DOJ to CREW: You’ve Got E-mails!

August 16, 2006 12:33 am by Gene Borio

On rare occasions, I did provide the White House with a status report on the case, generally through the White House Counsel’s Office. On those rare occasions, no one at the White House suggested any action or directed any action in the case but merely received information on the status of the case. No one at the White House ever tried to influence any aspect of my decisions in this case. I can not recall ever discussing any public statements or articles about the case with anyone at the White House.

–Associate Attorney General Robert D. McCallum, to the Senate Foreign Relations Committee, June 19, 2006

“I don’t remember ever receiving any directive from the White House about anything that had to do with the tobacco case,” McCallum said in his sworn videotaped deposition [to CREW on July 18, 2006]. . . .

Internal Justice Department e-mails obtained by The Associated Press show that the White House OK’d an op-ed piece by McCallum in USA Today defending the department’s drastic cut in the amount it was demanding the tobacco companies pay.

“Please hold up. The White House wanted some changes,” one Justice Department employee wrote regarding McCallum’s op-ed piece.

“WH says it’s good to go,” said an e-mail an hour later by another department employee.

In his testimony [to the Senate Foreign Relations Committee last month] about the Justice Department suit against the tobacco companies, McCallum refused to say whether he had notes of contacts with industry representatives. He said he was barred from answering by an order the judge had issued in the case. The order itself is sealed, McCallum added.

–”McCallum Questioned About Tobacco Case,” Pete Yost, AP, July 20, 2006.

Plaintiff [CREW] is now on notice that it is in the possession of stolen property, and the Court has ample authority to compel the return of that property

–DOJ filing, July 22, 2006.

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Herewith, text and PDF versions of several recent filings concerning the email messages referenced in Pete Yost’s AP article. CREW had attempted to use these documents in questioning McCallum 2 days earlier, July 18. The magistrate judge at the time prohibited their further dissemination, but somehow Yost –as well as the Senate Foreign Relations Committee–had received them. The DOJ wants the court to compel CREW to “give an accounting under oath of how it obtained these e-mails, what it knows about their misappropriation, and any third parties to whom they have supplied them.”

From Exhibit C, filed 7/20/2006:

Robert McCallum answer to SFRC question June 28, 2006

Question: On June 9, 2005, USA Today published an oped under your name regarding the tobacco cessation remedy proposed In the tobacco litigation. The Committee has received a copy of some internal Justice Department ernails about the drafting of the article; these emails indicate that the individuals at the White House had a role in editing or supervising the final text of the article and that you were copied on these emails.

Do you recall the involvement of the White House in the approval of this article? Does the evidence that White House staff may have been involved in the drafting of this article alter your position that no one at the White House ever tried to influence any aspect of your decisions in this case?

Answer: I was previously asked the question; “Did you discuss any aspect of this case, including any public statements or articles thereon, with any person working in the White House?’ I thought that the portion of the inquiry relating to “public statements or articles was focused on statements or articles about my decision by others, and I responded: “I can not recall ever discussing any public statements or articles about the case with anyone at the White House” My answer remains the same relating to my public statements, specifically the op-ed below, in that I don’t recall ever discussing it with anyone at the White House. Nor do I recall the involvement of the White House in the review or approval of this op-ed. However, once my decision was made and announced in the closing argument, I likely would have informed the White House of any op-ed to be published under my name so that the White House would be aware of it and have the opportunity to comment. This post-decision contact with the White House about an oped explaining my already-made decision does not alter the fact that no one at the White House ever tried to influence any aspect of my decision.

This is by no means all the filings in this tangled who-said-what-when imbroglio. There have been at least 10, some under seal, some heavily redacted (as one here). But, redacted as they may be, they give tantalizing clues to what’s going on under the surface.

NOTES:

1. Any relationship between the DOJ’s arguments about the invalidity of documents leaked without authorization and B&W’s arguments about the “stolen” Mr. Butts papers are purely coincidental.

2. Any confusion between Sharon Eubanks and CREW is purely DOJ’s.

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DOJ Notice Of Apparent Violation Of Court Order, July 20, 2006

CREW reply to \"Apparent Violation,\" July 20, 2006

DOJ reply to CREW on “Apparent Violation,” July 21, 2006

DOJ\'s demand for privileged e-mail messages cited by AP, July 22, 2006.

CREW\'s Opposition To Defendantâ??s Motion For A Protective/ Sealing Order And For Return Of Federal Documents, July 24, 2006

DOJ\'s REPLY IN SUPPORT OF DEFENDANTâ??S MOTION FOR A PROTECTIVE/SEALING ORDER AND FOR RETURN OF FEDERAL DOCUMENTS, July 27, 2006

EXHIBIT A

Remedy is ‘forward-looking’

USA Today
June 9, 2005
Author: Robert McCallum is the U.S. Associate Attorney General.

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DOJ Notice Of Apparent Violation Of Court Order, July 20, 2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 1:05-cv-02078

Judge: Emmet G. Sullivan (AK)

___________________________________

NOTICE OF APPARENT VIOLATION OF COURT ORDER

On July 18, 2006, and again on July 19 , Magistrate Judge Kay ordered plaintiff Citizens th for Responsibility and Ethics in Washington (“CREW”) not to disseminate further internal Department of Justice emails that CREW made exhibits to the deposition of Robert McCallum.

The purpose of the order was to preserve the status quo pending the government’s presentation of a motion to the court for the return of the emails, which were taken from the government and disclosed without authorization. On July 20, 2006, the Associated Press printed a story about Mr. McCallum’s deposition that references and quotes from “[i]nternal Justice Department emails obtained by The Associated Press.” See Exhibit A. The article contains extensive comments from CREW and is posted on CREW’s website.

Respectfully submitted,

KENNETH L. WAINSTEIN

United States Attorney

/s/ Lisa A. Olson

ELIZABETH J. SHAPIRO

LISA A. OLSON (D.C. Bar #38266)

U.S. Department of Justice

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20 Mass. Ave., N.W., Room 7300

Washington, D.C. 20530

Telephone: (202) 514-5633

Telefacsimile: (202) 616-8470

E-mail: lisa.olson@usdoj.gov

Dated: July 20, 2006 Counsel for Defendant

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CREW reply to “Apparent Violation,” July 20, 2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 05-2078 (EGS)

PLAINTIFF’S RESPONSE TO NOTICE OF APPARENT VIOLATION OF COURT ORDER

The U.S. Department of Justice (“DOJ”), defendant in the above-captioned matter, has today filed a Notice of Apparent Violation of Court Order. Without any factual predicate whatsoever, DOJ suggests plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) has apparently violated the Order of Judge Kay directing the parties not to disseminate certain documents that were made exhibits to the deposition of Robert McCallum.1 As discussed below, the filing is based on a patently false misreading of the Associated Press article on which it relies and is otherwise completely lacking in merit.

As purported support for its filing, DOJ relies on a July 20, 2006 Associated Press article which, according to DOJ, “contains extensive comments from CREW.” Notice of Apparent Violation of Court Order (“D’s Notice) at 1. To the contrary, the article contains not one comment from CREW. Instead, the article quotes Ms. Sharon Eubanks, the former director of DOJ’s tobacco litigation team, who the article identifies as “now work[ing] for Citizens for

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1 DOJ never directly accuses CREW of anything but it captions its filing as a notice of apparent violation.

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Responsibility and Ethics in Washington.” Exhibit to D’s Notice at 1. This is the sole reference to CREW and there is nothing in the text of the article that says, either expressly or impliedly, that Ms. Eubanks was speaking on behalf of CREW in any way whatsoever. For the government to so blatantly misrepresent the clear text of the article is disgraceful.

Moreover, as CREW has formally advised DOJ, Ms. Eubanks is recused from all aspects of this case, including offering any advice or information on an informal basis. See Letter from Anne L. Weismann to Lisa Olson, July 22, 20006 (Exhibit A). As this letter outlines, pursuant to D.C. Bar Rule of Professional Responsibility 1.11(d)(2), CREW has taken all appropriate steps to ensure that Ms. Eubanks does not participate in or discuss in any way this litigation. Ms.

Eubanks also sent letters to both Ms. Olson and Attorney General Gonzales attesting, under Rule 1.11(d), that she “will not participate in any manner in [CREW v. DOJ] or in the representation,” and further that she “will not discuss the matter or the representation with any partner, associate, or of counsel lawyer at Citizens for Responsibility and Ethics in Washington.” Letter from Sharon Y. Eubanks to The Honorable Alberto Gonzales, July 11, 2006; letter from Sharon Y. Eubanks to Lisa Olson, July 11, 2006 (attached as Exhibit B).

To the extent DOJ is suggesting that the publication on CREW’s website of the Associated Press article itself constitutes a violation of the Court’s order, Supreme Court precedent makes clear that such a proscription would run afoul of the First Amendment. In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), a case on which DOJ relied extensively when it sought a protective order in this case, the Supreme Court held that a protective order that prohibited the dissemination of information gathered through the discovery process did not violate the First Amendment. The Court made clear that its ruling was premised in significant

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part on the fact that the protective order in question was limited to information gained through discovery, but left the parties free to “disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.” (emphasis added) 467 U.S. at 34.

Moreover, as DOJ is well aware, CREW is by far not the only entity in possession of the sealed documents. On June 28, 2006, Robert McCallum responded in writing to a question posed by the Senate Foreign Relations Committee in conjunction with his nomination to be Ambassador to Australia. The Committee asked the following question:

Question: On June 9, 2005, USA Today published an oped under your name regarding the tobacco cessation remedy proposed in the tobacco litigation. The Committee has received a copy of some internal Justice Department emails about the drafting of the article; these emails indicate that the individuals at the White House had a role in editing or supervising the final text of the article, and that you were copied on these emails.

Do you recall the involvement of the White House in the approval of this article? Does the evidence that White House staff may have been involved in the drafting of this article alter your position that no one at the White House ever tried to influence any aspect of your decisions in the case?

(Emphasis added) (Attached as Exhibit C). From this, DOJ was on fair notice that the emails in question were available to numerous other parties outside of DOJ separate and apart from CREW. And CREW reiterated to DOJ’s counsel during Mr. McCallum’s deposition that numerous entities were already in possession of the documents in question. Accordingly, there is no basis to attribute to CREW the publication in the Associated Press article of information subject to the Court’s order.

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Finally, there is nothing more important to CREW and its counsel than our ethical and legal obligations to this Court and the Bar. We are shocked and disappointed that the Department of Justice has been so reckless and irresponsible in its filing, which insinuates otherwise.

CONCLUSION

For the foregoing reasons, plaintiff respectfully requests that the Court strike DOJ’s Notice of Apparent Violation of Court Order from the record in this matter.

Respectfully submitted,

__/s/________________________

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)

CITIZENS FOR RESPONSIBILITY AND Ethics in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005

Phone: (202) 408-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: July 20, 2006

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DOJ reply to CREW on “Apparent Violation,” July 21, 2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

Civil Action No. 1:05-cv-02078

U.S. DEPARTMENT OF JUSTICE,

Defendant.

___________________________________

GOVERNMENT’S REPLY TO PLAINTIFF’S RESPONSE TO NOTICE OF APPARENT VIOLATION OF COURT ORDER

In its recent notice to the Court, the government carefully refrained from making any accusations against plaintiff CREW with respect to the recent publication of emails protected by order of Magistrate Judge Kay. Instead, as an officer of the court, the government brought the Associated Press article to the Court’s attention, leaving the Court to determine whether its order had been violated and, if so, what action should be taken. Plaintiff’s response to the government’s submission, however, is troubling. The response suggests that CREW construes Magistrate Judge Kay’s order to apply only to members of CREW working on the instant litigation. But there is no possible basis for such an understanding. The order ran to CREW as a party and in its entirety, not to any particular subset. Although Ms. Eubanks was once an employee of the Department of Justice, she is now an employee of CREW. She and every other employee of CREW are equally bound by this Court’s orders, regardless of whether or not they are involved in the present case, and regardless of whether they purport to speak in some other capacity. To suggest otherwise would leave a gaping loophole in the Court’s order, which was

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expressly intended to preserve the status quo.

Even more troubling is that CREW has apparently construed the Court’s order in the most narrow and technical sense. Magistrate Judge Kay made it abundantly clear that the purpose of his order was to preserve the status quo so that the government would have an opportunity to present its motion requesting that the emails in question be returned to the government. Any action intended to thwart that purpose plainly violates the Court’s order. Thus, contrary to CREW’s suggestion, the court’s order does not merely proscribe the delivery of the emails to the press. See Response at 3 (“the emails in question were available to numerous other parties outside of DOJ separate and apart from CREW”). To the extent CREW (including Ms. Eubanks) facilitated in any way the publication of the emails, it has violated the Court’s order and its express purpose. Indeed, CREW’s failure to deny having communicated or coordinated with the media, the “Committee,” or any of the “numerous other parties” it alleges possess these emails in an effort to have them published through “independent” means, see Opposition at 3, speaks louder than any of CREW’s fine distinctions.1

Finally, Seattle Times gives plaintiff no cover for disseminating on its website the very information that the judge sought to protect through its order. As that case made plain, there is no First Amendment right to violate a Court order, and publication on CREW’s website of the very information that the Court prohibited CREW from disseminating violates the intent and spirit of the Court’s order, if not its words. The government does not know how the Associated Press came to publish the protected emails. The circumstances and timing of their publication,

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1 The government did not authorize release of the emails in question, and the fact that the 1 stolen documents may have been disbursed to more than one person or organization does not make their purloining any less a theft.

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however, and CREW’s failure to disavow any role in their publication, raises serious questions.

To protect its own processes and to satisfy itself that its order was not violated, the Court should request a detailed explanation.

Respectfully submitted,

KENNETH L. WAINSTEIN

United States Attorney

/s/ Lisa A. Olson

ELIZABETH J. SHAPIRO

LISA A. OLSON (D.C. Bar #38266)

U.S. Department of Justice

20 Mass. Ave., N.W., Room 6118

Washington, D.C. 20530

Telephone: (202) 514-5633

Telefacsimile: (202) 616-8460

E-mail: lisa.olson@usdoj.gov

Dated: July 21, 2006 Counsel for Defendant

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DOJ\'s demand for privileged e-mail messages cited by AP, July 22, 2006.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

Civil Action No. 1:05-cv-02078

U.S. DEPARTMENT OF JUSTICE,

Defendant.

___________________________________

DEFENDANT’S MOTION FOR A PROTECTIVE/SEALING ORDER AND FOR RETURN OF FEDERAL DOCUMENTS STATEMENT

Plaintiff acquired from an undisclosed source several internal, privileged Department of Justice electronic e-mail messages (“e-mails”) which are the property of the federal government and should be returned. Their public release has never been authorized by the government.

After plaintiff attempted to use these e-mails in the deposition of Robert McCallum earlier this week, the magistrate judge entered an order prohibiting their further dissemination pending a ruling by this Court. The magistrate judge affirmed his order the next day. The following day, an article discussing some of the e-mails appeared in the Associated Press.

Federal records, including privileged documents, may not be removed from the government absent express authorization, and numerous statutes and cases equate such unauthorized removal to theft of government property. Plaintiff is now on notice that it is in the possession of stolen property, and the Court has ample authority to compel the return of that property, including, inter alia, the Court’s inherent authority, the Federal Rules of Civil

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Procedure, the common law writ of replevin, and any additional writs as necessary to effect justice under the All Writs Act. The Court should therefore order the immediate surrender of all copies of these e-mails in plaintiff’s possession, (to include all plaintiff’s current employees) and should seal any future proceedings involving this information to prevent further erosion of the government’s privileges. Moreover, plaintiff should be required to give an accounting under oath of how it obtained these e-mails, what it knows about their misappropriation, and any third parties to whom they have supplied them.

