Robert Trout Complete Oral History Package (1,388 KB)

ROBERT P. TROUT, ESQUIRE
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
ROBERT P. TROUT, ESQUIRE
Interviews conducted by: Stuart F. Pierson, Esquire
October 7, November 13 and December 22, 2014
February 12, March 25 and May 15, 2015

TABLE OF CONTENTS
Preface ………………………………………………………………………………………………. i
Oral History Agreements
Robert P. Trout, Esquire ……………………………………………………………. iii
Stuart F. Pierson, Esquire …………………………………………………………… v
Oral History Transcript of Interviews
October 7, 2014 ………………………………………………………………………… 1
November 13, 2014 …………………………………………………………………. 31
December 22, 2014 ………………………………………………………………….. 63
February 12, 2015 ……………………………………………………………………. 86
March 25, 2015 ……………………………………………………………………… 119
May 15, 2015 ………………………………………………………………………… 152
Index ……………………………………………………………………………………………. A-1
Table of Cases ………………………………………………………………………………… B-1
Biographical Sketches
Robert P. Trout, Esquire …………………………………………………………. C-1
Stuart F. Pierson, Esquire ……………………………………………………….. C-2
Appendix
Robert P. Trout and Gloria B. Solomon, Trout Cacheris, PLLC, Report of the
Special Counsel to the Special Committee on Investigation of Capital Projects
of the Department of Parks and Recreation (2011). Or see
http://www.dcwatch.com/council18/110311.pdf…………………………………………D-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews
were recorded digitally or on cassette tape, and the interviewee and the interviewer have
been afforded an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 2016 Historical Society of the District of Columbia Circuit.
All rights reserved.

PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia Circuit is
to preserve the recollections of the judges of the Courts of the District of Columbia Circuit and
lawyers, court staff, and others who played important roles in the history of the Circuit. The
Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are
trained by the Society. Before donating the oral history to the Society, both the subject of the
history and the interviewer have had an opportunity to review and edit the transcripts.
Indexed transcripts of the oral histories and related documents are available in the Judges= Library
in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W.,
Washington, D.C., the Manuscript Division of the Library of Congress, and the Library of the
Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on the
Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as
well as electronic versions of the transcripts, are in the custody of the Society.
i

Oral History Agreement of Robert P. Trout
Schedule A
Transcripts resulting from six interviews of Robert P. Trout conducted on the
following dates:
Interview No. and Date Pages of Transcript
#1 October 7, 2014 1-30
#2 November 13, 2014 31-62
#3 December 22, 2014 63-85
#4 February 12, 2015 86-118
#5 March 25, 2015 119-151
#6 May 15, 2015 153-184
The transcripts of the six interviews have been retained by the interviewee and are contained on
one DVD.

Oral History Agreement of Stuart F. Pierson
Schedule A
Voice recordings and transcripts resulting from six interviews of Robert P. Trout
conducted on the following dates:
Description of Media
Interview No. and Date Containing Voice Recordings Pages of Transcript
#1 October 7, 2014 1-30
#2 November 13, 2014 31-62
#3 December 22, 2014 63-85
#4 February 12, 2015 86-118
#5 March 25, 2015 119-151
#6 May 15, 2015 152-184
The transcripts of the six interviews have been retained by the interviewee and are contained on
one DVD.
ORAL HISTORY OF ROBERT P. TROUT
First Interview
October 7, 2014
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The Interviewee is Robert Trout,
and the interviewer is Stuart Pierson. The interview is taking place on October 7, 2014, in
Bob Trout’s office at Dupont Circle in Washington, D.C. This is the first interview.
Stu Pierson: It’s October 7, 2014. We’re at 1350 Connecticut Avenue, the offices of
Trout Cacheris & Janis. And we’re here at the first session of the oral history of the
esteemed Washington lawyer Robert Trout. It’s your nickel.
Bob Trout: I was born in the summer of 1948 in Roanoke, Virginia, part of the baby
boom generation. I was the youngest of three children. My sister Page is two years older,
and my brother Hugh is seven years older. We enjoyed a privileged, upper-middle-class
upbringing. You could say that I was born on third base. My ancestry on both my father’s
and my mother’s side has deep roots in Virginia. My wife, who is originally from New
Jersey, jokes that I am a part of the landed gentry, only without the land. My father was a
prominent surgeon in Roanoke. His father, my grandfather, was also a prominent surgeon
in Roanoke. I come from a family of doctors. My father was the very definition of a nice
person. He was very gentle, a real gentleman. He worked very hard, was on call a lot. While
we almost always had a family dinner together, I never thought of my father as being
omnipresent as I was growing up. We didn’t do sports together, or throw the football or
baseball. He was not a hunter, nor someone who enjoyed fishing; I don’t recall ever going
camping with my father. My mother was the wife of a prominent surgeon in Roanoke. She
was a much more remarkable person than that suggests; the point is, in spite of her
significant talents that would have allowed her to enjoy a successful professional career
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had she chosen it, she lived in a time and a place where the wife of a prominent surgeon
chose not to work outside of the home. Not necessarily because she didn’t want to, but
because there probably would have been talk. Certainly in retrospect, and even when I was
much younger, I had a sense that my mother was very frustrated that she had not pursued
a professional career for herself. She was very smart and very passionate about education.
In that regard, because she did not believe that the public schools in Roanoke were good,
she and her friend of hers decided to start a private day school. They raised the money and
built a school, North Cross, which continues to thrive today, some 50 years after it opened.
Later, again because of her passion for education, she became an assistant dean of
admissions at Hollins College outside of Roanoke. My mother was strict and demanding.
And in keeping with her passion for education, she pushed her children to excel. I was
reasonably bright and did well in school, but she wanted me to be better. I was a slow
reader, so she spent a lot of time both tutoring me and purchasing gimmicks to help teach
me to be a faster reader. I’m not sure I ever became a fast reader, but whatever progress I
made when I was young, I regressed considerably when I went to law school and began
reading cases. I was always good in math, but that wasn’t good enough either, so I received
special tutoring after school in math. Probably the thing that has stayed with me longest is
the tutoring I received in grammar. I thought that was quite valuable, and sounding a bit
like the older generation looking down on the younger, I am amazed at what passes for
acceptable grammar today. So my mother was constantly pushing us academically. And
she was quite strict about what we were allowed and not allowed to do. She, not my father,
was the disciplinarian in our home. I would say that she preferred the company of adults
more than children.
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Stu Pierson: When did you cross that divide?
Bob Trout: When I was 18, after I graduated from high school. That was still the time
that you were old enough to be drafted and to give your life to your country, but you were
not old enough to vote. At 18, I think you could buy 3.2 beer in Virginia, but not 6.4 beer,
at least not without a fake ID. But when I turned 18, my mother all of a sudden started
treating me like an adult. It was almost like a light switch turned off after I graduated from
high school. And we got along great; she was really interested in me, I was interested in
her. If there was some party that she and my father were going to, she wanted to bring me
along. I would go to various events with her, and we’d just hang out in the corner together
and talk. And it was very special. So I saw part of her after I was 18 that I really hadn’t
experienced before then. But before that, I did not find her to be easy. Nurturing was not
the first word that would come to your mind. We had a nurturing presence in our life, but
my mother was not that person. The nurturing piece came from … we referred to them as
maids back then. In the South in the sort of privileged environment in which I grew up,
families had maids who took care of the children.
Stu Pierson: You and I have that in common.
Bob Trout: Yes. And it’s interesting … this woman I just loved her to death. And she
was with us since before I was born, and she died in 1995 at the age of 96. My mother died
of breast cancer in 1971 when I was 23. And so my father was essentially then taken care
of by this woman. She was part of our household.
Stu Pierson: Sure.
Bob Trout: And he took care of her, and she took care of him.
Stu Pierson: What was her name?
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Bob Trout: Her name was Bertha Porter. But my mother, as I say, she was not the easiest
person; she was very demanding. And so she would hire this person, and for whatever
reason, that didn’t work out. And there were a series of hires, and . . .
Stu Pierson: All for that position?
Bob Trout: Yes. And my sister couldn’t keep track of all their names; she was under
two at the time. And so she referred to them as “you.” But she couldn’t pronounce “you,”
so she became . . .
Bob Trout and Stu Pierson (simultaneously): “Oo.”
Bob Trout: Right. And so Oo was this person who was part of my life, and she was the
nurturer. She had very little education, but she was probably the smartest person in the
house. I have a vivid memory that probably best illustrates the difference between my life
growing up with my strict and demanding mother around and my life growing up with
nurturing Oo around. My parents went to Europe for six weeks, which meant the children
were going to be at home with Oo. She was in charge. And I remember I couldn’t wait for
my parents to leave, for it was like a vacation to get away from the hard-edged environment
that my mother presented in our household to the very soft, nurturing environment that Oo
provided. Oo was well known in my parents’ circle. Even when they knew my parents were
not at home, friends of theirs would just stop by our house and hang out in the kitchen and
have a cup of coffee with Oo. And they talked because she was interesting, she had great
common sense, and she was a wonderful storyteller with a great sense of humor. So she
was something of a celebrity in town. But undoubtedly, she experienced a lot of indignity
in the South. She had grown up in West Virginia or New York, and I think had come from
West Virginia. I think she’d had a husband who was a coal miner, maybe died in the coal
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mines. While Virginia was not the Deep South, it was nevertheless part of the South, and
segregation was prevalent. I am sure she experienced indignities that I never saw or knew
about, but there was not a bitter bone in her body. I do seem to remember as a young boy
getting on a bus to go with her to downtown Roanoke and going to the back of the bus.
And I’m sure that a great deal of my political attitudes are rooted in guilt that I feel over
the way she was treated and the way blacks were treated in my native South. Oo continued
to be part of the family, and when my father turned 65, she organized a big birthday party.
She basically threw the party for him. And in addition to his being the center of attention,
she was also the center of attention. And then eventually she couldn’t hear very well, and
she couldn’t see much at all. When she was 91 she came to D.C. and stayed with us and
with my sons. We needed to be careful about where we went, because she was embarrassed
about the fact that she couldn’t see anything. We wanted to make sure that we always went
to some place where she could get a hamburger and just eat with her hands. By that time,
my father had died, and there was no one to take care of Oo as she got older and infirm.
When she could no longer take care of herself, she went to a nursing home. That was not
easy for her and it was not easy on me. I would go back to Roanoke to visit with her a few
times a year, but I suspect I will always feel some guilt that I did not do more for her during
the last few years of her life. When she died, my siblings and I went to her funeral. We
were her survivors, so we made all the arrangements. At the funeral, the minister told a
funny story. He said that he was visiting with Oo some time before, when she was still
living at home. He asked if she had any children, and she replied with a very large smile
that indeed she did. At which time, she pulled out a picture of my siblings and me, three
white children. Everyone had a good laugh. After the minister spoke, I gave a eulogy. I
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was a blubbering mess, but my family members very generously told me that I had done a
great job of honoring Oo. As you can tell, I become very emotional whenever I speak about
her. She was very important to me.
Stu Pierson: Yep.
Bob Trout: After my father died, I then . . .
Stu Pierson: When was that about?
Bob Trout: He died on Valentine’s Day 1990, following a stroke while he was
vacationing in Grand Cayman. In 1974, a couple years after my mother died, my father
remarried. The woman he married, Virginia Lynn, whose husband had died two or three
years earlier, had three children all more or less about the same age as the three of us. I
knew them, but not well. But everyone on both sides immediately embraced their marriage
and the relationship, and we have become just like blood family. So it was a great
relationship, and I think that everybody in the two families would say those two spouses
were happier with each other than they probably were with their prior spouses. So that’s
just been a real joy to have them in our lives. And everybody has children, and they
became—all those children, now cousins—became extremely close. So we’ve got a very
enlarged family, and we get together as often as we can as a great big family. And now
with our generation having grandchildren, it’s just getting bigger and bigger.
Stu Pierson: Together down in Roanoke?
Bob Trout: We gather here and there. When I was growing up near Roanoke, there a
recreational lake called Smith Mountain Lake, a big lake. I think it was around very early
’60s, I drove with my parents about 40 minutes from Roanoke, and there was a staked-out
piece of overgrown property. My father’s surgical clinic had bought a piece of property to
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build a house for the benefit of all of the doctors to share. And we looked down at this river
way down, barely visible, and my father said, “They’re building a dam near that mountain
in the distance, and so this is going to be a lake in a few years.” And every summer I would
go back, and you’d see the lake get bigger and bigger, coming into form. And when it was
finally full of water—this would have been early to mid-1960s—my sister and I would
leave our summer jobs each day at 5:00 p.m., drive 40 minutes to the lake, and go
waterskiing for a couple hours.
Stu Pierson: Is it a water-powered dam?
Bob Trout: Yes.
Stu Pierson: Is it a hydro dam?
Bob Trout: Hydro dam. And it’s gotten more and more popular, with big, very nice,
sometimes opulent, vacation homes now. In the 1960’s, when the lake was not nearly as
developed as it is now, if you’d go water skiing on any given day, even on the weekends,
it would be like skiing on glass. And then in the 1970’s and 1980’s, the weekends got a
little bit crowded and there would be a lot of chop in the main channel from all the boat
traffic; so it would be during the week you could find it skiing on glass, but the weekends
were not so much. And then during the 1990’s, even during the week, it was pretty
crowded, and you’d have to find some coves to find the glass where you could go skiing.
And now, there’s no glass.
Stu Pierson: Can’t be done.
Bob Trout: Can’t be done. It’s just way too crowded.
Stu Pierson: What are the dimensions of the lake?
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Bob Trout: It’s about 500 miles of shoreline; I think it’s the largest lake in Virginia. It’s
probably about 20 miles long. It was a very nice place. Still is, I’m sure. I have two sons,
Carter and Philip. Carter was born in 1978, and Philip in 1980. And from the year they
were born, each year we would spend a week at Smith Mountain Lake with this enlarged
family, with all of their cousins. It was the highlight of everybody’s year. That’s how they
forged this great relationship. I think it was very valuable for my children, and for all the
children, to experience that intense level of family. And one of the interesting things is they
learned from their older cousins how to be. So somebody a little bit younger might think
that something was cool and the way to be, and maybe their older cousins would mentor
them and let them know, “Nah, that’s not so cool.” And so it helped them grow up and
mature.
Stu Pierson: Effective socialization . . .
Bob Trout: Yes.
Stu Pierson: . . . by a larger family.
Bob Trout: Yes, exactly. So that was part of it, the experience that I had with this
enlarged family. Spending time at Smith Mountain Lake was one of my wonderful
memories, both growing up and then watching my two sons grow up, also enjoying time
at the lake. Events from the distant past become vague, but I have one memory that is as
vivid today as it was when I experienced it many years ago. It’s a funny story, and more
importantly, it probably served as a developmental tipping point, a lesson that however
painful the truth may be, it beats the alternative by a wide margin. It was soon after I
became a Boy Scout, which I did not so much because it appealed to my interests but more
because it was what you did at that age. The first badge you get by just showing up, and it
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didn’t take much more than that to qualify for the Second Class badge. I had qualified and
it was now time for me to receive my Second Class badge. Looming ahead was the First
Class badge, which required that you learn the Morse Code. I was not looking forward to
that, but as I say, getting the Second Class was not heavy lifting. I showed up for the scout
meeting. There I learned that the Scoutmaster and the Assistant Scoutmaster were
interviewing each of us before confirming we would receive the Second Class badge. I
went into the room, sat down alone at a table, while the Scoutmaster and the Assistant
Scoutmaster asked me a few questions. “We have just one more question for you, Bob,”
the Scoutmaster said. “Have you done your good deed for the day?” Of course I panicked.
“Yes,” I said, praying that they would not ask me what it was. “What was it?” they asked.
Of course the only thing that came to my mind was the Boy Scout trope about helping a
little old lady across the street. And so before I could stop myself, the words came out of
my mouth: “I helped a little old lady across the street.” Well, if the earth had opened up at
that moment and swallowed me whole, I would have been happier than I was at that
moment. The Scoutmaster and the Assistant Scoutmaster showed remarkable self-control
in not breaking up into howls of laughter, and they declared me fit to receive the Second
Class badge. As for me, I was so completely ashamed and embarrassed by this obvious lie,
I dropped out of the Scouts, never going back to another meeting. As I say, it has been a
vivid memory for me, an early but enduring lesson that the truth, however painful, is always
better than a lie. Better to learn that lesson early, as I did, rather than later when the price
can be very dear. That memory dates back well before high school.
Stu Pierson: Did you graduate from North Cross?
Bob Trout: No, I didn’t go to North Cross. I went to Episcopal High School.
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Stu Pierson: Oh, did you?
Bob Trout: Yes, I think my grandfather went there. My father went there.
