moreover, ELSTON tried to minimize his role in selecting candidates when he was questioned by others about the Committee’s decisions. ELSTON frequently explained that other Committee members had been responsible for the decisions and described his role as a conduit. However, the evidence demonstrated that he was casting the deciding vote on a significant number of candidates that Fridman had approved and McDonald had rejected.

In sum, we found that ELSTON was aware that McDonald was rejecting candidates based on her perception of the candidates’ political or ideological affiliations and that he failed to intervene, discuss it with her, or stop her from doing so. We also concluded that ELSTON committed misconduct, and violated federal law and Department policy, when he deselected candidates and denied appeals based on his perception of the political or ideological affiliations of the candidates.

* * *

IV. Conclusions and Recommendations

* * *

The documentary evidence and witness interviews also support the conclusion that two members of the 2006 Screening Committee, Esther Slater McDonald and Michael ELSTON, took political or ideological affiliations into account in deselecting candidates in violation of Department policy and federal law. For example, the evidence showed that McDonald wrote disparaging statements about candidates’ liberal and Democratic Party affiliations on the applications she reviewed and that she voted to deselect candidates on that basis.

We also found that ELSTON, the head of the 2006 Screening Committee, failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. The evidence also showed that ELSTON himself deselected some candidates – and allowed the deselection of others – based on impermissible considerations. Despite his initial denial in our interview that he did not consider such inappropriate factors, he later admitted in the interview that he may have deselected candidates in a few instances due to their affiliation with certain causes. In addition, ELSTON was unable to give a credible reason as to why specific highly qualified candidates with liberal or Democratic credentials were deselected.

We concluded that, as a result of the actions of McDonald and ELSTON, many qualified candidates were deselected by the Screening Committee because of their perceived political or ideological affiliations. We believe that McDonald’s and ELSTON’s conduct constituted misconduct and also violated the Department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.

However, because both McDonald and ELSTON have resigned from the Department, they are no longer subject to discipline by the Department for their actions. Nevertheless, we recommend that the Department consider the findings in this report should either McDonald or ELSTON apply in the future for another position with the Department.

[Footnote] 59 However, we found evidence that McDonald knew that using political and ideological affiliation was inappropriate, but did it anyway. As noted above, in an e-mail dated October 25, 2006, unrelated to the Honors Program and SLIP, McDonald advised a friend applying for a career position with the Department “there’s not much I can do apart from recommending you because there are legal constraints on career hiring to ensure that it’s not political.”

[Footnote] 60 Although ELSTON stated that he did not know whether McDonald’s no votes were actually based upon the negative comments she was making about the candidates’ liberal affiliations, we found that statement disingenuous. Fridman told ELSTON that McDonald was doing this, and the notations on the applications, which ELSTON recognized as McDonald’s handwriting, showed that McDonald was circling and commenting on these groups. Moreover, many of these candidates had stellar credentials, and there was no other apparent reason for McDonald recommending their deselection.

[Footnote] 61 OPR Counsel H. Marshall Jarrett recused himself from the evaluation of DeFalaise’s conduct.

(Emphasis supplied.)

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Text of the Illinois, Kansas, Missouri and Virginia Rules of Professional Conduct violated by Mr. Elston.

Thomas W. Hartmann

After summarizing multiples instances in which Thomas W. Hartmann‘s conduct raises the question as to his fitness to practice law, Scott Horton concludes with this comment:

For an attorney to be formally admonished and removed from legal proceedings twice for unprofessional conduct is an extraordinary matter. However, Hartmann is defiant, insisting that his actions are proper. One wonders if the disciplinary authorities of the Connecticut[, Illinois and/or Missouri] bar[s] are following these developments.

While this question is more than appropriate to ask, it can be made moot if and when a grievance is filed against Mr. Hartmann. To do so, simply:

  1. Print, complete and sign the official Complaint Form for Illinois and Missouri (or .pdf);
  2. Print and attach this page to the Complaint Form; and
  3. Mail the complaint to the address noted on the Complaint Form.

Personal Information:

  • Bar: Illinois
    • Full Licensed Name: Thomas W. Hartmann
    • Date of Admission as Lawyer by Illinois Supreme Court: April 29, 2002
    • Registered Business Address:
      DOD General Counsel

      595 Summer St., Suite 300
      Stamford, CT 06901-1407
    • Registered Business Phone: (703) 699-2761
    • Illinois Registration Status: Active and authorized to practice law – Last Registered Year: 2008
    • Malpractice Insurance (Current as of date of registration; consult attorney for further information): In annual registration, attorney reported that he/she does not have malpractice coverage. (Some attorneys, such as judges, government lawyers, and in-house corporate lawyers, may not carry coverage due to the nature of their practice setting.)
  • Bar: Missouri

Bar Information: Illinois

Bar Information: Missouri

While reviewing this matter, it is important to keep in mind that the privilege to practice law imposes duties and responsibilities on each attorney who accepts a license to practice law. These obligations are described in the Preamble to the Illinois Rules of Professional Conduct :

The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

To achieve these ends the practice of law is regulated by the following rules. Violation of these rules is grounds for discipline.

* * *

The quality of the legal profession can be no better than that of its members. Lawyers must exercise good judgment and candor in supporting applicants for membership in the bar.

Lawyers also must assist in the policing of lawyer misconduct. The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.

It is also important to bear in mind that although Mr. Hartmann may deny improper motives or conduct, any such denial or protestation must be evaluated based on the totality of the circumstances. As noted in the Illinois Rules of Professional Conduct, for Mr. Hartmann to believe that his conduct was proper, he must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.” Additionally, because “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, Mr. Hartmann reasonably should have known that his conduct was improper.

Accordingly, Mr. Hartmann’s conduct violated the following the following rules of professional conduct:

Illinois Rules of Professional Conduct:

Missouri Rules of Professional Conduct:

Allegation: Mr. Hartmann made extra-judicial statements regarding pending prosecutions in violation of the Illinois and Missouri bar associations.

As noted by Prof. Horton in his post, Mr. Hartmann “appeared on national television brandishing harsh labels and prejudging cases on which he was slated to exercise an appellate review function—raising questions under professional ethics rules which later fueled challenges against him. Specifically, on February 14, 2008, Mr. Hartmann appeared on PBS‘s NewsHour in which he made the following statements, which, even if factually accurate (which they are not), violate the Illinois and Missouri rules of professional conduct:

JIM LEHRER: Next, the 9/11 trials. Ray Suarez has our story.

RAY SUAREZ: The six Guantanamo detainees now set to face trial by military commission all face charges announced on Monday for their direct involvement in planning the September 11th terrorist attacks.

They include: Khalid Sheikh Mohammed, the alleged mastermind of the attacks; Waleed bin Attash, alleged to have selected and trained two of the hijackers; Ramzi Binalshibh; Ali Abdul al-Aziz Ali; and Mustafa Ahmad al-Hawsawi, each charged with coordinating and financing and training for the attacks; and Mohammed al-Qahtani, the so-called 20th hijacker, who was barred entry to the U.S. a month before 9/11.

If convicted, each could face the death penalty.

The legal process was outlined by an act of Congress in 2006. The trials themselves will take place in a specially designed set of courtrooms known as Camp Justice on the U.S. naval base at Guantanamo.

Here to walk us through that process is Brigadier General Thomas Hartmann, the legal adviser to the convening authority for the Office of Military Commissions at the Department of Defense.

General, welcome.

BRIG. GEN. THOMAS HARTMANN, Legal Adviser, U.S. Military Tribunal System: Good evening.

RAY SUAREZ: How will these trials differ from a conventional criminal trial in the United States? Will the defendants be able to examine the evidence against them and directly confront their accusers?

BRIG. GEN. THOMAS HARTMANN: Yes, absolutely. Every piece of evidence that goes before the jury, the finder of fact, will be subject to their review, cross-examination, challenge, objection, just like you would see in an American court or a military court martial. So they have those full rights in the courtroom.

RAY SUAREZ: One aspect that’s gotten a lot of attention and is likely to come up in the trial is the source of that information. There’s a theory in legal circles, “fruit of a poisoned tree.” If information is introduced in court that was obtained by torture, could that end up slowing or even preventing these trials from moving forward?

BRIG. GEN. THOMAS HARTMANN: The trials will be governed by the rules of evidence and the rules of procedures that Congress has put in place under the Military Commission Act that you mentioned. And we will leave it up to the trial counsel and the defense counsel and the judge to make the determinations of what’s admissible in the court.

We’re a country that is governed by the rule of law and not by the rule of men, and we will follow the rule of law in these proceedings. It’s not effective to be able to try these cases in the press or anywhere else. We’ll decide them in the courtroom on Guantanamo.

RAY SUAREZ: So at this point, it’s not clear exactly how evidence that may have been obtained by physical coercion will be treated when we’re actually at trial?

BRIG. GEN. THOMAS HARTMANN: All the evidentiary decisions will be made by the trial counsel and the defense counsel duking it out in the courtroom, and the judge will make that final decision.

RAY SUAREZ: Who’s going to be sitting in judgment on these defendants?

BRIG. GEN. THOMAS HARTMANN: Military judges. Each of the judge advocate generals, the uniformed judge advocate generals, have nominated people, and the chief judge will appoint a particular judge to a case, but there are 12 sitting judges who are available to take the trials. They’re all experienced military judges; they’re all uniform; they’ve got decades of experience.

RAY SUAREZ: As this process is approached, various defense counsel have expressed concerns, misgivings about whether they’re going to be able to examine all the evidence that’s being brought to bear against their clients or whether they’ll be roadblocks, impediments where people will say, “Sorry, you just don’t have the clearance to see this stuff.”

BRIG. GEN. THOMAS HARTMANN: Well, they will — if they need discovery, they have the rights to discovery, reasonable and material evidence, as it’s set forth in the manual for military commissions, very similar to the manual for military court martial.

And they will have the right to seek discovery. The judge will rule if there are any challenges on that discovery, and it will proceed very much like a normal trial.

RAY SUAREZ: You use the word “reasonable.” Who decides what’s reasonable?

BRIG. GEN. THOMAS HARTMANN: The reasonable is an objective standard. And ordinarily in discovery the two trial counsel, the trial counsel and the defense counsel, try to reach a conclusion. And if they cannot, the judge makes the decision of what’s reasonable.

RAY SUAREZ: Have members of the military legal profession raised any concerns about their ability to try this case? Has it been hard to fill all the slots you need to move forward because of misgivings in the uniformed ranks about this process?

BRIG. GEN. THOMAS HARTMANN: I don’t think so. The uniformed ranks are stretched thinly because of the global war on terror and trying to deal with all that.

But we’re getting the resources we need from the judge advocates general from the uniformed services, and we continue to get resources from them as the process expands and more trials are brought, more charges are sworn.

RAY SUAREZ: One of the prominent members of the team, Colonel Steven David, said of the process, when reporters were asking him how to proceed, “You’re asking me to tell you how we’re going to get to a place we’ve never been with a map I don’t have.”

He seemed to be a little unsure about how all this is going to work once it really gets going.

BRIG. GEN. THOMAS HARTMANN: Well, in the defense community, they have today, as we speak, nine uniformed counsel, and they’ll get another one within one day. They have four civilian counsel, and they have three more military counsel in the hopper on the way through the process.

One will come in April, and two more will come in May. And at this point, there are only 12 accused, the six that were accused the other day, and then you had six before that. So there are 12 people. That’s a good ratio of support.

The defense also has analysts, and they will get more analysts. They have interpreters, and they have computer resources. They have places to review classified information. So we’re resourcing them very well.

RAY SUAREZ: Do these defendants, because of the highly charged nature of this case, worldwide audience, the conflict about how exactly to proceed, can they go into court and say, “I want my own legal team, and I don’t want to be tried with these guys because of what we’re all being charged with”?

BRIG. GEN. THOMAS HARTMANN: The chief prosecutor has recommended that these cases, the ones I announced on Monday, be charged jointly and be tried jointly. That decision still needs to be made by Judge Crawford, the convening authority. And even if she should decide to send them to trial jointly, they can challenge that in the courtroom.

And the judge can say, “I’m going to sever these.” You’re either joint or severed, so the judge can decide if he wants to sever them.

And each of them has the right to a detailed military counsel effective on the swearing of the charges on Monday, so that right has kicked in. They haven’t all received one yet.

But they can also get civilian counsel of their own choosing at their own expense. And Hamdan is one of the cases that was tried last week in connection with motions and discovery, and Hamdan had sitting at his defense table at Guantanamo Bay five defense counsel, one military defense counsel, one Department of Defense civilian, two members of a distinguished law firm in the United States, and one professor from Emory University.

And Hamdan on his appeal to the Supreme Court had seven counsel, all of them civilians. So we think that they’re well-represented, the resources are there, and the resources will continue to be there.

RAY SUAREZ: Well, how important is that? Are you very conscious in this process, as we begin it, that the world is watching this, and to the degree that it deviates from the kind of trial someone would be able to demand on United States soil, that there may be questions around the world about how this works?

BRIG. GEN. THOMAS HARTMANN: Very conscious of it. If you study the rights, the rights are amazing that are made available to these accused, the right to remain silent, the right to have — the right to see all the evidence that goes to the finder of fact, the beyond-a-reasonable-doubt standard.

The burden of proof is on the government, presumption of innocence. The presumption of innocence and the burden of proof beyond a reasonable doubt did not even exist at Nuremberg. They get to call witnesses. They get to cross-examine witnesses. They get to call their own witnesses.

If they are found guilty, they get an automatic right of appeal to the Court of Military Commission Review. That doesn’t exist anywhere but in our system that they get an automatic right of appeal. So these rights are tremendous.

We think that they equate very closely to the rights we make available to our own soldiers, sailors, airmen and Marines in the uniformed services. And I think many, many people out there watching will think that they are a national treasure, our soldiers, sailors, airmen and Marines, and to provide the same thing is a reflection of the American standard of justice.

RAY SUAREZ: But you’ve also announced your intention to seek the death penalty in these cases. Does that add a burden for the prosecution that may be difficult to carry, given the rules under which this is moving forward?

If there are any circumstances where people can’t see the sources of evidence, where they can’t find out where information being introduced against them came out, wouldn’t that be mitigation if they appeal their death penalty?

BRIG. GEN. THOMAS HARTMANN: Well, let me take you way back. The prosecutors have recommended that it go forward as a capital case. Judge Crawford, the convening authority, still needs to make that decision as to whether that will be a capital charge.

And even then, even then a jury of at least 12 members, at least 12 members must unanimously agree on the findings and the sentence. And, as I mentioned, they will have access to the discovery and to the extent that they don’t think they’re getting the right discovery, they will bring that to the attention of the judge, and the judge will fix that within the rule of law.

RAY SUAREZ: And the 12 members are all active-duty military?

BRIG. GEN. THOMAS HARTMANN: The 12 members — it’s at least 12 members. It could be more. But if it’s more, it’s still unanimous. It has to be a unanimous decision.

They’re military personnel chosen based upon their age, experience, judicial temperament, and factors of that sort, in terms of sitting in the trial. It’s virtually identical to the process we use in a military court martial practice.

RAY SUAREZ: And very quickly before we go, how soon might we see the first opening arguments?

BRIG. GEN. THOMAS HARTMANN: Opening arguments, I can’t predict. We expect that you will see arraignments probably sometime in the spring, and that’s when the accused is read the charges, announces his rights to counsel, what he wants for counsel, and how he enters a plea.

After that, the case will proceed through discovery, motions, and that will take some time, and then you’ll see opening statements after that.

RAY SUAREZ: General Hartmann, thanks for joining us.

BRIG. GEN. THOMAS HARTMANN: Thank you.

(Emphasis supplied.)

Prior to his appearance on PBS, Mr. Hartmann penned this op-ed that ran in the Los Angeles Times on December 19, 2007:

I have read with great disappointment the Op-Ed article by Morris D. Davis, former chief prosecutor for the Office of Military Commissions, particularly his comments with regard to Susan Crawford, the military commissions convening authority.

Since October, Davis has repeatedly complained about the very military commissions he oversaw for two years. He has criticized the commission process for moving too slowly, resulting in only one case being tried, by a guilty plea. After that plea was negotiated, with Davis’ written concurrence, he claimed publicly that he was not properly consulted.

Davis has recently protested that politics has been inserted into the process, which he in many ways controlled, alleging improper pressure from me, from the department’s general counsel, Jim Haynes, and now from Crawford. Specifically, Davis insinuates that she is politically motivated and that she lacks impartiality. He claims — though that he never breathed a word of this to me — that the pressure to move cases more rapidly was politically motivated.

But one should be careful when one challenges the reputation of others. Crawford has not directed or influenced the way any military commission case will be tried. Davis knows that I, without any political interference, directed him to evaluate more carefully the evidence, the cases, the charging process, the materiality of the cases, the speed of charging, the training program and the overall case preparation in the prosecution office. Interestingly, when I testified before Sen. Jeff Sessions (R-Ala.) that some cases are moved more quickly than others because they have the most material evidence, he commented: “Well, I think it’s almost prosecutorial incompetence not to think in those terms. It’s important that you do so.”

Davis further contends that he resigned within hours of learning that I would report to General Counsel Haynes, and as my subordinate, Davis would be under Haynes in the chain of authority. This was also just hours after he learned the results of an independent military panel — appointed by Haynes after consultation with the service Judge Advocates General — that concluded I had not improperly asserted my authority. That report was immediately made available to the public. It is worthy of note that Haynes had, months before, signed a performance evaluation on Davis, suggesting that Davis was already in the chain of command. Davis did not object then.

Davis also charges that the commissions are no longer “full, fair, and open trials.” This is particularly biting as he knows that the process offers unprecedented rights to alleged war criminals. Indeed, he wrote and spoke of that often. He also knows how much effort the prosecution and defense teams have dedicated to the fairness of the process — a process played out in United States vs. Hamdan.

Regarding his new allegations that the trials are not open, Davis knows that national security demands that certain evidence remain classified. He had an especially high security clearance for that very reason. But there will be no “secret” trials. Though we must safeguard classified information in order to protect ongoing operations and our soldiers, sailors, airmen and marines, not one piece of evidence will go to a commission jury without review and the opportunity to object by the accused and his counsel.

Military commissions are now moving forward fairly and transparently. As they continue, critics will see uniformed service members, including judges, prosecutors and defense counsel, conduct trials with the dignity, fairness, and respect for law that defines American military justice — a justice system that remains the envy of the world.

Both of his PBS interview and his LA Times op-ed were made in violation of the Illinois and Missouri rules of professional conduct.

Allegation: Contrary to his role as legal advisor to the Pentagon, a purportedly neutral position, Mr. Hartmann failed to retain the required independence from the prosecution, and has been barred from participating, in military war tribunals.

Prof. Horton also identifies additional conduct of Mr. Hartmann that violated the Illinois and Missouri rules of professional conduct, including “accounts of Hartmann’s bullying and intimidation of other lawyers participating in the process circulated[,]” “specific allegations that he was jockeying to have cases publicized and tried “before the elections,” that he refused to resign once “he was banned from involvement in the case” and that he “was inappropriately aggressive in pushing for prosecution of certain cases that he felt had media value.” These general allegations are fully supported in the public record, including but not limited to the following articles:

As reported by William Glaberson in the New York Times :

The former chief military prosecutor for the planned war-crimes trials of Guantánamo detainees said yesterday that he had been pressured by military officials to rely increasingly on classified evidence, which would require that long trial sessions be held behind closed doors rather than in open proceedings.

“Who ever said we had to have open trials?” the former chief prosecutor said a military official, Brig. Gen. Thomas W. Hartmann, told him in September.

The former prosecutor, Col. Morris D. Davis, described the dispute in an interview yesterday. Colonel Davis said it was part of an internal disagreement over whether war-crimes trials at Guantánamo Bay, Cuba, are to be largely public, displaying evidence against terrorism suspects, or largely closed, which could increase criticism of Guantánamo.

Colonel Davis, a career Air Force lawyer, said one of his priorities as chief prosecutor had been to get as much evidence as possible declassified so people around the world could assess the strength of cases against terrorism suspects. But he said two officials told him in September that he was wasting time declassifying evidence and that it was more important to move quickly by filing charges against detainees.

“No matter how perfect the trial is,” Colonel Davis said, “if it’s behind closed doors, it’s going to be viewed as a sham.”

Colonel Davis resigned Oct. 5 after a bitter turf dispute with General Hartmann, who was named legal adviser this summer to Susan J. Crawford, the senior official in the Office of Military Commissions at the Defense Department.