ARGUMENT

1. The E-Mails Are Government Property Whose Release Was Never Authorized, And The Government Is Entitled To Their Return

The e-mails in question are internal Department of Justice communications which appear to have been printed from the government computer of former Department employee Sharon Eubanks. See, e.g., 5 U.S.C. § 2635.101(b)(1), (9) (Because “[p]ublic service is a public trust,” federal employees are required to “protect and conserve Federal property and shall not use it for other than authorized activities”); see also 28 C.F.R. § 45.735-16 (“Misuse of Federal Property”) (same). The Department of Justice specifically provides that federal records “may NEVER be removed” from the custody of the Department of Justice, and that “[a]ll other types of nonpublic Federally-owned documentary materials, including privileged materials, may be removed only with specific approval.” DOJ 2710.8C at ¶¶ 9, 11 (emphasis in original); see also DOJ 2630.2A at ¶ 9 (“Removal of Federally owned property from DOJ facilities is PROHIBITED unless authorized . . . .”) (emphasis in original); DOJ 2620.7 (“The Department of Justice has access to a considerable amount of unclassified information which must be safeguarded . . . to protect . . .

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critical operations of the Department or the integrity of the policy making process”).

The government’s property right to these e-mails is reinforced by the fact that they contain privileged government information, i.e., the internal recommendations and advice of Department of Justice officials regarding certain agency decisions and processes. Specifically, the first set of e-mails (marked as “McCallum 2″) contains successive drafts of an editorial circulated on June 8, 2005, among Department of Justice officials for comment. The editorial explained the basis for the decision by the Department of Justice to reduce the penalty it was proposing in the tobacco litigation. The final version of the editorial was published in the newspaper. Drafts, comments on drafts, and recommendations are quintessentially privileged pursuant to the deliberative process privilege. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 32 (1975); In re Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995) (drafts and predecisional advice and recommendations are privileged), aff’d, 76 F.3d 1232 (D.C. Cir. 1996).

The second e-mail at issue (marked as “McCallum 3″) consists of a July 21, 2005 message from Sharon Eubanks, the former director of the tobacco litigation team, to Stephen Brody, her deputy, in which Ms. Eubanks recounts her recommendations to her superior, Associate Attorney General McCallum, as to the procedures that should be followed during the Office of Professional Responsibility investigation. Again, advice and recommendations fall squarely within the deliberative process privilege. See supra. A paragraph at the beginning of this e-mail appears to have been deleted. It is unknown whether the missing paragraph also contains privileged or confidential information, and whether plaintiff has the unredacted version in its possession. The e-mails in question therefore clearly contain information that is protected

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by the deliberative process privilege.

As the Supreme Court has stated, “[c]onfidential business information has long been recognized as property.” Carpenter v. United States, 484 U.S. 19, 26 (1987). This same principle applies to confidential government information. See, e.g., Snepp v. United States, 444 U.S. 507, 515 (1980) (finding that where former CIA employee published a book about CIA activities without submitting the manuscript for pre-publication review to remove classified information, that it was appropriate to impress a constructive trust upon the proceeds of the breach for the benefit of the United States); Pfeiffer v. CIA, 60 F.3d at 864 (holding that a classified CIA report was “indisputably the property of the Government”).

The government’s property right in confidential or privileged information is implicitly acknowledged in the criminal statutes which prohibit the misuse or mishandling of such information. See, e.g., 18 U.S.C. §§ 793 (information relating to national defense); 794 (same); 798 (classified information concerning codes); 952 (diplomatic codes and correspondence); 50 U.S.C. § 783 (communication of classified information to foreign government). Similarly, 18 U.S.C. § 641 has been held to apply to prohibit the theft, conversion or unauthorized use of confidential government information. See, e.g., United States v. Nichols, 820 F.2d 508, 612-13 (1st Cir. 1987) (confidential law enforcement information); United States v. Jeter, 775 F.2d 670, 679-81 (6th Cir. 1985) (secret grand jury information), cert. denied, 475 U.S. 1142 (1986); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979), approving United States v. Lambert, 446 F. Supp. 890, 892-95 (D. Conn. 1978) (law enforcement computer records); United States v. Friedman, 445 F.2d 1076, 1087 (9th Cir.) (secret grand jury information), cert. denied sub nom. Jacobs v. United States, 404 U.S. 958 (1971); United States

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1 The Associated Press quoted portions from “McCallum 2″ but did not reproduce the emails in their entirety. “McCallum 3″ was neither referenced in the article nor published.

2 The fact that the e-mails may be in the hands of other third-parties does not abrogate the privilege. See Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 742 n.20 (D.C. Cir. 1983) (finding that official’s ultra vires release does not constitute waiver); Safeway Stores, Inc. v. FTC, 428 F, Supp. 346, 347-48 (D.D.C. 1977) (finding no waiver where congressional committee leaked report to the press).

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v. Vicenzi, 1988 WL 98634, *8 (D. Mass. 1988) (confidential government procurement information); United States v. Morison, 604 F. Supp. 655, 663-64 (D. Md) (classified government information), appeal dismissed mem., 774 F.2d 1156 (4th Cir. 1985). By prohibiting the unauthorized use or handling of confidential or privileged government information, these statutes affirm that such information is the property of the United States.

The Department of Justice has never authorized the release of the e-mails in question, and plaintiff has refused to disclose how they came to acquire them. Moreover, before the recent Associated Press article on July 20, 2006, these emails had not found their way into the public domain.1 Thus, while it is impossible to revert to the status quo ante, it is nevertheless possible to avoid further compromising the government’s deliberative process privilege by requiring their return and preventing their use in this litigation2 And regardless of what the documents themselves say, they are still federal property which must be returned.

2. Plaintiff Will Not Be Prejudiced By The Return and Sealing of the E-Mails

Plaintiff will not be prejudiced if they are required to surrender or destroy all copies of the e-mails in question. The documents have no bearing on the issue of whether the agency caused a bad faith delay in processing plaintiff’s FOIA request, and no bearing on the merits of plaintiff’s FOIA suit. The e-mails pre-date plaintiff’s June 28, 2005 filing of its FOIA requests and

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3 The complete deposition transcripts will be filed with the Court on Monday.

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therefore could have no conceivable relationship to the processing of those requests. In fact, in accordance with the Court’s June 1, 2006 Memorandum Opinion and Order, Magistrate Judge Kay ordered plaintiff to stay on point during the depositions, and therefore questions relating to these e-mails would have been precluded on grounds that they were outside the scope of the Court’s Order.

Plaintiff has attempted to argue that these emails go to “motive” and “bias.” But that claim is nonsensical. Mr. McCallum testified that he had nothing to do with plaintiff’s FOIA claim, and that he delegated all document matters related to tobacco (including the OPR investigation and any FOIA requests) to others. Deposition of Robert D. McCallum, Jr.3 (“McCallum Depo.”) at 51 ll. 3-7; 52 ll. 4-5; He further testified that he delegated these matters for the very reason that he assumed that someone would later accuse him of improper interference, and his complete removal from these matters was intended to shield him from such accusations. Id. at 83 l. 16 - 84 l. 6. Absent any foundation whatsoever that Mr. McCallum had any involvement in the processing of plaintiff’s FOIA request or any knowledge of how the request was being processed, questions regarding his “motive” to obstruct that which he knows nothing about serve no purpose other than to harass Mr. McCallum. See Fed. R. Civ. P. 26(c) and 30 (d)(4). Similarly, there is no suggestion whatsoever that Mr. McCallum was untruthful with respect to his testimony that he had no role in the processing of this FOIA request. To the contrary, Daniel Metcalf, the Director of the Office of Information and Privacy (OIP), confirmed that Jeff Senger — the career employee in the Office of the Associate Attorney General to whom Mr. McCallum delegated responsibility – was the point of contact for Melanie Pustay, the Deputy

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Director of OIP who handled CREW’s FOIA request to the leadership offices. Deposition of Daniel Metcalfe (“Metcalfe Depo.”) at 16 l. 12 - 17 l. 7. Mr. Metcalf also confirmed that he never spoke to Mr. McCallum about the processing of plaintiff’s FOIA request, even though Mr. McCallum was Mr. Metcalf’s direct supervisor and he attended regular meetings with him. Id. at 23 ll. 10 - 25 l. 12. In addition, Stephen Brody, the former deputy director of the tobacco litigation team and its current director, testified that he never spoke to Mr. McCallum about plaintiff’s FOIA request. Deposition of Stephen Brody (“Brody Depo.”) at 29 ll. 13-22. There is simply no good faith basis on which to assert that Mr. McCallum is being untruthful about his lack of any role in this FOIA request, nor do the e-mails at issue provide any such evidence.

