Keep America Safe’s video on the Justice Department lawyers who previously worked on behalf of detained terrorism suspects has prompted quite a discussion, but John C. Yoo didn’t think the debate was necessary, reported the New York Times.
“What’s the big whoop?” said Yoo, the former DOJ Office of Legal Counsel official whose memorandums on torture and presidential power were used to justify controversial interrogation policies of the George W. Bush administration.
“The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.
“He can and should put people into office who share his views,” Yoo told The Times. Once the American people know who the policy makers are, Yoo said, “they can decide whether they agree with him or not.”
The video aroused not only liberal outrage directed at the producers of the short film, but also division among conservative legal scholars, according to The Times. The video was produced by Keep America Safe, a conservative interest group in Washington, D.C., run by Liz Cheney, the daughter of the former vice president.
Conservative members of the Federalist Society, the 25-year-old policy group devoted to conservative and libertarian legal ideals, have criticized the video, and said it violated the American legal principle that even unpopular defendants deserve a lawyer.
A letter issued by the Brookings Institution criticizing the “shameful series of attacks” on government lawyers was signed by several former Republican administration officials and conservative legal figures, including Kenneth W. Starr, the former special prosecutor, Charles D. Stimson, who resigned from the second Bush administration after suggesting that businesses might think twice before hiring law firms that had represented detainees, Peter D. Keisler, a former acting attorney general, and Larry D. Thompson, a former deputy attorney general.
Richard A. Epstein, a law professor at the University of Chicago who once taught Liz Cheney, said he found it “appalling” to see people equating work on detainee cases with a dearth of patriotism.
“You don’t want to give the impression that because you oppose the government on this thing, that means you’re just one of those lefties — which I am not,” he told The Times.
David M. McIntosh, a former member of Congress and a founder of the Federalist Society, agreed that a lawyer should not be judged by his clients, but he said it was legitimate to examine the agenda of the lawyers.
“Was the person acting merely as an attorney doing their best to represent a client’s case, or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?” he said.
If the commitment to the cases is ideological, McIntosh said, it is reasonable to ask, “Is that the best attorney for the Justice Department?”
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The recently retired lead prosecutor in the case against Mississippi trial lawyer Richard “Dickie” Scruggs has written an insider’s account of the sensational judicial bribery scandal that sent the billionaire tobacco litigator, his son and several associates to prison.
Veteran former prosecutor Tom Dawson teamed up with conservative Mississippi legal blogger Alan Lange to examine the Scruggs case and the conviction of another Mississippi trial lawyer named Paul Minor.
“Kings of Tort: The True Story of Dickie Scruggs, Paul Minor and Two Decades of Political and Legal Manipulation in Mississippi” will be published in December.
The book will attempt to “connect the dots,” exploring how Scruggs and other principals in the investigation ascended to fame before plunging into notoriety, Dawson said in an interview.
“The interesting thing about that is it brings an insider perspective,” Dawson said. “I’m sure that interest has not waned any, and hopefully the book will get some attention.”
Dawson’s publisher is Oregon-based Pediment Publishing. The ambitious legal narrative appears to be a departure for the imprint, whose Web site says it specializes in commemorative and coffee-table books.
It’s infrequent, but not unheard of, for former prosecutors to write books about their biggest cases.
Vincent Bugliosi published “Helter Skelter” in 1974, an account of his prosecution of cult leader Charles Manson and his followers for murder. In 1990 Iran-Contra independent counsel Lawrence Walsh filed a lawsuit that unsuccessfully sought to prevent a former member of his prosecution team, Jeffrey Toobin, from publishing an insider’s account of the Reagan-era scandal.
Dawson’s project is notable for several reasons.
Not only are offshoots of the closely watched Scruggs case still alive in Mississippi. But the prosecutions sparked allegations from liberal commentators that the Bush Justice Department had targeted prominent Democrats and trial lawyers in plaintiff-friendly Mississippi, which for years was a major battleground in the conservative-led movement to change the tort system.
Dawson’s co-author, Lange, has been a vocal conservative critic of trial lawyers on his popular blog, Y’all Politics. He has called the Scruggs case the “culmination of decades of dirty, backwater politics.”
Unusual employment arrangement
The circumstances of Dawson’s employment with the Northern District of Mississippi office were unusual, raising questions about whether he may have skirted Justice Department ethics rules when he began discussing the book project with Lange last summer.
Dawson officially retired on Jan. 2, after nearly 36 years as a prosecutor. But he returned to the office on Jan. 15 under contract, working part time behind the scenes on ongoing Scruggs-related investigations until early June.
“It wouldn’t be any conflict necessarily because it was only about two days a week,” he said. “But just to remove any criticism of that, I decided to cease the contract.”
According to the Justice Department, Dawson was a part-time consultant from Jan. 15 to June 7. His contract originally was to run through the end of June.
Justice Department ethics rules advise employees wishing to undertake writing projects to be “cautious to avoid any conflict of interest with their position and to ensure that no interference with the performance of their official duties occurs.”
A Justice Department spokeswoman said the former prosecutor abided by the rules, which do not apply to former employees.
“Dawson’s participation in any writing did not take place until after his direct and contract employment” ended, Melissa Schwartz said.
But Mississippi College law professor Matt Steffey said Dawson’s book project could raise questions about his motives while a prosecutor.
“Around here, writing a book with Alan Lange would put you squarely on the conservative side of the aisle,” Steffey said in an interview. “It reinforces in the public mind that politics at least perhaps coincided with the prosecution.”
The rise and fall of Scruggs
In the 1990s, Scruggs teamed up with Missisippi’s Democratic state Attorney General, Michael Moore, to sue major tobacco companies. One of Scrugg’s adversaries in the tobacco wars was his former fraternity brother at Ole Miss, Haley Barbour, then chairman of the Republican National Committee and an ally of the U.S. Chamber of Commerce, a vigorous advocate of tort reform.
Barbour was elected governor of Mississippi in 2003, a position he still holds today. The state legislature passed a Barbour-sponsored law limiting the ability to file tort claims in the state.
Scruggs reportedly earned $1 billion in fees from the tobacco litigation, and his role was memorialized in a movie, The Insider. He lived in a mansion on Mississippi’s Gulf coast and piloted his own jet. Scruggs also made millions in asbestos-related litigation and suing on behalf of Hurricane Katrina victims.
Scruggs was a generous political donor, giving to Democrats and Republicans, and is the brother-in-law of former Senate Majority Leader Trent Lott (R-Miss.).
So there was intense media coverage in November 2007, when a federal grand jury issued an indictment charging Scruggs, his son, Zach, and three others with conspiring to bribe state judge Henry Lackey, who was presiding over a $26.5 million fee dispute involving Scruggs.
Dawson spent his career in Oxford, but for an 18-month detail on Independent Counsel Kenneth Starr’s Whitewater team in Arkansas in the 1990s. His name appears on the docket in nearly every Scruggs-related case, and it was Dawson who asked an associate of Scruggs to wear a wire that captured the lawyer agreeing to a plan to bribe Lackey — the crucial evidence that led to Scruggs’s imprisonment and disgrace.
Today, Scruggs is serving a seven-year sentence after pleading guilty in 2008 to conspiring to bribe Lackey. He is serving a separate and concurrent sentence for attempting to corruptly influence another state judge.
Prosecutors in the U.S. Attorney’s Office in Oxford continue to investigate Scrugg’s former associate, P.L. Blake, a Mississippi Delta farmer who reportedly was paid $50 million for helping Scruggs in the tobacco litigation in the 1990s.
Former Hinds County Circuit Judge Bobby DeLaughter, who was accused of giving Scruggs an unfair advantage in a fee dispute in the hope the lawyer would support him for a federal judgeship, is scheduled to be sentenced in November on an obstruction of justice charge.
The Paul Minor case was less prominent in the national media but sparked its own controversies. Minor was convicted of offering a state Supreme Court justice loan guarantees for his re-election campaign. The charge against Minor was honest services mail fraud, a controversial statute used with increasing frequency in corruption cases that is now before the Supreme Court for review.
