The New York Observer reports that two former Assistant United States Attorneys say the Holder Justice Department engaged in deceit and corruption of justice in connection with the DOJ’s litigation against Sierra Pacific Industries, a California lumber company.
As a result of the allegations, a federal district judge has ordered the recusal from the case of every judge in the Eastern District of California. He reasons that the court may have been defrauded by the government, thus requiring the appointment of an outside judge to handle the matter going forward.
The Holder DOJ brought the case against Sierra Pacific for allegedly being responsible for a wildfire that destroyed 65,000 acres in California. Sierra Pacific maintained that the fire started elsewhere and that state and federal investigators and DOJ attorneys lied about the origin of the fire so they would have a “deep pocket” from which to collect millions of dollars.
Nonetheless, as litigants confronted by the power of the federal government are wont to do, the company settled the case. It agreed to pay $55 million to the United States over a period of five years and to give up 22,500 acres of land.
But now two former DOJ lawyers in the office that prosecuted the action corroborate Sierra Pacific’s claim that the DOJ’s case was based on fraud and deception. Using information provided by these lawyers, Sierra Pacific told the federal court that “the United States presented false evidence to the Defendants and the Court [and] advanced arguments to the Court premised on that false evidence or for which material evidence had been withheld.”
In addition, the United States “prepared key. . .investigators for depositions, and allowed them to repeatedly give false testimony about the most important aspects of their investigation.” The United States also “failed to disclose the facts and circumstances associated with the. . .lead investigator’s direct financial interest in the outcome of the investigation arising from an illegal bank account that has since been exposed and terminated.”
One of the former DOJ lawyers says he was removed from the original prosecution by his boss, David Shelledy, chief of the civil division in the United States Attorney’s office, because he “rebuffed” pressure to “engage in unethical conduct as a lawyer.” According to the Observer, Eric Holder will this week award Shelledy the Department’s highest award for excellence.
Another former DOJ lawyer left the prosecution team stating: “It’s called the Department of Justice; it’s not called the Department of Revenue.” He reportedly told defense counsel that in his entire career, “I’ve never seen anything like this.”
Naturally, the allegations of these former prosecutors made a big impression on the court. As noted, the chief judge of the District, Morrison England, Jr., ordered the recusal of all the Eastern District judges from the case due to evidence that the government defrauded the court. He referred the case to Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals, so Kozinski could appoint a judge from outside the Eastern District to handle the case.
In a related case, a California state judge found that the investigation and prosecution of this matter by the state involved “egregious,” “pervasive,” and “reprehensible” abuses that amount to “government corruption.” The state court case “betray[ed] the primary purpose of the judicial system—to reveal the truth,” the judge stated.
The Department of Justice exists to promote justice, not to collect money by winning cases. A lawyer representing a private individual may have to take positions he considers unmeritorious in order to serve his client. Even so, such a lawyer cannot advance his client’s interest through fraud.
A government lawyer should never take an unmeritorious position. If doing so is required to win a case, the government shouldn’t pursue the case. Unlike a private party, the government has no valid interest in winning cases it doesn’t deserve to win.
This view is anachronistic, of course. Government lawyers are as ambitious as private lawyers — maybe more so because they are more likely to be shooting for a judgeship or a move into the lucrative world of private practice. Many government lawyers are also zealots.
Thus, the modern government lawyer has no compunction about trying to sell arguments with scant support in the law or the facts, and there isn’t much anyone can do about it. But when ambition and/or ideology induce government lawyers to rely on facts they know have been invented or to fail to meet the legal obligation to disclose facts, the line has been crossed.
It isn’t surprising that, in the lawless, leftist crony-favoring environment of the Holder DOJ, Sierra Pacific appears to be the victim of a lawless prosecution. The case against it fits a pattern of abuse.
In this instance, David Shelledy, who drove the prosecution against Sierra Pacific, reportedly had a history of resisting the disclosure in environmental cases of evidence the DOJ is required to disclose. The Department’s office of professional responsibility is said to have rejected his positions on this issue in previous cases.
But the Holder DOJ did not rein Shelledy in. And now, it is about to award him for “excellence.”
Shelledy is thus the very model of a Holder DOJ attorney. And if the reports of his conduct in the Sierra Pacific case are accurate, that’s a disgrace.