Geragos’ Intentionally Non-Responsive Subpoena to Lisa Myers
This is odd.
As I explained earlier, Brent Wilkes’ lawyer Mark Geragos is trying to subpoena a bunch of lawyers and journalists, in hopes (he claims) of discovering who was leaking about the Wilkes/Foggo indictments before the indictments came down, and in further hopes of getting Wilkes’ convictions thrown out because of governmental misconduct. I’m particularly interested in Lisa Myers’ subpoena because she’s a hack frequently targeted for GOP spin, and because I think the leak she received may have had as much to do with the Gonzales clique’s attempts to bury their firing of Carol Lam as it had to do with sincere content. That is, the leak probably was misconduct, but not in any way that could help Wilkes.
Here’s how Geragos first described the leak to Myers.
a televisionreporter told me that an attorney at the Justice Department mainoffices in Washington D.C. (“Main Justiceâ€) had disclosed that MainJustice believed that it could no longer exercise its normalsupervisory role because the leaks of the indictment “would now makeany action taken by Main Justice appear to be politicalâ€. [my emphasis]
But Geragos never contends that Myers reported on this leak–she just told him its contents directly.
Here’s how Geragos describes Myers in his motion to subpoena her (and the others).
Lisa Myers is a senior investigative correspondent for NBC NightlyNews. She can testify that she spoke to a person within the Departmentof Justice who told her that they had the seen the indictment(s) andgave her other detailed information. [my emphasis]
And here’s the language in Geragos’ proposed order for the subpoena to Myers.
Lisa Myers
[Address Redacted]a. To bring with you or to provide via mail or facsimile, any and allwritten or electronic information including but not limited to papers,notes, documents, correspondence, emails, records, internal memoranda,phone logs, and/or other documentation pertaining to the sources you referred to in any news reports about the pending indictment(s) against Brent Wilkes, Kyle Dustin Foggo, and/or John Michael.
b. To bring with you or to provide via mail or facsimile, any and all draft(s) of the indictment(s) against Brent Wilkes, Kyle Dustin Foggo, and/or John Michael that you received at any point in the investigation and in any format. [my emphasis]
Given Geragos’ two earlier statements, (a) would not be relevant, because Myers never didany news reports on the leak she received. And (b) would not berelevant, because Myers claims only that her DOJ source told her he hadseen the indictment; Myers never claimed to have seen the indictmentherself.
So, provided that the earlier two representations Geragos made aboutMyers’ story are correct, then Myers will have nothing responsive tothe subpoena. And Geragos knows it.
Of course, Geragos could ask for the identity of her DOJ source–about whom she never did a TV report. That person would certainly be a government leaker–and would have violated grand jury secrecy. But Geragos doesn’t ask for that information, which is precisely the information he claims he needs.
Your last statement below was correct I see. Wow. You are right about the language appears purposefully tailored to obtain that which doesn’t exist. I will add that, if you really wanted this stuff (and it existed), you would also want to attach NBC via process, because they could/would be the actual holder/custodian of said records. I also note the similar application as to Scott Paltrow of WSJ.
Yup, he doesn’t go after any of the media outlets. I can’t decide whether he just doesn’t want any of these (though, written as is, these subpoenas are incredibly easy to throw out), or whether he’s just goofy. Too bad for Wilkes he used the last of his fortune paying for Geragos, huh?
But I still think there’s a difference in quality between what he asks for from Hoffman and Paltrow (limited things attached to specific quotes from stories), Hettena (the kitchen sink, basically every source he used in his book), and Myers (something that doesn’t exist).
bmaz,
Just to clarify a little bit.
Wilkes brought the motion to dismiss the indictment before his trial.
Judge Burns ordered an investigation and a report.
I think the report must have said something like, â€We asked everyone, but nobody admitted being the leaker.â€
Burns set the motion aside (hope that is the correct legal language) but told Wilkes he could return to his motion after the trial.
And now he is.
Burns seems to think this has little chance of succeeding – he has suggested that the Wilkes Foggo trial might be moved to eastern Virginia.
That is predicated on the fact that if Wilkes is taken into custody soon, – the govt can move him to where ever they want him for the Wilkes Foggo trial-thus it is not a hardship for him if the trial is moved to a new place.
