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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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
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City : Washington
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Web-mail to Sen. Lisa Murkowski

Updated 08-11-08 with this ‘reply‘ from Sen. Murkowski.

Sen. Lisa Murkowski
United States Senate
Contact via webmail

Washington, D.C. Office
709 Hart Senate Building
Washington D.C., 20510
202-224-6665
Fax 202-224-5301

Anchorage Office
510 L. Street, Suite 550
Anchorage, AK 99501
907-271-3735
Fax 907-276-4081

Fairbanks Office
101 12th Avenue
Room 216
Fairbanks, AK 99701
907-456-0233
Fax 907-451-7146

Juneau Delegation Office
P.O. Box 21247
709 West 9th Street, Room 971
Juneau, AK 99802
907-586-7400
Fax 907-586-8922

Kenai Delegation Office
110 Trading Bay Road
Suite 105
Kenai, AK 99611
907-283-5808
Fax 907-283-4363

Ketchikan Delegation Office
540 Water Street
Suite 101
Ketchikan, AK 99901
907-225-6880
Fax 907-225-0390

MatSu Delegation Office
851 East Westpoint Drive
Suite 307
Wasilla, AK 99654
907-376-7665
Fax 907-376-8526

Bethel Delegation Office
P.O. Box 1030
311 Willow Street
Building 3
Bethel, AK 99559
907-543-1639
Fax 907-543-1637

Dear Sen. Murkowski,

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, John Yoo, Mark Everett Fuller, Monica Goodling. I’ve also included you in this group due to your conduct in the purchase and reporting of the Kenai River property. I believe your conduct violated several of the rules of professional conduct of the Alaska Bar and that these actions 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 purchasing and reporting the Kenai River property violated your ethical obligations as a member of the Alaska Bar.

E.M./The Grievance Project

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Welcome, USDOJ.

Thank you for visiting The Grievance Project.  (Statcounter and Sitemeter information is at the end of this post).

Earlier today, your boss, Attorney General Michael B. Mukasey, testified before the United States Senate Committee on the Judiciary. Attorney General Mukasey concluded his prepared remarks with the following statement:

As I have said many times, to members of the public and to Department employees, it is crucial that we pursue our cases based solely on what the law and facts require, and that we hire our career people without regard for improper political considerations. It is equally crucial that the American people have complete confidence in the propriety of what we do. My promise to you is that I have done, and I will continue to do, what I can to ensure that politics is kept out of decisions about cases and out of decisions about career hiring at the Department of Justice.

I wouldn’t doubt that the minimal attention that Attorney General Mukasey has paid to the politicization at DOJ is, in fact, the outer limit of what he can or will do (or is allowed to do) to ensure that politics is kept out of the Department. What he has done, however, is simply not enough. If you’re an attorney at DOJ, whether in Arlington, Virginia (according to Statcounter), Washington, D.C. (according to SiteMeter) or elsewhere, you are likely to have an affirmative obligation under the rules of professional conduct in which you’re admitted to report the ethical violations of other attorneys, such as Alberto Gonzales, Kyle D. Sampson, Lisa Murkowski, Harriet E. Miers, Mark Everett Fuller, John Yoo and Michael B. Elston and Esther Slater McDonald, who engage in conduct that raises questions as the attorney’s fitness to practice law. Specifically, Rule 8.3 of the Virginia Rules of Professional Conduc (.pdf) states that

A lawyer having reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law shall inform the appropriate professional authority.

I encourage you to file a grievance against any former or current DOJ attorney who you know has breached his or her ethical obligations.

Rule 8.3 of the Washington, D.C. Rules of Professional Conduct similarly provides that

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

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IP Address 149.101.1.# (US Dept of Justice)
ISP US Dept of Justice
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Country : United States (Facts)
State : Virginia
City : Arlington
Lat/Long : 38.8782, -77.1054 (Map)
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CREW files grievances against Michael J. Elston and Esther Slater McDonald

As far back as 2006, I began contacting various parties – including CREW – to suggest that an organized effort to file grievances would be an effective tactic for responding to the litany of attorneys engaged in questionable ethical conduct. Like most people and organizations I contacted, CREW never responded. Of the few responses I did receive, only one or two were in support of the idea and the rest usually just stated a simple reason or two why the idea wouldn’t work. As attorney after attorney continued to violate their ethical obligations with impunity, my frustration grew that there was no organized effort to promote a grievance strategy. As a result, I launched The Grievance Project in October, 2007.

