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Subject: FW: RE: Younger
Date: Sat, 18 Sep 2004 15:14:34 -0400
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Thread-Topic: Younger
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From: "Sean Cairncross - Legal" [SCairncross@rnchq.org]
To: "Jill HoltzmanVogel - Legal" [JHoltzmanVogel@rnchq.org],
[tjosefiak@georgewbush.org],
[cguith@georgewbush.com]
X-Read: 1

-----Original Message-----
From: Sean Cairncross - Legal [mailto:SCairncross@rnchq.org]
Sent: Saturday, September 18, 2004 3:15 PM
To: Jill HoltzmanVogel - Legal[mailto:JHoltzmanVogel@rnchq.org]; tjosefiak@georgewbush.org; cguith@georgewbush.com
Subject: FW: RE: Younger

Looks like they got the all-clear.

I'll keep everyone posted. Can someone forward to Chuck as well (don't have his email on bberry). Thanks.

-----Original Message-----
From: Patrick J. Rogers [mailto:patrogers@modrall.com]
Sent: Sat Sep 18 15:09:12 2004
To: Sean Cairncross - Legal [mailto:SCairncross@rnchq.org]
Subject: RE: Younger

Sean--call me, we are on board, and I'll give you the details.

Patrick J. Rogers
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
P.O. Box 2178
Albuquerque, NM 87103-2168
Tel: 505-848-1849
Fax: 505-848-1841

-----Original Message-----
From: Sean Cairncross - Legal [mailto:SCairncross@rnchq.org]
Sent: Saturday, September 18, 2004 12:57 PM
To: Patrick J. Rogers
Cc: jholtzmanvogel@tnchq.org
Subject: FW: Younger

Pat,

Here's research on abstention.

-----Original Message-----
From: Meyers, Ryan P. [mailto:RMeyers@gibsondunn.com]
Sent: Sat Sep 18 14:53:18 2004
To: Sean Cairncross - Legal
Cc: kwheelbarger@georgewbush.com
Subject: Younger

Sean,

The best case I've found so far is New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359 (1989). In this case, the Court found that Younger abstention did not apply to a state court's review of city council's decision. The Court reasoned that Younger principles did not weigh as heavily in cases that do not implicate the state courts' ability to perform their judicial functions ("[I]t has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court's refusal to decide a case in deference to the States."). Depending on the posture of our case, this could be a slam-dunk argument: for instance, in the event that the state court was reviewing a decision by the Secretary of State to leave Nader off the ballot. I do not know if this is in fact the posture of the case, but from your brief description I suspect that it was not.

Nonetheless, New Orleans does have some favorable language that could be used to argue that abstention is the "exception, not the rule," and that the Younger should therefore not apply in this instance:

[T]here are some classes of cases in which the withholding of authorized equitable relief because of undue interference with state proceedings is "the normal thing to do," Younger v. Harris, 401 U.S., at 45. We have carefully defined, however, the areas in which such "abstention" is permissible, and it remains "'the exception, not the rule.'" Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984), quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). As recently as last Term we described the federal courts' obligation to adjudicate claims within their jurisdiction as "'virtually unflagging.'" Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (citation omitted).

I just spoke with Katie Wheelbarger, and I explained to her that there are two ways to attack Younger. First, we could argue that the constitutional interests outweigh the state interests. I think this is our strongest argument and I am looking for any cases that have so held. I've already looked at Supreme Court and 10th Circuit cases on this point and haven't found anything helpful, but I am going to broaden my search and try again. Second, we could argue that the state court does not provide us an adequate opportunity to raise the constitutional challenge because of the time sensitivity involved. It will be difficult to prevail on this argument if we did not bother to raise these issues in the state court. There are several cases which suggest that the plaintiff's failure to raise a claim in the state court prevents it from later claiming that it has not had an adequate opportunity to challenge the constitutionality of the statute. This seems to me to make sense. Therefore, I will continue to focus on the first argument unless I hear otherwise from you. Even if we do not find a case on point, we can still make the argument on the basis of Younger and Pennzoil themselves that abstention should not be applied because the constitutional interest at stake vastly outweighs any state interest in this case.

If you have any questions or wish me to pursue a new direction, you can reach me at 202-544-6338. If I do not answer at that number please try 202-641-7532.

-------------------------------
Ryan P. Meyers
202 887 3635, Direct
202 530 9565, Direct Fax
rmeyers@gibsondunn.com

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White House retention project started in 2005, oneyear after the email was created in 2004.

