ACTION ALERT: Support the Bar Ethics Grievance Filed Against Sen. Vitter

The Louisiana State Bar Association has finally received an ethics complaint regarding the allegations, many of which he has admitted, that Sen. David Vitter engaged in multiple instances of adulterous and criminal conduct.  Charlie Melancon, who is challenging Sen. Vitter in Louisiana’s 2010 U.S. Senate race, notes his frustration with the lack of accountability Sen. Vitter has faced to date for this conduct as well as the hope that the complaint will force at least a minimal level of accountability:

…[W]hat David Vitter confessed to wasn’t just a “serious sin,” it was likely a crime. And so far Vitter hasn’t been charged with anything. He’s still got his law license. He’s still a U.S. Senator.

A man’s sin is his own, and with this complaint Vitter may finally have to answer for his actions. Louisiana Politics: CREW, Vitter, Melancon, Jindal, Stephen Sabludowsky, September 30, 2009.

The complaint (with exhibits) was filed by Melanie Sloan, Executive Director of Citizens for Responsibility and Ethics in Washington (CREW), and charges that:

…Louisiana Rule of Professional Conduct 8.4(b) provides it is professional conduct for a lawyer to “commit a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”  By his own admission, Sen. Vitter solicited for prostitution in the District of Columbia – apparently on numerous violations – and the evidence strongly suggests he had a pattern of committing the same violations in Louisiana.  Because soliciting prostitutes is a crime, Sen. Vitter clearly violated Rule 8.4(b).  Sen. Vitter’s conduct is all the more egregious because he is an elected official, who has sworn an oath to uphold the law of the United States.

In the CREW press release, Ms. Sloan notes the preferential treatment Sen. Vitter has received so far in response to his admission of multiple criminal acts, especially when compared to the prostitutes employed by the same ‘madam’ from whom Sen. Vitter solicited prostitutes:

13 former prostitutes were forced to testify at the trial of the DC Madam, who committed suicide shortly after her conviction. Sloan noted that one, a former Navy supply officer and Naval Academy instructor, lost her job because the Navy requires those who serve “to adhere to a standard of conduct that reflects the Navy’s values of honor, courage and commitment.” Sloan said, “It is a shame the Senate has no such standard of conduct. It will be interesting to see what sort of standard the Louisiana Disciplinary Board chooses to apply.” [Emphasis supplied.]

It will, indeed, be interesting to see what standards the Disciplinary Counsel will choose to apply to the investigation of this complaint.  In the meantime, it is interesting to review and understand the standards that the Disciplinary Counsel is mandated to apply:

The disciplinary counsel shall evaluate all information coming to his or her attention by complaint or from other sources alleging lawyer misconduct or incapacity. If the lawyer is not subject to the jurisdiction of the court, the matter shall be referred to the appropriate entity in any jurisdiction in which the lawyer is admitted. If the information, if true, would not constitute misconduct or incapacity, the matter shall be dismissed. If the lawyer is subject to the jurisdiction of the court and the information alleges facts which, if true, would constitute misconduct or incapacity, counsel shall conduct an investigation unless in the discretion of disciplinary counsel the matter qualifies for referral to the Practice Assistance and Improvement Program.  [Emphasis supplied.]  Section 11, Procedure for Disciplinary Proceedings, ¶A, Screening, Louisiana Rules for Lawyer Disciplinary Enforcement.

It is also critical to understand that, in addition to any legal and fact-based defenses that may be available to him, Sen. Vitter will continue to argue – loudly – that this complaint is just another example of political gamesmanship and that it should be summarily dismissed as such.  Accordingly, this complaint is as likely, if not more likely, to be Roach Moteled – that is, it’s checked in to the Office of the Disciplinary Counsel but is never checked out – than it is to receive the proper attention and legitimate investigation it deserves.

Help this complaint get the attention it deserves by contacting the LADB, Office of Disciplinary Counsel and LSBA to respectfully demand that the Office of the Disciplinary Counsel fully comply with the Louisiana Rules for Lawyer Disciplinary Enforcement:

The Louisiana Attorney Disciplinary Board
2800 Veterans Memorial Boulevard, Suite 310
Metairie, LA 70002
Tel: (504) 834-1488 or (800) 489-8411
Fax: (504) 834-1449
Email: ladb@ladb.org

Office of the Disciplinary Counsel
4000 S. Sherwood Forest Boulevard, Suite 607
Baton Rouge, LA 70816
Tel: (225) 293-3900 or (800) 326-8022
Fax: (225) 293-3300

The Louisiana State Bar Association
Kim H. Boyle, President
365 Canal Street, Suite 2000
New Orleans, LA 70130-6534
Tel: (504) 566-1311
Direct line: (504) 679-5790
Fax: (504) 568-9130
Email: boylek@phelps.com

In what (I hope) is an encouraging sign that this investigation is, in fact, being taken seriously, the Louisiana Supreme Court visited my posts regarding the status of Sen. Vitter’s membership in the Louisiana State Bar Association the day after the complaint was filed.

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Sen. Vitter, why DID you lose your license to practice law?

Update on 03-30-09: Senator Vitter is an inactive member of the LSBA.

As I wrote last week, I began researching whether Senator David Vitter’s adulterous and criminal conduct violated the Louisiana Rules of Professional Conduct. A check of the Louisiana State Bar Association Membership Directory Active Member Search and Martindale.com, however, yielded no results for Senator David Bruce Vitter. I was able to confirm, from publicly-available sources, that Sen. Vitter had received his law degree from Tulane University, had been admitted to the Louisiana State Bar Association and had actually practiced law. Additional research by Oxdown Gazette readers dmac and cinnamonape yielded nothing regarding how Senator Vitter lost his license to practice law although cinnamonape found this 2001 press release from Southeastern Louisiana University which confirms that “[w]hile serving in the state legislature, Vitter was a business attorney as well as an adjunct law professor at Tulane and Loyola Universities. He is a graduate of the Tulane University School of Law….” [my emphasis]

I also requested information from Senator Vitter – via his webmail service – confirming whether he is “licensed to practice law in any jurisdiction and whether [he is] a member of any bar association.” Although someone from Senator Vitter’s office has visited The Grievance Project several times since I sent my webmail:

156.33.35.41 (U.S. Senate Sergeant At Arms)
District Of Columbia, Washington, United States
March 17th 2009 03:45:33 PM
grievanceproject.wordpress.com/2009/03/17/is-sen-david-vitter-licensed-to-practice-law/

156.33.35.50 (U.S. Senate Sergeant At Arms)
District Of Columbia, Washington, United States
March 17th 2009 03:43:04 PM
grievanceproject.wordpress.com/2009/03/17/is-sen-david-vitter-licensed-to-practice-law/

156.33.35.86 (U.S. Senate Sergeant At Arms)
District Of Columbia, Washington, United States
March 17th 2009 03:30:09 PM
grievanceproject.wordpress.com/2009/03/17/is-sen-david-vitter-licensed-to-practice-law/

156.33.35.45 (U.S. Senate Sergeant At Arms)
District Of Columbia, Washington, United States
March 17th 2009 03:17:51 PM
grievanceproject.wordpress.com/2009/03/17/is-sen-david-vitter-licensed-to-practice-law/
March 17th 2009 03:18:10 PM
grievanceproject.wordpress.com/2009/03/17/is-sen-david-vitter-licensed-to-practice-law/

156.33.35.28 (U.S. Senate Sergeant At Arms)
District Of Columbia, Washington, United States
March 18th 2009 04:52:51 PM
grievanceproject.wordpress.com/2009/03/17/is-sen-david-vitter-licensed-to-practice-law/

I have yet to receive a response to my initial inquiry. Accordingly, I have sent this followup webmail to Senator Vitter:

Senator Vitter,

Because I could find no bar association in which you are admitted, I requested last week – via your webmail service – that you identify each bar association in which you are admitted to practice law. To date, I have not received a reply to my request.