3. The Court Has Authority to Order the Return of the Documents and to Order Testimony from Plaintiff

The Court has ample authority to issue the relief requested, including its own inherent authority to manage its docket, and its broad discretion to control discovery. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (Courts have “’inherent power’ . . . to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”); Atkins v. Fischer, 232 F.R.D. 116, 128 (D.D.C. 2005) (same) (acknowledging “control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases”) (internal citations omitted). In addition, the Federal Rules of Civil Procedure permit the Court to “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time

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4 The All Writs Act provides: “The Supreme Court and all other courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).

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or place; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters.” Fed. R. Civ. P. 26(c); see also Rule 30(d)(4) (“At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c).”).

Moreover, The All Writs Act, 28 U.S.C. § 1651(a), provides the Court additional authority to award the relief requested here, if more were required.4 28 U.S.C. § 1651(a). The Act serves as “a residual source of authority to issue writs that are not otherwise covered by statute.” See Pennsylvania Bd. of Corrections v. United States Marshal’s Serv., 474 U.S. 34, 43 (1985). The Act authorizes a federal court to issue “auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” Adams v. United States ex rel. McCann, 317 U.S. 269, 273 (1942); see also Harris v. Nelson, 394 U.S. 286, 299 (1969) (All Writs Act is a “legislatively approved source of procedural instruments designed to achieve the rational ends of law.”).

Although a mandatory writ issued pursuant to the Act is an extraordinary remedy, this is an extraordinary case. See Pennsylvania Bd. of Corrections, 474 U.S. at 43 (the All Writs Act empowers federal courts to fashion extraordinary remedies when the need arises). We have

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5 The government can also initiate an action for replevin of the stolen material. See Wood v. Several Unknown Metropolitan Police Officers, 835 F.2d 340 (D.C. Cir. 1987) (discussing replevin action under District of Columbia law).

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shown that plaintiff possesses privileged information which belongs to the government, and further, that the former employee from whose government computer this information apparently was printed is now plaintiff’s employee. Some of these privileged e-mails were quoted in the newspaper just two days after the issuance of an order protecting them from further dissemination, and one day after that order was reaffirmed. The All Writs Act authorizes injunctive relief under precisely such circumstances. As one Circuit has held, an order under the All Writs Act is appropriate if “directed at conduct which, left unchecked, would have had the practical effect of diminishing the court’s power to bring the litigation to a natural conclusion.” ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1358 (5th Cir. 1978).5 All of these authorities – the Court’s inherent powers, the Federal Rules of Civil Procedure and the All Writs Act – empower the Court to order plaintiff to give an account, under oath, of how it acquired the e-mails and whether it has disseminated the e-mails to others.

Without immediately obtaining this information, the United States cannot ensure the integrity of the privileged information, nor can this Court exercise complete jurisdiction over government property which may exist in the hands of third parties. See Harris, 394 U.S. at 299 (”the courts may rely upon [the All Writs Act] in issuing orders appropriate to assist them in conducting factual inquiries).

CONCLUSION

For the foregoing reasons, defendant’s motion for a protective/sealing order and for return

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-10-

of federal documents should be granted.

Respectfully submitted,

KENNETH L. WAINSTEIN

United States Attorney

/s/ Lisa A. Olson

ELIZABETH J. SHAPIRO

LISA A. OLSON (D.C. Bar #38266)

U.S. Department of Justice

20 Mass. Ave., N.W., Room 7300

Washington, D.C. 20530

Telephone: (202) 514-5633

Telefacsimile: (202) 616-8470

E-mail: lisa.olson@usdoj.gov

Dated: July 22, 2006 Counsel for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

Civil Action No. 1:05-cv-02078

U.S. DEPARTMENT OF JUSTICE,

Defendant.

___________________________________

ORDER

The Court having considered defendant’s motion for a protective/sealing order and for return of federal documents, and good cause having been shown, it is hereby

ORDERED that defendant’s motion is granted, and it is further

ORDERED that plaintiff will immediately either return all copies of the electronic mail messages in its possession, including the possession of all of its employees, to defendant or destroy them, and will not disseminate those documents or use them outside these proceedings, and it is further

ORDERED that further proceedings involving the messages in question or information contained therein will be conducted under seal.

Dated: _______________, 2006

__________________________________

EMMET G. SULLIVAN

UNITED STATES JUDGE

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CREW\'s Opposition To Defendantâ??s Motion For A Protective/ Sealing Order And For Return Of Federal Documents

**———————————————————

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________________

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 05-2078 (EGS)

________________________________________:

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR A PROTECTIVE/ SEALING ORDER AND FOR RETURN OF FEDERAL DOCUMENTS

STATEMENT

Under the guise of a motion for a protective order, the U.S. Department of Justice (“DOJ”) seeks to compel Citizens for Responsibility and Ethics in Washington (“CREW”) to return to the government all copies of certain documents that have been sealed pending resolution of DOJ’s motion.1 As demonstrated herein, DOJ’s motion is both procedurally improper and substantively without foundation. DOJ’s real motive here could not be clearer – ensuring that the public does not have access to information that raises a serious question about the veracity of the government’s witness, Robert McCallum, the former Associate Attorney General.

First, DOJ’s motion is premised on its claim that the documents in question were stolen. DOJ has not, however, offered any evidence to support this extraordinary and inflammatory

—–

1 Judge Kay’s order sealing these documents was not based on a consideration of the merits of DOJ’s claims regarding sealing, but was an effort to preserve the status quo until this Court could address the issues.

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2

allegation. There was absolutely nothing improper in the manner in which CREW acquired these documents and there is simply no evidence from which the Court can properly conclude that the documents were, in fact, stolen. Should there be any question, CREW is hereby submitting a declaration that attests to the fact that CREW did not acquire these documents in an improper manner. If the Court needs more information beyond what CREW has provided in its public filing, CREW will be happy to make an in camera, ex parte proffer further explaining the details of how CREW acquired the documents in question.

Second, DOJ has not demonstrated that the documents are federal records. Mr. McCallum made clear in his deposition testimony that he likely did not retain a copy of McCallum Exhibit 22 as he did not consider it worthy of preservation. Similarly, McCallum Exhibit 3 lacks any indicia that it is a federal record worthy of preservation. At most, these were temporary or personal records with a limited usefulness, which the creator had no obligation to preserve as federal records.

Third, DOJ has not established that McCallum Exhibit 3 is privileged, and any privilege that attaches to McCallum Exhibit 2 is outweighed by CREW’s need for the documents to address the very serious issue of Mr. McCallum’s veracity during his deposition. As the D.C. Circuit has recognized, the deliberative process privilege must yield “where there is reason to believe the document sought may shed light on government misconduct.” In re Sealed Case, 121 F.3d 729, 739 (D.C. Cir. 1997). That is precisely the case here.

Fourth, the relevance of the information in both sealed documents could not be plainer.

—–

2 Because these documents are currently under seal, CREW will refer to them herein as McCallum Exhibits 2 and 3. With this brief CREW is also filing under seal the complete text of both McCallum Exhibits 2 (attached as Exhibit A) and 3 (attached as Exhibit B).

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3

Mr. McCallum testified very specifically during his deposition REDACTED

Fifth, McCallum Exhibit 2 was already in the public domain before CREW attempted to use it during Mr. McCallum’s deposition. That DOJ never before sought the documents’ return or even suggested they were improperly in the public domain underscores DOJ’s true motive here – to keep the Court and the public from considering evidence that bears directly on Mr. McCallum’s veracity.

