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Friday, March 30, 2007

Brad Berenson, Kyle Sampson, GOP Allegedly Conspire To Disrupt Congressional Hearing

It is serious business when counsel allegedly conspires to disrupt a Congressional hearing.

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Ref Allegation: Effort to disrupt proceeding to ensure Senate Judiciary did not have a quorum of six [6] [Rule III. 1.] to discuss business unrelated to the ongoing inquiry, requiring only one Senator. [III. 2.] [ Ref ]

Ref: 42/156 Inherent contempt: Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821). ( h/t )

Ref 3.3 Prohibiting misstatements or misconduct before a tribunal by an attorney.

1. Berenson is reported to have asked, after Kyle went missing, "Where's Kyle?"

2. Berenson is Kyle's private counsel with Sidley Austin.

3. As former White House counsel and as an experienced attorney involved with White House alleged illegal activity related to unlawful prisoner abuse in the Geneva Conventions, Berenson knew or should have known that Rule 3.9 imposes a duty on counsel to fully comply with 3.3 before the Senate Judiciary Hearing. [ Ref ]

4. Berenson is alleged to have violated this provision prohibiting fraud:
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

5. Berenson is alleged to have not disclosed the required remedies, but did the opposite: Feigned confusion over an issue he well understood was being orchestrated to disrupt the proceedings. Berenson is alleged to have not complied with his attorney standards of conduct; and did not, as required, disclose correct information to disclose what he knew to the Senate Judiciary Chairman. Berenson is alleged to have done the oppose, feigned confusion, and made fatal assertions which raise doubts about his competence as counsel to effectively interact with his client before an official proceeding before the Senate.

6. Berenson is alleged to not have the intention, as required, to fully comply with this requirement under the Attorney Standards of conduct: "(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse." [ Ref ]


7. Based on information and belief, Berenson and Kyle knew what was happening and where each other was.

8. Based on information and belief, Berenson and Kyle knew the imminent disclosure of disruptive information which they knew would interfere with a proceeding.

9. If Berenson were competent, he would have privately raised the question, "Where's Kyle?" not openly disclose information raising doubts about his competence to coordinate with his client.

10. If Berenson wanted to maintain attorney-client confidences, he would have not disclosed something unless he wanted that disclosure to be known; or that disclosure was in the interests of his client to leave false impressions with the Committee.


11. Berenson, Sampson, and others in the Republican party had no meaningful information in their suitcases. This was a ruse designed to create the impression that they were well prepared. However, information from the weekend shows counsel was preparing to cover issues wholly unrelated to the hearing.

12. Berenson intended for the public to hear his comment, "Where's Kyle" not because he wanted to know where Kyle was, but because he was willing to create the impression that he was confused. However, Berenson, if he were competent, would never disclose something that would raise questions about the communication between Sampson and Berenson. Berenson appears to have deliberately raised the question, "Where's Kyle" not to ask for information, but to feign confusion and doubt about an issue they well understood: Kyle was using the interruption for a break to consult privately with persons known to Berenson and the GOP.

13. The above conduct, if proven true, raise serious questions about Brad Berenson, his motivations as counsel to allegedly disrupt a Congressional hearing; and the basis for Berenson to communicate information that was contrary to his attorney-client relationship: The alleged incorrect perception that he was confused. Most likely, he was not confused, and would have privately discussed the issue with co-counsel to determine the information.

14. Berenson, Sampson, and other to-be-named conspirators in the Republican Party are alleged to be involved with efforts to disrupt Congressional hearings, feign ignorance of issues they well understood, and leave impressions with the Committee and Members of Congress that were not timely corrected as they had a duty to correct under the rules of the Congress and as counsel under the American Bar Association and Attorney Standards of Conduct.

15. Berenson, Sampson, and other to-be-named conspirators in the Republican Party are alleged to have deliberately provided false, misleading, inaccurate information directly or indirectly to the Chairman of the Senate Judiciary Committee with the intent that it be relied upon, disrupt the hearing, and remove the Chairman from the hearing.

