Tuesday, March 27, 2007

Some insight and opinion on the "document dump" in the U.S. Attorney scandal


Part of the response by the Bush administration to the growing scandal over the firing of the U.S. Attorneys has been to provide a large number of documents (including many emails). On the surface, such document disclosure might seem very cooperative and like a sincere effort to be open. Based on my experiences in 19 years of practicing law, I have a different take. My take is that the document dump was an attempt to conceal information. I know that seems counterintuitive, but just keep reading. The attempt has not really succeeded, and so the Bush administration has had to keep releasing documentation.

The House Judiciary Committee requested documents via a letter to the Department of Justice on March 8, 2007, and a letter to the White House on March 9, 2007. The requests are similar and contain specific categories of documents. The letters also contain definitions for "document" and "communication."

All the documents that have been released are available on the House Judiciary Committee's website. The document dump began on March 13, 2007, when the Department of Justice (DoJ) released some documents which were given to Congress. The total number of pages in this release was (assuming my calculations are correct) 144. The document dump continued six days later when DoJ released what has been referred to as 3000 more pages of documents. However, by my calculation, the number of pages was 2709. Despite this discrepancy, I will generally refer to the March 19 release as "the 3000 page dump." More documents were released on March 20, and that release contained 3571 pages. Each set of documents has been posted in enumerated portions. For instance, the 3000 pages have been posted in 56 sets: 1-1 through 1-11, 2-1 through 2-9, 3-1 through 3-6, and so on through set 12. The March 19 release (the so-called "3000 pages") contained a gap, as there were only two documents from the time period of November 15-December 4, a most crucial time given that the firings occurred on December 7. If you want to see an analysis of what was in the 3000 pages, go here. I will mention some of that analysis later.

Approximately 280 more pages were released on March 23, and some of those documents fill in the gap and cause serious problems for Attorney General Alberto Gonzales and the White House, as will be discussed later.

In the interest of disclosure, I state that I have not looked through all the pages in the document dump, nor do I plan to.

In order to fully explain my opinions on the document dump, I will have to explain some things about what is known as "discovery" in the litigation process, and I am warning the reader right now that a case of tired head might be in your near future as a result.

The document dump as described by the Bush administration

On March 13, 2007, Bush's counselor, Dan Bartlett, held a press briefing, and said that
So this is not a situation we were sitting on information and just not sharing it. In fact, the fact that I'm standing up here and we've made -- I think now documents are posted on the websites up on Capitol Hill -- demonstrates that we have nothing to hide. And we want to make sure that all this information is understood and in complete context. But it doesn't change the underlying fact, and that is that this was a proper decision.
Next up came Tony Snow, who, on March 19, 2007, said the following:
Well, Jim, the Department of Justice also has been busy trying to do document production, and frankly, on a lot of that stuff I'll direct you to the Department of Justice for fuller answers. But let me just note that they're going to be producing documents that they think are going to be fully responsive to the requests and needs of people on Capitol Hill. I think you do that as a first step. And, again, they've made a very generous offer, in terms of making people available for the committees.

I think it fits into that general -- what you want to make sure that you do is that you have your materials ready so that rather than sort of searching piecemeal through it, you put everything together and make it possible to have a fruitful discussion.
And while we know that there are some questions that people have, the Department of Justice, which conducted the review, has offered to make available all documents and individuals. That seems to me to be a pretty forthcoming offer.
It certainly seemed like Snow was trying to put all of this on DoJ, as in he was trying to say that the White House had little information or knowledge of this whole matter. Indeed, one reporter pointed this out to Snow.
Q: You seem to be trying to insulate the White House. You keep saying the Justice Department is making people available, but White House people have been implicated in these emails, as well. So it's one thing to put up Justice officials. What about the White House?

MR. SNOW: Well, again, the White House made available those emails.
So, after trying to make it seem like the White House was not involved, Snow conceded that indeed the White House did have relevant information, and he implied that the White House was being completely open and up front--even though the question asked about making people available for questioning and Snow only talked about emails. And here's another thing. Snow was talking like there is some meaningful distinction between the White House and DoJ. Let's review: the White House controls the entire Executive Branch; the DoJ is part of the Executive Branch; the Attorney General is appointed by the President and the President is the AG's immediate boss; therefore, any attempt to claim that the White House has no control over or connection to the DoJ has a high degree of bullshit.

The next day, Snow started off the press gaggle with this statement:
A few notes to start with: As many of you already know, but I'll repeat, the President placed a 7:15 a.m. call this morning to the Attorney General to reaffirm his support for the Attorney General.