Finally, DOJ has not justified its extraordinary request that the Court compel CREW to return to DOJ all copies of these documents in CREW’s possession. DOJ’s rhetoric aside, this is far from an “extraordinary case.” Defendant’s Motion for a Protective/Sealing Order and For Return of Federal Documents (“D’s Motion”) at 9. To equate this case to ones involving classified information, diplomatic codes, or secret grand jury information is absurd. The only value to the information at issue here is its role in establishing Mr. McCallum’s lack of truthfulness.

ARGUMENT

1. DOJ Has Not Offered Any Evidence To Support Its Claim That The Documents At Issue Were Stolen.

DOJ’s extraordinary request that the Court compel CREW to return to DOJ all copies of McCallum Exhibits 2 and 3 in CREW’s possession rests on DOJ’s unsubstantiated claim that the documents are stolen. DOJ offers no proof for this serious charge, relying instead on two unproven assertions: (1) the documents “appear to have been printed from the government computer of former Department employee Sharon Eubanks,” D’s Motion at 2, and (2) DOJ “has never authorized the release of the e-mails in question.” Id. at 5.

As to the first assertion, DOJ has simply offered its own assessment of the documents,

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4

untethered to any forensic or other external evidence. Even more to the point, DOJ has not explained the significance of its observation, beyond implying that this is a sufficient basis from which to conclude that Ms. Eubanks, the former Director of the tobacco litigation team, stole the documents. That Ms. Eubanks may have printed out the e-mails in question (which DOJ has not proven) reveals nothing about how those e-mails came into the public domain. The declaration of Anne L. Weismann, Chief Counsel for CREW (“Weismann Decl.”), attests to the fact that CREW did not acquire the documents from Ms. Eubanks or any other source that had a past or current connection to DOJ.3 See Weismann Decl. at ¶3 (attached as Exhibit C). In short, the mere fact that Ms. Eubanks’ name appears at the top of the e-mails reveals nothing about how they left DOJ.

As to DOJ’s second claim that DOJ never authorized the release of the e-mails, this too is a bald assertion without any support whatsoever. DOJ has not offered any evidence, by declaration or otherwise, attesting to what DOJ has done to verify is claim of unauthorized disclosure. More fundamentally, DOJ has not even proven that the e-mails in question have been preserved at DOJ, much less that someone stole them from DOJ files. Nor has DOJ demonstrated who had access to the e-mails, in whose files they reside, and whether or not any of those individuals followed authorized procedures for removing the documents. Absent such evidence, DOJ’s naked allegations are insufficient support for its demand that the documents be returned to the government.

2. DOJ Has Not Proven That The Documents In Question Are Federal Records.

—–

3 According to DOJ, CREW has “refused to disclose” how it “came to acquire” the emails at issue. D’s Motion at 5. Judge Kay never requested that CREW make such a disclosure.

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5

It is axiomatic that DOJ can only lay claim to documents that are federal records. In this regard, not every document created by a government employee during the course of his or her employment qualifies as a “record.” Instead, that term has a very specific meaning assigned by statute:

‘records’ includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them . . .

44 U.S.C. §3301 (emphasis added).

DOJ has not made any showing of how the documents in question qualify as federal records worthy of preservation. This alone is fatal to its motion for a protective/sealing order.

Mr. McCallum was quite clear in his testimony that the contents of McCallum Exhibit 2 were not the kind he would normally preserve. Indeed, he was quite dismissive about their significance, testifying:

REDACTED

Deposition of Robert D. McCallum, Jr. (“McCallum Depo.) at 78 (attached as Exhibit D). In view of the fact that the documents concern REDACTED, his views on their insignificance and their lack of an informational value carry special weight.4

—–

4 Should DOJ dispute Mr. McCallum’s characterization, then CREW assumes these emails are within the documents DOJ purported to have identified months ago as responsive to CREW’s FOIA requests. Given that DOJ has refused to provide CREW with any information about the nature of the responsive documents, CREW requests that the Court require DOJ to make a showing of whether DOJ identified McCallum Exhibits 2 and 3 as responsive to

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6

McCallum Exhibit 3 has even less indicia that it is a federal record worthy of preservation. The fairest characterization of the document is that it is from one DOJ employee to another DOJ employee memorializing a telephone conversation the first employee had with a supervisor during which that employee complained about a non-litigation matter over which the supervisor had no control and no decision-making role to play. Surely DOJ cannot be suggesting that it is entitled to the return of what is clearly a personal e-mail that memorializes REDACTED.5

DOJ’s rhetoric aside, there is simply no evidence that these documents are federal records that were ever maintained as such in DOJ files pursuant to the Federal Records Act, 44 U.S.C. §3301.

3. McCallum Exhibit 3 Is Not Privileged And Any Privilege That Attaches To McCallum Exhibit 2 Is Outweighed By CREW’s Need For The Document.

A fundamental underpinning to the government’s motion is that the documents at issue contain privileged or confidential information to which CREW and the public do not have a right of access. DOJ has failed to carry its burden of establishing that any privilege attaches to McCallum Exhibit 3. With respect to McCallum Exhibit 2, any interest the government has in preserving the confidentiality of its decision-making process is outweighed by CREW’s interest in information that bears directly on Mr. McCallum’s veracity and for which CREW has no other

—–

CREW’s FOIA requests. DOJ’s failure to include these documents would be entirely inconsistent with its claim here that they are federal records that were in the possession of DOJ.

5 DOJ suggests that because McCallum Exhibit 3 appears to contain a missing paragraph, CREW may be in possession of an unredacted version that contains privileged or confidential information. D’s Motion at 3. As the Weismann Declaration makes clear, DOJ’s ominous speculation is unfounded – CREW has never had access to any other material that may have been contained in the body of this e-mail. See Weismann Decl. at ¶5.

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7

source.

First, as a matter of process, DOJ has asked the Court to accept that the documents are subject to the deliberative-process privilege, but has failed formally to invoke the privilege. The government has made no formal claim of privilege attested to by an individual who is authorized to make the claim and who has personally considered the matter. Neither has the government substantiated such a claim by a detailed specification of the information over which DOJ is claiming the privilege and the harm that would flow from disclosure of the agency’s internal processes. See Landry v. Federal Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C. Cir. 2000) (citing Northrop Corp. v. McDonnel Douglas Corp., 715 F.2d 395, 399 (D.C.Cir. 1984)). Instead, DOJ relies on the generalized characterizations of its counsel that the documents are pre-decisional drafts (McCallum Exhibit 2) or contain an attorney’s “recommendations to her superior” (D’s Motion at 3 describing McCallum Exhibit 3). DOJ’s failure to make the requisite evidentiary showing to establish that the privilege even applies in the first instance is alone a basis to deny its motion.

As a substantive matter, even if DOJ had properly invoked the deliberative process privilege (which it has not), that privilege is a qualified one that can be overcome by a greater showing of need.6 In balancing the interests of the two parties, this court must consider:

(I) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the ‘seriousness’ of the

—–

6 In the FOIA context, by contrast, the deliberative process privilege – which is encompassed within Exemption 5 – is treated as absolute in that courts do not weigh the needs of the individual FOIA requester for the information against the government’s need to withhold the information. The dispute here arises in a discovery context, where the deliberative process privilege is always treated as a qualified privilege that can be overcome by a sufficient showing of need.

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8

litigation and the issues involved; (iv) the role of the government in the litigation ; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

First Eastern Corp. v. Mainwaring, 21 F.3d 465, 468 (D.C. Cir. 1994), quoting In re Subpoena Served Upon Comptroller of Currency, 967 F.2d 630, 634 (D.C. Cir. 1992). Applying these factors here it is clear that the balance is struck in favor of disclosure.

