By Petr Svab
The acquittal of a former business partner of Lt. Gen. Michael Flynn has the potential to hinder some government attempts to abuse its powers to spy on Americans.
Bijan Rafiekian was acquitted on Sept. 24 of acting as an agent of the Turkish government without informing the U.S. government and two related charges.
In vacating Rafiekian’s conviction, U.S. District Judge Anthony Trenga criticized the prosecutors for broadening the definition of “agent of a foreign government” and sketched a narrower definition.
The case has received some media attention because of Flynn’s short stint as President Donald Trump’s national security adviser. But its repercussions may be significant, as labeling a person a “foreign agent” opens the door for the government to spy on them.
Rafiekian was charged under Section 951, which says that a person who acts as a foreign agent—“agrees to operate within the United States subject to the direction or control of a foreign government or official”—will face up to 10 years in prison unless he or she first informs the Attorney General.
The law has several exceptions, such as for diplomats and people engaged in “a legal commercial transaction”—it’s not supposed to go after people engaged in above-board business with foreign governments.
Yet the government, it appears, found a clever way to make many legal transactions illegal.
The prosecutors argued that violations of the Foreign Agent Registration Act (FARA) can make one liable under Section 951.
Such an interpretation seems open to abuse of power.
FARA deals with foreign lobbying and requires timely, periodical, and detailed disclosures from people whose lobbying is done on behalf of foreign governments or that principally benefits a foreign government.
FARA violations are common, data suggests.
Even among those who register, many seem to flunk the rules.
The Justice Department’s Inspector General found, from a “risk-based” sample of new FARA registrations from 2013 to 2015, that about two-thirds were filed late. The majority of the reviewed filings also had at least one other noncompliance issue (pdf).
Yet only seven FARA violations have been prosecuted in the previous 50+ years. Part of the reason for that is that FARA has a high standard for the co-called “mens rea”—state of mind. The government would have to prove the violators acted “willfully,” knowingly breaking the law. A lobbyist ignorant of the law can’t be held liable.
In the Rafiekian case, the prosecutors argued that any FARA violation, regardless of willfulness, makes one ineligible for the “commercial transaction” exception under Section 951.
They further said, in substance, that “direction or control” under Section 951 means somebody “agrees or is willing to do something the foreign principal requests,” Trenga said in his opinion.
That’s indeed the case under FARA, but such a reading of the law is “unwarranted,” under Section 951, the judge said, because “the word ‘agent’ has a well-established common-law meaning” that includes “the power of the principal to give directions and the duty of the agent to obey those directions.”
“A person must do more than act as a ‘representative’ or ‘on behalf of’ a foreign government,” he said, further noting that, “In sum, the government’s construction of Section 951 would, in effect, import into and conflate the narrow common law notion of agency reflected in Section 951 and the related regulation with the broad definition of an ‘agent’ under FARA, which goes well beyond any common-law understanding of agency and includes conduct not fairly read into the definition of agency under Section 951.”
Trenga’s reining in of who the government can and can’t label an “agent of a foreign government” has a special significance because the label seems to open the door to spying under the Foreign Intelligence Surveillance Act (FISA).
FISA allows the government to obtain the electronic communications of anybody the secret FISA courts determine to be an “agent of a foreign power.”
Both FISA and FARA are overseen by the Justice Department’s National Security Division (NSD), which in the past assigned counterintelligence overtones to its interpretation of Section 951.
The NSD called Section 951 “espionage lite,” saying that it “generally involves espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government,” according to a 2016 IG report (pdf).
She said she would “bet money” the government took out a FISA warrant on Flynn in 2016, when he was advising the Trump campaign. That hasn’t been confirmed, though.
It may not be easy or even possible for the government to collapse FARA and FISA together directly. FARA speaks of agents of a “foreign principal”—a term that includes private entities and appears too far removed from the “agent of a foreign power” label needed to pass the muster of FISA judges.
Trenga’s opinion, however, seems to confirm that the government was borrowing the broad FARA interpretation of “agent” to label people foreign government agents under Section 951.
Wilson Miller, a lawyer who has previously identified issues with the NSD, commented that “it would be legally permissible to use allegations of Section 951 violations as grounds for a FISA warrant.”