Stu Pierson: So you were a boarder?
Bob Trout: Yes; everyone boards there. I went to the public schools all through the
eighth grade. When I went to Episcopal in the ninth grade, I was smallish. It was all boys,
and they were pretty much all from the South. The school has changed a lot. It’s now coed;
it now has a lot of international students. But when I was there, everybody was pretty much
like everybody else. And socially I think it was useful for me. In my home, I don’t think
that I was given a very long leash, socially. As I said, my mother was quite strict. So I
would have been the kid who had to be in earlier than other kids and who would not have
been able to do all the things that my classmates were allowed to do. I didn’t have as long
a leash as some of my friends and contemporaries. And that would have been embarrassing,
and it would have been awkward, and I would have not liked that at all. At Episcopal we
were all locked down pretty hard—everybody was locked down pretty hard. And so, as a
result, it was a comfortable place because the rules were the same . . .
Stu Pierson: Everybody had the same leash.
Bob Trout: Yes, exactly. And, while I didn’t get to go here or there or be out at this hour
or that hour, well, it was the same rules for everybody, and so there was a certain comfort
in that. Academically, I did well, not great. Still—I’ve wondered about the importance of
Latin.
Stu Pierson: You are now, or you were then?
Bob Trout: Yes.
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Stu Pierson: I’m one of those who believes it’s one of the reasons I can speak the
language.
Bob Trout: Right, and there are a lot of people who think that. I was at a party one time.
This was years ago. And I asked the question, “How many people think that taking Latin
was really valuable to them?” And there were several people who thought it was, couldn’t
have been more important. And I was sitting there wondering, what did I get out of Latin?
And I’m not sure I, even today, can think of it. And so, there are people who, like my sons,
studied a modern language, like Spanish, because it seemed to have more practical
application. I don’t know how good their Spanish is today, since I don’t know that they use
it on a regular basis.
Stu Pierson: Did they go to EHS?
Bob Trout: No, they went to Lawrenceville.
Stu Pierson: There was Latin at Lawrenceville, too.
Bob Trout: Yes, there was. But I didn’t push them to take Latin. When I was in high
school and college, it was pretty much core curriculum. The first couple of years there were
certain things you just need to take, because that’s what an educated person knows. Not so
much anymore. Today the schools give all this freedom to take whatever the students want,
and they haven’t a clue as to what they really need, and so they take a lot of courses that
probably don’t help them. But, returning to my sons’ decision to go to Lawrenceville, I
was of two minds. I thought that public education is pretty important, including the
diversity that you get. When I went to Episcopal, as I say, everybody was pretty much the
same. Everybody had the same history. And it was . . .
Stu Pierson: Upper middle class white guys . . .
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Bob Trout and Stu Pierson (simultaneously): From the South.
Bob Trout: Right. And I think it was when I was a senior, the headmaster announced at
an assembly that Episcopal would be admitting qualified—I don’t know whether he used
the word “Negroes” or “Blacks” or what, but Episcopal was going to be accepting Black
students. And I think everybody looked around and thought to themselves, “Yes, I guess
that’s right. I guess we don’t have any Blacks here.”
Stu Pierson: 1966?
Bob Trout: It was 1966. And, I don’t think anybody thought anything of it as being
remarkable that the school would start accepting Black students, at least I didn’t. What now
seems so remarkable is that there weren’t Black students before and that no one thought
that was remarkable. Today Episcopal seems like a very diverse community by
comparison. When I was there, it clearly was not. The students were alike and they tended
to make similar choices. For example, a lot of the graduates were going to UVA for college.
My father had gone to Virginia. My grandfather had gone to Virginia. My brother went to
W&L, and so I ended up going to W&L. I applied to Williams and did not get in. I suppose
I had become comfortable in a small homogeneous environment, so I applied to small
colleges. W&L was simply a larger version at the time of . . .
Stu Pierson: EHS?
Bob Trout: EHS.
Stu Pierson: Yes.
Bob Trout: As it happens, at the time Virginia was really a just larger version of W&L,
and not that much larger, because it was all male and had a similar sort of student body.
Stu Pierson: Sure.
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Bob Trout: Maybe a little more diverse, but not that much. Both schools are obviously
much more diverse now. I loved the experience of the small school experience, the small
classes and the personal attention from the professors, who were very good teachers. Today
students take whatever courses suit their fancy. When I was in school, the first year, maybe
two were filled with core requirements. Not that I necessarily thought so at the time, but I
think there is a lot of value to that. Students are not only learning what their courses teach
them, they are learning what interests them, where their passions lie, and that means being
exposed to different subjects that they might not otherwise pick on their own. I came from
a family of doctors, but one semester of chemistry in college convinced me that maybe
medical school was not a good choice for me. Still I had another science course to fulfill,
and one of the most vivid memories I have from a single class in college was in a science
course I was taking in 1967, maybe early 1968. W&L, at least then, did not have a course
in environmental sciences. Certainly not the sort of basic course I was taking. I believe I
was taking geology, and one day our professor gave a lecture about the increasing levels
of CO2 in the atmosphere, how it was warming up the climate, and how the sea levels
would be rising. I was absolutely blown away. Needless to say, in 1967 or early 1968,
global warming was not a topic that folks were talking about. That same semester I was
taking a public speaking course, and one of our assignments was to give an expository
speech, in other words a speech explaining something. So I gave a speech warning about
global warming, this in 1967 or the first semester in 1968. Needless to say, I did not need
any persuading when the politicians, in the past 10 years or so, spoke about the dangers of
global warming. For me, this was 40-year-old news. So there was a great deal I loved about
W&L and benefited from what it had to offer. But I do think that I missed the diversity in
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the student body, and I think there was something about that experience—and something
about Episcopal—that seemed slightly off for me, not a perfect fit in retrospect. When I
was there, I couldn’t put my finger on it. But it seemed a little bit off for me. I was not quite
as comfortable and didn’t feel quite like I was in my sweet spot as I thought I might. I had
a wonderful relationship with an economics professor at W&L, John Gunn; I took every
course I could get from him. He was a wonderful mentor. And the other really strong
relationship from college was one of my roommates, Tom McJunkin. He and I continued
to have a very strong personal relationship until he died a couple of years ago from cancer.
Other than that, I didn’t leave W&L with the really strong and enduring friendships that I
see that my sons, who both went to Virginia, have maintained from their college
experience. As I was finishing college, I had applied for a Fulbright Scholarship for the
next year; and this was during the Vietnam War.
Stu Pierson: Where are we now? We’re in 19…?
Bob Trout: We’re in 1970. In 1968, I tried to get into the Navy Reserve, which would
have meant that I would go to a facility outside of Staunton, Virginia one weekend a month
and then there would be a period during the summer that you would have things you had
to do.
Stu Pierson: Like training?
Bob Trout: I was trying to get into the Navy Reserve, but I failed the physical, which
came out of the blue to me. I had apparently a high systolic blood pressure. My diastolic
was low. That’s the second number which is the number the doctors seem to care about the
most, but the Navy had a cutoff for the systolic or the first number, and mine exceeded that
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cutoff. I was nervous about the fact that, yes, the Navy Reserve is going to kick me out,
but the draft . . . they’re not going to be quite so fastidious.
Stu Pierson: I know the experience.
Bob Trout: Yes. So I applied for a Fulbright Scholarship, which I think probably would
have given me a deferral . . .
Stu Pierson: Maybe.
Bob Trout: Maybe, I’m not sure. And I was led to believe that I was going to get it. I
was an alternate, but I was led to believe that if history was any guide, there would be
enough people that would have done something else that I was going to make the cut. I had
applied to law schools just as a backup because I couldn’t think of anything else that I
wanted to do.
Stu Pierson: Certainly not the draft.
Bob Trout: Well, there was that, but as it turns out, towards the end of my senior year,
we had the first draft lottery. There was a lot of drama surrounding the first draft lottery,
which was broadcast nationally. I couldn’t decide whether to tune in, which would have
been stressful, or just get the news the next day. I went back and forth and finally decided
to tune in while the lottery was in process. And three numbers after I turned on the radio,
my birthday was announced. I think I was 98 in the draft lottery. As it happened, they were
running through about 30 days a month. And somebody woke up and said, well, this isn’t
working. We’re going to basically run through the entire year, so what is the point of having
a lottery. And so I think they did something to slow it down. But for at least the first three
months, it was 30 days a month, so number 98 in the lottery was definitely going to be
drafted. And in due course, I received a notice to report for my draft physical. I went for
16
my draft physical, and to my utter surprise, I flunked the draft physical, too. When the draft
was no longer in my future, I was still waiting to learn whether I was going to be going to
. . .
Stu Pierson: Go to Fulbright?
Bob Trout: Yes, go on the Fulbright. Now one of the problems is that I would be going
to Lausanne, Switzerland if I got this, so I would have to know French. I had taken French
in college, but fluent I was not. So I was thinking I’ve got to be signing up for a Berlitz
course, and I kept waiting to be told, “Okay, you’re in,” because I was going to need to
take this Berlitz course pretty soon; I can’t put that off much longer. Long story short, I
didn’t make the cut. I didn’t get the Fulbright. And I didn’t do the Berlitz course. And so I
started law school—at Virginia. Looking back on it, I had actually worked pretty hard in
college and had done reasonably well. But I think I had burned out academically, and so I
went to law school really because I couldn’t think of anything else to do. I probably
approached law school with the same level of energy. I didn’t think it was all that hard to
do okay in law school, but I didn’t work that hard, and while I did fine, I did not excel. I
was on one of the minor law reviews, but not on The Law Review. I think in retrospect, I
got lucky because when I found myself pursuing litigation, I ended up doing something
that was well suited for my skillset and for my natural aptitudes and abilities. But it was
dumb luck, I think. And I definitely think I probably should have taken some time off and
done other things.
Stu Pierson: Before law school?
17
Bob Trout: Before law school. And I’ve actually wondered whether one of the things
that would have been good to have done would have been military service. Now, I probably
wouldn’t have opted for . . .
Stu Pierson: The jungle?
Bob Trout: The jungle. But I think that some of the discipline that you get in the military
would have been useful. In the military, you are trained to put one foot in front of the other
and charge ahead, and I think that there is probably some value in that. I think that it’s
important to nurture the creativity, the imagination. At least stereotypically, you think that
some of that gets suppressed in a military environment. I don’t know whether that is true
or not. So, I don’t know, it’s a mixed bag. But I’ve often thought about whether a couple
of years in the military might not have been . . .
Stu Pierson: Bad for you?
Bob Trout: Yes, or good for me. But in any event, some experience two or three years
between college and law school would have probably served me better than going to law
school right out of college because I was burned out academically, I think, by the time I
got to law school. One important experience I had while I was in school was living in Los
Angeles. During the summer while I was in college I went to Los Angeles because my
brother was in training there. He was a doctor at UCLA, and so I went out in ’68, got a
summer job, and stayed with my brother who was single at the time. We hung out in Los
Angeles, spent a lot of time in Westwood. UCLA is just an amazing university, beautiful
and big. I don’t know that I thought about it at the time, but looking back on it, I wonder
whether that very enriched diversity might not have been something valuable to have had.
After law school, or during law school, after my first year, I went to Los Angeles, got a job
18
in a law firm. There was a young partner in the Lillick McHose firm, Pam Rymer, whom I
got to know. My brother was a friend of hers, and I worked with her.
Stu Pierson: What kind of work did she do?
Bob Trout: She did antitrust work. And there was a more senior partner that she worked
with on antitrust cases. And so I was reviewing documents for the client. She was just a
great and generous mentor, and I ended up staying in touch with her. She left the law firm
with this other partner, and they set up their own firm, Toy & Rymer in Los Angeles. She
was fairly politically active in Republican circles, in addition to being a great lawyer, and
so President Reagan nominated her to be a judge in the Central District of California, where
she sat for several years. Reagan then nominated her to the Ninth Circuit. She didn’t get
confirmed then because Reagan was a lame duck, but she was re-nominated by President
George H. W. Bush, and she served on the Ninth Circuit. She died of cancer about three or
four years ago. I stayed in touch with her and last saw her in 2006-2007. I was very fond
of her, and she was very helpful to me when I was trying to figure out a career path. And
so after my second year, I returned to Los Angeles to work for a law firm for the summer.
After my second year, classmates scattered hither and yon for summer clerkships, almost
none to D.C. But when it came time to take a permanent job after graduation, we had a
tremendous number in our class come to D.C. Myself included.
Stu Pierson: And that would have been 1973?
Bob Trout: Yes, 1973. And I started at the Department of Justice in the Honors
Program.
Stu Pierson: In which division?
Bob Trout: In the Criminal Division.
19
Stu Pierson: Who was the head of the Criminal Division?
Bob Trout: Henry Peterson. Henry was head of the Criminal Division. I had graduated
and took the Virginia Bar. The Virginia Bar was, I thought, ridiculously easy. I studied
very hard for it, but it was the only exam that I can remember taking, probably since high
school, where I finished the exam early. I went back over my answers, I went back over
my answers again, and I left with about half of the allotted time still left. After the bar, I
went to Europe with my wife for two and a half months. I met my wife when I was in high
school. She is actually my third cousin. She was from Charlotte, and she went to St.
Catherine’s. Her name is Taisie Berkeley.
Stu Pierson: St. Catherine’s is just north of Richmond?
Bob Trout: It’s actually right in the middle of Richmond. And she was going to be my
date for Finals at Episcopal, which was our equivalent of the prom. It’s after all the exams,
and it’s the big dance on campus, and I think it was two nights of partying. You’ve finished
your exams. You’re completely free. Life is great. So she was going to be coming to Finals
sort of as a blind date. That spring I didn’t know who I was going to invite to Finals—
which was a big deal. And so I kept putting it off, and putting it off. And I didn’t have
anybody in mind, so I think my parents, who knew her parents—they were originally from
Roanoke before her father went to practice medicine in Charlotte—said, “Why don’t you
invite Taisie Berkeley.” And I kept putting it off, putting it off, putting it off. And I
happened to be in Richmond for a tennis tournament one weekend in the spring, and I heard
someone say “Taisie.” We were playing St. Christopher’s in tennis, and St. Catherine’s is
their sister school. There are not a lot of girls named Taisie. So I looked and I saw this girl
who seemed to be responding, and I was thinking, well, that must be Taisie. And then I
20
decided, well, if that’s Taisie, maybe I’ll put this off and see about somebody else. And so
another week goes by, I was thinking I’m not getting any closer. I’ll just go ahead and
invite Taisie. Well, it turned out somebody else on our tennis team was dating her
roommate. And so on Sunday morning, he said to me, she is going to be in church that the
students at Episcopal attended each Sunday. The reason that Taisie and her roommate were
at our church that day is that the St. Catherine’s choir was singing with our choir. And my
friend told me that Taisie knew that I was going to invite her to Finals. And she was going
to accept. And so I thought, this is not going to be heavy lifting. I had in mind this other
face that I had seen the week before in Richmond. But when I arrived at church and looked
at the girls from St. Catherine’s, standing next to the person whom I knew to be dating my
friend was just the most stunningly beautiful girl I could remember seeing. That was Taisie.
So I just hit the jackpot because it was a completely different person from the girl I had
seen in Richmond. And so, I was thinking, this is as good as it gets. I’m going to be going
to Finals with her. Unfortunately, about three days before Finals, her father dropped dead
of a heart attack, so she did not come to Finals. We ended up getting together during the
summer at some point, and then we dated while she went to Hollins and I was at W&L.
And we dated all the way through college. And then there were fits and starts and pauses
and whatnot over the next couple of years, but we were married in 1972. So after the Bar,
we went to Europe for three months. And when I got back, I was probably the last person
to show up for their job at the Department of Justice, so I was assigned—it’s not like I had
any choice—to a particular section of the Criminal Division. It was called the Government
Regulation Section. And it was a bit of a dumping ground for every statute or enforcement
activity that no other section wanted. And so, for example, one of the things that we did
21
was immigration. We weren’t immigration or INS lawyers, we didn’t do the INS cases, but
we did the petitions for review from the Board of Immigration Appeals to the various
Courts of Appeals around the country. And so I arrived in early October 1973, and in early
December, two months later, I argued my very first case in the Fifth Circuit in New
Orleans. It was an immigration case that somebody else had briefed and I was now arguing.
So that was pretty cool.
Stu Pierson: Do you remember who your panel was?
