10.04.19

Whitehouse, Leahy Call for Investigation into Conduct of Former Top Justice Department Official

Former Civil Rights Division Head John Gore appears to have violated Department ethics rules, documents show. Gore’s credibility is already under scrutiny for promoting a citizenship question on the 2020 Census.

Washington, DC – Today, Senators Sheldon Whitehouse (D-RI) and Patrick Leahy (D-VT) released their request to the U.S. Department of Justice’s Office of Professional Responsibility to investigate former Principal Deputy Assistant Attorney General of the Civil Rights Division John Gore for possible ethics violations.  Documents obtained by the senators through a watchdog group’s Freedom of Information Act request show Gore taking action as a Department official to pursue allegations of voting irregularities in Chicago brought to his attention by a Republican political operative.  Gore went so far as to elevate the allegations to the Trump White House.  These documents contradict a declaration Gore submitted under penalty of perjury in federal court denying the official-capacity nature of his communications with the operative.  Such behavior appears to run afoul of several rules of professional conduct for Department officials and calls into question the Department’s continued reliance on Mr. Gore’s apparently untruthful testimony.  To the extent the Department continues to rely in ongoing litigation on testimony it knows to be false, that raises separate, serious ethical questions for Department ethics officials to resolve.

The senators write that Gore’s “conduct remains at issue in at least two ongoing lawsuits, and the Department and its lawyers continue to rely on his testimony in these and other matters.  . . . [D]ocuments within DOJ’s possession—though not produced by DOJ in relevant litigation—cast significant doubt on Mr. Gore’s truthfulness in these matters.  This may implicate not only his professional conduct, but the conduct of other attorneys representing DOJ in matters involving Mr. Gore.”

Gore ghostwrote a December 2017 letter to the Census Bureau that formally requested a citizenship question on the 2020 Census.  In the letter, Gore argued that the administration sought a citizenship question to protect racial minorities’ voting rights, an argument the Supreme Court has rejected for appearing “contrived”.  Last year, Gore admitted that a citizenship question was “not necessary” to enforce the Voting Rights Act.

Full text of the senators’ letter is below.  A PDF copy with accompanying appendix is available here.

 

October 4, 2019

 

Mr. Corey Amundson

Director and Chief Counsel

Office of Professional Responsibility

U.S. Department of Justice

950 Pennsylvania Avenue, N.W., Suite 3266

Washington, DC  20530-0001

 

Dear Director Amundson:

We write to request that your office review whether the conduct of John Gore, former Principal Deputy Assistant Attorney General of the Civil Rights Division (CRT) of the Department of Justice (DOJ), described herein, violated OPR’s ethics framework.  Although Mr. Gore has reportedly left DOJ, his conduct remains at issue in at least two ongoing lawsuits, and the Department and its lawyers continue to rely on his testimony in these and other matters.[1]  As discussed in greater detail below, other documents within DOJ’s possession—though not produced by DOJ in relevant litigation—cast significant doubt on Mr. Gore’s truthfulness in these matters.  This may implicate not only his professional conduct, but the conduct of other attorneys representing DOJ in matters involving Mr. Gore. 

We have obtained documents that raise questions about Mr. Gore’s compliance with federal records laws and about the truthfulness of testimony he gave in a sworn declaration in litigation.  We believe these documents provide evidence that Mr. Gore either knowingly made misrepresentations in a court filing about the nature of his personal email communications with Republican Party election officials concerning voting issues, or that he acted in reckless disregard of his duty of candor to the court.  Mr. Gore’s statements could constitute professional misconduct under OPR’s framework.[2]  Moreover, to the extent other Department attorneys have relied in court on testimony they may have known to be untruthful, that raises separate and equally important legal ethical questions for your office to resolve.

Mr. Gore’s credibility is already under scrutiny in litigation regarding the addition of a question about citizenship to the Census.  In that case, the government is now facing a sanctions motion based on questions about Mr. Gore’s testimony on the origins of a letter from DOJ to the Department of Commerce requesting the addition of that question.[3]  This new evidence suggests a pattern of possible misconduct that should be thoroughly and promptly investigated by OPR. 

To our knowledge, DOJ attorneys in these lawsuits have not identified the documents discussed in this letter that cast doubt on the veracity of Mr. Gore’s testimony, or otherwise updated relevant court filings. This raises separate and ongoing legal ethical questions for OPR to investigate under its analytical framework.  It therefore remains critical that OPR investigate the truthfulness of Mr. Gore’s testimony, as well as the knowledge of other Department attorneys with respect to the truthfulness of that testimony.

