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Cabinet officers get paid to advise the president and make policy. Government lawyers want to spend their time trying cases. They don’t appreciate being forced to defend themselves before an irate federal judge. But on Nov. 30, more than three dozen lawyers and officials from the departments of Interior, Justice, and Treasury will have to do just that. And it may get ugly. These 39 people — most of them accompanied by their own taxpayer-funded private counsel — will trudge into the courtroom of U.S. District Judge Royce Lamberth in a long-running lawsuit over a massive Indian trust fund. They have been summoned by an angry Lamberth, who has a reputation for putting the bureaucracy through its paces. The class action was filed in 1996 in an effort to reform management of the century-old trust fund and to provide some 300,000 Native Americans with money the federal government owes them for timber, natural gas and other valuables extracted from Indian lands. The plaintiffs say they are entitled to as much as $40 billion because of long-standing accounting failures and deliberate misuse of the money. Decades ago, millions of dollars were spent to bail out New York City and the Chrysler Corp. rather than paid out to Indians who were the rightful recipients. Other millions are simply unaccounted for. From the very start, Cobell v. Norton exposed these and other instances of mismanagement at the Interior Department, where federal Indian policy is made and where new Secretary Gale Norton now vows to clean up the agency’s act. More than once, Lamberth has signaled his displeasure both with the way the fund has been managed and with the government’s litigation tactics. But never in more than five years of motions and countermotions have so many people, from Norton and former Secretary Bruce Babbitt on down, faced such an immediate threat of a contempt citation, including the outside possibility of six months in prison. ON THE HOT SEAT The current charges have little or nothing to do with the mishandling of the Native Americans’ money. They concern what the plaintiffs say is a long history of obfuscation, delay, and outright lying by the government in the litigation itself. “Nobody has been held personally accountable,” said plaintiffs’ lawyer Dennis Gingold at an Oct. 30 hearing before Lamberth. “It is not their money. They get their paychecks. It is not their pension that is being lost.” If Gingold and other lawyers who represent lead plaintiff Elouise Cobell, a member of Montana’s Blackfeet tribe, could have picked any trial judge from the nation’s 94 districts to hear those words, they couldn’t have found anyone more receptive than Royce Lamberth. In 14 years on the bench, Lamberth has repeatedly castigated government lawyers for discovery lapses and other failures in cases involving diverse matters such as campaign finance, prison conditions and the Privacy Act. Lamberth’s supporters and detractors agree that the judge knows every litigation tactic, legitimate or not, that the government is capable of venturing. Before former President Ronald Reagan appointed him in 1987, the 58-year-old Texan spent 13 years representing the government as an Assistant U.S. Attorney in Washington, D.C., the last nine of them as head of the office’s civil division. “He was a master bureaucrat in the U.S. Attorney’s Office,” says a D.C. lawyer who knows him well. “And as a judge, he hasn’t forgotten anything. He doesn’t just know where the bodies are buried, he knows how to bury the bodies.” At the Oct. 30 hearing, Lamberth set forth his approach candidly in a dialogue with Mark Nagle, a supervisor in the U.S. Attorney’s Office whom Lamberth himself hired for the office in the 1980s. Nagle said, “It is our recognition that this court has and will continue to hold government officials and their attorneys accountable.” “Is that some sudden revelation that I do that?” Lamberth shot back. “Haven’t I done that always, in all of my cases?” The topic that day centered on a blistering motion filed Oct. 19 by the Cobell plaintiffs for contempt, including up to 180 days’ imprisonment, and for the appointment of a court-appointed receiver to manage the trust. Nagle, saying he had just been assigned to the case, asked for an extension until Dec. 15 to reply. An exasperated Lamberth gave him only until Nov. 15 and set Nov. 30 for the contempt hearing. The Justice Department, while it continued to represent the Interior and Treasury departments and its own lawyers, decided that because of a potential conflict of interest, everyone subject to a possible contempt citation could hire a private lawyer at taxpayers’ expense. The fee set by law is $125 an hour, a small fraction of normal billing rates. The result was a reunion of the elite of the city’s white-collar defense bar — many of the same litigators who turn up whenever a major scandal is brewing. Previously, the case had pitted an alliance of solo practitioners, funded by Elouise Cobell’s MacArthur Foundation “genius award” and several million dollars in foundation grants, against an often-changing team of government lawyers. “It’s the usual suspects,” says Stanley Brand of Brand & Frulla, who represents Peter Coppelman, a former deputy assistant attorney general. Among those in the case now are litigator Plato Cacheris; name partner Roger Zuckerman of Zuckerman, Spaeder, Goldstein, Taylor & Kolker; and Michael Bromwich of Fried, Frank, Harris, Shriver & Jacobson. “This is a lovely group of lawyers to work with,” says Robert Luskin of Patton Boggs, who represents Babbitt and two other former high Interior officials. “I’m just sorry that we have to meet under these circumstances. The circles of hell just keep getting wider and wider.” Luskin says his clients are getting a bad rap from Lamberth and from the plaintiffs’ lawyers for a problem they inherited and didn’t create. “The Clinton administration set a priority to fix a very difficult problem,” Luskin says. “The whole thing is a real tragedy because there are grave and serious issues on the merits, yet those people who did their best to solve the problem, but failed, now find themselves under scrutiny with allegations of fraud.” Adds another litigator: “There are elements here of an incredible government screw-up, and elements of plaintiffs’ overreaching. The plaintiffs are asking for criminal contempt against 39 people because they just want the government to give up and write a very large check.” DIGGING FOR NUMBERS Babbitt and others in Interior were earlier targets of Lamberth’s wrath. In August 1999, the judge found Babbitt and then-Treasury Secretary Robert Rubin in contempt and fined them $625,000 for failing to produce documents and destroying files. The government paid the fine. Also that year, the judge ordered a top-to-bottom cleanup of the Indian trust system and an accounting of all the money. More than a year later, the U.S. Court of Appeals for the D.C. Circuit upheld Lamberth unanimously. After Lamberth’s ruling, Babbitt undertook only a statistical sampling of the fund, an effort that Norton continued earlier this year. But at the Oct. 30 hearing, Lamberth called the sampling procedure an “absolute violation of my order.” The accounting, which according to several people involved in the case is not likely to be completed any time soon, is necessary if the case is ever going to be resolved. Once it’s known where the money went, the government may be able to craft a solution for payment. Norton, who was appointed Interior secretary by President George W. Bush after Babbitt served for the entire eight Clinton years, has pledged to fix the problems in the trust and to resolve the case. On Nov. 15, she announced a reorganization that would put a new assistant secretary in charge of managing the trust. But before Norton can forge what she hopes will be a global solution, she too has to show up on Nov. 30 and deal with a possible contempt citation. Like others, Norton has turned to private counsel. Last week she hired Herbert Fenster of D.C.’s McKenna & Cuneo, a longtime government contracts litigator. Fenster is based in the firm’s Denver office, and Norton is a former Colorado attorney general. “The charge is a terrible distraction to an Interior secretary who now has so many additional burdens resulting from the terrorist attacks,” Fenster says. “She has the responsibility to protect the national parks against terrorism, for example. The charges are also a distraction from the work of overhauling a broken [Indian trust] system.” John Wright, an Interior Department spokesman, says the reorganization had been in the works since April and was not a direct response to the contempt motion. Mark Kester Brown, a D.C. solo practitioner who is a lawyer for the Indian plaintiffs, says he’s not impressed with Norton’s announcement. “They have a long history of taking cosmetic steps, a long history of reorganizations for their own benefit and not for the benefit of their beneficiaries,” Brown says. “We are very pleased with Judge Lamberth,” Brown says. “He’s the salvation of the Indian cause.” But several lawyers for the 39 government officials on the other side are privately grumbling. “Royce is a conspiratorialist,” says one attorney in the case. “After all, he’s known forever that in many instances, the cost of litigation for the government is less than the cost of repair. So if he has to turn over every stone to find out who’s been lying to him, he will.”

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