Bob Trout: I don’t remember who was on that panel. But I remember that I had
Thornberry on a panel, I had Wisdom on a panel, and I had Goldberg on a panel when I
was doing these cases. In the course of the two years that I was there, I had about 10 oral
arguments and 16 briefs that I wrote in the Courts of Appeals all around the country. One
of the other areas that none of the other sections wanted was obscenity cases. The Supreme
Court had just handed down an obscenity case that moved the bar a little bit away from
utterly without redeeming social value to a little bit more relaxed standard for what the
government had to prove. I didn’t really have much interest in prosecuting these cases. But
I will say this, if you were at the Department of Justice at that time, it was probably the
only thing that allowed you to actually try a case because all the other sections were just
pushing paper for the U.S. Attorney’s Offices. Even the Fraud Section was not trying cases
back then.
Stu Pierson: Wonder whether it should be trying them these days?
Bob Trout: No comment. In any event, I arrived and two weeks later Spiro Agnew
resigned and entered a nolo plea to tax evasion. And the DOJ lawyers assembled in the
Great Hall of Justice in the Justice Department Building, and Elliott Richardson was there
22
with George Beall, the then-U.S. Attorney from Maryland and the three Assistant U.S.
Attorneys, Barney Skolnik, Timmy Baker, and Ron Liebman, who had handled the
investigation.
Stu Pierson: I think I remember Skolnik.
Bob Trout: Yes. He was a terrific lawyer. Quirky but very good. And there we were in
the Great Hall, celebrating the rule of law, that no one is above the law. And the integrity
of the Department of Justice and the fact that it forged ahead and took down . . .
Stu Pierson: The Vice President.
Bob Trout: The Vice President. We just left there so ebullient and full of ourselves and
how important we were in the firmament, and it was a very cool thing. And two weeks
later, we were back in the Great Hall, and Elliott Richardson gave a speech with the Seal
of Justice removed from the podium because he was invited by then-Acting Attorney
General Robert Bork to address the troops on the Monday following the Saturday Night
Massacre. And as high as we were two weeks before, we were low on that day as we were
listening to Elliot Richardson give us a pep talk about going forward and life would go on
and this would be just fine. He wanted Robert Bork to have all of our support. So that was
my immediate experience in the Department, and then I got down to doing what I was
supposed to do, which was handle the appeals from the Board of Immigration appeals, and
then eventually I ended up trying a total of two or three obscenity cases.
Stu Pierson: Here?
Bob Trout: In Florida. It was not dissimilar to what goes on today in that the postal
inspectors figure out where they want to try the case, and they order the porn to be mailed
to them in a particular venue, wherever they wanted to try the case; in this case, it was in
23
Orlando. And so it is your typical setup that they still do when they want to manufacture
venue and create an opportunity for someone to commit a crime. I prosecuted the case. I
certainly appreciated the public policy questions about whether that’s the way the
government ought to be spending its resources. But we were going to spend the resources—
the section chief was very, very aggressive on wanting to prosecute obscenity cases—and
I wanted to try cases. And so I tried two or three obscenity cases.
Stu Pierson: All to verdict?
Bob Trout: Yes. All to verdict. All convictions. And I was there with the postal
inspector. I had nobody else there with me, and I was trying to figure out how to do it as I
went along. George Young, who was then the Chief Judge of the Middle District of Florida,
for whom I believe the federal courthouse in Orlando is now named, was just very pleasant.
He was a good judge, and patient—he had to be for someone who was trying his first case.
And the defense attorney, I think in both of them, was an attorney by the name of Joel
Hirschhorn, who is, I think, the nephew of the Hirschhorn for whom the sculpture museum
is named.
Stu Pierson: Oh, really?
Bob Trout: I think. And he was a very good lawyer and a very nice guy. We got along
fine. He was much more experienced than I was, and I was learning how to be a lawyer in
a contested case. He couldn’t have been more generous and gracious in his dealings with
me. We got along just fine and periodically, we’ll email each other back and forth. So that
was what I did in the Department of Justice.
Stu Pierson: Immigration and porno cases.
24
Bob Trout: Right. But I realized, where I needed to be was in the U.S. Attorney’s
Office. And I applied in Los Angeles and I had gotten to know the Assistants in Orlando,
so I applied there. I think they were just waiting for a slot to open. And I applied to
Baltimore because I was just so taken by what the Baltimore office was doing. At the time,
following on the Agnew investigation, they had a big investigation that they were carrying
on into Mandel. And so I ended up getting a job with the U.S. Attorney’s office in
Maryland.
Stu Pierson: Did you have children by this time?
Bob Trout: No. This was 1975. And at the time, I knew that being an Assistant U.S.
Attorney was the best job. I had figured that out. But it was a well-kept secret in the
industry, I think. You know, people were still coming to go to the big firms and make the
money. When I started, I think I made $13,500.
Stu Pierson: Not much more than I was making.
Bob Trout: And the big firm lawyers were starting at $15,000. Those days are long over,
when there is just that little disparity.
Stu Pierson: It wasn’t little then.
Bob Trout: No. Well, that’s right. So I applied in Baltimore. They just had one district
to cover the entire state. Jervis Finney was the U.S. Attorney. He had succeeded George
Beall. I didn’t really know this at the time, and I don’t know that he knew it at the time, but
Jervis Finney comes from a long line of Baltimore doctors, and I come from a long line of
. . .
Stu Pierson: Of Roanoke doctors.
25
Bob Trout: Exactly. And, it is basically a half-generation apart. I could be mistaken, but
I believe the history was that Jervis’s grandfather mentored my grandfather, who mentored
Jervis’s father, who mentored my father. All at Johns Hopkins. They all went to Hopkins
to medical school. Jervis ended up being like the black sheep in the family. He became a
lawyer. And I was the black sheep in my family. I became a lawyer. I didn’t learn about
my family’s history with Jervis Finney’s family until after I already had the job, and for all
I know, Jervis doesn’t know it to this day, the irony that he ended up essentially carrying
on this mentoring role . . .
Stu Pierson: In a different profession.
Bob Trout: In a different profession. So he hired me, and at the time I was handling an
interesting case. As I have reflected on it, this case was a lesson in reality. It’s a fun
anecdote. I had handled a case in the Third Circuit—Board of Immigration Appeals petition
for review to the Third Circuit. And I thought it was a pretty cut and dry sort of case. Pretty
easy. In some of these cases, you write the brief, there is a per curium decision that comes
out, there is no oral argument. So in this seemingly easy case in the Third Circuit, I wrote
the brief; I thought I had it figured out. There was a certain logic, a certain common sense
to the government’s position. There was a little bit of a problem in that there was some
dicta in a Supreme Court case that I had to work around. But it was clearly dicta, and it
was somewhat old, and it just didn‘t seem that much of a problem. And I was expecting a
per curium decision without oral argument. But they scheduled it for oral argument, and so
up I went for oral argument.
Stu Pierson: Which circuit are we in now?
Bob Trout: We’re in the Third.
26
Stu Pierson: We’re in Philly?
Bob Trout: In Philly. So Taisie’s brother, older brother, Al Berkeley, was married to
the daughter of one of the Third Circuit judges. In other words, the father-in-law of my
brother-in-law was on the Third Circuit. At my brother-in-law’s wedding, I had met the
judge, spent maybe two minutes in conversation with him. Al Berkeley was always looking
to help people. Still is. That is just part of his nature. And so when I was in law school, he
talked to his father-in-law, and one thing leading to another, he had arranged for me to have
an interview with a senior judge on the Third Circuit for a clerkship. And it was probably
a courtesy interview. I had an interview, but I certainly didn’t feel like I had knocked it out
of the park.
Stu Pierson: Third year of law school?
Bob Trout: Yes. And I didn’t get the clerkship.
Stu Pierson: So this is three or four years on?
Bob Trout: Yes.
Stu Pierson: That you’re right here in this case?
Bob Trout: This would have been in 1975, and two years or maybe three years before
that, I had interviewed. So with that as background, I showed up in Philadelphia.
Stu Pierson: So they don’t send you the panel before?
Bob Trout: No. So I showed up in Philadelphia and the senior active judge sitting in the
center is the father-in-law of my brother-in-law. There was another active judge there and
seated to the right of the father-in-law of my brother-in-law was the judge—the senior
judge—with whom I had interviewed. So I got up and was arguing this case that I’m
27
surprised they were even having oral argument about. And I was getting hammered by the
youngest, the most junior judge on the panel, Judge Aldisert.
Stu Pierson: The one who doesn’t know you?
Bob Trout: Yes. And I was getting hammered. And I came back and I said to myself,
and then to my colleagues, we’re going to lose this case. I can’t believe it. We’re going to
lose this case. And sure enough, the opinion came down and we lost. But the father-in-law
of my brother-in-law has written a dissent. And the dissent followed the path that I had
charted. So we looked at the way the majority wrote this, and the immigration lawyers were
going to see this huge opportunity to just bog down the administrative process.
Stu Pierson: The entire system?
Bob Trout: Yes. In order to get en banc review, you had to get the permission of the
Solicitor General. So I wrote up a . . .
Stu Pierson: A memo?
Bob Trout: A memo. A memo, which is referred to as an SG memo, and it went up
through the process and finally found its way to the SG.
Stu Pierson: Who was the SG then?
Bob Trout: Robert Bork. And . . .
Stu Pierson: Yes.
Bob Trout: And so I wrote an SG memo asking for permission to go en banc.
Stu Pierson: Because bad things will happen.
Bob Trout: Bad things will happen. And he granted the permission. So I went back to
the drawing board and I filed a different brief. I was into the legislative history—it was
really dense and into the weeds. It was just a different take.
28
Stu Pierson: Does the SJ have to approve the brief?
Bob Trout: I don’t think so. And the Third Circuit granted the petition. I was pretty
proud of that because it’s not the easiest thing to get a Court of Appeals to hear a case en
banc. They were going to hear argument. It was now September 1975. I had gotten my job
in . . .
Stu Pierson: Baltimore.
Bob Trout: Baltimore. And I was about to start work in the U.S. Attorney’s Office in
Baltimore. But clearly they would bring me back as a Special to argue this in the Third
Circuit. I was at home one night and the phone rang. It was my brother-in-law, who said,
“I was talking to my father-in-law, who said if he sits on this panel, the other judge is going
to make a stink and insist that he recuse himself.” And so talking to my brother-in-law, I
quickly came to the obvious point: why lose a vote, or potentially a vote, in this case. If I
had spent two minutes of social time with this judge—the father-in-law of my brother-inlaw—that was probably a lot. I suppose you could say, “Yes, well he promoted me to this
other judge as someone to be interviewed.” But I regarded it as borderline frivolous. After
all, my name was all over the brief the first time. It’s not like he said, you can’t sit as a
member of the panel. Anyway, so . . .
Stu Pierson: So what did you do?
Bob Trout: Well, without telling anyone about the call with my brother-in-law, I said
I’m going to be an Assistant U.S. Attorney. Somebody else is going to need to argue this
case. And, sure enough, somebody else argued the case, and the government lost again.
This time, I think there were like three votes with the dissent—again, the father-in-law of
29
my brother-in-law wrote the dissent. Now there was no split in the circuits, but for all the
reasons that Bork and the Solicitor General’s office said . . .
Stu Pierson: We got to go.
Bob Trout: Yes. He said we’ve got to petition for cert. The Third Circuit, sitting en
banc, had issued its decision sometime in 1976. And so the government petitioned for
certiorari, and in December of 1976, the Supreme Court granted cert. and simultaneously
without oral argument . . .
Stu Pierson: Summarily reverses.
Bob Trout: Yes, reverses unanimously. Remember, Thurgood Marshall was on the
Court. William Brennan was on the court. These are Justices not known to simply fall in
line with the government’s position in cases. Obviously, a very, very easy case for the
Supreme Court. So it just so happened, within a month of this, I was at some sort of family
event and the father-in-law of my brother-in-law was there and we had, by a factor of five
probably, a greater and longer engagement than we had ever had before. He was giddy with
excitement over this because, again, in the per curiam decision, the Supreme Court quoted
liberally from his dissent in the Third Circuit. He just thought this was the greatest thing.
He was so excited about this victory and complimentary about me. And I said to him,
“Well, you are entitled to be excited about this, but you’ve got to remember that I’m the
idiot who could not even persuade a majority of the Third Circuit of something that was so
self-evident that the Supreme Court could unanimously reverse without oral argument. We
both laughed. He was very gracious.
Stu Pierson: What’s his name?
30
Bob Trout: His name was Frank Van Dusen. It was interesting because I thought that
Judge Van Dusen, maybe once a week, probably once a month, certainly several times a
year, had advocates or attorneys appearing in front of him with whom he has some personal
and social relationship that was greater than what he had with me. And, as I say, it is not
like the other judge complained when it was obvious that I was on the brief and I was going
to be coming to argue the case when they set it down for argument. So I viewed it as a
lesson in reality, in that it seemed this had not so much to do with judicial propriety, and a
great deal more to do with vote counting. And that was a lesson for me.
[END OF FIRST SESSION]

31
ORAL HISTORY OF ROBERT P. TROUT
Second Interview
November 13, 2014
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The Interviewee is Robert Trout,
and the interviewer is Stuart Pierson. The interview is taking place on November 13, 2014,
in Bob Trout’s office at Dupont Circle in Washington, D.C. This is the second interview.
Stu Pierson: We are here at 1350 Connecticut Avenue, Washington, D.C. Today is
November 13, 2014. Stuart Pierson’s voice here and Bob Trout across the table. This is our
second session in the life and times and remembrances of Bob Trout. And, when we last
left off, you had finished the rendition of the Supreme Court’s summary reversal in the
case out of the Third Circuit just as you were going off to the U.S. Attorney’s Office in
Baltimore.
Bob Trout: I had come to D.C. the way I think a lot of people came to D.C., which is
go enjoy the big city for two or three years and then see what happens. And you end up
maybe settling down someplace else. And if you were to pick a city where you were
probably least likely to settle down, it might be D.C. At that time, anyway. It was . . .
Stu Pierson: 1976, 1975?
Bob Trout: Well, I arrived in D.C. in the fall of 1973. Taisie, my wife at the time, and I
traveled in Europe for two or three months after I took the bar, and so I arrived at Justice
in early October of 1973. In early October 1975, I left D.C. to go to the U.S. Attorney’s
Office. I actually left Main Justice to go to the U.S. Attorney’s Office in Baltimore. But I
actually didn’t leave D.C. at that time.
Stu Pierson: How did you land the job in Baltimore?
32
Bob Trout: Well, when I was at Justice, it didn’t take me long to figure out that the
action was in the U.S. Attorney’s Office. I think a lot of that has changed now where the
lawyers at Main Justice can get some good substantive experience and training, not just
pushing paper but actually doing things. But back in the early to mid-’70s, and presumably
well beyond that, I think a lot of people at Main Justice were just pushing paper; the action
was in the U.S. Attorney’s Office. And I figured that out pretty early. Now the section that
I was in was called the Government Regulations, which doesn’t exist any longer.
Stu Pierson: Was it in the Civil Division?
Bob Trout: It was in the Criminal Division. And so one of the things that we did, as I
think I mentioned, was that we handled all petitions for review from the Board of
Immigration and Appeals, so they were civil in nature. But the section was, as I say, a bit
of a dumping ground: where are we going to put this enforcement activity that doesn’t
naturally belong someplace else? Let’s put it here, in the Criminal Division’s Government
Regulation Section. And so it is not like I viewed myself or my future as being an
immigration lawyer, but, then again, I was freshly minted.
Stu Pierson: Somebody gave you a file and . . .
Bob Trout: Right. That’s exactly right. And so I did that and wrote a lot of appellate
briefs and argued a number of them. As I think I mentioned, I arrived in early October, and
in early December, I was standing in front of the Fifth Circuit for my very first oral
argument. And I think that was an experience—two months into my first year of a job after
law school—that was not shared by any of my friends who were in big firms. As a personal
aside, Taisie and I were living in Old Town and we were here to take advantage of living
in the big city and have fun; we were foot loose and fancy free. Well when you start
33
thinking about settling down, having children, raising a family, maybe the big city is not
where you want to do that. We were living in Old Town. We would get on the bus in the
morning, and we would take the bus into work. At the time, the Pennsylvania Avenue
corridor, which is where I was working was pretty shabby. Taisie may have been working
closer to the White House, I think. But that whole corridor was like a wasteland in the early
to mid 1970’s.
Stu Pierson: Mmm hmmm. I remember.
Bob Trout: It was just not where the upper crust was hanging out. And the private sector
was all in what is now known as the Golden Triangle, which is where we are seated right
now. So we would take a bus to work at the beginning of the day, and then we would get
on the bus at the end of the day and go back across the Potomac River to Old Town. And
we had been there for six months and realized we never really did anything in D.C. And I
would scratch my head why is that? Is it the river that creates some sort of boundary that
you just don’t think to go back downtown. We were just not doing anything in D.C. And
one weekend we were looking at the paper, and there was some ad for a newly developed
condominium. It was actually an old building of rental apartments that was spruced up and
converted into condominium by a developer. And they were selling these two-bedroom
units for $48,000. It was located right across from Montrose Park around the 3000 block
of R Street. So it was in Georgetown. It had the park right across the street. It was far
enough from M Street and Wisconsin that parking wasn’t a big problem. And so we put a
contract down on this. I think I told my father what we were paying for this two-bedroom
apartment, and he was just appalled that we would pay that much money for an apartment.