When the DOJ IG report An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program was released, I began preparing a grievance complaint against Michael J. Elston for his conduct described therein as well as for his role in the firing of United States Attorneys, including John McKay, Bud Cummins, Carol Lam and Paul Charlton. When I first saw Marcy Wheeler’s headline today declaring that CREW had filed grievances against Mr. Elston, my initial thoughts were that I just got ‘scooped’ by CREW and that I had wasted a lot time working on my Elston complaint. Almost immediately, I was quite pleased that CREW had finally adopted a (my?) grievance strategy and had filed the complaints.

A few thoughts now that I’ve read both Wheeler’s post and CREW’s press release:

  • Marcy Wheeler notes that this may have an affect on the law firms that have hired Mr. Elston and Ms. Esther Slater McDonald, stating that “[a]t the very least, one would hope this would embarrass the big corporate firms these two alleged law-breakers work for. After all, it appears that Alberto Gonzales still has only temporary employment. If all these hacks found themselves unemployable because of what they did, that’d be a start.” This was precisely my point regarding Hunton & Williams when they hired Kyle D. Sampson .
  • Although Mr. Elston is a member of the Illinois, Kansas, Missouri and Virginia Bars, CREW filed a complaint against Mr. Elston only in Virginia and only sent copies of Virginia complaint to the the Illinois, Kansas and Missouri Bars. I believe a stronger approach would not just provide these states with a copy of the Virginia complaint but would also be to file official complaints against Mr. Elston in Illinois, Kansas and Missouri (or .pdf ).
  • CREW’s complaint against Mr. Elston only addresses his violations of his ethical obligations with respect to the issues raised in the DOJ IG report . Because Mr. Elston is also in violation of his ethical obligations due to his involvement with his role in the firing of United States Attorneys, including John McKay, Bud Cummins, Carol Lam and Paul Charlton, I will finish my Elston complaint with respect to to these violations.
  • Now that CREW has adopted a (my?) grievance strategy, I’ve prepared grievance complaints against Alberto Gonzales, Kyle D. Sampson, Lisa Murkowski, Harriet E. Miers, Mark Everett Fuller, and John Yoo that are ready for CREW to simply print and file. If you agree, contact:
    • Naomi Seligman, CREW’s Deputy Director and Communications Director, at 202.408.5565 or nseligman @ citizensforethics.org, and
    • Melanie Sloan, CREW’s Executive Director, at msloan @ citizensforethics.org.

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Starting to notice but not quite there.

At The Nation, Professor Stephen Gillers is correct when he writes in The Torture Memo that:

The press tends to overlook the lawyers when scandal breaks, focusing instead on their clients. That’s understandable, but in public and commercial life no serious move is possible (no corporate maneuver, no new financial instrument, no war, no severe interrogation tactic) without legal approval. Even if the advice proves wrong, the client, if sued or indicted, can claim reliance on counsel.

When lawyers in private practice mess up, they face serious jeopardy. They can be fired, sued for malpractice, disbarred or prosecuted. Yoo and Bybee face no such risks. The President won’t protest. He got what he wanted. And while a state disciplinary body can investigate, that is unlikely without Justice Department help.

I disagree that the involvement of the Department of Justice is required to instigate an investigation of Mr. Yoo, Mr. Bybee or any other unethical attorney in the service of the federal government. As I note here , anybody, from any state, can file an ethics complaint against any attorney practicing anywhere in the 50 states and Washington, D.C. Mr. Gillers continues:

In his book The Terror Presidency, [Bybee’s successor, Jack] Goldsmith, now a Harvard law professor, writes that the torture memos had “no foundation” in any “source of law” and rested on “one-sided legal arguments.”

* * *

How could two really smart guys authorize torture using “one-sided legal arguments” that have “no foundation” in law? How could they be guilty of a “stunning failure of lawyerly craft”? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President’s authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

* * *

So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not “consistent with the professional standards that apply to Department of Justice attorneys.” [H. Marshall] Jarrett[, counsel for the Justice Department’s Office of Professional Responsibility,] must hold the lawyers accountable if he means to restore OLC’s reputation and vindicate the rule of law.

I agree with Mr. Gillers’ characterization of these attorney’s actions but must again strongly disagree that it is Mr. Jarrett that must hold anybody accountable. To repeat myself: anybody, from any state, can file an ethics complaint against any attorney practicing anywhere in the 50 states and Washington, D.C.

In his response at Balkinization to Boalt (Cal Berkeley) School of Law Dean Chris Edleyn’s defense of John Yoo, Scott Horton explains in more detail why John Yoo should be held to account :

[T]he facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward.

