MEMO TO FITZGERALD: COMSTOCK CAN'T DEFEND LIBBY, by Charles Carreon
12:53pm, November 9, 2005
The media always heaps abuse on the lawyers who defend the likes of OJ Simpson, Michael Jackson, and other purportedly "obviously guilty" individuals, but when it comes to defending traitors, the Benedict Arnolds who betray the nation with lies and concealments, like Oliver North, John Poindexter, John Dean, Bill Clinton, and Scooter Libby, these lawyers are pillars of legal society. Brendan Sullivan, Mr. Not-a-potted-plant himself, has a name as good as gold. "White collar crime" defense is far more prestigious than defending rich folks accused of shootin' people or being gang-affiliated, like Shuge Knight, Snoop Dogg, 'Lil Kim, even Puffy Combs, so it's not the fact that these celebrities can pay, because all good rappers pay their bills.
No, folks, there's a double standard and it's simple to figure out — the looting and screwing of the American sucker-population is a holy, noble endeavor in which the Law has long been a willing accomplice. Nobody calls them "criminal defense whores," like I was sometimes called when I defended people accused of bank robbery, drug dealing, and immigration violations. Nope, they're honorable upholders of the "presumption of innocence."
Actually, to some extent, I agree with that; however, even Benedict Arnold's lawyers shouldn't be Benedict Arnolds themselves. But a turncoat lawyer is just who is heading up his defense — Barbara Comstock, former Department of Justice Lawyer who was on the job during the time period when John Ashcroft was in charge of the investigation.
First, let me ask and answer one question:
Q: Why do we have an independent prosecutor named Fitzgerald?
A: Because Ashcroft was unable to investigate the matter himself because it implicated misconduct in the Junta in which he played a starring role.
Absent the conflict of interest that caused the CIA to look elsewhere for a prosecutor to investigate the outing of their secret agent Valerie Plame, investigating Rove-gate was Ashcroft's job, and the Special Prosecutor was only appointed because the CIA wanted a real leak investigation. So Ashcroft got out of the way, appointed US Attorney Patrick Fitzgerald, and Libby was indicted for interfering with Fitz's investigation. Now he needs a defense, and he's hiring lawyers, including a former US Dept of Justice Prosecutor.
RICHARD W. STEVENSON and ERIC LICHTBLAU for NYT wrote:
November 9, 2005 Libby Establishes a Fund to Help Pay Legal Bills
WASHINGTON, Nov. 8 - I. Lewis Libby Jr., Vice President Dick Cheney's former chief of staff, is establishing a fund to help pay for his legal defense in the C.I.A. leak case, and associates of Mr. Libby have begun soliciting money from his friends and Republican donors, lawyers and people who have been contacted about the fund said on Tuesday.
Barbara Comstock, a Republican communications strategist who has been hired to work with Mr. Libby's defense team, has pulled together a list of potential contributors and has been in touch with some of them in the last week, providing an address in Washington for sending checks, the people said.... "The administration is walking a very tight rope here," said Larry Noble, executive director of the Center for Responsive Politics, a watchdog group, "because they want to support Libby, but they don't want to be seen as strong-arming Republican supporters for money."
Who is Barbara Comstock? I can understand Judith Miller and the NYT being wrong about WMDs and Achmed Chalabi being a reliable source, after all, Mr. Chalabi had only been convicted of stealing hundreds of millions from a Syrian bank and was otherwise a stainless person. But all the necessary facts about Barbara Comstock can be found in two seconds on her lawfirm's website. Allow me to end the suspense: Barbara Comstock, currently a partner at Blank Rome Government Relations, LLC, was employed by the United States Department of Justice during the DOJ's investigation of the Plame Leak, which disqualifies her from representing "the other side," that is, Mr. Libby, and any other person who ends up charged with crimes as a result of the investigation.
