U.S. Attorneys: E-Mail, Justice and a Political, Possibly Constitutional, Brouhaha
By Marion Edwyn Harrison (03/23/07)
Probably nothing beats e-mail to record that which later may haunt the sender. Remember Microsoft giant William H. (Bill) Gates, III and the initial trouble he caused himself in antitrust litigation, discussed in more detail in the August 14, 2004 NOTABLE NEWS NOW, which follows. The most recent fiasco involves the involuntary termination by the Attorney General of eight of our 93 United States Attorneys. A few individuals in the White House and in the Department of Justice, each of whom should have known better, at least one of whom already has departed under a cloud, circulated e-mails. Some such e-mails, judging by media excerpts, at best are a bit sophomoric, at worst reflective of political intervention in the administration of justice.
United States Attorneys are nominated by the President, confirmed by the United States Senate. In effect they serve at the pleasure of the President, which usually means at the pleasure of the Attorney General, himself serving at the pleasure of the President. The Patriot Act, for no compelling reason, conferred upon the Attorney General the authority to appoint, under certain circumstances, when a vacancy occurs. With that exception the Senate maintains its traditional advise-and-consent role.
Not surprisingly, an incoming President of the party other than that of his predecessor accepts the resignations - or, in less formal language, terminates or fires - those appointed by his predecessor. New appointments usually are phased over time, for a variety of reasons - e.g., the holdover is in the midst of a major trial, the new Administration has not settled upon a choice, so on. The dramatic exception is that of President William J. (Bill) Clinton, who, through his wife’s former law partner, Associate Attorney General Webster Hubbell (later convicted of unrelated mail fraud and tax evasion and jailed), and Attorney General Janet Reno, within two months terminated all 93 George H. W. Bush United States Attorneys who had not resigned, initially according them ten days to vacate their offices.
The pending brouhaha arises unusually in that none of the eight dumped was a Clinton appointee, each having been a George W. Bush appointee. As is wont in Washington, there are rumors, allegations and theories as to why each was dismissed. Excerpts quoted in the print media create the impression that the Attorneys were competent and doing their jobs while dismissed for purely internal political reasons - e.g., investigation of Republicans, failure to investigate Democrats. These disclosures come in the midst of unrelated bipartisan criticism of Alberto R. Gonzalez as Attorney General, of a seemingly endless Democratic quest to find something to pin on White House Deputy Chief of Staff Karl Rove and of the embarrassingly failed Harriet E. Miers Supreme Court nomination.
The likely House of Representatives, and possible Senate, subpoena machinations appear to be more political grandstanding than objective investigation. Nevertheless, there can be no doubt, in the context of Democratic opportunism and no little Republican concern as to the wisdom (say nothing of the public relations) of the eight firings, the brouhaha will continue awhile. Were the subpoena route fully pursued, as well it might be, we would witness litigation implicating Constitutional questions of separation of powers, including but not limited to the doctrine of executive privilege.
That part of the momentum is inflamed by improvident e-mails fans the flames. Will some people never recognize the incendiary potential inherent in e-mails!
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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E-Mail: When Convenience and Danger Collide
By Marion Edwyn Harrison, Esq.
August 14, 2004
Microsoft Giant William H. Gates, III, as a household word known as Bill Gates, learned the hard way how dangerous e-mail can be. In litigation before the United States District Court in Washington, D. C., a Bill Gates e-mail was admitted into evidence. Depending upon how one analyzes the overall evidence, the e-mail manifested recklessness, an anti-competitive (i.e., unlawful antitrust) directive, temper, maybe just frustration. Whatever, the content of the e-mail in the context of the antitrust litigation, not surprisingly, did not amuse Judge Thomas Penfield Jackson.
How did the e-mail come to light? The question is irrelevant but leads to consideration of an omnipresent e-mail danger. The writer may erase an e-mail but unless the hard drive is reconfigured or destroyed the e-mail lives on and may be accessed upon discovery in litigation.