First, the evidence CREW seeks is highly relevant as it bears directly on Mr. McCallum’s veracity. REDACTED

During his deposition in this matter, CREW asked Mr. McCallum expressly whether, in light of McCallum Exhibit 2, he felt a need to correct REDACTED. Mr. McCallum responded REDACTED

McCallum Depo. at 42-43 (Exhibit D).

Following his deposition, CREW obtained a copy of Mr. McCallum’s written “clarification” that he had referenced in his testimony. On June 28, 2006, mere weeks before his deposition in this matter, Mr. McCallum provided a written response to the following question:

Question: On June 9, 2005, USA Today published an oped under your name regarding the tobacco cessation remedy proposed in the tobacco litigation. The Committee has received a copy of some internal Justice Department emails about the drafting of the article; these emails indicate that the individuals at the White House had a role in editing or supervising the final text of the article, and that you were copied on these emails.

Do you recall the involvement of the White House in the approval of this article? Does the evidence that White House staff may have been involved in the drafting of this article alter your position that no one at the White

**———————————————————

9

House ever tried to influence any aspect of your decisions in the case?

(Attached as Exhibit F) Mr. McCallum responded in pertinent part: “My answer remains the same relating to my public statements, specifically the op-ed below, in that I don’t recall ever discussing it with anyone at the White House. Nor do I recall the involvement of the White House in the review or approval of this op-ed.” Id.

In other words, either Mr. McCallum did not testify truthfully in his deposition REDACTED, or he did not respond truthfully to Senator Biden. In either case, this is evidence that bears on his credibility and veracity as a witness in this matter.

The government makes the remarkable suggestion that only his veracity in testimony relating to his processing of CREW’s FOIA requests is relevant. D’s Motion at 6. The veracity of a witness is not, however, a piecemeal affair. If Mr. McCallum testified untruthfully about the REDACTED, this Court is entitled to infer that he may not have testified truthfully about his knowledge of and role in the processing of CREW’s FOIA requests.

McCallum Exhibit 3 also evidences a lack of truthfulness on Mr. McCallum’s part.

REDACTED

.7 The possibility that Mr. McCallum may have submitted inaccurate or untruthful responses to the questions of the Senate Foreign Relations Committee is again relevant evidence on his veracity in these proceedings. In addition, CREW has no other source for this information. Absent the ability to match

—–

7 As explained in CREW’s motion to reconsider Judge Kay’s limitations on the scope of the depositions, CREW was not permitted to ask any follow-up questions on this topic or on the substance of McCallum Exhibit 3.

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10

up Mr. McCallum’s testimony here and his responses to the questions of the Senate Foreign Relations Committee with contemporaneous documents that reflect a different truth, CREW has no way of disproving Mr. McCallum’s version of events. Moreover, the seriousness of the issue that this discovery is aimed at answering – whether the government acted in bad faith – tips the balance decidedly in favor of overriding any claim of privilege.

Indeed, the D.C. Circuit has recognized that “where there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public’s interest in honest, effective government.’” In re: Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997), quoting Texaco Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995) (citations omitted). Under this rationale, this Court should not hesitate to override any claim of privilege for documents REDACTED , but which shed light potentially on government misconduct.8 To otherwise allow DOJ to hide behind the deliberative process privilege would plainly not serve “the public’s interest in honest, effective government.” DOJ’s privilege claim with respect to McCallum Exhibit 3 is even more unsound. According to DOJ, this exhibit is protected by the deliberative process privilege because it “recounts” Ms. Eubanks’ “recommendations to her superior.” D’s Motion at 3. Mr. McCallum, however, has denied having any authority REDACTED . In response to Senator Biden’s written question of whether REDACTED , Mr. McCallum responded “No.” Exhibit E at 22. DOJ cannot have it both ways – either REDACTED

———————————————————

8 CREW notes that it seeks the documents not for the evidentiary value of the deliberations themselves, but rather to prove REDACTED

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11

, in which case he did not answer Senator Biden’s question truthfully, or he had no role to play, REDACTED . As a necessary corollary, the deliberative process privilege is not available to shield the contents of that discussion from public view.

Beyond identifying the deliberative process privilege, DOJ’s motion repeatedly characterizes the documents in question as “confidential.” DOJ has failed to specifically invoke any other privilege, however, and the cases it cites that deal with confidential law enforcement information, classified information, national defense information, secret grand jury information, and diplomatic codes (D’s Motion at 4-5) are simply inapposite.

4. As DOJ Knew, McCallum Exhibit 2 Was In The Public Domain Prior To Mr. McCallum’s Deposition.

In support of its claim that CREW should be ordered to return the documents to the federal government, DOJ claims that the e-mails contained in McCallum Exhibit 2 had not found their way into the public domain prior to an Associated Press article of July 20, 2006. D’s Motion at 5. This is untrue.

On June 28, 2006, Mr. McCallum offered a written clarification to a question from Senator Biden regarding his USA Today editorial. The question to which he was responding referenced specifically the fact that the Committee had “ received a copy of some internal Justice Department emails about the drafting of the article; these emails indicate that the individuals at the White House had a role in editing or supervising the final text of the article, and that you were copied on these emails.” (emphasis added) (Exhibit F). Mr. McCallum never questioned the Committee about how it had come into possession of these emails, nor did he or anyone else at DOJ assert that they were government property subject to a claim of privilege.

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12

It is clear from DOJ’s conduct that it is selectively claiming privilege when it suits the government’s needs or the needs of high-level DOJ officials. DOJ’s failure to seek the documents’ return or to invoke a privilege upon first being notified that the documents were in the public domain constitutes a waiver. See SEC v. Lavin, 111 F.3d 921, 930 (D.C. Cir. 1997). It also highlights the disingenuous nature of DOJ’s claim that the documents have found their way into the public domain because of CREW’s actions, rather than the actions of a third party or parties not before this Court.

5. DOJ Has Not Justified Its Extraordinary Request That The Court Compel CREW To Return All Copies Of The Documents To DOJ.

Relying on Rule 26(c) of the Federal Rules of Civil Procedure and the All Writs Act, 28 U.S.C. §1651(a), DOJ asks the Court to compel CREW to return to the government all copies of McCallum Exhibits 2 and 3. D’s Motion at 8-9. DOJ offers no support for its novel interpretation of Rule 26(c) as authorizing its requested relief, and CREW knows of none. Given that the requested relief is plainly not encompassed within the eight categories of relief expressly authorized by Rule 26(c),9 that Rule provides no basis for its issuance.

While DOJ recognizes that a mandatory writ issued under the All Writs Act is “an

—–

9 As set forth in Rule 26(c) a court is authorized to order: “(1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, by opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.”

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13

extraordinary remedy,” D’s Motion at 8, it makes the self-serving claim that “this is an extraordinary case.” Id. The facts reflect otherwise.

As shown above, DOJ has not demonstrated that the documents in question are federal records, that they were taken improperly, that they are properly privileged, or that they were not already in the public domain before the July 20, 2006 Associated Press article. Relying on innuendo and character attacks, DOJ claims the extraordinary writ it seeks is justified by the mere fact that CREW currently employs Sharon Eubanks who, DOJ seems to assume (incorrectly) provided CREW with the documents. This assumption, like every other stated basis for the relief, is false.

CONCLUSION

During the past week, DOJ has accused CREW of stealing government documents, its counsel has accused CREW of trying to “con” this Court,10 and now it has accused CREW of violating a Court order. Such charges reflect a distinct lack of civil discourse by government counsel. But even more seriously, they impugn the integrity, ethics, and professionalism of CREW and its counsel, and demonstrate a reckless disregard for the rules of law and evidence.

For the reasons set forth herein, CREW respectfully requests that the Court deny DOJ’s Motion and order that McCallum Exhibits 2 and 3 and all portions of the transcript that contain information from these exhibits be unsealed.

