Trust fund judge sanctions 'repugnant behavior'

THURSDAY, FEBRUARY 6, 2003

Six Department of Justice attorneys were personally sanctioned by a federal judge on Wednesday for attempting to "cover up" their role in the botched deposition of a senior trust official.

U.S. District Judge Royce Lamberth ordered the attorneys to pay court costs and other fees out of their own pocket. In a 31-page opinion filled with harsh language, he blasted Secretary of Interior Gale Norton's defense team for their tactics.

"The lack of judgment demonstrated by this action suggests to the court that something has gone seriously awry in the Justice Department�s handling of this litigation," Lamberth wrote. "An agency that can engage in this kind of attempted coverup has clearly lost any sense of perspective about the way in which this litigation should be conducted."

Some of the attorneys are already on the hook for sending, without court permission, information to more than 1,200 minor members of an Arizona tribe. One is Robert McCallum, who heads the DOJ division handling Norton's defense and is also President Bush's nominee as associate attorney general, the third highest-ranking post in the department.

In a statement, a government spokesperson addressed the court's criticism. "We have every confidence in the integrity and professionalism of our Justice Department attorneys and their appropriate handling of this case," said Barbara Comstock, director of public affairs. "We are reviewing Judge Lamberth's ruling."

Keith Harper, a Native American Rights Fund attorney representing more than 500,000 Indian beneficiaries whose trust assets are at the heart of the case, praised the court's ruling. "For a long time now we have believed that personal accountability is necessary if this trust is ever going to be reformed and if this litigation is ever going to get resolved," he said.

"We are satisfied and encouraged by the fact that the court has taken this action and held individuals personally liable for their own misconduct and malfeasance," he added.

The dispute arose when Harper and the other plaintiffs' attorneys sought to question acting special trustee Donna Erwin under oath about the Bush administration's trust reform efforts. DOJ attorneys, citing Erwin's busy schedule, tried to delay the deposition until after January 6, when Norton delivered her plans to court.

Lamberth on December 13 took the middle ground and said Erwin could be deposed in Albuquerque, New Mexico, where she works full time, instead of coming to Washington, D.C. But he based his ruling on representations made by the government attorneys, one of whom said in open court that Erwin "does not expect to be in Washington at all."

Three days later, Erwin showed up in Washington, D.C.

Informed of her presence, Lamberth held another hearing to address the disconnect. An exchange between Lamberth and government attorneys involved Erwin, who stormed out of the courtroom crying. As she exited, she exclaimed "I can't take it anymore."

The brouhaha didn't end there. Erwin was ordered to testify on December 20 and as the proceeding wrapped up, Mark Brown, an attorney for the plaintiffs, asked if she was unfairly maligned.

"I felt that the court had perceived that I had been less than truthful and felt that was not an accurate depiction," she responded.

When Brown attempted to discover why Erwin felt that way, a government lawyer blocked her from answering. "Do you notice that the witness is about to cry?" Sandra Spooner, who is the lead DOJ attorney on the case, said. "Is this what you�re proposing to do?"

The deposition ended in a huff as Spooner and Erwin, who had to catch a flight back to Albuquerque that evening, left. The plaintiffs filed a motion to compel further testimony, which Lamberth granted yesterday, citing the government's "meritless" actions.

"What the court finds most disturbing about the conduct of defense counsel, however, is not just that she directed a government official not to answer proper questions, but also that she obstructed a legitimate inquiry into whether her co-counsel had lied to the court," Lamberth said. "This obstruction is made more repugnant by the fact that defense counsel is not only an officer of the court, but a representative of the Department of Justice."

He added: "[T]he conduct of defense counsel in this matter makes a mockery of all that the Department of Justice stands for."

Lamberth is a former government attorney who worked for the U.S. Attorney's office in Washington, D.C. He headed the civil division, which handled Norton's recent contempt trial. The DOJ civil division, a separate group, works on other parts of the case.

In addition to McCallum and Spooner, the attorneys sanctioned are deputy assistant attorney general Stuart Schiffer, Christopher Kohn, John Stemplewicz and Timothy Curley.

Harper said the plaintiffs would file a motion detailing their costs. He said it would run in the "tens of thousands."

Lamberth, in his order, said he saw no reason why American taxpayers "should foot the burden of remedying the harm to plaintiffs caused by the unjustifiable conduct of government attorneys." But he added that he wasn't going to bar DOJ from reimbursing the attorneys should they request it.

"Instead, [the court] will leave it up to the executive branch to decide whether or not it wishes to indemnify the Justice Department attorneys for their repugnant behavior."

Get the Decision:
Order and Memorandum on Donna Erwin Deposition (February 5, 2003)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm