Atop the attorney general’s conference room reads an inscription: “The United States wins its point whenever justice is done its citizens in the courts.” It serves to remind the attorney general, the solicitor general, and their colleagues that their highest obligation is not to win cases, but to ensure that justice is done. It must weigh on their minds especially heavily these days, as the solicitor general’s office considers how next to act in a case involving astonishing injustice perpetrated by Department of Justice subordinates in a major federal lawsuit brought by the federal government.
The case’s disturbing facts were described by Joel Engel in THE WEEKLY STANDARD in March . To review: After a 2007 forest fire burned nearly 65,000 acres and injured 34 people, federal and California officials undertook a joint investigation of what came to be known as the “Moonlight Fire.” The governments quickly settled upon a very specific theory of what started the fire—a timber operator’s bulldozer striking a rock, causing a spark and thus the conflagration—and filed federal and state lawsuits in 2009 against Sierra Pacific Industries (the forestry company that had hired the operator) and other companies and landowners.
“The only substantial difference between the two suits,” Engel notes, “was the amount they sought in damages. The state of California wanted about $10 million.” But the Justice Department, led by Attorney General Eric Holder, sought nearly $1 billion. “Which seemed excessive,” Engel observes, “since the total value of the land was about $25 million and the costs of fighting the fire were less than $10 million” (although the U.S. claimed that its costs were closer to $30 million). “The outsized damages were just the first sign that something was very wrong in the government’s case.”
Very quickly other signs of government misconduct arose, including a fraudulent report about the site of the origin of the fire, and those are detailed in Sierra Pacific’s petition for Supreme Court review. But even more astonishing was the Justice Department’s efforts to cover up discrepancies in the investigation, which Sierra Pacific belatedly discovered. As Engel summarizes:
In fact, aerial video footage of the fire, just an hour and a half after it started, showed that the points cited by the Justice Department as the alleged point of origin could not possibly have been the genuine point of origin.
Yet when the federal district judge refused to allow Sierra Pacific to raise in court the theory of the fire’s other possible cause, Sierra Pacific chose to settle the case for $55 million in cash and 22,500 acres of land. The Justice Department valued the combined settlement at $122.5 million; though far short of its original demand of nearly $1 billion, it issued a press release with the Forest Service, crowing that “the settlement is the largest recovery ever received by the United States for damages caused by a forest fire.”
After settling the federal lawsuit, but before California courts heard the state lawsuit, more evidence of the federal and state governments’ misconduct came to light. This led the California court to dismiss the state’s lawsuit in the strongest possible terms, and imposed more than $30 million in sanctions on the state itself.
Yet the state court’s dismissal of California lawsuit did nothing to affect the federal case, which Sierra Pacific had settled in the face of the Justice Department’s $1 billion damage claim, an existential threat to the company. Instead, the company and other defendants attempted to vacate the settlement pursuant to Rule 60(d)(3) of the Federal Rules of Civil Procedure, under which the federal courts can “set aside a judgment for fraud on the court.”
The case arrived in the Supreme Court in late March, raising two technical legal issues: first and foremost, whether Rule 60 allows the trial court to vacate a fraudulent judgment only when all of the evidence supporting the defendant’s motion was discovered after the trial court entered its judgment. That is what the U.S. Court of Appeals for the 9th Circuit concluded; it held that even if all of the available evidence demonstrates that the defendants were victimized by the government’s fraud on the court, those defendants can only try to overturn the judgment based on evidence found after the judgment. (The second issue presented to the court is whether the district court judge should have recused himself for bias, because of his inaccurate tweet celebrating the government’s win: “Sierra Pacific still liable for Moonlight Fire damages,” Judge Shubb tweeted, quoting the headline of an article to which he linked.)
While it’s true that “justice is blind,” this case puts a very ominous spin on the old adage: Under the 9th Circuit’s rule, justices must wear blinders, and ignore pre-judgment evidence of government fraud, even when it combines with post-judgment evidence to prove the government’s misconduct—as the total evidence does in this case.
Amicus briefs filed by other groups in the Supreme Court, urging it to hear this case, emphasize the fundamental principles at stake in this case. Indeed, at a moment in history when the American public is focused on questions of the integrity of American institutions, this case takes on special gravity.
The brief filed by retired employees of Cal Fire warns that denying Sierra Pacific and the other defendants “a full opportunity to set aside the settlement of the federal case severely undermines public confidence in the fire prevention, investigation and related law enforcement and judicial processes, sullies their own professional reputations and that of other honorable Cal Fire professionals, and does a disservice to citizens, including amici, who as taxpayers support these critical efforts with the reasonable expectation that fire investigations and cost recovery actions will be handled with the highest degree of professionalism and integrity, not with an eye towards targeting those viewed as having deep pockets.”
Similarly, the National Association of Forest Owners’ brief emphasizes that “Americans’ confidence in the work performed by public servants like those employed by federal investigators, prosecutors, and their state partners Cal Fire and the California prosecutors . . . is a crucial element to successful fire prevention and protection work of integrity.”
And the brief filed by the attorneys general of 10 states focused on the harm that the governments’ fraudulent investigation could do to American legal institutions more broadly. “Amici submit this brief,” they wrote, “to further these interests and draw attention to the extraordinary circumstances of this case and the threat the [9th Circuit’s] decision presents to the fairness, integrity, and public reputation of the legal system.”
Their briefs call to my mind one of the most famous and beloved speeches in Justice Department history: “The Federal Prosecutor,” a 1940 address by Attorney General (later Justice) Robert H. Jackson, to the Second Annual Conference of United State Attorneys. In his address, which is quoted time and time again by government lawyers (and which is featured on the Justice Department’s web site), Jackson focused the federal prosecutors’ attention on the awesome powers with which they are entrusted:
Jackson added that although the U.S. attorneys scattered across the country are vested by the Justice Department with great discretion, the Justice Department’s leadership must maintain some oversight to guard against abuse: “Experience . . . has demonstrated that some measure of centralized control is necessary,” to “promote uniformity of policy and action,” and “to establish some standards of performance[.]”
But the most famous lines of Jackson’s address echo the aforementioned warning inscribed today on the Attorney General’s wall. Jackson makes that point emphatically:
These lines, too, might be echoing in the Justice Department presently, as Solicitor General Noel Francisco and his colleagues grapple with what to do in the Moonshine Fire case. Sierra Pacific filed its “cert petition” months ago, yet so far the Justice Department done nothing but delay (twice) its deadline to reply.
Perhaps the solicitor general is considering the option of “confessing error” on behalf of the Justice Department. It is a relatively rare move, one saved for cases when the government is clearly in the wrong. As it is here. One should not ask lightly for the Justice Department to disclaim the work of its U.S. attorneys, whether in the current presidential administration or the one that originally brought this fraudulent case against Sierra Pacific. But when the evidence of fraud is so overwhelming, as confirmed by the California courts themselves, then the Justice Department should take steps necessary to restore public confidence in the institutions of American justice.
They need not consult the late Attorney General Jackson. They can refer to the speech that their own colleague, Deputy Attorney General Rod Rosenstein, delivered Thursday:
“Our system of government is not self-executing,” Deputy AG Rosenstein acknowledged. “It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.”
“Lawyers and judges bear great responsibility for implementing and explaining those principles,” he added. “The farther we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.”
In this case, it will depend on the justices, if not the Justice Department.
