Bar complaints filed against Yoo, Bybee, Addington, Ashcroft, Gonzales, Mukasey, 6 others

Justin Blum at Bloomberg (h/t Zachary Roth at TPMMuckraker) reports that state bar complaints have been filed against twelve Bush administration lawyers involved in the authorization and sanctioning of torture by the United States of America, including two attorneys, Alberto Gonzales and John Yoo, whose disbarments I have long been advocating. [A complete list of the grieved attorneys – with links to the complaints – is included at the end of this post]. See also these reports by UPI, CNN and Scott Shane at NYT. Upon signing and filing the complaints on behalf of VotersForPeace (donate here ) and a coalition of organizations led by Velvet Revolution, attorney Kevin Zeese, Executive Director of VotersForPeace, stated in part:

Today, we filed complaints with the District of Columbia Bar and with four other states seeking the disbarment of 12 Bush-Cheney torture lawyers. These lawyers misused their license to practice law to provide legal cover for the war crime of torture. This misuse of their license requires the bar association to disbar them or the bar will become complicit in torture.

Complaints have been filed against: John Yoo, Judge Jay Bybee, and Stephen Bradbury who authored the torture memoranda. As well as attorneys who advised, counseled, consulted and supported those memoranda including Alberto Gonzales, John Ashcroft, Michael Chertoff, Alice Fisher, William Haynes II, Douglas Feith, Michael Mukasey, Timothy Flanigan, and David Addington. These detailed complaints, with over 500 pages of supporting exhibits, have been filed with the state bars in the District of Columbia, New York, California, Texas and Pennsylvania, and they seek disciplinary action and disbarment. …

This cadre of torture lawyers colluded to facilitate the abuse and torture of prisoners (detainee) that included, evidence suggests, deaths at overseas U.S. military facilities. Human Rights Watch reports 98 deaths of people in custody of the United States in Iraq and Afghanistan. Making torture even worse in this case is that it was used to try and get information to tie Saddam Hussein to al Qaeda – a relationship that did not exist – as well as information about non-existent weapons of mass destruction in order to justify the illegal invasion and occupation of Iraq.

We have asked the respective state bars to revoke the licenses of these attorneys for moral turpitude. They failed to show “respect for and obedience to the law, and respect for the rights of others,” and intentionally or recklessly failed to act competently, all in violation of legal Rules of Professional Conduct. Several attorneys failed to adequately supervise the work of subordinate attorneys and forwarded shoddy legal memoranda regarding the definition of torture to the White House and Department of Defense. These lawyers further acted incompetently by advising superiors to approve interrogation techniques that were in violation of U.S. and international law. They failed to support or uphold the U.S. Constitution, and the laws of the United States, and to maintain the respect due to the courts of justice and judicial officers, all in violation state bar rules.

Torture is illegal under United States and international law. It is illegal under the U.S. Constitution, domestic law and international treaties to which the United States is a party.

* * *

The torture memoranda did not provide objective legal advice to government decision-makers, but instead twisted the state of the law so that it was unrecognizable. They were so inaccurate that these memoranda are more justifications about what the authors and the intended recipients wanted the law to be, rather than assessments of what the law actually is.

* * *

We decided to take action today because the federal government seems unable and unwilling to act. The Department of Justice’s Office of Professional Responsibility has taken nearly five years to complete its report, as some of the memoranda at issue became public in June 2004. Further, this OPR investigation is focused only on two lawyers, John Yoo and Jay Bybee rather than all those involved. This inexcusable delay is unfair to the public because the consequences of any wrongdoing are diminished. The delay has already benefited the two men under investigation, John Yoo now has tenure at Berkeley law school and Jay Bybee now has a lifetime appointment as a federal court of appeals judge. If OPR had completed its duties in a timely manner it is unlikely that either appointment would have been made.

In addition to inaction by OPR, the Congress where select Members were briefed 40 times by the CIA, seems unable to take action because of fear of its own complicity being exposed. And, Attorney General Eric Holder, has now testified that he approved renditions – which results in prisoners being tortured by other countries at the behest of the United States – during the Clinton administration. And, sadly, the President of the United States has now decided to hide evidence of war crimes by refusing to release photographic and video evidence despite a court order to do so. Finally, the administration is appointing General McChrystal to be the head of operations in Afghanistan despite being responsible for commanding Fort Nama in Iraq as well as special forces involved in torture[.]

* * *

Therefore, the people must act to face up to this issue and restore morality and Rule of Law to the United States. In addition to filing these complaints we are starting a campaign for disbarment, public torture hearings and for the appointment of an Independent Prosecutor. People who want to get involved are urged to go to DisbarTortureLawyers.com and VotersForPeace.us.

Only by taking torture out of politics and allowing an independent prosecutor to pursue the facts and apply the law will the United States recover from these war crimes. Application of the rule of law, beginning with disbarment, is a necessary part of the process of healing the nation.

The Velvet Revolution statement regarding the filing of the complaints adds, in part, that:

The individually tailored complaints allege that the named attorneys violated the rules of professional responsibility by advocating torture. The memos written and supported by these attorneys advocating torture have now been repudiated by the Department of Justice, the White House, the Department of Defense and other experts in the field. The recently released Senate and Red Cross reports on detainee treatment provide uncontroverted evidence that the torture techniques advocated by the attorneys were used on human beings over an extended period of time. We have also sent a letter to House Judiciary Chairman John Conyers, asking that he initiate impeachment proceeding against Jay Bybee, who is now a sitting federal judge. The evidence is clear that, during his confirmation hearings, Mr. Bybee misused the classified status of his torture memos to portray a false picture of his legal history. Several Senators have stated publicly that Mr. Bybee would not have been confirmed if they had been aware of his torture memos. The bar complaints have been signed by our board attorney, Kevin Zeese, who also directs the Campaign for Fresh Air and Clean Politics, and Voters for Peace.

