Saturday, April 28, 2007

Monica Goodling Instructs DOJ Officials to Delete Documents

Friday, April 27, 2007

Another Friday, another document dump from the DOJ. I haven't had time to look through very many of the documents, but one of the first ones I came across was this one from Monica "I plead the Fifth" Goodling. Notice the instruction in boldface type (click on the image to zoom in):

Yes, that's an instruction to delete documents. And notice the date: February 12, 2007. That's well after Congress began investigating this matter. I don't believe any subpoenas or document requests had yet been issued (someone please correct me if I'm wrong about that), but it was pretty clear by then that document requests were likely.

Let's review the timeline. On January 17, 2007, Senators Feinstein and Leahy grilled Alberto Gonzales on the recent spate of U.S. Attorney firings. On January 25, 2007, Senator Schumer announced that he was going to hold hearings on the firing of U.S. Attorneys. And on February 6, Schumer held the first set of hearings, in which Deputy Attorney General Paul McNulty testified that Bud Cummins was not asked to leave for "performance-related" reasons, but rather to make way for Karl Rove protege Tim Griffin. That damaging testimony helped propel this story to the front pages.

And two days later, on February 8, 2007, Senators Durbin, Schumer, Murray, and Reid sent a follow up letter to Alberto Gonzales asking all sorts of questions arising out of McNulty's testimony, including a number of questions about the replacement of Bud Cummins with Tim Griffin.

It is in this context that Monica Goodling, four days later, sends out the above-displayed email, which attaches updated talking points re: Griffin/Cummins and various other U.S. Attorney related issues and instructs the recipients to delete prior versions of the documents.

As a litigator, I can tell you, that's a real no-no. You never instruct people to delete documents that are relevant to a pending investigation. Never. That's true even when the investigating body hasn't yet got around to requesting those documents. It smacks of obstruction. Indeed, the Obstruction of Congress statute, 18 U.S.C § 1505, specifically prohibits any attempts to obstruct "the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress." The penalty is up to 5 years in prison.

I'm not sure if 18 U.S.C § 1505 has been interpreted to apply to the destruction of documents that have not yet been formally requested--I suspect it hasn't--but it is, at the very least, incredibly dodgy to be instructing people to delete documents that relate to a pending Congressional inquiry. If an employee of a private entity were caught giving such an instruction after an investigation had been initiated, it would incur the everlasting wrath of the government agency or prosecutor's office conducting that investigation. It would be a real mess.

That's why the first piece of advice a private entity receives from its lawyers when it learns that it is being investigated is to issue a document preservation notice to all employees. The last thing you want is to have the government request a document and then learn that it was deleted or destroyed AFTER the investigation was initiated. Just ask the people who used to work for Arthur Anderson. The sad demise of that once proud firm is all the reminder you need that the Justice Department doesn't react too kindly to post-initiation-of-investigation destruction of evidence.

Which makes it all the more ironic that Monica Goodling, a high-ranking Justice Department official, is instructing other high-ranking Justice Department officials to delete documents that are relevant to an ongoing Congressional inquiry. No wonder she pled the Fifth.

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