It is now clear that you graduated with a law degree from Tulane University, that you were admitted to the Louisiana bar association and that you then practiced law in Louisiana. [1] It is also clear that you are no longer licensed to practice law in nearly every state, including Louisiana. [2] Additional research conducted both by myself and other readers of my post has failed both to provide any evidence to confirm that you are currently admitted to practice law as well as to yield any information that explains why you are no longer licensed to practice law. As a result, what is not clear is why you are no longer admitted to the Louisiana State Bar Association .

Accordingly, I am sending this second correspondence to again request you to identify each bar association to which you have ever been admitted. Please also include both the date(s) on which you were admitted as well as the date(s) on which any license to practice law was lost or revoked. Please also identify the conduct in which you engaged (or were alleged to have engaged) that resulted in the loss or revocation of any license(s) to practice law that you have previously held. In short, please explain why you are no longer admitted to practice law and the circumstances that led to the loss of your license(s) to practice law.

I look forward to your reply.

E.M.

[1] According to SourceWatch , Senator Vitter “was born May 3, 1961 in New Orleans, … educated at Harvard University, Oxford University (and was a Rhodes Scholar), and Tulane University, and was a lawyer and member of the Louisiana House of Representatives before entering the House.” [my emphasis] See: http://www.sourcewatch.org/index.php?title=David_Vitter .

According to Wikipedia, you were “a lawyer and a member of the Louisiana House of Representatives from 1992 to 1999, when [you] entered the U.S. House.” [my emphasis] See: http://en.wikipedia.org/wiki/David_Vitter

From this press release from Southeastern Louisiana University announcing then-U.S. Representative Vitter as the keynote speaker at SLU’s 2001 commencement program: “While serving in the state legislature, Vitter was a business attorney as well as an adjunct law professor at Tulane and Loyola Universities. He is a graduate of the Tulane University School of Law and Harvard University and earned a history and economics degree with highest honors from Oxford University as a Rhodes Scholar. [my emphasis] See: http://www2.selu.edu/NewsEvents/PublicInfoOffice/vitter-sp01commencement.htm

According to the Biographical Directory of the United States Congress, Senator Vitter received his law degree from Tulane University School of Law in 1988. See: http://bioguide.congress.gov/scripts/biodisplay.pl?index=V000127

[2] See: http://bioguide.congress.gov/scripts/biodisplay.pl?index=V000127

and

http://vitter.senate.gov/

Crossposted at Oxdown Gazette.

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Is Sen. David Vitter licensed to practice law?

Update on 03-30-09: Senator Vitter is an inactive member of the LSBA.

Because Senator David Vitter (R-LA) keeps showing up like a bad penny, I decided to research whether his various criminal activities violated any professional conduct rules of any bar associations to which he might be admitted. I first checked the Louisiana State Bar Association Membership Directory Active Member Search but the search yielded the following result: No matches have been found! I then searched Martindale.com for Sen. Vitter and, again, the search provided no result.

I thought at this point that Senator Vitter may not be an attorney, but according to SourceWatch [emphasis supplied]:

[Sen. Vitter] was born May 3, 1961 in New Orleans, was educated at Harvard University, Oxford University (and was a Rhodes Scholar), and Tulane University, and was a lawyer and member of the Louisiana House of Representatives before entering the House.

Sen. Vitter’s Wikipedia entry also states that he “was a lawyer and a member of the Louisiana House of Representatives from 1992 to 1999, when he entered the U.S. House.” [emphasis supplied.] However, Sen. Vitter’s Senate website biography page does not mention his Tulane University law degree or any prior work experience as an attorney. Further research has failed to confirm the Senator’s admission to any bar association in the United States.*

Via his webmail service, I have asked Sen. Vitter to confirm which, if any, bar associations he is now, or has ever been, a member:

Sen. Vitter,

I have read in several places that you went to Tulane law school and worked as an attorney. However, I have been unable to confirm that you are licensed to practice law or that you are admitted to any state or the DC bars. Please advise if you are licensed to practice law in any jurisdiction and whether you’re a member of any bar association.

