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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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
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Employment of Kyle D. Sampson reflects poorly on Hunton & Williams, LLP, No. 2

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

My second e-mail to Ms. Field:

Andrea Bear Field
DC Office Managing Partner

cc: Kyle D. Sampson, Partner

Dear Ms. Field,

It has now been several months since I e-mailed you about your colleague, Mr. Kyle D. Sampson about his partnership in Hunton & Williams. As I noted in my prior e-mail, Mr. Sampson has committed numerous violations of the Utah and Washington, D.C., Rules of Professional Conduct. Since then, 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,

concluded that Sampson violated Department policy and federal law, and committed misconduct, by considering political or ideological affiliations when hiring IJs. Sampson knew that, historically, most IJ hiring was handled by career employees at EOIR. However, he moved that authority from EOIR and placed it in the OAG. Sampson told us that he had understood it was appropriate to consider “political criteria” in selecting IJs. He stated that his understanding was based on a conversation he had with Ohlson in April 2004 about the Attorney General’s direct appointment authority for IJs, combined with advice he claimed to have received from OLC that IJ hiring was not subject to civil service requirements.

However, as detailed above, Ohlson said he did not tell Sampson that direct appointments were exempt from federal civil service laws. Ohlson said he merely noted to Sampson that direct appointments had been used occasionally in the past to appoint IJs. Nor does the evidence support Sampson’s claim that OLC advised him that civil service laws did not apply to the career IJ positions. Neither OLC nor we could find any record of OLC ever providing such advice to Sampson, and the two officials he identified as possible sources of the advice – AAGs Goldsmith and Levin – had no recollection of advising Sampson that civil service laws did not apply to IJ hiring. To the contrary, the evidence showed that neither would have offered legal guidance on this point informally. While it is possible that Sampson mistakenly inferred on his own that civil service laws did not apply to direct appointments by the Attorney General, there is no evidence that he was ever so advised by OLC.

Moreover, as described in the document attached to his October 8, 2003, e-mail, Sampson sought to use the Attorney General’s direct appointment authority to appoint candidates as IJs who had been recommended by the White House and screened using political criteria
well before those conversations with OLC and Ohlson supposedly occurred. It is clear from Sampson’s October 8 e-mail that he contemplated using political considerations in IJ hiring at least 6 months before his conversation with Ohlson; at least 9 months before Levin (one
of the OLC Assistant Attorney Generals he cited as a possible source of OLC’s legal advice) became the head of OLC in July 2004; and before any conversation he had with Goldsmith (the other OLC Assistant Attorney General cited by Sampson), who did not begin serving in OLC until October 3, 2003, just 5 days before Sampson’s e-mail.

In sum, we concluded that the evidence did not support Sampson’s claim that he was advised by OLC that IJ positions were exempt from federal law governing career civil service positions.

Because the Attorney General’s direct appointment authority to hire IJs is a departure from the usual Department career hiring practices, we considered the possibility that Sampson may have been confused or mistaken about whether civil service laws apply to such hires. Yet, even if Sampson was confused or mistaken in his interpretation of the rules that applied to IJ hiring, we do not believe that would excuse his actions. His actions, which were carried out over a lengthy period of time and were not based on formal advice from anyone, systematically violated federal law and Department policy and constituted misconduct.

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.

This report confirms my opinion that Mr. Sampson committed numerous violations of the rules of professional conduct of both Utah and Washington D.C that raise a substantial question as to his honesty, trustworthiness and fitness as a lawyer. Now that you know of this report, you may want to check whether you are now ethically obligated to report your partner to the Washington, D.C. Bar.

Thank you for your attention to this matter. Please advise if you or your unethical partner wish to comment about these charges.

E.M.

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Employment of Kyle D. Sampson reflects poorly on Hunton & Williams, LLP

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

Updated on July 29, 2008, with a July 28, 2008,  update to my post on Kyle D. Sampson.

I have not previously sent my copies of my posts directly to their targets. At time of posting, I had no e-mail address for Alberto Gonzales, Harriet Miers or Kyle D. Sampson and I didn’t send send a copy to Senator Lisa Murkowski through her webmail system. When I was writing my post about his unethical conduct in the Don Siegelman matter, though, I found Judge Mark Everett Fuller’s e-mail address in his Alabama State Bar profile.

While I was thinking about sending Judge Fuller a copy of my post, I read about the recent engagement of Grievance Project-eligible Monica Goodling at Above the Law. Scrolling down the page, I came across this reference to D. Kyle Sampson, another alumnus of the Alberto Gonzales-era Department of Justice.

As TPMMuckraker‘s Paul Kiel explained at the time:

So what’s next for Alberto Gonzales’ former chief of staff Kyle Sampson? Where does a senior Justice Department official with an expertise in politicization, who has experience orchestrating a purge of prosecutors, engaging in a clumsy cover-up, and getting drubbed when testifying before Congress, go next?

The answer: working for drug companies. The Salt Lake Tribune reports [Dead link. Article available in Salt Lake Tribune’s archives. Reg. req’d.] that Sampson has landed a gig with the mega-firm Hunton & Williams, in their food and drug practice. There, Sampson will help companies navigate the wilds of Food and Drug Administration regulation, among other duties.

And Mr. Sampson didn’t just land a ‘job’, he made partner at Hunton & Williams, a firm that prides itself on ‘excellence and hard work’, whose diversity programs and commitment to providing pro bono legal services (although they consider representing Super Bowl XLV for free to be pro bono work) make it possible for Hunton to ‘offer you the opportunity to work alongside creative and gifted people on interesting and real projects that matter‘.

If a firm such as this accepts Mr. Sampson as one of its own, maybe I’m wrong about him. Maybe his conduct at the Department of Justice was completely ethical and demonstrated excellence and hard work. So I asked Andrea Bear Field, Hunton & Williams DC Office Managing Partner, if either Mr. Sampson of Hunton wanted to respond to the criticisms that Mr. Sampson’s conduct while employed at the Department of Justice violated the D.C. Rules of Procedure.

My e-mail to Ms. Field:

Andrea Bear Field
DC Office Managing Partner

cc: D. Kyle Sampson, Partner

Dear Ms. Field,

It has now been several months since your colleague, Mr. D. Kyle Sampson, joined Hunton & Williams, as a partner no less. Since that time, 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. Mr. Sampson is the second attorney about whose conduct I have written. (Alberto Gonzales was the first.) In my opinion, Mr. Sampson committed numerous violations of the rules of professional conduct of both Utah and Washington D.C that raise a substantial question as to his honesty, trustworthiness and fitness as a lawyer. (For what it’s worth, I am an attorney licensed to practice in at least one of the 50 states.)

Hunton & Williams is a firm that prides itself on ‘excellence and hard work’ and whose diversity programs and commitment to providing pro bono legal services (Do you really consider representing Super Bowl XLV for free to be pro bono work?) make it possible for Hunton to ‘offer you the opportunity to work alongside creative and gifted people on interesting and real projects that matter ‘. The corporate culture your firm describes, however, seems incongruous with the ethical judgment Mr. Sampson demonstrated in his recent past. I’m interested in both the firm’s and Mr. Sampson’s response to the criticisms that Mr. Sampson’s conduct while employed at the Department of Justice violated the D.C. Rules of Procedure.

Thank you for your attention to this matter.

E.M.

(Whatever it does mean, the fact that I have not publicly identified myself changes neither the facts nor the severity of my allegations.)

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