Isn’t Judge Buyrns the one who will rule on this? Can Wilkes appeal it if Burns turns him down?
How does the next step work?
Does it have a chance or is it a hysterical attempt to spend one last Christmas with the kids and family?
chrisc
NAL, but my read is that Geragos CAN’T expect this to work, for the problems I’ve laid out here. But he might hope to get some more time. And, hell, maybe distract the USA office in the months leading up to Wilkes’ second trial.
When is Wilkes’ sentencing set for?
Wilkes’ sentencing is set for January 28. No reason he should be taken into custody before then, so it doesn’t relate to staying out for Christmas. Burns did warn Wilkes after the return of the guilty verdicts that he usually remands defendants into custody at sentencing (the courthouse term of art â€Bring your toothbrushâ€) so maybe Geragos is desperately trying to establish a reasonable success argument for appeal in an attempt to keep Wilkes out on appeal. If that is it; ain’t happening. Not that his bizarre pleading appears reasonably calculated to get there anyway…
Burns set a Jan. 28 sentencing date for Wilkes and he warned him to be ready to go into custody.
Can Wilkes/ Foggo trial start while this other one is still playing out?
It would probably be to Wilkes advantage to go to his next trial as a free man.
Time out here man, I wanna clear a few things up:
so do we have two different bmaz’s here, or is that dual personality thing acting up again, cuz bmaz is askin questions (in really fucked up grammatical form too) and answering them in following posts (which might be normal, I been away for a while so …)
second;, emptywheel, when you say this:
does that mean that, she has been known to receive and repeat GOP talking points in the past and that the leak she received was an attempt by abu gonzo to claim that Carol Lam’s firing didn’t influence the wilkes prosecution, and that the leak she received didn’t have any influence on the wilkes trial anyway ???
is that what that sentence is supposed to convey ???
and does anybody know how to unstick the keyboard of a dell inspiron 2200 notebook (major spillage problems dude)
that about covers it
Sure. Decision to postpone sentencing on first case conviction with another felony case pending has many potential implications though, many of which are in play, including ability of Wilkes to take the stand in the second trial. I dunno, it is the way they are attacking their goal, whatever their goal may privately be, that just looks goofy….
freepatriot – Remembered Bush mentioning something called â€teh googleâ€, so I decided to go ahead and give it a try. What do ya know; answer to my question was right there.
heh. bmaz, you’re still my hero. Only the most modest and self-assured of bloggers would admit to posting a comment without googling it first
Past my bedtime here in OR. See you kids on the flipside.
EW,
This is just an order to appear with duces tecum. The duces tecum requests documents that MAY exist, and lawyers quite commonly ask for material not known to exist.
It is a fishing expedition for documentary evidence that might support or contradict a witness’s testimony or credibility. She may have told Geragos that there was only verbal communication about the indictment, but he is gambling (at no loss to him) that she was given something in writing or made notes pertaining to any sources in the Wilkes, Foggo or Michael Cases.
She has to show up and answer questions, but her lawyer will probably argue that any information about sources is privileged, and the judge may block these requests regardless whether the alleged documents exist.
drational
I disagree, strongly. For your argument to work, you need to explain why–unlike every other journalist he subpoenaed–he didn’t ask for the one thing he claims he needs: the identity of the government official who leaked info on the indictment. If he were fishing, don’t you think he’d throw a line towards the one fish he KNOWS is there?
rfw
I’m not entirely sure. I’m leaning towards the following:
1. Myers has been known to receive and repeat GOP talking points in the past
2. The leak couldn’t have had any influence on the wilkes trial, as Myers didn’t publish the leak (she just passed it on directly to Geragos)
3. The leak may have served one of two purposes. It may have been an attempt by Gonzales clique to â€prove†that its involvement in the Wilkes/Foggo indictment had nothing to do with politics (though it was far too late to â€prove†this at this point, since they had already refused to do the things that would have removed Lam’s firing from politics–and if this was the purpose, Myers screwed them by not publishing the story)
4. The leak may have also been an opportunity to give something to Wilkes’ lawyer that he might use to get the indictments thrown out–basically Main DOJ providing the evidence that would taint the indictment.
Then of course, it may have just been a sincere leak, that someone in Main DOJ really did think they had to pull out of the Wilkes/Foggo trial. But the timing for that is off, badly.
