The DoJ Office of Professional Responsibility is a real Roach Motel

John Gibeaut reports at the ABA Journal that the role of the Department of Justice’s Office of Professional Responsibility has descended to a level equivalent to that of a ‘Roach Motel’ and how, as a result, judges are beginning to take the discipline of unethical attorneys into their own hands.  In his lengthy article, Mr. Gibeaut details the ‘dismal history of intentional and inadvertent violations’ by federal prosecutors and the complaints to DoJ OPR made by Judge Mark L. Wolf, Chief Judge for the U.S. District Court for the District of Massachusetts, that yielded woefully inadequate DoJ OPR investigations and slap-on-the-wrist ‘punishments.’  The article begins with the following summary:

The government’s evidence link­ing reputed mob figures Vincent “the Animal” Ferrara and Pasquale “Patsy” Barone to a 1985 murder was pretty thin—an accomplice who escaped prosecution in exchange for testimony against the pair.

But a little over a year after the 1990 racketeering indictments of Ferrara, Barone and six other members of New England’s Patriarca crime family, a federal prosecutor in Boston learned his putative star witness had recanted.

Yet the prosecutor never told defense about the recantation, which he and a detective recorded in writing. Indeed, the defendants didn’t learn of the memos until 2003, when the detective spilled the beans at a hearing on habeas corpus petitions they filed seeking their release from long prison sentences.

Ultimately both went free, Barone in 2003 from a life sentence and Fer­rara in ’05 from a 22-year term. Chief U.S. District Judge Mark L. Wolf, who had imposed both sentences, was forced to cut them short.

The prosecutor, Assistant U.S. Attorney Jeffrey Auerhahn, was investigated by Massachusetts state bar authorities. Wolf dropped a dime on him after learning that Auerhahn’s boss had simply reprimanded him be­hind closed doors. That just wasn’t good enough for Wolf, considering he had to release two defendants re­garded as especially dangerous. Auerhahn still works at the U.S. attor­ney’s office in Boston, pros­ecuting terrorism cases.

But, going where few judges would, Wolf also penned an extraordi­nary series of letters—first to Attor­ney General Alberto R. Gonzales and then to his successor, Michael B. Mukasey—stating his case for stiffer punishment and voicing his frustration with the Justice Department’s secretive Office of Professional Re­spon­sibility, which is supposed to investigate complaints of mis­con­duct by prosecutors and law enforcement officials who work for the department.

“The department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors,” Wolf wrote in a January 2008 letter to Mukasey.

Wolf, appointed by President Ronald Reagan in 1985, warned Mukasey that more jurists would begin punishing prosecutors behaving badly if the OPR didn’t.

“I anticipate this will become much more common unless the department’s performance in disciplinary matters improves significantly,” the judge cautioned.

Wolf’s stinging rebuke came not only from a veteran jurist, but from someone who as a young prosecutor helped set in motion the department’s disciplinary machinery in the aftermath of the Watergate scandal.

“As one who took pride in assisting Attorney General Edward Levi in establishing OPR more than 30 years ago,” Wolf told Mukasey, “I sadly doubt it is now capable of serving its intended purpose.”

Critics historically have regarded the OPR as inept at policing its own. Wolf’s exchanges with the attorney general also come amid calls for more transparency.

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

The entire article is well worth reading.

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

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

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

My third e-mail to Ms. Field:

Andrea Bear Field
DC Office Managing Partner
Hunton & Williams

cc: Kyle D. Sampson , Partner
Hunton & Williams

Dear Ms. Field,

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

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

Professor Marty Lederman succinctly summarizes this matter at Balkinization:

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

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

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

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

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

Thank you for your attention to this matter.

E.M./The Grievance Project

*Section C of the DOJ OPR/OIG report:

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

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

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

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

1. Misleading Statements to the White House

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

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

2. Misleading Statements to Congress

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

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

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

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

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

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

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

3. Misleading Department Officials

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

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

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

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

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

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

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

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

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

Report, pp. 346-351.