We moved in, and all of a sudden, we started doing things in D.C. all the time. We would
34
go to restaurants. We would go to the theater. We would go to the ballet. And we just
thought nothing of going all around town. It was electric. We had a great time. My brother,
a doctor, had been in California finishing up his residency at UCLA. I spent a total of three
summers in LA with him in or around Westwood near UCLA. And he was finishing up
and he had a deferment from the Army that allowed him to finish medical school, but also
committed him to doing something with the Army. He satisfied his obligation at the Walter
Reed Army Institute of Research. And so he came east and we played a lot together. We
played tennis. We did a lot socially together. He was single and I was married, but we did
a lot of different things together. And he loved being in D.C. also. So . . .
Stu Pierson: D.C. was starting to generate energy.
Bob Trout: It really was. There were nice restaurants, things to do, places were opening
up. There was a time when Dupont Circle was probably regarded as a little bit on the scruffy
side. Adams Morgan was scruffier still but just starting to get a little bit of interest. And so
we started going into places in Adams Morgan and going to Dupont Circle and going
wherever we felt like going. We just had a lot of fun, and there was just a lot more energy,
I think, in town. I’ve gone back and forth on this over the years. I think that at various times
I had this view that Washingtonians were so full of themselves and self-important that they
were just—
Stu Pierson: Well, it’s certainly true.
Bob Trout: Yes. That is true, but it is also true, as I have gotten older, that you meet a
lot of very genuine, authentic, nice people, many of whom are very, very smart, but are
also appropriately humble and great to be around. So my attitude has evolved. I used to
think that D.C. was so full of itself that it could be a little bit on the insufferable side. But
35
we really enjoyed it when we were here to the point that we actually stayed in the D.C. area
rather than moving to Baltimore when I became an Assistant U.S. Attorney there. My wife,
Taisie, was working at a small financial advisory firm near the White House. Their sweet
spot was telling Wall Street what was going on in D.C. that was relevant to Wall Street.
Today all the Wall Street firms have their own people doing that. But in the early 1970’s,
this small boutique—there were probably only four or five principals—made its business
by keeping Wall Street informed about what was happening in Washington. One of the
persons my wife worked for left the firm in 1974 to become Deputy Chief of Staff of the
White House. His name was Dick Cheney. By the fall of 1975, when I got the job in
Baltimore, Taisie was probably working on the Hill for a member of Congress. We loved
living in Georgetown and playing in D.C. But the law at the time required me to live in the
jurisdiction where I was an Assistant. And since I was going to Maryland to be an Assistant
U.S. Attorney, that meant I had to live in Maryland.
Stu Pierson: You had to have a Maryland address.
Bob Trout: I had to have a Maryland address. We found a place inside the Beltway in
Silver Spring. And moved there in 1976. I commuted up from D.C.
Stu Pierson: By car?
Bob Trout: Yes. There were three other Assistants in the Office who commuted from
Montgomery County. There was just one office then, and it was in Baltimore. We
commuted up every day. It wasn’t so bad. You’d learn a lot about trying a case because
everybody had different levels of experience. And so we would be driving up, and you
would be talking about a problem that you had, and you could just brainstorm issues as you
were driving.
36
Stu Pierson: Like a law school study group.
Bob Trout: Yes, it was. To the point that the U.S. Attorney actually recruited around
maintaining the Silver Spring carpool because—
Stu Pierson: It was good.
Bob Trout: That was a good thing. And then what I found is that we had had so much
fun in D.C. after we learned how to do it that I would commute up to Baltimore, come back
at night, and I would think nothing of getting in the car and driving down to D.C. and doing
something in D.C. at night in the middle of the week, on a “school night.” And it was such
a contrast to what we had experienced in Old Town. We continued to do things downtown,
although we missed living in Georgetown, which at the time was pretty popular.
Stu Pierson: So were you a member of the Maryland Bar?
Bob Trout: I was not member of the Maryland Bar when I went to work in the U.S.
Attorney’s Office in Maryland. When I accepted a job in the Honors Program at Main
Justice, there was a three-year commitment. Within a year of starting at Main Justice, I was
angling to find a position somewhere as an Assistant U.S. Attorney. Fortunately, when I
received the offer from the U.S. Attorney in Baltimore, the new Assistant Attorney General
in charge of the Criminal Division, Richard Thornburg, changed the commitment from
three years to two years if you made an intradepartmental transfer to some other office
within the Department of Justice. So I no longer had to worry about the three-year
commitment, and I was free to leave Main Justice and take the job in Baltimore. So off I
went to Baltimore. I think there were 26 lawyers in the Office at the time. There was no
Greenbelt Division. It was all in Baltimore. And they were in the Old Post Office Building
that was at Fayette and Calvert Streets.
37
Stu Pierson: I remember.
Bob Trout: The Post Office was on the first floor. On the upper floors, there were
courtrooms, very nice old courtrooms. And on the top floor was the U.S. Attorney’s Office.
So you could walk into the Post Office building on the first floor—there was no security—
and you could get on an elevator, and you could go up to the floor that was occupied by
the U.S. Attorney. There was a lobby area for the U.S. Attorney’s Office, which had some
security, meaning the receptionist had to buzz you in so that you could open the door to get
into the inner sanctum. The problem was that there was room for only about 20 Assistants.
And so the overflow Assistants, that is, the most junior Assistants, ended up in an adjacent
corridor. And for that corridor, you could walk in off the street, go to the elevator, take the
elevator up, walk out, and walk right into my office where I could be storing evidence for
a trial. There was zero security, none at all; and we never thought anything of it. It was a
wonderful court. Our judges were generally pretty patient with young Assistants learning
how to try cases.
Stu Pierson: Who were they?
Bob Trout: Well, the Chief Judge was Edward Northrop. There were two senior judges,
Roszel Thomsen, very, very . . .
Stu Pierson: I remember Roszel Thomsen.
Bob Trout: Yes, Roszel Thomsen was a very smart, very highly regarded district judge,
a bit of an iconic figure in terms of being a very, very smart judge. And the law clerk for
Roszel Thomsen was a young lawyer by the name of John Bates, now United States District
Court Judge in D.C.
Stu Pierson: Now Your Honor.
38
Bob Trout: Now Your Honor John Bates. Dorsey Watkins was another senior judge.
He was affectionately referred to as The Dorse, and he was one of the sweetest men you
could imagine. Roszel Thomsen could be abrupt and impatient. You better bring your A
game to court. Judge Watkins was the model of patience. He had unlimited patience. He
was just a wonderfully nice, generous man. Judge Northrop, very nice man, was Chief
Judge. And then there was another judge, Judge Harvey, Alexander Harvey, who was a
fabulous judge. He was very smart and appropriately decisive, very thoughtful, and he was
right down the middle. And a pleasure to appear in front of. He was just great. There was
a judge by the name of Frank Kaufman, who had achieved a certain high profile for having
presided over a busing case in Prince George’s County. He was an adventure to try a case
before, and there wasn’t a trial lawyer in Baltimore who didn’t have some Frank Kaufman
stories to tell.
Stu Pierson: Because?
Bob Trout: He could be demanding. He could be difficult. He might not be paying
attention because he was multitasking, and would—
Stu Pierson: Miss things?
Bob Trout: Yes. He’d miss something. He’d want to go off in a different direction.
Every trial was an ordeal because whatever unexpected issue might come up in the middle
of trial, he would want a brief on the issue the next morning. He was especially hard on the
government. But I always got along very well with him. I recall one day I had a status
conference scheduled with him, and I became absorbed by something else I was doing and
completely forgot to appear in court. The judges had recently passed a rule that there would
be a $50 fine for failing to show up on time. I was always very good about that. Until that
39
day when I had a status conference before Judge Kaufman. About an hour after I was
supposed to be there, I remembered the status conference. Panicked, I went to his
courtroom. He was in court hearing another matter, so I just sat down in the back. He waved
at me to come to the bench, and in a side bar said “What happened? This is so unlike you.”
I said, “I have zero excuse.” I said, “I know you’re supposed to fine me and I have no
excuse, but if you’re handing out any mercy, I am not above accepting it.” And he just
laughed and sent me on my way, and I never was fined. So he and I got along fine, but as
I said, it was always a bit of an adventure appearing before him, and there was no shortage
of Kaufman stories around the U.S. Attorney’s Office. Another judge was Stanley Blair, a
very good judge. He had been part of Agnew’s inner circle, which is how he was appointed
to the bench. Everybody loved appearing in front of him. Decisive, no nonsense, got things
done. He contracted leukemia and died early. Herb Murray was another really fine judge
who was a pleasure to appear in front of. Very deliberate. The book on Judge Murray was
that he was obsessive about leading questions. The key workaround was to insert “if
anything” into any question, and you were home free. So, for example, “What did you do
next” was leading because it implied that you did something, whereas “What, if anything,
did you do next” was not leading. A story circulated about one Assistant who had become
so conditioned from having appeared so often before Judge Murray that once, when he was
trying a bank robbery case, he asked the bank teller witness, “What, if anything, was the
bank robber wearing.” Judge Murray seldom interrupted counsel, but that time he did,
telling the Assistant to first think about the question he was asking. Another judge was
James Miller who had come from Montgomery County. He was a smart, able judge, but he
worked very long hours, and the stress of the job got to him, so he left the bench after just
40
a few years. As I recall, the last judge when I was there was Joe Young, a very nice man
and a good judge. One of the things I loved most about the U.S. Attorney’s Office is that
it was a much more diverse experience for me, I think, than what I had grown up with.
When I started in the office, I believe there was only one African-American lawyer, but
there were many Jewish lawyers, and I just loved getting more exposed to Jewish culture
and Yiddish expressions. Also, I was probably the only one who grew up in the south, with
the sort of WASP heritage that was part of my background. I just loved having such great
friendships with people in the U.S. Attorney’s office who were different from what I had
gotten use to. I think the experience really helped me grow to embrace a multicultural
community. Many people get that as part of their normal upbringing, but growing up in
Roanoke and going to the schools that I went to, it had not been a big part of my experience.
While it may not have been as diverse as it could have been, or as diverse as it probably
has become, by comparison with what I had experienced, it seemed pretty diverse. And I
loved it.
Stu Pierson: Were there any women in the Office?
Bob Trout: There were a couple when I started, but then there came to be more and
more. And that was great. Gale Rasin, Jane Moscowitz, Cathy Blake, and Lynne Battaglia
were among the women who joined the office in 1977 or 1978. Gale became a Circuit
Court judge in Baltimore, Cathy Blake became a federal judge in Baltimore, and Lynne
Battaglia, after serving for a period as U.S. Attorney in the 1990’s, became a judge on the
Maryland Court of Appeals. Jane Moscowitz, who is now a prominent attorney in Miami
and still a good friend, tried a couple of cases with me as a second chair. We got along
great. She was Jewish, and so she would teach me Yiddish. And that served me very well
41
when Amy Jackson—now Judge Jackson on our federal bench here—joined my firm as a
partner in 2000. Amy and I would share Yiddish idioms. But getting back to Baltimore,
when I joined the office, we had something like 26 lawyers. We handled both criminal and
civil cases, and we handled our own appeals. I just found there was so much energy.
Everybody realized we had the greatest job in the world. It was something of a well-kept
secret because a lot of young lawyers wanted to go to the big firms and make a lot of
money. And people didn’t really focus on what an amazing job it was to be an Assistant
U.S. Attorney. And now that secret is out big time, and so that is where everybody wants
to be, even though the experience today is different, with fewer trials. Our caseload at that
time allowed us to try a lot of cases. Obviously there were some white-collar cases, but we
handled bank robbery cases.
Stu Pierson: Theft from interstate shipment?
Bob Trout: Absolutely. Forging and uttering, counterfeiting, gun cases, a lot of stuff
that doesn’t get as much attention in the federal system anymore. But it gave us a lot of
opportunities to try cases, which doesn’t happen as much anymore. And so the reality is
that I don’t think I second chaired a case the entire time I was there. It was just me or, in
time, as I became more senior, I was lead and I would have a second chair. But when I
started there, I was expected to be second chair on a couple of cases. It was interstate
transportation of stolen property. There was a big theft ring that was stealing off the road
tires for big construction equipment, like Caterpillars. The cost of each tire could be as high
as $3,000 apiece, this back in the mid-70s. And they would steal them from these
construction sites, and sell them to a fence. They were operating in West Virginia,
Pennsylvania, and Maryland primarily, and a little bit in Virginia—a big ring—out of
42
Hancock, Maryland, I think. So we had a number of 30 different heists, with some
individuals participating in some, others participating in others, and we broke them down
into different cases and there was probably, I don’t know, 10 cases that came out of that. I
was working with another Assistant U.S. Attorney who was more senior than I, who is now
a federal judge in San Francisco, Jeff White.
Stu Pierson: I know the name.
Bob Trout: So we were coming up to trial, and before you know it, Jeff had other things
that he had to do. So I ended up trying all these cases. Some of them would plead out, but
there were probably six different cases that went to trial. And there was one case where we
were jurisdictionally close in terms of the value of the stolen goods to whatever was the
felony level. I thought we were in pretty good shape. The evidence was in on what the
values were, and right before closing argument, the defense lawyer argued that it ought to
be wholesale value versus retail value and we had done all these calculations based on
retail. And, sure enough, Judge Murray decided that the correct calculation was wholesale.
At which point he asked for the jury to be brought in for closing argument. I had not done
the wholesale calculation, so I found myself standing before the jury in the middle of
closing argument, for the first time, doing the addition on the various stolen items on the
easel.
Stu Pierson: Did you have the wholesale prices in evidence?
Bob Trout: We had the wholesale prices in evidence. But I was writing down the
numbers on the board for the first time and I had no idea—
Stu Pierson: Where it was going to end up.
43
Bob Trout: Where it was going to end up. And I was trying to do simple arithmetic—
add two, carry three, that sort of thing—and I was in such a panic I could not get it done.
Here I was standing before a jury, and I could not do simple addition of probably six to ten
numbers. It was embarrassing. And, finally, I got it done—I was probably sweating by this
time—and I ended up with about $100 to spare. But I was in such a panic as I was trying
to figure out how to do this—because I was thinking, holy cow, if I end up doing this math
and it comes out $100 short, what am I going to do? It was one of those memorable
experiences in trial.
Stu Pierson: Did you ever talk to the judge about it, or say to him, “Didn’t you see me
sweating?”
