by Jamin B. Raskin
Professor Law, American University Washington College of Law
Administrative Law Review, Winter 2005
“[H]ow often audacity and pride are on the side of the guilty . . . .” Jean_Jacques Rousseau, The Confessions. [FN1]
On January 9, 2004, George Washington University Law Professor Richard J. Pierce, Jr. filed a complaint with the Chief Judge of the United States Circuit Court for the District of Columbia. The complaint targeted Judge Royce Lamberth for his allegedly overzealous and highhanded management of Cobell v. Norton, [FN2] the now famous Indian_trust class action *230 lawsuit. Professor Pierce’s complaint alleged that, in Cobell, Judge Lamberth gratuitously vilified government employees, held five high_ranking officials in contempt without any basis in law or fact, improperly used threats of contempt against other officials, and ordered the Department of Interior (Interior Department or DOI) to disconnect its computers from the Internet “with no adequate bases in law or fact . . . .” [FN3]
On May 17, 2004, Professor Pierce’s complaint was dismissed in its entirety by Acting Chief Judge David Sentelle, who rejected three of the claims on the grounds that they were related to the merits of Judge Lamberth’s decision in the Cobell case and a fourth as both directly related to the merits of the decision or ruling and unsubstantiated. [FN4] Professor Pierce, Judge Sentelle found, “has failed to provide any specific evidence that would cause a reasonable observer to doubt the subject judge’s impartiality.” [FN5] Undeterred, Professor Pierce sought appellate review of Judge Sentelle’s dismissal order by the Judicial Council of the D.C. Circuit. On July 9, 2004, the Judicial Council, with United States Circuit Judges for the District of Columbia Thomas F. Hogan, Emmet G. Sullivan, James Robertson, Henry H. Kennedy, Richard W. Roberts, and Ellen Segal Huvelle participating, unanimously denied Professor Pierce’s petition for review of his rejected complaint. [FN6] Thus, as a matter of law, Professor Pierce’s case against Judge Lamberth has been lost.
But, at the same time that Professor Pierce was conducting his campaign in court against Judge Lamberth, he submitted an extended version of his complaint to the Administrative Law Review as a law review article. This work, entitled “Judge Lamberth’s Reign of Terror at the Department of Interior,” [FN7] was published in the Spring 2004 issue, which contained fine scholarly work on “electronic redlining,” [FN8] and a case study of heavy_duty diesel engine regulation under the Clean Air Act, [FN9] to name but a few of the thematic articles that made substantive contributions to our understanding *231 of law. But Professor Pierce’s baffling diatribe against one judge’s handling of one case__a text that he offered in full to the D.C. Circuit’s Judicial Council as part of his now_repudiated formal complaint__does not advance the understanding of law as a body of knowledge, much less improve the prospects for justice in the case. The article does not seriously examine the merits of the underlying Indian trust case nor make an original contribution to the scholarship of civil contempt powers. Indeed, since the Judicial Council’s decision was released on July 23, 2004, the public has learned what it needs to know about Professor Pierce’s aggressively stated claims: that they are totally groundless.
Perhaps matters should be left at that. Yet, the reappearance of the failed judicial complaint as an academic polemic demands a more careful answer for two reasons. The first is out of fairness to Judge Lamberth, whose reputation and honor have been momentarily sullied in a leading law journal. Many lawyers and professors who read this article will not know that Professor Pierce’s claims have been rejected in court. The second reason not to ignore the attack on Judge Lamberth’s reputation is that it provides an opportunity to educate the legal community about Cobell and the grim reaction gathering in some quarters against the possibility that American Indians cheated out of their property rights for many decades may finally find some justice in our legal system.
The Cobell plaintiffs are hundreds of thousands of American Indians who brought suit against the Secretary of Interior and the Secretary of Treasury on June 10, 1996. [FN10] Their suit demanded an accounting for egregious mismanagement of millions of acres of Indian lands held for more than a century by the government under the Individual Indian Money (IIM) trust. [FN11] The alleged liability in this case is in the tens of billions of dollars, making it one of the largest class action suits in American history. [FN12] Contrary to all expectations that there can be no justice for Indians in the judicial institutions of the United States, the plaintiffs have been prevailing on the main questions in Judge Lamberth’s courtroom, as well as on appeal in the United States Circuit Court of Appeals for the District of Columbia. [FN13] It has been undisputedly established that the Departments of Interior and Treasury have breached their fiduciary obligations by mismanaging the Indian trust funds. [FN14] Both the District Court and the D.C. Circuit have found the government to be in severe and long_standing violation of its *232 statutory and common law trust duties. [FN15] The task at hand is to get the government to “fix the system” of trust management (Phase I of the litigation) and to render a “historical accounting” of the lost, mismanaged and plundered Individual Indian trusts (Phase II) over the decades. [FN16]
But the government has not only violated its fiduciary obligations as trustee; in the Cobell trial process, it repeatedly deceived the court and flouted, defied, and ignored judicial orders. In response to this pattern of official lawlessness, Judge Lamberth has been willing to hold numerous high_ranking government officials, including cabinet secretaries, in civil contempt to coerce their compliance with court orders. [FN17] Moreover, Judge Lamberth has imposed a structural injunction on the Department of Interior to transform its culture of lethargy and indifference to Indian rights. [FN18] There is no alternative when the government, acting as trustee, cheats hundreds of thousands of trust beneficiaries out of their property rights, and the officials responsible for rectifying the situation refuse to perform their duties. A court that does not use every power at its disposal, including contempt and injunctions, to move the government and its lawyers out of a posture of brazen malfeasance would itself become tacitly complicit in the lawlessness. [FN19] As the Supreme Court observed long ago in Marbury v. Madison, [FN20] in our system there shall be no right without a remedy and courts must act to enforce law where they have jurisdictional power and competence. [FN21]
The Cobell litigation and the Pierce article thus fuse into a striking case study in how even the prospect of justice for the American Indian victims of U.S. government policy can provoke furious ad hominem reaction. The vilification of Judge Lamberth, along with the recent extraordinary moves *233 in Congress to attach an appropriations rider to interfere with his handling of Cobell, are a reminder, in the words of Jean_Jacques Rousseau, of “how often audacity and pride are on the side of the guilty, shame and embarrassment on the side of the innocent.” [FN22] It is a sad truism in Indian country that the U.S. government has broken every promise to the Indians it ever made, and it seems there are powerful forces in the United States determined to stop the hundreds of thousands of Indian trust beneficiaries from ever receiving a historical accounting of their trust assets. Thus, for scholars and lawyers who believe that law should be the instrument of active justice, it is crucial to answer this effort to destroy the reputation of this distinguished district court judge, a conservative Republican and former Department of Justice (Justice Department or DOJ) lawyer named to the bench by President Ronald Reagan.
In Part I of this Article, I review the history of the abuse of Indian rights at the foundation of this case and then explain the current posture of the case. In Part II, I show that Professor Pierce’s claims about Judge Lamberth are distorted, hyperbolic and ineffectual, and that Judge Lamberth’s use of the contempt power has been warranted, judicious, and in no way sanctionable. Finally, in Part III, I argue that, if there is a “reign of terror” in this case, its victims are the Indian plaintiffs whose property rights have been trampled and its organizers are the powerful government defendants who have been thwarting justice at every turn. Professor Pierce has capsized the moral duties of intellectuals by inviting us to identify with the agents of official duplicity rather than the victims of it.
I. History of the Abuse of Indian Rights
The Cobell litigation is a class action suit by American Indians against the Secretary of the Interior, Assistant Secretary for Indian Affairs, and the Secretary of the Treasury, for breach of statutory and common law trust obligations in the management of lands that the government has held in trust for Native American beneficiaries since 1887. [FN23] The history of government misconduct provoking the litigation is dizzying and, as American citizens, we are all implicated in the shameful actions that the Cobell suit has brought to light. This complex story has begun to unfold in the sequence of decisions in this case, [FN24] but now the government’s misconduct in Cobell itself has become part of the record of official *234 betrayal and deception. Professor Pierce refers opaquely to the case background as involving “one of the saddest chapters in U.S. history,” [FN25] thereby locating the problem in a distant and melancholy past without aggressors or victims. He provides his readers with no sense of how the litigation is rooted in a history of official violence, land dispossession, forced removal and expulsion, financial exploitation, and bureaucratic fraud. Much less does Professor Pierce show the specific ways in which the official pillage of Indian property continues today.
White violence against Indians dates back to European settlement of the New World and defined a relationship that “has been contentious and tragic,” in the words of the D.C. Circuit. [FN26] Our part of the story begins in the 19th century, two centuries after the violence began, with the “forced removal of American indigenous people from their ancestral lands,” a period of time that constitutes “one of the darkest chapters in American history.” [FN27] The removal of the Indians from the east coast was not an accident flowing out of “isolated acts,” as we might prefer to imagine, but the product of deliberate U.S. government policy. [FN28] Judge Lamberth has called attention to the pivotal role that the federal government played in displacing and dispossessing the Indians and the refusal by the executive branch “to enforce the mandate of the Supreme Court that American Indian Tribes were to be treated as sovereign entities.” [FN29] The obdurate refusal by the executive branch to be bound by law is indeed a commanding theme of American Indian history that continues up to the present moment.
In 1827, the Cherokee nation, located within the confines of the state of Georgia, adopted a written constitution, patterned after our own, declaring the Cherokees a sovereign and autonomous nation. [FN30] Although they had to contend with vigilante violence at the hands of white settlers, the Cherokees maintained a thriving economy, a fully functional government with a separation of powers, and an intact culture and way of life. [FN31] But, in 1828, driven by the white population’s hunger for land, the Georgia legislature enacted a statute simply assimilating Cherokee lands into the state of Georgia. [FN32] The following year it “passed a law rendering the Cherokee territory located within Georgia boundaries subject to the laws of *235 Georgia, effectively abolishing existing Cherokee laws and customs.” [FN33] The Cherokee nation brought suit in federal court to restrain enforcement of Georgia laws over them, but it was dismissed for lack of jurisdiction. [FN34] One year later, however, the Indians achieved victory when Chief Justice John Marshall found for the Supreme Court that the Cherokee nation was indeed “a distinct community, occupying its own territory, . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves . . . .” [FN35]
This articulation of constitutional principle respectful of Indian sovereignty was too little and too late. On the ground, the Cherokees faced a hostile invasion of federal and state governments and marauding white settlers. Congress had already passed the Indian Removal Act, which authorized the President to force Indians east of the Mississippi River to migrate westward. [FN36] Meantime, in Georgia, the governor proclaimed the discovery of gold on Indian lands, provoking “widespread trespasses onto Cherokee territory by Georgia citizens searching for gold.” [FN37] He also announced that he would not be bound by the Worcester v. Georgia decision, [FN38] a posture apparently endorsed by President Andrew Jackson who reportedly reacted to the Supreme Court decision with these indelible words: “Well, John Marshall has made his decision__now let him enforce it.” [FN39]
Reconciled to the impotence of the Supreme Court’s decision, despairing of any justice in their situation, the Cherokee nation “reluctantly entered into the Treaty of New Echota in 1835,” [FN40] sealing the fate of its people. Soon after, in the infamous “Trail of Tears,” broken_hearted Cherokee men, women, and children lined up “silent and resigned” and walked somberly from Georgia to their new homes in the eastern part of what was about to become eastern Oklahoma. [FN41] The same miserable fate__lawless uprooting and displacement to reservations in the western states__awaited other tribes inhabiting the east coast, including the Choctaw, Chickasaw, Creek, Seminole, Kickapoo, Wyandot, Ottawa, Pottawatomie, Winnebago, Sac and Fox, Delaware, Shawnee, Wea, Peoria, Miami, Kaskaskia, and Piankeshaw. [FN42]
*236 The accelerating expulsion of the Indians to the west changed America’s approach to the “Indian problem.” As the white population pressed westward, the U.S. government “gradually adopted a new policy” towards the Indians. [FN43] Now they would be individually “assimilated into American culture” through the land “allotment process,” which involved division of land from a common holding and the awarding of plots of land to specific individuals who became beneficial owners with the government acting as their trustee. [FN44]
The organizing principle of allotment, as articulated before Congress in 1881 by President Chester Arthur, was “‘to introduce among the Indians the customs and pursuits of civilized life and gradually absorb them into the mass of our citizens.”‘ [FN45] This “messianic faith in the civilizing force of private property” [FN46] was bolstered by two other ideological pressures. One was a putatively altruistic determination by an assortment of “Eastern reformers” to “protect what little remained of Indian land from encroachment by white settlers.” [FN47] They believed that the dissemination of fee titles would safeguard the Indians from further “confiscation by the government and occupation by settlers.” [FN48] The other motivating force was opposition to tribal power and organization as a dead weight hindering the development of Indians. Kenneth Bobroff quotes Merrill Gates, a member of the Board of Indian Commissioners and President of Amherst College, who wrote:
