U.S. Attorney Ron Machen
U.S. Attorney Ron Machen

Mayor Vince Gray might get his wish soon. After Gray said in December that U.S. Attorney Ron Machen should put anything suspicious about the District’s relationship with alleged shadow campaign financier Jeff Thompson “on the table,” Machen and Attorney General Irv Nathan have come to an agreement over attempts to get documents Nathan had said were protected by attorney-client privilege.

Under the agreement, the attorney general will provide Machen’s staff with “all Mayoral documents” related to the $7.5 million District settlement with Thompson’s Medicaid firm, including “any documents sent to or from the Mayor regarding the settlement,” according to a press release from Nathan’s office.

If Machen wants information beyond that, he’ll have to produce “certain confidential evidence” to sway Nathan’s office to release more documents. Nathan’s office is also reserving the right to invoke attorney-client privilege over the documents if they result in litigation.

The deal sounds similar to one proposed by Machen in November, according to letters first obtained by LL through a Freedom of Information request. It’s hard to know how similar it is, though, since Nathan’s office say the full agreement between the two agencies is being kept confidential (LL’s filed new FOIA requests anyway). “Time will tell whether these documents reveal anything other than what they appear on their face to be – the proper government conduct of business concerning a civil settlement of litigation with a city contractor,” Nathan says in his statement, phrasing that’s reminiscent of Machen telling Nathan in November that there are connections between District officials and Thompson’s company “that you likely do not know about.”

Nathan’s press release below:

WASHINGTON, D.C. — District of Columbia Attorney General Irvin B. Nathan announced today that under an agreement reached last week, his office has provided to the U.S. Attorney for the District of Columbia all Mayoral documents relating to a 2011 settlement of a civil case involving D.C. Chartered Health Plan, Inc., including any documents sent to or from the Mayor regarding the settlement. Under the agreement, the U.S. Attorney has agreed not to contend that this disclosure is a waiver of the District’s Attorney-Client privilege or any other applicable District legal privilege, and the District retains its right to assert all applicable privileges in the event of any future litigation.

Attorney General Nathan stated that “the attorney-client privilege has long been a bedrock of this country’s legal system, as recognized by the Supreme Court and our Court of Appeals. The privilege reflects society’s considered judgment that candor and confidentiality within the attorney-client relationship are critical to the rule of law. The privilege extends to federal and, importantly, state and local government decision-makers when they are seeking and obtaining legal advice.”

The Attorney General noted further that the “issue is much larger than this or any one case. It is important that we set a precedent so that future Mayors and agency officials in the District are ensured the benefit of full candor in their communications with their OAG lawyers when they are seeking legal advice as they carry out the people’s business in a lawful manner.”

Attorney General Nathan added: “Time will tell whether these documents reveal anything other than what they appear on their face to be – the proper government conduct of business concerning a civil settlement of litigation with a city contractor. This much, however, is clear now: by upholding the principle of the District’s right to the attorney-client privilege, we have served the District’s long-term interests.”

Before the agreement announced today, OAG, on behalf of the District, already had provided extensive cooperation with the U.S. Attorney’s investigation, including the production of tens of thousands of documents and responses to dozens of inquiries from federal authorities and many witness interviews. Nearly two months ago, OAG had proposed a number of potential compromises to resolve this controversy. The resulting agreement stemmed from these proposals, as both sides recognized that it would be preferable for the public if the current dispute were amicably resolved without resorting to lengthy litigation over the privilege’s application. Under the agreement, for additional requests by the U.S. Attorney’s office for documents that OAG believes is privileged, the federal prosecutors have agreed to show OAG representatives certain confidential evidence related to the requests before OAG makes a further assessment as to whether it will produce those additional requested documents.
Attorney General Nathan said: “I am pleased that in the continued spirit of compromise, and to advance the public interest in a prompt resolution of the Chartered investigation while being faithful to our obligations as the District’s lawyers, we have reached an agreement acceptable to both sides.” He commended the OAG negotiation team, led by Ariel Levinson-Waldman, the Senior Counsel to the Attorney General.

Finally, the Attorney General added that, in accordance with understandings with the U.S. Attorney, the full Agreement is being treated as confidential, and that other than this announcement, the Office of the Attorney General will not have further comment on the Agreement at this time.

Photo by Darrow Montgomery