* * *

In the interview yesterday, Colonel Davis read from notes he said he made after a telephone conversation with General Hartmann on Sept. 10. He said the general expressed irritation at the slow pace of prosecutions and made the remarks about conducting trials with closed sessions.

* * *

In August, Colonel Davis filed a formal complaint at the Pentagon claiming that General Hartmann had overstepped his role by asserting control over the prosecution office. This month, Pentagon officials told Colonel Davis that they were backing General Hartmann, and Colonel Davis asked to be reassigned.

In the interview, Colonel Davis said General Hartmann noted twice in September that a legal rule permitted military commission proceedings to be closed when classified evidence was being presented and said, “We’ve got to use it.” He said that on Sept. 21, Ms. Crawford told him she agreed with General Hartmann.

Colonel Davis, who has been assigned to another legal position after two years as the chief military prosecutor for Guantánamo, said he felt it was important to keep trials as open as possible.

He said that while he supported the use of military commissions, “this whole process is under a cloud” because of critics who have asserted that the administration created a legal system for detainees that gives them fewer rights than the country’s civilian justice system. He said the criticism could be mitigated “by keeping it as open and transparent as possible.”

Colonel Davis said he had worked with prosecutors to select evidence that could secure convictions while trying to limit the need to close the Guantánamo trials, which are expected to draw international attention.

And as reported by Jess Bravin at the Wall Street Journal:

WASHINGTON — In March, a plea bargain guaranteed Australian David Hicks, an inmate at the U.S. military prison in Guantanamo Bay, his freedom by year’s end. The deal helped Australian Prime Minister John Howard, a U.S. ally, avoid a bruising domestic controversy.

Now, the former chief prosecutor at the Guantanamo military commission in Cuba for suspected terrorists says in an interview that the Hicks case was the beginning of political interference in the offshore justice system. Col. Morris Davis resigned earlier this month to protest new rules he says will ensure that political officials have similar control over future war-crimes prosecutions.

* * *

Gen. Hemingway’s successor, Brig. Gen. Thomas Hartmann, arrived in July and asserted direct control of the prosecution effort, prompting conflict with Col. Davis over the office’s leadership. Gen. Hartmann is neither a judge nor a prosecutor. He is appointed by the Pentagon general counsel to advise the administrator of the military commission — a position that has no exact analogy in civilian courts.

An internal review ultimately sided with Gen. Hartmann, rejecting Col. Davis’s view that federal law insulated the chief prosecutor from the legal adviser’s direct control. Earlier this month, Deputy Secretary England issued memorandums that essentially put the prosecutions under the control of the Pentagon’s general counsel.

Marc Falkoff, who was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay, confirms Col. Davis’ allegations of the improper politicization of these trials in this op-ed at the Jurist:

Last month, Colonel Morris Davis stepped down as chief prosecutor for the military commissions at Guantánamo, citing political interference with the independence of his office. The resignation was a remarkable development in Guantánamo’s embattled history, illuminating the degree to which politics rather than principle governs our notorious offshore prison.

* * *

We already know, therefore, that the military commissions are a bad idea for those of us who want to see speedy justice at Guantánamo. But with the resignation of Colonel Davis as chief prosecutor, we are now learning that the military commissions – whatever their inherent flaws and virtues – have themselves been corrupted by politics. If Davis’s allegations are to be credited, then the commissions system is being manipulated by political actors in an improper, unethical and potentially illegal manner – a politicization of the Guantánamo justice system that echoes the U.S. Attorneys scandal.

According to Davis, for more than a year Pentagon officials have sought to influence his decisions about “who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution.” * * *

More recently, Davis filed a formal complaint alleging that Brigadier General Thomas Hartmann, the Legal Advisor to the authority overseeing the military commissions process, had pushed him to file cases that would attract more public attention and garner support for the tribunal system, even though such cases would require secretive, closed proceedings. (By Pentagon regulation, the Legal Advisor is supposed to be an impartial administrator of justice, not an arm of the prosecution.)

In September of this year, Davis threatened to resign if anyone tried to intimidate him. He has now done so, stating bluntly that, “as things stand right now, I think it’s a disgrace to call it a military commission – it’s a political commission.”

What makes this all the more alarming is that Colonel Davis is the last person you would expect to stand up as a whistleblower. To be sure, other officers have gone public about abuses in the Guantánamo system. * * * But none of these men had, like Colonel Davis, previously spoken out in support of all things Guantánamo.

For years, Davis has been the Administration’s de facto spokesperson in defense of the military commissions. * * *

And now we have the spectacle of Davis resigning and speaking out about the intimidation and political interference he encountered as Guantánamo’s chief prosecutor. * * *

* * *

For the majority of the prisoners at Guantánamo, the value of Davis’s resignation is that it may finally signal to the American public that politics rather than principle reigns at Guantánamo, and that decisions about the administration of justice at the camp are being made – largely outside of public view and without accountability – by political actors for nakedly political reasons. How else, for example, are we to explain the fact that every European who was dragged to Guantánamo has been returned to his home country, but that nearly ninety percent of the Yemenis who have been detained at the naval base remain there today – even though a number of them have actually been cleared for release by the military?

For more than three years, my colleagues and I have visited with our clients at Guantánamo dozens of times, frequently bringing them “good news” about court victories we have won. To a man, upon hearing our news, our clients have smiled politely and shrugged, pointing out to us that they still have not had their day in court and that they still are not treated in accord with the Geneva Conventions. “You have to understand,” they tell us, “this is all a big game.” More and more, I am starting to think they are right.

Marc Falkoff teaches criminal law and criminal procedure at Northern Illinois University College of Law. Prior to joining the NIU faculty, he was an associate at Covington & Burling, where he was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay. He is the editor of Poems From Guantanamo: The Detainees Speak (University of Iowa Press, 2007).

Col. Morris D. Davis, in his op-ed printed in the Los Angeles Times explains how the Convening Authority, of which Mr. Hartmann was the Legal Advisor, improperly imposed political consideration in the prosecution of these cases:

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view — and I think most lawyers would agree — it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the “convening authority” — a title with no counterpart in civilian courts — was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

* * *

The Military Commissions Act provides a foundation for fair trials, but some changes are clearly necessary. I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway [as opposed to Mr. Hartmann] was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

The first step, if these truly are military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford [whose Legal Adviser was Mr. Hartmann] and give it back to the military.

* * *

Morris D. Davis is the former chief prosecutor for the Office of Military Commissions. The opinions expressed are his own and do not represent the views of the Department of Defense or the Department of the Air Force.

As reported by William Glaberson, in the New York Times:

GUANTÁNAMO BAY , Cuba — The former chief prosecutor here took the witness stand on Monday on behalf of a detainee and testified that top Pentagon officials had pressured him in deciding which cases to prosecute and what evidence to use.

The prosecutor, Col. Morris D. Davis of the Air Force, testified that Pentagon officials had interfered with his work for political reasons and told him that charges against well-known detainees “could have real strategic political value” and that there could be no acquittals.