Trenga’s opinion isn’t a binding precedent in other federal jurisdictions, but it can be raised in the future by defense lawyers to persuade other judges. In that sense, it may make the government think twice before taking out a FISA warrant on somebody based on FARA violations.
Follow Petr on Twitter: @petrsvab
Wednesday, May 29, 2013 by: J. D. Heyes
(NaturalNews) The criminality and illegitimacy of the federal government continues to grow, this time with the disclosure that a former U.S. attorney intentionally released a document aimed at discrediting a whistleblower in the “Operation Fast and Furious” scandal.
A new report from the Department of Justice (DOJ) Inspector General has confirmed that Dennis Burke, former U.S. attorney for Arizona, leaked a document that was intended to smear John Dodson, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Department of Justice agency which launched the operation that saw thousands of semi-automatic, military-style rifles purchased in the U.S. by straw buyers fall into the hands of Mexican drug gangs.
From the report:
On July 8, 2011, the Office of the Inspector General (OIG) received information from an attorney representing John Dodson, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), concerning the alleged unauthorized disclosure of sensitive ATF information. According to Dodson’s attorney, Dodson had received an e-mail from a Fox News producer asking for comment about excerpts from an internal ATF investigative memorandum that Dodson had drafted and which described a proposed undercover operation for an ATF firearms investigation…
Dodson’s attorney alleged that officials within the DOJ had disclosed the memorandum to retaliate against Dodson for his criticism of the conduct of the firearms trafficking investigation referred to as Operation Fast and Furious. On June 15, 2011, shortly before the alleged unauthorized disclosure, Dodson and other ATF agents had expressed their concerns about Operation Fast and Furious during testimony before the U.S. House of Representatives Committee on Oversight and Government Reform.
Sorry – it was just a ‘mistake’
The DOJ IG report went on to state that the office launched an investigation shortly after receiving the complaint.
According to details of the investigation, on Aug. 16, 2011, Burke contacted an IG investigative counsel by phone to say he had indeed released the memorandum to the media, adding that the reporter “seemed to be familiar with the contents of the … memorandum before Burke provided it to him,” the report said.
In tracking down the details of the disclosure, investigators solicited sworn statements from 150 of 152 employees who had been identified by the Justice Department as having had access to documents provided to congressional panels looking into the failed operation. Of that figure, the IG’s office singled out five for additional interviews because they had indicated some knowledge of the memorandum’s release.
In its report, the IG concluded that indeed “Burke’s conduct in disclosing the Dodson memorandum to be inappropriate for a Department employee and wholly unbefitting a U.S. Attorney.”
“We are referring to OPR our finding that Burke violated Department policy in disclosing the Dodson memorandum to a member of the media for a determination of whether Burke’s conduct violated the Rules of Professional Conduct for the state bars in which Burke is a member,” the IG report said.
Burke eventually resigned his position as U.S. Attorney following the incident, in August 2011. He became the first major Justice Department official to leave his or her position in the Fast and Furious scandal.
In interviews with congressional investigators after the fact, Burke said he now views his leaking of the memorandum as a “mistake.”
Besides uncovering Burke’s involvement in leaking the document, the IG investigation also turned up emails between senior Department of Justice officials in which they discussed smearing Dodson.
One of those officials was Tracy Scmaler, director of the Justice Department’s Office of Public Affairs. She resigned her position at DOJ “after emails uncovered through a Freedom of Information Act (FOIA) request showed that she worked with left wing advocacy group Media Matters for America to smear whistleblowers and members of Congress and the media who sought to investigate DOJ scandals under Attorney General Eric Holder,” Breitbart News reported.
Rule by executive fiat
Obama is being blamed for many of these scandals and, as president and head of the Executive Branch of government, he is certainly culpable.
But only to an extent.
Granted, Obama has worked overtime to expand the power of the presidency, but he inherited an office whose role had already been enlarged far beyond anything the founding fathers envisioned for the Executive Branch. But Congress is culpable as well, for the Legislative Branch has, over the past century, relegated its lawmaking authority to the plethora of federal bureaucracies it has created.
And the president controls them.