Bob Trout: No, I didn’t. Surely he was able to see that I was completely flummoxed by
simple arithmetic. And I suppose if I’d have had more maturity and gumption, I would
have tried to figure out a way to engage the judge on that. In any event, the jury convicted
the defendant. So that was one of those experiences at trial that stick with you. There was
another case that I vividly recall from my first year in the U.S. Attorney’s Office. This was
a theft from the mail case. The postal inspectors had arrested a heroin-addicted prostitute
for forging and cashing numerous welfare checks that had been mailed out to all the welfare
recipients. So the question was, how did she get these checks? When the postal inspectors
squeezed her, she said that she had gotten the checks from the letter carrier who was
delivering the checks in the neighborhood. He would give her checks, which she would
then forge and cash to feed her heroin habit, and in return she would turn tricks for him. I
am sure that we had more evidence than the word of the prostitute for making the decision
to prosecute the letter carrier, but we had some concerns about the strength of the case. The
44
prostitute was African American and the letter carrier was white, and back in the ‘70s
interracial relationships were not as common as they are today. Lots of heroin plus the
prostitute’s lifestyle had left her with a pretty ragged and unattractive appearance, whereas
the letter carrier was married and outwardly seemed to be a very religious man. The idea
that these two had a continuing sexual relationship seemed counterintuitive. So we were
looking for some persuasive way to corroborate the prostitute’s story. She told us that when
they were having sex, she couldn’t help but laugh whenever she saw his feet. She thought
they looked really funny. And whenever she would laugh, he reacted very defensively
about his feet. I assumed there was something very unique about his feet that she would be
able to easily identify. And so I filed a motion to require the defendant to submit to a foot
lineup. As you can imagine, the postal inspectors had a big laugh about this. They thought
it was great sport and very funny that we were going to have a foot lineup. The judge
ordered the lineup, and at the appointed time we had about seven barefooted men—other
postal inspectors—plus the defendant behind a screen for the prostitute to pick out the feet
of the letter carrier with whom she had been having sex. The only thing you could see were
the bare feet behind the screen. I took one look at the lineup and was amazed at the
collection of weird looking feet the postal inspectors had included in the lineup. I had
thought they would’ve done a better job of screening the feet for the lineup so we would
have seven pairs of completely normal looking feet, plus the defendant’s. Long story short,
the witness could not do better then narrow it down to three sets of feet. Fortunately, she
at least included the defendant’s among the three. In the end, I think the lineup was as
valuable to the defense as it was to the prosecution, presumably more so because the
defendant was acquitted at trial. For a good while, the story of the foot lineup was quite the
45
talk within the U.S. Attorney’s Office. I hated losing that case, but of course, in time, the
foot lineup was the sort of unusual situation that forges such rich memories of your time in
the office. You can’t make this up, so these are the stories that make a legal career
interesting and fun. When I was in the U.S. Attorney’s Office, I had one case that ended
up in the Supreme Court. It grew out of a statute, since repealed, called the Youth
Corrections Act. Its purpose was to rehabilitate youth offenders, not punish them, and so
imprisonment was not an option for youths whose offense came under the Youth
Corrections Act. The statute was silent about a fine. The Fourth Circuit had not addressed
the issue, but all of the other circuits had said that a fine was punishment and hence
inconsistent with the rehabilitative purposes of the Act. There was a Magistrate Judge in
Baltimore, Paul Rosenberg, who had a point of view about this, and he was just gunning
for the case that would present this issue because he saw the path that would take the issue
to the Supreme Court. One day a youthful offender was arrested on a misdemeanor, and I
was assigned to handle the case. Mike Frisch, then an Assistant Public Defender, later
Assistant Bar Counsel in D.C. and now a professor at Georgetown Law School, was
handling the defense. The case went to arraignment before Magistrate Judge Rosenberg,
and you could just see in his eyes, this is the one. And when we left court after the
arraignment, Mike Frisch and I were saying to each other, this was the one. And so we
worked out a plea, and the defendant ended up with a fine. I’m not sure that a fine was part
of the plea deal, but everyone knew Rosenberg was going to impose a small fine. And he
did. At that moment, everyone—Magistrate Judge Rosenberg, Mike Frisch, and I—we all
had the feeling that this would end up as a test case in the Supreme Court. The reason is
that we knew the fine would be appealed to the Chief Judge, Edward Northrup, who was
46
conservative, generally pro-government. We expected he would affirm the decision
imposing a fine, notwithstanding the case law from all the other circuits. And from there
the case would go to the Fourth Circuit, also viewed as conservative, a court likely not to
be persuaded by the fact that the other circuits had previously ruled that fines were not
permitted under the Youth Corrections Act. So we were expecting the Fourth Circuit’s
decision would create a split in the circuit and that this pipsqueak little misdemeanor case
would end up being decided by the U.S. Supreme Court. And that is exactly how it played
out. When the Supreme Court granted cert. and set the case down for oral argument, I knew
the case would be argued for the government by someone in the Solicitor General’s office,
but Mike would handle the argument for the defendant. He actually didn’t have enough
years in the Bar to qualify as a member of the Supreme Court Bar so he had to be specially
admitted. But he did a wonderful job of arguing against Wade McCree, the Solicitor
General, who argued the case for the government. Mike and I had a private bet. It was not
whether he would win or lose. We both thought he would lose, that the Supreme Court
would agree with all the judges below—that a fine has a rehabilitative purpose because it
teaches accountability and that actions have consequences—but the question was whether
he would get a vote. I won the bet; the Supreme Court upheld the fine with a unanimous
decision. Again, this was at a time when some very strong liberals—Thurgood Marshall
and William Brennan—were on the Supreme Court. You can probably tell how much I
loved being an Assistant U.S. Attorney in Baltimore. I would wake up every day just
pinching myself at how lucky I was to be doing what I was doing. And I couldn’t imagine
why anyone would stop doing this. It is ironic as I think about it now, but I remember
thinking, what would it be like to be a defense lawyer? I don’t think I could imagine doing
47
that. And again, I probably had those thoughts at a less mature time when I was without a
lot of the experience that I have had since. I just thought that this was the greatest job—
you sit on the right hand of God, you wear the white hat—why wouldn’t you do this for
the rest of your life? But of course, things change. In 1978, my wife and I had a baby boy,
Carter Trout. Having children changes things. And the other thing that changed is that I
had completed the typical tour of duty that Assistants have before they think about leaving
the office. At around the same time, the First Assistant came to me asking me to handle
either of two matters, both involved working with an Assistant technically senior to me but
someone who was viewed, I think, as needing some supervision. I was supposed to provide
that supervision, so it was understandably going to be awkward, since this Assistant had
greater seniority. There could be tension. One of the matters would involve a potentially
lengthy investigation. The other would involve a trial of a case that had been remanded for
retrial following the Fourth Circuit’s reversal of a conviction from an earlier trial. Again,
because I didn’t know how I felt about committing to a long investigation, I decided on the
trial. The case was a bombing case. I don’t think anyone had been killed, but I think
someone was injured. There was a single defendant who had been convicted in an earlier
trial of either trying to or succeeding in placing bombs in two cars on separate occasions.
In a unanimous decision, a panel of the Fourth Circuit had reversed the earlier conviction,
ruling that there should have been a severance, that the two bombings should have been
tried separately. The other Assistant with whom I was now going to try the case, had been
second chair to Jeff White at the original trial, and after Jeff left the office, she handled the
appeal, which led to the reversal. So now I was going to have to try this case after it was
remanded from the Fourth Circuit. As I studied the case to figure out how to try it, I realized
48
the case could not be tried unless we could use evidence from both bombings, because it
was evidence from the first bombing that would allow us to prove that it was the defendant
who committed the second bombing; and it was evidence from the second bombing that
would allow us to prove it was the defendant who committed the first bombing. So the
Federal Rules of Evidence should have allowed evidence relating to both bombings to be
admitted, and there should not have been reason to require a severance of the two.
Unfortunately, this argument was never made in the original appeal. I was convinced if the
government had included that argument in the original appeal, the outcome might have
been different, the Fourth Circuit might have affirmed the conviction. So I decided to seek
a rehearing from the original panel of the Fourth Circuit. I didn’t need the Solicitor
General’s approval to file for a rehearing because I wasn’t going to ask for en banc review
by the entire court. If I was going to ask for en banc review, then I would have to go to the
S.G. But I said, “Let me take a run at this,” because I didn’t see how I could retry this case,
that we couldn’t get the evidence in that we would need to get in in order to get the
conviction. And so I wrote a brief . . .
Stu Pierson: Did you tell the U.S. Attorney you were going to do it?
Bob Trout: Yes. The front office signed off on it. And so I wrote this petition for
rehearing to the three judges—all three judges had agreed that the conviction needed to be
reversed. And I basically apologized. I said it’s our fault. We didn’t tell you the argument
that you needed to hear. And, sure enough, they reversed themselves three-zip.
Stu Pierson: Did you try the two together?
Bob Trout: No, they unanimously reversed themselves and affirmed the conviction.
Stu Pierson: That’s a sleight of hand.
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Bob Trout: Yes. So, I put that as one of my better legal efforts. And so I had been
thinking, well, I’m going to be trying this case down the road or I’m going to be doing this
investigation that is going to take a while. And none of that happened. “I wonder whether
I ought to be thinking about leaving.”
Stu Pierson: So how long were you in the U.S. Attorney’s Office?
Bob Trout: Four years.
Stu Pierson: And then?
Bob Trout: Well, around the time of I began thinking it might be time to consider
leaving, I got a call from a friend, John Foley, whom I had gotten to know through one of
my dearest friends in life—I just loved him so much—Sandy Mayo, a law school classmate
who was at Hogan & Hartson. John Foley’s wife, Jan, had been at Hogan with Sandy, and
that is how I had gotten introduced to Jan and John. John was working as of counsel for a
firm called Dunnells, Duvall, Bennett & Porter. And one of the young lawyers at that
firm—John Keith, who had been a couple years ahead of me at Episcopal—had left the
firm to join Hugo Blankingship in forming Blankingship & Keith in Fairfax. John Foley
called me up to tell me that Bob Bennett was looking for someone to help him in his
practice. Well, I had met Bob Bennett because John and Jan had hosted an annual
Christmas party at their house, and I had met Bob two or three times at the Foley Christmas
party. Bob had been at Hogan and knew them. So we were acquainted. I called up Bob and
came down and interviewed with Dunnells, Duvall, Bennett & Porter and they offered me
a job. All of a sudden the question whether I should consider leaving the U.S. Attorney’s
Office collided with the reality of leaving the greatest job a young lawyer could possibly
have. I was really torn. It occurred to me that this could be a really unique opportunity, a
50
small, young firm, with a nice litigation practice, including criminal work. It was exactly
the sort of firm I thought I would be happy at, and one that did not seem to have many
peers. But as I said, I was very torn, because it is one thing to muse about what might be
out there after the U.S. Attorney’s Office, and it another thing to leave a place that you
have loved so much. And I think what happened is I asked for a lot of time to think about
it—like six weeks to think about it—and they said okay. And then I went back to the U.S.
Attorney, Timmy Baker by this time, who said he did not want me to leave, and he asked
me to give him time to consider whether there was anything in the pipeline that he thought
I should stay for. And while that was going on, one day the First Assistant came into my
office to ask if I would try a bank robbery that was scheduled for trial. I was no longer
trying bank robberies, but the Assistant who had been handling the case was unable to try
it for whatever reason. I had about a week to prepare. I got the witnesses and exhibits all
prepared, and on the morning of trial, I drove up from Silver Spring to start the trial. I have
always been someone who believes there is nothing so important in the trial of a case as
the opening statement. But on that day as I was driving up, I realized I was preparing my
opening for the first time in the car, no more than an hour or two before trial is scheduled
to begin. And I remember thinking: this is not good; this is wrong; you’re mailing it in.
You’re not taking this seriously the way you need to; this is not the way to try a case. It
was an eye-opening experience for me, and that was the time it really hit me, it is time to
leave. And it was about that same time that Timmy Baker came into my office and told me
he had nothing in the pipeline that was so sexy or intriguing that I should stay. So I left.
Stu Pierson: And what year are we in now?
51
Bob Trout: This is October ’79. I was at Justice—Main Justice—for exactly two years
and the U.S. Attorney’s for exactly four years.
Stu Pierson: So Watergate had pretty much run its course? So you were actually
watching that from . . .
Bob Trout: Yes. And, well, no. The President resigned in August of 1974, while I was
at Main Justice.
Stu Pierson: But then there was all the follow-on.
Bob Trout: Yes. And I was following that. Bill Hundley, who had represented former
Attorney General John Mitchell in the Watergate prosecution in the District of Columbia,
later represented one of the principal defendants in the Mandel prosecution in Maryland,
which was going on when I was in the U.S. Attorney’s Office there. Bill and Plato were
then partners in the firm of Hundley & Cacheris, and of course Plato and Bill’s son, John,
are now my partners in this firm. So it really is a small world. The Mandel case was
obviously a very high profile case, especially in the Washington and Baltimore areas. So it
was a very interesting time to be an Assistant in the office when that case was going on.
One of the prosecutors on the Mandel team, the third chair, was an Assistant by the name
of Dan Hurson.
Stu Pierson: Yes, I know Dan.
Bob Trout: Do you know Dan?
Stu Pierson: Yes. Dan actually was—he was at Verner Liipfert for a while and I saw him
not too long ago at a Securities Litigation . . .
Bob Trout: Is that right? So Dan was like the third guy on the team. He is a very smart
guy, very funny, very good, and he was part of the carpool. And so we would talk about
52
what was going on in the trial while carpooling. Generally, it was about what had gone on,
because the entire team was very closemouthed about the case because they were very
fastidious about not having any leaks. But one day, without telling us anything more, Dan
simply said, “You guys might want to come in to watch today.” That was going to be
Barney Skolnik cross-examining Governor Mandel in his corruption trial. In a nutshell, the
government’s case related to things that the governor had allegedly done to help his friends,
the owners of the Marlboro Race Track, get more value out of their investment through
certain actions of the legislature. The government was able to prove that these friends had
bestowed a lot of personal financial benefits on the governor, and the government was able
to show that the friends had an ownership interest in the racetrack. But the defense position
was that they had kept secret from the governor their ownership interest and their interest
in legislation that would have given additional racing days to their racetrack. And so after
Dan Hurson suggested we attend the trial that day, we saw Barney Skolnik’s cross of the
governor. Barney locked the governor into the defense story that the governor didn’t know
about his friends’ ownership in the racetrack and their interest in the legislation to increase
the race days. The governor said that he rarely spoke with his friends over the phone. And
that was true, except for one day when there were something like over 20 phone calls
between the governor and his friends. And that was either the day of or the day before the
day when the legislature was considering whether to grant additional racing days to the
racetrack. The governor had denied such contact so it was very dramatic when Barney
presented the phone records that showed otherwise. It was very powerful. The governor
and his co-defendants were convicted. And as a federal prosecutor, I casually and naturally
jumped to the conclusion that Mandel was a bad guy. That’s a mistake prosecutors often
53
make. They see things in black and white, seldom in shades of gray. Some time later, after
his conviction was ultimately overturned, I spent a lot of time with Mandel, for we worked
together on behalf of a mutual client who was being investigated for securities fraud in
Maryland.
Stu Pierson: This is an SEC enforcement proceeding?
Bob Trout: No. It was like the state version of the SEC.
Stu Pierson: Oh, Yes.
Bob Trout: And so I spent a lot of time with Marvin Mandel. I never told him what my
background was, and I don’t know whether he knew that I had been in the U.S. Attorney’s
Office at the time that he was not feeling very good about the Office. But a nicer man you
just couldn’t meet.
Stu Pierson: Who was his lawyer during the criminal case?
Bob Trout: Arnold Weiner.
Stu Pierson: Arnie and I got into some case together. I can’t remember what it was. But
I also had a witness in the Mandel case, just somebody who came in and said I saw such
and such.
Bob Trout: Right.
Stu Pierson: Arnie was an unusual guy.
Bob Trout: Yes. And he and I have had cases together and we’ve had cases against each
other.
Stu Pierson: He used to call himself “Never Plead ’Em Arnold.”
Bob Trout: Well, he is a very good lawyer, very thorough and very good. When I was
working with Marvin Mandel now in the early 1990’s, he took me to a couple of bars where
54
he would meet his wife, whom he just adored. It was very sweet to see how much they
were in love. He couldn’t have been a more gracious or nicer person to deal with.
Stu Pierson: Did you fix the enforcement problem?
Bob Trout: Well, it depends on how you define “fix.” It ended. Yes, we worked it out.
Stu Pierson: So Dunnells Duvall, you’re there for how long?
Bob Trout: Well, I arrived in 1979 and I was working with Bob Bennett a lot, and then
I also wanted to learn civil practice. And Dick Duvall was really doing a lot of that work,
and so I was working with both of those guys.
Stu Pierson: All defense?
Bob Trout: No. Some civil plaintiff’s work—Bob and I tried a medical malpractice case
on the plaintiff’s side—and some civil defense work. We had a small firm. I believe I was
the fifteenth lawyer in the firm when I joined. I became a partner in 1981, so that took a
couple of years. And we were just doing a lot of Bob’s white-collar criminal work. And I
was having fun. I was enjoying it. Bob, I think, figured out the Department of Justice was
starting to look at corporate . . .
Stu Pierson: Malfeasance.
Bob Trout: Yes. As I said, when I started at the U.S. Attorney’s Office, it was bank
robberies, it was drugs, it was guns, it was interstate transportation of stolen property—
there were different cases like that—trials lasting no more than a few days—with some
political corruption, but not a lot of corporate malfeasance. I think Bob found himself in a
place where the large corporate law firms, when they got these criminal matters, they would
say, “Okay, we don’t want to dirty our hands with . . .”
Stu Pierson: We need someone who knows how to do that.
55
Bob Trout: Yes. Right. And so he was getting a lot of that. He started getting a lot of
that work. And it was great work with well-heeled and well-financed clients. And Bob
really started to develop that as one of the go-to people, I think, in the white-collar practice.
Carl Rauh joined our firm. He had been First Assistant under Earl Silbert, and after Earl
left, Carl was Acting, or Interim, U.S. Attorney appointed by the court.
Stu Pierson: Carl Rauh is the only lawyer in government who has ever given me a written
deposition.
Bob Trout: Is that right?
Stu Pierson: Stunning.
Bob Trout: Chuck Ruff came in as U.S. Attorney, and Bob and Carl had a long personal
and professional history together, from the U.S. Attorney’s Office. They were very close.