Scott Horton, who has written critically of the Minor prosecution in Harper’s magazine, wrote that “honest service mail fraud is an effort to conjure a crime which does not exist. The ‘crime’ here is purely political.”
The Justice Department has used honest services charges against people with Republican affiliations, too, most notably in the investigation of now-imprisoned lobbyist Jack Abramoff.
Contract employment is rare
Dawson said he bowed out of his contract with the U.S. Attorney’s office early “to work on the book in earnest,” and because he felt he had accomplished what he set out to do.
Dawson’s early termination of the contract came after Main Justice made inquiries to the Northern District of Mississippi U.S. Attorney’s office about it. On June 10, the Justice Department received a Freedom of Information Act request from Main Justice for a copy of Dawson’s employment contract.
The FOIA request, despite repeated inquiries, was not fulfilled until Oct. 30, after Main Justice contacted DOJ Public Affairs for comment on Dawson’s book deal.
Although salaries of government employees are a matter of public record, the contract released under FOIA blacked out the amount paid to Dawson, citing a privacy exemption.
The contract also puts limits on what Dawson can reveal. It says Dawson “realizes the sensitive nature of the prosecution/litigation and agrees and understands that any information concerning these matters or others in the office may only be discussed with or disclosed to members of the U.S. Attorney’s Office for the Northern District of Mississippi, the Department of Justice and/or the investigative agencies.”
The contract also says: “This applies to information whether obtained as a prior AUSA or during the course of this contract.”
U.S. Attorneys Offices can enter into contracts of less than $25,000 without approval from the Executive Office for U.S. Attorneys offices. The department does not track how often attorney contracts are used.
Michael Battle, director of the Executive Office for U.S. Attorneys during the Bush administration, said the contracts were typically reserved for cases like Dawson’s, in which a senior prosecutor retired amid a major investigation.
“The reason you did it for litigation is you didn’t want to lose the knowledge the attorney brought to the case,” said Battle, now a partner at Fulbright & Jaworski. Battle said he signed off on “a handful” or contract requests from U.S. Attorneys offices.
“We didn’t get a lot of them,” he said. “They usually came from districts that had a high-profile or long-standing case going on.”
Foley & Lardner’s Donna Bucella, a former U.S. Attorney in Florida and director of EOUSA during the Clinton administration, didn’t recall approving any contracts during her time at the department.
“We had termed positions but we didn’t use contract employees,” she said.
Dawson said he was unaware such contracts were possible until he was approached by U.S. Attorney Jim Greenlee shortly after his retirement.
During his two-day-a-week stint as a litigation assistant, Dawson never appeared in court. His work was almost exclusively devoted to Scruggs-related investigations and litigation, but he said he gave advice to assistant U.S. attorneys working on unrelated cases if they solicited it.
“I was asked to help out because we were losing a lot of institutional knowledge so I stayed on in a part-time, hourly fashion,” he said in telephone interview over the summer. “I was, to borrow from the Godfather, a consigliere, using the experience and institutional knowledge that I gained to consult on different tactics and techniques, and doing investigations and motion practice.”
Justice Department rules require current employees to “consult” with the U.S. Attorney in charge of their offices before embarking on outside projects. The rules make no mention of the rare instances when a prosecutor has retired and come back to work on contract. But Schwartz, of the Justice Department’s public affairs office, said they apply to contract employees as well.
“I basically advised [U.S. Attorney Jim Greenlee] of what I was thinking about doing, and I ended the contract early to devote myself full-time to that [book] project,” Dawson said in an interview.
Bucella, the Clinton-era EOUSA head, said in her experience, a supervisor’s approval was required for current Justice Department lawyers contemplating outside projects.
“For any Justice Department lawyer who’s going to write a book on something they’ve been involved in, there needs to be some sort of approval process,” Bucella said. “Somebody has to sign off and read the galleys at least.”
Oxford author and journalist Curtis Wilkie has also written a book about Scruggs’s rise and fall, but it has no title or publication date. Wilkie recently told The Oxford Eagle he expected it to be released sometime next year.
Mary Jacoby contributed to this report.
This post was updated on 11/02/09 @ 6:39 p.m.