16. The collective efforts to Berenson, Sampson, and other to-be-named conspirators in the republican party are alleged to have orchestrated, planned, implemented, and concealed an effort to disrupt a Congressional hearing with the intent to do something they could not lawfully do or was outside what they were permitted to do.

17. The purpose of Berenson's communications was allegedly to leave the false impression that he was confused, hide his knowledge of what was happening, leave a false impression with the Committee Chairman, and hide his knowledge of where Kyle Sampson was.

18. Sampson is alleged to have left the meeting without being properly released; and to have departed under the false pretenses that there was a break. Little did Sampson realize was that by departing without consulting with counsel, this did not have the intended effect. Contrary to the desired impression that he and counsel were not communicating, Sampson and Berenson have coordinated with their colleagues in the White House. This information can be confirmed by reviewing the White House e-mails showing Sampson and Berenson were the subject of a joint conversation, e-mail and discussion.

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19. The model rules of professional conduct do permit attorneys to disrupt Congressional hearings, engage in conduct that raises doubts about their seriousness as counsel.

20. The model rules also require colleagues of Sampson, Berenson, and White House counsel to timely report information related to this alleged conspiracy to disrupt a Congressional hearing.

21. The Honorable Senator Feinstein is on the Senate Rules Committee and was at the Senate Judiciary Committee examining Sampson. It appears the intent of Berenson's comments was to mislead an expert on the Senate rules which do not permit disruption of Committee Hearings. The combined efforts to Sampson, Berenson, and other to-be-named conspirators is alleged to have attempted to target, mislead, and disrupt Senator Feinstein in her interpretation of the rules and her knowledge that the disruption was not reasonable and contrary to the Senate Committee rules.

22. Sampson, Berenson, and the GOP owe an apology to the Senate Judiciary Chairman for their alleged plan to leave false impressions, create confusion, disrupt the hearing, and attempt to paint a false impression that they did not know what was happening.

23. Sampson, Berenson, and others legal counsel connected with the White House have been in communication and have been the subject of joint communications when counsel would have us believe they were not concerned with the issue. Ref

24. Berenson and Sampson are alleged to have well orchestrated the many responses including, "I do not recall" not with the intent to cooperate, but create false impressions that they were cooperating. Sampson's assertion that he did "not recall" is not supported by reasonable inquiry. Sampson appears to well understand that he was making inconsistent statements; and is alleged to have misled the committee about whether he did or did not leave memorandum with the Attorney General.

25. Sampson fatally made inconsistent statements about memorandum. The only way that Sampson could have provided the memorandum to the Attorney General, which he denied doing but was required to coordinate the meeting with the AG, was if there were e-mails sent outside official communication channels to the Attorney General. [ Detailed allegations in re Sampson

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26. The Senate Sergeant at Arms needs to be brought into the nexus. Berenson knew, or should have known the Committee rules which were published in the Congressional Record which do not permit disruptions.

27. The Senate Judiciary Chairman under the Senate rules is permitted to go into private session to discuss these allegations against Berenson, Sampson, and others. However, it appears Berenson's fatal (and allegedly misleading) assertion that he was not in contact with his client was designed to dissuade understanding that the intent of the disruption was to avoid a private Senate discussion where counsel was not present.

When the Chair finds it necessary to maintain order, he shall have the power to clear the room, and the committee may act in closed session for so long as there is doubt of the assurance of order.

29. The Senate Majority leader, outside control of counsel or the GOP, may call an immediate meeting to discuss these issues:

The majority leader or his designee shall announce to the Senate whenever consent has been given under this subparagraph and shall state the time and place of such meeting. The right to make such announcement of consent shall have the same priority as the filing of a cloture motion.

30. Office of Legislative Counsel is formally advised that they may have information related to a potential rule violation which should be brought to the attention to the DC Bar in re an investigation into Sampson, Berenson, and other legal counsel affiliated with the GOP. If there is evidence of misconduct by any counsel, this information should be provided to the DC Attorney Disciplinary Board for review.