EW
the point of a duces tecum is solely to garner written documentation.
It is not a venue to ask questions that will be asked at deposition or trial.
The recipient of the subpoena duces tecum is not yet under oath- they are only subject to court-approved requests for written documents pertinent to the line of questioning that will be pursued at deposition or trial.
The lack of asking specific questions in a subpoena duces tecum is the norm, rather than something unusual. It would only be unusual if Geragos did not ask the identity at trial or in depo.
The duces tecum for all of the other journalists in the order follows the same format= bring written documentation. It does not ask for questions to be answered.
I am unsure what you are disagreeing strongly with…
The point is that he has written it to exclude all the information of interest, and done so soley with Myers. You may not be getting the underlying logic of his request: Myers never mentioned this in a TV appearance, she never saw a subpoena directly. So he is asking for stuff that HE KNOWS doesn’t exist.
Or put it differently. To get what he claims he’d need, he’d have to rewrite the subpoena to say he wanted information on any reporting she did, not any reporting that made it on TV. He’d have to say he wanted her notes on what she was told about the indictment, not the indictment itself. Since he doesn’t do so, he excludes all information relating to her actual source. He’s thrown a wide net, kind of, but deliberately thrown it in a pond with no fish.
The request is in the form of a subpoena duces tecum, although it does not specifically state that. The putative language does not command appearance to produce the docs, it specifically allows production compliance via telefax. I agree with EW, the requesting language is intentionally crafted to get that which should not exist while avoiding things Myers might have that should exist. Tie that to the fact that NBC itself is not subjected to process (you ALWAYS get the employer media organization named in your discovery process to a reporter) and I think you have to say Geragos is not really looking to get anything from Myers, it is a show.
As the recipient of about 50 subpoenas duces tecum, I can tell you it is not used as a specific or directed discovery tool, nor is it written with an expectation that each item will yield a document. Each time I am subpoenaed, I bring something in response to about 50% of the requested items in the subpoena, most often because the requested documents do not exist.
It is absolutely not intended to replace or exclude any testimony. Subpoena Duces Tecum means â€Under penalty you will bring with youâ€. The most important part of that instrument is that you have to present yourself to answer questions. The items requested may give a witness an indication of the direction their questions will come from, but the duces tecum absolutely does not EXCLUDE anything from what you are going to be asked under oath.
Geragos does not know factually what does or doesn’t exist. Myers may have told him she â€heard about†the indictment, but she did not do it under oath with threat of the penalty of perjury.
He is fishing for a leaked copy of the indictment from her and all the other journalists he subponeaed. Item b is identical for Myers, Seth Hettena, Allison Hoffman, and Scot Paltrow.
With respect to item a, for all the other journalists, Geragos refers to specific work product where they implicated a governemnt leak. In other words, he links his request to known public statements of the journalists. Since Myers did not make any known public statements Geragos could reference for supporting documentation, he offers the broad â€any news reportsâ€. So she has to go back and find notes or documents related to anything she said publicly in news reports about the indictments, and if it happens to list government sources, Geragos will have something to work with.
It is true that he does not ask for documentation based on their private conversation, but item a is certainly consistent with what he asks of other journalists- All the other requests of journalists relate to providing written documentation of sourcing of publicly reported info. It is probable that Geragos must wait for Myers to be locked into acknowledging the conversation before he can get a judge to endorse his request for documentation about it.
But most importantly, the fact he does not ask for documentation about their conversation in this pre-deposition Duces Tecum DOES NOT EXCLUDE a request for such documentation during depo. The subpoena forces her to show up. Once Myers acknowledges their private conversation under oath, Geragos can ask her to provide any documentation.
I just don’t see the analysis of the particulars of Myers’ duces tecum as revealing of any intrigue.
drational
Well, then we’ll disagree. As you’ve acknowledged, he limits his document request on her own notes to her public reporting on the early indictment. According to past motions on precisely this issue, both sides have noted that she did not report on this. Therefore, he has effectively said, â€show up with any documentation you’ve got on something that all parties agree doesn’t exist.â€
Furthermore, yes, he’s looking for copies of the indictment. But that’s not what he says he’s looking for–the larger purpose of the subpoena. He’s looking for evidence that people were talking about the indictment before they should have been. We know Myers has testimony about that–about a govt official telling her details about–but not giving her a copy of–the indictment. But does she have notes? We’ll never know, because Geragos doesn’t ask for them.
