Troopergate, as the investigation has been termed by press and politics, raises the question of whether Sarah Palin abused her power as Governor.  A lawyer is now representing her. See Lisa Demer, Anchorage Daily News, Private lawyer hired to represent Palin in Monegan inquiry. And her lawyer wants the discovery from the individual appointed by the legislature to do the investigation, but this lawyer is also saying that this matter should be handled by the state’s 3-person personnel board.  Are you entitled to discovery from the jurisdiction that you are claiming does not have jurisdiction?  And then there is the issue of the subpoenas.  Or will all the witnesses now be cooperating? Wall Street Jrl, Washington Wire, Troopergate’ Subpoena Showdown May Be Averted.

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Two law offices, in different parts of the United States, were recently searched. At Cleveland.com, John Caniglia in an article titled, "FBI raid on lawyer’s office was first here in 15 years" writes about a Cleveland law office that was searched. Molly McDonough, ABA Law Journal News, 50 Lawyers Pack Court to Support Solo Whose Office Was Searched, writes about a search of a law office in Texas.

It is surprising to see law offices searched. Prosecutors could easily issue a subpoena for any documents wanted from a law firm.  Using a subpoena allows the law firm the opportunity to go to court and contest whether the release of the items would be an violation of attorney-client privilege or work product.  It also allows the court to monitor what will be given to the government and what they will be precluded from seeing.

The rationale sometimes provided for using a search over a subpoena is that searches offer surprise and therefore preclude the destruction of documents. The downside for prosecutors using a search is that it requires probable cause and if there are many documents in a place, law enforcement may have to review numerous items to find what they are looking for. This latter point is also a rationale not to allow law office searches. Having the government review documents that serve as the basis for criminal defense cases places the defense at an enormous disadvantage.  There is a chilling effect on our system of justice when the government is entering into law offices and removing defense items from that office. 

In one case the search is being done by a government agency outside the jurisdiction. This is equally chilling as the government is again making the decision of what is looked at, and what is removed from the premises.  The probable cause hearing was ex parte and the defense attorney did not have an opportunity to respond to the government’s claims. Having a judge hear about the removal of client documents prior to their removal is important and should be the norm.   It is for this reason that the government should use the subpoena process if items from a law firm are needed.

(esp) (w/ a hat tip to Jack King)

In a letter to Karl Rove’s attorney we see John Conyors, Jr., Chair of the Subcommittee on Commercial and Administrative Law saying that "[a]s Committee staff made clear, and as we indicated in our May 1 letter, the proposal that we somehow seek to separate the Siegelman matter from the broader issue of politicization of the Justice Department is unacceptable." 

The letter lets Rove know that he needs to appear on July 10th, and that if he has specific objections to questions, he can make the objections at that time. But the letter also states to Rove’s attorney that, " [w]e remain very willing to meet with you and your client to discuss this matter."

In the meantime, DOJ’s Office of Professional Responsibility and the Inspector General are also conducting an investigation into specific cases and looking perhaps at whether politics may have entered into the DOJ. (see here).  Dan Slater, over at the Wall Street Jrl Blog, reports on some recent events in the investigation of the "attorney-firings" in his blog entry,  U.S. Attorney Mess: DOJ Files First Grand-Jury Referral.

Although it it good to see Congress stepping in to provide some oversight, there is still one item missing here – where is the appointment of a special prosecutor to investigate whether politics improperly entered into the decision-making process in DOJ?   Should DOJ be handling this investigation, or isn’t this a conflict?

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While many were glued to the television, watching the happenings in Indiana and North Carolina, a most unusual investigation occurred in Washington, D.C.  It seems that the FBI searched the Office of Special Counsel, and the home of its director. (See Washington Post here and WSJ here).

"The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency."  It’s authority comes from "three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act."  (see here) And yes, it is the same agency that looks at improper politicization in key government offices. Because of the supposed non-political role of the head of this office, he or she is protected from removal by an appointment for a term of five years (in this case Scott Bloch was appointed by President Bush in 2004 – see here)

This recent raid appears to surround the possible destruction of computer materials.  The problem with destroying computer material during the pendency of an investigation is that it opens one up to a possible obstruction of justice charge.  Yes, this was the very charge that was used against Arthur Andersen, Martha Stewart, Scooter Libby, and so many others.   Whether items were destroyed here, or whether an outside company was merely called to fix a computer virus may be a question of the future.  But it does appear that computer and other information were taken by authorities in this recent search.

Searches are not the usual method to secure evidence in a white collar case, although it is becoming more common in recent years.  Normally subpoenas are issued and the person is requested to produce documents for a grand jury.  Searches are used when there is a need for surprise and when there is a fear of destruction of materials.  Unlike subpoenas, searches require a showing of probable cause to a neutral and detached magistrate.

An interesting question here may be who should have authority to investigate and prosecute, that is of course if evidence demonstrates criminal violations.  If the Office of Special Counsel were investigating matters in the Department of Justice, can the DOJ turn around and now investigate their investigators?  Would it be more appropriate here for a court to appoint a neutral party to hold and peruse the items obtained in the search to make certain that there is no disclosure of information that might compromise a pending matter. 

With politics entering branches of the government that should be immune from such activity, there have been some recent questions about whether the Office of Special Counsel was acting sufficiently to handle these matters.  But who should have authority to investigate this issue presents some problems – especially when the focus of the investigation may have criminal overtones.

(esp)

A press release of Attorney General Andrew Cuomo’s office states:

"Attorney General Andrew M. Cuomo announced today that his Office has issued multiple subpoenas to lawyers and law firms in upstate counties as part of his rapidly expanding probe into potentially fraudulent employment arrangements between public school systems and lawyers.

Investigators from the Attorney General’s Office have thus far identified more than 90 attorneys (more than 70 upstate and 20 in Long Island) who may have been improperly placed on public school system payrolls in connection with more than 180 school districts statewide (more than 150 upstate and 30 in Long Island). Calling these lawyers “employees” enabled them to collect taxpayer-funded health, pension, and other benefits not otherwise available for professional consultants."

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