31. Senate Judiciary Chairman Leahy is encouraged, and supported wholeheartedly, in a decision to subpoena Berenson, Sampson, and other alleged co-conspirators.

32. Senate Counsel and Senators are encouraged to review the above allegations and consider appropriate rule changes to the Senate to ensure counsel with Sidely Austin, the GOP, or any other counsel get a clear message: Do not attempt to disrupt the proceedings of Congress.

with full recognition of the constitutional right of the Senate to change such rules (so far as relating to the procedure in the Senate) at any time, in the same manner, and to the same extent as in the case of any other rule of the Senate.

33. The Senate reserves the right to make any rule that specifically targets, monitors, and reviews evidence of attorney-client plans to disrupt, interfere, and leave false impressions with the Senate.

34. The Senate Sergeant at Arms is encouraged to consult with the Senate leadership and Committee Chairman to decide whether there is a basis to issue a warrant against Berenson, Sampson, and other allege co-conspirators for contempt of the Senate.

36. It is the discretion of the Senate, not the GOP or outside counsel, what conduct may satisfy a contempt citation. Counsel is Denied the right to expect that it may be give any special privilege before the Senate.

the Senate to hold any individual or entity in contempt of the Senate. Ref

37. Senate Counsel is encouraged to review the basis for action in the DC Court against Sampson, Berenson, and alleged co-conspirators. The US Attorney is not required to be involved with this proposed legal action against Sampson, Berenson, or other defendants.


38. Berenson, Sampson, and others in the GOP are alleged to have engaged in a conspiracy to disrupt the Senate Committee. This allegedly violates the Senate Rules. The Senate Sergeant at arms is authorized to arrest, detain, and gather evidence related to the alleged violation of Senate rules.

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___ What communication method, system, or information technology system was used to plan, organize, and conceal the efforts to disrupt the Congressional hearing?

___ When did Sidley Austin personnel coordinated with the White House, GOP, and Sampson to orchestrate this planned ruse?

___ Why would Berenson fatally assert confusion about his client's whereabouts, yet this disclosure is not convincing; nor is it credible that counsel would have openly asked a question given counsel's close proximity to his client; and his attorney-client relationship and ongoing coordination with the White House counsels office?

___ How does Berenson plan to defend himself before the DC Bar in re an alleged effort to disrupt the Senate?

___ Does Berenson, Sampson, or anyone in the GOP have a plan to defend themselves against a Senate contempt citation which may or may not be fully enforced by the Senate Sergeant at Arms?

___ When did it enter Berenson's mind that Rule 3.3 prohibits counsel from asserting confusion on issues he allegedly well understood, had planned, but was attempting to conceal from the Senate Judiciary Chairman?

___ What is Berenson's explanation for coordinating with White House counsel and EOP on issues that were supposedly "not a big deal," Yet significant enough to generate many hours of work on the weekend prior to the appearance before Congress?

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If you want anyone to believe that Sidley Austin, despite entering the hearing with piles of notes to assist Sampson; and having worked on the weekend to prepare supporting for Sampson; and having sat through testimony, eyeing Sampson's every move to ensure he stayed out of trouble ....that suddenly, Sidley Austin counsel "lost" their client?

That defies reason.

More absurd, is despite Sampson hiring counsel; working with them; coordinating with them on what happened; we are asked to believe that Sampson out of the blue did something without coordinating with counsel.

Again, that defies reason.

There were too many eyes on Sampson; and Sampson is smart enough, despite his bungling, to just walk out without coordination.

Most likely: The "missing Sampson problem" was coordinated, orchestrated; and the "apparent confusion" was planned, understood; and Berenson well knew what was going on.

It makes no sense for counsel, backup, and the other Sidley Austin assistants to "lose" their client, especially when they had documents ready to hand to Sampson to assist him. Counsel was watching his every move, hoping to find an excuse to slip him a piece of paper form their files to help their client. Yet, suddenly, we asked to believe that this close coordination fell apart, and long hours of preparation and coordination fell by the wayside.