Harriet Miers’ testimony in US Attorney firings spotlights again why she is unfit to practice law.

It took two (2) years and a judicial scolding by United States District Judge John D. Bates, but Harriet Miers’ has finally testified in the U.S. Attorney firing investigations:

In a low-key session on Capitol Hill, former White House Counsel Harriet Miers was deposed Monday by House Judiciary Committee staffers probing the alleged politicization of the Bush Justice Department.

Miers testified, behind closed doors, after months of wrangling between Congress and former members of the Bush administration.

But just as the thief is not absolved from the crime of theft even if he returns the stolen property, Harriet Miers is not absolved of her prior unethical conduct just because she has now testified.  To the contrary, her testimony this week serves to again expose her unethical conduct which demonstrates that she is unfit to practice law.

These excerpts from the Memorandum to the Members of the Committee on the Judiciary from Rep. John C. Conyers, Jr., Chairman, dated July 24, 2007, are just as true today as they were when I first wrote about Harriet Miers back in October of 2007:

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.

[…]

[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.

[…]

[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)

[…]

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.”

In the ensuing litigation, United States District Judge John D. Bates was was also not impressed with Harriet Miers’ excuses for defying lawful, Congressional subpoenas.  [I have adapted the following discussion of Judge Bates’ Opinion from this post I wrote in July of 2008.]  In this Memorandum Opinion issued in COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES v. HARRIET MIERS, et al., Civil Action No. 08-0409 (JDB), Judge Bates introduced Ms. Miers’ legal position by stating that it was unprecedented, was without any support in the case law and was 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.

Because Ms. Miers presented no legitimate claim for absolute immunity, Judge Bates ruled 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.

Judge Bates also addressed Ms. Miers’ claim of absolute immunity, which provided 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 continued 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.

As noted by both Chairman Conyers and Judge Bates, Ms. Miers’ failure to appear pursuant to validly issued subpoenas was not supported by any colorable basis in law.  Accordingly, her failure to appear is in violation of the Texas Rules of Professional Conduct and her conduct calls into question her fitness to practice law.

H/t to Zachary Roth at TPMMuckraker for Miers Testifies in US Attorneys Probe — When Will Rove?

Crossposted at Oxdown Gazette.

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E-mail to Alabama State Bar Office of Legal Counsel regarding unethical conduct of US Attorney Leura Garrett Canary

Tony McLain, General Counsel, Alabama State Bar
tony.mclain@alabar.org

Copies to:

Mr. Alex Lafayette Holtsford, Jr., President, Montgomery Bar Association
aholtsford@nixholtsford.com

Sam Partridge, Assistant General Counsel, Alabama State Bar
sam.partridge@alabar.org

Robert E. Lusk, Jr., Assistant General Counsel, Alabama State Bar
robert.lusk@alabar.org

Jeremy W. McIntire, Assistant General Counsel, Alabama State Bar
jeremy.mcintire@alabar.org

John Mark White, President, Alabama State Bar
mwhite@whitearnolddowd.com

Thomas James Methvin, President-Elect, Alabama State Bar
tom.methvin@beasleyallen.com

Pamela Harnest Bucy, Vice President, Alabama State Bar
pbucy@law.ua.edu

Keith Byrne Norman, Secretary, Alabama State Bar
keith.norman@alabar.org

Samuel Neil Crosby, Past President, Alabama State Bar
snc@sgclaw.com

Walter Edgar McGowan, Executive Council, Alabama State Bar
wem@glsmgn.com

Maibeth Jernigan Porter, Executive Council, Alabama State Bar
mporter@maynardcooper.com

Richard J. R. Raleigh, Jr., Executive Council, Alabama State Bar
rraleigh@wilmerlee.com

Hon. Leura Garrett Canary, United States Attorney for the Middle District of Alabama
leura.canary@usdoj.gov

Dear Mr. McLain,

I have been researching the conduct of various attorneys in the service of the government of the United States, whether that conduct is a violation of the rules of professional conduct with which each such attorney must comply and authoring factual allegations of the conduct of these attorneys that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann, Michael J. Elston, Patrick J. Rogers and, now, United States Attorney Leura Garrett Canary. Her claimed recusal from the prosecution of former Gov. Don Siegelman was and remains a sham and violates several of the rules of professional conduct of Alabama. These actions raise a substantial question as to her honesty, trustworthiness and fitness as a lawyer.

