U.S. Attorney Ron Machen

U.S. Attorney Ron Machen attempted to resolve a document dispute with District Attorney General Irv Nathan by offering to focus his request on Mayor Vince Gray, other Executive Office of the Mayor employees, and the Department of Healthcare Finance, according to letters between Machen and Nathan obtained by LL.

Machen and Nathan have been at an impasse since November over more than 5,000 documents held by the Office of the Attorney General relating to a city settlement over a dental contract with Chartered, the Medicaid firm owned by alleged shadow campaign financier Jeff Thompson. Machen wants the OAG to hand them over, but Nathan claims that documents related to the $7.5 million settlement in 2011 are protected by attorney-client privilege. Last month, Nathan offered to let a judge view the documents and decide whether they were privileged, as a compromise.

In a Nov. 25 letter from Machen to Nathan, the U.S. Attorney makes his own attempt at a compromise. In exchange for holding off for now on internal OAG documents, among other requests, Machen told Nathan he only needed communications involving Gray, any other mayor’s office employees, and the Department of Healthcare Finance.

Responding in a Dec. 5 letter, the most recent obtained by LL through the Freedom of Information Act, Nathan agreed to most of the compromise. Instead of producing communications with the Department of Healthcare Finance, though, Nathan insisted on restricting the request to OAG communications with the agency that mention Gray, Thompson, or other mayoral employees.

But the negotiations still haven’t produced a deal, with spokesmen for the U.S. Attorney’s Office and the OAG both saying that discussions are continuing. A spokesman for Gray referred questions about the negotiations to the attorney general.

The lack of a deal hasn’t convinced Machen to stop seeking the documents. In one letter to Nathan, he hints that the dental contract could tie into the larger investigation into Thompson. “The investigation has identified connections and communications between D.C. Chartered’s agents and District officials that you likely do not know about,” Machen writes. “It also appears that some communications with your office—-both before and after your tenure as Attorney General—-were the direct result of communications between D.C. Chartered’s agents and District officials.”

The two lawyers have also traded barbs in their letters, with Nathan describing Machen’s two-year-old investigation as “prolonged” and his office’s work with a grand jury as going on “quite a while.”

Nathan also suggested that the Justice Department is being hypocritical by claiming attorney-client privilege in an investigation by Congress into the Bureau of Alcohol, Tobacco, and Firearms’ Fast and Furious operation, then asking the OAG to waive its own privilege. “I also predict that the courts would find unpersuasive your ‘privilege for me but not for thee’ argument,” Nathan wrote.

For his part, Machen suggested that the District may have disregarded its attorney-client privilege by providing information about the settlement to reporters. A week after Thompson’s house was first raided by federal agents in March 2012, mayoral spokesman Pedro Ribeiro organized a background meeting for reporters about the settlement, according to a letter from Nathan to Machen. Healthcare Finance director Wayne Turnage, meanwhile, emailed documents related to the settlement to reporters at the Washington Post and Washington Examiner, actions Machen suggested meant the District had waived its attorney-client privilege rights (Nathan disagreed).

Despite their differences, Machen and Nathan write in their letters that they want to figure out together who leaked news of the spat to the media. Writing to Machen a day after the the Post first reported the dispute on Nov. 13, Nathan suggested the leak came from Machen’s office:

As we discussed yesterday, a local reporter called the Mayor’s office and advised that that reporter had been informed that at least one individual in our office opposed the $7.5 million settlement with Chartered in 2011 and that this has led your office to reconsider whether that might have been a quid pro quo for the campaign contributions from Jeffrey Thompson. Of course, only someone connected to your office would know what your office is considering and why. Another reporter called me and reported the same. I was surprised and disappointed…I look forward to hearing what you discover about the origin of these leaks.

Machen responded that Nathan should consider whether an OAG employee was behind the Post story. “Regardless, going forward I hope that our communications will remain confidential,” Machen wrote.

Ron Machen’s Nov. 13 letter to Irv Nathan

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Nathan’s Nov. 14 letter to Machen

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Machen’s Nov. 25 letter to Nathan

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Nathan’s Dec. 5 letter to Machen

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Photo by Darrow Montgomery