Background

In August 2017, the Brennan Center for Justice and The Protect Democracy Project initiated FOIA litigation against DOJ in the U.S. District Court for the Southern District of New York (S.D.N.Y.) to obtain documents related to President Trump’s Presidential Advisory Commission on Election Interference (PACEI).[4]  DOJ initially provided plaintiffs with records resulting from a search of official DOJ employee emails.  This initial search identified two September 2017 email threads that had been forwarded to the official DOJ email account of then-Acting CRT AAG John Gore from Mr. Gore’s personal email account[5].  These records included several emails from Mr. Gore’s personal email account showing communications from May to September 2017 among Mr. Gore, Chicago Republican Party Chairman Chris Cleveland, and PACEI member Christy McCormick.  The communications concerned Mr. Cleveland’s complaints that Chicago allegedly had a 16,000-vote discrepancy in the 2016 election (i.e., that Chicago had reported more votes than voters).[6] 

In April 2019, in light of these emails, and because Mr. Gore had been delinquent in forwarding these emails to his official account as required by 44 U.S.C. § 2911(a), the court granted plaintiffs’ motion to search Mr. Gore’s personal email records for any additional documents relevant to the plaintiffs’ inquiry.[7] 

Mr. Gore’s Declaration

In May 2019, the government moved—ultimately unsuccessfully—for a reconsideration of the court’s order to search Mr. Gore’s personal emails.[8]  The government’s motion relied on a May 28 declaration from Mr. Gore, signed under penalty of perjury, attesting that he had not used his personal email for agency business.[9]  With respect to the previously disclosed emails from his personal account, Mr. Gore stated:

In May 2017, an individual [Chris Cleveland] whom I knew from outside my work for the Division emailed my personal email account to ask if I ‘had a relationship’ with the PACEI.  I informed this individual that ‘I d[idn't] have any relationship with the task force.’  I offered to help put the individual in contact with ‘someone who does.’  I later put this individual in contact with Christy McCormick, a member of the PACEI.  I did not understand or interpret [Mr. Cleveland]’s inquiry to be asking about the work of the Division, or to constitute an official-capacity communication by me.  Neither I, nor the Division, had any relationship with the PACEI.  Therefore, I believed that my communications with [Mr. Cleveland] were in my personal capacity . . . [I]n my view, the communications were not official-capacity communications, nor were they sent or received in the course of my employment with the Department of Justice.[10]

The same month Mr. Gore submitted this sworn declaration, the watchdog group American Oversight obtained, through a separate FOIA suit, additional email records sent to and from Mr. Gore’s official DOJ account in March 2017.[11]  These March 2017 emails contradict Mr. Gore’s declaration in two ways: (1) upon receiving information from Mr. Cleveland about the Chicago vote discrepancy, Mr. Gore acted on that issue in his official DOJ capacity; and (2) Mr. Gore was dishonest, or at least not wholly truthful, about the nature of his relationship with Mr. Cleveland.

1.  Personal vs. official capacity 

Mr. Gore’s declaration that his May-September 2017 personal email communications were “in [his] personal capacity” and were “not official-capacity communications” omits other communications that would show this to be untrue.  In a March 24, 2017 email—two months earlier—Mr. Cleveland emailed Mr. Gore’s superior, then-Acting CRT AAG Tom Wheeler, to request DOJ action on alleged vote discrepancies in Chicago, the same topic Mr. Cleveland and Mr. Gore subsequently discussed.[12]  Mr. Wheeler acknowledged that Mr. Cleveland’s complaint fell within CRT’s purview and directed Mr. Gore to assist Mr. Cleveland in Mr. Gore’s capacity as Deputy Assistant Attorney General (DAAG) of CRT.  Specifically, Mr. Wheeler wrote to Mr. Cleveland that his complaint “fall[s] within our voting section,” and added that he was “CC’ing John Gore, my DAAG who oversees voting to follow up.”[13]  Mr. Gore replied to both men by stating that the issue might be more appropriate for the DOJ’s Public Integrity Division, but assured Mr. Cleveland that “we’ll chase it down and figure it out.”[14]  The email exchange suggests that on March 28, 2017, Mr. Gore spoke with Mr. Cleveland on the phone and then emailed White House staff on his behalf.  Mr. Gore’s email to the White House stated that he “spoke with Mr. Cleveland this afternoon,” that “[Mr. Cleveland] would be reaching back out” about the vote discrepancy issue, and also asked “if anyone [at the White House] is interested in discussing this.”[15] 

