The Washington Post has published the following, er, news item:

Nothing Improper

By Alberto R. Gonzales
Sunday, April 15, 2007; B07

My decision some months ago to privately seek the resignations of a small number of U.S. attorneys has erupted into a public firestorm. First and foremost, I appreciate the public service of these fine lawyers and dedicated professionals, each of whom served his or her full four-year term as U.S. attorney. I apologize to them, their families and the thousands of dedicated professionals at the Justice Department for my role in allowing this matter to spin into an undignified Washington spectacle.

What began as a well-intentioned management effort to identify where, among the 93 U.S. attorneys, changes in leadership might benefit the department, and therefore the American people, has become an unintended public controversy.

While I accept responsibility for my role in commissioning this management review process, I want to make some fundamental points abundantly clear.

I know that I did not — and would not — ask for the resignation of any U.S. attorney for an improper reason. Furthermore, I have no basis to believe that anyone involved in this process sought the removal of a U.S. attorney for an improper reason.

Given my convictions on this issue, I testified before Congress in January and will do so again on Tuesday. I have personally spoken with many members of Congress over the past several weeks to hear their concerns about this matter. Additionally, I have instructed all Justice Department officials to make themselves available for on-the-record interviews with lawmakers and hearings before Congress, and I have ordered the release of thousands of pages of internal documents.

All of these documents and public testimony indicate that the Justice Department did not seek the removal of any U.S. attorney to interfere with or improperly influence any case or investigation. Indeed, I am extremely proud of the department’s strong record of vigorous prosecutions, particularly in the area of public corruption, where Republicans and Democrats alike have been held accountable for their crimes.

I have nevertheless asked the Justice Department’s Office of Professional Responsibility to further investigate this matter. Working with the department’s Office of Inspector General, these nonpartisan professionals will complete their own independent investigation so that Congress and the American people can be 100 percent assured of what I believe and what the investigation thus far has shown: that nothing improper occurred.

While I have never sought to deceive Congress or the American people, I also know that I created confusion with some of my recent statements about my role in this matter. To be clear: I directed my then-deputy chief of staff, Kyle Sampson, to initiate this process; fully knew that it was occurring; and approved the final recommendations. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number and focused primarily on the review process.

During those conversations, to my knowledge, I did not make decisions about who should or should not be asked to resign.

I am committed to explaining my role in this process and will do so Tuesday when I testify before Congress.

I am also committed to correcting any management missteps that occurred during this process. In recent weeks I have met with more than 70 U.S. attorneys around the country to hear their concerns and discuss ways to improve communication and coordination between their offices and the Justice Department.

These discussions have been frank, and good ideas are coming out, including ways to ensure that every U.S. attorney can know whether his or her performance is at the level expected by the president and the attorney general. Additionally, I have asked for recommendations on formal and informal steps that we can take to improve all forms of dialogue between the main Justice Department and U.S. attorneys nationwide.

I am also telling our 93 U.S. attorneys that I look forward to working with them to pursue the great goals of our department in the weeks and months to come. During the past two years, we have made great strides in securing our country from terrorism, protecting our neighborhoods from gangs and drugs, shielding our children from predators and pedophiles, and protecting the public trust by prosecuting public corruption. As I have stressed repeatedly to our U.S. attorneys and others within the department, recent events will not and must not deter us from our important mission.

In part because of my own experience, I know the real strength of America. It lies in our Constitution, our people and our collective unyielding commitment to equal opportunity, equal justice, common decency and fairness. With this same commitment in my mind, I very much look forward to answering Congress’s questions about this matter on Tuesday.

Blawgletter hopes, perhaps forlornly, that our chief law enforcement officer will do oh so much better when he testifies on Tuesday.  Pretty please, Fredo?

Barry Barnett

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Janet H. Moore, J.D.

Blawgletter just got back from an overnight retreat for the 16 partners and associates in Susman Godfrey‘s Dallas office.  A highlight of our annual gathering came this morning when Janet Moore visited with us about Rainmaking Basics in a Global Economy.  Ms. Moore earned degrees from Georgetown and UT Law, and she excelled in handling international law matters at Baker Botts and Enron before turning her hand to executive coaching and consulting for lawyers. 