The deadening sway of tribal custom must be interfered with. The sad uniformity of savage tribal life must be broken up! Individuality must by cultivated . . . we must get at them one by one . . . [W]e must break up the tribal mass, destroy the binding force of savage tribal custom, and bring families and individuals into the freer, fuller life where they shall be directly governed by our laws, and shall be in touch with all that is good in our life as a people . . . . [T]his law is a mighty pulverizing engine for breaking up the tribal mass. [FN49]
In hindsight, it seems depressingly obvious that the allotment policy was “[d]riven by a greed for the land holdings of the tribes” and “the product of *237 the United States’ effort to eradicate Indian culture.” [FN50]
Although allotment had already been gaining ground as a way to manage the Indian population, [FN51] Congress in 1887 passed the General Allotment Act, [FN52] also known as the Dawes Act, which authorized the President to carve up any and all Indian reservations into individual plots and then assign parts of them to tribal members, following a set formula. [FN53] According to the formula, the head of a family “was allotted a one_fourth section, or 160 acres; each single person over eighteen and each orphan child under eighteen was allotted a one_eighth section, or 80 acres; and each non_orphan child under eighteen was allotted a one_sixteenth section, or 40 acres.” [FN54] Significantly, all “surplus” lands not allotted to Indians in this process were then opened to settlement by whites. [FN55] Section 5 of the Dawes Act required the United States to “hold the land thus allotted, for the period of twenty_five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs,” and after the passage of twenty_five years, the United States would convey full land title directly to the Indian allottee. [FN56] Critically, however, the United States was authorized to extend the twenty_five year period in its sole and exclusive discretion. [FN57] The general idea, as captured by the D.C. Circuit, was that:
During the trust period, individual accounts were to be set up for each Indian with a stake in the allotted lands, and the lands would be managed for the benefit of the individual allottees. Indians could not sell, lease, or otherwise burden their allotted lands without government approval. Where tribes resisted allotment, it could be imposed. [FN58]
When the Dawes Act was passed in 1887, the Indians had already been cheated or pushed out of 90 percent of their land, but they still possessed an impressive 138 million acres. [FN59] The allotment policy, however, “devastated Indian societies,” and by 1934 Indians had lost nearly 90 million acres more. [FN60] Some 60 million of these acres went to white homesteaders as “surplus lands” after the family parcels were allotted to Indians; some 23 *238 million acres left Indian hands through the issue and subsequent sale or loss of fee patents; and 3.7 million acres were lost through government sale of allotments. [FN61]
By the turn of the twentieth century, the whole allotment process proved, at least from a naïve perspective, to be “an abysmal failure,” [FN62] neither transforming Indians into Jeffersonian yeoman farmers, nor integrating them into the white community, nor saving them from the relentless loss of their land to the white community. [FN63] In 1928, Lewis Meriam issued an influential report called “The Problem of Indian Administration” (also known as the Meriam Report), questioning if the underlying premise of allotment, that the division of tribal lands into individual estates, would “prove an educational civilizing factor.” [FN64] Of course, if the purpose of allotment was neither education nor civilization nor land protection, but dispossession and tribal destruction, then the whole project registered glorious success. In any event, Congress in 1934 passed the Indian Reorganization Act, [FN65] whose Section I simply ended the practice of further allotting any Indian lands. [FN66] Section II extended indefinitely existing trust arrangements for the lands that had already been allotted but not conveyed to individual Indians, meaning that the United States would continue to have “a duty to administer allotted Indian lands in trust for the benefit of the individual Indians to whom they were allotted.” [FN67] The untold and unaccounted for tens of billions of dollars of income arising from these lands in trust were supposed to have been deposited in the IIM trust accounts, and these accounts now “are at the heart of this case.” [FN68]
In the wake of the 1887_1934 allotment period and the Indian Reorganization Act’s indefinite continuation of the trust relationship, the United States came to manage at least 11 million acres of land in trust for the heirs of the original Indian allottees. [FN69] As trustee for approximately 500,000 current IIM trust beneficiaries, the United States Congress “designated the Secretary of the Interior and the Secretary of the Treasury to be the trustee_delegates of the United States, and the departments run by these two cabinet secretaries are entrusted with certain trust management responsibilities.” [FN70] Although the Treasury Department maintains and *239 invests IIM funds under the direction of the Interior Department and renders accounting and financial management services, most trust obligations are vested in the Interior Department. [FN71] In the Interior Department, multiple agencies participate in trust administration and management, including the Bureau of Indian Affairs (BIA), the Bureau of Land Management (BLM), the Office of Trust Funds Management (OTFM), and the Minerals Management Service (MMS). [FN72] Since 1909, according to trial testimony, approximately $13 billion has been collected and deposited into the IIM trust account, mostly from the “sale or lease of trust lands and include timber stumpage, oil and gas royalties, and agriculture fees.” [FN73]
The fraud, mismanagement, and negligence afflicting the IIM trust funds over the decades are notorious. The organizational chaos within the government has prompted a stream of negative reports and audits from the Inspector General of the Department of Interior, the U.S. General Accounting Office, the Office of Management and Budget, and numerous increasingly horrified Congressional Committees. [FN74] In 1992, the House Committee on Government Operations released a report called “Misplaced Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund.” [FN75] The study identified numerous problems that the Cobell court has determined still exist, including:
• The inability to give proper accounting balances to each of the account holders;
• Lack of uniform written policies to govern how accounts are to be managed and under what circumstances funds can be withdrawn;
• Insufficient training of personnel needed to carry out the duties required; and
• Inadequate automated and record keeping systems.
