Techdirt, and the anatomy of a smear

Journalism -- whether the traditional kind or on the Web -- requires a commitment to getting the facts right: checking them, and double-checking them, and where necessary triple-checking them, before presenting them to the public. This is especially so when the reporting consists of accusations of wrongdoing. Friday's Techdirt post on the Department of Justice's brief in the Jammie Thomas-Rasset case falls far, far short of any standard of accuracy and fairness. It's false, and it's false in a way that impugns the ethics and integrity of several high-ranking government attorneys -- all without a shred of evidence.

Here's the background: Several attorneys who practiced in the Washington office of Jenner & Block have been appointed to prominent positions in the Obama Justice Department:

• Tom Perrelli, Associate Attorney General

• Don Verrilli, Associate Deputy Attorney General

• Brian Hauck, Counsel to the Associate Attorney General

• Ian Gershengorn, Deputy Assistant Attorney General

• Ginger Anders, Assistant to the Solicitor General

While at Jenner, these attorneys' clients included, among others, companies in the recording industry. As members of the bar, these attorneys are required, on pain of disciplinary action, to follow rules related to conflicts of interest. They must also follow the Obama Administration's own ethics policy, which was promulgated by executive order on January 21, 2009. That executive order provides that all appointees must undertake the following pledge upon entering government service:

I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

This two-year recusal mandate is longer than the one-year period mandated in 5 CFR § 2635.502, which pre-dates the Obama Administration. (Techdirt previously misreported that the one-year period applies. Main Justice corrected the record, and I followed. Techdirt has never corrected its false report.)

Friday's Techdirt report on the government's Thomas-Rasset brief asserts that unnamed DoJ attorneys are violating their ethical obligations to avoid work that involves their former clients. Techdirt asserts that the brief, which defends the Thomas-Rasset verdict from constitutional attack, "isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry..." (emphasis added). Techdirt concedes that "none of the former RIAA lawyers are signatories to the brief," but says "you have to imagine their 'expertise' was consulted." Then, in the last paragraph, it says:

It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges.

Again, implicit in these statements is the accusation that the "former RIAA lawyers" have violated the Obama Administration's executive order on ethics, the Code of Federal Regulations, and bar ethics rules. And what is Techdirt's evidence of such wrongdoing? There is none. Absolutely none. Zero. Instead, Techdirt asks that the reader "imagine their 'expertise' was consulted" (emphasis added).

Techdirt's assertion that the "entertainment industry"'s "high [sic] paid lobbyists" were the "same lobbyists" who allegedly caused the "Justice Department to defend [copyright law] against Constitutional challenges," is easily checked, and easily debunked. I ran each of the five Jenner attorneys listed above through the Senate-maintained Lobbying Disclosure Act Database. Of the five, the only one who the database lists as a registered lobbyist is Perrelli. And his lobbying, in the early 2000s, was on behalf of "American survivors of the August 7, 1998 bombings of U.S. Embassies in Kenya and Tanzania" -- obviously far afield from the "entertainment industry" or copyright. In other words, Techdirt's allegation that the "entertainment industry"'s "high [sic] paid lobbyists" are inhabiting the DoJ -- let alone had anything to do with the Thomas-Rasset brief -- appears to be totally unfounded. (The fact (acknowledged by Techdirt) that the Bush Administration took the exact same position on the statutory damages issue in the Thomas-Rasset case further undermines the theory that the attorneys listed above improperly influenced the decision to file this brief. I'm not aware of any attorneys in the the Bush DoJ who represented the recording industry.)

When DoJ defends the constitutionality of a federal statute, the division that handles the task is the Federal Programs Branch. That division is headed by Gershengorn, one of the former Jenner attorneys who represented music industry clients. The attorneys listed on the Thomas-Rasset brief include Civil Division chief Tony West (the Federal Programs Branch is part of the Civil Division), an AUSA named B. Todd Jones, John R. Griffiths, Assistant Branch Director, Civil Division, and Adam D. Kirschner, a trial attorney in the Federal Programs Branch. Note: Gershengorn's name is not listed. On Friday, I submitted an inquiry to the DoJ press office regarding recusals in this case, but have not yet received a response; I will post an update when and if I do. (West recused himself from the Cablevision case, in which DoJ opposed cert., because Morrison & Foerster, the law firm he recently left, filed an amicus brief on behalf of music publishers in that case. But there is no indication that West himself ever represented entertainment industry clients.)

If Techdirt actually had evidence that the former Jenner attorneys were violating their ethical obligations by manipulating Administration policy to favor their recent former clients, that would be a great story, and I'd be annoyed that I didn't break it myself. But Techdirt has no such evidence -- at least none that it deigned to include in its post. If you're going to accuse high-ranking Department of Justice attorneys of violating their ethical obligations, shouldn't you have more evidence than ... none? Or am I just clinging to an dying, archaic, outmoded business model?