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George J. Terwilliger III replies to my e-mail. Sort of.

In my e-mail to George J. Terwilliger III, I offered Mr. Gonzales and Mr. Terwilliger the opportunity to respond to my allegations that Mr. Gonzales has engaged in conduct which brings into question his fitness to practice law. Mr. Terwilliger has taken the opportunity to reply to my post:*

WASHINGTON, Sept. 29 /PRNewswire-USNewswire/ — “The report confirms that Judge Gonzales provided Congress with a truthful account of his knowledge of and involvement in the dismissal of US attorneys.

“The report makes clear that Judge Gonzales engaged in no wrongful or improper conduct while recognizing, as he has acknowledged many times, that the process for evaluating US attorney performance in this instance was flawed,” Terwilliger said.

“In our submission to the Department on this matter, we noted that the OIG is without jurisdiction to second guess presidential personnel decisions. Unfortunately, the report spends hundreds of pages doing just that, but nonetheless reports no evidence of an improper motivation or action in removing these US attorneys. It seems rather odd, then, that rather than bring the investigation to a close, the Department would escalate the matter to the attention of a prosecutor when its own policies require preliminary evidence of a criminal violation before initiating a criminal investigation.”

“My family and I are glad to have the investigation of my conduct in this matter behind us and we look forward to moving on to new challenges,” Judge Gonzales said.

Related links: http://www.GonzalesFacts.com

SOURCE George J. Terwilliger, III

Take a few moments to read Mr. Terwilliger’s submission to the Department. This is a good example of how to defend a client against allegations of illegal conduct when that client is, in fact, demonstrably guilty of those allegations. After 41 pages of smoke, mirrors and legal sleight of hand in his submission to the Department, Mr. Terwilliger is only able to reach these conclusions:

The Department’s flawed response to public criticism of the removal of certain U.S. Attorneys tended to obscure the unassailable conclusion that all U.S. Attorneys serve at the pleasure of the President and, accordingly, may be removed by the President for any reason, or no reason at all. Because this controversy has offered ample evidence of the efficacy of the available political checks on U.S. Attorney removals perceived to be improper, and because there is no evidence of “improper reasons” for any of the recommended removals, there is no basis to conclude that it is necessary to alter the current balance of political power whereby U.S. Attorneys are nominated by the President, confirmed with the advice and consent of the Senate, and subject to removal by the President at any time.

The established balance of political power renders immaterial the underlying reasons for the removal of individual U.S. Attorneys, absent credible evidence of removal to improperly influence the conduct of a case. Instead, the OIG and OPR review could, we respectfully submit, provide the most benefit to the Department by examining the manner in which the Department responded to public criticism of the firings, specifically: (1) the manner in which information was shared within the Department; (2) the protocols for the drafting and submitting of Department statements to members of Congress, congressional committees, and the media; and (3) the manner in which senior Department officials were prepared for sworn testimony. Failures in all of these areas severely handicapped the Department’s ability to rebut allegations of politicization, and besmirched not only the reputations of political employees, but also the reputations of the many extraordinary career employees that continue to be the mainstay of the Department’s effectiveness in discharging the Department’s considerable responsibilities to the American people.

Most importantly, the OIG and OPR review provides an opportunity to reassure Congress and the public that there is no evidence that the U.S. Attorneys in question were removed in order to improperly allow partisan political considerations to compromise the independence of U.S. Attorneys in the execution of their responsibility to secure the fair administration of justice on matters within their purview.

(Footnotes omitted.)

According to Mr. Terwilliger, there is no evidence that Mr. Gonzales committed any improper act. Therefore, the OPR and OIG investigations should have, “examin[ed] the manner in which the Department responded to public criticism of the firings” which “could, [h]e respectfully submit, provide the most benefit to the Department.” Mr. Terwilliger’s argument distills down to this: “There’s nothing to see here. Go review internal DoJ office procedures instead. Then you can publicly announce that there’s nothing to see here.”

