O'Keefe doj memo by breitbart

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ORRICK, HERRINGTQN & SUTCLIFFE LLP
COLUMBIA CENTER
1152 15TH STREET, N.W.
WASHINGTON, D.C. 20005-1706
ORRICK
tet *1-202-339-8400
fax *1-202-339-8500
WWW.ORRICK.COM
February 9, 2010
Michael J. Madigan
(202) 339-8523
mmadigan@orrick.com
VIA ELECTRONIC MAIL
Lanny A. Breuer
Assistant Attorney General
Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Re: Disqualification of Louisiana United States Attorney's Office from Case No. 2:10-mi-00012
Dear Mr. Breuer:
I write to request that the Senior Leadership of the U.S. Attorney's Office for the Eastern
District of Louisiana be disqualified from any further involvement in the above criminal case. As a
former prosecutor and congressional investigator, I am concerned that the highly politicized nature
of this case, together with intertwined personal interests, creates at least the appearance of a serious
conflict of interest. This is particularly critical to fair and impartial charging decisions. 1 further
request that you assign all further proceedings in this matter to a U.S. Attorney's office outside of
Louisiana so that the case is not left to the unsupervised decision-making of a more junior attorney
who may not have the experience and judgment necessary to handle a case like this one.
Mr. O'Keefe is an independent investigative journalist and documentary filmmaker. James
has utilized techniques employed for many years by mainstream media journalists, such as those at
PBS Frontline, ABC Dateline, and countless others. On January 25th, Mr. O'Keefe was arrested
while conducting an investigation into alleged conduct by Senator Mary Landrieu's office after she
reportedly sought $300 million in federal Medicaid funds for Louisiana in exchange for her vote on a
recent healthcare bill, a deal which the national media has referred to as the "Louisiana Purchase."
As you know, pursuant to the mandate of 28 U.S.C. § 528, the Attorney General
promulgated rules "which require the disqualification of any officer or employee of the Department
of Justice, including a United States attorney or a member of such attorney's staff, from participation
in a particular investigation or prosecution if such participation may result in a personal, financial, or
political conflict of interest, or the appearance thereof."
The relevant regulations provide that "no employee shall participate in a criminal
investigation or prosecution if he has a personal or political relationship with: (1) Any person or
organization substantially involved in the conduct that is the subject of the investigation or
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Lanny A. Breuer
February 9, 2010
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prosecution; or (2) Any person or organization which he knows has a specific and substantial
interest that would be directly affected by the outcome of the investigation or prosecution." 28
C.F.R. § 45.2(a). The regulation defines a political relationship as "a close identification with an
elected official, a candidate (whether or not successful) for elective, public office, a political party, or
a campaign organization, arising from service as a principal adviser thereto or a principal officer
thereof." 28 C.F.R. § 45.2(c)(1). A personal relationship is defined as "a close and substantial
connection of the type normally viewed as likely to induce partiality." 28 C.F.R. § 45.2 (c)(2)
Finally, the United States Attorney's Manual also requires that "where a conflict of interest exists or
there is an appearance of a conflict of interest or loss of impartiality," recusal is required. Sec. 3-
2.170
On February 1st, Jim Letten, the U. S. Attorney for the Eastern District of Louisiana,
recused himself from this case, citing "various relevant factors." While Mr. Letten did not explain
those factors, he no doubt was referring to the above provisions, and we believe strongly that these
same factors apply equally to the entire Leadership Team of the Eastern District of Louisiana U.S.
Attorney's office. When Mr. Letten recused himself, however, he merely transferred the case to Jan
Maselli Mann, who Mr. Letten had personally selected as his First Assistant United States Attorney.
Further complicating the situation, other members of the Leadership Team of that relatively small
office include both Maurice E. Landrieu, Jr., Senator Landrieu's brother, and James Mann, Ms.
Mann's husband.
The facts and circumstances surrounding Mr. O'Keefe's case are such that Ms. Mann and
the rest of the office leadership should be disqualified in order to avoid the appearance of a conflict
of interest or lack of impartiality. In determining whether disqualification is appropriate in this
unique case, we urge you to consider the following:
• The alleged victim in the case is Senator Mary Landrieu. As the Democratic Senator for
Louisiana, Senator Landrieu has a substantial role in the selection and appointment of U. S.
Attorneys and federal judges for her state. Senator Landrieu publicly and successfully
lobbied President Obama to retain Mr. Letten as United States Attorney for the Eastern
District of Louisiana. As a result of this effort, not only did Mr. Letten retain his post, but
his entire Leadership Group remained in place. Compounding the situation, after Mr.
O'Keefe's arrest, Senator Landrieu defended her role in the Louisiana Purchase on the
Senate floor and told reporters that Mr. O'Keefe should "save his excuses for the judge.
He's going to need them." (Attachment A)
• Further intertwining Louisiana political issues in this matter is the fact that one of the men
arrested is Robert Flanagan, who is the son of William J. Flannigan, the Acting U.S. Attorney
for the Western District of Louisiana. Indeed, Senator Landrieu and Senator Vitter have
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Lanny A. Breuer
February 9, 2010
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both exchanged political accusations regarding Senator Vitter's "hold" on President
Obama's nomination of Stephanie Finley to replace Mr. Flannigan as U.S. Attorney for the
Western District of Louisiana.
• The so-called Louisiana Purchase has become a highly politicized and emotional issue in
Louisiana. In fact, Senator Landrieu took to the floor of the Senate on February 4, 2010,
only days after these events, and, according to the attached Associated Press article, gave a
half hour long "impassioned speech" defending her role in the deal and, at the conclusion of
the speech, commented specifically on Mr. O'Keefe's case. (Attachment A)
• Senator Landrieu's personal interest in Mr. O'Keefe's prosecution is increased by the fact
that Mr. O'Keefe recently released a series of documentaries that severely damaged the
reputation of ACORN, the nation's largest community organizing group that has been
associated with the Democratic party. ACORN is headquartered in Louisiana and has been
an important constituent and supporter of Ms. Landrieu in the past.
• This case has already generated enormous and unusual local publicity, with the parties being
besieged by print and television media. Our office alone has received literally hundreds of
calls from Louisiana media. Finally, I note that this past Saturday, Mitch Landrieu, another
of Senator Landrieu's brothers, was elected Mayor of New Orleans, and any jury in this case
will be drawn from a pool of his constituents.
As you know, I have nothing but enormous respect for the Department of Justice. I believe
that, given the facts outlined above, moving this investigation, including critically important charging
decisions, to another district outside the State of Louisiana is required in the interest of fair and
impartial justice.
I hope to have the opportunity to discuss this matter further at your earliest convenience.
Very truly yours,
IchaelJ. Madigan
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