This comes in the wake of the Justice Department's release yesterday of 3,000 pages of emails that give a pretty extensive view of the deliberations that led to the decision to replace eight U.S. attorneys. The Attorney General thinks it's important that Congress and the public get a full opportunity to see what went into those deliberations. And the department also has been extremely forthcoming with Congress not only in terms of providing documents that are responsive to the request, including, incidentally, documents that reflect communications between the Justice Department and the White House, but also to make available to investigators or to members of the Hill officials at the Justice Department who were involved that the Hill may want to hear from, and on an on-the-record basis.
(emphasis added). A little bit later, Snow said
Now there's an opportunity for people to take a look at 3,000 pages of emails. We were a little disappointed over the weekend when politicians decided to try to draw conclusions about what went on without having seen the evidence. And the Department of Justice has been very forthcoming. This is extraordinary, in providing the internal documents and making available for on-the-record questioning the people who were involved in this. So the Attorney General is being as cooperative as possible, having full confidence that the facts are going to support him.
(emphasis added). As we will see, the Bush administration has not been exactly forthcoming. Also, note that the White House's official position was that providing the 3000 pages was extraordinary and that Gonzales was being just ultra cooperative. What a bunch of a crap.

When asked why the 3000 pages had not been made available earlier, here was Snow's response:
Because they weren't available earlier. This is not the sort of thing where you snap your fingers and everything is available. The Department of Justice is at all hands on deck for the last five or six days, going through to look as carefully as they can to produce all the emails that are responsive to the requests. They wanted to be careful about it.
Oh, they were being careful, all right--careful to keep some emails out, as will be shown later.

For now, the point of the quotes from Snow and Bartlett is to show that the Bush administration was claiming that the document dump was proof that there was nothing to hide and that all the relevant information had been disclosed.

The discovery process in litigation

And now it is time to put the "document production" in perspective. To do that, I need to explain some litigation procedure and history. Granted, what is going on with this scandal is not litigation per se, but there are parallels.

Part of the litigation process is something called "discovery." Discovery is the process by which facts and evidence are acquired by the parties. Discovery includes oral and written depositions, written questions called "interrogatories," requests for admissions, and document production (providing each side with documents which are responsive to written requests). This is the part of the litigation process you never see on the TV shows, and it is the part of the process where the real battles take place, to put it mildly. For my entire career, discovery abuse has been at the forefront of the practice of law.

Discovery abuse comes in many forms. It would take way too long to discuss them all, but I need to discuss some of them that are relevant to this post. Discovery requests can be abusive. They can be vague and overbroad to the point of being oppressive and unreasonable. Consequently, there are rules which require a degree of specificity. Such rules present a variation on the "you don't get what you don't ask for" adage. In discovery, the responding party does not have to give any more than what is asked for, but if the request does not have some specificity, the requesting party might not get anything. At the same time, the response has to have some specificity or it could be deemed nonresponsive (and possibly abusive). The response also has to be complete. In the context of document production, this means that the responding party cannot provide only some of the responsive documents but must provide all of them. Of course, the responding party can object to turning over some document because some privilege (like attorney-client) might apply, but generally the responding party must state the objection and provide some description of the documents.

Got a headache yet? Welcome to my world.

The specificity requirements need to be explained further in the context of document production. Discovery requests also include definitions of terms, such as "document" and "communication." These definitions are typically very broad. Basically, anything that has been recorded in any possible way is a "document," and the typical definition for "communication" is just as expansive. The definitions of these terms in the letters from the House Judiciary Committee prove this point. Given these definitions, and the requirement to turn over all responsive documents, responding parties will usually turn over lots and lots of documents in order to avoid an accusation of being nonresponsive or engaging in discovery abuse. However, the responding party cannot simply say "Here is a huge stack of documents which satisfies all the requests." Instead, the responding has to provide some explanation and guidance. For instance, say a responding party has 3000 pages of documents. The responding has some obligation to either group those documents together in ways that respond to specific requests and/or to provide some sort of description and method by which the requesting party can locate the documents which are responsive to specific requests.

I have been on all sides of a document dump (requesting party, responding party, plaintiff, and defendant). My experience has been that when a responding party engages in a document dump without the specificity I have described, that party is trying to hide something.

I hope that the following historical story about discovery abuse will help.

