I got out of torts class early tonight because my professor, Andrew Popper, had to moderate a debate, entitled “Whose Reign of Terror at the Department of the Interior? A Debate About Cobell v. Norton,” sponsored by the Administrative Law Review. We were encouraged to attend and it seemed a bit more interesting than going straight home to brief cases.
Professor Popper gave a brief overview of the case. Cobell v. Norton was a case originally brought by Cobell and a number of other American Indians calling for the Department of the Interior to account for property held in trust. During the course of the proceedings the Department has failed to comply with numerous court orders, leading the judge, Royce C. Lamberth to hold various government parties in contempt. As a result of one of the contempt orders, all of the computers in the Department were disconnected from the Internet. Full disclosure: Gale Norton, Secretary of the Interior, was Popper’s student and research assistant at the University of Denver.
Professor Richard Pierce, Lyle T. Alverson Professor of Law at George Washington University, wrote an article entitled, Judge Lamberth’s Reign of Terror at the Department of Interior. Professor Pierce was challenged to a debate by Keith Harper, member of Cherokee Nation of Oklahoma and senior lawyer at the Native American Rights Fund, along with Jamin Raskin, professor of Constitutional Law at American University. Both Harper and Raskin are acting as counsel for the plaintiff in Cobell v. Norton.
Pierce noted at the outset of his opening statement that he does not know about Indian Law and that his article focuses only on present remedies for judicial misconduct.
Pierce was inspired to write the article in 2002 when he went looking for data on how much oil or gas was produced on Federal lands and found that there was no data, due to an Internet disconnection at the Department of Interior, Minerals Management Service, related to one of Judge Lamberth’s contempt orders in Cobell. Pierce had first heard of Judge Lamberth in 1997 regarding an order in a suit against Hillary Clinton. Lamberth had characterized attorneys for Clinton, “dishonest, reprehensible, outrageous, and officials run amok.”
Keith Harper replied first, noting that Judge Lamberth has been courageous to take steps to force the Department of Interior to fix a broken system that they refuse to fix. They’ve been ignoring orders for years. Giving some more background on Cobell, he noted that there has been an admission by each Secretary of Interior that the system is broken. The Department of the Interior has never provided an accounting, in the 100-year history of the trust, for the billions of dollars in the trust fund.
Further, Pierce ignores a century of mismanagement. The Department is a recalcitrant trustee, ignoring even a Congressional directive to change. He asked, “When is it appropriate for a Federal court to intervene?” They have no Accounts Receivable system. There is self-reporting of the oil companies of how much oil is taken from the land. The audit system is inadequate and broken.
He further noted some of the specific cases of malfeasance that resulted in the contempt ruling. The Department claimed that they had an acocunting of pre-1951 accounts based on Government Accounting Office reports, in spite of a letter that they had received from the GAO saying, in essence, that those reports did not constitute an accounting. The Department attorneys did not tell the judge of the existence of this letter.
The Department also destroyed 162 boxes of documents during a contempt hearing.
Harper said, “This article is not shoddy; it aspires to shoddiness.” Pierce left out many pieces of the fact picture that would have been challenging to his conclusion.
Professor Raskin followed up Harper’s comments briefly, first by asking, “Why write law review articles?” Raskin feel that they should be written to either advance the cause of justice or advance the study of law. In this case, Pierce writes an article that just attacks a particular judge. Raskin called the article “an academic drive-by shooting by a sharpshooter recruited to go into an unfamiliar neighborhood who then gets lost.”
Pierce replied that he, “Agrees that the trust has been horribly mismanaged.” He strongly suspects that the problem would not have been fixed unless they [Harper and Raskin] had brought the lawsuit. He further congratulated them on convincing the court that there needed to be an accounting.
In cases like this, Pierce felt that one needs a strong judge, but one who will not use criminal contempt to induce behavior and will not use sanctions such as disconnecting an entire agency from the Internet.
Raskin noted that the accounting was originally ordered in 1996 for merely five plaintiffs and they still have not been produced, eight years later. Even was Norton to walk in the door with that accounting, there are 499,995 other beneficiaries of the Indian Trust to go, and at eight years per every five Indians, it would take 400,000 years.
Raskin noted that Pierce’s article was appended to a complaint he had filed for judicial misconduct that was rejected as without merit. In his knowledge, this is the only law review article repudiated by a Federal circuit court.
Harper added that the special master appointed in Cobell was able to go into the system and move property interests from one account into another without an audit trail. He then asked, “What should a Federal judge do in such a case?” He went on to say that Pierce’s article and presentation are bereft of any challenge to the facts of the misconduct. Somebody is responsible.
Popper opened the floor for questions. I asked the first one, “What, if any, limitation should their be on the contempt power when applied to a trustee who is also a sovereign agency?”
Raskin replied that any contempt order should be narrowly tailored, just as it would be if it applied to a private trust. However, if the trust data is in danger, it is acceptable to have a contempt order even if it affects other operations.
Pierce noted that in this case, there had only been one instance of hacking, the one commissioned by the special master. Disconnecting the entire agency from the Internet was not appropriate.
Harper clarified that the order was only to lock down the systems that had access to the Indian Trust data. The Department did not have any insulation or firewalling of those of those particular systems, and thus, they chose to disconnect all of the computers.
There was some discussion of whether the contempt was properly civil or criminal contempt. Raskin explained that the purpose of a civil contempt order is to get a party, in this case the Department of Interior, to comply with the orders of the court. Pierce was of the opinion that Judge Lamberth’s orders were more properly criminal contempt charges, and should have been handled by a neutral judge.
Harper asked a question near the end, directed rhetorically at Pierce, “At what point should the courts take action? And if not this action [contempt], then what action?”
After the debate I had a chance to ask Professor Raskin about what could possibly be done to open up the debates to candidates like Michael Badnarik, knowing his background on the issue. He seemed interested in talking more and invited me to stop by his office later on in the week. Another thing to add to the plate.
Now it’s off to study.
…let Badnarik debate…