Decrying bureaucracy and advocating for smaller government shouldn’t be a political slogan. It should be a demand of every freedom-minded, liberty loving American. That’s because we are no longer being “represented” by our elected leaders, we are being “ruled” by federal agencies.
That is not the “republican form of government” our Constitution guarantees.
A handful of Republicans are pursuing the biggest scandal in American history, but guess what: House Speaker Boehner isn’t one of them, and that puts him on par with Democrats like Jim Costa, who think “Issa and Holder should sit down and work it out.”
West Virginia Democrat Nick Rahall wants Holder to turn over the subpoenaed documents but is “not ready to go as far as contempt yet, no. Not yet.”
With the other issues, the economy and everything else, I think they would like to focus on that. I don’t think they’re opposed to going ahead with the contempt citation; it’s just that if we can get the Justice Department to move without having to move it, they would probably prefer that.
Americans would probably “prefer” that career politicians grow a spine and stand up to one of the most corrupt attorneys general in recent history and hold everyone responsible for the murders of innocent people accountable. Not gonna happen, according to an insider.
From Roll Call:
A GOP aide also warned against a racial backlash if Republicans are seen as unfairly targeting the first black attorney general, who is serving under the first black president. “Especially after Trayvon,” the aide said, referring to slain Florida teenager Trayvon Martin.
How about an attorney general targeting Hispanics? “The term Hispanic, as dominated [sic] by the Office of Management and Budget, is used in the United States for people with origins in Spanish-speaking countries, including Spain, Mexico, Costa Rica.”
Over 300 Mexican citizens have been murdered by weapons trafficked by our own government, with “more to come” according to Holder’s testimony. Many Mexican-Americans have relatives south of the border. Where is La Raza?
Bloggers, journalists, and investigators have chronicled this mess from the beginning. They’ve uncovered evidence leading first to the Department of Justice, then straight to the White House.
How about the three Os? Ogden, O’Reilly, and Obama.
In March 2009, Former Deputy Attorney-General David Ogden said, “The president has directed us to take action to fight these cartels and Attorney General Eric Holder and I are taking several new and aggressive steps as part of the administration’s comprehensive plan.”
A September 2010 e-mail from ATF Phoenix Special Agent in Charge Bill Newell to White House National Security Staffer Kevin O’Reilly showed an “arrow chart reflecting the ultimate destination of firearms we intercepted and/or where the guns ended up.” The chart shows arrows leading from Arizona to destinations all over Mexico.
In March 2011, on the 30th anniversary of the assassination attempt on Ronald Reagan, Sarah Brady met with Jay Carney to discuss the need for tougher gun control laws. The president joined them, and Mrs. Brady recalled him saying, “I just want you to know that we are working on it[.] … We have to go through a few processes, but under the radar.”
Agent Brian Terry died nine months after Obama’s “under the radar” statement.
Issa has indicated that he will seek a contempt citation if Holder doesn’t turn over the remaining documents by Memorial Day. We’ll see. In the meantime, I suggest that both Democrats and Republicans read the following words from the Russian dissident Alexander Solzhenitsyn.
A decline in courage may be the most striking feature which an outside observer notices in the West in our days. Such a decline in courage is particularly noticeable among the ruling groups and the intellectual elite, causing an impression of loss of courage by the entire society.
Of course there are many courageous individuals but they have no determining influence on public life.
Political and intellectual bureaucrats show depression, passivity and perplexity in their actions and in their statements and even more so in theoretical reflections to explain how realistic, reasonable as well as intellectually and even morally warranted it is to base state policies on weakness and cowardice.
And decline in courage is ironically emphasized by occasional explosions of anger and inflexibility on the part of the same bureaucrats when dealing with weak governments and weak countries, not supported by anyone, or with currents which cannot offer any resistance. But they get tongue-tied and paralyzed when they deal with powerful governments and threatening forces, with aggressors and international terrorists.
Should one point out that from ancient times a decline in courage has been considered the beginning of the end?
Somebody needs to get on with it. Charge Holder with contempt now.
Read more M. Catharine Evans at Potter Williams Report.
- Is Fast and Furious the Next Watergate? (mb50.wordpress.com)
- Conservative Reps Plan To Push House Leadership Toward Contempt Resolution For Holder (nicedeb.wordpress.com)
- Rep. Darrell Issa To Holder: ‘Fast and Furious’ Will Be Your Legacy (businessinsider.com)
- Holding Eric Holder Accountable for Operation Fast and Furious (gds44.wordpress.com)
- IT’S OFFICIAL – John Boehner is stalling Fast and Furious contempt citation of Eric Holder (gunnyg.wordpress.com)
- Republicans Prepare Contempt Citation Against Obama AG Eric Holder (thedaleygator.wordpress.com)
- Issa Makes ContemptCase Against Holder (foxnews.com)
by Alan Caruba on May 5th, 2012
When suspects in a crime are interrogated, they often develop memory loss. When the crime is running guns to drug cartels on both sides of the border, the crime involves the murder of a U.S. Border Patrol officer, Brian Terry, Immigration and Customs Enforcement agent, Jaime Zapata, and countless Mexican citizens.
Katie Pavlich has written an extraordinary expose, “Fast and Furious: Barack Obama’s Bloodiest Scandal and its Shameless Cover-Up” (Regnery Publishing). She is a veteran agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) who has meticulously documented a story that should result in contempt of Congress action against Attorney General Eric Holder and possibly Secretary of the Department of Homeland Security, Janet Napolitano as well.
It is an appalling story of arrogance, stupidity, and the intimidation of ATF agents who dared to question and expose the operation. It is a story of deception at the highest levels of our government. Both Holder and Napolitano exhibited memory lapses before a congressional committee. Both knew about a federal government authorized gun-running operation to Mexico called “Fast and Furious.”
Pavlich reports that “Fast and Furious was closely followed by Department of Justice officials. On multiple occasions, U.S. Attorney Dennis Burke met with Phoenix ATF Director Bill Newell to discuss the progress of the Fast and Furious operation. ‘There were DOJ attorneys and prosecutors who were involved in this since the beginning, giving advice,” testified ATF Special Agent Peter Forcelli.
As Pavlich details it, “Operation Fast and Furious wasn’t a ‘botched’ program. It was a calculated and lethal decision to purposely place thousands of guns in the hands of ruthless criminals.”
The operation was designed to attack the Second Amendment right of Americans to purchase and bear arms, a right considered so essential to the nation that it followed directly after the First Amendment rights of free speech, freedom of the press, the prohibition of the establishment of a nationally sanctioned religion, and the right of Americans to peaceably assemble, and to petition the government for a redress of grievances.
We are in the grip of an administration that would restrain and erase those rights, and which engaged in a reckless and ruthless operation to achieve that goal. It is an administration that is moving toward the confirmation of a United Nations treaty that would override and eliminate the right to own and bear arms.
The facts regarding Holder’s and Napolitano’s testimony are clear:
“Eric Holder was sent five memos, personally addressed to him, in the summer of 2010 that detailed Operation Fast and Furious.” Holder claimed he first knew about the program in February 2011.
“Homeland Security Secretary Janet Napolitano has feigned ignorance when questioned about Fast and Furious. She claims she only found out about the program after Brian Terry was murdered.”
“She visited the White House with Eric Holder to visit President Obama just a day before Holder testified on Capitol Hill about Fast and Furious, leaving the reason for her visit blank.”
Pavlich writes, “These are the facts: There are still 1,400 Fast and Furious guns missing and ATF agents are not actively trying to track them down. Ten thousand round of ammunition were sold to cartel-linked straw buyers under the watch of the ATF. Eight hundred of the original 2,500 weapons sold through Fast and Furious have already been linked to criminal activity.”
The program, observers believer, was the deliberate effort to blame the violence in Mexico and in some cases in America on the gun shops, but those shops were intimidated into participating in Fast and Furious out of fear that ATF would take away their licenses.
After questioning ATF and Justice Department witnesses, Sen. Charles Grassley (Iowa, R), the top Republican on the Senate Judiciary Committee, wrote a January 31 letter to ATF officials saying, “As you may be aware, obstructing a Congressional investigation is a crime. Additionally, denying or interfering with employee’s rights to furnish information to Congress is also against the law.”