The Report pointed out that, since the 1980s, the Office of Management and Budget has consistently placed the financial mismanagement of Indian trust fund as a high risk liability to the United States. [FN76]
The Report concluded “that Interior had made no credible effort to address the problems in trust administration in a ‘wide range of areas’ and that Interior had disobeyed many congressional directives aimed at forcing Interior to correct trust management practices and reconcile the Indian trust *240 accounts.” [FN77]
Two years after release of the “Misplaced Trust” report, Congress passed the American Indian Trust Fund Management Reform Act [FN78] (the 1994 Act). The 1994 Act’s legislative history is replete with expressions of bipartisan frustration about the lethargic performance of the government. Congressman Craig Thomas (R_Wyo.) told the House Subcommittee on Environment, Energy and Natural Resources why the legislation was needed:
We have had two hearings on trust management__or, more properly, mismanagement__in the Native American Affairs Subcommittee this Congress . . . . Since the Government Operations Committee released its report, “Misplaced Trust: The Bureau of Indian Affairs’ Mismanagement of the Indian Trust Fund,” I have seen precious little change in this sad state of affairs. Instead, I have seen promised deadlines come and go; I have seen promises to reform go unfulfilled. Despite statements made in the early days of the Clinton administration, two years later neither the [Interior] Department nor the BIA has brought us one step closer to resolving the trust find problem. All we have seen is a continuation of the BIA’s one unchallenged specialty: inertia.
We have seen the pattern repeated over and over. The Department and BIA promise to act, fail to, we are forced to introduce legislation to deal with the issue, and then when passage of the legislation seems imminent they come to us and ask for more time . . . . I am sure that this morning we will hear more of the same excuses and promises, more requests to just give it a little more time, from the Department that we have been hearing for the last six years. But, Mr. Chairman, shame on us, shame on this Congress, if we delay any further.
The Department told us in August, and I am sure will repeat this morning, that they have everything under control. Well, Mr. Chairman, my response to that is an explicative which decorum prevents me from using here but which I will paraphrase: cow manure! . . . Mr. Chairman, the Department needs to pull itself out of denial, pull itself out of its fantasy world, and come to grips with [reality]. [FN79]
After the bill was reported favorably to the full House of Representatives on September 28, 1994, Congressman Mike Synar (D_Okla.) addressed the House:
Mr. Speaker, if ever the words “It is the right thing to do,” meant anything, they mean everything with respect to the legislation we consider today. . . . We must take this step because the Department itself *241 refuses to adequately address the serious accounting and management problems which have plagued the trust fund program for decades.
Over the years, Congress, the General Accounting Office, the Interior Department’s inspector general, and the President’s Office of Management all have issued directives to the Department to develop a comprehensive plan for cleaning up this mess. In many cases, those directives have simply been ignored. At other times, the Department has responded with simplistic, isolated and often ill_conceived initiatives which, even taken together, will never solve the trust fund problems repeatedly found in three separate bureaus of the Department.
. . .
Mr. Speaker, my Subcommittee on Environment, Energy and Natural Resources has held five separate oversight hearings on this subject since 1989. Mr. Richardson’s subcommittee has also held several hearings in the last two years. Regrettably, year after year we get the same worn_out response from the Interior Department. They tell us they’re really on top of this now. They tell us they’re really going to move on needed reforms now. Year after year, on and on with the same commitments. Year after year, those commitments are largely forgotten when the hearings are over.
. . .
It is time for Congress to take matters into its own hands, and to require by statute that the Secretary and the Department do what needs to be done to fix these problems and meet the Government’s trust responsibilities to the account holders.
. . .
There is an understanding that . . . we have been unable to get the responsiveness that we need out of the BIA to perform the basic fiduciary responsibilities which we would expect out of any trustee. If this was done in the Social Security system, my colleagues, we would have had a war. [FN80]
Other legislators underscored the terrible gravity of the situation. In a Senate hearing on mismanagement of the IIM trust, Senator Daniel Inouye (D_Haw.) noted that “[t]he management of the Indian trust fund has been grossly inadequate in many respects . . . . Financial management of the trust has been neglected for decades.” [FN81] In an oversight hearing on the proposed legislation, Congressman Bill Thomas (R_Cal.) called the Interior Department “the most pathetic excuse for government that we now have on the Federal level from top to bottom.” [FN82] At the same hearing, Congressman *242 Bill Richardson (D_N.M.) observed that the U.S. government should be held “to the same standard as any other trustee” and invoked the “solemn fiduciary duties” of the Department to place the interests of the beneficiaries first and “to make the corpus productive.” [FN83]
Congress passed the 1994 Act and President Bill Clinton signed it into law on October 25, 1994. [FN84] Pathetically, but perhaps predictably, the passage of the Indian Trust Fund Management Reform Act in 1994 did not produce the kind of trust management and accounting to which the Indian beneficiaries are legally entitled. Rather, the chaos continued. On June 10, 1996, the plaintiffs in Cobell brought their suit, alleging that continuing mismanagement of the IIM trust by the Interior and Treasury Departments constituted a breach of fiduciary duty and demanding a proper accounting. [FN85] The District Court certified Cobell as a class action on February 4, 1997, designating the five named plaintiffs as class representatives for all present and former IIM beneficiaries. [FN86] On May 5, 1998, the court divided the litigation into two phases. [FN87] Phase I__the forward_looking “fixing the system” phase__ focuses on the reforms required to bring the management of the IIM trust into compliance with proper fiduciary obligations. [FN88] Phase II__the backward_looking “historical accounting phase”__focuses on “the performance of a formal accounting of the IIM trust, as required by the 1994 act.” [FN89]
Professor Pierce describes the case as “incredibly complicated,” [FN90] and in a procedural sense this is true. But the question of law is simple: Have the defendants breached their fiduciary trust obligations to the plaintiffs? The answer is clearly yes, and the plaintiffs have consistently won on this point in both the District and Circuit Courts. [FN91]
On December 21, 1999, after conducting a six_week bench trial to hear the plaintiffs’ Phase I claims, Judge Lamberth released a memorandum opinion setting forth factual findings, legal conclusions, and a declaratory judgment. [FN92] He found for the plaintiffs on every major substantive point, holding the defendants in gross material breach of their statutory duties under the Indian Trust Fund Management Reform Act. [FN93] The court ordered the defendants to give the plaintiffs an accurate accounting of all moneys in *243 the IIM trust, to retrieve and retain all information necessary to render an accurate historical accounting, and to establish systematic written policies and procedures to satisfy the statutory duties to render an accurate accounting. [FN94] The court retained jurisdiction for an enlargeable five_year period and ordered the defendants to file quarterly status reports with the court to record the “steps that defendants have taken to rectify the breaches of trust declared today and to bring themselves into compliance with their statutory trust duties.” [FN95] The court rejected a series of other plaintiff proposals for more elaborate relief on the grounds that the court would give the defendants the opportunity to fulfill their plans to bring themselves into compliance with the law. [FN96] If they failed to deliver, the court would consider further steps. [FN97]
