The following letter to the Dean of Columbia Law School is intended to prevent the sparse public record from being distorted as officials of that school attempt to defend a controversial faculty appointment. 

Memogate Lives:
Olati Johnson and Columbia Law School's Dancing Dean

On March 28, David M. Schizer, Dean of the Columbia Law School, wrote a letter to the editor of the New York Sun.  That was followed by a note to a blog — www.therightcoast.blogspot.com — by Professor Avery Katz of Columbia Law School.  Both were responding to a March 24 column in the New York Sun by Curt A. Levey, General Counsel of the Committee for Justice, who questioned the involvement of Lee Bollinger, now President of Columbia University, in the Columbia Law School faculty appointment of Olati Johnson.

Bollinger was President of the University of Michigan at the time two major affirmative action cases, both of which bear his name, were being adjudicated.  Olati Johnson was a named co-counsel in one of those cases.  Later, while serving on U.S. Senator Ted Kennedy's Senate Judiciary Committee staff, Johnson wrote a memo to Kennedy that recommended delaying the Senate Confirmation Hearing of a judge for the sole purpose of preventing the judge from hearing that case at the U.S. Circuit Court of Appeals for the 6th Circuit.  No one knows how the judge — generally considered conservative — would have ruled.  Her confirmation was delayed for an inordinate period of time.

The Center for Individual Freedom researched, wrote and published the original news article that identified Olati Johnson as the author of the Kennedy memorandum and reported virtually the entire story that is publicly known to date.  Because no official body was willing to investigate the effort to manipulate the outcome of consequential constitutional litigation, CFIF filed several ethics complaints, the only legal avenue available to us.  All were dismissed, and given the silence of all involved, we are unlikely ever to know the complete story.

The following letter to the Dean of Columbia Law School is intended to prevent the sparse public record from being distorted as officials of that school attempt to defend a controversial faculty appointment.  We are prohibited from releasing the entire record by confidentiality requirements of legal ethics boards.  While we strenuously disagree with those requirements on First Amendment grounds, challenging them would not be productive in our lifetimes, a discussion for another day.


April 3, 2006

David M. Schizer, Esq., Dean
Columbia Law School
Box  B12
435 West 116th Street
New York, N.Y. 10027

VIA FACSIMILE, ELECTRONIC MAIL & FEDERAL EXPRESS

Dear Dean Schizer:

As you are aware, the Center for Individual Freedom researched, wrote and published the original news article outlining ethical impropriety by Olati Johnson and subsequently filed the ethics complaint against her with the First Departmental Disciplinary Committee in New York.

As a private institution, Columbia Law School is obviously free to adopt any criteria its administrators choose for faculty selection.  You are not free to publicly misrepresent the record regarding the case or impugn this organization in doing so.

Let me be very clear.  The Center for Individual Freedom has no interest whatsoever in your dispute with a third party over questions of President Bollinger's participation in Ms. Johnson's appointment.

We have believed from the outset of our investigation that Elaine Jones and Olati Johnson did not act without the knowledge, approval or collusion of others involved on behalf of the University of Michigan and Intervenors in Gratz.  Regardless, the fact that no official proceedings took place with the power to compel sworn testimony and subpoena documents and records circumvented all discovery.  Even so, we would have been shocked if any knowledge or participation reached as high as President Bollinger.

In your March 28 letter to the New York Sun, you wrote, "The ethics charges referred to in the column arose in a highly partisan atmosphere and involved many disputed issues of fact that were never adjudicated, principally because the complaints were dismissed in the jurisdiction (New York) where Olati Johnson is licensed to practice law."

We fail to grasp the legal relevance of "a highly partisan atmosphere," which exists in the U.S. Senate each and every day, and excuses no ethical misconduct by officers of the court, regardless.  Your hyperbolic political implication does not befit a distinguished law school dean.  If anything, that "highly partisan atmosphere" produced a stone wall as U.S. Senate Judiciary Committee Democrats successfully thwarted relevant investigation of the Olati Johnson memo and others.

Prior to original publication of our article, almost exactly two years ago, Ms. Johnson was unequivocally offered the opportunity to respond, with publication of her response to be unlimited and unedited.  She ignored that offer, which went far beyond standard journalistic practice.  Since that time, not one fact in our article or in our ethics complaint has ever been disputed to our knowledge.  Not "many," not any, not one, sir.  Interpretations of the application of ethics rules to Ms. Johnson's actions have been disputed, but no facts.

If you have awareness or information of any fact misstated by the Center for Individual Freedom, then we ask that you inform us of same or withdraw a statement that is highly prejudicial to both the professionalism and reputation of this organization.

