Another Friday, another document dump from the DOJ. As I was scanning through this set, I came across this one from Monica "I plead the Fifth" Goodling. Notice the instruction in boldface (see below the fold for full size image):

Yes, that's an instruction to delete documents. And notice the date: February 12, 2007. That's well after Congress began investigating this matter. I don't believe any subpoenas or document requests had yet been issued (someone please correct me if I'm wrong about that), but it was pretty clear by then that document requests were likely.

Let's review the timeline. On January 17, 2007, Senators Feinstein and Leahy grilled Alberto Gonzales on the recent spate of U.S. Attorney firings. On January 25, 2007, Senator Schumer announced that he was going to hold hearings on the firing of U.S. Attorneys. And on February 6, Schumer held the first set of hearings, in which Deputy Attorney General Paul McNulty testified that Bud Cummins was not asked to leave for "performance-related" reasons, but rather to make way for Karl Rove protege Tim Griffin. That damaging testimony helped propel this story to the front pages.

And two days later, on February 8, 2007, Senators Durbin, Schumer, Murray, and Reid sent a follow up letter to Alberto Gonzales asking all sorts of questions arising out of McNulty's testimony, including a number of questions about the replacement of Bud Cummins with Tim Griffin.

It is in this context that Monica Goodling, four days later, sends out the above-displayed email, which attaches updated talking points re: Griffin/Cummins and various other U.S. Attorney related issues and instructs the recipients to delete prior versions of the documents.

As a litigator, I can tell you, that's a real no-no. You never instruct people to delete documents that are relevant to a pending investigation. Never. That's true even when the investigating body hasn't yet got around to requesting those documents. It smacks of obstruction. Indeed, the Obstruction of Congress statute, 18 U.S.C § 1505, specifically prohibits any attempts to obstruct "the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress." The penalty is up to 5 years in prison.

I'm not sure if 18 U.S.C § 1505 has been interpreted to apply to the destruction of documents that have not yet been formally requested--I suspect it hasn't--but it is, at the very least, incredibly dodgy to be instructing people to delete documents that relate to a pending Congressional inquiry. If an employee of a private entity were caught giving such an instruction after an investigation had been initiated, it would incur the everlasting wrath of the government agency or prosecutor's office conducting that investigation. It would be a real mess.

That's why the first piece of advice a private entity receives from its lawyers when it learns that it is being investigated is to issue a document preservation notice to all employees. The last thing you want is to have the government request a document and then learn that it was deleted or destroyed AFTER the investigation was initiated. Just ask the people who used to work for Arthur Anderson. The sad demise of that once proud firm is all the reminder you need that the Justice Department doesn't react too kindly to post-initiation-of-investigation destruction of evidence.

Which makes it all the more ironic that Monica Goodling, a high-ranking Justice Department official, is instructing other high-ranking Justice Department officials to delete documents that are relevant to an ongoing Congressional inquiry.

Now to be fair, from the context of the email, it seems likely that Goodling's primary purpose in asking people to "delete prior versions" of the documents was to make sure that everyone was on the same page and not working off of outdated materials. In other words, I don't think she was motivated by a desire to destroy documents that Congress might want for their investigation. That said, as an attorney, she should have known better than to make such a request. If there is any kind of litigation or investigation underway or even contemplated, you don't instruct people to delete documents. It doesn't matter if that's your normal practice and you're just trying to keep people from getting confused; it just looks bad, and it can get you and your organization in a lot of trouble. Goodling is not some low-level administrator. She was a senior legal counsel at the Justice Department. That Goodling would make such a request despite the budding Congressional inquiry into the matter is, at best, indicative of carelessness and sloppy practices.

(original version of post here)