Bench Memos

The Next Attorney General Should Make Sure This Never Happens Again

Nobody knows the heavy hand of government better than its targets. Its awesome power and resources must only be deployed with honor and integrity. Unfortunately, the current administration has often elevated political expedience above principle. As President Obama’s nominee for attorney general, Ms. Loretta Lynch, goes to Capitol Hill, she should be required to answer how she plans to ensure that DOJ lawyers resist the temptation to abuse their dominant position.

Case in point. Kathleen Parker’s column in the Washington Post today describes a horrific series of abuses by state and federal prosecutors in litigation against defendants selected apparently for their deep pockets. Here’s the short version, as described by the trial court last February.

The “Moonlight Fire” broke out in 2007, burning approximately 65,000 acres over several weeks. In August 2009, the California Department of Forestry and Fire Protection (or “Cal Fire,” as it’s called) then brought suit in state court along with private plaintiffs against several corporate and individual defendants, including a foresting company and a mining company that were operating in the area. A parallel federal lawsuit was initiated around the same time.

After the state trial court dismissed several of the plaintiffs’ claims because of proof problems, the parties briefed the question of attorneys’ fees while the plaintiffs appealed the dismissals. During the briefing, however, the defendants notified the court that they had learned of newly discovered evidence, not through discovery responses from the plaintiffs, but independently through what the trial court called a “chance issuance” of an audit report of the special fund being used for various wildfire-related activities. Upon investigation, Cal Fire’s attorneys had to admit that they had inadvertently failed to produce more than 5,000 pages of responsive documents about that fund, including highly probative information about the plaintiffs’ intent.

The trial court ultimately found that during the litigation, Cal Fire and U.S. Forest Service investigators and their lawyers had engaged in “egregious and reprehensible” conduct, including “pervasive discovery abuses” that had “severely prejudiced” the defendants. That had occurred both in a manner “akin to spoliation,” through actual spoliation, and by investigators who “falsified” various statements made in discovery, ”attempted to steamroll the truth,” “betrayed their oath,” and on and on.

According to the Court, and despite their heightened responsibility to be fair and impartial, Cal Fire’s lawyers made it worse by failing to put a stop to it. The trial court therefore ordered Cal Fire to pay the defendants more than $30 million in attorneys fees and costs. Ouch.

It now seems that similar problems plagued the federal lawsuit, which was initiated in close cooperation with Cal Fire’s lawsuit. According to a filing by the defendants, two Assistant U.S. Attorneys who worked on the litigation for the United States have submitted devastating sworn declarations relating their concerns about misconduct in the office where the Moonlight Fire litigation was taking place. One of those AUSAs stated that he had been removed as lead counsel for the federal Moonlight Fire litigation after he resisted internal pressure to withhold information about other wildfire matters, conduct which he considered unethical (and the Department of Justice’s ethics advisory hotline apparently agreed with him).

According to the defendants, the resulting collaboration between the federal and state prosecutors tainted the ultimate settlement agreement, which was predicated on the nonexistence of information that Cal Fire was ultimately found to have withheld. As such, they argue, the settlement constitutes a fraud on the court.

Every government lawyer, especially federal prosecutors, must understand that as attorneys who represent the people’s government, they have a higher duty. Justice does not consist simply in winning their case, but in doing justice under law.

There’s an inscription outside the U.S. Attorney General’s office in Washington that reads: “The United States wins its point whenever justice is done its citizens in the courts.” Senators should ask Ms. Lynch whether she thinks that justice was done in this case, and if not, how she would fix the problem as Attorney General.

The cases in question are California Dept. of Forestry v. Howell, et al., GN CV09-00205 (Cal. Sup. Ct.) and United States v. Sierra Pacific Industries, et al., 2:09-CV-02445 (E.D. Cal.).

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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