Indeed, recent litigation suggests that a third party, with dubious or worse motives, in some circumstances might access another person’s e-mail, read it, utilize the contents to his own advantage and escape criminal prosecution.
The facts in United States v Councilman, United States District Court for the District of Massachusetts, affirmed (upon a split vote) by the United States Court of Appeals for the First Circuit (which covers New England except Connecticut and Vermont), are complicated and technical. One might summarize them thusly. Defendant Bradford C. Councilman was an officer of Interloc, Inc., later acquired by Alibris, a California corporation. Interloc, among other things, provided some customers with an e-mail address and served as service provider. Many companies and offices do business with an Interloc equivalent.
What did Defendant Councilman supposedly do for which he was indicted? “According to the indictment . . . [he] directed Interloc employees to . . . copy all incoming [e-mail] from Amazon.com to subscriber dealers . . .” and, after a series of technical steps we’ll skip, he “intercepted thousands of” e-mails, read them and used the information he learned to his own competitive advantage.
Dangerous and hateful, if true. However, not a crime, because (to summarize the Court’s reasoning, woefully amateur technician that I am) the e-mails technically were in storage and the federal statute pursuant to which Councilman was indicted (and, apparently, any other) doesn’t apply to e-mail technically in storage.
Among the vast array of folk sending or receiving e-mail, surely very few know the technicalities by which it is determined that e-mail is in storage or is in some other status. The practical point to be derived from the Councilman case, as from the Bill Gates e-mail outburst, is that a writer must recognize the latent, if statistically minimal, possibility that unauthorized eyeballs may read his e-mail.
In other words, the advent, and ubiquitous use of, e-mail combines opportunities, convenience, problems and risks.
Opportunities and convenience are obvious, problems and risks and their genesis, less obvious.
1. E-mail often is used as a substitute for a telephonic or person-to-person conversation. Therefore from time to time one says things in an e-mail which one might say in conversation. Because e-mail is a writing, e-mail may assume a finality that oral discourse does not. Phrased otherwise, a person may speak words the person would not want to commit to writing. If so, best not to put those words in an e-mail.
2. The exact text of a telephonic or person-to-person conversation, unless recorded, vanishes upon the speaking of the word. E-mail only appears to vanish. Unless the hard drive has been destroyed or adequately reconfigured and all backup tapes and CDs purged, destroyed or similarly reformatted, e-mail has an “after life” of its own.
3. An e-mail advantage is that it may be disseminated without incremental transmission cost to a hoard of people. This creates a tendency to add address names without checking those names e-mail by e-mail to assure that each such addressee really ought to receive the e-mail in question.
4. E-mail, like telephonic or person-to-person conversation, tends to be very informal and unstructured in mode of expression, grammar and syntax - often written very quickly, with no second-thought or review. This increases the risk of substantive misinterpretation by a reader. It also may reflect upon, or embarrass, the writer. Such informality frequently leads to the writing of words and phrases that the writer does not want to preserve or even to read them a day, month or year later - or in some newspaper. In sum, e-mail is more often a substitute for conversation than for correspondence.
5. A bit of lawyer babble now. More and more in our society people work in offices, with access to computers and e-mail, and utilize their employer’s time to attend to personal matters or to private business. With rare exception, if an individual would not write a letter on employer stationary, the individual should not e-mail from the employer’s office and on the employer’s computer. Two risks: (1) Disclosure to one or more, often dozens, of people, that the employee is misusing employer time and equipment. (2) Under some circumstances an e-mail so disseminated, as with a letter on employer stationary, implicates the doctrine of apparent authority, sometimes called apparent agency, meaning that as a matter of law the employee may be deemed to be the authorized agent of the employer. Thus, if liability attaches (e.g., without limitation, a contractual commitment, a release, a defamation) the employer as well as the employee may be held liable.
The “Perils of Pauline” (if you are old enough to remember that comic) may equal those of e-mail.
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