We ask other organizations to sign on to this campaign by sending an email to DisbarTortureLawyers@velvetrevolution.us. Individuals can sign on using the form below. This campaign will include a broad public relations push so we urge everyone to spread the word and for the press to contact us for comment and interviews.

You can make targeted donations to this campaign at with an earmark comment in the box at http://www.velvetrevolution.us/donate.php.

The complaints were filed against the following attorneys:

Links to the complaints can also be found at Velvet Revolution here, where you will find a Sign On Form to add your name to the campaign as well as links to the exhibits attached to the complaints, the released torture memos and other information.

Updated 05-19-09 to correctly identify William James Haynes II (instead of Michael Haynes) as one of the dirty dozen torture lawyers.  (h/t earlofhuntingdon)

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Chickens come home to roost as employers shun toxic Bush lawyers

Noting that Alberto Gonzales hasn’t been able to find a job since his 2007 resignation, Charlie Savage and Scott Shane reported on March 8, 2009, that David Addington has joined the pool of unemployable Bush administration attorneys. From their article Terror-War Fallout Lingers Over Bush Lawyers:

For some of Mr. Bush’s lawyers, the most likely consequence may be wariness from potential employers. The former White House counsel and attorney general, Alberto R. Gonzales, for example, has not found a job since resigning in 2007 amid accusations that he misled Congress about surveillance without warrants and the firing of United States attorneys.

He recently told The Wall Street Journal that the controversy surrounding him had made law firms “skittish” about hiring him, calling himself “one of the many casualties of the war on terror.” Mr. Gonzales’s lawyer, George J. Terwilliger III, said in a statement that “Judge Gonzales looks forward to the day when reason prevails over partisan politics and he can get on with his professional life.”

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work. The former Pentagon general counsel William Haynes II had been nominated by Mr. Bush for an appeals court judgeship, but was blocked because of his role in detention policies.

He then searched for a job for about a year, according to Pentagon officials, before landing a position at Chevron in 2008. [Emphasis supplied.]

h/t Zachary Roth, Report: Addington, Like Gonzo, Said To Still Be Looking For Work, March 9, 2009

Back on December 3, 2008, Carrie Johnson provided this update on D. Kyle Sampson:

D. Kyle Sampson, [broken link] who served as the chief of staff to Gonzales until his March 2007 resignation, recently took a leave from his job as a partner at the law firm Hunton & Williams while the investigation [by prosecutor Nora R. Dannehy who is investigating the dismissals of nine U.S. attorneys] proceeds. A spokeswoman for the law firm said he is on leave “pending admission to the D.C. bar.” [Ed. note – As of this date, Mr. Sampson has not been admitted to the D.C. bar. Updated March 17, 2009 to add the word ‘not’ to the previous sentence in this Ed. note]

The report by Inspector General Glenn A. Fine singled out Sampson for offering testimony that was “not credible” and “unpersuasive.” The authorities also concluded that Sampson had committed “misconduct.”

An attorney for Sampson previously said that Sampson had gone out of his way to help investigators and that he had offered “his best, most honest and complete recollection of these events.”

It’s shameful that these men are still licensed to practice law but, for whatever the reason and however temporary, they’re not practicing law. This doesn’t take the place of proper investigation by their respective bar associations and imposition of appropriate sanctions, but Messrs. Gonzales, Addington and Sampson are being judged quite harshly by their peers. For now.

* * * * * * * * * *

I sent the following email to Hunton & Williams requesting a response to some questions I had regarding the firm’s employment of Mr. Sampson:

Eleanor Kerlow
Senior Public Relations Manager, Hunton & Williams
(202) 955-1883
ekerlow@hunton.com

Ms. Kerlow,

I write The Grievance Project at which I have been following the career of D. Kyle Sampson. I am writing requesting Hunton & Williams’ response to the following questions related to Mr. D. Kyle Sampson.

  • Was the leave taken at the firm’s request?
  • Has the firm been contacted by Nora R. Dannehy regarding Mr. Sampson?
  • Has any other attorney at Hunton & Williams taken a leave from the firm due to Ms. Dannehy’s investigation?
  • Was a press release issued relating to Mr. Sampson’s leave? If so, please forward a copy to my attention.
  • Is it typical or policy for partners in Hunton’s D.C. office to take a leave from the firm while applying for admission to the D.C. bar?
  • Is Mr. Sampson welcome back to Hunton upon his admission to the D.C. bar?

Thank you for your attention to these questions.

I will update this post with any reply I receive.

Updated on March 11, 2009: Emptywheel and Scott Horton provide much more analysis on this issue here and here, respectively.

Updated on March 17, 2009: I haven’t received a reply from Ms. Kerlow or other official response from Hunton & Williams, so I resent the above email to Ms. Kerlow again asking for a response to my questions.   I also asked Ms. Kerlow whether she or someone else from Hunton & Williams stopped by TGP the other day:

From Statcounter :

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

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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

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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Mark Everett Fuller

The Preamble to the Alabama Rules of Professional Conduct states, inter alia, 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.

As a public citizen, a lawyer should seek improvement of the law, of the administration of justice, and of the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

In multiple instances, Mark Everett Fuller has failed to adhere to these – and many other – standards of conduct.

Mark Everett Fuller was nominated by President George W. Bush on August 1, 2002 to the U.S. District Court in Alabama and was confirmed by the U.S. Senate on November 14, 2002. Since taking the bench, Judge Fuller has breached various rules of professional conduct, most notably in his handling of the prosecution of former Alabama Governor Don Siegelman. Judge Fuller should be investigated by the Alabama State Bar Office of Legal Counsel to answer for his violations of the Alabama Rules of Professional Conduct. The following analysis establishes the factual basis needed to file a grievance against Judge Fuller. Due to the complexity of the case, I have quoted extensively from the work of Scott Horton to establish a factual basis for Judge Fuller’s violations.