Respectfully submitted,

—–

10 See Deposition of Daniel Metcalfe at 40 (attached as Exhibit G).

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14

__/s/________________________

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)

CITIZENS FOR RESPONSIBILITY AND Ethics in Washington

1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005

Phone: (202) 408-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: July 24, 2006

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DOJ\'s REPLY IN SUPPORT OF DEFENDANTâ??S MOTION FOR A PROTECTIVE/SEALING ORDER AND FOR RETURN OF FEDERAL DOCUMENTS, July 27, 2006

**———————————————————

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 1:05-cv-02078

___________________________________

REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE/SEALING ORDER AND FOR RETURN OF FEDERAL DOCUMENTS

Plaintiff is in possession of federal property which was removed without authorization, and it should be returned promptly. Plaintiff’s arguments that it should be allowed to retain these documents, McCallum Exhibits 2 and 3, are uniformly without merit.

1. The Undisputed, Operative Facts Compelling The Return Of The Documents Are That They Are Government Property And Were Taken Without Authorization

Plaintiff’s argument that it should not be required to return the documents in question is based on three erroneous assumptions, i.e., that in order for their return to be required, the documents must have been stolen by plaintiff; they must be federal records; and they must be privileged. Plaintiff’s Opposition to Defendant’s Motion for a Protective/Sealing Order and for Return of Federal Documents (“Pl. Opp.”) at 3-8. These are all red herrings. The critical facts compelling the return of the documents is that they (1) are the property of the federal government, and (2) their release has never been authorized by the federal government. See Declaration of Stuart Schiffer (Exhibit 1). The term “government property” includes “any form

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-2-

of real or personal property in which the government has an ownership . . . or other property interest,” including “the Government mails.” 5 C.F.R. § 2635.704(b)(1). Similarly, the “nonpublic, Federally-owned documentary materials” whose removal is prohibited without specific approval include “nonrecord materials, and personal papers, regardless of the nature of the medium or the method or circumstances of recording.” DOJ Order 2710.8C at ¶¶ 5(d), 111 (Exhibit 2); see also 18 U.S.C. § 641 (making it a crime to “embezzle[], steal[], purloin[], or knowingly convert[] . . . any . . . thing of value of the United States”). The e-mails at issue are internal communications among employees regarding official government business. As such, they are federal property, regardless of who stole them, regardless of whether they qualify as federal “records” under 44 U.S.C. § 3301, and regardless of whether they are privileged (which they are).

Without citing any authority, plaintiff claims it is “axiomatic” that defendant can only lay claim to documents that are federal records. Far from being axiomatic, this notion is inconsistent with the law, under which the unauthorized removal of any federal property is prohibited. Whether Mr. McCallum believed the documents were worthy of preservation in his personal files, Pl. Opp. at 5, is also irrelevant to whether they are government property. Similarly unimportant is the fact that McCallum Exhibit 3 may have involved a nonlitigation matter. Pl. Opp. at 6. As plaintiff admits, McCallum Exhibit 3 involved a “procedural aspect of the OPR investigation,” Pl. Opp. at 10, and as such, it concerns official government business. Finally, while Ms. Weismann attests that she did not acquire the documents from anyone with a

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1 “Nonrecord materials” are defined as “[t]hose Federally-owned documentary materials 1 that do not meet the statutory definition of records (44 U.S.C. § 3301).” DOJ Order 2710.8C at ¶ 5(f)(1).

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-3-

connection to the Department of Justice, Pl. Opp. at 4, she is notably silent on the question of whether plaintiff, including any of its employees, played a role in facilitating the acquisition of the documents by the Associated Press. Such facilitation would constitute a violation of the Court’s order preserving the status quo and prohibiting plaintiff from disclosing information contained in the documents. See Deposition of Robert D. McCallum, Jr. (“McCallum Depo.”) at 99-100, 118-19; Deposition of Stephen Brody (“Brody Depo.”) at 20. And while plaintiff may not have wrongfully acquired the documents (and defendant has never alleged that it has), it is on notice now that they are federal property that was taken without authorization.

Plaintiff erroneously contends that the government must formally invoke the deliberative process privilege. Pl. Opp. at 7. The privileges are intended to guard information from disclosure. Fed. R. Civ. P. 26(b). Here, the government is trying to recover information, not withhold it, so the invocation of privilege is unnecessary. Moreover, while the privileged nature of these documents reinforces the need for their return to the government, the fact that they are privileged is not critical. Rather, the mere fact that they concern official government business confers proprietary status on them and compels their return in the absence of authorization for their release.

On the basis of the Senate Foreign Relations Committee’s vague reference to “some internal Justice Department emails about the drafting of the USA Today article,” plaintiff says defendant was on notice that McCallum Exhibit 2 was public and has therefore waived the privilege. Pl. Opp. at 13. However, aside from the fact that defendant’s right to the return of the documents is by no means contingent on a claim of privilege, the Department of Justice did not know that the Committee had a copy of McCallum Exhibit 2, and it had no reason to know. The

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-4-

Committee did not specifically identify the e-mails as those in McCallum Exhibit 2, and more to the point, it did not indicate in any way that the e-mails were government property taken without authorization. Moreover, there is no evidence that Committee showed the e-mails to Mr. McCallum or anyone else at the Department of Justice, nor is it the role of the Department of Justice to interrogate Congress as to how it obtained documents. See Pl. Opp. at 13. Finally, plaintiff offers no evidence that McCallum Exhibit 3 has ever been publicized.

2. The Documents Have No Bearing On Mr. McCallum’s Veracity

Contrary to plaintiff’s claim, neither of the documents bears on Mr. McCallum’s veracity. On the basis of Mr. McCallum’s testimony that he did “not recall” the White House reviewing or approving a USA Today editorial written after he made “the decision to propose the smoking cessation program remedy” in the tobacco case, plaintiff argues that Mr. McCallum misled the Senate Foreign Relations Committee into believing that he never discussed the decision with the White House before he made it. Pl. Opp. at 8; McCallum Exhibit 2. Plaintiff is distorting his testimony. Mr. McCallum has consistently testified that he communicated with the White House after the decision was made, but not before. Exhibit 3 at13-14.

First, the Committee asked Mr. McCallum whether he discussed the decision with the White House, and he responded that he did not discuss the decision “prior to making it or prior to its presentation in closing argument,” but that he did have certain discussions with the White House “[a]fter the decision was made and presented in court.” (Emphases added). Exhibit 3 at 2

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2 The Committee posed the following questions: 2

d. You have stated in a meeting with Committee counsel that you made the decision to propose the smoking cessation program remedy in the amount of $10 billion. Is that correct?

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12-13.

Second, the Committee asked whether Mr. McCallum “discuss[ed] any aspect of this case, including any public statements or articles thereon,” with the White House, and he responded that he could “not recall” any such discussions. Exhibit 3 at 13. Plaintiff suggests that Mr. McCallum is lying because the string of e-mails in McCallum Exhibit 2 indicates White House involvement in the USA Today article. Pl. Opp. at 8-10. However, there is no evidence whatsoever that Mr. McCallum was lying when he said that he simply could “not recall” such communications. Exhibit 3 at 13. Moreover, the June 9, 2005 USA Today article was drafted and published after the June 7, 2005 closing argument in which the remedy decision was announced in open court, Brody Depo. at 63:8 - 64:13; McCallum Depo. at 75:5-21; 79:20 -

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It is correct that I made the decision.

e. Did you discuss this matter, and your decision thereon, with any person working in the White House? Please be specific.

I did not discuss my decision on the cessation remedy with anyone at the White House prior to making it or prior to its presentation in closing argument. After the decision was made and presented in court, I did inform the White House Counsel’s Office on the status of the case, the closing argument, and my decision.

f. Did you discuss any aspect of this case, including any public statements or articles thereon, with any person working in the White House? Please be specific.

On rare occasions, I did provide the White House with a status report on the case, generally through the White House Counsel’s Office. On those rare occasions, no one at the White House suggested any action or directed any action in the case but merely received information on the status of the case. No one at the White House ever tried to influence any aspect of my decisions in this case. I can not recall discussing any public statements or articles about the case with anyone at the White House. However, since my nomination to be Ambassador, I have discussed the case and the cessation remedy with persons at the White House in relation to my nomination and the confirmation process.

Exhibit 3 at 12-14.