Hey testing, how did you come upon this?

Part I: Establishing A Baseline: Using This Email To Trace The Communication Hub

We can use this known email to trace throughout the JCON databse within DOJ, also the White House, and then into the DoD, outside counsel, and telecom communities. We can use this email as a test run on all the points of interest: Each of the specific offices should be able to provide this email.

Next, we can go back to each of the offices, contractors, telecoms, and US government legal counsel reporting this email to understand the subsequent communications on the days where there are missing White House emails.

Said another way, we're doing two things:

1. Creating a matrix or communication hub with a known email that exists, has not been destroyed, is recored outside, and has been disclosed;

2. Re-following/re-tracing this hub connected with this known email, to then backtrace whether the deleted emails -- from the White House on the days where there are missing data -- are also missing from the known communication hub.

We will find a pattern. Either:

A. There is a match in teh gaps, suggesting the problem has nothing to do with White House email transfers, but with targeting of specific content, regardless where it is or is not located; or

B. There is no match, suggesting that the White House email retention problem is not targeting specific content.

Part II: Using Baseline To Compare (a) The Known Emails Within This Known Communication Hub To (b) the Missing Email Patterns In White House Emails

We can then take the known communication hub with the traced, known email, and compare that communication with the gaps to determine whether there are common patterns, or new information. Some of the deleted emails may have been inconsistently deleted. The key will be to look at how subsequent emails refer/authenticate earlier emails.

Authentication Gaps

Of interest will be emails connected with this hub, that reference deleted emails, but are still contained at the other locations other that the White House: OVP, outside counsel, JCON, or other commercial entities. We're looking for emails that are on different sides of key decisions/actions:

- A. Emails that reference key White House transition efforts that are on both sides of the start/stop times for the LotusNotes transition effort;

- B. Emails that are before the email transition, that have subsequent follow-up during the LotusNotes transition, and a second sent that have a follow-up after the gaps or the emails which were transferred;

- C. Emails after the transition effort, and not within any gaps, but reference earlier emails within the data that was transferred.

Our goal will be to look for patterns of missing emails connected with this hub to identify: Are there authentication problems; and are there problems with one kind of milestone, but not others.

Specifics: What To Do

14 of 23 shows no evidence emails from 18 Sept 2004 were missing. However, we have an email; and this email is linked with an outside counsel.

The reasonable next step is to ask whether this email is or is not still retained at the outside counsel's office. If it is, then we need to look at all the email at this outside counsel from or to the unofficial email for now-OVP Chief Counsel Wheelbarger.

The current email is retained outside OVP or outside counsel control. The specific emails to look for are the other emails with reference this disclosed email. There must be a logical progression showing:

A. Subsequent emails in and out of the outside counsel;

B. Subsequent conversations between the people attached to this email;

C. A wider circle of people attached to this email, then the secondary and tertiary (etc) levels of communication.

The logical progress should lead us to the DOJ JCON database and then back to the White House counsel for other emails. The previous Congressional search of these GOP/White House connected emails focused on a key event: The US Attoreny firings.

Going forward with this email and attached-communication hub, we're doing something different: Focusing on FISA-related discussions, but using this disclosed email to find out the other communications, people, and timelines of who else was involved. The goal of this discovery will be:

A. To explore which specific emails, other accounts, and topics these people continued to discuss related to the telecom immunity request;

B. Get an explanation from the US government why this email was not disclosed in the FOIA-request, as it related to the FISA immunity discussions;

C. Understand how outside counsel, connected with the FISA issues, is coordinating with not just OVP, but also Members of Congress, other legal counsel, DOJ OLC, and the White House as documented in the JCON and White House databases

The information should be there. The question is whether the process to review the files looking for this specific email can or cannot explain whether the can or cannot find this email; and whether they can trace this email and others like it through outside counsel, to OVP, DOJ OLC, and then into the White House. Because there is no record using the White House data that any emails were missing from 18 Sept 2004, we should be able to trace this specific email throughout all the emails connected to now OVP Legal Counsel.

We're not just looking at this email; but tracing whether there are or are not gaps between the different email senders/receives in their files; and how those gaps or patterns do or do not mirror the patterns in the White House files. Those files have nothing to do with OVP, but are either with the White House, JCON at DOJ, outside counsel, civilian telecom contractors, or a civilian/non-government email.

Here are the other issues related to this email account.