Thank you,
E.M.

I’ll update this post if I receive a response from Sen. Vitter. In the meantime, if you have any information about whether Sen. Vitter is licensed to practice law and, if he is, the jurisdiction(s) in which he is admitted to practice, please contact me at:

  • grievanceproject AT gmail DOT com.

Thanks,

E.M./The Grievance Project

Crossposted at Oxdown Gazette.

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*I searched Martindale.com for Sen. Vitter but the search provided no result for the Senator.

I also searched the online directories for the following states plus Washington, D.C. (I have compiled the links to these online member directories – as well as all links for the state bar home pages and attorney grievance information, rules of professional conduct and grievance forms – for the 50 states and DC here.) Interestingly, instead of clicking a button to Search, Start Search or Find A Lawyer, I had to click the word ‘Execute’ to run an online attorney search in North Dakota. Following are the results returned for the searches I conducted:

Alabama Membership Directory: Your search found 0 matches.

Alaska Bar Association Membership Directory: [No result.]

State Bar of Arizona – Find a Lawyer: No Records Found
State Bar of Arizona – Member Finder: Search Results: 0 Attorney Found

Arkansas Licensed Attorney Search: 0 record(s)

California Attorney/Member Search: Your search for vitter returned no results.

Colorado Attorney Status and Disciplinary History: No matches found!
Colorado Attorney Disciplinary (only) History: No matches found!

Connecticut Attorney/Firm Inquiry: No Records Found for Attorney*/Firm Name: vitter

Delaware: No online search available.

Florida Find a Lawyer: Your search yielded no results. Please try again.

State Bar of Georgia Member Directory Search: 0 record(s)

Hawai’i: Authorized to Practice Law: [No result.]
Hawai’i: Not Authorized to Practice Law: [No result.]
Hawai’i: Not Authorized to Practice Law Except Pro Bono Cases: [No result.]
Hawai’i: Pro Hac Vice: [No result.]
Hawai’i: HSBA Member Directory: [No result.]

Idaho Attorney Roster Search: No records returned.

Illinois Lawyer Search: [No result.]

Indiana Supreme Court Roll of Attorneys: No Records Found

Iowa Judicial Branch Search for Lawyers Licensed in Iowa: No Records Exist

Kansas: No online search available.

Kentucky Lawyer Locator: Sorry, no records matched your criteria.

Louisiana State Bar Association Membership Directory Active Member Search: No matches have been found!

Maine Attorney Information Search: No records selected

Maryland Judiciary Attorney Listing: NO RECORDS MATCHED THE SEARCH CRITERIA

Massachusetts Board of Bar Overseers Attorney Search by Name or City: [No result.]

State Bar of Michigan Member Directory: No members found.

Minnesota Lawyer Public Discipline Search: [No result.]
Minnesota Judicial Branch Lawyer Search: No records found…

Mississippi Attorney Directory: No results found.

Official Missouri Directory of Lawyers: No results found.

Montana: No online search available.

Nebraska Lawyer Search: Your search returned 0 results.

Nevada Find-A-Lawyer: No records returned.

New Hampshire Member Directory for HHBA members – Requires password: No search conducted.
New Hampshire Member Directory for the Public – Under construction: No search conducted.

New Jersey: No general member directory available
New Jersey: Disciplinary Histories from 1990 through last calendar year: [No result.]

State Bar of New Mexico Attorney/Firm_Finder: Your search has returned no results.

New York Attorney Search: Your search returned no results.

North Carolina State Bar Member Directory: Your search came back empty

North Dakota Lawyers Directory: No documents matched the query

Supreme Court of Ohio Attorney Information Search: 0 Attorneys Found

Oklahoma Bar Association Attorney Search: 0 Attorneys Found

Oregon State Bar Membership Directory: No match found

Pennsylvania Attorney Inquiry Search: 0 records found

Rhode Island Member Directory Search: There are no members with that information.