Mrs. Canary’s unethical conduct tarnishes the reputation of each member of the Alabama State Bar, including – if not especially – your own. Only a good faith investigation of Mrs. Canary by the Alabama State Bar Office of General Counsel and referral, if and when appropriate, to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct will undo the damage she has done to the legal profession in Alabama. 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 not a formal complaint, the documentation of Ms. Canary’s conduct that I have prepared and included below* (and posted here at The Grievance Project and here at Firedoglake’s Oxdown Gazette) establish prima facie violations of the Alabama Rules of Professional Conduct. Pursuant to Rule 3(c) of the Alabama Rules of Disciplinary Procedure which permits you, as General Counsel, to initiate a disciplinary investigation or proceeding upon your “own motion in light of information received or acquired from any source[,]” it is incumbent on you to exercise your authority.

E.M./The Grievance Project

*I did not include the documentation in this post that I sent in the e-mail. It is posted here .

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Employment of Kyle D. Sampson reflects poorly on Hunton & Williams, LLP, No.3

Updated March 10, 2009 to reflect Mr. Sampson’s leave of absence from Hunton & Williams.

Cross-posted at the Oxdown Gazette, Firedoglake‘s new diary blog.

My third e-mail to Ms. Field:

Andrea Bear Field
DC Office Managing Partner
Hunton & Williams

cc: Kyle D. Sampson , Partner
Hunton & Williams

Dear Ms. Field,

On behalf of The Grievance Project, I would appreciate Hunton & Williams‘s response to the following items:

1. The most recent United States Department of Justice Office of Professional Responsibility and Office of the Inspector General report, An Investigation into the Removal of Nine U.S. Attorneys in 2006, which describes* additional allegations of unethical conduct by Hunton & Williams partner Kyle D. Sampson.

Professor Marty Lederman succinctly summarizes this matter at Balkinization:

The basic thrust of the Report, as I understand it, is that Kyle Sampson was acting in cahoots with the White House Counsel’s Office to fire disfavored U.S. Attorneys — at least some for possibly impermissible reasons — and that AG Gonzales and others at DOJ therefore left the entire project up to Sampson, stepping in merely to rubberstamp whatever decisions he reached in accord with the Counsel’s Office.

Is this type of conduct typical at Hunton & Williams? If not, why does Hunton & Williams continue to condone and encourage this type of conduct through its partnership with Mr. Sampson?

2. The appointment of Nora Dannehy as Special Prosecutor to review this matter, including your partner’s apparently central involvement in this scandal.

Update: The Wall Street Journal’s Dan Slater has published a profile of Ms. Dannehy. (h/t emptywheel)

3. Like the previous report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, this most recent report again confirms my opinion that Mr. Sampson committed numerous violations of the rules of professional conduct of both Utah and D.C that raise a substantial question as to his honesty, trustworthiness and fitness to practice law. Has Hunton & Williams reviewed whether Mr. Sampson’s conduct violated the Utah and D.C. Rules of Professional Conduct? If so, what was the conclusion of that review? If not, why not?

Thank you for your attention to this matter.

E.M./The Grievance Project

*Section C of the DOJ OPR/OIG report:

As discussed above, Sampson was the person most responsible for creating the removal plan, selecting the U.S. Attorneys to be removed, and implementing the plan. Yet, after the controversy over the removals erupted, Sampson attempted to downplay his role, describing himself as the “aggregator” and denying responsibility for placing several of the U.S. Attorneys on the list.

We concluded that from start to finish Sampson mishandled the removal process. And, as discussed above, he inappropriately advocated bypassing the Senate confirmation process for replacing U.S. Attorneys through a strategy of “gum[ming] this to death” and “run[ning] out the clock” while appearing to act in good faith.

