Reply #9: CREW: Susan Ralston answers questions about Karl Rove's e-mails. = 19 June 2007 [View All]

[L. Coyote]

Susan Ralston answers questions about Karl Rove's e-mails. He used private accounts "from day one."
Submitted by crew on 19 June 2007 - 4:16pm. Karl Rove Presidential Records Act Susan Ralston

Earlier today, we referenced the deposition of Susan Ralston by the House Oversight Committee. Excerpts of the transcripts -- not just links to the pdf documents -- have now been posted at The Gavel. Definitely worth a read. We're including two sections about Rove's e-mail usage:

BY MS. AMERLING: When did Karl Rove first start usìng his RNC e-mail account to send and receive e-mails from the White House?

A From day one. ................

.....

And then there's Rove other private, but not RNC, e-mails:

Q Do you know what hi s personal e-maìl account address was?

A It was an AOL account. I don’t remember right now,

Q Do you know whether Ken Mehlman used a political e-mail account?

A You know. Karl also had a “Rove.com” e-mail address .

Q You are referrìng to a personal e-mail address?

A Well, it was — it wasn’t — I don’t know how you would classify it, but it was a “Rove.com” e-mail address. .............

=========================
COMMENT:

http://www.citizensforethics.org/node/29131#comment-6429

Berenson-Ralston Apparenty Agreed To Signaling System
Submitted by Anonymous on 19 June 2007 - 7:42pm.

Issue: DC Atty Standards of Conduct in re DOJ OPR, ongoing Congressional Review (Tribunal, US Atty E-mails, RNC E-mails, House Oversight Committee, Abramoff, FBI):

Is it a violation of the DC Bar Rules, Standards of Conduct for an attorney

A. to coach a witness before and during a disposition;

B. during a deposition pretend that a response was to assist the tribunal, but the intent of the counsel communication to the tribunal was to do the opposite and adjust a client's recollection during a deposition;

Would this attorney conduct amount to obstruction of justice as DoJ OPR is similarly investigating in re Gonzalez-Goodling prior meetings?

It appears as though Berenson coached Ralston how to respond to Berenson's reactions/comments. I noticed Berenson interrupted the questions when Ralston said "no" to one of the questions. The way Ralston revised her remark, it suggested she and Berenson had arranged some sort of signal if she should change her answer from, "I know nothing," to "I don't recall."

The issue on the table: If this Berenson-Ralston arrangement were real (allegedly Berenson signalling Ralston to revise her remarks), would this amount to witness tampering; some sort of pre-meeting Between Ralston and Berenson with the intent to adjust recollections; and what kind of issues would this raise for Berenson in re candor before a tribunal and the Atty Standards of Conduct? (Link: Deposition):

Question: Karl Rove didn't discuss this claim with you?
Ralston, response: No.
Mr. Berenson (Ralston Counsel). Do you want to clarify that last answer?
Ralston. I don't recall. I don't have a recollection of anyone discussing with me specifically that claim.

She's essentially repated the qualifying terms of the question, but broadened the response from just Rove to "anyone" but repeated the questions words: "this/that claim". All she had to do was answer, "No." This indicates that she's well aware of the words being used; shows ample evidence that shes able to track the precise language in the questions. Yet, contrast that later with her answers to other questions: "Can you repeat the question. Ralston appears to have played stupid, stalling for time when she appears to be able to repeat verbatim the qualifying words of a specific question despite being interrupted by her own counsel.

A witness to have a specific recollection of something, and answer "No" says one thing; but for counsel to (a) know that the answer may not be correct; and (b) interject with a comment; and (c) get the witness to change her answer from a certain answer to the opposite, uncertain, is curious.

Notice this contrast:

A. Ralston changes her response from a certain "no" to "I don't recall."; yet
B. Notice the response Berenson provides -- that of seeking clarification -- doesn't track back to Ralston's response: She does not provide clarification, but does the opposite: Moves from a certain response of "No" to a less certain response: That is hardly a clarification, but the opposite.

Again look at her response:

I don't recall. I don't have a recollection of anyone discussing with me specifically that claim.

She's gone from "No" to "I have no recollection/don't recall." Yet, she's able to state with precision, as Goodling did, some things she is not recalling, but leaves open the question: What does she recall; what other claims that she may have not necessarily discussed, but have read, heard about, overhead, or been sent a blind copy via her RNC e-mail account sent from someone else?

