by James V. Grimaldi
Washington Post Staff Writer
Washington Post
U.S. District Judge Royce C. Lamberth, who has lashed out repeatedly at executive branch officials in the American Indian Trust case, now is engaging the third branch of government in the legal battle.
The legal maneuvers have become a fight over money in a lawsuit about money. Lamberth is quarrelling with Congress over who pays the legal bills in the seven-year-old lawsuit about what happened to billions of dollars in oil and mineral leases granted on former Indian lands.
Congress this year tried to cut funds for a special master appointed by Lamberth to help gather facts in the case. Congress’s intervention prompted the good judge to demand an accounting of how much money the government has spent, with congressional blessing, to pay non-government lawyers to represent former and current government officials.
The Justice Department recently submitted that tabulation to the court: Nearly $3.8 million went to 54 law firms defending 80 former and current officials of the Interior, Treasury and Justice departments.
The wrangling over money is almost as tangled as the facts of the litigation. Cobell v. Norton, the class-action lawsuit filed in 1996, is a dispute over royalties held in trust since 1887 by the federal government, which did not keep track of how much was collected and what is owed to each of more than 500,000 Indians promised the royalties.
Lamberth first attacked Clinton administration officials, then Bush administration appointees. He has cited three Cabinet officials (Interior secretaries Bruce Babbitt and Gale Norton and Treasury secretary Robert Rubin) for contempt, ordered six government lawyers, including President Bush’s friend, Assistant Attorney General Robert D. McCallum Jr., to pay personal fines and has asked a court ethics panel to investigate Justice Department lawyers.
The Interior Department turned to Congress last year to engage in the fight. The House Appropriations Committee gave permission in a spending bill for the government to pay for outside counsel for former and current government officials who retained private lawyers in the case.
One of the reasons given was that Lamberth’s special master, Alan L. Balaran, was forcing those officials to rack up big legal bills.
In February, Congress acted again. An omnibus spending bill put a ceiling on the amount to be paid to Balaran from Interior Department funds. Lamberth was not pleased.
In May, Lamberth let loose in an order rejecting an Interior motion to sever payments to Balaran, in part because of the wording of the provision in the spending bill. The order said, “This court knows of no previous Congress that has ever intervened in a specific pending civil action to reduce the compensation rate for judicial officials.”
In the footnotes to his order, the judge expounded on the “grave constitutional issues raised by the congressional action” that he said “may constitute and unwarranted invasion of the authority vested in the federal courts by Article II of the U.S. Constitution.”
Lamberth saved his harshest vitriol for the “defendants” at the Interior Department, whom he blamed for persuading Congress to draft provisions meant to undermine the lawsuit. Lamberth said they “appear to represent yet another attempt by defendants to evade the rule of law by any means available to them, no matter how duplicitous or underhanded.”
“They also serve to demonstrate defendants manifest hypocrisy,” Lamberth wrote.
Lamberth said Interior officials are happy to have their own lawyers’ fees “fully funded at taxpayer expense.” But when ordered to pay the special master, “whose appointment was necessitated by their own misconduct, defendants suddenly become born-again fiscal conservatives.”
An Interior Department spokesman declined to respond to the judge’s comments in the order.
The House Appropriations Committee returned fire this year and included a provision intended to force an out-of-court settlement, which American Indian officials say they oppose. That provision, which would allow Norton to settle with individual members of the class under terms she proposes, is expected to be dropped from the spending bill for jurisdictional reasons; House leaders believe that such orders should come from the House Resources Committee, which held a hearing on Cobell v. Norton last week, a day after closing arguments in the case in the lower court.
A congressional staffer who works for a lawmaker who helped draft the settlement-inducing provision said the point was “to send a little message to the judge.”
Looks like Lamberth is paying close attention.
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