And so Carl joined our firm, and they had a really great deal going. I think Bob was in the
CEO role and Carl was in the COO role because he could really manage the cases. They
were a great team. By then I was starting to move out of Bob’s orbit. I was working with
Dick Duvall and I was also trying to develop and work on my own cases and create a
persona for myself. I think Bob was a better partner to me than I was to Bob because I am
sure I chafed in the role of his second. And where I wanted to . . .
Stu Pierson: Spread your wings.
Bob Trout: Spread my wings. Bob couldn’t have been more generous to me. Bob had a
very nice network from the U.S. Attorney’s Office here in D.C. And so when I arrived here
having been in the U.S. Attorney’s Office in Baltimore, which is where my professional
contacts were, Bob spent an incredible amount of time and energy introducing me into his
network to the point where it became my network, even though I hadn’t been in the U.S.
56
Attorney’s Office here. And I am forever grateful. Although I’m not sure, at the time—I
think he knows how I feel about him now—but I’m not sure, at the time, that I conveyed
my appreciation the way I should have. So, anyway, I moved a little bit out of his orbit.
The very first case I ever had in private practice was a referral from my current partner and
dear friend, Plato Cacheris, and my former colleague in the U.S. Attorney’s Office, Barney
Skolnik. Barney had left the U.S. Attorney’s Office some time before me, and he was on
his own but sharing space with Bill Hundley and Plato Cacheris. And Plato and Barney
were representing two principals in a company that was being investigated in Harrisburg,
Pennsylvania. They had a couple of employees that needed representation, and so the very
first case that was referred directly to me was from Plato and Barney. That reminds me of
my first encounter with Plato. When you’re in the U.S. Attorney’s Office and you are
handling these cases and you tend to measure your progress in your career with . . .
Stu Pierson: How good the guys on the other side are.
Bob Trout: Bingo. And I had a case with Plato when I was in the U.S. Attorney’s Office.
And so I was starting to think that I was getting somewhere when I had a case against Plato.
And there was another investigation that I was handling, a white collar case, and Bill
Hundley was representing the putative target. I would see Bill and he would chuckle, tell
some funny stories, but seemed content to have me simply conduct the investigation to the
end. He was not the least bit aggressive. As I looked at the case and what we had, it seemed
that the FBI had heard something about this target, had decided he was dirty, and was
certain if we kept digging we’d find something. He may have been a sharp operator, but
what I thought was missing was evidence of a crime. So we didn’t go forward on that one.
But that is how I came to know both Plato Cacheris and Bill Hundley. I stayed in touch
57
with Plato and with Bill. They were fast friends and enjoyed a great practice together in
the firm of Hundley & Cacheris. In the mid to late 1980’s, with sons going off to college,
Bill decided he wanted to make some more money so he decided to join a large firm. And
then one thing led to another, and Plato decided he was going to talk to us at Dunnells,
Duvall, Bennett & Porter. He joined our firm around 1987 or 1988. This was about the time
we moved our offices at 1220 19th Street to more elegant space at 2100 Pennsylvania
Avenue. Plato was now working there, and when there was a civil case that came to him,
he typically would ask me to get involved in the matter. There was one such case that was
filed in federal court in Alexandria that ranks as one of the more unusual and fascinating
civil cases that I’ve had. Our client was a Saudi-American businessman who was sued by
a couple of former partners on a deal that supposedly had gone bad. There was something
about the suit that didn’t make sense; it seemed more pre-textual rather than a genuine
business dispute. One of the former partners was connected to a very wealthy Arab
businessman and the other was connected to the Saudi royal family. We were able to
establish facts that allowed us to bring a counterclaim, and with the benefit of an affidavit
from a witness in London, we were able to put ourselves in the driver’s seat. One Sunday
I was at home with my children, about to take them back to their mother’s, and my client
called me from London. “Can you come to London tonight?” he asked. So that night I flew
to London and for the next two weeks I stayed at the Dorchester Hotel as we tried to settle
the dispute. This involved daily meetings alone with my client and daily meetings alone
with someone who I was told was a confidant of the Saudi King, someone not officially
connected to the King but who supposedly spoke for him. I spent many hours with this
person—we developed a nice working relationship—but I never received confirmation that
58
the intermediary was representing the King. He spoke only about “his principal.” Over the
course of the two weeks there were many ups and downs in the negotiations, but in the end
we were able to get it settled. I never knew the amount my client received in the settlement
of the lawsuit that began as a suit against him. But he became a very rich man. Apart from
having two weeks in London staying at the Dorchester Hotel, on a professional level the
shuttle diplomacy over an extended period made for one of the most interesting two weeks
I’ve had in the practice. My big regret was that I did not maintain a journal of each day’s
activities. I am forever grateful to Plato that he asked me to handle that civil case. Getting
back to the Dunnells Duvall firm, by about 1990 we had close to 60 lawyers. And Bob
Bennett had a pretty robust practice. The old Ill Winds investigation was going strong, and
there were a lot of procurement fraud cases. They were coming Bob’s way. And so we
would do what firms do when they are trying to look at their belly button and figure out
what life is all about. And what’s the future.
Stu Pierson: What’s our strategic plan?
Bob Trout: Yes. What is our strategic plan? And so we booked a hotel room and spent
a Saturday there seated around the table trying to talk about what the future holds for us.
And by this time, I think the legal consultants from Hildebrandt were pushing the idea that
mid-size firms were dinosaurs. There was no way that mid-size firms are going to survive.
And we read all that. But we thought we were different. It was true of every other mid-size
firm, but it wasn’t true of us, because we were special. I remember this group therapy
exercise, the retreat about what do we want to be when we grow up and how do we want
to get there. And I remember looking at Plato. Plato was a good sport, and I knew this was
not his first choice of how he wanted to spend his Saturday, and it certainly wasn’t mine.
59
But Plato was a good sport. He was there. And in due course, after a couple of years, Plato
announced that he was leaving to go back to the townhouse practice that he had had before
with Bill Hundley, although it wasn’t with Bill. It was with another lawyer.
Stu Pierson: Named?
Bob Trout: David Tuohey. David had been at Arnold & Porter, and I can’t remember
more particulars about how they came to know each other or decided to practice together.
But I think Plato was really ready to go back to a small setting. And so I went into Plato’s
office and I said to him, “Plato,” I said, “I remember looking at you at this Saturday retreat
that we had, and I remember thinking, ‘What is Plato thinking about all this?’” And he
says, “Well, I’ll tell you what I was thinking. I was thinking, I want to be out of here.” And
he was no more specific about whether “out of here” meant “I don’t want to be in this hotel
room right now” or whether he was saying “I don’t want to be in this law firm.”
Stu Pierson: This is something I don’t like.
Bob Trout: He didn’t get specific about that, but it was ambiguous enough that you
could go either way. So he left and at some point later, not that long after that, Bob Bennett
announced that he was leaving and a number of lawyers—a large number of lawyers—
were going with him over to Skadden Arps. I think that he realized that the large firms had
now woken up to the fact that they needed to . . .
Stu Pierson: This is business.
Bob Trout: This is business. And they’re going to keep the corporate criminal practice
in-house. And if Bob didn’t snap it up, somebody else would, and then Covington would
do the same thing, and Kirkland & Ellis would do the same thing, and Sidley and so on.
And of course that is exactly . . .
60
Stu Pierson: What happened.
Bob Trout: What happened. And so not only would there be business for him if he left
for the big firm, conversely, if Bob stayed at a smaller firm, a significant part of his practice
might dry up because the large corporate law firm would keep that work in-house rather
than refer it out, as they had before. So, if we had been smart, I suppose, we would have
realized then, when Bob Bennett left, that the law firm consultant Hildebrandt had it right,
a firm our size could not survive. But we didn’t figure that out when Bob and the other
lawyers who were part of his practice migrated to a big firm. And so we all decided, let’s
just suck it up and stay the course. And with some empty offices to fill and some business
void to fill, we haphazardly recruited other lawyers to join our firm. While our body count
grew, the quality was diminished, as was the cohesion and culture within the firm. And a
couple of years after Bob Bennett and his team left for Skadden, the leader of our
transactional practice, Steve Porter, announced that he and the lawyers who were part of
his group were leaving to go to Arnold & Porter. And at that point, we figured it out. During
this period of uncertainty for my firm, I was experiencing my own professional
uncertainties. Divorced and single, I was trying to make my way in a new personal life,
and I was more than a little distracted in my law practice. I suspect that’s not uncommon
in that situation.
Stu Pierson: No, I understand as well.
Bob Trout: So I was not as focused, I think, on my practice. And I’m sure I was not as
productive and I didn’t pay attention as much to the internal marketplace. Dick Duvall was
a generous mentor when I joined the firm and became a good friend of mine. He talked
about how often people neglect the internal marketplace. Everybody is trying to figure out
61
how to make rain in the external marketplace, but people oftentimes ignore the internal
marketplace, that is, making sure that your partners and colleagues think of you in the first
instance for whatever it is that is going on. And I’m sure I neglected that marketplace, too.
I was a little bit at sixes and sevens during that time, so I went off in 1991 to gaze my navel
on a trek to Nepal. And I did it literally at the last minute. I didn’t really have a lot going
on. I think we were still trying to figure out how do we recover from this loss of Bob
Bennett?
Stu Pierson: And Steve Porter.
Bob Trout: Well, Porter hadn’t left yet. This was ’91. Porter left around ’93, I think—
the beginning of ’93. So I basically—within about two weeks—all of a sudden said I want
to do this. And so I put this trip together with about two weeks’ notice and left for a month.
Stu Pierson: On your own.
Bob Trout: Yes. I went with a group called Mountain Travel, but, yes, I didn’t know
anyone else in the group. And it was too abrupt and probably irresponsible in terms of my
relationship with the firm, I think, because I just left. I left for a month, and that is unusual.
Stu Pierson: Did you get your head straight?
Bob Trout: I think so. It was great. It was a wonderful time. I don’t know that it was
immediate. I was in different relationships with women, so I was also trying to sort those
things out. And I was trying to take care of my children. So I had a lot of distractions. It’s
not like I just came back and there was this switch that had turned. But it was definitely a
good thing to have done. I had a good friend whom I had been seeing. She was very
entrepreneurial and knew a lot of people. She was very helpful as I worked on what I ought
to be doing. Did I even want to be continuing to practice law? And so I spent some time,
62
at least a couple of years, musing about that issue. And I probably wasn’t all that
productive, I think, as a partner and a lawyer. I wasn’t all that engaged. And I wasn’t having
that much fun.
Stu Pierson: Okay. So what year are we in?
Bob Trout: That would have been—call it the end of ’92—let’s say the end of ’92.
Stu Pierson: The merger with Holland & Knight was when?
Bob Trout: That was effective beginning of 1994. [END OF SECOND SESSION]

63
ORAL HISTORY OF ROBERT P. TROUT
Third Interview
December 22, 2014
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Robert Trout,
and the interviewer is Stuart Pierson. The interview is taking place on December 22, 2014,
in Bob Trout’s office at Dupont Circle in Washington, D.C. This is the third interview.
Stu Pierson: Okay. December 22, 2014. We’re at 1350 Connecticut Avenue. Bob Trout
across the table. Stu Pierson here. This is our third session into Bob’s life and times, and I
think where we left off last time we were going to talk about the domestic side of your life
and your first marriage.
Bob Trout: Well, I grew up in the South and it was a bit of a transition period where
society was moving away from a world where the wives were the homemakers and stayed
at home; and the husbands worked and provided the financial security for the family. And
probably in the South, they were later in that transition, I would guess. But in any event, I
think when I was going to college, a lot of people were finding mates in college, and then
they finished college and they got married—or soon thereafter. And I would say that was
what happened for my wife and me. We graduated from college at the same time. I went
to Washington & Lee. She went to Hollins College. We dated all through college. We
basically didn’t have a lot of experience meeting different people with different interests
and backgrounds. And so we settled into that world together. Her name is Jane Cocke
Berkeley, also known as Taisie. That’s her nickname, and everybody knows her as Taisie.
We were married in 1972 in Charlotte, North Carolina. And we came to Washington. We
were trying to figure out what the future held for us. We wanted to experience the city. I
think I mentioned earlier that we came to Washington and lived in Old Town for about six
64
months or so and really weren’t doing anything in the city. And so we moved to
Georgetown, and then had an absolute ball. But then I got a job in the U.S. Attorney’s
Office in Baltimore. The law at the time required me to live in Maryland, so we moved to
Silver Spring. We continued to do a lot of social activities downtown. And then we had
two sons, Carter in 1978 and Philip in 1980. And that obviously changes your life when
you have children. And it did ours. My perspective on it was that Taisie was trying to figure
out her world. She had gotten a job when we came to Washington. At a certain point she
went to work on Capitol Hill for Jim Martin, who was a Congressman from Charlotte, her
hometown. And I think as you get to a point where you’re trying to figure out what’s next,
you’ve experienced these transitional periods. For example, we go to kindergarten for a
couple of years, and then we go to elementary school for what, five or six years. Then you
go to junior high and after that you go to high school. And then you go to college. And in
my case, I then went to law school; and then to a job for a couple years in the Department
of Justice; and then to the U.S. Attorney’s Office, which is typically for a stint of no more
than a few years. And there are all these discrete breaks that are experienced as just discrete
steps in the path to the rest of your life. And then you leave the Department of Justice or
you leave the U.S. Attorney’s Office, as I did, and you take what appears to be the career
decision to go work at a law firm. And, at least at the time, I think there was some notion
that you go to that law firm and that is where you work for the rest of your life. We figured
out in the meantime that it really doesn’t need to be that way. But I think when you’ve had
these discrete stages for the first thirty or so years of your life, you get use to periodic
change in your life. But then you settle upon what, for the first time, is viewed as a
permanent job, all of a sudden you get to that place where you say to yourself, “so this is
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the way the rest of my life is going to look.” It can be—disconcerting is not the right word,
but it can be . . .
Stu Pierson: Unsettling?
Bob Trout: Unsettling, yes. And I think I experienced that and I don’t know whether
you call that a midlife crisis, but my guess is Taisie was going through the same thing. She
was looking at what is her life going to be like? She had grown up in Charlotte, and after
high school her mother was her only living parent. Her mother was of a generation, I think,
where the girls were expected to go to college, to get the credential that was needed to
attract someone who was going to be successful in life. And then they marry that person
and then they’re in good shape. They have financial security. They would do all the
volunteer stuff and take care of the children and live a bit of the social life. At least as I
was able to perceive it, that was the world our parents generation—at least in the South—
inhabited. And I don’t think that is what Taisie really wanted. But at the same time, it’s not
like she had developed a particular career. So I think there were some frustrations there for
her, some personal frustrations. We were both looking at this situation where we had
arrived at a place where we were supposed to be settled and have a settled view as to the
future. But I don’t think that we did. And I think that was probably in part because we had
so little experience in relationships. It was the only relationship each of us had ever really
had. And so I think we drifted apart. And struggled. And in 1984 we separated. The children
were six and four. And we worked all of that out. I wasn’t making a lot of money at the
time. By now I was a partner in a small law firm, Dunnells Duvall Bennett & Porter, but I
was not making a lot of money. And certainly, even in the large law firms, they weren’t
making money the way they came to make money in big firms. So we separated. We
66
remained friendly and cordial, and we, I think, were both very committed to the idea that
both parents were really important to the children. And we needed to support each other in
that. And so as difficult as these things can be and as angry as you can get at various
different points in time, I think we were both pretty careful to keep that between us and not
expose the children to any of that. We ended up getting divorced in 1987. We actually
started a trial. Our home had been in the Old Farm section of North Bethesda, and Taisie
and the children were still living there. Farmland Elementary School was right across the
street from the house that Taisie and I had bought in about 1980, shortly after I left the U.S.
Attorney’s Office to take the job in Washington. That is where Carter was in school. Philip
was in the first grade, at Green Acres School. Philip was born in August and Green Acres
had a pretty rigid approach and philosophy that if it is a young boy who’s born after June,
they need an extra year, so he needed to be . . .
Stu Pierson: Slipped back.
Bob Trout: Slipped back. And I was not in favor of that, although I was clearly wrong
about that and believe Philip benefited a great deal from being held back a year. But at the
time, I had a different view and that was one of the issues that we were confronting. I also
felt it was important for Philip to have the community of his classmates at the school across
the street so that he would be fully integrated with his classmates in the neighborhood. So
we had our differences about what to do. But Taisie got to make the call on that because
they were living with her. She was still in the house. I had moved to a rental house in Chevy
Chase, Maryland, very near the Brookville Market. I had the kids with me every other
weekend, plus a couple of nights during the week, when they came over to my house. So
we are going to trial.
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Stu Pierson: Same side or opposite sides?
Bob Trout: We’re on the opposite sides. We’re going to trial—
Stu Pierson: Concerning the divorce?
