The question of why Rosenberg recused is basically easy and doesn’t need lots of digging. As USA for EDVA, he’s been signing off on Moussaoui pleadings since McNulty left (was that Oct of 05?) How much he was actively v. constructively involved in the case may be at issue, but there’s no way the head of an office who has participated in the case where the office’s conduct is being examined can legitmately head that investigation. So there doesn’t really need to be any “other” or “more” than we knew as soon as we knew Brinkema had been on the hunt.

Mores interesting to me – what did McNulty know about the torture tapes and when. Even after he left he EDVA slot, if he found out via his position as DAG (or if he knew from another ‘project’ his office was working on) about the torture – even without the concomittant knowledge of the torture tapes – he had some duties to the court. Once you’ve made reps to the court, your duties are ongoing. If I were Brinkema, I’d be interested in having a discussion with Mr. McNulty.

BTW – if you dig through at Balkinization, there’s a link to a podcast of a luncheon speech Brinkema gave at a seminar on trying to start up a gulag of secret courts into which people can be disappeared “legally” It’s pretty interesting stuff on how the Moussaoui caee’s “classified” info seemed to get leaked (without any investigations for violations of classification rules) whenever there was something good that gov wanted to hit the press to make them look better – things that made them look bad, not so much. Therein being the problem, in part, with letting prosecutors pick and choose what journos they go after, as it becomes not only economincally, socially and politically expedient to print party line propaganda only, but even in your best liberty and criminal liability interests as well.

Another interesting component is that much of what the DOJ is facing in the Moussaoui case now ties back, directly, to the Bush/Ashcroft/Gonzales decision to really blow out the boundaries on death penalty and seek the dp against Moussaoui on some very bizarre legal theories. But for a jury that scattered off in lots of different directions for different reasons, we could have some very bad and frightening law from that case. In any event, all the access to prisoner info and interrogation info pretty much ties, not to the underlying case that was sending him to jail for life, but to the dogged press to create a way to get the death penalty on the case.

On the Moussaoui case – and Judge Roberts’ case as well – I think a little reference to due diligence and constructive v. actual notice would probably be helpful.

When your client is the whole of the US government – as it is in a “United States v. …” case, particularly a criminal case filed by a USAtty’s office, you do not get to file discovery responses based solely on your own personal knowledge as a lawyer when the court directs you to turn over all XYZ that THE GOVERNMENT (your client) has. At that point, you actually have a charge to go out and FIND what is requested from YOUR CLIENT. That means that you contact all the appropriate heads of agencies, or supervisors, or field agents as reasonable and prudent. It means you circulate memos regarding what is being sought and requesting responses. It means you dig. It also means that anyone in “your firm” i.e., DOJ, that knows a court has a request out for information and knows that information exists has a duty to tell you about it so you can get it to the court – and if you don’t, they have an independent duty themselves to the court, with respect to the information being provided to the court.

This is why discovery is time consuming, costly, voluminous, tedious, etc. It is not a matter of saying to one person – here perhaps Spencer – “hey, why don’t you make a list for me of what you know about interrogations done of Zubaydah and KSM and Padilla and …” and we’ll just go with what you jot down.

Instead, it involves the attorney sitting down with representatives of his clients agencies that might have relevant information, getting their general counsel’s offices involved as necessary, and finding out from the client what the hell has been going on and what exists. It’s called due diligence and its a requirement. You go and look. And from the very beginning of the time when you know that litigation is touching an area of information, you contact everyone involved with that information and make sure they know they are not allowed to destroy anything.

So in not just the Moussaoui case, but multiple other cases, from Padilla’s lawyers objections to the sourcing of arrest warrant info, to the allegations of GITMO detainees about either exculpatory info or the fact that inculpatory info might be based on coercion and torture, or the Moussaoui death penalty case based on a similar grounds, – there were a plethora of cases where a plethora of DOJ attorneys should have been going up and down chain, intra-agency and inter-agency, making requests for production and preservations. All kinds of people in ED VA and DC Cir, in the Crim Div at Main Justice, at the CIA, at the FBI, in counterterrorism and upper adminsitrative positions, at the DAG and AG levels —- at the Solic. Gen’s office once assertions were going to be made to the Sup Ct about lack of torture or things like torture —- all kinds of lawyers and FBI investigators and CIA agents and tech/data specialists and clerks, probably even a fair amount of Pentagon and JAG people, should have all had lots of notice as to production and preservation.

For that matter, any DOJ lawyer who picked up a newspaper and, with acutal knowledge of torture or torture evidence or coercion or interrogation taint, reads that a judge is demanding production – they are on notice of a duty to the court to preserve and ultimately – if their colleagues will not, to produce.

And face it – clients never want to turn over the bad stuff. This isn’t some completely new problem. A 3L knows that once they hit the real world, clients in litigation will want to hide and destroy incriminating or embarassing evidence. And they know what their duty is. They can fight like hell through lots of mechanisms to keep things out and not produce – especially if they have some of the tools of Gov attys at their fingertips. But they can’t just hide and destroy.

Except, of course, now we know that IF you go to work for the US Dept of Justice, you can. You can hide and destroy evidence in direct defiance of court orders and nothing will happen. Because if you work for the US Dept of Justice, you aren’t really a lawyer anymore. You’re an executive branch goon, with a get out of jail free card in your pocket.

In any event, if a little bit of reasonable and prudent due diligence – actual looking – would have shown the Gov lawyer that info requested by the other party existed, but the Gov lawyer decided to just not look and not conduct any due diligence, there are things that the lawyer will be deemed to have constructive knowledge of (because anyone making any moderately reasonable effort would have found this info), even if they did not have actual knowledge (because they never looked).

It will be interesting to see what happens, but I pretty much expect nothing much, except possibly from Judge Roberts, who doesn’t really seem to care for the concept of having goons instead of lawyers trying cases in his courtroom. But while the focus may be on just Spencer and just the Moussaoui case, the real scandal (isn’t that a tired, used up word these days?) is how many lawyers in how many cases knew about torture and coercion and evidence of torture and coercion and knew about the DOJ’s duties to many different judges in many different cases — and all sat quiet.

It’s sobering and horrible.