In a letter to a blog from your colleague, Professor Avery Katz, he goes beyond your brief statement, writing, in part, "we reviewed and discussed the CFIF complaints and Olati's formal response to them." 

We are unaware that Olati Johnson ever made a "formal response" to our New York complaint (or any other).  If such a response was requested by and provided to the First Departmental Disciplinary Committee, it was done in secret and neither noticed nor provided to complainant.  That would seem odd, but no more so than every other effort to bury a legal scandal that no disciplinary body wished to deal with, given the wide-ranging ramifications of "scheduling [judicial confirmation] hearings based on the resolution of a particular case." (Olati Johnson, April 17, 2002 memo to Senator Kennedy).

In any event, if Columbia Law School or Olati Johnson is willing to provide us with that "formal response," we shall diligently read and reflect on it, issuing any corrections or rebuttals it might require.  Needless to say, we do not anticipate receiving same.

Professor Katz also wrote, "We did not feel we had any reliable basis to conclude that the allegations were accurate," and then extends your statements regarding the "intensely partisan atmosphere" and disputed facts.  Since the "allegations" were based solely on a memorandum Olati Johnson does not deny writing and uncontested circumstances related to same, we are not sure what would constitute "reliable."  At any rate, no one from Columbia Law School made any effort to ascertain the reliability or accuracy of the allegations from the Center for Individual Freedom, which filed the allegations and thus would be in the best position to document them.

The pertinent facts, while requiring considerable additional context for full understanding, can be stated fairly succinctly:

Olati Johnson was a named co-counsel in a case before the bar and participated in that case prior to joining Senator Kennedy's Judiciary Committee staff.  We could find no record that she officially withdrew from the case even following Senate employment.

Olati Johnson's April 17, 2002 memo to Senator Kennedy constitutes that which is known about her actions sufficient unto determining that ethics rules were violated.  She clearly described her intent, evidenced cognizance of guilt ("concerned about the propriety of scheduling hearings based on the resolution of a particular case"), and did not simply transmit an improper request to Senator Kennedy but recommended improper action, emphasizing that be followed by confirmation to the requestor, with whom she worked on the case in question, that the action had been implemented.

New York's Code of Professional Responsibility specifies that a "lawyer serving as a public officer or employee shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-government employment."

Numerous other ethics provisions and rules of the Sixth Circuit (the venue of the case at bar) are implicated, too extensive to list here, but none exonerative of her behavior.

There is much more, including a lot we don't and obviously will never know absent meaningful investigation or adjudication, but those are the critical facts, Dean Schizer, and no matter how those facts are publicly characterized by Professor Katz, you or anyone else, they will remain the critical facts. 

The Center for Individual Freedom, in commentary and legal filings, has acknowledged the audacity of the plan to manipulate the resolution of a "particular case." But that audacity, perhaps unique in the annals of ethical impropriety, did nothing to raise the actions of those involved above ethical constraints.  That those specific actions were so aberrant as to never have been specifically delineated  in ethical guidelines does not remove them from general ethical understandings of prohibited intent and attempted outcome, both framed in Olati Johnson's own memo and exhaustively documented in a variety of CFIF briefs.

Officials of Columbia Law School may or may not be aware that a significant precedent for CFIF's charges of ethical impropriety originated in stunning allegations of judicial misconduct in the exact same set of University of Michigan affirmative action cases at the U.S. Court of Appeals for the 6th Circuit.  One judge of that court, in an almost unheard-of published "Procedural Appendix," accused the Chief Judge at the time of improperly stacking the panel set for review.  The ultimate results were procedural reforms and the finding by a subsequent Acting Chief Judge that "an inference of misconduct has occurred." 

Although the methodology of manipulation differed, the intent and outcome were the same as motivated Olati Johnson, for the same cases.  Despite multiple furors, both efforts were successful, insofar as they went, and both forever tainted consequential constitutional litigation, with no known punishment exacted.

Professor Katz asserts that our ethics complaint against Olati Johnson was "summarily dismissed on the merits..."  The N.Y. dismissal determination, as the letter notifying us of that dismissal indicates, was made by a single individual who determined that Ms. Johnson's memorandum constituted "permissible political advice," despite the previously quoted directive from New York's Code of Professional Responsibility and other implicated ethical guidelines.  If that is a standard accepted by ethics professors at Columbia Law School, then we fear for the profession.  It is decidedly not a standard accepted by authorities whose counsel we sought or others who commented publicly.

Columbia Law School and Olati Johnson may legitimately rest on the dismissal of the ethics complaint against Olati Johnson, because that is the way our system works.  Be that as it may, we suspect you and many others at Columbia Law School fully understand the difficulty of obtaining adjudication of complex ethics issues before boards which are oriented toward much more common infringements.  Those who had advised of the practical futility of our efforts were correct.