The defendants appealed this sweeping decision to the D.C. Circuit, maintaining that the government had no judicially enforceable obligation to account, that reform of the IIM trust had not been unlawfully withheld or delayed, and that there was no basis for awarding equitable relief against the government. [FN98] The D.C. Circuit, however, rejected these claims, affirming the District Court in every substantive respect and remanding for further proceedings. [FN99] Looking at Judge Lamberth’s decision, the D.C. Circuit found fault only with his suggestion that the defendants’ breach included the failure to comply with specific steps ordered by the court to enable an accounting rather than simply with the general failure to provide an accounting itself. [FN100] But this slender distinction made little difference: “[W]hile the district court must amend its opinion on remand to account for this distinction,” the D.C. Circuit found, “there is no need to alter the district court’s order, as the bottom line is the same: By failing to take reasonable steps toward the discharge of the federal government’s fiduciary obligations to IIM trust beneficiaries, appellants breached their duties.” [FN101]
Though the merits of the case have been plain from the start, the court has had to confront the recalcitrance and duplicity of the government defendants at almost every turn. After three years of playing hide_and_go_seek with critical trust information, the court finally sanctioned the defendants. On February 22, 1999, after a two_week bench trial on the plaintiffs’ motion, the court found then_Secretary of the Interior Bruce Babbitt, then_Secretary of the Treasury Robert Rubin, and then_Assistant *244 Secretary of Interior for Indian Affairs Kevin Gover in civil contempt of court for violating a discovery order which the court had helped to draft. [FN102] Judge Lamberth carefully explained the context and rationale for this contempt ruling:
The court is deeply disappointed that any litigant would fail to obey orders for production of documents, and then conceal and cover_up that disobedience with outright false statements that the court then relied upon. But when that litigant is the federal government, the misconduct is even more troubling. The institutions of our federal government cannot continue to exist if they cannot be trusted. The court here conducted monthly status conferences where plaintiffs complained that the government was not producing the required documents. Because of the court’s great respect for the Justice Department, the court repeatedly accepted the government’s false statements as true, and brushed aside the plaintiffs’ complaints. This two_week contempt trial has certainly proved that the court’s trust in the Justice Department was misplaced. The federal government here did not just stub its toe. It abused the rights of the plaintiffs to obtain these trust documents, and it engaged in a shocking pattern of deception of the court. I have never seen more egregious misconduct by the federal government. [FN103]
The court then ordered the defendants to compensate the plaintiffs for the harm suffered by their actions, appointed a special master to oversee the litigation, and warned the federal defendants of harsher consequences that would follow any further dereliction of duty in the case. [FN104] But the misconduct has only intensified.
On September 17, 2002, after a 29_day bench trial on a second set of contempt motions, Judge Lamberth issued another significant memorandum opinion. [FN105] He found Interior Secretary Gale Norton and Assistant Secretary of Indian Affairs Neal McCaleb, the successors to Bruce Babbitt and Kevin Gover, to be in civil contempt of court as public officials. [FN106] The court cited them for five specifications: failing to comply with the court’s December 21, 1999 order to initiate a Historical Accounting Project; committing a fraud on the court by concealing the Interior Department’s true actions regarding the Historical Accounting Project during the period from March 2000 until January 2001; committing a fraud on the court by failing to disclose the true status of the Trust Asset and Accounting Management System project (TAAMS) between September 1999 and December 21, 1999; committing fraud on the court by *245 filing false and misleading quarterly status reports about TAAMS and data cleanup by the BIA, beginning in March 2000; and committing a fraud on the court by making false and misleading representations as of March 2000 about the computer security of IIM trust data. [FN107] Judge Lamberth characterized the Interior Department’s administration of the Indian trust funds as “the gold standard for mismanagement by the federal government for more than a century.” [FN108]
With regard to the first specification, Judge Lamberth stated that the Department of Interior’s representations as to the historical accounting project were a “sham . . . that greatly misled this Court” and “unnecessarily and significantly delayed the Court’s and plaintiffs’ ability to proceed with the Phase II trial.” [FN109] As to the second, the court found that the defendants had developed an elaborate pretense that the Department of Interior was deliberating over different accounting methods when the choice had actually already been made. [FN110] As to the third specification, the court found that the Department of Interior had deliberately failed to correct misrepresentations offered at the Phase I trial about the possibilities of a new asset and accounting management system. [FN111] As to the fourth specification, the court held that the government defendants had filed false and misleading status reports. [FN112] As to the fifth specification, the court found the defendants had made false and misleading representations about the computer security of IIM trust information. [FN113]
Judge Lamberth also expressed frustration with the fact that “the defendants are no closer today to discharging their fiduciary responsibilities properly than they were during the Phase I trial back in the summer of 1999” when the court found that they were in breach of their duties to the individual trust beneficiaries. [FN114] Recalling that he had rejected the plaintiffs’ request that the court put the IIM trust under court supervision because he wanted to grant the “least intrusive” relief possible, Judge Lamberth now found his original order of relief insufficient to the task. [FN115] “The recalcitrance exhibited by the Department of Interior in complying with the orders of this Court is only surpassed by the incompetence that the agency has shown in administering the IIM trust,” he wrote. [FN116] Although his Phase I factual findings and legal conclusions were correct, Judge *246 Lamberth determined that he would consider granting further judicial relief and schedule more proceedings to determine whether such relief was warranted and if so, to determine its potential nature and extent. [FN117] Naming these proceedings “the Phase 1.5 Trial” (between the already completed Phase I Trial and the yet_to_come Phase II Trial), Judge Lamberth indicated his intention to enter a structural injunction to break the impasse in the case. [FN118] He also made clear that he saw the government’s arrogant and deceptive litigation tactics in Cobell as complementary to its dysfunctional management of Indian trust funds: “[T]he Department of Interior has handled this litigation in the same way that it has managed the IIM trust__disgracefully.” [FN119]
On July 18, 2003, the D.C. Circuit vacated Judge Lamberth’s order finding defendants Norton and McCaleb in civil contempt of court. [FN120] The appeals court ruled that the contempt citations were actually criminal rather than civil in nature because Judge Lamberth deployed his contempt powers in a punitive and backward_looking, rather than in a prospective and coercive, way. [FN121] Significantly, however, while the circuit vacated the district court’s holding of civil contempt, it did not disturb the district court’s factual findings demonstrating pervasive misconduct and malfeasance by the defendant government officials and their attorneys. [FN122] The possibility of criminal contempt thus remains.
