Bench Memos

Will Ms. Lynch Do the Unpleasant Parts of the Job?

This week, Loretta Lynch appeared before the Senate Judiciary Committee to audition for a role as the most powerful lawyer in the country. But as Uncle Ben admonished Peter Parker in Spider-Man, “With great power comes great responsibility.”

Is Ms. Lynch ready for the Attorney General’s least pleasant responsibilities? As the head of the Department of Justice, the Attorney General oversees the largest law-enforcement agency in the country. If confirmed, Ms. Lynch will not be able to dodge responsibility for upholding the professional standards of lawyers who represent the government in court.

Although the vast majority of government lawyers obey the law and follow the rules, the small number who don’t can do significant damage by misusing federal resources.

Case in point. Back in 2007, a massive wildfire (now called the Moonlight Fire) California broke out in Plumas County, California, ultimately burning tens of thousands of publicly-accessible forestland, including some federally-owned land. The California state agency known as Cal Fire extinguished the fire and worked with the U.S. Forest Service to investigate its cause.

These two agencies ultimately blamed logging company Sierra Pacific, which had been working on some of the land, claiming that a Sierra Pacific bulldozer sparked the Moonlight Fire after hitting a rock. Cal Fire and the federal government then sued Sierra Pacific for nearly $1 billion.

There was one tiny problem: the investigators didn’t really know that Sierra Pacific was responsible. What the investigators did know, however, was that the company had deep pockets.

So, the judge overseeing the state case found, investigators lied, obfuscated, evaded, falsified documents, destroyed other documents, and as the judge described it, “attempted to steamroll the truth.” Investigators ignored alternative possibilities, such as a spark caused by an illegally-modified chainsaw, or the presence of a suspected serial arsonist in the area at the time (later promoted to be the Forest Service’s Battalion Chief for fire prevention).

The state court also castigated Cal Fire’s lawyers for doing nothing to stop the deception, tolerating numerous false statements by government investigators, and failing to disclose nearly 7,000 pages of documents about a shady slush fund. These and other misdeeds ultimately led the judge to dismiss the state case and force Cal Fire to pay the defendants’ legal expenses.

In the meantime, Sierra Pacific settled with the federal government rather than face more than half a billion dollars in potential liability. Unbeknownst to Sierra Pacific, however, the federal government’s district management team had driven two honest government lawyers off the case.

According to sworn testimony submitted by the defendants, the chief of civil litigation for the U.S. Attorney’s Office removed the lead attorney from the Moonlight Fire litigation because in another case, he had insisted on following his ethical duty to disclose information that hurt the government. And a government lawyer who came from another district to help with the Moonlight Fire litigation left in disgust because of concerns that the local management team was more focused on revenue than justice. Sierra Pacific is now seeking to set aside the settlement as the product of a fraud on the court.

Losing isn’t fun. Sometimes doing the right thing hurts. But the government’s job is to do justice, not just to win. The Moonlight Fire experience shows just how easily some officials will pursue victory at the expense of justice, especially if revenue is at stake.

If confirmed, Loretta Lynch would be responsible for overseeing the professionalism and conduct of the Moonlight Fire litigation. Will Ms. Lynch do anything about this and other abuses of power? Or will she turn a blind eye?

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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