The Center for Individual Freedom had no interest in revisiting the Olati Johnson case until you and Professor Katz, in a dispute with a third party, chose to publicly cast gratuitous, loosely worded and unsupported aspersions on the Center for Individual Freedom, its article and its ethics complaint.  While we understand your necessity to defend a controversial faculty appointment, you either willfully or inadvertently crossed a line in doing so that we shall not allow.

We intend to publish this letter at www.cfif.org.  We extend to you the same courtesy originally offered Ms. Johnson: unlimited and unedited right of response.

Sincerely,

/s/

Jeffrey Mazzella
Center for Individual Freedom
President


Addendum:
[posted on April 6, 2006 ]

The additional letter and e-mail exchange with Professor Avery Katz of Columbia Law School should be self-explanatory and illustrative of every point we might wish to make regarding reliability, responsibility and accuracy by the designated representative of Columbia Law School.


April 5, 2006

Avery W. Katz, Esq.
638 Jerome Greene Hall
Columbia Law School
435 W. 116th Street
New York, N.Y. 10027

Dear Professor Katz:

When we, on Monday, wrote Dean Schizer, we thought we had reviewed all relevant statements made by you and the Dean.  We subsequently discovered an additional missive from you, headed at ProfessorBainbridge.com as "And in response to a question about the memo, he [presumably you, Professor Katz] elaborates:

"You need to keep in mind that it is disputed whether the purported memo, which was derived from a computer file and not from hard copy, accurately reflects what actually happened in Kennedy's office.

"The CFIF folks say that it is, but they have shown themselves to be highly unreliable in other respects – for example, in using innuendo to mischaracterize standard university governance procedures.  It is also disputed, given other facts at issue, whether the actions alleged by CFIF would truly constitute a breach of professional legal ethics.  The CFIF argued that they would, but the NY and Virginia state bars thought not."

For a law professor, you are certainly given to vague and unsupported generalizations, but we have to take them as they come.

Are you seriously contending that there is someone with actual knowledge who maintains that the memo is not authentic, given that no one has made that claim since Olati Johnson was identified as the memo's author?  Or are you contending that the memo was typed into a computer but never printed out and sent?  If you are suggesting either, with any documentation or credible assertion thereof, we would be flabbergasted. 

Should either scenario have been the case, all Olati Johnson, knowledgeable associates in Senator Kennedy's office or even Senator Kennedy himself would have had to do was say so from day one.  Such a statement would have significantly diminished the public debate that subsequently occurred, including our article and our ethics complaint against Johnson (which could not and would not have been brought in the face of denial).  Given the legal and public relations advice available to Johnson, it is virtually inconceivable that she would not have defended herself accordingly.

It is very easy, Professor Katz, to make the kind of statements you are making.  We just wouldn't have thought that such unsupported rhetoric would be coming from anyone at Columbia Law School.  Far more disturbing is the similarity of your comments, as quoted above, to a legal brief filed on January 21, 2004.  You know or should know that brief is part of confidential proceedings in a separate ethics inquiry, and if it has been disclosed to you, then someone else's ethics should be questioned. 

We strenuously oppose the confidentiality requirements of ethics proceedings against lawyers, but the person who signed that brief made a big deal about it.  We desperately wanted that brief made public, because we believed that some of its points would be ripped to shreds by authorities greater than we.  We likewise wanted our reply brief made public.

Regardless, we would have thought that someone of your sophistication would recognize that an argument made before substantive and material additional information was learned was critically diminished by that information.  But if you wish to make that argument, by all means do so specifically, instead of making vague and disparaging public references to our reliability or accuracy or "disputed facts." 

You should also know that we have in our possession a letter from an official body that, insofar as it is probative, supports the proposition that the memo is legitimate and was sent to Senator Kennedy.

We frankly do not have a clue what you are referring to when you write of our unreliability "in using innuendo to mischaracterize standard university governance procedures."  If you would simply identify that reference, it would enable us to verify that we have erred and, if so, correct same immediately.  (On the other hand, if you were referring to a Guest Column by Congressman J.D. Hayworth, that would be akin to us attributing to you comments by anyone at Columbia University simply because they occurred at Columbia University.  That would be mischaracterization.)

We pride ourselves on our accuracy, when we are writing seriously (there is a fair amount of attempted humor on our site that sometimes befuddles the literal-minded) and always when we are filing legal briefs.  As far as we are concerned, you were doing fine while saying that even if Olati Johnson had done what she was accused of, Columbia would have regarded that as a mistake and appointed her to the faculty anyway.  Your law school, your criteria, your choice.  Instead of resting there, you chose a course of generalized distortions regarding the Center for Individual Freedom.