Barbara Comstock Joins Blank Rome Government Relations LLC
WASHINGTON, DC, Monday, September 8, 2003 - David F. Girard-diCarlo, chairman and CEO of Blank Rome Government Relations LLC (BRGR LLC), today announced that Barbara Comstock, Director, Office of Public Affairs, U.S. Department of Justice, will join the firm as a Principal effective October 1, 2003, and will serve clients both as a lobbyist and strategic communications specialist. Most recently, Comstock served as Director, Office of Public Affairs at the U.S. Department of Justice since January 2002. In this position, Comstock was the chief spokesperson and communications strategist for Attorney General John Ashcroft, as well as the spokesperson for the entire Department with responsibility for all public affairs and communications matters. Comstock also oversaw the public affairs offices of the Justice Department components including the FBI, the Drug Enforcement Administration, the Bureau of Prisons, the Bureau of Alcohol, Tobacco and Firearms and the U.S. Marshals Service. http://www.blankromegovernmentrelations ... ck0903.htm
Now you might want to wonder why Ms. Comstock engineered an exit from the DOJ in September, effective four days after the appointment of a Special Prosecutor, and I would presume it was no accident. As part of the Big Lie Dissemination Team, Ms. Comstock certainly knew that Cheney, Rove and Libby had planned the outing of a CIA agent as a petty political payback.
Washington Post, Oct 29, 2005 wrote:
On Sept. 26, 2003, the FBI and Justice Department began an investigation, and after Attorney General John D. Ashcroft recused himself, U.S. Attorney Patrick J. Fitzgerald in Chicago was named as a special counsel in December 2003 to investigate whether the identification of Plame, who was an undercover CIA officer, was a violation of federal law.
Now, it is more than inappropriate for someone to come right out of the Prosecutor's Office and start defending people who were actively being investigated by the Prosecutor's Office. It violates this all-important Rule of Professional Conduct, enacted by the Washington DC Bar Association, and virtually identical to the rule that applies in all fifty states of the Union:
DC Bar Association Rules of Professional Conduct wrote:
Rule 1.9 — Conflict of Interest: Former Client
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
The "interpretive comment" to DC Rule of Professional Conduct 1.9 leaves no doubt that this problem cannot be overcome. When a lawfirm is disqualified from representing someone because it has previously represented a client whose interests are adverse to the new client, all of their lawyers are disqualified. The US DOJ is the lawfirm for the People of the United States. The entire DOJ lawyer corps that has been on the job since the start of the investigation is disqualified. While Ms. Comstock wants us to think she's now stepping out of government employment, the obligation to not switch sides continues after one's employment with the client ends. So even though she thinks she left the DOJ, she retains her obligation to not switch sides.
Comstock is up to her eyeballs in unethical conduct, and a cauterizing needle may be required to restore sight to the blind eyes that allow her to overlook it.
We can't depend on the political process to move against Barbara Comstock. The sleazy nature of politics in Washington even keeps Harry Reid quiet about this topic, which the average Joe and Jane don't know about because the news media doesn't report relevant facts or provide needed analysis. So just like Mike Chertoff thought New Orleans got off easy when Katrina hit because he read something about it in the papers, the Minority Whip can probably blame the media for sending him barking up the wrong tree:
Democrats in Congress tried to keep up the political pressure on the White House, seeking a commitment from Mr. Bush that he would not pardon Mr. Libby.
"Although it is too early to judge Mr. Libby guilty or innocent of these particular charges, it is not too early for you to reassure the American people that you understand the enormous gravity of the allegations," Senator Harry Reid of Nevada, the Democratic leader, and three other Democrats wrote to Mr. Bush. "To this end, we urge you to pledge that if Mr. Libby or anyone else is found guilty of a crime in connection with Patrick Fitzgerald's investigation, you will not exercise your authority to issue a presidential pardon."
Yeah, Harry scored a big PR scoop though:
Scott McClellan, the White House spokesman, declined to comment.
