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Washington—A law professor who filed a misconduct complaint against the federal judge overseeing the billion-dollar lawsuit against the federal government for mishandling Indian Trust accounts is fighting a subpoena by the Native American plaintiffs who want to know if he was doing the government’s bidding. Citing First Amendment protections, Jonathan R. Turley of George Washington University Law School recently filed a motion to quash the subpoena on behalf of his colleague, administrative law Professor Richard Pierce Jr. Pierce leaped into the eight-year-old litigation last spring when he published a law review article entitled, “Judge Lamberth’s Reign of Terror at the Department of Interior,” criticizing U.S. District Judge Royce C. Lamberth’s orders and conduct in Cobell v. Norton, No. 1:96CV01285 (D.D.C.). His article quoted unnamed government lawyers in support of some of his arguments. The article was published in the Administrative Law Review, published by the students of American University Washington College of Law. 56 Admin. L. Rev. 235 (2004). The law professor attached the article to a judicial misconduct complaint that he filed against Lamberth, whom he accused of defaming and abusing government lawyers in the Cobell case. Lamberth filed a 37-page response; the complaint was dismissed as well as a subsequent appeal by Pierce. Fire from the bench The Cobell case is a class action to force the government to account for billions of dollars held in trust for about a half-million Native Americans and their heirs since the late 19th century. The government has no accurate records of the beneficiaries and the amounts owed them. Lamberth, in one of his milder comments, called the government’s behavior “fiscal and governmental irresponsibility in its purest form.” He has held two secretaries of interior in contempt and has found that justice and interior officials have deceived the court and the plaintiffs in the litigation. Keith Harper of the Native American Rights Fund, counsel to the Cobell plaintiffs, said the article contained “disingenuous and false” statements. “There’ve been numerous critics of Judge Lamberth and our case-professors and others-and we haven’t sought to depose a single one,” he said. “The reason is: In none of those instances did they seek to undermine the integrity of the judicial process in a collateral proceeding. He put the article in a judicial complaint. “We have a right to determine to what extent he was doing this at the behest of the Justice Department or others,” Harper added. “He said in his article itself that he had all these private conversations. We need to find out what happened and if there was any contractual obligation. In this administration, we have seen a pattern of paying people in the private sector to carry their water.” But Turley, who called the subpoena “vexatious” and in “bad faith,” said, “We have searched federal and state cases exhaustively and cannot find a case in which an academic was subpoenaed after this type of publication. We believe very fundamental issues are at stake in this deposition. There are both academic and journalistic values involved here.” Turley noted that it is often left to academics to take unpopular stands. “No government attorney would feel comfortable talking about this judge. I think it is a significant issue.” Legal ethics scholar Stephen Gillers of New York University School of Law said he hopes a law professor’s anonymous sources would be protected. “Pierce did the right thing in writing the law review article. That’s his job,” he said. “Whether he is right or wrong, if he proceeded according to high academic standards, we want him to do that and to feel protected.” But he added, Pierce made a mistake in making his article part of the misconduct complaint. “That takes it out of the shelter of the ivory tower and he loses any mileage he might get by arguing he is merely an academic doing legal research,” he explained. The subpoena “looks like intimidation,” said Gillers, because Pierce’s information doesn’t seem relevant to the case’s merits. But if the lawyers can show it can lead to relevant evidence, he said, “notwithstanding the interest in academic independence, I would think a judge would let them go ahead, even a judge other than Lamberth.”

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