Chapter 2.3: The Bombshell. Radack Either Lied About Impact of Ethics Violation, or She’s the Most Incompetent Attorney on the Planet

Let’s pretend for a moment that John Walker Lindh’s attorneys argued in court that the FBI committed an ethics violation when they interviewed him. And let’s further pretend that the judge agreed with them. How would this have affected the case?

If forced to defend itself, the government was intent on invoking cases like Moran v. Burbine to support the argument that Lindh was not represented at the time of the FBI interview; therefore, an ethics violation could not have occurred. But even if the judge ruled against them, officials didn’t seem terribly concerned, and here’s why.

First, let’s revisit Chapter 1, which is integral to understanding this story:

Radack’s entire whistleblower story rests on Model Rule 4.2. It’s the ethics rule that she says the FBI violated when they interviewed Lindh. It’s also the reason why she initially advised against the interview after learning that Lindh’s father, unbeknownst to his son, hired an attorney on his behalf.

So, the McDade Amendment is the law that requires federal attorneys to follow the ethics rules in every state in which they practice, and Model Rule 4.2, the no-contact rule, is one of those ethics rules.

Next, let’s revisit what Radack has said in the press:

There was a law passed in around 1999, called the McDade Amendment…That created a lot of conflicts of law for Justice Department attorneys. We were there to help tease out those problems. (Buzzflash, 2007)

The main legal issue in the criminal case against Lindh turned on whether the confession he made to FBI interrogators in Afghanistan should be admissible at trial. My emails were central to that question. They documented that he was represented by counsel and could not be interrogated without his lawyer, and that the FBI had committed an ethics violation in doing so, the fruits of which could not be used against him in prosecution. (Harper’s Magazine, 2012)

So, Radack’s job at the PRAO was to advise government attorneys on what they could and could not do ethically based on the McDade Amendment and the American Bar Association’s (ABA) ethics rules. One of those ethics rules is ABA Model 4.2, which basically states you can’t speak to a person represented by an attorney without their attorney’s consent. This is the rule that she claims was violated when the FBI interviewed Lindh.

A large portion of this series has focused on whether or not Lindh was considered represented because that’s literally the basis of this particular ethics rule.

However, as you read above, Radack also claims that because this ethics violation occurred, Lindh’s statements to the FBI agent should have been thrown out of court. Thus, when she leaked her emails, which allegedly exposed the violation, the government’s case collapsed. And hoo boy, that is a mighty tall assertion.

Lindh’s attorneys never mentioned an ethics violation in court. His father never mentioned an ethics violation. In fact, no one involved in the case has ever acknowledged or thanked her, which, of course, would lead us to believe that she’s been lying to the public for over 20 years. But could her story, somehow, in some weird way, still be true?

In February 2002, then-Assistant Attorney General Jay Bybee signed off on a memo about ABA Model Rule 4.2. It stated that even if military lawyers violated it by interrogating a represented person without their attorney’s consent, the evidence obtained would not be suppressed at trial based strictly on the violation.

The case cited in the memo was U.S. v. Lowery (1999) from the Eleventh Circuit, and the question before the court was whether Congress intended to control the admissibility of evidence in federal court when it passed the McDade Amendment. The answer was a big no:

[A] state rule of professional conduct cannot provide an adequate basis for a federal court to suppress evidence that is otherwise admissible. Federal law, not state law, determines the admissibility of evidence in federal court…

There is nothing in the language or legislative history of the [McDade Amendment] that would support such a radical notion. Making state prescribed professional conduct rules applicable to federal attorneys is one thing. Letting those rules govern the admission of evidence in federal court is another.

In other words, SURPRISE!!! The McDade Amendment—the very same amendment that Radack was expected to advise federal attorneys on as part of her job at the PRAO—does not govern the admissibility of evidence in federal court as a form of disciplinary action against a federal attorney who violates it.

Radack is certainly welcome to argue this both publicly and privately in an attempt to preserve what little is left of her reputation; however, I spoke directly with one of Lindh’s attorneys, and he confirmed that they did not argue an ethics violation in court because, again, you generally can’t use it as a means to suppress evidence.

You would have to be as high as Marion Barry holed up in a D.C. hotel room to believe that her claims had any bearing on the Lindh case. This is why no one from the case has ever acknowledged her, her emails, or the ethics violation as a reason why the U.S. government offered Lindh a plea deal.

Perhaps, in all of her delusional grandeur, she thinks Lindh’s defense team is lying or is somehow less knowledgeable than she is when it comes to criminal law, even though I don’t believe she’s argued a single criminal case in front of a federal judge.

Yes, the defense team believed that Lindh was represented by counsel when the FBI interviewed him; her legal opinion wasn’t entirely out of left field. But, unlike her, they knew an ethics violation wouldn’t help them in terms of suppressing their client’s statements. And, unless Radack is categorically incompetent, she should have known this because John De Pue told her that six months before she leaked her emails:

I am…quite confident that any arguendo McDade violation would not result in the suppression of the statement. See, e.g., United States v. Hasting, 461 U.S. 399 (1983).

Let me repeat that: Another federal attorney told Radack in mid-December 2001—more than six months before she leaked her emails—that an ethics violation would not result in Lindh’s statements being suppressed, and he was right. This hero narrative she’s concocted about her emails and some alleged ethics violation made no difference whatsoever in the criminal case against Lindh.

Her story is complete hogwash.

Worse? She leaked her attorney-client privileged emails because she’s either full-blown incompetent and should no longer hold a law license, or she did it purposely, for unknown political reasons, knowing full well it wouldn’t affect the case. As I stated in my previous chapter:

[T]his story reeks of someone, perhaps the DNC or Radack on her own, catching wind of the negotiations and making a calculated political move to muddy the waters and ruin reputations by inserting her into the case as a so-called whistleblower.

We could end this series right now with the total annihilation of her story; however, the lies didn’t stop here. And so, with great anticipation, the show must go on.

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Sources:

1. https://www.nbcnews.com/id/wbna3067190
2. Chapter 1: The McDade Amendment https://goatandvine.substack.com/p/chapter-1-the-mcdade-amendment
3. https://archive.is/0OJKM#selection-6063.166-6063.578
4. https://harpers.org/2012/06/_traitor_-six-questions-for-jesselyn-radack/
5. Chapter 2: Literally No One Mentioned Radack’s Ethics Violation in the Lindh Case https://goatandvine.substack.com/p/chapter-2-literally-no-one-mentioned
6. Chapter 2.1: Jesselyn Radack’s Ludicrous Claim She Brought Down the Lindh Case https://goatandvine.substack.com/p/chapter-21-jesselyn-radacks-ludicrous
7. https://nsarchive2.gwu.edu/torturingdemocracy/documents/20020226.pdf
8. U.S. v. Lowery (1999) https://law.justia.com/cases/federal/appellate-courts/F3/166/1119/629784/
9. U.S. v. Ruehle (2009) https://caselaw.findlaw.com/court/us-9th-circuit/1499137.html
10. U.S. v. Hailey (2012) https://www.casemine.com/judgement/us/5914f709add7b0493499312b
11. https://www.nbcnews.com/id/wbna3067190