On May 3rd Rep. Darrell Issa, (CA) Chairman of the House Oversight and Government Reform Committee, sent every member of his committee a 64-page draft contempt order against AG Holder, along with a 17-page memo outlining the history of the scandal. Only one attorney general has been found in contempt, Janet Reno in 1975.
Fast and Furious is redolent with memories of the Watergate cover-up.
On March 23, 2011, in a Univison interview, Obama said, “First of all, I did not authorize it” and when further pressed said, “Eric Holder did not authorize it. He’s been very clear that our policy is to catch gunrunners and put them in jail.” The facts strongly suggest otherwise insofar as Fast and Furious literally authorized a gunrunning program under the aegis of ATF.
As Pavlich noted, “Many people in ATF saw what was happening and tried to warn the bureau, but the new corrupt and arrogant culture of management had become too powerful and intimidating. Field agents who spoke up were punished for having an opinion and daring to voice it. Whistleblowers had their reputation, careers, and finances shattered.”
This culture of corruption is endemic to the Obama administration and as more and more examples become known it has been in full panic mode to suppress the truth. No matter what the outcome of the testimony of two of its top appointees, the only way to save America is to vote out President Obama in November and ensure that Mitt Romney has a Republican Congress.
© Alan Caruba, 2012
- Is Fast and Furious the Next Watergate? (papundits.wordpress.com)
- Fast and Furious: Grenades (cryptogon.com)
- Special Report: Guns used in Mexico for lawyer’s murder traced to ATF operation (mb50.wordpress.com)
- Katie Pavlich Exposes “Fast And Furious: Barack Obama’s Bloodiest Scandal And The Shameless Cover-Up” (thedaleygator.wordpress.com)
- Barack Obama’s Bloodiest Scandal – Katie Pavlich – Townhall Conservative Columnists (gds44.wordpress.com)
- Katie Pavlich’s New Book, “Fast and Furious,” (theroycroftreport.com)
- Whatever happened to ‘Fast and Furious’? (wnd.com)
- Truth be told… (onemorecup.wordpress.com)
Cartoon by “Chip” Bok
May 6th 2012
A section of the draft of contempt charges against Attorney General Eric Holder is dedicated to explaining how Fast & Furious branches off into different departments within the Department of Justice (DOJ).
While most know about the operation being based in Phoenix, the strategy was actually developed in the Office of the Deputy Attorney General (ODAG) in Washington, DC. The ODAG decided it would be brilliant to concentrate on identifying the members of the trafficking network instead of seizing the firearms right away.
The goal was to capture the big fish of the cartels. The ATF Phoenix Field Office decided to use this strategy in Fast & Furious. But that wasn’t good enough for them and in late January 2010 the office “applied for Fast and Furious to become an Organized Crime Drug Enforcement Task Force (OCDETF) case.” In order to do that the agents had to tell all about their investigative strategy, i.e. gunwalking. It was approved and was given new funding. Also, since it became a prosecutor-led OCDETF Strike Force case, other departments would come in. Those include FBI, DEA, IRS, and ICE under the US Attorney’s Office for the District of Arizona. Fast & Furious came to the attention of ATF headquarters on December 8, 2009. The ATF’s Office of Strategic Information and Intelligence (OSII) told senior personnel about the operation, especially about recoveries of weapons in Mexico. But the more statistics they received, the more concerned they became about the operation.
Deputy ATF Director Billy Hoover called for an exit strategy in March 2010. He received one in May, but we all know it didn’t happen. The office continued to delay the indictments and ATF headquarters never demanded them to arrest the straw purchasers. Operation Wide Receiver, a gun tracking operation during the George W. Bush administration, is often brought up to deflect from Fast & Furious. Most people on the other side want to prosecute that case instead. Well, as it turns out, the DOJ’s Criminal Division sent prosecutors to Arizona to help the US Attorney to prosecute cases, including Wide Receiver. Indeed, Assistant Attorney General in charge of the Criminal Division Lanny Breuer was very interested in the operation. James Trusty, senior official in the Criminal Division’s gang Unit, said Mr. Breuer was very interested in the case and wanted to be briefed on it. A briefing on March 5, 2010, “highlighted the large number of weapons the gun trafficking ring had purchased and discussed recoveries of those weapons in Mexicio.” Steve Martin, Deputy Assistant Director in ATF’s Office of Strategic Intelligence and Information, said everyone knew the guns were being linked to the cartels. However it’s the wiretaps that prove how deeply involved the Criminal Division was with Fast & Furious. It shouldn’t come to anyone’s shock that the DOJ hasn’t handed over the applications to the Committee. After all, the top dogs signed them: Deputy Assistant Attorney Generals Jason Weinstein, Kenneth Blanco, and John Keeney. It’s more than obvious the DOJ can say this was just a local issue. There’s more than enough evidence to prevent them from continuing to brush it off as a rogue field office mistake.