Bob Trout: Concerning the divorce. We drew Judge Latham for our judge. Warren
Donahue was my lawyer. Marna Tucker had started out as Taisie’s and then, when they
went to Montgomery County, Rita Bank represented Taisie. I had started out with Peter
Sherman, but when it appeared we were headed to court, Peter suggested that I hire Warren
Donahue, who later became a Circuit Court Judge in Montgomery County. He was a
wonderful person. Very level-headed. So we went to trial and Taisie took the witness stand
as the first witness and started talking about this issue of the private school, Green Acres,
versus the public school, Farmland. Well, it turned out that Judge Latham lived in that area.
And he, I think, thought that Farmland Elementary School was probably, if not certainly,
the best elementary school in the universe. And so he stopped the proceedings and he said,
“Is this an issue in the case?” And the answer was, “Oh, yes, it is an issue. You know,
we’ve got to figure out where the children are going to go and what the costs are going to
be,” etc., etc., etc. And Judge Latham said, “I can’t hear this case. Farmland Elementary
School is absolutely the best elementary school in the world.” And, of course, because we
separated at the end of 1984 but we not able to get a trial date until 1987, I was concerned
that we were going to be put back at the end of the line if we couldn’t try the case that day.
I didn’t think more delay was in anyone’s interest. And so Warren asked him to intercede
with the assignment office to make sure that we got a new judge quickly. Judge Latham
said he would do that, at which point everybody was getting ready to leave. By now I was
admitted to the Maryland Bar, and I had appeared in court in Montgomery County, but I
68
did not know Judge Latham. But as we were leaving the courtroom Judge Latham said,
“Bob Trout, can I see you in chambers for a minute?” And I said, “Sure.” No one else was
invited. And I went into his chambers, and he wanted to talk about the Little League
baseball team that I was coaching and the local Farmland kids. It had nothing to do with
the law, or with the case, or with anything else. He just wanted to talk about what was
going on with the kids in the neighborhood and the Little League team. I’ve never discussed
this with Taisie, although we’re good friends and see each other regularly, but I’ve
wondered if that meaningless little secret sidebar with Judge Latham may have spooked
Taisie and her lawyer into thinking I must know every judge in Montgomery County,
because within two days of leaving Judge Latham’s courtroom, we got a settlement
proposal that was completely different from anything that we’d gotten before. And we
quickly resolved the case. The children, as they got older and had more challenging
academic burdens, became a little bit too much for me to pick them up when they had
homework, for this involved my picking them up in North Bethesda, driving them back to
my house in Chevy Chase, getting dinner going, serving them dinner, and driving them
back in the morning. It became a bit much. Then it became one night a week and then
eventually, when they got into junior high and high school, my time with them during the
week amounted to my just going out and taking them out for dinner. But I would spend a
lot of time with them on weekends. And even if it wasn’t my weekend, I would go to every
sporting event I could manage to go to.
Stu Pierson: Where were they in high school?
Bob Trout: Well, they started out at Walter Johnson. Carter was in the ninth grade. He
had some cousins, Taisie’s nieces in Baltimore, who had gone away to school and had a
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terrific experience. Taisie and I had both gone away to school, but I don’t know that we
thought that this is what they needed to do. It occurred to me that since they were not in
my house, there might be some benefit to male role modeling that they might get going
away to school. So they started thinking about it, and Taisie—because her nieces had this
great experience and were encouraging them—was certainly thinking along the same lines.
My godchild, the daughter of my college roommate, was at Lawrenceville. She was a year
older than Carter, and she was encouraging him to come to Lawrenceville. He went up and
looked at it and really liked the school. And I believe Taisie took him on some other tours.
The school was three hours away, and so it was away, but it was still close enough to get
to. So that is where Carter went. Philip could not understand why anyone would do that.
He was now in junior high and had no interest in that at all. He would visit and go to events
up there, Parents’ Weekend, football games and the like. And so he became a little bit more
open to it. And then when he was a ninth grader at Walter Johnson, I think they had close
to 40 students for each teacher. He would get back a paper with a grade, but otherwise there
wouldn’t be a mark on the page. He was getting really no feedback: so if that is a B, what
do you need to do to get an A? And by the time he finished his freshman year of high
school, he was pretty much committed to the idea of going away. He toured some schools.
He really liked Andover, and they really liked him. But then he visited Lawrenceville, and
they put on a big push. Maybe it was as simple as Lawrenceville was the last school he
visited, but in any event, that is where he went. I think they both had a great experience
there; it was really valuable. By the time my sons were in high school, my parents had both
died. My father and stepmother had bought a timeshare in Grand Cayman where they spent
three weeks each winter as a break from the cold weather in Roanoke. In 1990, my father
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had a massive stroke while in Grand Cayman, he was brought to Miami where he died on
Valentine’s Day that year. He was 77. And so we came back to Roanoke and started making
funeral arrangements. Taisie was actually quite close to my father. And so I invited her to
come down and she replied, “No, I don’t think that’s a good idea,” for whatever reason.
And then on the day of the funeral, she called me, just in tears, and we had a very emotional
call. She was very sorry that she had not come down, and I would say we haven’t had a
cross word between us ever since that day, ironically Valentine’s Day. Between 1984 and
that day in 1990, we did.
Stu Pierson: There were plenty.
Bob Trout: There were plenty. But it was amazing. It was like a light switch. So it really
changed—the relationship was fine before that day—but it became really pretty special
after that. She is really a remarkable person.
Stu Pierson: Does she live in the D.C. area?
Bob Trout: She does. She remarried—well I remarried in 1995. She remarried probably
in the mid-2000s. But it didn’t last; it was short-lived and rightfully so. It lasted about a
year. And for a good number of years, she and Rod Boggs of the Washington Lawyers’
Committee have been together. We see them around town a lot. And my wife, Janet
Studley, is an extraordinary person—an extraordinarily generous person—and she has
gotten along with Taisie, and Taisie has gotten along with her. They’re both really nice
people, and so they get along like two peas in a pod. So that has been great. And we’ve
got—we now have grandchildren and so we’ll have grandchildren visiting from California.
Stu Pierson: Who’s in California?
Bob Trout: Carter is in California.
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Stu Pierson: What’s he doing there?
Bob Trout: He is now with Mozilla. For a number of years, he was with Yahoo. He
went to the University of Virginia for college. He then went out to San Francisco
afterwards.
Stu Pierson: What does he do at Mozilla?
Bob Trout: Business development. While he was at Yahoo, he started an executive
MBA program at Berkeley and Columbia, and received an MBA from both schools. He
would spend time in New York at Columbia, and time at Berkeley. Carter’s wife, Lindsay,
was originally from Charleston, South Carolina, and she also went to UVa, but the two of
them did not start seeing each other until a year or so after graduating. She had started out
in New York, but made her way to California where she received her MBA at Stanford.
She is with an executive search firm, Egon Zehnder. So both Carter and Lindsay are
engaged in business, primarily focused on high tech.
Stu Pierson: And Philip is at Hogan?
Bob Trout: Philip is at Hogan. He also went to Virginia. He was President of the InterFraternity Council at Virginia. In light of the Rolling Stone magazine article about rape in
a fraternity house, the issues he had to deal with were a walk in the park compared with
that. There was an incident that he had to deal with, and I think it may have influenced him
in considering a career in the law. There was a blackface incident—it was Halloween—
and it created quite a stir, including some national press about it. It was a fraternity guy,
and the President of the University, John Casteen, said to him, in effect, “Fix it.” And so
he set about trying to figure out how to fix it. There were some interesting issues—can the
University or can the Inter-Fraternity Council take action against such expression? The
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University of Virginia being a state university, there are First Amendment issues involved.
So he talked to me about that. And he talked to the lawyers at the University of Virginia
about that. And he really started to get into this whole issue about legally what can they do.
I can’t remember what they did to solve the problem, but apparently everybody agreed it
was a good solution. And he got a lot of credit for it. The editorial page of the school
newspaper was very complimentary about the way they dealt with it. I think that planted
the seed for his interest in the law. But, as I say, that was a walk in the park compared with
what they are dealing with now, with allegations of rape in a fraternity house, even if that
Rolling Stone article has now been debunked. Philip graduated in 2003 and was interested
in working on a political campaign. There was some sort of an Indian gaming referendum
on the ballot in Maine. He was on the side of trying to get it approved. So there was money
there, and they got paid. He spent a summer in Maine until the referendum, which was in
the fall of 2003. So he was in Maine at a pretty good time to be in Maine. And then he
came off of that, and he went to work for Howard Dean, who at the time was leading the
Democratic field for President. He was in New Hampshire for that primary, and he would
take Howard Dean around to various homes.
Stu Pierson: So he was there for the primal scream?
Bob Trout: Yes. And they sent him home and basically said, “We’ll get back to you
when we need you.” And they didn’t need him again. So from there he went to the Kerry
campaign. And that is where he met Rachel Cotton, who is now his wife. Philip was
involved in communications on the Kerry side of the campaign, and Rachel was involved
in communications on the Edwards side of the phone. After the campaign they continued
to see each other, and in due course she started law school at Yale, and he started law school
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at Virginia. They maintained that relationship over the course of three years. Then they
both came back to Washington. After working for a year at Covington, she clerked for
Henry Kennedy on the federal district court here and then for Diana Motz on the Fourth
Circuit. He was going to work at Hogan—it was right at the 2009 financial meltdown—
and they basically had over-subscribed for associates. So they were offering deferrals—
stay away for a year, and we’ll pay you half what we were going to pay you. And while it
was part of the deal that you could not work for another law firm if you’re going to take
our money, they made an exception allowing him to work at our small firm. So he worked
here for that year and it was great for me and I think for him. He got to work with his dad.
I got to work with my son. He didn’t need to make a career choice, but he had the
experience of seeing what it was like.
Stu Pierson: Real exposure?
Bob Trout: Yes. And he had the experience of working in a small firm to see what that
was like, again without making a career choice, and so he was able to taste these
experiences. While Philip was here, we had a very fun case come in the door that involved
doing some pro bono work for the District of Columbia. The Council of the District of
Columbia asked me to serve as Special Counsel to the Council, performing an internal
investigation into allegations of corruption in certain construction projects involving the
Department of Parks and Recreation. The matter involved a great deal more work than I
had been led to believe when I was called to see if I would take this on. As it developed,
my partners, Amy Jackson and Gloria Solomon, worked with me on this. And so did Philip.
He did great work, so when Amy was nominated to be a federal judge, she asked him to be
. . .
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Stu Pierson: Be her clerk?
Bob Trout: Be her clerk. Which he did. He didn’t want to clerk for more than a year
anyway, and there were a lot of judges who really were insisting on two-year clerkships,
and so that eliminated a lot of potential clerkships for him. But this was perfect because,
while Amy wanted two-year clerks, she needed someone to be a one-year clerk so she
could stagger it. And so he was her first law clerk. Actually, by the time she was confirmed,
it was less than a year, but he got the value of it, I think, and really enjoyed it. And she has
just been a wonderful mentor for him.
Stu Pierson: How long was she here?
Bob Trout: She was here for eleven years.
Stu Pierson: And before that?
Bob Trout: She had been at Venable after she left the U.S. Attorney’s Office in, I want
to say, the mid-1980s. At a certain point, she took a leave of absence to take care of her
children. We had had a case against each other years before and hadn’t seen each other in
a long time. But in 1999 I saw her at a reception, and she came up to me and said she
wanted to pick my brain about opportunities for lawyers to work part-time in the District.
She said that she was not asking me about anything at my firm, but really just to talk to
someone in the Bar and get a sense of what is out there. So we had lunch. She was very
well regarded at Venable. She had worked with Ben Civiletti a lot. And her husband at the
time was a lawyer at Arnold & Porter. We had gotten a lot of work from Holland & Knight.
My former partner, Dick Duvall, had been very, very generous, always thinking about how
he could help me. With that in mind, I thought that her relationships with a couple of big
firms would help us. And so when we had lunch, it was always my intention to persuade
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her to join our firm. Amy is incredibly bright and efficient and a wonderful lawyer. So she
joined us, and she was just a huge asset for our firm. We worked together on many matters,
we became the dearest of friends. I consider it one of the blessings of my professional life
that I had the opportunity to work with Amy as my partner.
Stu Pierson: Was she part-time the whole 11 years?
Bob Trout: Pretty much, although you wouldn’t know it from the amount of work that
she would crank out. She was very disciplined about it. She left at a certain hour. Whereas
many people who say that they intend to go part-time say that it doesn’t work out being
part-time. She . . .
Stu Pierson: Kept to a schedule.
Bob Trout: Right. Now there were times when we needed to take trips. There were
times when we were going to be in court. And she would know that sufficiently in advance
that she would make arrangements to deal with that. Everything she does is very, very
efficient. So if it is organizing her time, she is efficient about knowing how to go about
doing that—lining things up sufficiently in advance so that it all ends up working. We
never had a snafu owing to her schedule. By the time we were trying the Jefferson case—
that was two months in trial—both of her sons could take care of themselves and deal with
Mom not being there.
Stu Pierson: When was the Jefferson trial?
Bob Trout: The Jefferson trial was in the summer of 2009. Early that year, after Obama
was inaugurated, Amy came into my office to tell me that she had decided that she wanted
to be a judge. And if that didn’t work out, she said—and I think it’s true—that she couldn’t
imagine being any place other than practicing with us. But she wanted to give this a shot.
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And so she applied to the Commission that would be making a recommendation to
Delegate Eleanor Holmes Norton, and she asked me to support her. So I wrote a letter to
Greg Craig, who was White House counsel, and I wrote a letter to the Commission that
would be making recommendation to Delegate Norton. And after the Senate confirmed
her, she asked me to speak at her investiture. It was a proud moment for me. I remarked on
that occasion that I was as certain as I’ve ever been that she was going to get this because
she is so good. And I said that she probably thought I was being generous by writing all
the letters that I wrote. But I said I’ve been living in this town for 40 years, and I know
how this game is played: when the outcome is certain, you jump on board so you can take
credit when it happens. That got a good laugh. Amy was just a really special lawyer with
us, so it was great having her here. One of her dearest friends now is my partner, Gloria
Solomon, who is in serious competition with Amy as being the smartest person that has
been at this firm. That’s a competition they would have at any firm. I had known Gloria
since the early 1980’s when she was a summer associate and then associate at Dunnells
Duvall Bennett & Porter. At the time there were probably about 20 or 25 lawyers at the
firm. We used to tease her that she doubled the firm’s IQ when she joined us. She is just
super, super smart. In 2005, after leaving a large firm, she joined our firm, I like to believe
because she enjoyed working with me. And once Amy and Gloria got to know each other,
they bonded in a very serious way. And every weekend they were taking walks together
and spending time together. And Gloria, Amy, and I tried—the three of us tried the
Jefferson case together. It was a hoot. But going back to 1980, I had left the U.S. Attorney’s
Office, and I joined Dunnells Duvall Bennett & Porter with the idea of taking the Maryland
Bar. By then lawyers who had a number of years of practice who wanted to waive into
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Maryland were required to take a lawyer’s bar exam—a short session focused on Maryland
procedure. The problem for me was that the rule required that your prior practice have been
in a state where you were admitted to practice. In my case, my prior practice ironically had
been as an Assistant U.S. Attorney in Maryland, so I did not qualify for the lawyer’s bar
exam. I had to take the full exam, which meant one day of the Multistate—I had not taken
a Multistate before—and the next day essay questions. Happily, I passed. My next
challenge was to figure out a way to get into the Eastern District of Virginia, the so-called
Rocket Docket. And in those days, it really was a Rocket Docket. We had enough cases
there that it made sense to become of member of that federal court, but even though I was
a member of the Virginia bar, there was some bar to my admission based on the fact that
either I was not a resident of Virginia or did not have my principal office in Virginia. But
as I examined the fine print, I could waive into the Eastern District of Virginia if I was a
member of the bar of the Western District of Virginia. And in the Western District, I could
waive in if I were simply a member of the Virginia Bar. So one day I flew to Roanoke, was
admitted to the Western District, flew back to D.C. and in due course, used my Western
District membership to waive into the Eastern District. And happily I’ve been able to
maintain a practice in that federal court.
Stu Pierson: So Dunnells Duvall until . . .