Personal Information:

  • Name: Hon. Mark Everett Fuller
  • Firm: U. S. District Court
  • Address: One Church Street
    Montgomery , AL 36104-0000
  • Phone: (334) 954-3640
  • Fax: (334) 954-3649
  • Date Admitted: September 27, 1985
  • Law School: Alabama, University of

Grievance Information: Alabama

Allegations:

Judge Fuller improperly failed to recuse himself from the prosecution of Don Siegelman

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 Mark Fuller and the Siegelman Case, Mr. Horton provides background for review of this matter:

In 2002, Don Siegelman lost the governorship of Alabama to Bob Riley by 3,000 votes, raising suspicions of electronic vote tampering. According to an affidavit 1

[Footnote] 1. The affidavit was prepared to serve a limited-purpose challenge to the role of Terry Butts, who appeared as a lawyer in the Scrushy/Siegelman case, had previously worked for Governor Riley.

by lifelong Republican Dana Jill Simpson, on November 18, 2002, soon after Siegelman’s defeat, a conference call was held among Bob Riley’s senior aides, and during the call William Canary, a prominent Alabama Republican, said “not to worry about Don Siegelman” because “his girls”— meaning two U.S. attorneys, Alice Martin and Canary’s wife Leura, both of whom subsequently indicted Siegelman—would “take care” of the governor; furthermore, Karl Rove was described as “pursuing” Siegelman with help from U.S. attorneys in Alabama. (Time has a thorough article on the issue, with a response from Canary.)

In November 2003, one year after Siegelman’s defeat, the Mobile Press-Register published a poll showing that in the event of a rematch between Riley and Siegelman, Siegelman would prevail. 2

[Footnote] 2. Bill Barrow, “Riley’s Ratings are Low: Governor Would Trail Moore, Siegelman in 2006 Race,” Mobile Press-Register, Nov. 16, 2003, p. 6..

I spoke with sources within the Alabama GOP who told me that this poll set off alarm bells and was cause for a number of meetings and discussions about how to deal with the “Siegelman problem.” Before long, I believe, a solution to that problem manifested itself in the form of an indictment.

The Tuscaloosa Case
In May 2004, Alice Martin brought the case on claims that Governor Siegelman, with two other men, had been involved in an effort to rig bids on a state project in Tuscaloosa. After a series of recusals, the case came before the Chief Judge of the Northern District, U.W. Clemon, in Birmingham. As reported in the Montgomery Advertiser, Martin was opposed to Clemon handling the case and attempted to force his recusal. Clemon, however, rejected the Justice Department’s request that he step aside. He also refused to allow the defense to portray the proceedings as a “political conspiracy,” but also expressed skepticism that the government had enough evidence to make out a case of conspiracy, which was the principal count. In my analysis of the case, I found that Clemon asked penetrating questions of the prosecutors, and when their answers reinforced his suspicions, he demanded that they present a prime facie showing of their case before allowing the matter to proceed. When they were unable to do this, Judge Clemon dismissed the conspiracy case with prejudice, and with that, the first effort to prosecute Siegelman imploded in October 2004.

Enter Mark Fuller
But there was more to come. In October 2005, federal prosecutors indicted Siegelman on new corruption charges in Montgomery, Alabama, a different judicial district distinct from the Northern Alabama district in which Clemon had previously dismissed similar charges without prejudice. In theory, federal judges are assigned to cases at random. But according to a well-placed Alabama GOP source who wishes to remain anonymous, some senior figures in the Alabama GOP appear to have known from the start that this case was going to be handled by a man they counted a friend, namely, George W. Bush–appointee Mark Fuller. Regardless of whether the GOP had the power to influence case assignments, Mark Everett Fuller was in fact assigned as judge who presided over the grand jury proceedings in this second effort to prosecute Siegelman.

* * *

Mark Fuller and the Siegelman Case, Scott Horton, July 31, 2007

Mr. Horton further describes the personal animosity held by Judge Fuller for Mr. Siegelman which should also have resulted in Judge Fuller’s recusal in this matter:

Fuller’s tenure as District Attorney for Alabama’s 12th Judicial Circuit lasted from 1997, when he was appointed by Republican Governor Fob James, through 2002, when, based on recommendations from Alabama Republican Senators Richard Shelby and Jefferson Sessions, he was nominated by President George W. Bush for a federal judgeship in the Middle District of Alabama in Montgomery. Fuller was confirmed in November 2002.

A routine state audit of Fuller’s office for the period from October 1999 to April 2001, found that “there were a few incidents of insufficient or incomplete documentation of disbursements” at the office. (A copy of the audit report can be found here.) State auditors recognized that Fuller, as district attorney, had very broad discretion in budget, so they did nothing to challenge these payments.

Fuller’s replacement Gary McAliley, however, 1

[Footnote] 1. Someone with direct knowledge of the situation told me that McAliley was Fuller’s “nemesis.” Whether this was true at the time, it is true that McAliley soon became a thorn in Fuller’s side.

appointed by then-Governor Don Siegelman, started another audit and began to investigate Fuller for salary spiking–the practice of making extraordinary payments to a person who is on the verge of retirement–in this case, presumably, because an Alabama rule for determining state pensions counts an employee’s earnings for the highest three years of the last 10 years of work. The McAliley audit concluded that Fuller allowed his chief investigator Bruce DeVane an extra $70,000 in 2000-–close to twice DeVane’s annual 1999 salary—to “compensate him for working nights and weekends on developing policies and procedures manuals for the district attorney’s office.”

[Image of a photo of Fuller at a 2005 law clerk reception appears in original post.]

The Retirement Systems of Alabama (RSA), which administers pension payments to former state employees, determined that the payments to DeVane were irregular and decided not to take them into account in calculating DeVane’s retirement benefits. DeVane went to court to force their hand. His star witness: Mark Fuller, now a federal judge in Montgomery. Fuller testified that he could legally pay DeVane any salary he wished and expressed the view that the state was bound to support his decision.