- Is Fast and Furious the Next Watergate? (mb50.wordpress.com)
(Reuters) – U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department’s criminal division, were partners for years at a Washington law firm that represented a Who’s Who of big banks and other companies at the center of alleged foreclosure fraud, a Reuters inquiry shows.
The firm, Covington & Burling, is one of Washington’s biggest white shoe law firms. Law professors and other federal ethics experts said that federal conflict of interest rules required Holder and Breuer to recuse themselves from any Justice Department decisions relating to law firm clients they personally had done work for.
Both the Justice Department and Covington declined to say if either official had personally worked on matters for the big mortgage industry clients. Justice Department spokeswoman Tracy Schmaler said Holder and Breuer had complied fully with conflict of interest regulations, but she declined to say if they had recused themselves from any matters related to the former clients.
Reuters reported in December that under Holder and Breuer, the Justice Department hasn’t brought any criminal cases against big banks or other companies involved in mortgage servicing, even though copious evidence has surfaced of apparent criminal violations in foreclosure cases.
The evidence, including records from federal and state courts and local clerks’ offices around the country, shows widespread forgery, perjury, obstruction of justice, and illegal foreclosures on the homes of thousands of active-duty military personnel.
In recent weeks the Justice Department has come under renewed pressure from members of Congress, state and local officials and homeowners’ lawyers to open a wide-ranging criminal investigation of mortgage servicers, the biggest of which have been Covington clients. So far Justice officials haven’t responded publicly to any of the requests.
While Holder and Breuer were partners at Covington, the firm’s clients included the four largest U.S. banks – Bank of America, Citigroup, JP Morgan Chase and Wells Fargo & Co – as well as at least one other bank that is among the 10 largest mortgage servicers.
DEFENDER OF FREDDIE
Servicers perform routine mortgage maintenance tasks, including filing foreclosures, on behalf of mortgage owners, usually groups of investors who bought mortgage-backed securities.
Covington represented Freddie Mac, one of the nation’s biggest issuers of mortgage backed securities, in enforcement investigations by federal financial regulators.
A particular concern by those pressing for an investigation is Covington’s involvement with Virginia-based MERS Corp, which runs a vast computerized registry of mortgages. Little known before the mortgage crisis hit, MERS, which stands for Mortgage Electronic Registration Systems, has been at the center of complaints about false or erroneous mortgage documents.
Court records show that Covington, in the late 1990s, provided legal opinion letters needed to create MERS on behalf of Fannie Mae, Freddie Mac, Bank of America, JP Morgan Chase and several other large banks. It was meant to speed up registration and transfers of mortgages. By 2010, MERS claimed to own about half of all mortgages in the U.S. — roughly 60 million loans.
But evidence in numerous state and federal court cases around the country has shown that MERS authorized thousands of bank employees to sign their names as MERS officials. The banks allegedly drew up fake mortgage assignments, making it appear falsely that they had standing to file foreclosures, and then had their own employees sign the documents as MERS “vice presidents” or “assistant secretaries.”
Covington in 2004 also wrote a crucial opinion letter commissioned by MERS, providing legal justification for its electronic registry. MERS spokeswoman Karmela Lejarde declined to comment on Covington legal work done for MERS.
It isn’t known to what extent if any Covington has continued to represent the banks and other mortgage firms since Holder and Breuer left. Covington declined to respond to questions from Reuters. A Covington spokeswoman said the firm had no comment.
Several lawyers for homeowners have said that even if Holder and Breuer haven’t violated any ethics rules, their ties to Covington create an impression of bias toward the firms’ clients, especially in the absence of any prosecutions by the Justice Department.
