Draft Disbarment Investigation: Goodling Counsel John Dowd Makes Alleged Reckless Statement [Witness Tampering, Obstruction]
John M. Dowd [Akin Gump Strauss Hauer Feld & LLP; 907773045; Emory Law ’65L Contact] is presumed innocent until proven guilty.
Ref Alleged invalid request for 5th Amendment immunity.
Akin Gump Strauss Hauer Feld is linked with a PAC that provides funds to both the DNC and GOP. They openly provided campaign funds to the very DNC majority they say is a threat to their client. The last time they gave money to the GOP Majority was in 2001, but gave funds to the GOP in 2007.
___ How can the firm credibly question the integrity of legal processes connected with either political party after the firm has consistently provided funds to those who are attempting to examine his client?
___ If there is a problem with the DNC actions in interviewing his client Goodling, why has the firm provided funds to the DNC?
The following outlines a draft investigation plan for purposes of reviewing statements Dowd released in re the US Attorney firings. Dowd appears to have substantially violated rule 3.4, calling into question his competence as counsel, and his motivation for apparently hoping others do not fully cooperate.
White House and DOJ Experience
Dowd has extensive experience with internal DoJ operations. Ref He's been involved with investigations of the FBI; involved with Iran-Contra hearings defense; selected by Attorney GEneral to conduct reviews; chief of an organized crime strike force [DoJ Criminal Division]. Dowd is a former Marine Captain with JAG experience. Wonder how well he knows Griffin?
Firm Connections to FISA, Surveillane Litigation
Akin Gump's Paul Butler has publicly commented in re the President's illegal NSA surveillance, fatally asserting, "FISA does not prohibit the government from doing data mining." Strange how the DOJ IG found there was a problem with the NSLs; and DOJ OPR was blocked from reviewing what Akin Gump would have us blieve was no big deal.
Akin Gump is also connected with Sonsini in re Hewlett Packard's alleged illegal dometic spying Michael Madigan was former counsel for President Bush’s 2000 campaign. How's that e-mail into the GWB43.com, Michael?
DNC and RNC Connections
Ref How's the "Civic Action Committee", with 2210 individual contributions for both the DNC and RNC. Maybe that's why impeachment is off the table.
Ref Donor to RNC RNC REPUBLICAN NATIONAL STATE ELECTIONS COMMITTEE 10/26/2001 1000.00
Ref: IRI = NeoCon ?
PAC provides funds to Restore America which directly seeds money to GOP.
7/13/06 Restore America PAC Inc. Federal Account
PO Box 12526
Shawnee Mission, KS 66282-2526 Ref
The funds go to GOP Members of Congress: Ref
Background
These are serious issues of interest to war crimes prosecutors. Congress is encouraged to solicit written responses to the following questions under penalty of perjury; then conduct an open inquiry into Dowd's alleged effort to dissuade the public to follow all Committee rules.
Dowd's client Goodling is White House counsel. Other White House counsel attending AG meetings in re US Attorney firings. Ref: 24 of 61 kw="McIntosh" McIntosh's presence at the 17 Jan 2007 AG meeting is a problem: He's with the White House counsel's office. [Lower left, Associate Counsel to President].
___ When does McIntosh plan to share his concerns with this illegal US Attorney firing plan which included his name [See page Ref: 24 of 61 of the DoJ E-mails]?
___ Which binder did McIntosh have assigned to him? There were 23 binders, all numbered with a stamp in the lower right. [ See 5 of 37 ]
___ Does McIntosh have an explanation why the President's notes on the White House binders have not been discussed in any DOJ Staff e-mail; or would Rove's C: Drive be able to provide an explanation as to which blackberries connected with GWB43.com were used to disseminate the President decision to override concerns with the US Attorney firings?
Please recheck DoJ AG scheduler Andrew Beach's schedule for other White House counsel visits to the AG; and look for e-mail in the format: [AG OTUS2007; or OTUS2007, AG] through GWB43.com in re Rove's C:Drive access; and blackberry upload/connection times.
US Code
Ref 2 USC 1505: Obstruction of Committees ["endeavors to influence"]
Ref 2 USC 192: Refusal to testify.
Ref 2 USC 193: Dowd's concern that Goodling is in a "perjury trap" is arguably a frivolous excuse to pretend GOodling might become infamous. Too late.
US Attorney Manual
Ref DOJ OPR: When do the DOJ Staff knowledgeable of Goodling's emails plan to review Dowd's comments and make an appropriate report to the US Attorneys and other DOJ OPR officials?
Ref Once this information was provided to DOJ OPR, was there a reason that there was not an immediate, preliminary investigation?
Ref Pending proceeding.
Ref Outside counsel representing DoJ Staff counsel associated with the President's illegal firings of US Attorney have made an arguably reckless statement which demands clarification before Congress and review by the DC Bar.
Ref All Dowd's allegedly fatal assertions in re his client attach to his client. Goodling is presumed to have given informed consent to all of Dowd's public statements in re Goodling.
Dowd's statements appear to substantially raise doubts about the integrity of the US Justice system, something which an attorney is not permitted to do, especially in light of the attorney standards of conduct. The ABA needs to review what evidence Dowd has related to his allegations that there was something nefarious with the Libby prosecutions. If he has no evidence, which is most likely, He needs to stop making comments as an attorney who raises doubts about the competence, character, and integrity of US Attorneys who have prosecuted Libby.
___ Why is John Dowd encouraging anyone who is innocent not to fully cooperate with Congress?
___ How do John Dowd's statements as an attorney square with his attorney standards of conduct?
___ Is there a reason John Dowd is suggesting that innocent people should not cooperate with lawful inquiry?
These are troubling issues which the DC Bar and House-Senate Judiciary need to review in the context of John Dowd's Continuing Legal Education, his conduct as an attorney, and whether he is openly hoping to dissuade the public from cooperating with Congress. His comments do not reflect well on him, or his judgment; and they raise reasonable questions about his motivations to dissuade people to truthfully answer simple questions which are unrelated to any legal problem.
Interesting how alleged war criminals who have violated the Constitution are quick to invoke the Constitution as a shield. DOJ Staff cannot expect to rely on a functioning justice system that they've helped undermine. Curious how they've crated a problem, then used their mess to argue, "I cannot testify because . . . [of the mess they created]."
The House has the power to impeach Goodling for any reason. If impeached, regardless her potential conviction, she cannot be pardoned. All evidence of Goodling’s communications can be turned over to war crimes prosecutors for adjudication for her alleged complicity with grave breaches of Geneva.
Model Rules In Legal Community
The model rules are designed to inspire public confidence in the legal profession. Dowd has allegedly engaged in a reckless course of conduct designed to thwart, circumvent, not follow, and undermine public confidence in the Justice System.
Dowd Duties Before Congress Ref: Ref
(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.
___ When will Dowd certify in writing under penalty of perjury to the House and Senate Judiciary Committees that he remains in fully compliance with rules 3.3.
___ What disclosures does Dowd plan to make to the House and Senate Judiciary Hearings in re Goodling's alleged "perjury trap"?
___ Once Dowd fatally assert that his client was in a "trap", is Dowd planning to make remedial efforts to ensure the House and Senate Judiciary are provided the required disclosures?
___ How does Dowd contrast or reconcile [a] his duty to cooperate with the tribunal in re 3.3; with [b] his overt statements that the tribunal and legislative hearing is not something he, his clients, or others, even if innocent, should cooperate with?
___ Does Dowd have a plan to timely provide evidence to the DC Bar of specific things he asserts exist warranting doubt about the validity of the fact finding?
___ How can Dowd's client be in a trap when on question has been asked?
___ How does Dowd plan to explain why is client -- as he asserts fatally -- is in a "trap" -- yet, his client is presumed to be innocent until proven guilty?
___ Is there something that Dowd plans to show that his client is or is not guilty or innocent?
___ Does Dowd plan to assert that his client is guilty, and cannot be fairly questioned?
Dowd appears to have created a problem for himself.
Dowd's Disclosures in Writing To House and Senate Judiciary
Dowd is reported to have provided a letter to Congress.
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
__ Is Dowd stating that the tribunal is unfair; and that there are legal issues which are prejudicing his client?
___ Where is Dowd's evidence that any Member of Congress has violated the law or is engaged in illegal activity in re this hearing involving Goodling?
___ Is it Dowd's position that the law will be ignored; and that these Congressional hearings do not require any witness to cooperate, provide evidence, or freely communicate information even if they are innocent any criminal activity?