We were also troubled by Sampson’s claims that he did not recall the reasons for many of the removals or who had recommended that certain U.S. Attorneys be removed. For example, while Sampson said he did not place Iglesias on the list at the request of the White House, his recollection on this issue was varying and vague. We question why Sampson could not recall the precise reason why he placed Iglesias on the removal list, given the relatively short passage of time since the incident, and the fact that Iglesias’s name alone was added, for the first time, to the November 2006 list. Moreover, other misleading after-the-fact explanations for why Iglesias was placed on the list caused us to further doubt the candor of Sampson’s explanations. In the end, we question whether Sampson provided us the full story about Iglesias’s placement on the list, as well as the reasons for other U.S. Attorney removals.

As discussed in the sections that follow, we also concluded that Sampson made various misleading statements about the U.S. Attorney removals to the White House, Congress, and other Department officials.

1. Misleading Statements to the White House

Sampson’s misleading statements about the U.S. Attorney removals began as the selection process was unfolding. He misrepresented to the White House how the selections occurred. In an e-mail to Harriet Miers in January 2006 forwarding a list of names to the White House, Sampson wrote, “I list
these folks based on my review” of the EARS evaluations, and “my interviews with officials in the Office of the Attorney General, Office of the Deputy Attorney General, and the Criminal Division.” Sampson thus created the general impression that the EARS evaluations and his “interviews” of senior Department officials, including officials in the Criminal Division, formed the basis of his identification of specific U.S. Attorneys for removal.

However, Sampson admitted to us that he did not remember speaking to anyone in the Criminal Division about the performance of U.S. Attorneys, except “only in the most general terms.” He also acknowledged that he never reviewed any EARS evaluations. He told us that it would have been better if he had stated in the e-mail to Miers that it was based on his understanding of somebody else’s understanding of the reviews of the offices. [Footnote] 202[.] We believe that Sampson’s misleading statements to Miers gave the impression that the Department had engaged in a far more systematic and structured evaluation process to determine which U.S. Attorneys should be removed.

2. Misleading Statements to Congress

Sampson similarly misled congressional staff in his January 12, 2007, briefing that the removals were based on EARS evaluations. At this meeting, Sampson and Acting Assistant Attorney General for the Office of Legislative Affairs Richard Hertling briefed staff for Senators Patrick Leahy and Dianne Feinstein about the removals. Sampson told the Senators’ staffs that the Department had been engaged in a process to identify underperforming U.S. Attorneys and that the process included a review of the EARS evaluations. The two staff members for the Senators told us that Sampson initially explained that the terminations were based on the EARS evaluations, but backtracked when Feinstein’s counsel pressed him for copies. According to both staff members, Sampson then explained that some of the removals were based on EARS evaluations, and some on other factors such as caseloads and responsiveness to Department policy initiatives.

According to Hertling, who said he knew little about the controversy at the time, Sampson attempted to impress upon the congressional staff that the removals were the result of a process the Department undertook to identify U.S. Attorneys who were the “weakest performers,” and that the process included a review of EARS evaluations. Hertling told us that one of the things that stuck in his mind was Sampson’s “specific reference” to EARS evaluations as a basis for identifying these particular U.S. Attorneys for termination.

However, Sampson claimed to us that he mentioned the EARS evaluations only in connection with Ryan’s removal. He said that he doubted he would have suggested that the other removals were based on the EARS evaluations because “that wouldn’t have been accurate.” Yet, based upon the recollection of the other witnesses at the briefing, including Hertling, we believe that Sampson misled the congressional staff that EARS evaluations played a more significant role in the Department’s decision-making process than they actually did.

Second, Sampson included misleading statements in the Department’s response to a February 8, 2007, letter from several Senators asking for information about the circumstances of Cummins’s resignation and Griffin’s appointment. Sampson, who drafted the response and circulated it in the Department and the White House for comment, had the final sign-off on the language in the response.