His testimony completed one of the more unusual transformations in the contentious history of Guantánamo. Colonel Davis, who is on active duty as a senior Air Force official and was one of the Pentagon’s most vocal advocates of the Guantánamo military commissions, has become one of the most visible critics of the system.

Testifying about his assertions for the first time, Colonel Davis said a senior Pentagon official who oversaw the military commissions, Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, reversed a decision he had made and insisted that prosecutors proceed with evidence derived through waterboarding of detainees and other aggressive interrogation methods that critics call torture.

Called to the stand by a Navy defense lawyer and testifying before a military judge, Colonel Davis said General Hartmann directed him last year to push war crimes cases here quickly. He said the general was trying to give the system legitimacy before a new president took office. He testified that General Hartmann referred to the long difficulties the Pentagon had had in operating the military commissions and said, “If we don’t get some cases going before the election, this thing’s going to implode.”

Spokesmen for the Pentagon and General Hartmann declined to comment on Monday, saying that the questioning was continuing before the military judge. In the past, they have said that they disagreed with some of Colonel Davis’s assertions.

The extraordinary testimony featured Colonel Davis, in uniform and perspiring slightly in an air-conditioned courtroom, being cross-examined by his successor, Col. Lawrence J. Morris of the Army. The two uniformed officers faced each other with natural military politeness, giving way occasionally to a brisk question or stiff response.

The awkward moment of one military officer’s taking on another occurred because lawyers for a detainee facing war crimes charges called Colonel Davis to the stand after he had given news interviews criticizing General Hartmann and the running of the military commissions.

The defense lawyers for the detainee, Salim Ahmed Hamdan, once a driver for Osama bin Laden , said Colonel Davis’s contentions amounted to unlawful influence over the prosecution.

* * *

Mr. Hartmann’s actions as a Pentagon Legal Adviser began to have an affect on the prosecution of the military commission trials. Specifically, Mr. Hartmann was deemed ineligible to participate in the first military commission trial, as reported by Bernard Hibbitts at the Jurist:

[JURIST] A US military judge has ruled that US Air Force Reserve Brig. Gen. Thomas Hartmann [Air Force Link profile], a top Pentagon legal adviser on the Guantanamo military commission trials, is ineligible to participate in the first military commission trial of a detainee because he is too closely associated with the prosecution , the New York Times reported Saturday. The Times said it had a copy of the decision by Navy Capt. Keith Allred, although it had not been publicly released. The paper quoted Allred as concluding that “National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner”. Hartmann is legal adviser to Susan J. Crawford, the Convening Authority [backgrounder] for the military commissions. * * * (Emphasis supplied.)

* * *

As reported by William Glaberson, in the New York Times :

In a new blow to the Bush administration’s troubled military commission system, a military judge has disqualified a Pentagon general who has been centrally involved in overseeing Guantánamo war crimes tribunals from any role in the first case headed for trial.

The judge said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity.

* * *

The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution , scheduled for trial this month.

General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.

Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down.

* * *

General Hartmann, who has been a controversial figure since his appointment last summer, is the legal adviser to the Pentagon official with broad powers over the war crimes system, Susan J. Crawford. She has the military title of Convening Authority of the Guantánamo war crimes cases.

* * *

General Hartmann has been the military official most publicly identified with prosecutions in recent months. It was he, for example, who announced the Sept. 11 charges and has publicly pressed prosecutors to move faster.

Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”

* * *

General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly.

* * *

Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

(Emphasis supplied.)

Mr. Hartmann has now not only been barred from fulfilling his function as Legal Advisor in the Hamdan prosecution. As Prof. Horton notes:

Now a second military judge, Col. Steve Henley, has ordered Hartmann’s removal from the proceedings, [the prosecution of Afghan detainee Mohammed Jawad] sustaining the accusations raised against him. In an order handed down on Friday, Hartmann was banned from participation in the case, and the defense counsel were advised that they could make submissions in their quest for access to exculpatory evidence directly to Crawford, bypassing Hartmann. (Emphasis supplied.)

These general allegations are fully supported in the public record, including this report by Jane Sutton for Reuters:

* * *

In the case of alleged Sept. 11 mastermind Khalid Sheikh Mohammed and four other prisoners who could face execution if convicted, the military defense lawyers said the charges were tainted by meddling and “overreaching” on the part of Air Force Brig. Gen. Thomas Hartmann.

Hartmann was assigned to provide impartial legal advice to the Pentagon appointee overseeing the Guantanamo trials.

But the former chief prosecutor of the tribunals testified last month that Hartmann essentially took over the prosecution team, pushing it to use evidence obtained through coercion and demanding “sexy” cases that would pique the interest of the American public.

Military defense lawyers asked the tribunals’ chief judge, Marine Col. Ralph Kohlmann, to dismiss the charges on grounds that Hartmann was so heavily involved in drafting them that he “failed to retain the required independence.”

“When the government seeks the death penalty, it must not reduce legal procedures to mere formalities. The integrity of the system must be upheld, regardless of the nature of the crimes charged or identity of the accused,” they said in the documents. “The accused are entitled to due process and a fair trial”

* * *

The judge in the Hamdan case had already barred Hartmann from further involvement in those proceedings.

* * *

Carol Rosenberg of the Miami Herald also reports on this ruling:

GUANTANAMO BAY NAVY BASE, Cuba — One general testified against another at the war court Wednesday, describing a Pentagon official fast-tracking trials here as “abusive, bullying, unprofessional.”

Moreover, Army Brig. Gen. Gregory Zanetti, deputy prison camps commander, in testimony described the approach his counterpart, Air Force Brig. Gen. Thomas Hartmann, employed earlier this year this way:

“Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

The colorful testimony — evoking battlefield language — came in pre-trial hearings in the case of Afghan detainee Mohammed Jawad, accused of wounding two U.S. troops by throwing a grenade in a bazaar in Kabul.

Hartmann is the legal advisor overseeing the first U.S. war crimes tribunals since World War II. Jawad’s attorney, Air Force Reserves Maj. David Frakt, wants the Afghan’s charges dismissed on grounds that Hartmann exerted ”unlawful influence” on the trials from his perch at the Pentagon.

Frakt alleges in his motion that Hartmann usurped the role of a prosecutor — rather than act dispassionately — and pushed to get Jawad charged because the case involved battlefield bloodshed.

In June, Hartmann defended his ”intense and direct” management style in testimony, saying he had pressured for speed to kick-start sluggish commissions, not for political reasons.

What was unusual about Wednesday’s testimony was that, while subordinates have described Hartmann’s style as abusive ”nano-management,” this was the first time a general officer of equal rank gave the similar testimony.

In telephone calls and teleconferences from the Pentagon, Zanetti said, Hartmann’s demeanor ”as an attorney from a thousand miles away” was “abusive, bullying and unprofessional. . . pretty much across the board.”

The Pentagon’s chief war crimes prosecutor at the time, now retired Air Force Col. Morris Davis, resigned to protest Hartmann’s behavior.