If you can document or in any way support what you have written, then please do so.  Otherwise, you are doing neither Olati Johnson nor Columbia Law School any favors, because others can read just as well as we can, and the phrase "void for vagueness" comes to mind.

Sincerely,

/s/

Jeffrey Mazzella, President

Center for Individual Freedom

cc:  Dean David M. Schizer, Columbia Law School


[April 5, 2006]

Dear Mr. Mazella,

Thank you for your letter; it was especially considerate for you to send it via both fax and e-mail so that I would not miss the chance to read it.  

I stand by my comments to Gail Heriot and to Stephen Bainbridge, with one exception.  In my second e-mail to Prof. Bainbridge, which was not intended as a formal statement and which I did not expect him to quote on his blog, I was not as careful as I could have been in distinguishing between CFIF and Levey. In particular, I wrote,

"The CFIF folks . . . have shown themselves to be highly unreliable in other respects -- for example, in using innuendo to mischaracterize standard university governance procedures."


With regard to this statement, CFIF is fairly entitled to a clarification.  As far as I know, it was not CFIF but Curt Levey, a former associate of CFIF, who has used innuendo to mischaracterize standard university governance procedures (specifically, with regard to law school hiring.)   I do have my own opinions regarding CFIF's reliability more generally, but those are based on other considerations, including your past association with Mr. Levey and, now, your own recent letters to me and to Dean Schizer.

I regret the loose wording and am happy to write Prof. Bainbridge to clarify my earlier statement to eliminate any inference that CFIF as an organization was associated with Mr. Levey's Sun editorial or his subsequent comments regarding Columbia Law School.  

Thank you again for bringing this matter to my attention.

Cordially,
Avery Katz

————————————
Avery W. Katz
Milton Handler Professor of Law
Columbia Law School
435 W 116th Street
New York, NY 10027
————————————


[April 5, 2006]

Dear Professor Katz,

Thank you for your response.

Before issuing your clarification, you might wish to reconsider your statement regarding Mr. Levey's past association with CFIF.  To be sure, Mr. Levey does not have any past relationship with this organization. In light of that mistake on your part, perhaps you should also reflect on whether your feelings are towards this organization or some other that you seem unable to remember. 

In light of our detailed and very specific letters to you and Dean Schizer, we assume you mean that you're going to continue disparaging the Center for Individual Freedom.  If that occurs, we intend to respond accordingly, including the publication of any defense we deem fit.  

Sincerely,

Jeffrey Mazzella
President
Center for Individual Freedom
113 S. Columbus Street, Suite 310
Alexandria, VA 22314
www.cfif.org

[April 5, 2006]

Mr. Mazella,

I now realize what you are talking about, or at least I think I do. 

Your organization is the Center for Individual Freedom, or CFIF.   Mr. Levey's former organization, as listed in his NY Sun byline, is the Center for Individual Rights, or CIR.   I confused the two organizations because I am not especially well versed in the doings of the conservative public interest law community, and so it did not occur to me that there would be two similarly-named groups both involved in advocacy relating to the Michigan affirmative action cases and both associated [your organization directly, CIR through its former association with Curt Levey] with the dismissed allegations against my colleague Olati Johnson.  

I have no wish to disparage your organization by conflating its activities with those of CIR, or vice versa --- your own activities speak well enough for themselves.   If you had been more direct on this point in your previous letters to me or to Dean Schizer, and not filled them with additional irrelevant quibbles, I would have addressed your concern immediately. 

I will now write to Profs. Bainbridge and Heriot and correct my incorrect statements regarding Levey's association with CFIF.  Before I do, however, could you please write back and confirm that I have indeed understood your concern?  I do not have time to play further guessing games.

Avery Katz

————————————
Avery W. Katz
Milton Handler Professor of Law
Columbia Law School
435 W 116th Street
New York, NY 10027
————————————


[April 6, 2006]

Dear Professor Katz:

Please just go away.  Having now identified yourself as an arrogant, irresponsible dolt, any clarification from you would be superfluous.

Jeffrey Mazzella
President
Center for Individual Freedom


[April 6, 2006]

Dear Dean Schizer:

Reflecting on the attached e-mail exchange with Professor Katz, we sincerely apologize for confusing Columbia Law School with an institution of honor, intelligence and integrity.  Any concern we had for our comparative reputation is mooted by Exhibit One:  Professor Katz's elusive grasp of reliability, responsibility and accuracy, is now beyond dispute.

Jeffrey Mazzella
President
Center for Individual Freedom

April 3, 2006
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