The response, which was sent on February 23, 2007, contained three misleading statements. The first was the statement that “it was well-known, as early as December 2004, that Mr. Cummins intended to leave . . . .” As we noted in Chapter Five, we found evidence that in drafting the response Sampson discovered a small news item in a free weekly Arkansas tabloid reporting that Cummins might begin exploring career options before the expiration of President Bush’s second term. However, Cummins told us he did not intend to resign at that time and was not looking for other employment. We also found no evidence that anyone at the Department was aware of the article until February 2007.

The second misleading statement in the Department’s response was that “the decision to have Mr. Griffin replace Mr. Cummins was first contemplated in spring or summer of 2006 [and] the final decision to appoint Mr. Griffin . . . was made on or about December 15 . . .” This statement is directly contradicted by the January 9, 2006, e-mail Sampson sent to Miers in which Griffin is listed as a replacement for Cummins. The second part of the statement, that the final decision to appoint Griffin was made around December 15, is also misleading. As noted in Chapter Five, Sampson informed Goodling on August 18, 2006, that the Attorney General would appoint Griffin Interim U.S. Attorney following Griffin’s return to the Department.

The third misleading statement in the Department’s response was that “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.” This statement is contradicted by Sampson’s e-mail on December 19, 2006, to Associate White House Counsel Christopher Oprison in which Sampson wrote, “I’m not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc.” While Sampson later explained this e-mail by stating that he “assumed” but did not know that Rove was involved in the decision to appoint Griffin, we found this explanation unpersuasive and belied by the evidence.

3. Misleading Department Officials

Sampson also misled Department officials and allowed them to mislead others about several aspects of the U.S. Attorney removals.

First, in mid-December 2006 after media reports began questioning the circumstances of Griffin’s appointment, Sampson drafted talking points for the Department’s Office of Public Affairs to use to respond to media inquiries. In these talking points, Sampson wrote that “Griffin was appointed Interim U.S. Attorney because of the timing of Cummins’s resignation.”

In fact, as Sampson knew, Cummins had been removed so that Griffin could take his place. The Department’s talking points left the misleading impression that Griffin was appointed as Interim U.S. Attorney because of the unexpected timing of Cummins’s resignation, when in fact Cummins was told to resign to create a position for Griffin.

Second and more important, Sampson’s failure to disclose what he knew about the White House’s involvement in the removals caused McNulty and Principal Associate Deputy Attorney General William Moschella to provide inaccurate testimony to Congress. Both McNulty and Moschella testified that based on what they knew at the time, the White House was not involved in the removals until October 2006 and at that point became involved only to sign off on the process.

Sampson was present at staff preparation sessions before both McNulty’s and Moschella’s congressional testimony where the group discussed what they should say in their testimony. Several other participants told us that the question about the White House’s involvement was raised during at least one of McNulty’s preparation sessions, and McNulty indicated that he would tell Congress that the White House was involved to sign off on the process because U.S. Attorneys are Presidential appointments. This was a misleading statement about the extent and timing of the White House’s role, which Sampson knew. However, Sampson did not correct McNulty’s mistaken belief or inform him of the full extent of the White House’s involvement.

Consequently, in a closed briefing session on February 14, 2007, McNulty told members of the Senate Judiciary Committee that the U.S. Attorney removal process began within the Department in September or October of 2006, and that the Department sent a list to the White House Counsel’s office in October and asked if they objected to the names. Similarly, Moschella testified incorrectly before a House Judiciary Subcommittee on March 6, 2007, based on what he had learned during the preparation sessions and from McNulty’s testimony, that the process to remove the U.S. Attorneys began in early October 2006 and that the White House eventually became involved in the removals, but only to sign off on the proposal because the U.S. Attorneys were Presidential appointees.

When we interviewed Sampson, he rationalized his not correcting the misimpression left at the preparation sessions by arguing that there were two separate phases of the process – the earlier “thinking” phase and the later “action” phase, and he said he was focused on the later action phase during the preparation sessions. We found Sampson’s testimony on this point not credible. Sampson sent three separate lists of U.S. Attorneys for removal to the White House for consideration before the fall of 2006. We believe that Sampson should have been more forthcoming at the preparation sessions about the White House’s involvement to ensure that McNulty and Moschella were aware of the facts and did not mislead Congress. Sampson’s failure to do so resulted in inaccurate and misleading testimony about a critical aspect of the controversy.