South Carolina Bar Member Directory: Sorry, there were no results.

South Dakota Lawyer Referral: [No result.]

Tennessee Bar Association Attorney Search: Sorry, no records found.
Online Attorney Directory of the Board of Professional Responsibility: No records were found matching your constraints.

Texas Member Directory: Your search has returned no result.

Utah State Bar Attorney & Associate Member Directory Service: [No result.]

Vermont: No online search available.

Virginia State Bar (Voluntary) Member Directory: Site temporarily down. No search conducted.
Virginia Attorneys Without Malpractice: No matches found.
Virginia State Bar Disciplined Attorneys : No matches found.

Washington State Bar Association (Voluntary) Lawyer Directory: Your search returned no results.

D.C. Bar Member Search: Records matching your search criteria: 0

West Virginia State Bar Association Member Search: [No result.]

State Bar of Wisconsin Lawyer Directory Search: Sorry, no attorney data matches your search …

Wyoming State Bar Membership Directory: Your search found no records.

E-mail to Matthew Garrett Davis

Crossposted here at Oxdown Gazette.

Matthew Garrett Davis
Witte Law Offices
119 E Kalamazoo St.
Lansing, MI 48933
Phone: (517) 281-9374
Fax: (517) 485-0187
foster5701@hotmail.com

Mr. Davis,

Please accept this e-mail as an offer to reply to criticisms leveled against you as a result of the complaint you filed on behalf James Carabelli against the Center for Independent Media, the Michigan Messenger, Eartha J. Melzer, Jefferson Morley and David S. Bennahum. As I’m sure you knew it would, the litigation you filed has generated a fair share of publicity.

On September 17, 2008, Rachel Breitman reported in The AmLaw Daily that the Obama campaign filed class action litigation on behalf of “three county residents whose homes are undergoing foreclosure” against the Macomb County Republican Party. Ms. Breitman also reported that: response to this class action you:

Matthew Davis of Witte Law Offices in Lansing responded to the Obama suit Wednesday by releasing a letter addressed to the Center for Independent Media on behalf of [Macomb County Republican Party Chairman James] Carabelli and the state party threatening a countersuit if the Messenger’s story is not retracted within seven days.

“Mr. Carabelli has said that the quote attributed to him was fabricated by the reporter who interviewed him,” Bill Nowling, communications director for the Michigan Republican Party, told The Am Law Daily. “This is a page right out of the Democrats’ playbook of tricks.”

But the Center for Independent Media was nonplussed by the threatened libel action, saying that this was only a tactic to distract from the Obama campaign’s claim.

“We still have received no letter from the Michigan Party Republicans at this point, but we stand by our story,” said David Bennahum, the center’s chief executive officer. The publication is represented by John Pomeranz, a partner at Harmon, Curran, Spielberg & Eisenberg in Washington. “No threatened suit can change the facts.” [Emphasis supplied.]

Because the Center for Independent Media did not retract the story, you followed through with the intentions stated in your demand letter and filed Mr. Carabelli’s lawsuit claiming both negligent and malicious defamation. Kate Klonick, Who’s Paying the Lawyer for the Michigan GOP Official?, TPMMuckraker, October 3, 2008.

In reviewing the news of this matter, Marcy Wheeler at emptywheel alleges the litigation you filed is a SLAPP* suit:

By all appearances (particularly given the confidence MM has in their story), this is a SLAPP suit designed to either cow MM, or the larger CIM organization, which has outlets in key swing states: Minnesota, Colorado, Iowa, New Mexico, and Washington (and employes [sic] Spencer Ackerman in their DC Independent site).

According to Professors George W. Pring and Penelope Canan of the University of Denver, SLAPP suits generally have four (4) criteria:

“[SLAPPs] (1) involve communications made to influence a government action or outcome, (2) which result in civil lawsuits (complaints, counterclaims, or cross-claims), (3) filed against non-governmental individuals or groups (4) on a substantive issue of some public interest or social significance.”