Judge Lamberth concluded the Phase 1.5 Trial on July 8, 2003. [FN123] On September 25, 2003, he entered a detailed structural injunction in the case, now emphatically locating the litigation in the “long line of institutional reform cases in the federal courts.” [FN124] Overriding the defendants’ assertions that the court lacked power to order such a structural injunction, Judge Lamberth saw no constitutional impediments and found ample remedial authority for an equity court to vindicate the trampled rights of beneficiaries in trust litigation in a systematic way. [FN125] He proceeded to enter a comprehensive and permanent structural injunction that requires the Department of the Interior to provide an accounting on schedule, retained the court’s jurisdiction through 2009, and reappointed the Monitor to assure continuing compliance with the terms of the injunction. [FN126] Meantime, on *247 September 14, 2004, a panel of the D.C. Circuit, with Chief Judge Ginsburg presiding and writing the opinion, unanimously dismissed a petition by eleven current and former officials and employees of the Department of Interior seeking the recusal of Judge Lamberth. [FN127]
II. Judge Lamberth’s Use of the Contempt Power Has Been Judicious
Professor Pierce has risen valiantly to the honor of the government defendants in Cobell, especially those he invokes on the first page of his article: “two Secretaries of Interior, a Treasury Secretary, and two Assistant Secretaries.” [FN128] The choice to champion their cause is a curious one for, in the history of judicial contempt citations, it is hard to imagine defendants more safe and secure than these. They are high_ranking government officials with huge staffs, armies of government_employed lawyers, large budgets, press secretaries and public relations consultants, and the whole force and treasury of the U.S. government backing them. They have no personal money at stake either in the ultimate judgment or settlement or for the civil contempt citations. The cabinet secretaries held in contempt did not lose their jobs or their exalted social standing. Secretaries Babbitt, Rubin, and Norton, for example, have gone on to continued power, fame, and fortune. [FN129] If Professor Pierce’s true concern is about judicial abuse of the rights of litigants, he might start his campaign, not with powerful government actors, but with those people without high office or vast resources who the government has sued and prosecuted before complicit and pliant judges. Indeed, during the age of the Patriot Act, [FN130] Guantanamo Bay, and extreme prosecutorial tactics, it is jarring that Professor Pierce’s scholarly sympathies gravitate towards government officials who have presided over the mismanagement of billions of dollars in trust money belonging to some of the nation’s poorest citizens.
It is tempting to try to refute Professor Pierce in detail on every point he *248 makes, as Judge Lamberth himself has done in the judicial misconduct process with such devastating effect. [FN131] But a reply to Professor Pierce that takes up every one of his aspersions and insinuations is unnecessary and tedious. His article, which he appended to his official complaint as an elaboration of its claims, has already, since publication, received its definitive refutation. On May 17, 2004, the complaint was dismissed in its entirety by Acting Chief Judge David Sentelle, who found that his allegations “do not provide any grounds for action against the subject judge.” [FN132] On July 9, 2004, the Judicial Council, with United States Circuit Judges for the District of Columbia Thomas F. Hogan, Emmet G. Sullivan, James Robertson, Henry H. Kennedy, Richard W. Roberts, and Ellen Segal Huvelle participating, denied Professor Pierce’s petition for review of his rejected complaint. [FN133] In short, since the decision was released on July 23, 2004, the public has already received an authoritative and final judicial repudiation of Professor Pierce’s attack on Judge Lamberth, a rare outcome for a law review article. [FN134]
Certain critical points, however, raised by Professor Pierce require an academic response because they are false, misleading, dangerous to the prospects for justice, or corrosive of good standards of academic scholarship.
To begin, Professor Pierce strives to characterize Judge Lamberth’s handling of the Cobell case as an extreme departure from the history of federal litigation involving the government. [FN135] The case, he says, is “extraordinary” and “responsible for a large number of firsts and mosts.” [FN136] If this claim were true, it would, of course, not indict Judge Lamberth’s conduct of the Cobell case in any way. There is nothing illegal, unethical, unprofessional, or “intolerable” [FN137] about a court ordering something new if the order is warranted by law and equity. Otherwise, Professor Pierce would have to condemn West Virginia v. Barnette, [FN138] Brown v. Board of Education, [FN139] Miranda v. Arizona, [FN140] Roe v. Wade, [FN141] and other cases where *249 judges break from precedent to advance the trampled rights of litigants.
Professor Pierce’s claims, however, about the novelty of Cobell are false in any event. In the third sentence of his article, he asserts that Cobell represents “the first modern case in which a cabinet officer has been held in contempt of court.” [FN142] This statement is false unless we define “modern” as beginning in 1993. In 1992, the Eighth Circuit affirmed a civil contempt order against the Secretary of Agriculture and two Agriculture employees for violating an injunction and upheld attorney’s fees and costs, though not compensatory damages, against the government defendants. [FN143] In 1984, the United States District Court for the Northern District of California found the Administrator of the Environmental Protection Agency in civil contempt for flouting a court order compelling it to comply with the Clean Air Act. [FN144] In 1979, the Second Circuit Court of Appeals found the Attorney General himself in contempt for failing to produce Federal Bureau of Investigation (FBI) files involving the plaintiffs. [FN145] Indeed, the government has even faced sanctions for “a pattern of obstructive and frivolous conduct” in court in another Indian class action case in which the Navajo Nation sued the government over abuse of its mineral rights on allotted lands. [FN146] There are many federal judges who apparently do not embrace the suggestion that government defendants who flout court orders stand beyond the contempt powers of the judiciary.
Moreover, when Professor Pierce declares that Judge Lamberth has “issued orders in which he has compelled eighty government employees to defend themselves against charges of contempt,” [FN147] he offers no analysis as to whether the defendants have failed to comply with judicial orders and are thus deserving of such consideration. It is apparent from Judge Lamberth’s answer to this assertion that, had Professor Pierce read the June 18, 2003 DOJ Report to the court upon which his claim is based, he would have realized that the DOJ “inflated the number of government attorneys and employees for whom counsel was retained. For example, Roberta McInerney accounts for four separate entries in the Justice Report; Randall Lewis, two entries; Lewis Weiner, two entries; Michael Rossetti, two times and so forth.” [FN148] Furthermore, many of the people for whom counsel was *250 retained at millions of dollars in taxpayer expense had never been charged by the plaintiffs or implicated by the court in connection with any wrongdoing.