Berenson And the RNC Blind Copy E-Mails

Yet, Ralson is not ordinary witness: She's an attorney, knowledgeable of the rules of the House Oversight Committee committee; in a position to rely on counsel; and knowledgeable of the DC Bar atty Standards of Conduct.
It appears the Berenson prompting of "clarification" was a signal to Ralston to do do the opposite: Provide ambiguity, this would amount to misleading the tribunal.

Arguably, Berenson public assertion of "requesting clarity" sounds like a good thing; but Ralston's response suggests the message Berenson was communicating was the opposite: To retract a statement, and provide ambiguity, arguably, in violation of the DC Bar rules which compel counsel to provide candor before the tribunal, not a double-meaning message with the intent to have the tribunal believe counsel was assisting the tribunal to get a precise answer. rather, Berenson's comment appears to do the opposite, hide the intent of his message, and induce Ralston to do the opposite of what the Tribunal thought Berenson was communicating.

Issues for Berenson in re Tribunal:

What kind of coaching did Berenson have with counsel to ensure that when he asked her the question she did above, that she would know to (a) understand her response needed to be changed; (b) understand she needed to revise her remark; (c) to stumble or argue with counsel; and (d) seamlessly transition from a certain answer to one that asserts the obvious: Uncertainty.

Berenson had a duty to be impartial (DC Bar Rule 3.5) and a duty to disclose adverse information (DC Bar Rule 3.3)

The standard applies to legal counsel. Whether we're talking about Ralston to
Berenson, the same DC Bar rules apply:

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; Rule 3.3

Once it appeared as though Ralston and Berenson had coordinated their answers, and adjusted testimony, did Berenson appropriately disclose the scope of the coordination he and Ralston had? Arguably, once Berenson corrected Ralston, this raised the issue that there had been coordination; and that because Berenson publicly correct her on the record, the scope of his coordination with Ralston is admissible.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. Rule 3.3

Berenson did not disclose anything to the tribunal, as required by the DC Bar Rules, merely prompted Ralston; and it was not Ralston who provided the inconsistent statements to the DC Bar, but to the Congressional committee.
Once Ralston and Berenson have allegedly agreed to abide by unwritten terms, agreements -- apparently not disclosed to outside/opposing counsel -- how did that non-disclosed arrangement affect the proceeding?

Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

Did Berenson-Ralston's apparent prior meeting to adjust responses based on Berenson's prompting amount to legal counsel violating Rule 3.4, and did Berenson in violation of 3.4 "assist" Ralston to conceal the truth: That Ralston on her own was certain of something; but that counsel hoped to adjust her responses to interject ambiguity and uncertainty?

Arguably, Ralston-Berensons's interchange rise questions about alleged obstruction of justice, the scope of Berenson's pre-deposition coordination with Ralston, and the appropriateness of Berenson's comments in light of Ralston's initial assertion of certainty, then an an apparent prompting to adjust her response to be ambiguous.

# What prompted Berenson to hope Ralston would adjust her testimony?

# Why would Ralston agree to change from something that was a certain answer to one that was ambiguous?

The other problem Berenson-Ralston have, given the lack of disclosure on tall the ground rule and the agreements between Berenson-Ralston and the Congress, there is a reasonable basis to have doubts about Berenson's compliance with

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (Rule 3.3)

What restrictions by the Govt Oversight Committee were there in place when Ralston was deposed prohibiting counsel from inducting witnesses to adjust their answers?

Is there a specific rule, regulation, or guideline unique to the Government Oversight Committee that expressly prohibits what Berenson and Ralston have appeared to have done: Have a signalling system; offer testimony that was adjusted based on non-disclosed agreements?

Let's consider the other clients and information Berenson and Sidley Austin have, which remain undisclosed. Was there something about at&T, Boeing, or another client involved with the RNC e-mail communications -- in a to-be-understood capacity -- that induced Berenson to get Ralston to retract her statement?

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (Rule 3.3)

If, as it appears, Berenson wanted to take Ralston's response ambiguous, and not certain, how might Ralston's "final answer" of ambiguity assist another Sidley Austin client; and in turn, what inducement, if any, has Berenson or anyone else made to others to not challenge, corroborate, but provide similarly ambiguous responses to answers they might, on their own, answer with certainty and precision?

Why would Congressional counsel be satisfied with Ralston's response -- which is vague, as less clear -- yet the prompting from counsel wanted the opposite: Clarification?

=============================
Replies follow, along with "Anonymous" replying to the replies: http://www.citizensforethics.org/node/29131#comment-6449