So that's the story. If you can't kill an investigation by rigging the prosecution, then just CHANGE SIDES AND DEFEND THE ACCUSED CRIMINAL. When Barbara Comstock saw that her boss Ashcroft wasn't going to kill the investigation, and instead was bowing to pressure, SHE KNEW she needed to get out of there quick, because SHE KNEW there was dirt to hide and an indictment would likely follow.
Can you imagine what would have been said if OJ Simpson had hired a former prosecutor straight out of the the Los Angeles District Attorney's Office? Say, Marcia Clark's close assistant. Well, I think Judge Ito would have been mightily offended, and would have asked Ms. Clark if she wanted the turncoat to be removed from the team. And you can further imagine that, if such an unseemly betrayal of the prosecutor's office had occurred, that the public would have been really disgusted at the defense verdict. It would have brought not only the competence of the prosecutor's office into question — it would have lead to calls for Gil Garcetti's removal as LA District Attorney, because he would have been accused of "throwing the fight."
Judge Reggie Walton should be faced with an Immediate Motion by Mr. Fitzgerald to Disqualify Ms. Comstock from any further representation that would put the power of a former US Attorney on the wrong side of the courtroom. Comstock must be taken off the case, now.
________________________________________ Memo to Fitzgerald: Comstock Can't Defend Libby
1:47pm, November 9, 2005
The District of Columbia Bar website has a link to the Ethics Rules for Federal Employees. Comment, which the NYT will have to start poring through once they belatedly find their arse with both hands. Get there first by clicking the link at the bottom of this quote. Here's the Comment to DC Rule of Professional Conduct 1.9:
Comment to DC RPC 1.9 wrote:
 After termination of client-lawyer relationship, a lawyer may not represent another client except in conformity with the Rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse. Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.  The scope of a "matter" for purposes of this Rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. Rule 1.9 is intended to incorporate federal case law defining the "substantial relationship" test. See, e.g., T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953), and its progeny; see also Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1315-34 (1981).  Disqualification from subsequent representation is for the protection of clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's intended role in behalf of the new client. The question of whether a lawyer is personally disqualified from representation in any matter on account of successive government and private employment is governed by Rule 1.11 rather than by Rule 1.9.  With regard to an opposing party's raising a question of conflict of interest, see Comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer is associated, see Rules 1.10 and 1.11http://www.dcbar.org/for_lawyers/ethics ... nflict.cfm
________________________________________ Memo to Fitzgerald: Comstock Can't Defend Libby
1:50pm, November 9, 2005
1.11:610 Restrictions Arising from Former Government Service: Permanent Prohibition with Respect to Particular Matters Participated in Personally and Substantially (18 U.S.C. § 207(a)(1))
Section 207(a)(1) imposes a permanent bar against a former employee of the executive branch of the United States, or of the District of Columbia, "knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court martial of the United States or the District of Columbia" on behalf of another person in connection with a "particular matter" in which the pertinent government is a party or has a "direct and substantial interest," in which the former government employee while in government "participated personally and substantially," and which involved "a specific party or parties" at that time. The bar explicitly applies not only to full-time government officers and employees but also to "special Government employees." And although the text of section 207(a)(1) refers only to employees of the executive branch of the federal government, the prohibition applies as well to employees of independent agencies. (This is made clear by the fact that subsections (b), (c) and (d) of section 207 (discussed, respectively, under 1.11:670, 1.11:630 and 1.11:640, below) all explicitly apply to employees of independent agencies as well as those of the executive branch, and all assume that this is also the case with subsection (a), to which each of them makes explicit reference.)
The bar applies to communications to and appearances before the executive and the judicial branches, but not the legislative branch. However, "[f]ormer employees must exercise care in their communications with the legislative branch since such communications may unavoidably also be directed to employees of a department or agency." OGE Informal Advisory Opinion 93x26 (October 4, 1993).
