Federal prosecutors are trying to keep a Department of Justice whistleblower’s testimony out of court and disqualify every defense attorney who helped collect it in a landmark wildfire case that has sparked allegations of official evidence tampering and government corruption.
The Nov. 24 move came barely a month after the U.S. District Court for the Eastern District of California’s chief judge issued an ultimately unsuccessful order recusing all eight federal judges in the district from the case due to doubts about the potential “impartiality” of the court, given allegations that it was the victim of fraud.
Individual judges were left to decide if they should recuse themselves. While some did, Judge William Shubb of the eastern district accepted the case.
Sidney Powell, a former federal prosecutor and author of the book Licensed to Lie: Exposing Corruption at the Department of Justice called the recusal order “unusual” but stressed that allegations of misconduct pertained to the federal prosecutors, not to the court itself.
Prosecutors at the U.S. Attorney’s Office for the Eastern District of California led a civil case against Sierra Pacific, a major timber company, for its alleged role in causing the 2007 Moonlight Fire.
The company settled litigation against it by agreeing to a settlement in which it paid $122 million in 2012. It was the largest such award in U.S. history.
But after a state court threw the same case out and sanctioned the state fire unit for providing “evasive” and “dishonest” testimony and suppressing evidence that could have proved Sierra Pacific did not start the fire, the company’s defense attorneys took the case back to federal court.
Sierra Pacific’s defense asked a federal judge in October 2014 if the company should still have to forfeit $122 million, given revelations of what they alleged was a “corrupt and tainted prosecution.” A major component of their argument was the testimony of Robert Wright, the former lead prosecutor on the case.
Weeks later, members of the DOJ office where Wright once worked filed a motion demanding the court disqualify both the defense team and Wright’s testimony on the grounds that Wright breached his attorney-client privilege with the U.S. government when he allegedly blew the whistle to Sierra Pacific’s attorneys.
Robert Weisberg, a criminal law professor at Stanford Law School, said the central premise of the motion — that Wright divulged privileged information — is “contestable” but not unthinkable.
“It’s a pretty gray area when the government is the client,” Weisberg said.
The DOJ motion also argued that the government should legally ban anyone on the defense who has read the testimony from discussing its contents. It requested that any documents Wright may have provided the defense be returned to the government.
“I can imagine, ultimately, a judge saying no,” Weisberg said. “Disqualification is just too strong a request for the government to make here. There’s even something overly strategic about it.”
Wright testified he had been removed from the Moonlight Fire case after refusing to conceal evidence that weakened the prosecution’s argument in other wildfire cases.
Wright said his supervisor, David Shelledy, had treated him with “hostility” ever since the two sparred over Wright’s attempts in fall 2009 to release a document that revealed a $10 million miscalculation of the damages the prosecution was seeking in a separate wildfire case.
Shelledy removed Wright from the Moonlight Fire prosecution with the justification that “lately we disagreed about almost everything,” Wright said.
Shelledy declined to comment to the Washington Examiner on Wright’s accusations, except to say, “we will respond to the accusations in district court, as appropriate.”
Wright retired from the Department of Justice in 2010, according to his declaration.
Federal prosecutors argued the defense “breached their ethical obligation” by meeting with Wright and accepting his statement.
“Even if every word of [Wright’s testimony] were true, it would show that Wright and defendants’ attorneys have engaged in egregious professional misconduct,” the motion said.
The DOJ representatives argued that Sierra Pacific’s attorneys approached Wright first and “elicited” his testimony in what they said was the third instance of defense “misconduct.”
The federal prosecution team, which includes Shelledy and U.S. Attorney Benjamin Wagner, said in their motion that an attorney for the defense posed as an “interested member of the public” and hid his actual role in the case in order to gather evidence from an employee of the U.S. Forest Service.
Prosecutors also accused the defense of having “forbidden” communication with an expert.
Wagner told the Examiner the allegations against attorneys in his office are “totally without merit.”
Powell said many lawyers who read about the DOJ’s tactic found it “ridiculous.”
“I’ve never seen one like this before,” she said.
Because the investigation that concluded sparks from Sierra Pacific bulldozers started the fire was conducted by both state and federal agents, the legal lines of the case are complicated.
“It’s all one big mess,” Powell said of the joint effort that faulted the timber company.
At the initial hearing Nov. 24, Shubb placed the DOJ’s motion “on the back burner” while both sides prepare evidence to present in court early next year, Powell said.
The defense team must demonstrate that the government investigators and prosecutors intentionally misled the court in order for the case to proceed.
Powell said the state court’s ruling, which essentially supported the defense’s allegations, will carry some weight in Shubb’s ultimate decision.
Weisberg agreed that the federal court could be “influenced” by the ruling.
“This case could turn out to be a huge embarrassment for the government,” he said. “It’s so unusual it’s hard to say what it will represent.”