Now, perhaps the disparity in the way he’s subpoenaing Myers just reflects the fact that she, unlike Hettena, never reported on this (Hettena reported on the story generally in his book, though I don’t know whether he reported on the early indictment leak). But in Hettena’s case, Geragos writes the subpoena to be inclusive–to include everything Hettena ever touched. That’s not true of Myers’ reporting. Geragos doesn’t say, as he does with Hettena, â€bring every piece of paper relating to any source you had on this story, period.â€
All of which is particularly odd given that Myers’ leak is 1) the one leak that definitely came from a DOJ official (the others were named as govt officials, and in at least once case, were described as NOT being prosecutors), and 2) critical to Geragos’ theory of the case.
Now, to go back to a point bmaz made: he doesn’t subpoena ANY of the journalists’ employers: NBC, WSJ, AP. So that probably means the whole thing is designed to be a futile effort. But I’m particularly struck by the futility of his subpoena of Myers.
drational – Sometimes a Subpoena Duces Tecum is used â€as a specific or directed discovery toolâ€; sometimes it is not, and is only a fishing tool. It just depends on the circumstances. You say â€The most important part of that instrument is that you have to present yourself to answer questions.†If you have routinely personally appeared to respond to a Subpoena Duces Tecum, that surprises me; production compliance is normally made in writing (even occasionally, as Geragos contemplated, by fax). I suppose I must have gone with someone to personally respond to an SDT, I have a vague recollection of doing it once or twice, but that is a rarity. You are right that requesters don’t always know exactly what the party being subjected to process has or doesn’t have; in this case, it seems pretty clear for the above stated reasons at 10:18, Geragos has intentionally tailored this specific request to not be fruitful. I would also point out that your related experience on SDTs appears to be civil in nature. While the criminal form of discovery process is analogous in principle, it varies in many material ways. For instance, in relation to depositions. You say â€But most importantly, the fact he does not ask for documentation about their conversation in this pre-deposition Duces Tecum DOES NOT EXCLUDE a request for such documentation during depo.†That would be in a civil setting. Depositions are not a right in criminal cases, there is a preference for interviews when the defendant is entitled to speak with the person at all. You must formally move the court, upon cause, for an order to take a deposition. Most of what you relate is correct in a traditional civil suit setting; but in a criminal case, under these facts, I agree with EW, this request of Myers, and to a lesser extent the other media requests, are intended to result in nothing.
bmaz
Let me revise my comment about futility above.
I don’t think they’re â€intended to result in nothing.†I think they’re an attempt–which is likely to be about as successful as the Congressional subpoenas–to muck up the case and provide Wilkes some reason to ask the verdict be thrown out. That is, he just wants the journalists (as well as everyone else subpoenaed, all of whom, I think, have some kind of privilege) to say no. That would explain why he didn’t subpoena the news organizations–their bar for releasing any paperwork is demonstrably lower than an individual journalist’s is, so if he subpoenaed them, Geragos might actually get what he claims he was looking for, proof of the leaker.
That’s one of the reasons, I suspect, that he didn’t subpoena Dzwelewski (sp)–because there’s a much higher chance that if he did, he’d get what he wanted, proof of the leaker.
That is what I meant by futile, as well as â€result in nothingâ€. Geragos certainly has a goal here (theoretically anyway, still think it is a lame effort), but it is most certainly not obtaining possession of the items he purports to seek from Myers; that part does really appear to be designed to reach a null result.
I wonder if it is possible another shielding effort is part of the SDTs, namely negotiations looking at sentencing barter; additionally that endgame process might involve a political need or desire to shield some DoJ people among those who hurried Lam from her federal employment. I need to read the series of SDTs, though bmaz’s description seems verisimilar. Given the Judicial Council boilerplate’s stilted vernacular, and given that the last recension of SDT software I saw on a computer screen was less than wysiwyg even in the windows world, there could be some slippage between the intended language and what was published, though office processes which are thorough eliminate such errors with or without wysiwyg. Folding the origami yet more differently, I could see the Myers sdt equally plausibly as a conjuring to prepare for a series of questions under oath, i.e. a kind of predefinition of accusations before production of documents.