O. Max Gardner III, a lawyer who trains other attorneys to represent homeowners in bankruptcy court foreclosure actions, said he attributes the Justice Department’s reluctance to prosecute the banks or their executives to the Obama White House’s view that it might harm the economy.
But he said that the background of Holder and Breuer at Covington — and their failure to act on foreclosure fraud or publicly recuse themselves — “doesn’t pass the smell test.”
Federal ethics regulations generally require new government officials to recuse themselves for one year from involvement in matters involving clients they personally had represented at their former law firms.
President Obama imposed additional restrictions on appointees that essentially extended the ban to two years. For Holder, that ban would have expired in February 2011, and in April for Breuer. Rules also require officials to avoid creating the appearance of a conflict.
Schmaler, the Justice Department spokeswoman, said in an e-mail that “The Attorney General and Assistant Attorney General Breuer have conformed with all financial, legal and ethical obligations under law as well as additional ethical standards set by the Obama Administration.”
She said they “routinely consult” the department’s ethics officials for guidance. Without offering specifics, Schmaler said they “have recused themselves from matters as required by the law.”
Senior government officials often move to big Washington law firms, and lawyers from those firms often move into government posts. But records show that in recent years the traffic between the Justice Department and Covington & Burling has been particularly heavy. In 2010, Holder’s deputy chief of staff, John Garland, returned to Covington, as did Steven Fagell, who was Breuer’s deputy chief of staff in the criminal division.
The firm has on its web site a page listing its attorneys who are former federal government officials. Covington lists 22 from the Justice Department, and 12 from U.S. Attorneys offices, the Justice Department’s local federal prosecutors’ offices around the country.
As Reuters reported in 2011, public records show large numbers of mortgage promissory notes with apparently forged endorsements that were submitted as evidence to courts.
There also is evidence of almost routine manufacturing of false mortgage assignments, documents that transfer ownership of mortgages between banks or to groups of investors. In foreclosure actions in courts mortgage assignments are required to show that a bank has the legal right to foreclose.
In an interview in late 2011, Raymond Brescia, a visiting professor at Yale Law School who has written about foreclosure practices said, “I think it’s difficult to find a fraud of this size on the U.S. court system in U.S. history.”
Holder has resisted calls for a criminal investigation since October 2010, when evidence of widespread “robo-signing” first surfaced. That involved mortgage servicer employees falsely signing and swearing to massive numbers of affidavits and other foreclosure documents that they had never read or checked for accuracy.
Recent calls for a wide-ranging criminal investigation of the mortgage servicing industry have come from members of Congress, including Senator Maria Cantwell, D-Wash., state officials, and county clerks. In recent months clerks from around the country have examined mortgage and foreclosure records filed with them and reported finding high percentages of apparently fraudulent documents.
On Wednesday, John O’Brien Jr., register of deeds in Salem, Mass., announced that he had sent 31,897 allegedly fraudulent foreclosure-related documents to Holder. O’Brien said he asked for a criminal investigation of servicers and their law firms that had filed the documents because they “show a pattern of fraud,” forgery and false notarizations.
(Reporting By Scot J. Paltrow, editing by Blake Morrison)
- MERS Settles, Avoiding Class Action Foreclosure Fee Lawsuit (mainstreetresolutions.com)
- Mitchell J. Stein, Esq.: Mortgage Foreclosure Issues Created by MERS Are by Design, Not Accident (prweb.com)
- State of Delaware v. MERSCORP Inc. | Biden: Private National Mortgage Registry Violates Delaware Law (zerohedge.com)
- Delaware AG Beau Biden Sues MERS (news.firedoglake.com)
- Thomas Perrelli, DoJ Point Person on Foreclosure Fraud Settlement, Stepping Down by March (news.firedoglake.com)
- DoJ contacting additional banks on mortgage deal (fourbluehills.com)
- Justice Endorses Foreclosure Mediation (pubcit.typepad.com)
- JOHN L. O’BRIEN, JR. Register of Deeds Calls for Criminal Action Against the Big Banks, Says they acted like “criminal enterprise” (mainstreetresolutions.com)
- DOJ’s Lanny Breuer Addresses Sentencing Disparities (legaltimes.typepad.com)