Chapter 2.6: Radack’s Bizarre Claim That an Unknown Figure at the FBI Committed the Ethics Violation

Finally, we are left with the question “Who committed this ethics violation?” which, as a gentle reminder, made no difference in the Lindh case whatsoever. Radack alleges that because her emails prove Lindh was represented before the FBI interview (they don’t), and that she advised a federal attorney that the FBI could not interrogate him because of this “fact” (she did), this also proves the FBI violated an ethics rule by speaking to him without James Brosnahan’s consent. She made it abundantly clear in her 2005 declaration that her issue with the interview was ethics rule Model Rule 4.2:

I advised Mr. DePue [sic] via e-mail that PRAO believed that Lindh was represented by an attorney and that an FBI interrogation of Lindh bypassing his attorney would be a pre-indictment, custodial, overt interview not ‘authorized by law’ under Model Rule of [Professional Conduct] 4.2 in a majority of Circuit Courts, including those in which Lindh might eventually be indicted.

She also made it clear in the first edition of her book:

I responded that interviewing Lindh would not be authorized by law under the ethics rule. The specific rule that governs contact by a lawyer with a person represented by counsel is set forth in the American Bar Association (ABA) Rule of Professional Conduct 4.2, the ‘anti-contact rule.’

In court filings, her book, and dozens of appearances and interviews, she’s repeatedly stated that her concern over the FBI interview (and her entire response to De Pue back in 2001) was always about Model Rule 4.2. And yet, even though the term “ethics violation” inexplicably doesn’t make a single appearance in her book or court filings, let alone in conjunction with the FBI, she’s planted this story in the media an ungodly number of times after she became enraged over that very same agency investigating her for leaking attorney-client privileged emails.

And when I went to comply with the order, my emails with the advice not to interrogate [Lindh] without counsel and the fact the FBI had committed an ethics violation in doing so. (Democracy Now, 2007)

My e-mails documented my advice against interrogating Lindh without a lawyer, and concluded that the FBI committed an ethics violation when it did so anyways. (The Nation, 2007)

When I tried to comply, I found that [my] emails, which concluded that the FBI committed an ethics violation during its interrogation of Lindh. (Whistleblower.org, 2008)

Although I had written more than a dozen e-mails on the subject, the Justice Department had turned over only two of them, neither of which reflected my conclusion that the FBI committed an ethics violation in its interrogation. (Los Angeles Times, 2010)

My emails…documented that [Lindh] 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 a prosecution. (Harper’s Magazine, 2012)

I had written pertinent e-mails concluding that the FBI had committed an ethics violation in interrogating him without his counsel. (DailyKos, 2018)

Literally nowhere in the emails she leaked does it show her telling De Pue that the FBI committed an ethics violation (you can read all of them here via Archive.is). But let’s pretend for her sake that a federal attorney involved in the case was officially accused of violating Rule 4.2.

They would likely have the opportunity to plead their case during the investigation, but it’s entirely unknown who that would be. More importantly, had Lindh’s attorneys argued an ethics violation in court, who would they have accused of violating Rule 4.2?

Chapter 2.5: Radack Blames Her Legal Opinion on Someone Who Doesn’t Even Exist

Remember, under the McDade Amendment, government attorneys are required to follow state ethics rules in every jurisdiction in which they practice, such as Rule 4.2, also known as the “No-Contact Rule,” which falls under the American Bar Association’s Rules of Professional Conduct and governs communications with represented persons. It’s the ethics rule that basically states, “Don’t talk to anyone who is represented without their attorney’s consent.’

Rule 4.2 does not apply to FBI agents unless they’re employed as licensed attorneys to represent the government. Christopher Reimann, the FBI agent who interviewed Lindh, was a legal attache; thus, in terms of Radack’s allegation, it’s literally impossible for him to be the violator in this ethics caper. Michael Chertoff reiterated this in front of Congress after Senator Edward Kennedy questioned him about the case:

The issue in Lindh did not involve communication by Department attorneys [Radack and De Pue] but, rather, an FBI agent who wished to question a combatant overseas…[U]nder Department regulations in force since 1999, attorney ethics rules falling under the purview of PRAO did not apply to FBI agents…

[T]he ethics rules, by their terms, apply only to attorneys. Accordingly, it is unclear how such ethics rules could be applicable to an FBI agent who wishes to question a combatant overseas.

[T]he ethics rules, by their terms, apply only to attorneys…it is unclear how such ethics rules could be applicable to an FBI agent. Correct. If there’s some sort of Rule 4.2 loophole that exists where Agent Reimann would be responsible for violating said rule, perhaps after 24 years, Radack could enlighten us all as to what that is. Otherwise, the question remains, “Who is responsible for committing this alleged ethics violation?”

We know it wasn’t the FBI agent who interviewed Lindh. We also know it had to be a government attorney. Does Radack believe that the entire legal staff at the FBI committed the violation? Was there a specific attorney she had in mind, or was it a gaggle of them? Who? Who committed this egregious act that she hasn’t shut up about because “the FBI” isn’t an acceptable answer, and yet it’s the only one she’s been willing to give.

