Lamberth tempted by disqualification campaign

FROM THE ARCHIVE

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TUESDAY, JANUARY 21, 2003

The federal judge overseeing the Indian trust litigation asserted continued control of the case on Friday even as he expressed weariness about the growing debacle.

In the seven years he has presided over the case, U.S. District Judge Royce Lamberth has been attacked by both the Clinton and Bush administrations. The latest was an orchestrated effort by past and present government officials to seek his court's disqualification from an ongoing investigation that could yield dozens of contempt citations.

Calling them "without merit," Lamberth took 54 pages to dispense with allegations of bias made against him and two court officials. He said it would be "a welcome relief" to rid himself of the bitter dispute, although he made it clear he would not do so.

"It is, admittedly, a tempting prospect for the court to contemplate recusing itself, given the hundreds of judicial hours that this case has consumed, and the innumerable antagonisms it has fostered," he wrote. "In many ways, it would be a welcome relief for the court to slough off the burdens of this seven-year litigation onto some other judge, unmindful of the headaches it has provoked."

"But the court would be abdicating its judicial responsibilities were it to do so," he added.

Lamberth's words came in response to a series of nearly identical motions that sought his recusal from the contempt probe. Former Secretary of Interior Bruce Babbitt, some of his senior aides and dozens of other government representatives are being investigated for the destruction of 18 months' worth of e-mail documents against court orders.

Special master Alan Balaran is leading the unprecedented review, which involves at least 39 current and former officials at the Department of Interior and the Department of Justice. He is preparing a report that will help determine whether Lamberth should punish anyone for the oversight.

Special master-monitor Joseph S. Kieffer III, another court investigator, was also targeted for removal. He faces a separate attack by Secretary Gale Norton, her aides and her defense team, all of whom have refused to cooperate with the former military intelligence specialist.

Norton has advised department employees not to share information or documents with Kieffer, who authored a series of stinging reports that formed the basis of her recent contempt citation.

Balaran's probe involves e-mails that were erased, overwritten or otherwise destroyed by Interior attorneys. Earl E. Devaney, the department's inspector general, conducted his own investigation but failed to assign blame to anyone. According to the report, a key Interior attorney said he "had never heard of" the Cobell v. Norton litigation more than two years into the case and was never told about court orders to preserve trust documents.

"Even if there was something I wanted to erase, I wouldn't know how to do it," said another attorney whose backup tapes were erased.

Former Assistant Secretary Neal McCaleb, who stepped down as head of the Bureau of Indian Affairs last month, is also facing scrutiny for erasing his e-mails. He admitted under oath that he failed to preserve the documents but cast blame on an administrative aide.

Acting Assistant Secretary Aurene Martin was called in for questioning as well. Although she joined the BIA in October 2001, she testified that she only received training on how to preserve e-mails recently.

Get the Deicsion:
Memorandum and Order (January 17, 2003)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp