Thomas Tamm. (Credit: War on Whistleblowers/Youtube)
Thomas Tamm, a former U.S. Depart­ment of Justice lawyer who leaked information to the press about warrantless domestic spying under President George W. Bush, is facing legal ethics charges in Washington.
In charging papers released on Jan. 26, the D.C. Office of Disciplinary Counsel accused Tamm of violating local ethics rules when he went to a New York Times reporter — instead of his superiors at the Justice Department — in 2004 with concerns about the surveillance program.
Tamm resigned the Justice Department in 2006 and works as a state public defender in Maryland, according to state bar records. He declined to comment. He’s represented by Paul Kemp of Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger and Michael Frisch, a professor at Georgetown University Law Center.
Kemp said he expected to file a response to the charges within the next two weeks. He declined to comment about the substance of the allegations, but said that it was “a shame this thing comes about 11 years after the facts that give rise to it.”
A DOJ lawyer since 1998, Tamm joined the Office of Intelligence Policy and Review in 2003, where his work included asking the Foreign Intelligence Surveillance Court for electronic surveillance warrants. According to the ethics charging papers, Tamm became aware of warrant applications that were given “special treatment” in a secret process that involved the attorney general and the chief judge of the surveillance court.
When Tamm told colleagues about the program, they said it was “probably illegal.” Tamm in 2004 contacted The New York Times about the program. The Times won a Pulitzer Prize in 2006 for its reporting on the surveillance program, which permitted the National Security Agency to eavesdrop on Americans and others inside the United States without a warrant. In a 2008 Newsweek article, Tamm for the first time publicly discussed his decision to leak information to the New York Times about the surveillance program. The FBI had raided his home the previous year and Newsweek reported that it was part of a criminal investigation.”I chose what I did. I believed in what I did,” Tamm told Newsweek.
Photo: Mike Scarcella
The Justice Department announced in 2011 that it would not prosecute Tamm for revealing information to the press.
Discipline prosecutors in D.C. charged Tamm with two ethics violations: failing to refer information about possible illegal activity to higher-ups at the Justice Department, and disclosing the “confidences or secrets” of his client — the Justice Department — to a reporter.
D.C. Disciplinary Counsel Wallace Shipp Jr. declined to comment on the case against Tamm. The ethics case was opened in 2009, but the charges weren’t filed until late December. The disciplinary counsel’s office has working in recent years to clear a backlog of old cases.
Shipp said the disciplinary counsel’s office launched the investigation after reading about Tamm’s case in news reports. It was opened under the office’s name, which generally means there is no outside complainant.
Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy & Technology Project and a legal adviser to former NSA contractor Edward Snowden, said the decision to bring ethics charges against Tamm created an unreasonable standard for government lawyers confronted with potentially high-level ­misconduct.
“When a government official uncovers an illegal program that’s been authorized by the president, it can’t be that the only ethical response is to report it to an immediate supervisor,” Wizner said. “It would be odd if the legal profession were to rebuke someone for an action that the rest of the public has rightly celebrated.”
The attorney ethics rules in Washing­ton allow lawyers to break their client’s confidences in certain circumstances, such as if the client used the lawyer to commit a crime or fraud. But even then, the rules limit that exception to cases in which disclosing the information would prevent crime that harms “the financial interests or property of another” or address “substantial injury to the financial interests or property of another.”
The rules obligate ethics prosecutors in D.C. to investigate allegations of misconduct, but give them some discretion in deciding whether to bring charges. The disciplinary counsel’s office in D.C. can be more aggressive about pursuing ethics cases against federal government lawyers than its counterparts in other states, said Arthur Burger, chairman of the professional responsibility practice group at Jackson & Campbell in Washington.
Attorney discipline offices “usually shy away from this kind of stuff, where the DOJ would be there to deal with it,” Burger said.
Tamm has no previous history of public disciplinary action in D.C., but his local bar membership is suspended for failing to pay dues. He is an active member of the bar in Maryland.
There is precedent for the disciplinary counsel’s office bringing ethics charges against lawyers who say that they disclosed confidential client information as a whistleblower. Andrea Koeck, a former in-house lawyer for General Electric Co., was charged in 2014 with revealing client information in violation of D.C. rules when she provided internal company documents to federal agencies and the press.
Koeck claimed that the documents she disclosed contained evidence of fraud at GE. Her ethics case is pending.
Tamm’s case has the added complication of implicating national security issues, said Mark Foster, a partner at Zuckerman Spaeder who handles legal ethics matters.
“This is a very interesting problem, because obviously there’s real tension here between the First Amendment and government secrecy. There’s a lot of tension between the press and the government on this subject,” Foster said. “Bar counsel is putting himself right in the middle of that discussion.”
Updated with additional information and comments. A previous version of this article misstated Wallace Shipp Jr.’s name.