The list above is PRAO functions taken directly from the DOJ’s website. Radack’s job was to provide ethics advice and assist in defending federal attorneys who had been accused of violating the ABA’s ethics rules, so who exactly was she planning on assisting? This is a licensed attorney who can’t even identify the individual who supposedly committed the ethics violation.

I’m not an attorney, but I do know that federal attorneys can be held responsible for the conduct of FBI agents, commonly known as an “alter ego” situation. The following comes directly from the PRAO handbook:

Investigators themselves are not directly subject to Rule 4.2, even if they happen to be admitted to the Bar (as many FBI agents are), because they are not, in their investigative activities, acting as lawyers; they are not ‘representing the client.’ However, when the investigators are directed by lawyers, the lawyers may have ethical responsibility for the investigators’ conduct.

Radack’s head essentially exploded over Chertoff’s failure to mention this to Congress, calling it “testilying,” in her book. But why would he talk about a federal attorney involved with the Reimann interview when Radack herself can’t even identify a single attorney that was involved? She didn’t include this colorful characterization of his testimony in her first book. She did, however, think that it was a good idea to add the testilying comment, along with some blatantly false, if not defamatory, comments about him, when she republished it in 2012:

In the icing on the cake of Chertoff’s ‘testilying,’ he stated erroneously that because a law enforcement agent, not a lawyer, had interrogated Lindh, then no attorney could be implicated. This faulty reasoning emerged again in the Abu Ghraib scandal and again in Chertoff’s confirmation hearing to head the Department of Homeland Security. Attorney ethics rules state that a lawyer should be responsible for the conduct and activities of agents or investigators acting on the lawyer’s behalf or who are associated with the lawyer.

Chertoff never told Congress that attorneys can’t be implicated in his testimony. It’s almost as if Radack keeps forgetting that this stuff is publicly available.

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

Second, if a lawyer should be held responsible for the conduct and activities of agents or investigators acting on the lawyer’s behalf, as Radack herself wrote above, then GREAT! Who is the attorney that should have been held responsible for the Lindh interview, Mrs. Radack?

NAME THEM.

Did it ever dawn on this super nutter that maybe the DOJ took her advice, called up the FBI, and said, “Sorry guys, to be safe, no federal attorneys can be involved with any interviews of Lindh,” leaving federal agents, or anyone else who wasn’t bound by the McDade Amendment, to oversee it? No one is arguing that federal attorneys weren’t involved. I’m arguing that we simply don’t know, nor, clearly, does she.

After spending 20 years overhauling her woefully incompetent image into that of a whistleblower attorney, whose clients reportedly include Edward Snowden, at some point, she should have been able to back up a 24-year-old allegation.

And yet, she has never named a single attorney at the FBI who was responsible, and that includes everyone who was bound by McDade and Rule 4.2, like then-General Counsel of the FBI Marion “Spike” Bowman. In fact, according to the statement that De Pue made to investigators, Bowman didn’t find out about the Lindh interview until after it took place:

On Friday, December 7, 2001, Ms. Radack sent me an e-mail stating that, in her office’s view, because Brosnahan had been retained, an FBI interview of Lindh could not occur…I also phoned Spike Bowman, the Deputy General Counsel for intelligence at the FBI, but was informed that he was out of town. Early the following Monday, I was able to contact Spike, and I apprised him of Ms. Radack’s assessment. Several hours later – perhaps at 11:00 a.m. – Spike called me and stated that he learned that the FBI interrogation had already occurred.

Maybe Radack believes that De Pue and Bowman are in on this big conspiracy, too, despite one of her own emails seeming to reflect that neither Bowman nor Agent Reimann considered Lindh to be represented when he was interviewed:

You just advised that the Deputy Legal Advisor of the FBI stated that an agent went and interviewed Walker over the weekend, not knowing that Walker was a represented person.

For more than two decades, this is what Radack’s “the FBI committed an ethics violation” story boils down to: After some unknown figure unambiguously told her that Lindh was represented, another unknown figure at the FBI violated ethics rule 4.2 by having him interrogated, none of which would have changed the course of the criminal case, not even one iota.

Sources:

1. https://archive.org/details/canaryincoalmine0000rada/mode/2up
2. https://www.democracynow.org/2007/8/28/as_speculation_grows_of_chertoff_replacing (https://archive.is/EOpU3)
3. https://www.thenation.com/article/archive/lawyers-stepping/ (https://web.archive.org/web/20220625075310/https://www.thenation.com/article/archive/lawyers-stepping/)
4. https://whistleblower.org/in-the-news/buffalo-news-government-retaliates-against-critics-no-fly-list/ (https://web.archive.org/web/20190119133624/https://whistleblower.org/in-the-news/buffalo-news-government-retaliates-against-critics-no-fly-list/)
5. https://www.latimes.com/archives/la-xpm-2010-apr-27-la-oe-radack-20100427-story.html (https://archive.is/Casds);
6. https://harpers.org/2012/06/_traitor_-six-questions-for-jesselyn-radack/ (https://archive.ph/V2rrt)
7. https://www.dailykos.com/stories/2008/12/18/674410/-Why-Bush-Should-Commute-the-Sentence-of-American-Taliban-John-Walker-Lindh (https://archive.ph/JCkp0)