The following editorial, in the RSA’s newsletter Advisor in September 2003, described the case as the RSA saw it:

In December of last year, Judge Fuller appeared before the ERS Board wanting to “spike the retirement benefit” for a former employee, Mr. Bruce DeVane. When Judge Fuller was District Attorney for Pike County, he had given Mr. DeVane an 89% pay increase from $80,301 to $152,014 for one year only. If this additional payment were considered regular salary, his retirement income would have been increased by $1,000 per month or $330,000 over his expected lifetime. The Board rightfully denied the benefit spike. The Montgomery Advertiser editorial of December 5, 2002, congratulated the Board in standing tall to prevent a “ . . . back loading of salaries to boost pensions . . . .”

On February 22, 2006, the Enterprise Ledger summarized the case as follows: 2

[Footnote] 2. Kim Lewis, “Salary ‘Spiking’ Case,” Enterprise Ledger, Feb. 22, 2006. Reproduced in the Retirement Systems of Alabama Advisor, Vol. 31 No. 9, March 2006. [End Footnote.]

A former investigator for Coffee and Pike counties has not given up claims that the state owes him an additional $14,000 a year in retirement. Even though a Montgomery County judge dismissed Bruce DeVane’s case against the Retirement Systems of Alabama, DeVane’s attorney is hopeful the Alabama Court of Civil Appeals will reverse the judge’s decision.

In a civil lawsuit that took nearly two years to settle, Judge Eugene Reese, upheld a decision by RSA to spare Alabama taxpayers and deny DeVane’s claims to what RSA refers to as “extraordinary compensation.” During the January 2004 bench trial, DeVane’s former boss, U.S. District Judge Mark Fuller, who was district attorney for Coffee and Pike counties at that time, testified on behalf of DeVane. As DeVane’s boss, Fuller claims he could legally pay DeVane any salary he deemed suitable . . . .

Indeed, RSA lawyers had argued successfully that the jump in DeVane’s salary constituted an “extraordinary” circumstance that did not merit attention in calculating DeVane’s overall retirement pay. D.A. Gary McAliley, who did not return calls requesting comment, testified that the payments were, as a matter of operating procedure within his office, extraordinary. The state court sided with the RSA and McAiley, rejecting the views put forth by Fuller.

The head of the RSA is David G. Bronner—a highly regarded figure in Alabama’s state administration who oversees billions in pension funds. Bronner did not respond to my requests for comment, but he did publish a column on the matter, entitled “Sarcasm: Justice in Bama,” in the August 2007 Advisor. In the piece, he draws a connection between the DeVane case and the fact that Fuller later refused to grant the RSA the ability sue Enron in Alabama state court. He wrote:

I do not like U.S. District Judge Fuller nor does he like me. The RSA had to go through the entire state court system to prevent Judge Fuller’s buddy from ripping off the RSA. Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook–Enron! Fortunately, the RSA prevailed on both issues.

In 2002, in the wake of the audit, Fuller simply said that the criticism of him was “politically motivated.” See also New District Attorney Named, December 23, 2002

But think about that for a moment. Fuller, an Alabama Republican stalwart, leaves for the federal bench—then finds his work as District Attorney under investigation by his replacement Gary McAliley. Fuller’s federal position was secure but his reputation was bruised, and he responded to his critics by insisting he left the D.A.’s office in “sound financial condition.” But he also let it be known that he felt that he was under political attack—by a recent Siegelman appointee. Given that, ask yourself: why would Fuller, a man with very good reason to have a grudge against Siegelman’s entire operation, not recuse himself from judging Siegelman?

To me, it looks like there was a score to settle.

Judge Fuller: A Siegelman Grudge Match? by Scott Horton, August 2, 2007.

Indeed it does. Judge Fuller’s personal animosity is further described by reporter Laura McGann at TPMMuckraker:

Dana Jill Simpson wasn’t just worried about Rove’s involvement in Gov. Don Siegelman’s (D-AL) case. She also testified that she heard about a behind-the-scenes arrangement to ensure which judge would get the case — a judge sure to “hang” Siegelman.

Simpson said that Gov. Bob Riley’s (R) son, Rob Riley, told her in a 2005 conversation — one where Riley also said that Rove was pushing to have the Justice Department investigate Siegelman — that Judge Mark Fuller would get the case because Fuller, an active Republican, had a beef with Siegelman over an audit.

We’ve posted the portion of the interview where Simpson discusses Fuller here.

Q And did he talk to you about Mark Fuller’s politics or political work?

[Simpson] He did.

Q What did you talk about in that regard?

[Simpson] I asked him — he made a statement that Fuller would hang Don Siegelman. And I asked him how he knew that, if he got him in his court. And he said that Fuller was — had been on the Executive Republican Committee at Alabama — in Alabama before he been a judge and he also told me about a backlogging case, which is what you call the salary spike. He called it the “backlogging.”

Q And did [Riley] say any more about what Don Siegelman had to do with those audits that put Mark Fuller out?

[Simpson] He said that Don Siegelman had caused Fuller to get audited. That’s what Fuller thought. He hated him for that.

Republican Lawyer Interview with House Judiciary Panel Released by Laura McGann, October 10, 2007.

Mr. Horton describes additional acts of misconduct by Judge Fuller in his handling of the Siegelman matter:

When the jury retired, half of the members favored acquittal, and the other half, who according to subsequent statements felt they were doing what Judge Fuller wanted them to do, supported conviction. The jury initially deadlocked, sending the judge a note stating that they could not resolve the case. The judge responded by suggesting that he would be prepared to hold them indefinitely, including over the upcoming holiday. An anonymous source supplied defense counsel with evidence that some jurors were engaged in inappropriate conduct, among other things reading press accounts of the case and discussing how to pressure other jurors into a conviction with outside evidence.

Two emails in particular, which I was able to obtain from pleadings filed with the court, indicate that outside materials were being downloaded from the Internet and used by these jurors in an effort to pressure their wavering peers:

Exhibit 23:
“….judge really helping w/jurors…
still having difficulties with #30
…any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.
[first name of Juror B]

Exhibit 24:
“I can’t see anything we miss’d. u?
articles usent outstanding! gov & pastor up s—t creek.
good thing no one likes them anyway. all public officials
r scum; especially this 1. pastor
is reall a piece of work
…they missed before, but we won’t
…also, keepworking on 30…
will update u on other meeting.
[first name of Juror B]

Normally such evidence would result in dismissal of the jury and an order directing a new trial, but not here. Fuller refused to subpoena the email records in question, to question the jurors about the allegations of improper conduct, or to allow counsel to do the same. When the defendants sought to notify the Internet service providers so that the records could be preserved, the motion was summarily denied. Then Fuller, acting to protect the “sanctity of the jury,” adjourned the case for one year before sentencing—long enough for most Internet service providers to automatically dispose of emails maintained on their servers.

Judge Fuller and the Trial of Don Siegelman by Scott Horton, August 3, 2007.

Mr. Horton also reports on a motion filed by Don Siegelman’s attorneys to recuse Judge Fuller from hearing the case due to his conflicts on interest:

The recusal motion rested upon details about Fuller’s personal business interests. On February 22, 2007, defense attorneys obtained information that Judge Fuller held a controlling 43.75% interest in government contractor Doss Aviation, Inc. After investigating these claims for over a month, the attorneys filed a motion for Fuller’s recusal on April 18, 2007. The motion stated that Fuller’s total stake in Doss Aviation was worth between $1-5 million, and that Fuller’s income from his stock for 2004 was between $100,001 and $1 million dollars.

In other words, Judge Fuller likely made more from his business income, derived from U.S. Government contracts, than as a judge. Fuller is shown on one filing as President of the principal business, Doss Aviation, and his address is shown as One Church Street, Montgomery, Alabama, the address of the Frank M. Johnson Federal Courthouse, in which his chambers are located.

[Image in original not reprinted here.]

Doss Aviation, Inc. (motto: “Total Quality Service Isn’t Expensive, It’s Priceless”) and its subsidiary, Aureus International, hold contracts with a number of government agencies. Quoting from defense counsel’s motion for recusal (emphasis in the original):

Doss Aviation, Inc. has been awarded numerous federal military contracts from the United States government worth over $258,000,000, including but not limited to: An , August 2002 contract with the Air Force for $30,474,875 for Helicopter Maintenance, a November 2003 contract with the Navy for $5,190,960 for aircraft refueling, a February 2006 contract with the Air Force for over $178,000,000 for training pilots and navigators, and a March 2006 contract with the Air Force for $4,990,541.28 for training at the United States Air Force Academy. The February 2006 contract with the Air Force for over $178,000,000 is for 10 ½ years, but is renewable from year to year . . .

An Enterprise Ledger article dated April 3, 2005, states that “FBI agents, military and civilian pilots and medical professionals all over the world wear (Aureus International) products which are cut, sewn, inspected, bagged and shipped from its home in Enterprise.”

Doss Aviation and its subsidiaries also held contracts with the FBI. This is problematic when one considers that FBI agents were present at Siegelman’s trial, and that Fuller took the extraordinary step of inviting them to sit at counsel’s table throughout trial. Moreover, while the case was pending, Doss Aviation received a $178 million contract from the federal government.

The Public Integrity Section of the Department of Justice intervened, saying almost nothing about the merits of the motion, but attacking the professional integrity and motives of its adversaries. Here’s an excerpt from the government’s response:

[section title] II. The Petition is the Latest Implementation of Defendant Scrushy’s Bad Faith Strategy to Attack the Integrity of the Judicial Process

As discussed above, the United States submits that the defendant’s Petition is a meritless attack on the District Judge who presided over his conviction by a jury. In light of federal courts’ warnings, cited above, to avoid bad faith manipulations and forum-shopping, the United States notes the following indicators of defendant’s bad faith throughout these proceedings.

Even a quick review and judicial notice of the media accounts surrounding this litigation makes evident that the Petition is just another part of an ongoing and considered strategy of attacking every aspect of the judicial process . . . Immediately after the trial, counsel for defendants Siegelman and Scrushy falsely attacked the conduct of the jury . . .

This, of course, fails to address the legal merits of the motion, merely beating up on opposing counsel.

Judge Fuller denied the motion for recusal. His decision raises three issues:

First, Fuller suggests that he is merely a shareholder in an enterprise. In fact, Fuller’s 43.75% interest in a company with a handful of shareholders makes him the controlling shareholder in a tightly held business.

Second, Fuller derides as a “rather fanciful theory” that he would be influenced by the fact that his business interests derive almost entirely from Government contracts, including from the litigant before the court. It seems that Fuller would have us believe that the process of issuing these contracts is divorced from the political world in Washington. That’s absurd: an examination of press statements surrounding contracts awarded to Doss Aviation shows that Fuller’s political mentor, Representative Terry Everett, is regularly cited in connection with the contract awards. Moreover, the entire process of Department of Defense contract awards is now notoriously politicized through “earmarking” and similar processes that effectively allow legislators to steer lucrative contracts into the hands of their political friends. 1

[Footnote] 1. Case in point: immediately after Fuller’s sentencing of Don Siegelman, Siegelman’s Republican successor Bob Riley disappointed his G.O.P. supporters in Cullman County by canceling his appearance at a dinner there and making a sudden and unexpected trip to Washington. Riley stated that he was going to meet with officials at the Department of the Air Force with respect to an important new contract for Alabama—but Riley also met with Senator Jefferson Sessions and two White House aides. He may have missed dinner in Alabama, but that doesn’t mean he missed out on pork.

Third, Fuller states that he “made several rulings in favor” of the defense. I looked through the record, attempting to find the rulings to which Fuller is alluding, and I can’t find them. It is true that Fuller endorsed rulings that were made by the assigned magistrate-judge on some points, but a review of the record will show that Fuller was relentless in his support for the prosecution and his rejection of defense claims.

At the Edge of Judicial Ethics
The recusal motion points to the difficulties of a federal judge continuing to hold active business interests with entities that litigate before them. Usually, judges divest themselves of such interests and place their holdings in a blind trust. But the evidence offered here raises serious question as to the amount of distance Fuller has put between himself and the business interests that provide the bulk of his income. And in this case there has been at least one clear-cut breach. “Fuller’s designation of his judicial chambers as his address in connection with corporate registrations,” said Nan Aron of the Washington-based judicial oversight organization Alliance for Justice, “clearly runs afoul of the rules, as does his retention of any office, including as agent for service of process.”

Two more cases show a curious attitude towards recusal. First, notwithstanding his former membership in the Executive Committee of the Alabama Republican Party, Fuller participated in the resolution of a highly contentious litigation involving interests of the Executive Committee in a case entitled Gustafson v. Johns decided in May 2006.

Second, there is a case now pending in the Middle District that was initially assigned to Fuller, involving a government contract for the procurement and modification of two Russian helicopters. In the middle of the case sits Maverick Aviation, Inc., of Enterprise, Alabama—the same town from which Fuller hails and where his business operations, which would appear to be similar in scope to those of Maverick Aviation, are sited. From the facts described in several accounts, the company would appear to be a direct competitor with Doss Aviation. Fuller, however, handled this case for several months before his recusal was sought and obtained. The recusal order has been placed under seal, making it impossible to learn what conflicts the parties saw in the matter, nor why Judge Fuller felt free to handle the case for some time before withdrawing. It could be legitimate, or it could be a coverup, and there is no way to find out with the seal in place. 2

[Footnote] 2. Sean Reilly, “Bribery Case Involves Russian Copters, Classified Info,” Mobile Press Register, Mar. 7, 2007, p. 01A.

A judge has the responsibility to raise conflict issues on his own initiative—to disclose them to the parties appearing before him, and, when appropriate, to drop out of a case. Judge Fuller, on the other hand, as a committed senior Republican and part-owner of a large business that survives on government contracts, has presided over cases that relate to his personal interests. And that raises questions about the kind of justice he dispensed in the Siegelman case.

The Pork Barrel World of Judge Mark Fuller by Scott Horton, August 6, 2007.

Mr. Horton discussed whether Judge Fuller’s involvement in the Siegelman case was proper with legal ethicist Professor David Luban, the author of the author of Legal Ethics and Human Dignity:

1. Judge Fuller is a Republican, and before coming to the bench he worked on a number of Republican campaigns. He served as a member of the Alabama Republican Executive Committee at a time when Don Siegelman was a Democratic state office holder. Was it proper for Fuller to sit as a judge in the Siegelman prosecution?

There’s a well-accepted legal standard for when a judge should disqualify himself from a case: the judge should bow out when his impartiality can reasonably be questioned. That’s the standard in both the judicial code of ethics and in federal law. The point is to maintain confidence in the fairness and integrity of the legal system. Keeping that in mind, the bare fact that Judge Fuller is a Republican clearly isn’t enough to raise questions. Most judges belong to one party or the other, and a lot got their job on the bench because they were active party members. We expect that they can put mere party sympathy aside when they try cases. But on these facts, Judge Fuller was a lot more than just an active party member. He was a electoral strategist, an executive committee member, and an anti-Siegelman campaigner. How can a reasonable person fail to have doubts about his impartiality? If you’ve spent years organizing the “Beat the Yankees” Club, you should not be umpiring a Yankees game–even if you think you can call the game honestly.

2. In addition to his political engagement, a Siegelman appointee questioned some extraordinary payments Fuller made while he was a district attorney. There was a litigation in which Fuller testified, and the court ruled against him and for the state retirement agency. Fuller was quoted as stating that this was “politically motivated.” Does this raise any questions?

If Judge Fuller complained that it was “politically motivated,” it sounds like he might be blaming Siegelman for it. Without knowing the context it’s hard to tell whether the judge was complaining only about the appointee, or the governor as well. If the latter, it means that the judge had expressed a grudge against Siegelman and obviously should not be trying his case.

3. Judge Fuller appears to derive most of his income from a closely-held business in which he remains the controlling shareholder. The business is almost entirely involved with government contracts, with the Department of Defense and Department of Justice as contractors. What is your reaction when you look at the recusal motion, in which this was set out in some detail, the Justice Department’s response, and Judge Fuller’s ruling?

Generally, the standards for recusal motions are tough, to discourage parties from judge-shopping. I started reading these papers with that viewpoint—namely that the defendant had an almost impossible case to make. But the more I read the papers, the more I was persuaded that this actually was one of those rare cases where the burden was met. Remember: the legal standard is whether you can reasonably question the judge’s impartiality. If so, the law requires the judge to disqualify himself. This is not a run-of-the-mill criminal case where a judge’s commercial side-dealings with the government would not raise a question about pro-government bias. This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.

What amazes me about these facts is that they combine past political activism against the governor, a possible grudge against the governor, and the judge’s company’s financial dependence on the government’s good graces. If they’re right (I don’t have any independent knowledge of that), any one by itself would raise reasonable questions about the judge’s ability to be impartial. Taken together, we have a perfect storm. Under these circumstances, impartiality would take superhuman self-control, and we don’t expect judges to be superhuman. The recusal standard is designed so that we don’t have to expect it.

4. You read the Justice Department’s papers, which were filed both by the U.S. Attorney’s office in Montgomery and by the Public Integrity Section at the Department of Justice in Washington, D.C.

I was troubled by the papers filed by the Department of Justice. Half the argument is an ad hominem attack on their adversary’s attorneys for daring to question the government’s fairness. Without offering any evidence, it accuses them of bad faith, and it’s loaded with insulting adjectives. The motion makes it look like the government is blowing smoke to deflect attention away from the real issue.