2.  Relationship with Mr. Cleveland 

Mr. Gore states in his declaration about the May through September emails that Mr. Cleveland was an individual he knew from “outside [his] work for the [Civil Rights] Division.”  While that may be true, it is misleading.  The March 24 to March 28, 2017 emails show that Mr. Gore and Mr. Cleveland interacted through Mr. Gore’s official DOJ email account about this same topic.  Mr. Gore’s declaration to the federal court leaves the clear impression that he and Mr. Cleveland had not spoken about the alleged voting discrepancies in Chicago before May 2017.  In fact, they had, and they had done so in Mr. Gore’s official capacity, with Mr. Gore offering to “chase…down and figure…out” which DOJ component should review the allegations, then elevating the issue to the White House.  This likely explains Mr. Cleveland’s May 11, 2017, email to Mr. Gore’s personal account, where Mr. Cleveland opened by saying:  “[t]hanks for speaking with me a few weeks back about the discrepancies in Chicago’s vote.”[16]

Request for OPR Investigation

Mr. Gore may have violated at least three standards or obligations which applied to his professional conduct:  (1) making a declaration under oath that he knew not to be true; [17] (2) “mak[ing] a false statement of fact or law to a tribunal;”[18] and (3) “engag[ing] in conduct that seriously interferes with the administration of justice.”[19]  The facts at issue were entirely within Mr. Gore’s knowledge and control, specifically the existence of emails and communications involving him during his employment at CRT.  Mr. Gore failed to provide a full accounting of his prior relationship with Mr. Cleveland and related official actions to a federal court, focusing only on the relationship and actions reflected in emails that had been produced in discovery.  That could have been calculated to limit further examination of his personal email.  This came at a time when Mr. Gore’s truthfulness about communications with individuals outside DOJ about official business was being questioned by yet another federal court, and is currently the subject of a sanctions motion against DOJ.    

These facts suggest conduct which falls below the standards for candor and integrity expected of a senior official at the Department of Justice.  As noted above, Mr. Gore’s conduct remains at issue in at least two ongoing lawsuits.[20]  To our knowledge, DOJ attorneys in these lawsuits have not identified the documents disclosed to American Oversight, or otherwise updated relevant court filings.  Even though Mr. Gore has left DOJ, his conduct raises separate and ongoing legal ethical questions for OPR to investigate under its analytical framework.

 

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[1] See State of New York v. U.S. Dep’t of Commerce, No. 18-cv-02921 (S.D.N.Y.); Brennan Center for Justice v. U.S. Dep’t of Justice, No. 17-cv-6335 (S.D.N.Y.).

[2] See U.S. Dep’t of Justice Office of Prof. Resp., Analytical Framework (2005),  https://www.justice.gov/sites/default/files/opr/legacy/2006/03/15/framework.pdf

[3] See Motion for Sanctions, State of New York v. U.S. Dep’t of Commerce, No. 18-cv-02921 (S.D.N.Y. July 16, 2019), ECF No. 635. 

[4] Complaint, Brennan Center for Justice v. U.S. Dep’t of Justice, No. 17-cv-6335 (S.D.N.Y. Aug. 21, 2017), ECF No. 1.

[5] See Exhibit 1.

[6] Ibid.

[7] Brennan Center for Justice v. U.S. Dep’t of Justice, 377 F. Supp. 3d 428, 435 (S.D.N.Y. 2019) (“The record is clear that Acting Assistant Attorney Gore sent and received emails relating to voter fraud . . . on [his] private email account[].  Moreover, Gore was substantially late in forwarding emails from his private account to official accounts, beyond the twenty-day period required by 44 U.S.C. § 2911(a), for example, an email of July 5, 2017 that was not forwarded until September 27, 2017, eighty-four days later”).

[8] Brennan Center for Justice v. U.S. Dep’t of Justice, No. 17-cv-6335 (S.D.N.Y. Jun. 28, 2019), ECF No. 111.

[9] See Exhibit 2.

[10] See Exhibit 2 at 7-9.

[11] Letter from U.S. Dep’t of Justice Civil Right Division’s Freedom of Information/Privacy Acts Branch to American Oversight in response to October 2018 Freedom of Information Act Request (May 23, 2019) (on file with author).

[12] See Exhibit 3.

[13] Ibid.

[14] Id.

[15] See Exhibit 3.

[16] See Exhibit 2.

[17] See 18 U.S.C.A. § 1621 (2019) (describing “perjury generally”). 

[18] Rules of Professional Conduct R. 3.3(a)(1) (D.C. Bar 2019) (Duty of Candor).

[19] Rules of Professional Conduct R. 8.4 (D.C. Bar 2019) (Misconduct).

[20] See State of New York v. U.S. Dep’t of Commerce, No. 18-cv-02921 (S.D.N.Y.); Brennan Center for Justice v. U.S. Dep’t of Justice, No. 17-cv-6335 (S.D.N.Y.).