This is a separately accessible version of Addendum 3 to the Bruce C. Swartz profile on jpscanlan.com.
Addendum 3– Deceiving the Court Regarding Dean’s Learning of the Whereabouts of the Arama Consultant Fee Check (Aug. 9, 2009) [a3]
In her Rule 33 Motion, Dean maintained that when she called Agent Cain in April 1989 to demand to see a check showing that John Mitchell received a consultant fee on the Arama project, Cain had told her there did exist a check showing the payment to Mitchell, but that he could not show it to her because it was not at HUD Headquarters but maintained in the field, specifically in HUD’sRegional Inspector General’s Office.Dean argued that she could only have learned such fact from the call to Cain, and therefore, if the check was maintained in the field office in April 1989, such fact would corroborate her testimony about calling Cain.After the Independent Counsel failed even to mention the check in its response, Dean moved for discovery as to the whereabouts of the check in April 1989.
Swartz had to know with absolute certainty that in April 1989 Dean had called Cain, just as she said in court, and that Cain had told her the check was maintained in the field office, just as she said in support of her Rule 33 Motion.Among other reasons, Swartz would presumably know these things because Cain had told him so during the course of the meetings when Swartz and Robert E. O’Neill pressured Cain into giving testimony that would seem to contradict Dean – if, indeed, Cain had not told Swartz about the call even prior to the bringing of the Superseding Indictment.It is with recognition of this knowledge on the part of Swartz, as well as the fact that in the hearing before Judge Hogan Swartz was endeavoring to conceal conduct by himself and Robert E. O’Neill that Judge Hogan would certainly regard as outrageous and probably regard as the suborning of perjury, that the reader must appraise the following statements Swartz made in seeking to forestall discovery into where the check was maintained in April 1989 (Feb. 22, 1994 Transcript 7-8):
That brings us, Your Honor, to the third suggestion, that Agent Cain perjured himself, and that is the supposed conversation with regard to John Mitchell.Defendant's argument both in her original motion and in her motion for reconsideration is that she was told by Agent Cain that the check from Louie Nunn to John Mitchell in connection with the Arama project was being kept in the field, being maintained by the HUD regional inspector general's office.She says if true, that's a fact that she could have only learned from Agent Cain, and therefore she is entitled to discovery on the issue of where the check was. But, Your Honor, it's false.
[While Swartz’s phrasing is inexact, his subsequent statements make clear that he means that it is false that Dean could have only learned that the check was in the regional inspector general’s office from the call to Cain, not that it is false that the check was maintained in the regional inspector general’s office.Swartz never addresses where the check was in fact maintained in April 1989.]
I'd like to provide to the Court, if I may, an excerpt from -- if I can find it -- the inspector general's report. If the Court will indulge me for a second?
THE COURT: All right.
MR. SWARTZ: Your Honor, this is a copy, an excerpt from the HUD Inspector General's Office report on the Mod Rehab program of April 1989, the report that defendant says was the predicate for her phone call to Agent Cain after she received it. The first page is a cover page of that report. The second and third pages are excerpts from the report, the interview of Louie Nunn.
If Your Honor will turn to the third page of this interview report, which again was in defendant's possession by her own testimony, you'll note that the final statement in the report is, "Agent's note: All the contracts agreements shown Nunn were obtained from HUD OIG audit file in Atlanta, Georgia."
So, Your Honor, the report itself suggests that the materials shown to Nunn that involved General -- excuse me, former Attorney General Mitchell were maintained in the field. There's simply no basis for her suggestion that she could have only learned such a fact from Agent Cain. Even if it were true, the report itself on its face would have provided her with the information that suggested to her that materials were being maintained in the field.[[i]]
We submit that on all three of these points then, Your Honor, defendant has attempted to pit her credibility against Agent Cain and has made attacks on Agent Cain's integrity that are completely unfounded.
See also the profile of Robert J. Meyer regarding the feigned outrage in the Independent Counsel’s Opposition, authored by Meyer and Swartz, at unjustified attacks on the integrity of a “career government employee.”
It is common usage (and therefore perhaps arguably correct usage) to describe as an attack on a person’s integrity what, strictly speaking, is an attack on the person’s reputation for integrity.Such attacks, whether well- or ill-founded and whether successful or not, leave the person’s integrity unaffected.I mention this semantic point only because in this case there did in fact occur an attack on Agent’s Cain’s integrity in the strict sense of the phrase.That occurred when Swartz and O’Neill pressured a career government employee (and one who, in the eyes of the former document manager discussed on Sections B.1 and B.9 of PMP, considered himself to be highly principled) to provide testimony intended to lead the jury to believe something that Swartz, O’Neill, and Cain knew to be false.Subsequent attacks on Cain’s reputation for integrity – whether cast as allegations that he committed perjury or allegations that he testified in a manner to lead the jury to believe something he knew to be false – were all direct results of the collective effort to make Cain appear to say something that was known to false and the later actions of Swartz and others to cover up that conduct.
[i]Since the point of the instant treatment involves Swartz’s effort to deceive the court in circumstances where Swartz knew for a fact that Dean learned the whereabouts of the check from the call to Cain, I do not want to distract the reader with unnecessary attention to an extraneous issue.Nevertheless a couple of the things about the details of Swartz’s argument many warrant mention.First, the statement “which again was in defendant’s possession by her own testimony” is a common trick whereby a lawyer seeks to give the impression of significance to an utterly commonplace fact.It has no more actual bearing on the issue than would a statement that “defendant has admitted that she knows how to read.”
Second, Swartz apparently showed Judge Hogan the second and third pages of the Nunn interview, excluding the first page that indicated that the interview took place in Nunn’s office in Kentucky on December 12, 1988.The interview report, which states that Nunn was shown agreements with Martinez from a HUD Atlanta Audit file, makes clear that the interviewers did not then possess the Mitchell check.And it says nothing whatever even to suggest that a copy of the check was then secured from Nunn, much less that it was secured from Nunn, taken to Atlanta, and was still there in April 1989.Rather than arguing that Dean would nevertheless surmise such facts and be confident enough about them to falsely maintain that Cain told her the check was maintained in the Atlanta office and seek discovery on the matter, Swartz conflates the issues in a manner that would allow Hogan to infer that the check was among the items shown to Nunn from that Atlanta file.In this instance Swartz faced a somewhat different situation from that involving the “contact at HUD” matter discussed in Section B of the body of the Swartz profile.There Swartz could base his argument on premises that, though false, were not known by the court to be false.In the case of the check, Swartz is forced into an approach with greater danger of being perceived as an insult to the court’s intelligence.But, given the commitment to deceiving Judge Hogan about Cain’s testimony, Swartz had few alternatives.