Ford Motor Company's reading room

The Ford Motor Company utilized (and in some ways still uses) a particular form of discovery abuse. When sued and confronted with specific and lengthy requests for document production, Ford would employ what came to be called the "reading room." Ford would basically say "We have this big-ass warehouse full of all the documents you could ever want. We'll set up a room in the warehouse where you can read the documents. Have fun." What made this practice abusive is that Ford would not say anything as to what documents would be responsive to specific requests and would not do anything to give any indication where responsive documents could be found. Also, a large portion of the documents would be completely irrelevant, but the plaintiff would have to go through all the documents to find out. There would be no way a plaintiff could find what it needed without years of going through documents. Such a tactic had several objectives, including bogging down the whole process, making the plaintiff give up (because the plaintiff would run out of time and money), hiding damaging evidence, and concealing evidence.

The last two objectives need a little more explanation. Ford could bury damaging evidence in some obscure location in the warehouse so that the chances of it being found would be slim or none, yet they could still claim that it provided everything and it was the plaintiff's fault for not finding it. Also, Ford could remove damaging evidence and later claim that there was no way they left out anything by pointing to the amazing amount of documents they offered without restriction.

The document dump was an attempted "reading room" ploy.

Now let's compare the "reading room" ploy to the Bush administration's document dump. Review what Bartlett and Snow said about the document dump--that it was on the up and up, there was nothing to hide, that all the evidence was available so people can put it in context, that the Bush administration was being fully cooperative, etc. The facts indicate otherwise.

I will give Snow the benefit of the doubt on his explanation as to why the 3000 pages had not been released earlier. His explanation seems reasonable. However, that is the only matter on which I will give him or the rest of the Bush administration such deference.

I am going to focus on the "3000-page" dump. Gosh, 3000 pages sure sounds like a lot of information. However, as any lawyer with litigation experience can tell you, appearances can be deceiving in the case of a big stack of paper. For example, if you look through the sets, you will find lots of blank pages or pages with little or no information. I am not saying that the inclusion of such pages is nonresponsive, but I am saying that their inclusion certainly reduces the true impact of saying "we disclosed 3000 pages of documents." In other words, in this case 3000 does not necessarily equal 3000.

Regarding the 3000 page portion of the dump, the link I provided above is a post on TPM Muckraker which contains comments and analysis from the readers of the site. One comment illustrates one of the objectives I listed for the reading room ploy:
[T]hese documents seem to be a bunch of smoke and mirrors. Tons of irrelevant junk intended to divert our attention.

While there are some interesting documents there, it seems that many may still be being withheld.
Evidence of such irrelevance is found in the following comments:

Pages 15-16 are Tim Griffin's resume (!).

Pages 11-48 are all resumes.
2-9 -- all resumes. Brett Tolman's resume is at the end.
Resumes seem completely irrelevant to reasons why the attorneys were fired. You can see these oh so vital and pertinent documents here and here. Set 3-4 has 24 pages of biographical profiles of various members of the House, and I fail to see how those pages are relevant. Again, this means that 3000 does not equal 3000.

There does not appear to be any structure to the document dump. Look through the sets and you will see that in portions the documents are put in something resembling chronological order. And then there will be documents from up to a year or two years previous. I have not seen any way in which the documents have been grouped together, nor have I seen any explanation or guide to the documents. This is getting very close to discovery abuse as I explained it above.

Now let's get back to the reading room ploy. The Bush administration dumps a massive amount of paper on it critics, then claims that the volume of documentation shows that such disclosure has been complete and sincere. And yet it did not take long for this position to be dispelled. Recall that I mentioned that there was a gap in the documents released on March 13 and 19. More specifically, with one or two exceptions, there were no documents from the 18-day period of November 15-December 4. As reported by Mike Allen and John Bresnahan on March 21, this gap "was a critical period as the White House and Justice Department reviewed, then approved, which U.S. attorneys would be fired while also developing a political and communications strategy for countering any fallout from the firings." When asked about this gap on March 21, Tony Snow claimed he had no knowledge about it and that all questions should be directed to DoJ. I'll get to DoJ's response in a moment.

But before that, let's look at the timing. Documents were released on March 13. That day Bartlett said those documents had been publicly posted and that that proved the Bush administration had nothing to hide. Then almost 3000 pages of documents were released on March 19, and on that day, Tony Snow said that DoJ was being extremely forthcoming. By 2:19 a.m. on March 20--just a few hours after the almost 3000 pages were released--one of TPM Muckraker's readers spotted the gap and, via the wide world interweb, so did the rest of the world. As shown above, on March 21 Tony Snow was questioned about the gap, and then two days later DoJ released more documents, some of which were from the gap.