Davis testified Wednesday at a hearing in the case of another war crimes defendant captured in Afghanistan as a teen, Canadian Omar Khadr. The Jawad prosecution ”went from the freezer to the frying pan, thanks to General Hartmann,” Davis told Khadr’s lawyer.

* * *

Zanetti described struggling with Hartmann over who would run U.S. forces working on trial logistics.

To try to work with Hartmann, who like Zanetti has a one-star on his uniform, the Army brigadier said he sought to discuss the concept of ”command unity” with the Air Force brigadier.

”As a principle, it’s really been around since Alexander The Great. Most military people understand this one,” Zanetti said, with a laugh. “General Hartmann really wanted to run things.”

* * *

(Emphasis supplied.)

Finally, Mike Melia of the Associated Press reports these details:

* * *

The former chief prosecutor, Air Force Col. Morris Davis, testified that Hartmann pushed for Jawad to be charged because the American public would be gripped by the details of the case — a grenade attack on two U.S. soldiers and their interpreter in Afghanistan.

“The guy who threw the grenade was always at the top of the list,” Davis said.

* * *

The judge also ruled that Frakt can submit exculpatory evidence to the tribunals’ top official, Susan Crawford, for her to review whether the charges against Jawad are warranted — without input from Hartmann.

“For the first time, she will be presented with a balanced portrait of the facts and circumstances in this case,” Frakt said.

Hartmann supervises the chief prosecutor at Guantanamo and has extensive powers over the tribunal system. He testified Wednesday that he believed he was doing his job properly and said he has not offered to resign.

* * *

Based on these allegations, Mr. Hartmann’s conduct, as described above, violates the Illinois and Missouri rules of professional conduct.

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Text of the Virginia and Missouri Rules of Professional Conduct violated by Mr. Hartmann.

Update: Harriet E. Miers

I have updated the statement of facts alleging various violations by Harriet E. Miers of the Texas Rules of Professional Conduct with the recent Memorandum Opinion in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB). in which United States District Judge John D. Bates confirms conduct of Ms. Miers that calls into question her fitness to practice law.

Personal Information:

  • Name: Miers, Harriet E.
  • Bar: Texas
  • ID No: 00000067
  • Status: Active

Grievance Information: Texas

Allegations:

Willful Failure to Appear pursuant to a Lawful United States House Judiciary Committee Subpoena

On June 13, 2007, Rep. John Conyers, Jr., and Sen Patrick Leahy, as Chairmen of the United States House and Senate Committees on the Judiciary, respectively, issued multiple subpoenas to former White House Counsel Harriet Miers to produce certain requested documents and to appear for testimony before the House Judiciary Subcommittee on Commercial and Administrative Law on July 12, 2007. See Conyers: Are Subpoenas Optional or Not?, Paul Kiel, TPMMuckraker.com, July 12, 2007; See also page 39, Memorandum to the Members of the Committee on the Judiciary from Rep. John C. Conyers, Jr., Chairman, dated July 24, 2007. On July 9, 2007, George Manning, attorney for Ms. Miers, informed the House Committee that Ms. Miers would “comply with the White House ‘direction[]’ by current White House Counsel Fred Fielding who “‘directed’ Ms. Miers not to provide testimony to the Committee. Id. at page 41. Chairman Conyers and Subcommittee Chair Linda Sanchez wrote to Mr. Manning stating “that it was incumbent on Ms. Miers to appear so that the Subcommittee could consider her claims of privilege concerning specific documents or in response to particular questions posed as the hearing. Id. Ms. Miers failed to appear before the House Judiciary Subcommittee on July 12, 2007. Id. at page 42. After failing to appear, and in response to an inquiry by Chairman Conyers, “Mr. Manning informed Chairmen Conyers on July 17, 2007, that his client intended to remain noncom pliant with the subpoena. Id . In the Memorandum, Chairman Conyers states:

Even more extraordinary than the executive privilege claims in this matter is the assertion that Ms. Miers, a former White House official not currently employed by the federal government, is absolutely immune from even appearing before the Subcommittee as directed by subpoena. The Supreme Court has specifically held that even a President, while serving in that capacity, can be subpoena by a court and can be required to participate in a civil lawsuit for damages by a private party. [FN 281] The Court’s holding in Jones flies in the face of the claim that a former White House official is somehow immune from even appearing in response to a Congressional subpoena. As with Sara Taylor, who received a subpoena similar to Ms. Miers’ but chose to appear and answer some questions before the Senate Judiciary Committee, no one can doubt that Ms. Miers would have been asked some questions that would not have fallen within even the broadest assertion of executive privilege, but Ms. Miers simply refused to attend her hearing altogether. Id .

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[T]here is an additional reason that Ms. Miers’ claims concerning executive privilege were and should be rejected. When a private party like Ms. Miers is subject to a subpoena, it is improper for the subpoenaed person simply to refuse to … testify based on an assertion of privilege by a third party, in this case, the White House. … To the extent that the White House objected to the subpoena to Ms. Miers as a private citizen, therefore, its proper recourse – which would have been more than adequate to protect its own asserted rights – would have been to seek a court order, rather than unilaterally “directing” Ms. Miers to disobey a lawful subpoena herself. Id. at page 46.

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[M]s. Miers was not being misled by a government entity into thinking she was acting lawfully, but instead she chose, with full knowledge of the possible consequences, to follow the White House’s flawed “directive.” As the entity which issued the subpoena to Ms. Miers, only the Committee was in a position to give her “reasonable reliance” that she could lawfully refuse to comply, but in fact the Committee did precisely the opposite and made clear that she was required to obey her subpoena. Id. at page 48. (emphasis in original)

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As explained in the July 12 and July 19 rulings upheld by the Subcommittee on Commercial and Administrative Law, the refusal … of Ms. Miers to testify or even appear pursuant to subpoena [has] no proper legal basis. Id. at page 52. FN 281 See Clinton v. Jones, 520 U.S. 681, 703-06 (1997). As the Court noted in United States v. Bryan, 339 U.S. 323-331 (1950), “persons summoned as witnesses have certain minimum duties and obligations which as necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. …We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.”

As a result of her refusal to appear before the Subcommittee pursuant to a lawful subpoena, the House Judiciary Committee approved a contempt of Congress citation against Ms. Miers. House Democrats Approve Contempt of Congress Citations Wednesday Against 2 Presidential Aides, Laurie Kellman, AP News, July 25, 2007. See also House Committee Approves Contempt Citation, Paul Kiel, TPMMuckraker.com, July 25, 2007. Ms. Miers failure to appear pursuant to subpoena and her receipt of a contempt of Congress citation violate her ethical obligations under the Texas Disciplinary Rules of Professional Conduct .

Chairman Conyers’ position has been upheld by United States District Judge John D. Bates in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB). In his Memorandum Opinion, Judge Bates introduced the position taken by Ms.Miers as unprecedented, is without any support in the case law and fallacious:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

Id. at p. 3.