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80:13. Therefore, Mr. McCallum would have no motive to lie about his lack of recollection, since his testimony already admitted that post-decision contacts with the White House occurred. Exhibit 3 at 13-14.

When the Committee subsequently told Mr. McCallum that it had received certain “internal Justice Department emails” suggesting a White House role in editing the USA Today article, Mr. McCallum testified that he still could not recall any White House involvement, and clarified that in responding previously, he had interpreted the Committee’s question as referring to the time period before the remedy decision had been made. Pl. Opp. at Exhibit F. This was a 3 reasonable assumption, given that the Committee’s entire focus regarding this issue was on whether the decision resulted from political pressure – that would necessarily have been imposed before the decision was made. Exhibit 3 at 6-14; Pl. Opp. at Exhibit F. In that regard, as Mr. McCallum stated, “this post-decision contact with the White House about an op-ed explaining my already-made decision does not alter the fact that no one at the White House ever tried to influence any aspect of my decision.” Pl. Opp. Exhibit F. Thus, contrary to plaintiff’s convoluted logic, Mr. McCallum’s lack of recollection about White House input into the USA Today editorial does not indicate a lack of veracity.

Plaintiff also erroneously argues that McCallum Exhibit 3 calls into question Mr.

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3 In his clarification, Mr. McCallum he went on to say that “once my decision was made 3 and announced in the closing argument, I likely would have informed the White House of any op-ed to be published under my name so that the White House would be aware of it and have the opportunity to comment.” This is consistent with his deposition testimony that he did not specifically recall White House involvement in this editorial, see also McCallum Depo. at 71:10- 17 (“I don’t remember specifically any particular input but I am sure that there were opportunities for people . . . at the White House . . . .”), and that he “did not discuss [his] decision on the cessation remedy with anyone at the White House prior to making it . . . .” Exhibit 3 at 13.

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McCallum’s assertion that he did not speak with the head of the Office of Professional Responsibility (“OPR”), Marshall Jarrett, about the OPR investigation. Pl. Opp. at 10; see McCallum Depo. at 84:13-18; 149:12 - 150:19. However, Mr. Jarrett has already corroborated Mr. McCallum’s testimony that the two did not speak. Mr. Jarrett declared that Mr. McCallum “has taken no part in supervising or directing OPR’s investigation in this matter,” “did not attend any of the meetings,” and “gave no instructions or guidance on OPR’s conduct of the investigation.” March 10, 2006 Declaration of H. Marshall Jarrett at ¶ 9 (Exhibit 3 to Defendant’s Opposition to Plaintiff’s Motion for Discovery). Furthermore, McCallum Exhibit 3 shows no first-hand knowledge about any alleged contact between Mr. McCallum and Mr. Jarrett, so plaintiff’s allegations about untruthfulness are based purely on speculation. It is more likely that Ms. Eubanks, who was allegedly typing her e-mail at the same time that she attempted to listen and converse, Pl. Opp. at 10, simply misunderstood Mr. McCallum. See McCallum Depo. at 149:12 - 150:19. Mr. McCallum’s recollection is also consistent with Mr. Brody’s testimony that he had no knowledge of any contacts between Mr. McCallum and Mr. Jarrett. Brody Depo. at 55:10-13.

Plaintiff argues that if Mr. McCallum testified untruthfully about the involvement of the White House in the USA Today editorial, which he clearly did not, then the Court is entitled to infer that he may not have testified truthfully about his knowledge of and role in the processing of plaintiff’s FOIA requests. Pl. Opp. at 10. Plaintiff neglects to point out, however, that the Court would also have to make another quantum leap and infer that Mr. McCallum also improperly influenced the individuals who processed the FOIA requests. Such an inference contradicts all of the evidence to date. The individuals who processed the requests, Melanie

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Pustay and James Kovakas, have submitted detailed declarations indicating that they were not pressured by Mr. McCallum or anyone else to delay the processing of plaintiff’s FOIA requests.

See March 10, 2006 Declaration of Melanie Ann Pustay; March 10, 2006 Declaration of James M. Kovakas. Moreover, the deponents that plaintiff questioned have testified that they played no role in processing the FOIA requests and that there were no discussions with Mr. McCallum about them. McCallum Depo. at 51:3-7; 52:7-12; 56:11-16; 81:17 - 82:4; 83:13 - 84:3; 88:9-12; 88:16-20; 89:2-4; Brody Depo. at 27:2 - 28:1; 29:9-22; 30:1-4; 51:9-20; 61:9-12; Deposition of Daniel Metcalfe (“Metcalfe Depo.”) at 10:14-11:14; 13:5-12; 23:1-15; 24:13-16; 25:7-12; 31:17- 21; 31:22 - 32:8. The documents in question therefore provide no support for plaintiff’s farfetched and completely unsubstantiated proposed inferences of bad faith.

3. The Return Of The Documents Is Warranted

This is an extraordinary matter that requires an extraordinary remedy. Federal property has been take from the government’s possession without authorization. The property in question appears to have been stolen, and the All Writs Act, in conjunction with the Fed. R. Civ. P. 26(c) (authorizing a court, inter alia, to order that “disclosure . . . not be had,” and that “certain matters not be inquired into”), provides the Court with the authority to order them returned.

CONCLUSION

For the foregoing reasons, defendant’s motion for a protective/sealing order and for return of federal documents should be granted.4

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4 Contrary to plaintiff’s claim, Pl. Opp. at Conclusion, defendant has never accused 4 plaintiff of stealing documents. With respect to plaintiff’s potential violation of a Court Order, plaintiff’s counsel has never denied a role in facilitating the acquisition by the Associated Press of McCallum Exhibits 2 and 3.

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Respectfully submitted,

KENNETH L. WAINSTEIN

United States Attorney

/s/ Lisa A. Olson

ELIZABETH J. SHAPIRO

LISA A. OLSON (D.C. Bar #38266)

U.S. Department of Justice

20 Mass. Ave., N.W., Room 7300

Washington, D.C. 20530

Telephone: (202) 514-5633

Telefacsimile: (202) 616-8470

E-mail: lisa.olson@usdoj.gov

Dated: July 27, 2006 Counsel for Defendant
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EXHIBIT A

Remedy is ‘forward-looking’

USA Today
June 9, 2005
Author: Robert McCallum is the U.S. Associate Attorney General.

The U.S. Department of Justice has proven time and again a strong commitment to holding the tobacco industry accountable for past fraud and abuse. Over the past nine months, we have made a strong and decisive case showing decades of fraudulent behavior by companies within the tobacco industry.

First and foremost, the government’s suggested cessation program comports with a recent decision of the D.C. Circuit Court of Appeals. The United States vigorously argued for the industry to disgorge $280 billion in profits for decades of fraudulent behavior. This spring, the Circuit Court ruled in favor of the tobacco industry, reversing a prior decision of the trial court, and held that any remedies in the case must be “forward-looking” to prevent and restrain future wrongful acts, rather than to address even lingering consequences of past acts.

The trial court and the government are bound by this decision.

Equally important is the fact that the suggested cessation program, as proposed by the government Tuesday, is only an initial requirement, one based upon compelling evidence that the defendants will continue to commit frauds. If court-appointed monitors find that the defendants continue to commit acts of fraud, the court can extend and expand the program to exceed the $10 billion over five years proposed Tuesday, in order to prevent and restrain the continuation of fraudulent activities by the tobacco companies. Under such circumstances, the overall length and cost of the proposed remedy is open-ended and could be less than, equal to, or more than the expert witness study introduced into evidence by the government. That study suggested $130 billion over 25 years. The government’s proposal is therefore forward-looking, focused on future frauds by the defendants and consistent with the Circuit Court opinion.

Critics have questioned the motives behind the government’s cessation program proposal. But its form and structure are dictated by the law. The cessation remedy is but one element of a comprehensive and coordinated array of solutions to prevent and restrain future frauds. It does not abandon, but rather embraces, the costing methodology the government has presented with expert testimony, and then applies that methodology — as the appellate decision requires — to future frauds rather than past acts.

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