But rhetorical overkill isn’t the main problem. The most troubling problem is that the Justice Department’s Professional Integrity Section joined this response. That was a real lapse of professional judgment. PIN (as it’s called) is in charge of policing public officials. That includes judges as well as elected officials. Under some circumstances, PIN could be called on to make an independent after-the-fact assessment of Judge Fuller’s conduct. By signing onto the Justice Department’s submission at this point, before there’s been a hearing on the recusal motion, the Public Integrity Section makes it virtually impossible for it to do its oversight job later, because it’s already staked out a position on the case before hearing all sides of the argument.

An Interview with Legal Ethicist David Luban Regarding Judge Mark Fuller by Scott Horton, August 7, 2007.

Mr. Horton details additional improper conduct of Judge Fuller:

Back in October 2002, Brown filed a FOIA request, Brown v. Ashcroft, to compel the Justice Department to release documents relating to the case. The case was bounced down to Montgomery and assigned to Mark Everett Fuller. Shortly after the suit was filed, Justice responded, releasing over 1,000 documents, and then seeking summary judgment on the grounds that the relief that Brown was seeking had been granted.

Two years later, Fuller disposed of this case acting sua sponte. He struck the names of Alice Martin and John Ashcroft from the caption and then dismissed the case for “failure to state a claim,” concluding that Brown’s letters of request had been too vague.

Fuller’s conduct is bizarre. There was nothing vague about the letters, and indeed, the Justice Department found them in order and processed the request. It appears to me that Fuller was spinning, trying to clean up the record in a way that would eliminate Alice Martin’s name from public visibility. He had become a far more engaged defender of the Gonzales Justice Department than the department was of its own interests. And that’s also the posture he adopted at the Siegelman trial. Is this the way an impartial federal judge handles a matter?

The Alice Martin Perjury Inquiry by Scott Horton, September 8, 2007.

And the allegations of unethical – as well as criminal – conduct by Judge Fuller are not limited to the Siegelman case. As reported by Mr. Horton:

I have received a copy of an affidavit (8.7Mb PDF) filed by a Missouri attorney in 2003 which details a number of charges of unethical and criminal conduct against Judge Mark Fuller. The attorney sought Fuller’s removal from a high-profile litigation which related to a prominent Republican who was close to both the current President Bush and his father.

The attorney, Paul Benton Weeks, had been involved as counsel for plaintiffs in a civil action called Murray v. Scott & Sevier, which had originally been filed in Kansas and was later transferred to Montgomery and assigned to Judge Fuller. Weeks, reached by telephone this morning, advised me that he did a routine background check to discover what kind of judge he was up before. “I was astonished by what I found,” Weeks said. Immediately after the papers were filed, Weeks said that Fuller was removed as the judge handling the case.

In the affidavit, Weeks accuses Fuller of engaging in criminal conduct both before and after he came on to the bench. The charges include perjury, criminal conspiracy, a criminal attempt to defraud the Retirement System of Alabama, misuse of office as a District Attorney, and an obstruction of his background check by the FBI in connection with the review of his appointment by President Bush to the bench. (I faxed a copy of the affidavit to Fuller’s office and also left a message asking for comment, but received no reply; if Fuller does reply I’ll update this post.)

Weeks’s allegations were transmitted to Noel Hillman, the head of the Public Integrity Section at the Department of Justice, among other recipients. Hillman’s office has responsibility to conduct investigations into allegations concerning wrongdoing by federal judges.

This means that at the time that Fuller was presiding over the prosecution of former Alabama Governor Don E. Siegelman, a prosecution brought by Noel Hillman’s Public Integrity Section, he was or should have been the subject of an investigation by the Public Integrity Section. [Italics in original] * * *

Weeks’s allegations are focused on Fuller’s conduct in connection with “salary spiking” involving two of his employees in the District Attorney’s office. Fuller’s testimony, which Weeks says was contradictory and which changed materially in the course of the matter, was disbelieved both by the RSA and by an Alabama court handling the matter. Weeks calls Fuller’s statements under oath perjured. * * *

Weeks’s affidavit reflects interviews with Fuller’s successor in the district attorney’s office and with senior officials at the RSA, who confirm the allegations against Fuller. “Judge McAliley then said that he had met with RSA officials and that every member on the RSA board believed Mark Fuller had lied and that Fuller had lied under oath.” [Italics in original.]

Weeks notes that after the affidavit was transmitted to the Justice Department, no individual from Noel Hillman’s group ever contacted him to follow up on any of the allegations or to request any of the documentation that was cited in the affidavit.

* * *

2003 Affidavit Raises More Serious Questions About Siegelman Judge, by Scott Horton, October 16, 2007.

Rules Violated:

  1. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  2. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  3. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  4. RULE 8.4 MISCONDUCT

Text and comments of the Alabama Rules of Professional Conduct violated by Mr. Fuller

The immorality of torture leads – inevitably – to prosecutorial misconduct

At Balkinization, Professor David Luban discusses how the adoption of a torture regimen results in this additional unintended consequence: government lawyers are systematically violating “ethics rule[s] forbidding them from speaking with parties who have legal representation without obtaining consent of the party’s lawyer.” Professor Luban explains in greater detail:

This is the “no-contact rule” in the ethics codes. Under existing law, contact forbidden to lawyers is forbidden to their agents and investigators as well. Rather clearly, the Clean Team were doing investigations on behalf of the prosecution, and in fact the Times story [link] quotes a government official who confirms the role that prosecutors played in guiding the Clean Team.

All the Guantanamo detainees are represented by lawyers handling their habeas corpus and Detainee Treatment Act cases. And the Clean Team re-interrogations are poster children for exactly the evil that the no-contact rule was designed to remedy: getting a represented party to make admissions that he would never make if his lawyer had the opportunity to advise him.

* * * [I]n 1998, Congress passed the McDade Amendment, which requires federal prosecutors to abide by state ethics rules, including the no-contact rule. * * * Military lawyers aren’t covered by the McDade Amendement [sic], but their own ethics codes contain the no-contact rule, and require them to follow state bar rules. [Link here to the adopted rules of professional conduct for all 50 states plus Washington, D.C.]