In footnote 1 of his Opinion, Judge Bates’ states that “The Court will refer to the defendants in this action, and to the executive branch and the current administration generally, as “the Executive.” Id. at p. 2. Accordingly, each and every reference to the Executive is a reference to, inter alia, Mr. Miers.

Because Ms. Miers presented no legitimate claim for absolute immunity, Judge Bates rules that Ms. Miers must, in fact, appear pursuant to the validly issued subpoenas of the United States House and Senate Committees on the Judiciary:

Clear precedent and persuasive policy reasons confirm that the Executive cannot be the
judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from
compelled congressional process. Ms. Miers is not excused from compliance with the
Committee’s subpoena by virtue of a claim of executive privilege that may ultimately be made. Instead, she must appear before the Committee to provide testimony, and invoke executive privilege where appropriate. [Footnote] 38 [is not included herein] And as the Supreme Court has directed, the judiciary remains the ultimate arbiter of an executive privilege claim, since it is the duty of the courts to declare what the law is. See United States v. Nixon, 418 U.S. at 703-05; see also Marbury v. Madison, 5 U.S. (1 Cranch) at 177.

Id. at p. 91.

In his analysis, Judge Bates provided an exhaustive review of the facts and then summarized the underlying facts in this matter:

The undisputed factual record, then, establishes the following. Notwithstanding a prolonged period of negotiation, [Footnote] 7[,] the parties reached a self-declared impasse with respect to the document production and testimony at issue here. Faced with that reality, the full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress and certified the Contempt Report to the U.S. Attorney for the District of Columbia to pursue criminal enforcement of the contempt citations. The Attorney General then directed the U.S. Attorney not to proceed against Ms. Miers and Mr. Bolten. The Committee, then, filed this suit seeking civil enforcement of its subpoena authority by way of declaratory and injunctive relief.

[Footnote] 7 Mr. Fielding’s final letter to Chairman Conyers reveals that the Chairmen had “written ‘on eight previous occasions,’ three of which letters contain or incorporate specific proposals involving terms for a possible agreement.” See Pl.’s Mot. Ex. 34.

Id. at pp. 16-17.

Judge Bates also addresses Ms. Miers’ claim of absolute immunity, which was the basis for her refusal to even appear before the House and Senate Committees on the Judiciary:

The Executive maintains that absolute immunity shields Ms. Miers from compelled testimony before Congress. Although the exact reach of this proposed doctrine is not clear, the Executive insists that it applies only to “a very small cadre of senior advisors.” See Tr. at 96. The argument starts with the assertion that the President himself is absolutely immune from compelled congressional testimony. There is no case that stands for that exact proposition, but the Executive maintains that the conclusion flows logically from Nixon v. Fitzgerald, 457 U.S. 731 (1982), where the Supreme Court held that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” Id. at 749. “Any such [congressional] power of compulsion over the President,” the Executive asserts, “would obviously threaten his independence and autonomy from Congress in violation of separation of powers principles.” See Defs.’ Reply at 40. The Executive then contends that “[those] same principles apply just as clearly to the President’s closest advisers.” Id. Because senior White House advisers “have no operational authority over government agencies . . . [t]heir sole function is to advise and assist the President in the exercise of his duties.” Id. at 41. Therefore, they must be regarded as the President’s “alter ego.” In a similar context, the Supreme Court has extended Speech or Debate Clause immunity to legislative aides who work closely with Members of Congress. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Accordingly, forcing close presidential advisors to testify before Congress would be tantamount to compelling the President himself to do so, a plainly untenable result in the Executive’s view. Indeed, as the Executive would have it, “[w]ere the President’s closest advisers subject to compelled testimony there would be no end to the demands that effectively could be placed upon the President himself.” See Defs.’ Reply at 43.

Unfortunately for the Executive, this line of argument has been virtually foreclosed by the
Supreme Court. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the plaintiff sued “senior White
House aides” for civil damages arising out of the defendants’ official actions. Id. at 802. The defendants argued that they were “entitled to a blanket protection of absolute immunity as an incident of their offices as Presidential aides.” Id. at 808. The Supreme Court rejected that position. Notwithstanding the absolute immunity extended to legislators, judges, prosecutors, and the President himself, the Court emphasized that “[f]or executive officials in general, however, our cases make plain that qualified immunity represents the norm.” Id. at 807. Although there can be no doubt regarding “the importance to the President of loyal and efficient subordinates in executing his duties of office, . . . these factors, alone, [are] insufficient to justify absolute immunity.” Id. at 808-09 (discussing Butz v. Economou, 438 U.S. 478 (1978)).

Id. at pp. 79-80.

Judge Bates continues to decimate Ms. Miers’ claim of absolute immunity:

There is nothing left to the Executive’s primary argument in light of Harlow. This case, of course, does not involve national security or foreign policy, and the Executive does not invoke that mantra. The derivative, “alter ego” immunity that the Executive requests here due to Ms. Miers’s and Mr. Bolten’s close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here. Indeed, the Executive asks this Court to recognize precisely the type of blanket derivative absolute immunity that the Supreme Court declined to acknowledge in Harlow.

Id. at pp. 81-82.

Judge Bates also expressly pointed out that there is NO judicial precedent for Ms. Miers’ claims:

Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress to testify and assert executive privilege where appropriate. Still, it is noteworthy that in an environment where there is no judicial support whatsoever for the Executive’s claim of absolute immunity, the historical record also does not reflect the wholesale compulsion by Congress of testimony from senior presidential advisors that the Executive fears. [Emphasis in original.]

Id. at pp. 83-84.

And that Ms. Miers’ claims are based solely on two (2) legal opinions issued by the Executive Branch itself:

Tellingly, the only authority that the Executive can muster in support of its absolute
immunity assertion are two OLC opinions authored by Attorney General Janet Reno and Principal Deputy Assistant Attorney General Steven Bradbury, respectively.

* * *

[T]he Court is not at all persuaded by the Reno and Bradbury opinions.

Id. at pp. 85-86.

Since Ms. Miers’ failure to appear pursuant to validly issued subpoenas is not supported by any colorable basis in law, her failure to appear is in violation of the Texas Rules of Professional Conduct. Accordingly, Ms. Miers’ conduct calls into question her fitness to practice law.