A. The So_Called “Collateral Proceedings”: The Contempt Charges
The lynchpin of Professor Pierce’s polemic against Judge Lamberth is over what he strangely calls “the collateral proceedings,” that is, “the many proceedings that Judge Lamberth has spun off of Cobell v. Norton to address two problems he apparently considers critical to his ability to adjudicate the dispute: the alleged misbehavior of scores of government employees and the alleged vulnerability of the DOI’s computer systems to potential hackers.” [FN149] Professor Pierce writes:
It is Judge Lamberth’s actions in these collateral proceedings that cause me great concern. I have opinions on the merits of Cobell__basically, that the plaintiffs are clearly entitled to the accounting they demand but that Judge Lamberth’s structural injunction goes too far. My views on the merits are irrelevant, however, to my strong belief that Judge Lamberth’s actions in the collateral proceedings that he has spun off of Cobell are totally inappropriate. [FN150]
Before examining Pierce’s direct criticism of the contempt findings, several remarkable features of his framing of the issues must be observed. First, what Pierce calls the “collateral proceedings” are critical to, and inextricable from, the principal substantive issues in the case. The reason that government officials are being held in contempt is because they are failing to produce the information that is necessary to the trust accounting that they owe to the plaintiffs as a matter of law. This accounting is no diversion but the essential objective of the litigation. Similarly, the two issues that Professor Pierce considers tangential__the misconduct of government employees and the vulnerability of the DOI’s computer systems to outside hackers [FN151]__are essential to the tasks of providing an accurate historical accounting and establishing the integrity of the trust system for the future. One can only regard with amazement Professor Pierce’s assertion that it is “totally inappropriate” for Judge Lamberth to enjoin government misconduct and protect the Indian beneficiaries’ proprietary information on government computers.
When Professor Pierce offers a glimpse of his views on the “merits” as he sees them, he suggests, in an apparent gesture at balance, that “the plaintiffs are clearly entitled to the accounting they demand but that Judge *251 Lamberth’s structural injunction goes too far.” [FN152] His suggestion, however, that the structural injunction “goes too far” does not reflect any understanding that the structural injunction was entered by the court many years after the litigation began, to guarantee the trust accounting that has otherwise been nothing more than an idle, official promise of perpetually forthcoming cooperation. Since the government’s promises have proven hollow, and all less thoroughgoing remedies have been rendered ineffectual, Professor Pierce would make a more credible critic of Judge Lamberth’s equitable remedies if he suggested alternative ways to assure the trust accounting in the face of widespread government indifference, lethargy, and incompetence.
Of course, Professor Pierce is most disturbed because Judge Lamberth has “[s]o far in this case . . . held five people in contempt of court” and “eighty . . . named individuals . . . have been forced to retain private counsel to assist them in their defense of the contempt charges against them.” [FN153] He focuses his concern first on the opinion that found Secretary of Interior Bruce Babbitt, Secretary of Treasury Robert Rubin, and Assistant Secretary of Interior Kevin Gover in contempt. [FN154] He believes there is a gap between Judge Lamberth’s “harsh characterizations of the defendants’ behavior” and their actual conduct. [FN155] Pierce writes:
For instance, Judge Lamberth referred to the defendants’ behavior as “willful dereliction,” “nothing short of contumacious,” a “cover_up,” “contemptuous,” “misbehavior [that] is especially egregious,” “nothing short of a travesty,” and “in defiance of this court’s orders.” Judge Lamberth concluded: “I have never seen more egregious misconduct by the federal government.” The specific conduct Judge Lamberth describes falls far short of matching any of those characterizations, however. Judge Lamberth’s particularized criticisms of the government’s behavior describe only the kinds of problems of miscommunication, confusion, and poor coordination that typify most efforts by large organizations to accomplish major tasks. [FN156]
Here, Professor Pierce second_guesses Judge Lamberth’s statement about his own subjective belief that the defendants’ performance in Cobell is the most “egregious misconduct” he has ever seen. If Professor Pierce disagrees, he should explain not only how Judge Lamberth is misrepresenting his own perceptions, but what more egregious misconduct Judge Lamberth has seen in other cases that he is bypassing.
Yet, Professor Pierce assures us that the failure of the government to *252 keep a consistent log or index of documents produced from various field offices, the failure to meet court_ordered and party_negotiated deadlines, the systematic failures of communication, and “the total lack of coordination and oversight” in the “entire process”__just by way of example of the misconduct cited by the court__are typical of large organizations in litigation. [FN157] Professor Pierce writes:
Problems of this type are inevitable in any attempt to conduct a task as vast as the district court required the DOI and the Treasury Department to accomplish in a matter of months. To illustrate the magnitude of the task, consider just one paragraph of the district court’s discovery order. Paragraph 19 required defendants to produce within a few months “all documents, records, and tangible things which embody, refer to, or relate to IIM accounts of the five named plaintiffs or their predecessors in interest.” In order to comply with that part of the order, defendants had to search an incredible volume of records. The Treasury Department estimated that it had “20,000 cubic feet of boxes containing potentially relevant records.” The DOI estimated that it had a much larger volume of potentially relevant records. Moreover, the DOI’s records were stored in many locations, some of which were not immediately accessible. [FN158]
Out of his article, this is Professor Pierce’s most substantive criticism of Judge Lamberth, but it is confused and misleading. To begin, the paragraph of the discovery order that he has selected to criticize, Paragraph 19, orders discovery of the very thing that goes to the heart of the case: the five plaintiff_beneficiaries’ individual trust records from their trustee, the U.S. government. [FN159] Paragraph 19 of the First Order of Production was proposed to Judge Lamberth by express agreement of the parties and was largely drafted by the DOJ itself. [FN160] It is a matter of grave concern, then, that the records essential to the government’s proper administration of its trust duties were “not immediately accessible” to the government, much less to the trust beneficiaries, who have a legal right to this information as part of their property.