The link to GonzalesFacts.com that Mr. Terwilliger provides in his statement is also worth reading. In addition to his most recent statement, the What’s New page contains numerous other posts and statements. Interestingly, the media contact for GonzalesFacts.com is Robert H. Bork, Jr. You can also make a donation to Mr. Gonzales’ legal defense here – but please don’t.

*Well, sort of. Mr. Terwilliger’s response is via a link that is added to my post by a WordPress feature that automatically generates and embeds links that are ‘possibly related’ to the original post.

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Michael J. Elston

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

Personal Information:

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

Bar Information: Illinois

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

Grievance Information: Illinois

Bar Information: Kansas

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

Grievance Information: Kansas

Bar Information: Missouri

Grievance Information: Missouri

Bar Information: Virginia

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

Grievance Information: Virginia

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

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

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

* * *

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

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

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

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

* * *

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

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

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

Illinois Rules of Professional Conduct:

Kansas Rules of Professional Conduct

Missouri Rules of Professional Conduct

Virginia Rules of Professional Conduct

File a grievance against Mr. Elston

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

“And the crime would be?”

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

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

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

“With regard to?”

“With regard to possible obstruction of justice.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Allegation 2:

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

* * *

IV. Conclusions and Recommendations

* * *

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

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

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

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

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

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

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

(Emphasis supplied.)

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

Some good news?

In his 1,000th column at White House Watch, Dan Froomkin quotes from Washington Post Staff Writer Carrie Johnson’s article that the Department of Justice Office of Professional Responsibility notified unspecified bar associations of the findings of wrongdoing in An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General:

Separately, an official in the Justice Department Office of Professional Responsibility said the unit has notified bar associations of its findings against five lawyers singled out in reports thus far.

The elation I initially felt reading the portion of Ms. Johnson’s article that Mr. Froomkin excerpted was tempered when I read the complete paragraph:

Separately, an official in the Justice Department Office of Professional Responsibility said the unit has notified bar associations of its findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica M. Goodling; former attorney general chief of staff D. Kyle Sampson; and former deputy attorney general chief of staff Michael D. Elston. Two lower-ranking officials, Esther Slater McDonald and John Nowacki, also were cited in the previous reports and their bar associations were notified, the official said. (Emphasis supplied.)

First, either Ms. Johnson did not report or her source did not specify which bar associations that OPR notified of the various allegations. She also didn’t specify whether each bar association in which these attorneys are admitted was notified of the findings. For example, Michael J. Elston , a partner at McGuireWoods LLP , is a member of the Illinois, Kansas, Missouri and Virginia Bar Associations. Were each of these bar associations ‘notified’ of Mr. Elston’s conduct?

Second, and more importantly, OPR did not file grievance complaints against any of these five (5) attorneys. As reported by Ms. Johnson, OPR only “notified bar associations of its findings.” This is a distinction with a difference: mere ‘notification’ does not initiate a grievance review process. The effect of OPR’s notification, as Ms. Johnson notes, is that the bar associations “could initiate their own disciplinary proceedings.” This is no different than if a bar association employee had simply learned about An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General online or in a newspaper because, just as with the OPR notification, that bar association also “could initiate their own disciplinary proceedings.” So, unless and until one of these bar associations actually initiates a grievance review, OPR’s ‘notification’ has done nothing more than provide some positive press.

Second, either Ms. Johnson did not report or her source did not specify which bar associations OPR notified of the various allegations and whether each bar association in which one of these attorneys is admitted was notified of the findings. For example, Michael J. Elston , a partner at McGuireWoods LLP , is a member of the Illinois, Kansas, Missouri and Virginia Bar Associations. Were each of these bar associations ‘notified’ of Mr. Elston’s conduct?

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