Under the circumstances as I understand them, I tend to agree with Ms. Wheeler. Please note, however, that I’ve been unable to find a copy of the complaint online, including at the Macomb County Clerk website. Accordingly, I haven’t had a chance to review the specific allegations contained in the complaint. With that caveat, however, it does appear that the litigation you filed on behalf of Mr. Carabelli is, in fact, a SLAPP suit:

  1. The subject of the specific reporting by Ms. Melzer is the stated intentions of the Macomb County Republican Party to challenge any Macomb County voter whose home is in foreclosure and to influence the Macomb County Supervisor of Elections into accepting these challenges as legitimate; s/counts any challenge(s) to any Macomb County voter whose home is in foreclosure; – as well as the Michigan Messenger, generally
  2. The reporting has resulted in civil litigation;
  3. The litigation is filed against non-governmental individuals and groups: the Center for Independent Media, the Michigan Messenger, Eartha J. Melzer, Jefferson Morley and David S. Bennahum; and
  4. The subject of the litigation – the voting rights of Macomb County residents – is clearly a substantive issue of some public interest or social significance.

First, I would appreciate a copy of your demand letter to the Center for Independent Media, any reply you received to that letter and a copy of the complaint so I can better understand and evaluate this matter.

Second, the accusation that this lawsuit is a SLAPP suit necessarily infers that you are in violation of Rule 3.1, Meritorious Claims and Contentions, Michigan Rules of Professional Conduct, which states that:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. A lawyer may offer a good-faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may so defend the proceeding as to require that every element of the case be established. [Emphasis supplied.]

Comments to Rule 3.1 state, in part, that:

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person. Likewise, the action is frivolous if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law. [Emphasis supplied.]

Did you consider Rule 3.1 and the comments before filing this suit? If so, how did you conclude that the litigation was not filed primarily for the purpose of delay? What is the reason, if not for the primary benefit of harassing the defendants, that you advised your client to litigate against media publications, reporters and other individuals instead of intervening in the Obama campaign class action lawsuit when both lawsuits are based on the same statements allegedly made by Mr. Carabelli? What actionable damages has Mr. Carabelli suffered as a result of the publication of Ms. Melzer’s article. When was the last time you read Rule 3.1 and the comments to the rule?

Third, in determining the standard to apply in determining whether a lawsuit is frivolous or not pursuant to MRPC 3.1, Michigan Ethics Opinion R-009 (October 26, 1990) considered, inter alia, the Michigan statute which taxes costs for frivolous claims, MCR 2.625(A)(2), which defines frivolous:

“(a) ‘Frivolous’ means that at least 1 of the following conditions is met:

“(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarass, or injure the prevailing party.

“(ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.

“(iii) The party’s legal position was devoid of arguable legal merit.” [Emphasis supplied.]

Michigan Ethics Opinion R-009 further states:

Two standards have developed over the years regarding frivolous claims: one is a subjective test which asks whether this lawyer knew that the client’s case was without merit; and, the other is an objective test which asks whether a reasonable lawyer would have known that the case was without merit.

Although MRPC 3.1 does not specifically identify the nature of the investigation the lawyer should undertake or which of the two tests it adopts, this Committee has held in previous opinions that the objective test of a “disinterested lawyer” should be used.

* * *

The objective standard requires the lawyer to inquire into all facts presented by the client which are, for instance, contradicted by readily available evidence. Refutable or contradictory evidence must be investigated by the lawyer to ascertain the validity of the client’s claim.

Were you aware of Michigan Ethics Opinion R-009 and the comments before filing this suit? If not, why didn’t you conduct any research into your ethical obligations regarding this matter? If you were aware of the opinion, and considering that there is evidence contradictory to your client’s claims, what investigation of these claims did you conduct prior to filing this suit, as required by Michigan Ethics Opinion R-009?

Fourth, have you represented any other plaintiff or defendant in any other litigation or matter in which you have been accused of engaging in SLAPP tactics?

Thank you for your attention to this matter. I look forward to your response.

E.M./The Grievance Project

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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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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.