Dean Edley then states that the ethical accountability and legal liability of the legal advisor cannot be compared to those of the policy maker. This statement rests on a false understanding of the facts. But it also reflects a misconception of the established law. Indeed, Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is “yes.” The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance.

This principle was established by the United States in one of the most dramatic of the post-World War II proceedings, United States v. Altstoetter, the “lawyers’ case.” Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo. There are three major principles relevant to John Yoo’s case that appear from the charge, accepted by the Tribunal. First, the case dealt with persons under detention in wartime (not POWs, in fact most of the cases in question addressed persons not entitled to POW or comparable protections). Second, it had to be reasonably foreseeable that the advice dispensed would result in serious physical or mental harm or death to a number of the persons under detention. Third, the advice given was erroneous. In fact several of the lawyers in Altstoetter were able to articulate far better defenses for their erroneous legal advice that John Yoo had, but the standard did not require it to be “outrageously” false, just incorrect.

Each of these criteria is satisfied with respect to Yoo’s advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. * * *

However, my point here is not to make the prosecutor’s case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability . * * * (Emphasis supplied).

Also at Balkinization, Professor John Balkin asks whether John Yoo and Jay Bybee violated the canons of professional ethics. In drawing his conclusion, Professor Balkin considered, among others, the Gillers and Horton arguments that I highlighted above, and wrote:

My own conclusion is that Yoo and Bybee did violate their professional obligations to the President as constitutional actor, and to the country as a whole. The reason is a combination of their outrageous theory of presidential dictatorship and their all too eager assistance in what appears to be a conspiracy to commit war crimes. But I do not pretend that the question is at all an easy one.

Note that even if I am right that Yoo violated the canons of professional ethics, he has not been sanctioned by any court or professional organization, much less convicted of any crime by a domestic court or international tribunal. This is important to keep in mind in the debate over whether the University of California should discipline or investigate him.

While I also do not pretend that the question of whether these attorneys violated the canons of professional ethics is an easy one, I am confident that the answer to the question is ultimately yes. And if the answer is yes, then the question becomes what can you and I do to hold these attorneys accountable for their actions in addition to lobbying Congress, writing blog posts and comments, praying and waiting?

Consider first this from Mr. Horton in his response to Dean Edley:

A final aspect of Dean Edley’s memorandum troubles me. He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. They can make great sums of money. They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. * * *

Much of the nobility of this profession lies in the duty of a lawyer to exercise independent professional judgment and to warn a client from an enterprise which is not merely foolish but at times actually immoral and criminal. Elihu Root famously termed this the lawyer’s first calling. When confronted with a trying circumstance, John Yoo not only failed to give proper warning — He became an active part of an enterprise bent on overriding the most fundamental legal and ethical prohibitions. Perhaps a criminal enterprise. And that is and will likely be seen by future generations as a far more troublesome matter than Dean Edley recognizes.

Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. * * * (Emphasis supplied).

And also this from Mr. Horton from April 3, 2008:

It’s also time for the organized bar to act decisively. So far bar organizations have denounced the torture memoranda and issued learned reports and articles. But I’m still haunted by a question a student put to me following a presentation I made at Columbia University on Tuesday evening. “If the bar is so serious about this,” the student said, “then explain to me how it’s possible that John Yoo and his confederates haven’t been disbarred.” I started to answer about the complexity of the disbarrment process, but I stopped. The student was right. If the bar were serious about this, it should have used its disciplinary tools to deal with it. This is not a case of an eccentric academic mouthing some cock-eyed theories. It is about a government official using the power of a government office to induce people to commit serious crimes.

* * *

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency. (Emphasis supplied.)

I noted in response to this post then, and reiterate today, that appealing to this Congress is insufficient and that it is now for direct action by you, the citizen/activist. Each of you can file a grievance against each and every one of these attorneys whether you live in the same or a different state and whether you are personally involved in the matter or are just an interested citizen. By doing so, you can force these bar associations to investigate these matters. Take action: file a grievance.

And remember, it’s not just Yoo and Bybee. There’s Alberto Gonzales, Harriet E. Miers, Kyle D. Sampson, Senator Lisa Murkowski, Judge Mark Everett Fuller and many others.

E.M.

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E-mail to Judge Mark Everett Fuller

Judge Mark Everett Fuller
U.S. District Court Judge
mark_fuller@almd.uscourts.gov

Dear Judge Fuller,

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, D. Kyle Sampson, Harriet Miers and yourself. In my opinion, you have committed numerous violations of the rules of professional conduct of Alabama 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 Don Siegelman matter violated the Alabama Rules of Procedure.

E.M.

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