Supporting Links:

Conyers: Are Subpoenas Optional or Not?, Paul Kiel, TPMMuckraker.com, July 12, 2007

Memorandum to the Members of the Committee on the Judiciary regarding Full Committee Consideration of Report on the Refusal of Former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to Comply with Subpoenas By the House Judiciary Committee, Rep. John C. Conyers, Jr., Chairman, July 24, 2007

House Democrats Approve Contempt of Congress Citations Wednesday Against 2 Presidential Aides, Laurie Kellman, AP News, July 25, 2007

House Committee Approves Contempt Citation, Paul Kiel, TPMMuckraker.com, July 25, 2007

Rules Violated:

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Monica Marie Goodling

Personal Information:

  • Name: Monica Marie Goodling
  • Bar: Virginia

    Bar Information: Virginia

    • ID No.: N/A
    • Status: Active (presumed)
    • Registered Address: None listed.
    • Registered Phone: None listed.
    • Bar: Virginia
      • No Certification for Fiscal Year, per Virginia State Bar’s Attorneys Without Malpractice database which “includes the names of lawyers who have certified that they represent clients drawn from the public and do not have malpractice insurance.” I have requested the status of Ms. Goodling’s malpractice coverage status from the Virginia Bar membership records and will update this post upon receipt of any information.
      • No result from search of Member Directory database, but inclusion in this database is optional. According to Alicia A. Parker, Sr. Staff Assistant, Virginia State Bar membership records: “Monica Marie Goodling is an active member of the Virginia State Bar in good standing with no record of public discipline.”
      • As noted below, the Virginia State Bar Disciplined Attorneys database is not currently available (last checked July 29, 2008). According to Lily M. Norman, Assistant Clerk, Virginia State Bar Clerk: “A record check on the above attorney has revealed no public discipline!”

    Grievance Information: Virginia

    Grievance Information: Washington, D.C.

    File a grievance against Ms. Goodling

    1. Print, complete and sign the official Complaint Form for Virginia (or .pdf );
    2. Print and attach this page to the Complaint Form; and
    3. Mail the complaint to the address noted on the Complaint Form.

    The Preamble to the Virginia Rules of Professional Conduct provides, in part, that

    A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges,
    other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

    * * *

    The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

    * * *

    The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

    Although testifying that she ‘may have crossed the line’ in violating civil service rules, Ms. Goodling has denied engaging in criminal conduct. Her denial, however, must be evaluated based on the totality of the circumstances, as defined in the Virginia Rules of Professional Conduct (.pdf):

    “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.

    * * *

    “Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

    “Knowingly,” “known” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

    * * *

    “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

    “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

    “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

    * * *

    “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.

    Specifically, Ms. Goodling’s conduct violated the following the following Virginia Rules of Professional Conduct (.pdf) :

    • Rule 1.2. Scope of Representation
    • Rule 1.7. Conflict of Interest: General Rule
    • Rule 1.16. Declining or Terminating Representation
    • Rule 2.1. Advisor
    • Rule 3.4. Fairness to Opposing Party and Counsel
    • Rule 4.1. Truthfulness in Statements to Others
    • Rule 4.4. Respect for Rights of Third Persons
    • Rule 5.4. Professional Independence of a Lawyer
    • Rule 8.2. Judicial and Legal Officials
    • Rule 8.4. Misconduct
    • Rule 8.5. Disciplinary Authority; Choice of Law

    Allegation: Monica Goodling engaged in conduct that was a violation of federal laws that prohibit the consideration of political, sexual orientation and other impermissible criteria in making hiring decisions while employed by the Department of Justice.

    As confirmed by the United States Department of Justice Offices of Professional Responsibility and Office of the Inspector Generals in their report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General:

    The evidence demonstrated that Goodling violated Department policy and federal law, and committed misconduct, by considering political or ideological affiliations in the appointment of IJs and BIA members. Goodling admitted in her congressional testimony that she took political considerations into account” in IJ and BIA hiring. She stated that Sampson had told her that IJ hiring was not subject to civil service laws, and that she “assumed” those laws did not apply to BIA ember hiring. The evidence showed that she used political considerations in assessing candidates for both IJ and BIA positions.

    As detailed above, our investigation found that she solicited and received résumés for IJ and BIA candidates from the White House, from Republican members of Congress, the Republican National Lawyers Association, the Federalist Society, and from individuals with Republican
    Party affiliations. We found no evidence that she solicited candidates from any sources she thought had Democratic affiliations.

    Goodling also admitted in her congressional testimony that she researched Internet sites to learn whether candidates for IJ positions had made financial contributions to political parties. She admitted further that she conducted computer searches on such candidates. Evidence from our investigation revealed that she used the Nexis search string she had received from Williams to conduct research on IJ candidates. Both Angela Williamson and the OIPL employee who briefly assisted Goodling in late 2006 testified to conducting such searches, and the December 5, 2006 e-mail from Goodling to the OIPL employee contains the entire Williams search string, with a few additional terms added by Goodling. We also found documents that were obtained through the search string, which bore markings showing that the search string had been used. Furthermore, we found that Goodling ran the search string on candidates who had applied in response to the public announcements and whose résumés were forwarded in packets by EOIR.

    We also found several instances in which candidates for IJ or BIA positions were asked to fill out the White House PPO form, which sought information about the candidates’ political party affiliation and about their activities to support the Bush/Cheney campaigns.

    Goodling asserted that she had been advised by Sampson that it was appropriate to take political factors into account in hiring IJs. Even assuming Goodling received this advice, her conduct showed that she knew that political factors could not be considered in hiring for career IJ positions. First, she told several IJ or BIA candidates that they should not have been asked to complete the White House PPO form that sought information about political affiliation and voting history. Despite that knowledge, Goodling conducted research on IJ candidates to learn the same kind of information covered by the PPO forms. Second, Goodling’s claim that she believed it was appropriate to use political considerations in selecting IJs is inconsistent with the statements she made to the Civil Division attorney handling the Gonzalez v. Gonzales litigation. She stated to the Civil Division attorney that she did not use political considerations in selecting IJs, a position she reversed in her immunized
    testimony before Congress. If Goodling actually believed that political considerations were appropriate in IJ hiring, and if she had been told by Sampson that OLC had so advised, it is reasonable to believe that she would have said so to the Civil Division attorney, rather than making such inaccurate statements.

    Goodling also acknowledged that Sampson never told her that the civil service laws did not apply to BIA member hiring. Rather, she testified that she “assumed” that to be the case. Even if that assumption was initially justified, and we believe it was not, we determined that
    Goodling subsequently asked an OLC attorney for an opinion regarding the legal framework for hiring the Chair and Vice Chair of the BIA. She was advised that all BIA positions were either Schedule A career or SES career positions. Yet, despite having received this advice, she followed the same procedures she used in selecting IJ candidates, and considered
    political or ideological affiliations in recommending four individuals for BIA positions. [FN] 83

    Finally, we concluded that Goodling engaged in misconduct by making misrepresentations to the Civil Division attorneys representing the Department in the Gonzalez v. Gonzales litigation. An attorney from the Civil Division interviewed Goodling in January 2007 to learn how the OAG had handled the IJ hiring process. In the interview, Goodling told the attorney that she did not take political considerations into account in IJ hiring. The Civil Division attorney’s recollection of this point was specific and was corroborated by the memoranda he wrote
    contemporaneously and circulated within the Department in connection with deliberations about how to handle the lawsuit.

    [FN] 83 We also note that the political screening Goodling conducted on IJ candidates (even candidates provided by the White House) caused significant delays in filling IJ vacancies and significantly contributed to an increasing number of unfilled IJ positions.

    Report, pp. 117-118.

    In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.

    Report, p. 137.

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    Text and comments of the Virginia Rules of Professional Conduct violated by Ms. Goodling