___ How does Dowd justify asserting that it is true or false that no one, even an innocent person, should cooperate with Congress?
___ Is there a reason that Dowd has not communicated his beliefs about the concerns he has with the rule of law to the appropriate authorities in the DC Disciplinary Board?
___ How can Dowd argue that any innocent witness is well served if they are advised not to fully cooperate with a Congressional review?
___ Does Dowd plan to stand by his apparent assessments and implicit argument that obstruction of Congress, refusal to cooperate with Congress, or dilatory measures in working with Congress are acceptable?
___ Does Dowd understand that it is a serious issue when client counsel appears to have fatally asserted the client is, may be, or could be guilty of something; yet, not all the evidence related to the client's conduct have been disclosed by other cooperating witnesses?
Alleged Goodling False Statements to Congress
Goodling has created e-mails. These e-mails are evidence. Congress is looking at them.
A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Goodling's e-mails can be contrasted with other evidence.
___ What is the reason Dowd believes his client might commit perjury?
___ What interest does Goodling have to commit perjury?
___ How does Dowd explain his apparent decision to refuse to offer testimony of his client -- as not permitted under the Model Rules?
___ Why is Dowd suggesting that Goodling might be in a perjury trap; yet the basis to decline evidence has nothing to do with the truth or falsity of the information, but whether the client is or is not linked with a criminal investigation?
___ Has Dowd been advised that is client is the target of a criminal investigation outside Congress, DOJ OPR, or DOJ IG?
___ When does Dowd plan to discuss the evidence or questions the FBI may have asked his client during the criminal investigation?
___ What is the basis for Dowd to decline to permit his client to testify before Congress; yet there has been no disclosure of any criminal activity or investigation?
___ Which Grand Jury has Dowd's client been asked to appear?
___ Is Dowd prepared to provide fully legal assistance to Goodling in her apparent FBI interview before a Grand Jury?
Ref It is unprofessional for a lawyer like Dowd to raise doubts about the administration of justice; or assert, imply, or leave the impression that the justice system or any legal process might not be fair.
Dowd needs to explain his statements in light of the ABA standards of conduct which prohibit engaging "in conduct that is prejudicial to the administration of justice"
Dowd as an advocate in a legislative setting is subject to the ABA Standards of Conduct.
Dowd's Media Disclosures
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.Ref
Arguably, Dowd's statements about the proceedings -- implicitly suggesting that the proceedings are not going to be fair -- prejudices the ability of Congress to conduct its business, arrive at truth.
Dowd allegedly:
A. knew his comments would be disseminated in the open media; and
B. knew that he was making an extra judicial statement.
Dowd's comments appear to prejudicing others not to cooperate with Counsel.
Whether Dowd intended this or not is meaningless. He is competent counsel and should now making these types of statements about Congressional proceedings in the open media, especially when designed to dissuade fully cooperating, would have no other effect than to leave the impression that there was something wrong with the oversight, as opposed to the alleged illegal activity Dowd is alluding to in his so called perjury trap.
DoD E-mails Initiated By Goodling
As an employee, Goodling knew, or should have known, that the e-mails she freely crated and disseminated could be released if evidence of alleged illegal activity or public corruption. Consider
. . .a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.Ref
The e-mails linked with Goodling allegedly are benign, and she is presumed innocent until proven guilty. The statements Dowd has released do not appear to be linked with a concern with "undue" prejudicial effect; but with the opposite: That Goodling supposedly has done something that puts her in a perjury trap.
The "undue prejudice" does not appear to be linked with publicity, but with the Goodling e-mails which Goodling on her own freely generated.
All e-mails Goodling is being asked about are e-mails Goodling generated.
Dowd does not appear to have made his statements with the objective to mitigate the "recent adverse trial publicly" but the opposite: To mitigate the chances Congress will arrive at the truth, regardless the dissemination of adverse inferences about his clients e-mails. The e-mails his client generated are not in the media, but have been lawfully disclosed to Congress.
___ How does Dowd justify his statements?
___ How is Dowd explaining his statement as it relates to "protecting" his client form "undue prejudicial effect" linked with trial publicity?
___ How is Dowd confusing the issue: Pretending that his clients e-mails are publicity; then asking others to be 'Protected" from the discussion related to DoJ and White House counsel Staff e-mails?