Although the prohibition applies to former employees of both the United States and the District of Columbia, section 207(a)(3) makes clear that former federal employees are barred from contacts with officers and employees of the specified entities of the U.S. Government, while former DC employees are prohibited from contacts with the specified entities of the DC Government; neither group is barred from contacts with entities of the other government.
As described under 1.11:600, above, subsection (j) of section 207 sets out seven general exceptions to some or all of the post-employment prohibitions contained in that section. The prohibition of subsection (a)(1) is subject to only four of those exceptions, namely, nos. (1)—Official government duties; (3)—International organizations; (5)—Scientific or technological information; and (6)—Testimony.
Comparison to Rule 1.11 The statutory bar imposed by section 207(a)(1) is similar to the ethical prohibition imposed by Rule 1.11; it is, indeed, in major respects the model on which the Rule is based. The parallels are that both provisions are permanent, lifetime bars; and that both turn on personal and substantial participation while in government in a particular matter involving a specific party or parties, and on post-government employment in such a particular matter. The key term "matter," moreover, is defined almost identically in the two provisions. There are, however, important differences. The statutory provision is broader in scope in that it applies to all former government employees, whether or not they are lawyers, while the Rule of course applies only to lawyers. But in a very significant way the Rule casts a broader net, for while the statutory provision applies only to representational contacts, with "intent to influence," with any officer or employee of the executive or judicial branches of the government, and so does not prohibit "back office" work, or advice or assistance to another, or representational activities directed to a person or entity other than the government, the Rule prohibits any activity on behalf of a client with respect to a tainted "particular matter." And finally, the statute is concerned only with a post-employment "matter" that is the same as the governmental matter, and in which at the time of the former employee's post-employment contact with the matter the government is a party or has a direct and substantial interest, whereas the DC Rule's post-employment "matter" need not be same as, but may be only substantially related to the governmental "matter," and there is no requirement of a continuing governmental interest in order for the Rule's prohibition to apply.
"Particular Matter Involving a Specific Party or Parties" This phrase is critical in determining the scope of the prohibition of section 207(a)(1), as well as that of section 207(a)(2) (discussed in 1.11:620, immediately below). The term "particular matter" is defined in section 207(i)(3) to include "any investigation, application, request for a ruling or other determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding." The final phrase "involv[ing] a specific party or parties," which limits the defined term "particular matter" as used in the prohibitory provisions of section 207, is not defined in section 207(a)(1). However, 5 CFR § 2637.201(c)(1) sheds some illumination by stating that "[s]uch a matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identifiable parties."
"Rulemaking" was added to the list of examples of "particular matters" by the Ethics Reform Act of 1989; before that, rulemaking was not only not included in the examples of a "particular matter," but was expressly excluded from the definition by the pertinent regulations. Thus, 5 CFR § 2637.201(c)(1), interpreting section 207 as it stood before the 1989 amendments, draws a distinction between "specific matters" and "policy matters," and declares that "[r]ulemaking, legislation, the formulation of general policy, standards or objectives, or other action of general application" were not "particular matters" under section 207 as it stood before the 1989 amendment. It followed that a former government employee could "represent another person in connection with a particular matter involving a specific party even if rules or policies which he or she had a role in establishing are involved in the proceeding." Id. Thus, the addition in 1989 of "rulemaking" to the examples of a "particular matter" broadened somewhat the scope of the Act's prohibition. The change was not, however, a major one, since "particular matter" must still be read together with the requirement that the matter involve "a specific party or parties": thus, a "rulemaking" will be a "particular matter" only as it involves such specific parties. And "[g]eneral rulemakings do not usually involve specific parties." OGE Summary at 4. "Consequently, it is quite possible that an employee who participated in a rulemaking while employed by the Government will, after leaving Government service, be able to appear before his former agency concerning the application of that rule to his new private sector employer without violating the . . . restriction." Id. There does not appear to be any authoritative guidance as to what sorts of rulemakings would be construed as involving specific parties under the various subsections of section 207 that are governed by the definition in subsection (i), but some guidance may be provided by the regulations addressing waivers and exemptions under section 208, 5 CFR Part 2640, making a distinction between a "particular matter involving specific parties" and a "particular matter of general applicability" – the latter being defined to mean a "particular matter that is focused on the interests of a discrete and identifiable class of persons, but does not involve specific parties." See 1.11:695 at "Waivers and Exemptions," below.
OGE Informal Advisory Opinion 90 x 7 (April 17, 1990) rejected an argument that bilateral trade agreements regarding specific products are not matters involving specific parties because they have general application to specific industries, not individual companies, and so are comparable to general rulemakings. The Opinion held that the countries that are parties to such trade agreements are "specific parties" within the meaning of section 207(a). The text of section 207(a)(1)(C) makes clear that the "particular matter" in which the departed employee participated while in government must have involved a "specific party or specific parties at the time of such participation." (Emphasis added.) Although the statutory text does not refer to "specific party or parties" in connection with the post-employment matter, OGE takes the view that the prohibition also requires that the matter involve some specific party or parties at the time of the post-employment communication or appearance, though such parties need not be the same specific parties as were involved at the earlier stage. OGE Summary at 4. The OGE Summary goes on to say that contracts are always particular matters involving specific parties, and that a Government procurement proposal "has specific parties identified to it when a bid or proposal is received in response to a solicitation, if not before." Id. The prohibition applies only when the "matter" in which the former government employee participated while in government and the matter with respect to which a disqualification may arise after the former government employee leaves the government are the same particular matter although, as has been explained, the specific parties involved may be different. "The same particular matter," however, "may continue in another form or in part." 5 CFR § 2637.201(c)(4). In the determination of whether a "matter" remains the "same," albeit continuing in another form or part, the relevant factors are "the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important Federal interest." Id. In determining whether two situations are part of the same particular matter, "one should consider all relevant factors, including the time elapsed and the extent to which the matters involve the same basic facts or issues and the same or related parties." OGE Summary at 4.
It is clear that assignment of a contract with the Government from one contractor to another, and modifications to the terms of the contract, do not necessarily make the resulting contract into a separate "matter" from the original one. OGE Informal Advisory Opinion 91 x 24 (July 17, 1991.)
"Personal and Substantial Participation" Section 207(i)(2) defines the term "participated," but only by non-exclusive example; it says that "'participated' means an action taken as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action." (Emphasis supplied). No separate definition is provided in the statutory text for the modifying phrase "personally and substantially." Before the 1989 amendments, the Act did not define "participated" separately; rather, the examples now given in section 207(i)(2) followed the phrase "personally and substantially participated by . . ." in the prohibitory text of the provision. Clearly enough, however, the phrase "personally and substantially" continues substantively to modify "participated." And the regulations interpreting "personally and substantially" as used in the Act before the 1989 amendments clearly continue to offer guidance. Thus,
To participate "personally" means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. "Substantially" means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. 5 CFR § 2637.201(d)(1). The OGE Summary elaborates that "An employee can participate 'personally' in a matter even though he merely directs a subordinate's participation." Id. at 4.
In Shakeproof Indus. Prods Div. of Ill. Tool Workers, Inc. v. United States, 104 F.3d 1309 (Fed. Cir. 1997), the plaintiff sought to compel the Commerce Department to disqualify a law firm from representing another party in an antidumping review proceeding involving spring lock washers, on the basis that a member of the firm had been an Assistant Secretary of Commerce for the Import Administration at the time the antidumping investigation began. The critical issue was whether the lawyer in question had participated personally and substantially in the investigation while at the Commerce Department, so as to require his disqualification under either DC Rule 1.11 or section 207(a). Two documents lay at the heart of the dispute. One was the document that had initiated the antidumping investigation, which had been signed by the Assistant Secretary's deputy. The Commerce Department had found that this did not constitute personal and substantial participation by the Assistant Secretary, and the Court agreed. Id. at 1313. The second document, which the Court found to present a closer case, was one by which the Assistant Secretary had approved a particular method for treating voluntary respondents in non-market economy antidumping cases. The Department had concluded that this document "reflected a policy matter of general applicability, not a decision specific to the lock washer case," although it did refer to that case "by way of illustrating the operation of [the] general policy." Id. at 1313?14. As to this, the Court asserted that, "[w]hile there is ground for debate about the proper characterization of that document, we conclude that the Commerce Department's characterization was not arbitrary or capricious." Id. at 1314.