The ABA’s version of the no-contact rule reads: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (State and military rules are similar.)

In the Guantanamo cases, three questions occur. First, is the subject of the representation the same? The Clean Team wants witnesses to talk about 9/11 and who was involved; the habeas lawyers are challenging the legality of their imprisonment. These are not identical legal issues, but the overlap is obvious: both have to do with who the detainee is, who he knows, and what the nature of his involvement with Al Qaeda is, if any. It’s hard to believe that the Clean Team interrogations are not about “the subject of the representation.”

Second, are the prosecutors authorized by law to question represented persons without the consent of their lawyers? As far as I know, no such law exists (do readers have information to the contrary?) And third, were the Gitmo prosecutors authorized to send out the Clean Team by a court order of the military commissions? If so, has it been made public? Revealed to defense counsel? Was there an adversarial hearing over whether such a court order would be proper? I’m fairly confident that the answer to the last set of questions is no. Put it all together, and it looks like the activities of the Clean Team stem from unclean prosecution tactics.

So what rationale do these government lawyers use to justify their actions? Professor Luban explains:

[T]he government does not consider the detainees’ lawyers to actually represent them, because the habeas and DTA lawyers were not assigned by the military commissions Appointing Authority. In an e-mail to me, [Charles] Swift[, who represents Salim Hamdan,] posed the question this way: “When is an attorney not an attorney?” Answer: when the government wants to pretend that the attorney’s client is unrepresented, in order to send the Clean Team in to get information that will avoid all the unpleasantness that torture raises in regimes that purport to respect the rule of law. * * *

Professor Luban correctly concludes:

Admittedly, in the grand scheme of things prosecutorial violations of the no-contact rule don’t have nearly the significance of all the other things wrong with Guantanamo and the military commissions. But the Clean Team and its investigations are part of something that goes much deeper than infractions of the ethics rules: dealing with tortured evidence in a legal system that purports to be civilized. * * *

* * * For years, critics have predicted that – along with all its other evils – torture would make it harder to bring terrorist criminals to justice. Those chickens are now coming home to roost. Small wonder if prosecutors have to cheat on their professional ethics to try to make the stain go away.

The damages caused by the arrogance, recklessness and incompetence of the Bush administration and its lawyers continue to increase. Had enough? File a grievance.

E.M.

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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 .

* * *

[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.”

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:

Failure to Report Unlawful and Unethical Conduct of Texas Attorney Alberto Gonzales

Beginning in January 2001, Ms. Miers served as Assistant to the President and Staff Secretary for President George W. Bush. In 2003, she was appointed Deputy Chief of Staff for Policy. In November 2004, President Bush appointed her to the post of White House Counsel, the chief legal adviser for the Office of the President, succeeding Alberto Gonzales who had held that position during President Bush’s first term and who left that position to become Attorney General of the United States in February 2005.

In each of these positions, Ms. Miers worked closely with Mr. Gonzales, who, like Ms. Miers, is also a member of the Texas Bar. In fulfilling her duties to the President, or subsequent to her employment by the President, Ms. Miers acquired the requisite knowledge of conduct engaged in by Mr. Gonzales that raised, or should have raised, a substantial question as to Mr. Gonzales’ honesty, trustworthiness and fitness as a lawyer. However, Ms. Miers failed to inform the appropriate disciplinary authority as required by the Texas Disciplinary Rules of Professional Conduct. Specifically, Ms. Miers became aware of the following violations of the Texas Disciplinary Rules of Professional Conduct by Mr. Gonzales:

  • His March 2004 attempt, as then-White House Counsel, to coerce the execution of legal documents by then-Attorney General John Ashcroft while Mr. Ashcroft was in intensive care.
  • His false statements to Congress that there was no dissent in the Department of Justice regarding the intelligence program known as the terrorist surveillance program.
  • His attempt to improperly influence Monica Goodling to provide false statements to Congress.
  • His complicity in the violations of the Presidential Records Act by Karl Rove, J. Scott Jennings, Susan Ralston and other White House officials. In a deposition provided on May 10, 2007, Susan Ralston, Karl Rove’s former executive assistant, testified that she and Mr. Rove searched for e-mails on his political accounts in response to requests from two separate investigations. Ms. Ralston stated that in 2001, Mr. Rove was asked to search his political computer in response to a request relating to an investigation involving Enron. She testified that the White House Counsel’s office would have known about these searches “because all of the documents that we collected were then turned over to the White House Counsel’s office.” In addition, Ms. Ralston testified that Mr. Rove searched his RNC e-mail account in response to several subpoenas from Patrick Fitzgerald during the investigation into the leak of the identity of CIA officer Valerie Plame Wilson. She testified that the White House Counsel’s office also knew about these searches and received copies of the search results.
  • His false statements to Congress regarding abuses of the USA Patriot Act by the FBI. In his testimony to the Senate, Mr. Gonzales testified that the FBI had not abused its use of national security letters. However, Mr. Gonzales had, in fact, received at least half a dozen reports of legal or procedural violations in the three months before he made his statement to the Senate Intelligence Committee, according to internal FBI documents released under the Freedom of Information Act.
  • His conflict of interest advising President Bush to shut down a Justice Department inquiry regarding the administration’s warrantless domestic eavesdropping program even though Mr. Gonzales learned that his own conduct would likely be a focus of the investigation.
  • His false statements to Congress regarding his intentions to appoint US Attorneys pursuant to the USA Patriot Act.
  • His false statements to Congress regarding the stated reasons for firing nine (9) US Attorneys even though Ms. Miers was intimately involved in the firing of the US Attorneys and knew his statements were false.

Supporting Links:

See Alberto Gonzales , Grievance Project, October 3, 2007.

Rules Violated:

Text and comments of the Texas Rules of Professional Conduct violated by Ms. Miers