Now let's look at DoJ's response about the gap. As reported by the New York Times on March 22,
Brian Roehrkasse, a spokesman for the Justice Department, said, “The department has provided or made available to Congress all the documents responsive to Congress’s requests over the time period in question.” He added, “To the extent there was a lull in communications concerning the U.S. attorney issues, it reflects the fact that we have found no responsive documents from that time period, which included the Thanksgiving holiday.”
So, there was a "lull" in communications and that meant there were no responsive documents. Is that what Roehrkasse was saying? Notice that he did not say that the search for documents was ongoing and that there might be some more found. No, instead he said that all responsive documents had been provided. So how was it that the next day DoJ magically found documents from the gap period? It sure seems to me that Roehrkasse was full of crap when he said DoJ had provided all responsive documents.

Instead, DoJ dumped over 6000 pages of material that was not well organized and provided no guidance as to what was contained in that material. Based on the facts and my experience in document dumps, it sure seems to me that DoJ and the White House tried to hide something. Their behavior reflects all of the things I described as objectives of the reading room ploy. That opinion is strengthened by the fact that once the gap became an issue that was not going to go away, more documents "turned up" in the March 23 dump.

And as I said, some of those latest documents are damaging. For instance, Set 3 of the March 23 dump contains an email thread from December 4, 2006, in which the "US Atty plan" was discussed. One of the participants in that discussion was William K. Kelley, who happens to be Deputy Counsel to the President. In that thread, Kelley sent an email to Kyle Sampson which said the following:
We're a go for the US Atty plan. WH leg, political, and communications have signed off and have acknowledged that we have to be committed to following through once the pressure comes.
(See pp. 29-30 of Set 3). This shows that the White House not only knew what was going on ahead of time but approved it. So much for Bush, Rove, etc. not being involved. No wonder this had been left out of the previous document dumps.

Pages 31-33 of Set 3 has the plan itself. I found this passage to be significant:

Prepare to Withstand Political Upheaval: U.S. Attorneys desiring to save their jobs (aided by their allies in the political arena as well as the Justice Department community), likely will make efforts to preserve themselves in office. We should expect these efforts to be strenuous...Recipients of such "appeals" must respond identically:
Who decided? The Administration made the determination to seek the resignations (not any specific person at the White House or the Department of Justice).
Everyone knew there would be "political upheaval" and yet the plan was that the Bush administration would not say that any specific person was responsible for the decision. There's an indication that the Bush administration is trying to hide something.

Pages 7 and 46 of Set 6 and page 7 of Set 9 show that there was a meeting on November 27, 2006, regarding "U.S. Attorney Appointments" and that one of the participants was Monica Goodling, who was--and for the moment still is--the DoJ liaison to the White House. Again, this indicates that the White House was involved in this whole affair. [NOTE: I originally said that Goodling was the White House liaison to DoJ.]

Moreover, the latest document dump reveals that Gonzales his ownself was at that November 27 meeting and approved the firings. Oops. Given that Alberto previously told Congress that he had no involvement in the firings, I'd say he now has a problem. (These documents might be in Set 8 or 10 of the March 23 dump, but the links for those sets are not currently working.) And he still has not given a plausible explanation of his role or non-role. For proof, go the main page for "Countdown" and click on "What's Gonzales' Game?" (I will try to keep this link updated, but likely I will replace it with a link to the transcript).

The existence and delayed disclosure of these documents, along with the previous claim that all responsive documents had been produced, further indicate that the document dump was an attempted reading room ploy. It seems to me that the White House and DoJ released the over 6000 pages in the way they did (rather disorganized and with irrelevant material) as part of a gambit that no one would take the time to slog through all the documents and try to piece things together. Another part of the ploy was to claim--several times--that every responsive document had been disclosed. And how could such a claim seem credible? By pointing out that over 6000 pages had been released. Surely that would be prima facie proof that "there was nothing to hide." And then, once the flaws in the document dump were found, more documents were released, but still in a rather disorganzied manner, and once again the claim was made that everything had been produced. Also, look through the March 23 documents and notice that the damaging items comprise a small amount of the total and that one has to go through everything page by page to find them. Again, this exemplifies a reading room ploy.

And my opinion is that this reading room ploy is just one way in which the Bush administration is trying to conceal information about this whole affair.

I will close with a few more observations. The document dump represents little more than gamesmanship by the Bush administration. In the world of civil litigation, this sort of behavior is expected and even tolerated to a degree, but such behavior is subject to review and possible penalties. This U.S. Attorney scandal is not, however, civil litigation. I do not know of any direct penalties to which the Bush administration can be subjected. More importantly, what is involved and at stake here goes beyond civil litigation. This matter involves the public interest and the public trust. I will discuss that in a subsequent post, but for now I will say that for me that fact means that the Bush administration should comply with a higher standard than that used in discover abuse issues in civil litigation. Sadly, it seems that the Bush administration thinks otherwise.


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