We concluded that Sampson engaged in misconduct by making misleading statements and failing to disclose important information to the White House, members of Congress, congressional staff, and Department officials concerning the reasons for the removals of the U.S. Attorneys and the extent of White House involvement in the removal process.

[Footnote] 202[:] However, even that would have been inaccurate because, as we noted in each of the U.S. Attorney chapters, with the exception of Ryan’s March 2006 EARS evaluation (which had not yet taken place), each of the EARS evaluations of the removed U.S. Attorneys was largely positive.

Report, pp. 346-351.

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E-mail to Michael J. Elston

Michael J. Elston
McGuire Woods, LLP
Washington Square, 1050 Connecticut Avenue, N.W., Suite 1200
Washington, District of Columbia 20036-5317
Telephone: 202-857-1700
Fax: 202-857-1737
melston@mcguirewoods.com

Dear Mr. Elston,

I have been researching the conduct of various attorneys in the service of the government of the United States, whether that conduct is a violation of the rules of professional conduct with which each such attorney must comply and authoring factual allegations of conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann and, now, yourself. In addition to the allegations in the complaint recently filed against you in Virginia by CREW, your conduct in the firing of the United States Attorneys also violated several of the rules of professional conduct of the Illinois, Kansas, Missouri and Virginia Bars. These actions also raise a substantial question as to your honesty, trustworthiness and fitness as a lawyer.

I’m interested in your response to the criticisms that your conduct in your handling of both the firing of the United States Attorneys and hiring practices at DoJ violated your ethical obligations as a member of the Illinois, Kansas, Missouri and Virginia Bars.

E.M./The Grievance Project

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Update on Texas Supreme Court Justices’ Ethics Hearings

As I noted back in July, ethics hearings on grievances filed against Texas Supreme Court Justices Nathan Hecht and David Medina were scheduled to be heard on August 14, 2008.

Chris Rizo, who has covered these complaints for The Southeast Texas Record, reports at LegalNewsline.com that Judge Hecht’s ethics complaint was referred for further grievance proceedings:

AUSTIN, Texas (Legal Newsline)-The Texas Ethics Commission has decided to hold a formal hearing to investigate charges that state Supreme Court Justice Nathan Hecht accepted an illegal campaign contribution, a watchdog group told Legal Newsline on Friday.

The panel, also on Thursday, postponed the preliminary hearing into charges that Supreme Court Justice David Medina illegally reimbursed himself from his campaign account.

Mr. Rizo also reports that Judge Medina’s complaint was postponed until the regular October meeting of the Texas Ethics Commission:

As for Medina, Texas Watch filed its complaint against him in January. His matter will be taken up behind closed doors at the next regular meeting of the Ethics Commission in October, when the panel will decide whether the case warrants a formal hearing, [Alex Winslow, director of Texas Watch] said.

Read Mr. Rizo’s complete article here .

The Associated Press’ Jay Root also covered the scheduled hearings. He reports via the Houston Chronicle that, (perhaps?) defying conventional wisdom, Justice Hecht represented himself:

AUSTIN — Supreme Court Justice Nathan Hecht, appearing before the Texas Ethics Commission, defended himself Thursday against allegations he broke campaign finance laws by accepting discounted legal fees to fight an abuse of office complaint.

And that after the unfavorable hearing results, Justice Hecht bravely faced the press:

The state commission took no action Thursday but will consider the matter at a formal hearing later, officials said. Hecht, the longest-serving member of the Texas Supreme Court, quietly slipped past reporters at the state capitol and did not return phone calls from The Associated Press.

* * *

It’s not clear how long Hecht spent at the closed hearing. Reporters waiting for him to emerge were told Hecht had given them the slip.

“He’s been gone,” [Wilhelmina Delco, a member of the Texas Ethics Commission,] said hours after the hearing began early Thursday afternoon. “He eased out the other door.” (Emphasis mine).