In Kelly v. Brown, 9 Vet. App. 37 (1996) , the then Court of Veterans Appeals (since renamed the United States Court of Appeals for Veterans Claims) considered whether a lawyer should be disqualified from representing the appellant in a case, in light of the prohibitions of section 207(a)(1) or Rule 1.11 of the Model Rules, by reason of his having previously had contacts with the case while employed by the Department of Veterans Affairs. The contacts in question had consisted of signing a motion for an extension of time and a filing transmitting to the Court the decision of the Board of Veterans Appeals here appealed from. The Court concluded that these contacts did not amount to substantial participation in the case, for purposes of either the statute or the Rule.
It should be noted that the "personal and substantial participation" must have occurred when the government officer or employee was acting "as such," which is to say, in the course of his or her official duties. The point is illustrated by OGE Informal Advisory Opinion 95 x 12 (November 15, 1995), which addressed (but did not resolve) the question whether a former government employee who, while in government, had represented a fellow employee with respect to two EEO complaints, could, consistently with section 207(a)(1), continue the representation after departure from government service. The Opinion noted that although section 205(a) generally prohibits an employee from acting as agent or attorney for anyone else in a matter in which the United States is a party or has a substantial interest, it does make an exception where the representation is "in the proper discharge of [the employee's] duties." [See 1.11:690, below.] Were this the case, then because the representation would have originally been pursuant to the employee's "official duties," continuation of the representation post-government employment would be prohibited by section 207(a)(1). The Opinion also noted, however, that subsection (d) of section 205 permits an employee to represent another who is subject to administrative proceedings "if not inconsistent with the faithful performance of his duties." If this had been the ground of the representation in question, then the post-employment prohibition of section 207(a)(1) would not apply. (The Opinion did not reach a conclusion as to which provision of section 205 applied in the particular circumstances to which it was addressed.)
The regulations interpreting section 207 prior to the 1989 amendments provide additional elaboration that appears to remain valid. First, they suggest that actions do not constitute "personal and substantial participation" in a matter if they are not taken after consideration of the merits of the matter. For example, "[i]f an officer personally approves the departmental budget," he is considered to have participated substantially "only in those cases where a[n individual] budget item is actually put in issue" before him. 5 CFR § 2637.201(d)(1), Example 1 (emphasis added). And even though an officer or employee could or does cause disapproval of a matter for failure to comply with administrative control, budgetary, or other non-substantive standards, he or she "should not be regarded as having participated substantially in the matter, except when such considerations also are the subject of the . . . [subsequent] representation." 5 CFR § 2637.201(d)(2). On the other hand, if an employee has authority to review a matter and to veto it, his or her reviewing it and passing it onto another without other action may constitute "personal and substantial participation." 5 CFR § 2637.201(d)(3) .
Second, under the regulations "self-disqualification" by a government employee from a particular matter before his agency thereby avoids personal or substantial participation with respect to that matter. 5 CFR § 2637.202(b)(5). Such screening, however, does not protect against a finding that a former government employee had "official responsibility" for the screened matters, thereby invoking the two-year prohibition of section 207(a)(2), discussed in 1.11:620, immediately below. Id . Indeed, the very fact of screening would suggest that the matter in question was within the bounds of the employee's "official responsibility. "