Ms. Moore publishes the on-line International Lawyer Coach Newsletter.  And you may check our her website here and reach her via email at janet@internationallawyercoach.com.

Our group of uniformly hard graders raved about her presentation.  Blawgletter highly recommends Ms. Moore to any lawyer who aspires to improve his or her practice and enjoyment of same.

Barry Barnett

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Yesterday, the U.S. District Court for the Eastern District of Virginia entered its Order of Permanent Injunction barring Vonage from further infringing Verizon patents on VoIP technology. 

Click here to see it now.  Send it to your friends!  Have a great weekend!!

Barry Barnett

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Ever-alert Blawgletter readers know that the President nicknamed his Attorney General "Fredo" — as in Frederico "Fredo" Corleone.  Signs of the cinematic Fredo’s weaknesses included fumbling his gat after minions of Virgil Sollozzo gunned down his father; mockery by his wife, Deanna, at a party; sycophancy towards Las Vegas gangster and Corleone rival Moe Green; and betrayal of his younger brother Michael to wise guys Johnny Ola and Hyman Roth, who almost succeeded in assassinating Michael.

Blawgletter once wondered why the President would bestow an insulting sobriquet on a friend and, more, why the friend would acquiesce.  Then along came the brou-ha-ha-ha-ha over the firing of seven U.S. Attorneys.  We wonder no more.

But let us note one difference between the fictional Fredo and the one preparing to testify before the Senate on Tuesday.  Fredo Corleone betrayed his fraternal boss incompetently but on purpose.  The AG, by contrast, expresses his weakness by doing whatever he thinks his boss wants.  Our Fredo’s betrayal strikes not at the President but at us.

Barry Barnett

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Voluntary retirees from Chevron alleged that the company misrepresented the unavailability of extra retirement benefits if they had forced the company to fire them.  The Fifth Circuit yesterday ruled that the plaintiffs doomed their claims under ERISA because they failed to allege a causal connection between the misrepresentations and their loss of the additional benefits.  The court pointed to the absence of allegations that Chevron would have canned them if they hadn’t voluntarily retired, noting that the loss of a chance to get more benefits doesn’t suffice.  Ferrer v. Chevron Corp., No. 04-61102 (5th Cir. Apr. 12, 2007).

Barry Barnett

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Troll dolls.  Dam Things Establishment marketed
them originally.

The Second Circuit today upheld a preliminary injunction against selling troll dolls.  The court held that the Uraguay Round Agreements Act reinstated copyright protection for the dolls and affirmed the district court’s order barring Uneeda Doll Company from further infringement of Troll Company’s copyright in the dolls.  Troll Co. v. Uneeda Doll Co., No. 05-6487 (2d Cir. Apr. 13, 2007) (available at www.ca2.uscourts.gov/).

Happy Friday the 13th, y’all!

Barry Barnett

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Blawgletter wonders whether Congress and the White House will use the new federal rules on electronic discovery as a guide in the controversy over the unofficial email accounts that some White House employees used over the last several years. 

One U.S. Senator doubted that emails no longer exist, stating:  “You can’t erase e-mails, not today.  They’ve gone through too many servers.”  (Story here.)

Blawgletter especially wants to know what people have done to preserve emails and other electronic documents.  Have they imaged the "permanent" memory of staffers’ computers and PDAs — a step necessary to recover documents that someone (or the computer itself) has "deleted"?  How about the servers through which emails traveled?

The general news reports don’t disclose the precise measures.  Blawgletter guesses they don’t because the media and government include so few knowledgeable lawyers these days and therefore haven’t a clue about e-discovery.

Barry Barnett

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The Seventh Circuit upheld a summary judgment on federal securities fraud claims because, the court concluded, the plaintiffs didn’t present evidence of a causal connection between defendants’ deceptions and plaintiffs’ losses.  The court pointed to the lack of proof that the market price of the stock in question dropped soon after the market learned of the company’s true financial condition.  Ray v. Citigroup Global Markets, Inc., No. 05-4362 (7th Cir. Apr. 12, 2007).

The decision follows Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 342 (2005), in which the Court clarified the "loss causation" element of securities fraud under the Securities and Exchange Act of 1934 and SEC Rule 10b-5.

Barry Barnett

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