As reported by Mr. Root, the complaint against Justice Hecht arose from his support of Harriet Miers’ nomination by President Bush to the United States Supreme Court:

Hecht was sanctioned in 2006 by the State Commission on Judicial Conduct, which alleged that he had abused his office by promoting Harriet Miers for a seat on the U.S. Supreme Court. Legal canons bar Texas judges from endorsing candidates for public office, but Hecht was able to get the sanction reversed on appeal by arguing that Miers was not running for elective office.

But Harriet Miers was more than just a Supreme Court nominee that Justice Hecht has decided to promote: Ms. Miers is also Justice Hecht’s former girlfriend and it was also Justice Hecht who first introduced Ms. Miers and President Bush. Unsurprisingly, this story leads back to President George W. Bush.

Read Mr. Root’s complete article here .

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Update: E-mail to Professor John Yoo

Professor John C. Yoo
U.S. District Court Judge
jyoo@law.berkeley.edu

Dear Professor Yoo:

I previously sent this e-mail back in April of this year, but, unfortunately, left out the ‘j’ so I sent it to y-o-o @ law.berkeley.edu. I noticed this error today after reading your op-ed, Supreme Court grabbed more power in recent term, in The Philadelphia Enquirer, which included your correct e-mail address and am, therefore, resending this previous e-mail:

I have been researching the conduct of various attorneys in the service of the government of the United States, whether that conduct is a violation of the rules of professional conduct with which each such attorney must comply and authoring factual allegations of conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle D. Sampson, Harriet E. Miers and yourself. In my opinion, you have committed numerous violations of the rules of professional conduct of Pennsylvania and Washington, D.C., that raise a substantial question as to your honesty, trustworthiness and fitness as a lawyer.

I’m interested in your response to the criticisms that your conduct in your handling of the Torture Memos violated the Pennsylvania and Washington, D.C. Rules of Professional Conduct.

E.M.

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Sen. Murkowski’s ‘reply’ to my web-mail

Yesterday, I sent a web-mail to Sen. Murkowski in which I requested her to reply to my allegations that she engaged in conduct that raise a substantial question as to her honesty, trustworthiness and fitness as a lawyer. Today, I received the following ‘reply’ from Sen. Murkowski:

Thank you for contacting my office. I will be mailing a response to Alaskans that have contacted me via e-mail. Due to the large volume of correspondence that I receive, I regret that I am only able to respond to their concerns directly. If you are not Alaskan, I encourage you to contact your representatives with your comments and/or concerns so that they may respond. Again, thank you for contacting me. – U.S. Senator Lisa Murkowski

Although typical of the reply forms I’ve received from other United States Senators and Representatives, at least it’s a reply. I’ve still received nothing from Kyle Sampson, Harriet E. Miers (although someone from her personal attorney’s law firm stopped by TGP), Judge Mark Everett Fuller or John Yoo, who each received an e-mail from me regarding their own ethical lapses.

Update:  Interestingly, I received Sen. Murkowski’s auto-reply at 1:03 EST, which is only one minute after someone from senate.gov stopped by TGP:

Domain Name senate.gov ? (U.S. Government)
IP Address 156.33.3.# (U.S. Senate Sergeant at Arms)
ISP U.S. Senate Sergeant at Arms
Location
Continent : North America
Country : United States (Facts)
State : District of Columbia
City : Washington
Lat/Long : 38.9097, -77.0231 (Map)
Language unknown
Operating System Microsoft WinXP
Browser Firefox
Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US; rv:1.8.1.16) Gecko/20080702 Firefox/2.0.0.16
Javascript disabled
Time of Visit Aug 11 2008 1:02:02 pm
Last Page View Aug 11 2008 1:02:02 pm
Visit Length 0 seconds
Page Views 1
Referring URL unknown
Visit Entry Page http://grievanceproj…rkowski//MESSAGEBODY
Visit Exit Page http://grievanceproj…rkowski//MESSAGEBODY
Out Click
Time Zone unknown
Visitor’s Time Unknown
Visit Number 2,950

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