It is well known in legal circles that Eric Holder’s Justice Department has become so politicized, so unprincipled, and so ethically shoddy that Loretta Lynch, President Obama’s appointee to replace Holder, had to assure senators at her confirmation hearing that she was not Eric Holder.
Lynch was properly grilled on her views on immigration enforcement, executive orders, and terrorist prosecutions. But so far no senator has dug deep into some of the most abusive cases that Justice has filed, and asked why lower-case justice hasn’t been done.
One of the most notorious is Justice’s role in California’s “Moonlight Fire,” a conflagration on Labor Day 2007 that burned 20,000 acres of state forest in the Sierra Nevada along with 45,000 acres of federal forest. The California Department of Forestry and Fire Protection decided that Sierra Pacific Industries, a family-owned company that is the nation’s second-largest timber supplier, was responsible for the damage. Government investigators claim the blade of one of the company’s bulldozers hit a rock, creating a spark that started the blaze. Sierra Pacific pointed out clear holes in that theory, but Cal Fire nonetheless fined the timber company $8 million to pay for related costs. Because the fire burned more than 40,000 acres of national forest, the federal government also went after Sierra Pacific; in 2012, after five years of litigation, Sierra Pacific reluctantly agreed to a settlement that entailed paying the feds $4 million and giving Uncle Sam 22,500 acres of forest land.
But since then, there has been discovery in the related state lawsuit, which has uncovered a shocking claim of dereliction of duty: that Justice’s prosecutors “sat on their hands” and allowed fire investigators to frame Sierra Pacific. The possible motive? Sierra had deep pockets, and any settlement would create substantial revenue. In the state’s case, a substantial chunk of the money would go to an off-the-books slush fund run by Cal Fire, in which some of its official investigators had interests.
The misconduct was so egregious that California Superior Court judge Leslie Nichols threw out the state’s case. Last year, he further ruled that the government’s case was “corrupt and tainted. Cal Fire failed to comply with discovery obligations, and its repeated failure was willful.” The judge charged that the state hid key photographs and tried to “steamroll the truth” in order to pin the fire on the company. Investigators lied under oath about what they knew, and federal prosecutors allegedly knew about their perjury and did nothing.” When Sierra Pacific lawyers questioned the bulldozer driver, he denied making a statement about the blaze’s origins, and he couldn’t have properly signed a document given to him by prosecutors because he can’t read. The U.S. Forest Service had evidence that one of its fire spotters may have been high on pot and missed the fire’s start. His supervisor wanted to fire him, but the supervisor’s superiors covered it all up by insisting the spotter get a satisfactory performance rating and stay on the job.
“The misconduct in this case is so pervasive,” Judge Nichols wrote, “that it would serve no purpose to attempt to recite it all here.”
Nichols also didn’t spare the office of California Attorney General Kamala Harris, now a candidate for Barbara Boxer’s U.S. Senate seat and a national Democratic star. Nichols wrote that he can recall “no instance in experience over 47 years as an advocate and a judge, in which the conduct of the Attorney General so thoroughly departed from the high standard it represents, and, in every other instance has exemplified.” Judge Nichols then ordered the state to pay Sierra Pacific a whopping $32 million in damages and expenses. Cal Fire denies any wrongdoing, while the offices of Harris and Governor Jerry Brown aren’t talking.
The Nichols ruling prompted Sierra Pacific to enter federal court, charging fraud, and to demand that its settlement money be returned. Ben Wagner, the U.S. Attorney responsible for the federal case, insists there is no fire behind all the smoke of a legal coverup, but he hasn’t properly explained why Robert Wright, his top assistant in charge of fire litigation, was removed from the Moonlight Fire case after he stated that he believed it was his duty to disclose material seriously damaging to the government’s case. In fact, Wright was removed by his immediate boss, David Shelledy, because he was honest and would not have gone along with the program. Wagner defends his subordinate Shelledy in part by noting that he was recently given an award for distinguished service by Eric Holder. Color me less than impressed.
Another federal prosecutor, Eric Overby, left the Midnight Fire probe in 2011 because he was shocked at the conduct of his colleagues. In Sierra Pacific’s brief he is quoted as saying: “In my entire career, yes, my entire career, I have never seen anything like this. Never.” He says that as he left he told his colleagues: “It’s called the Department of Justice. It’s not called the Department of Revenue.”
Justice’s response to Sierra Pacific’s demand for its money back has been to demand that U.S. District Judge William Shubb order the removal from the case of all of the company’s lawyers who have even read Robert Wright’s sworn declaration, a document that Justice says includes privileged information. Justice says Wright’s whistleblowing is “inexcusable.”
What’s inexcusable is that Justice has ignored the message of a 1935 Supreme Court opinion that ruled that Justice’s interest is not “that it shall win a case, but that Justice shall be done.” In 2013, Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, which includes California, noted that an epidemic of prosecutorial abuse is “abroad in the land”; “Only judges,” he said, “can put a stop it it.”
Not quite right. It should be the responsibility of Loretta Lynch, the likely new attorney general, to address the excesses and ethical breaches in the Justice Department. And it is the responsibility of senators who will vote on her confirmation to go beyond the headline issues of immigration and terrorism and ask her some serious and probing questions about the Moonlight Fire fiasco and other troubling cases on Justice’s plate.
— John Fund is national-affairs columnist for National Review Online and the co-author of Obama’s Enforcer: Eric Holder’s Justice Department (Broadside Books, 2014).