The contempt proceedings followed not just from the defendants’ glaring failure to meet the scheduling deadlines to which they had agreed for production of these and other records, but rather from the systematic “deception perpetrated on the Court by Justice and Interior attorneys concerning the production.” [FN161] This deception is perfectly established in *253 the record. Although the defendants had the eminent good sense not to appeal their contempt orders, the D.C. Circuit in Cobell clarified that, in the court’s view, the defendants’ misconduct leading to the first contempt ruling as consisting of something more than a few inadvertently missed deadlines:
Indeed, the district court found that the defendants “proposed a stipulated order to the court and them immediately improperly instructed their field personnel on what documents were required to be produced.” The egregious nature of this conduct was only compounded by the Treasury Department’s contemporaneous destruction of documents potentially responsive to the court’s production order, and the failure of government officials “to apprise the court or the plaintiffs of the defendants’ unwillingness and self_inflicted inability to comply” with the production orders. [FN162]
To fully appreciate the veil of rationalization that Professor Pierce has pulled down over the government’s misconduct, it is useful to parse a representative sampling of the deceptions, decoys, and feints practiced by the defendants and their lawyers in their struggle to evade Paragraph 19. But first, to refocus on what is at stake, imagine that a valuable trust had been set up in your interest by your wealthy great_grandfather who appointed your Uncle Sam as the trustee. Now, you either receive no payment or an occasional small payment from the trust; never receive any trust statements; have no idea what the corpus is; have no idea whether the interest is correctly figured; and never hear from Uncle Sam about the status of your property. The trust exists because it was set up on your behalf, and any wealth you have is tied up in it. Therefore, you go to court to demand an accounting. Your lawyers and Uncle Sam’s lawyers agree that they will produce for you all of your trust documentation “as soon as practicable.” You file this agreement with the court on November 27, 1996. This now becomes Paragraph 19 of a First Order of Production, the one Professor Pierce suggests the government has done everything in its power to comply with. You understand that Uncle Sam’s failure (or refusal) to know where your trust documents are and to have them available is itself an active breach of his trust duties, but you want a real accounting so you show some patience.
Turning back to the real case, consider the following sequence of events to evaluate whether you agree with Professor Pierce that a contempt citation was “totally inappropriate:”
November 27, 1996: The Court’s First Order of Production requires all trust records and documents to be produced “as soon as practicable,” an *254 order proposed by the parties. [FN163]
December 6, 1996: The court conducts a hearing about the defendants’ failure to produce these and other documents by dates agreed upon by the parties. The defendants represent that “the specific information [plaintiffs] are looking for on the five named plaintiffs . . . will be ready next week.” [FN164] Judge Lamberth orders defendants to file a written status report on December 27, 1996, detailing any information that had not been produced and stating precisely when it would be. [FN165]
December 27, 1996: Defendants’ lead counsel files the Status Report and states that the responsive documents will be produced within 60 days. [FN166] In fact, behind the scenes, lawyers are acting to hold document production in abeyance, and the Bureau of Indian Affairs has not even been directed to respond to the court order. [FN167]
February 11, 1997: A status report is filed by defendants’ counsel stating that “[t]he information requested in Paragraph 19 of the Order will be provided to the plaintiffs no later than March 3, 1997.” [FN168] This false statement is made by a lawyer who “sent BIA on a document search substantially narrower than what was clearly required and who knew that the document search by the Office of the Special Trustee for American Indians (OST) for the five named plaintiffs was held in abeyance.” [FN169]
March 3, 1997: The defendants’ own promised and self_imposed deadline for final production of the trust documents to the plaintiffs passes with nothing at all being produced. [FN170] For the rest of calendar year 1997, despite the plaintiffs’ repeated demands, the defendants continue to flout the order. [FN171]
May 19, 1997: Despite the defendants’ failure to comply with paragraph 19, their lawyer praises them before the court for their devoted work on document production during a status call: “I think that recognition needs to be given to the efforts of the Department of Interior and specifically to Ms. Perlmutter, to her dedication to providing plaintiffs with thorough and complete responses to their queries.” [FN172]
February 3, 1998: Edith Blackwell of the Solicitor’s office sends a letter *255 to Joe Christie, OST’s senior records official, which states, in pertinent part,
“Joe__When Lew [Wiener] and I met with [Arthur Andersen] a week or so ago, one of the issues we discussed was the lack of complete documents for the five named plaintiffs. As you know, as part of the court Order dated November 27, 1996, we were ordered by the Court to provide [documents responsive to paragraph 19]. According to Arthur Andersen, we only have a small fraction of these documents . . . . I need to know the status and or the plan to gather all the documents for the IIM accounts of the five named plaintiffs. Since this was a Court Order, then we could be subject to a Motion to Compel or Sanctions for our failure to produce the documents in over 15 months. DOJ is concerned about this, and given the parties are no longer cooperating we are very vulnerable to a Motion for Sanctions at this time.” [FN173]
Then Christie responds with a message that exposes the contempt for plaintiffs’ rights that has infused the “document production” effort from the beginning:
“Hold it!!! . . . . We informed the Solicitor’s Office that in order to obtain the transaction documents and reports we would have to go on site at each agency and area office where the materials were located and go through each box of material at those locations in order to find all the materials . . . . I was told not to do anything until a final decision was made. That decision was never made and or communicated to us as far as I know . . . . [W]e were told not to proceed with that collection pending a final decision!!! . . . . The office told us not to proceed, we did as we were instructed.” [FN174]
April 8, 1998: Defendants’ counsel informs plaintiffs’ counsel that the Tribal Court of the Winnebago Tribe of Nebraska issued a temporary restraining order (TRO) preventing the defendants from removing trust_related documents from the BI’s Winnebago Agency. [FN175] The defendants’ counsel repeatedly invoke this TRO, which was released in early April 1988 and was dissolved on April 30, 1998, as the reason for their failure to produce the Winnebago documents. [FN176] Defendants, however, never “voluntarily informed the court that the TRO had been dissolved,” and this crucial fact surfaces “only upon the court’s questioning at the July 21, 1998 status call.” [FN177]
May 4, 1998: Some eighteen months after defendants assured the court the documents responsive to Paragraph 19 would be produced in full, the court finally places a date certain deadline of June 30, 1998 for production *256 complying with the First Order of Production of Information. If anything, it is the plaintiffs who should be outraged at the court’s seemingly infinite patience for the defendants’ ceaseless delay. [FN178] [FN178] But the clock is now running on the defendants’ interminable games of runaround and hide_the_ball.
continued as second article
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