This case involves a Bureau of Alcohol, Tobacco, Firearms and Explosives ex-agent who sued the BATF over its slander of him and its lack of adequate protection of him and his family after he’d done undercover work for the BATF in the Hell’s Angels motorcycle gang.
United States Court of Federal Claims Judge Francis M. Allegra opened his latest ruling in blunt terms:
On October 29, 2014, the court…issued an order voiding the prior judgment based upon indications that defendant [the United States; the BATF agent was the plaintiff], through its counsel, had committed fraud on the court.
Fraud on the court is an extremely serious bit of…miscreancy. As Allegra explained it,
Fraud on the court “is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.”
It’s a direct attack on the ability of our judicial system to function at all; it’s not one litigant lying to the other in order to gain an advantage in a particular case.
The underlying case is an indication of the integrity of Attorney General Eric Holder’s DoJ, but I want to focus on the fraud on the court allegation. Allegra focused on two examples he found indicative of a pattern of fraud on the court perpetrated by Holder’s representatives in the case. The first is this:
Testimony at trial indicated that Valerie Bacon, an attorney in ATF’s Office of General Counsel, attempted to convince SAC Atteberry not to reopen the arson investigation [regarding the destruction of the BATF agent’s home, the blame for which was central to the agent’s slander beef]. In this regard, SAC Atteberry testified:
Q. . . . Did you get any kind of discouragement in any respect from anyone at ATF with respect to reopening this arson investigation?
Q. Please explain.
A. I had a phone conversation, and I also believe I talked to her [Bacon] in person one time when she was in Phoenix, and I believe during the telephone conversation she made a comment to me that if you, meaning myself, reopen the investigation that would damage our civil case.
The existence of this illegal conversation was never passed to the court until Atteberry’s testimony. Indeed,
Defendant’s filings regarding this situation demonstrated not only that its counsel—including supervisors in the Civil Division, who received email communications on this topic from plaintiff’s counsel in March of 2013—were aware of Ms Bacon’s actions prior to the trial in this case, but did nothing to apprise the court of her actions or of the potential that the integrity of these proceedings were at risk.
And this instance:
…a taped conversation (a copy of which is part of the appellate record in this case), revealed that defendant’s [the United States, recall] attorneys may have committed other violations of the duty of candor, including a potential failure to advise the court that an ATF agent who testified in this case may have been threatened by another witness during the trial. The taped communication states that defendant’s counsel ordered the agent in question not to communicate the threat to the court and stated that there would be repercussions if the agent did not follow counsel’s instructions. This matter has since been referred to the Office of Professional Responsibility (OPR) at the Justice Department.
Notice that. However,
legal filings show that the agency soon suspended its investigation, saying it would wait to hear what Judge Allegra finds.
This is Eric Holder’s OPR, recall. It suspended the investigation which the judge had explicitly requested be carried out, not a file folder created and then…HIAed.
Unfortunately, the judge has no recourse other than the one he took: to address the matter to…Eric Holder. He did, though, bar the seven defense attorneys from appearing further in his court in connection with this case.
Fox News also asked Attorney General Eric Holder if the lawyers involved had been disciplined. The Department of Justice declined to comment.
Of course not.
The judge’s ruling can be seen here.