___ Does Dowd have an explanation why his client will be "Protected" if the e-mails Goodling has released are the subject of public commentary?
___ What is Goodling's explanation for permitting Dowd's statements to be released?
___ Does Dowd understand that Goodling is his client; and that as his client Dowd's apparent efforts to dissuade full cooperation with Congress appear to attach to Goodling?
___ Does Dowd hope to have some believe that the e-mails Goodling authorized were immunized once the public discussed this information and the media openly questioned the competence of Goodling and Dowd?
___ How does Dowd show that he has appropriately limited his disclosure, comments, and other things about the Congressional oversight to narrowly mitigate the publicity, as opposed to his apparent larger objective of stifling all Congressional inquiry or cooperation by any other innocent witness in fully supporting fact finding?
___ Is Dowd attempting to pretend that his client's e-mails are not evidence of criminal activity on their own; but that the e-mails have somehow mutated and become an entity that is creating "adverse publicity"?
___ Is Dowd attempting to pretend that his client's interests are best served if Congress makes adverse inferences?
___ Is there something Dowd would like to share about what is client knew about alleged illegal activity; but has apparently not provided to authorities a report of her alleged peer misconduct in re the Attorney Standards of Conduct?
Impartiality to Congress Ref
Dowd does not appear to be impartial.
It does not appear that Dowd is refraining from attempting to influence Members of Congress about their duties to instigate facts. Dowd appears to hope to pretend that the Members of Congress should refrain from doing something that they are lawfully allowed to do.
Dowd's comments appear to be designed to influence the Members of Congress and public to raise doubts about things which Dowd has no business disrupting, or creating smokescreens.
Alleged Dowd Obstruction Ref
A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
___ What does Dowd hope to offer innocent witnesses if they refuse to cooperate with Congress: A better result?
___ Why is Dowd apparently attempting to, through these public statements, attempting to obstruct Senate and House judiciary statements by innocents?
___ Why is Dowd apparently counseling others to not to fully cooperate with Congress?
___ Does Dowd have a reason why he is not encouraging the innocent to tell the truth?
A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
___ What inducement is Dowd offering?
. . .
A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
___ Why is Dowd attempting to dissuade innocents from cooperating with Committee rules that require fully cooperating with all Congressional inquiry?
. . .
A lawyer shall not: (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
___ What evidence does Dowd have that "innocent" people -- who are not employees or agents of Goodling’s' -- will benefit or should not voluntarily give information?
___ How does Dowd explain the criteria in section (f) which do not appear to be supported?
___ Is Dowd arguing absurdly that all people who are innocent are connected, related to, and employed by Goodling?
___ If Dowd would have us believe that all innocent people are not related to, employed or connected to Goodling, how does Dowd explain his apparent advice that innocent people not fully cooperate with the inquiry?
It is also a problem when counsel "knowingly assist or induce another to" . . . "violate or attempt to violate the Rules of Professional Conduct". His client is with the White House counsel's office; and has professional relationships with DOJ and outside counsel legal staff.
It remains to be understood to what extent Goodling had a duty to report alleged illegal activity but failed; or as an attorney knew of misconduct and refused to act. Whether Goodling does or does not cooperate is meaningless to determine whether she was aware of information which she should have reported.
Ref Before Goodling or Dowd formalized their attorney-client relationship, they had separate duties to report evidence of peer misconduct. Regardless whether Goodling cooperates, the issue for the White House, DOJ, and GOP staff counsel turns on its head:
___ When were they aware of this activity which Dowd's counsel says would implicate his client?
___ How long have Goodling's peers known about the conduct Goodling's counsel has fatally asserted openly without qualification would subject his client to legal repercussions?
___ Is there a reason that Dowd has apparently fatally asserted that his client is guilty of some unspoken illegal activity?
Ref How much money has Dowd paid to any US government entity?
Dowd's Alleged Effort to Cloud Professional Judgment of Attorney Peers
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.Ref
It appears Dowd's comments were designed to induce attorneys to arrive at the same legal conclusion: That innocents should not cooperate with Congressional inquiries.
This appears, on the surface, to suggest that Dowd was hoping to regulate the professional judgment of peers in the legal community and induce them to render legal advice that may be illegal, or not fully cooperate with Congressional inquiry.
