Monday, March 16, 2015

US DOJ clears up (sort of) who is being investigated in the U.S. Attorney's Office in Oregon

Near the end of last week, news broke that U.S. Attorney Amanda Marshall, who had earlier announced that she was taking a leave due to a health problem, was under investigation by the Justice Department for an alleged "inappropriate relationship."

Subsequently, Marshall's attorney, Charese Rohny, told the press that DOJ had informed her that the investigation was of the Assistant U.S. Attorney in the alleged relationship, not Marshall. Today, the Oregonian reported:
On Monday, the Justice Department took issue with Rohny's statement. 
"The statements in the article attributed to a lawyer for U.S. Attorney Marshall do not accurately represent the position of the OIG," the department said. 
That apparently means  Kerin isn't the subject of the investigation and that Marshall is. But Justice Department officials declined to elaborate. 
"Consistent with our policies regarding OIG investigations, we will not comment further," the department said.
Hmm.... That's not explicit confirmation that Marshall is the subject of the investigation, but it's probably as close as you can expect from the Justice Department. Did Rohny misunderstand or mis-state what she had been told by DOJ, or did DOJ change its tune?

At this point, without knowing more, it's best to go with the most charitable possibility, which is that Rohny misunderstood what she had been told. It's hard to see what would be gained from peddling a statement that would be easily shown to be inaccurate. I mean, it might be different if, in exchange for Marshall's stepping down voluntarily in the form of an indefinite leave, there would be no further investigation. A statement denying that her client was the subject of an investigation would be more or less moot at that point.

Some commentators on the Oregonian's story have suggested that Rohny violated the ethical rules. I became curious about the Oregon ethical rules about what lawyers can and can't say publicly about investigations. Rule 3.6, titled "Trial Publicity," states in relevant part:
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. 
(b) Notwithstanding paragraph (a), a lawyer may state: 
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe
that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6): 
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the
(c) Notwithstanding paragraph (a), a lawyer may: 
(1) reply to charges of misconduct publicly made against the lawyer; or
(2) participate in the proceedings of legislative, administrative or other investigative bodies.
Let's start with paragraph (a). A lawyer involved in a litigative matter is barred from making a public statement that "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." So the question is whether Rohny's assertion that the target of the investigation was the AUSA, not Marshall, could prejudice - meaning, affect - any subsequent judicial proceeding.

Here, of course, there is no pending judicial proceeding, and there might well never be one. Right now, this appears to be entirely an U.S. Justice Department internal personnel matter (whether to remove Marshall from her position), and obviously the Justice Department wouldn't be influenced by what Rohny has to say about what the Justice Department may or may not have told her.

Of course, it's possible that some litigation might ensure in the future, but that is speculative, and based on what's been reported, I'd guess extremely unlikely just because the potential gains would be outweighed by the potential downsides (litigation costs, burden of discovery, adverse publicity). If there were to be litigation, the most obvious candidates would be some sort of employment lawsuit by Marshall to challenge whatever action may be taken against her; or a harassment suit by the AUSA. Either way, it's hard to see how Rohny's statement could have any measurable effect. Indeed, it's a preview of what Marshall's litigation position would be in either potential lawsuit - i.e., that she was the victim, not the harasser.

Obviously, where things stand today, if Rohny could re-do things, she probably wouldn't have said what she said last week. But in the grand scheme of things, it doesn't seem like a big deal.

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