___ Why is Dowd publicly stating that the proper legal advice might be to obstruct justice, not cooperate fully, or not truthfully answer all questions?
___ How does Dowd reconcile his attorney standards of conduct, his statements, and the sworn oath of office he has to fully assert his professional duties as an attorney?
Disclosure of Materiality Ref
___ Which facts has Dowd allegedly not revealed that are material, and relate to his decision to imply, suggest, leave the impression, or allow others to believe that not fully cooperating with Congress was a good thing?
Evidence
Ref There is no basis for any attorney to assert that "innocent" witnesses should be "well advised" not to testify. I know of a group of people who are witnesses, whose counsel have advised them to cooperate, and who are willing to answer any question truthfully and completely.
There is no basis for Dowd to suggest that innocent witnesses have something to fear or should not agree to testify under oath.
Dowd's statement is not acceptable, incorrect, and contrary to the interests of justice, oversight, and fact finding:
"It is the politically charged environment created by the members of the committee ... that has created the ambiguous and perilous environment in which even innocent witnesses would be well advised not to testify," Dowd
The error is for counsel to encourage anyone not to testify. This is arguably a reckless statement. Dowd is using a "generalized" fear of possible consequences as a basis for him to assert that clients should not cooperate.
Clients are free to choose what they are willing to do. It remains unclear whether Dowd is encouraging everyone to not cooperate with Congress. If that is the case, we are prepared to pen the files and share the other information which has not been publicly disclosed.
Congress is free to make a request; and we would be Happy to provide any additional assistance. Dowd's "advice" is not in the interests of protecting the Constitution; it is in the interests of something else: His client's apparent legal problem, which he appears to have fatally disclosed.
The correct approach is to agree to testify, but invoke their right not to incriminate themselves.
Dowd's comments need to be reviewed in the context of the Attorney Duty to encourage clients to cooperate with law enforcement and Congressional hearings; but not obstruct.
Relevance
Dowd needs to provide an explanation why he is equating his clients conduct; or raising doubts about the integrity of the justice system.
"One need look no further than the recent circumstances and proceedings involving Lewis Libby," Dowd said, a reference to the recent conviction of Vice President Dick Cheney's former chief of staff in the CIA leak case.
Discussion: Competence of Counsel
Normally when counsel communicates something, they hope to achieve an objective. Title 2 and Title 18 USC 1502 prohibit "endeavors to influence" witnesses appearing before Committees.
___ Why is Dowd releasing information to the media -- a means by which informatoin is communicated to the pbulic -- if Dowd does not hope to influence anyone?
___ Why is Dowd spending time communcating if he does not hope to influence someone not to appear?
Dowd's Communications: Allegedly Dilatory or Corruptly Influencing Witnesses
Either Dowd is making foolish statements that have no relevance to anything, raising the question why he is bothering to comment but to waste time; or Dowd hopes to use the media to raise doubts about the justice system, COmmitee process; and dissuade others from cooperating.
One reasonable conclusion: Dowd communicated with the intent, objective, and goal of influenceing the public to not fully cooperate; and raise the bar on whether adverse inferences could be makde about his client who Dowd fatally asserted was in a "perjury trap."
Conclusion
There appears to be reasonable basis for Members of Congress to review the motivation of Dowd's statement in the context of "endeavors to influence" in re 1505; then expand the line of inquiry into Model Rule 3.3.
Whether the DC or State Discipiplinary boards are provided evidence is secondary.
DOJ OPR should be advised of apparent Title 28 exception reports in re obstruction which do not appear t ohave been timely provided to DOJ OPR and US Attorneys.
Recommendations
1. Open an investigation into Dowd's alleged reckless comment in re alleged vilations of the US COde and alleged misconduct in re 3.3. Forward investigation plan to State, DC disciplinary board; and US Attorney.
2. Brief DoJ OPR, DOJ IG, and House/Senate Judiciary Committees.
3. Confirm Title 28 exception reports have been filed by Attorney General in re non-enforcement of these alleged illegal activities.
4. Member of Congress, GAO, DoJ IG: Expand GAGAS audit scope in re SAS 99.
5. Discuss possible impeachment of Dowd as witness.
6. Forward investigation plan to State Attorney Generals for their review in re plans to prosecute sitting President at the State level.
posted by Constant @ 10:05 PM
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