Bob Trout: 1993. That was when the other shoe dropped. By that I mean, after Bob
Bennett and his group left for Skadden in 1990, Steve Porter and his transactional group
left for Arnold & Porter in 1993. And so there we were with a bunch of empty offices and
with a depleted business base. We had dealt with that previously with Bennett’s departure,
and now we were dealing with it with Porter’s departure. And we had a bank loan, a real
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estate lease, and we didn’t want to go through this again, so we decided—Dick Duvall, I
think, was the wise man in this—that we had to merge. There were other suitors out there,
but, as you probably know, being interested and actually being able to close the deal were
very different things. I think Dick perceived that, and he realized we had to keep our eye
on the ball, trying to make a deal with the firm most likely to close. There was a firm,
Holland & Knight, which at the time, except for a small office in D.C., was exclusively
located in Florida. They wanted to go national. Chesterfield Smith was the iconic leader at
Holland & Knight; he had a high profile owing in part to his role as President of the ABA
when the Saturday Night Massacre occurred, when he appeared on one of the Sunday news
shows condemning Nixon’s action. Chesterfield came to Washington to try to develop the
D.C. office. There were probably only about six to eight lawyers in D.C. when he arrived,
and one of the longest-serving lawyers was a woman by the name of Janet Studley. She did
their lobbying work. When Chesterfield came up with license to grow the Washington
office as a first step in creating a national firm, he basically grabbed different lawyers and
put them into Holland & Knight with the idea that it will either work out or it won’t. But
let’s bring people in, and see how it works out. In due course, it will sort itself out, people
will leave or stay depending on their success with the firm. It’s not necessarily the way a
lot of law firms do it, but that is the way Chesterfield decided he was going to do it. But in
the meantime he saw this opportunity to bring a firm in that had a certain brand already
and so could establish a beachhead for a more credible presence in D.C. and beyond. Dick
Duvall and Chesterfield got along very well, and the two of them really put the merger
together. Effective January 1, 1994, the two firms merged. Janet Studley and I had met
during the course of those merger discussions. We then started going out. And in 1995, we
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got married at the Hay Adams. What a blessing that was. Janet is very smart but also down
to earth, not full of herself. She is extraordinarily generous, and has forged a great
relationship with her stepsons and their spouses. I’ve been very much the beneficiary of
the fact that everyone likes Janet and likes being with her. And of course I like being with
Janet. Pretty much every nice trait you could think about someone would apply to Janet,
but if there is one trait that stands out for me is that she is very quick witted and funny. She
constantly makes me laugh. She is still a partner in Holland & Knight, although she has
slowed down. She was the head of one of their three practice groups for a few years and
burned out on that.
Stu Pierson: Litigation or transactional?
Bob Trout: No, it was referred to as the government section, which was really the
lobbying and regulatory practice. And so she did that. And then she burned out. Her mother
was quite elderly. She was probably 93 at the time. Janet wasn’t sure how much longer her
mother was going to be around. It turns out she was around for another eight years. Janet
decided she wanted to spend more time with her mother. So she took a leave of absence
and was spending at least a week or more a month with her mother. And when she returned
to the practice after a year, she has had a reduced load.
Stu Pierson: Where was her mother?
Bob Trout: Her mother was in Florida. She was a very nice woman and lived on her
own until she was about 93 or 94, something like that. So—
Stu Pierson: So Holland & Knight until?
Bob Trout: Until July 1, 1996. When we were confronted with the demise of the
Dunnells Duvall firm, I talked to Dick Duvall about setting up a small litigation boutique.
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And Dick’s response was that a boutique sounds good, but we have this very sizeable lease
obligation. And, oh, by the way, while it sounds good, we have this very sizeable bank
loan. And so we need to find someone to merge with who will take our space, take over
our lease, and allow us to deal with this bank loan. And we didn’t need to have that
conversation more than once for me to figure that out as well. That was just not going to
work. So I decided to give the big firm a chance, let’s see how it goes. They were very
generous. I developed some wonderful relationships there—not just my wife—but I met a
lot of great people, a lot of great lawyers. It was good. And the senior management of the
firm was very loyal to me and conveyed to me that they appreciated me and what I was
doing. But by now Janet and I were married, and I really didn’t want to be married to my
law partner. Some people do that—Brooksley Born and Alex Bennett have pulled that off,
and others as well—but that wasn’t what I wanted to do. And Janet was much more plugged
in to the firm than I was. She had leadership and management roles, not that I necessarily
wanted to be doing that, I just wanted to be in a different setup. I also found the email
traffic to be very distracting. I was overwhelmed by the internal email traffic. I was not
very good at putting blinders on and doing my work and not getting distracted by all the
incoming.
Stu Pierson: That related to the entire firm and its practice.
Bob Trout: Yes. And so there were always internal email solicitations for people to help
on some project, maybe a new outreach effort or marketing a particular expertise. I wanted
to be a good soldier, so I volunteered for this or signed up for that. I just hadn’t really
developed a way, yet, for filtering this stuff out so that it didn’t get in the way of doing
what I needed to be doing. At least I felt distracted by it. And the other issue that just kept
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coming up was conflicts. For example, Holland & Knight in Florida was the go-to firm for
A-list corporate clients who had matters in Florida. But when those same clients had a
matter in D.C., they were more likely to use one of the well-established Washington firms,
like Covington or Hogan or one of the other large firms. So when one of those A-list clients
brought suit against a client that wanted to hire one of the lawyers at Holland & Knight in
D.C., there would be a conflict. Sometimes, we could get a waiver, sometimes not. In any
event, I was just bumping up against conflicts a lot. And it was new to me. If you grew up
in a large law firm, and that was just the way it was, it probably wouldn’t have been such
a shock to you. But for me it was new. So I began to consider something different. In 1996
there was an entrepreneurial fervor sweeping the land. Roger Zuckerman and I have been
very close for many years, and I was also a good friend of his longtime partner, Roger
Spaeder. I saw what they had created in their firm. And I was a good friend of Hank
Schuelke and later of his partners, Dick Janis and Larry Wechsler. They had a wonderful
small firm. So when I was exploring the idea of leaving Holland & Knight to set up my
own firm, one of the first persons I talked to, in addition to Roger Zuckerman, was Hank
Schuelke. We went out to lunch and he said, “Come on in, the water is fine.” And after we
opened our doors on July 1, 1996, one of the very first referrals of new business we received
was from Hank. So for all of those reasons, I decided I’d like to do something different.
Janet, of course, saw I had two sons who were now incurring private school tuitions and
also approaching college tuition, and yet I was talking about leaving the financial security
of a big firm. She had every reason to be concerned, but she faked it pretty well. She was
completely supportive of my going off and starting a firm of my own. There was a lawyer,
John Richards, a young lawyer whom I had worked with. John had been a summer clerk
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with Plato when Plato and Bill Hundley had their townhouse practice. After John finished
law school, he first clerked for then Chief Judge Bryan in the Eastern District of Virginia,
and then he came to the Dunnells Duvall firm in the late 1980’s when Plato was there.
John’s a very, very smart guy, very analytical, and a wonderful and careful lawyer. We
started working together at the Dunnells, Duvall firm, and he would do brilliantly and
eagerly all the stuff that I wasn’t really that good at or didn’t like to do. And so between
the two of us we could really do—
Stu Pierson: Manage.
Bob Trout: Yes. We could do well. John was an associate and he was just very, very
good. And he knew as well as anybody did how to navigate the Eastern District, which
could be its own . . .
Stu Pierson: It is almost byzantine.
Bob Trout: Yes. So we had some cases that we got involved in that turned out very
successfully. And then we started developing a reputation around the firm, when there was
a sick case or a case that just wasn’t going well, or wasn’t being well managed, we would
be brought in to try to turn things around. Dick Duvall, who was managing the litigation
practice, had a lot of confidence in me and he had a lot of confidence in John. So he would
call me up and he would say, “Well, we’ve got this case. This person is handling this case.
It’s not in a good place. I’m thinking you guys might need to . . “.
Stu Pierson: Fix it.
Bob Trout: Fix it. “Can you guys get involved?” And we had a lot of success fixing sick
cases. And so, when it came time for me to think about how to be successful in a small
practice, I went to the person whom I had been working with for a long while. He had just
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been made a partner at Holland & Knight. I talked to him about leaving, and he was all in.
And I talked to my assistant, Barbara Nichols, about leaving. And she was all in. She was
a couple of credits shy of a law degree, but she decided she didn’t want to be a lawyer. So
she was my secretary, my assistant. And so the three of us on July 1 . . .
Stu Pierson: 1996.
Bob Trout: 1996. And the Friday night—
Stu Pierson: And you go to N Street, right?
Bob Trout: Yes. I had walked out of the Holland & Knight office that Friday night. We
were moving over the weekend, and that Friday night Janet and I had dinner with Paul and
Liz Friedman at Ruppert’s Restaurant, which was then on 7th Street across from where the
convention center is today.
Stu Pierson: Was Paul on the bench by this time?
Bob Trout: Yes, he was on the bench. And so we had dinner, and I remember very well
the exhilaration from the sense of adventure that I had at the moment. Paul has been a dear
friend of mine over the years, and he has always been very supportive, most especially with
my decision to start my own firm. The following Monday we opened the firm of Trout &
Richards in a townhouse located at 1742 N Street. I brought some matters with me when
I moved, but the first day we were in business we opened a new matter. I had known it
would be there a couple months before, when I received a call from a friend, Hal Murry,
who was then practicing at Howrey before he moved to Baker Botts. The call was out of
the blue. I was at Holland & Knight. He said, “I’m representing this large German chemical
company that has a issue with the Antitrust Division, and we have an individual who needs
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representation. Do you have any sort of conflict?” I said, “Well, let me do a conflicts check
. . .”
Stu Pierson: This is when you were at Holland & Knight?
Bob Trout: This is when I was at Holland & Knight. And so I did a conflicts check and
it turned out that Holland & Knight was in a really bitter battle with this same company.
Not that there was necessarily a conflict, because I would not be representing the company.
I would be representing the employee.
Stu Pierson: A business conflict?
Bob Trout: But there would be a business conflict. And the company had zero interest
in writing a check to Holland & Knight for any services, even if just for the services to one
of its employees. But I mentioned to Hal that I was going to be leaving in a couple of
months—I hadn’t announced it yet—but that I was making arrangements to leave. And he
said, “Well, this can wait.” And so literally the Friday before we were starting business on
Monday, the boxes of documents for this new client showed up at 1742 N Street.
Stu Pierson: You were living right.
Bob Trout: That was certainly client number one that we had not previously
represented. And then probably client number two was a matter that Hank Schuelke sent
us. So . . .
Stu Pierson: So who is with you at this point?
Bob Trout: John Richards and Barbara Nichols. And Barbara is incredibly efficient,
incredibly smart. She has got a fair amount of New Jersey in her, so she can be pretty
aggressive. And she has, as much as anybody that I’ve been around, an owner’s mentality.
She would beat us up if we were more than one day late …
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Stu Pierson: Getting the bills out.
Bob Trout: Getting our bills out. She would not tolerate that. So we had our bills go out
the first of each month. And she was just very, very efficient in getting us organized and
getting us to do what we needed to do.
Stu Pierson: This is a good place to break, don’t you think?
Bob Trout: Yes, I do.
[END OF THIRD SESSION]

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ORAL HISTORY OF ROBERT P. TROUT
Fourth Interview
February 12, 2015
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Robert Trout,
and the interviewer is Stuart Pierson. The interview is taking place on February 12, 2015,
in Bob Trout’s office at Dupont Circle in Washington, D.C. This is the fourth interview.
Stu Pierson: Okay. It is February 12, 2015. We’re at Bob Trout’s law office in
Washington, D.C. This is our fourth session. And when we last left off you, Bob, were
talking a little bit about a reflection back to your projection of what your legal career would
be and how your reflection and your projection may be different and what that tells you
about your life in the law.
Bob Trout: Yes, I left a big law firm and I don’t know whether I was having fun or not. I
certainly enjoyed many relationships that I had, and some of the cases were more fun than
others. Holland & Knight was very generous to me, and I certainly felt very welcome there
when Dunnells Duvall firm merged into Holland & Knight. But I don’t think I felt as
fulfilled as I thought that I should feel in the practice. That plus the fact that I had met my
future wife, my wife now, through the merger, and I didn’t want to be married to my law
partner. She was very prominent in the firm. And it just made more sense for us not to be
practicing in the same firm. So it occurred to me, the more I thought about it, I thought it
would be a challenge—but it would be interesting to just set up a small firm. So John
Richards and Barbara Nichols and I started out together in our small firm, and we have
been practicing together ever since. We will be going on 19 years this July the 1st. I don’t
think there is any question about it, I have enjoyed more success outwardly and more
satisfaction inwardly in the small firm setup that we have created. And I think there are a
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number of reasons for that. I think when you’re in a big firm, you can get comfortable with
the way it is: whereas in a small firm, if you don’t get the business in, you can’t pay the
light bill and you can’t pay people and you can’t pay your mortgage. So it forces you to be
more entrepreneurial and be more aggressive about getting out there and networking and
making relationships and staying in touch with people. In a small firm practice, they are
really not coming to the firm so much; they’re coming to the lawyer. And there are certain
cases that you are just never going to get. The general counsel of a major corporation is
never going to hire a small firm to handle a big case, in part because a large case usually
requires more bandwidth than a small firm can provide, and in part because the general
counsel can never be criticized by the CEO or the Board for hiring the name brand large
firm. And so in a small firm you have to figure out what is your sweet spot; it is very much
dependent upon a referral practice, I think, at least in the nature of a litigation practice that
we have. We do not have, and have really never had, an insurance company coming to us
to handle all of their cases of a certain stripe. That is just not the nature of the practice that
we have had. And, frankly, if we had that sort of practice, they would be driving down our
rates a lot. So it is not to say that we haven’t gotten repeat business, but it is to say that it
is not routine. So you have to work hard to develop the business. I didn’t know anything
about the Edward Bennett Williams Inn of Court, for example, and a friend, Laurie Miller,
mentioned that I ought to think about doing that. And so I did that. While I certainly knew
many lawyers in town, including many lawyers who were in the Inn, I was able to meet a
lot of people that way whom I had not known before, including judges. Who knows, for
example, whether I would have been able to practice law with Amy Jackson if I had
remained in a large firm. I suppose one can ask what people I might have met or
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opportunities that I might have had if I had remained in a big firm. You never know. When
I left Holland & Knight, John Richards and I had spent a fair amount of time making sure
that we left correctly. We saw a lot of people who we thought really didn’t. And we didn’t
understand why you wouldn’t. We understood that there were people who were unhappy
with a given situation and they would leave in a huff. And we just didn’t understand why
you would do that.
Stu Pierson: It’s a small town.
Bob Trout: Yes, it is. I think I mentioned before that when Chesterfield Smith arrived
in Washington with the goal of building the Washington office, and before the merger with
the Dunnells Duvall firm, he had thrown a hodgepodge of lawyers together with the hope
that it would all work out but with the knowledge that some would not make it, and others
would decide it was a bad fit. Some people thrived and some people didn’t. And some of
the people who didn’t, as I said, would leave in a huff. And so John and I made a conscious
effort that they were going to be regretful that we were leaving, as opposed to glad that we
were leaving. Of course it wouldn’t have been good form if I left in a huff with my wife
still there. But I don’t think that was really a motivating factor. I think John and I both
recognized that we had had a good run at Holland & Knight. They had been good to us.
There was no point to be served by leaving on bad terms or in a selfish sort of way. So if
they wanted us to stay for thirty days because that is what the partnership agreement said,
we would stay for 30 days without complaint. At the end of that time, the members of the
Directors Committee of the firm came to Washington and took me out to dinner as a
goodbye. It was a very nice thing. We were actually going to be taking, with the blessing
of the firm, several of the cases that I was then working on. And there were some cases
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where I was working with other people besides John. And so we would work
collaboratively together on those cases. It was just a very easy transition out of the firm.
And I have often said—I don’t know whether it is still true—but I have often said that
when we left the firm, Dick Duvall would wake up every morning wondering what he
could do to help us. And we continued to get very good work as referrals from the firm. If
they had a conflict situation, we would get a call. It was very important to us, and we ended
up getting—really in collaboration with them—into some sizeable cases that were very
good income producers for our firm, cases that we probably wouldn’t have gotten into if
we had not maintained such a warm relationship with our former firm.
Stu Pierson: So did Amy come during the first five years?
Bob Trout: Yes, she came in 2000.
Stu Pierson: And by the time she came, what was the mix of types of cases you had?
Bob Trout: We had some criminal cases, but probably more civil. One of our earlier
cases was a referral from Hank Schuelke. It involved representing the Deputy Director of
the Immigration Service in Miami. There was a big scandal relating to the fact that a
congressional delegation had gone to Miami to review the situation—crowding, how
customs was handled, what the crowds were like, what the waits were like. It was a
congressional fact-finding mission. The Deputy Director was involved in arranging the
visit and making sure everybody was well taken care of. At the same time there was
apparently a union leader or activist, I gather, who was about to be fired and decided that
the best defense was a good offense. He decided he needed to be a whistleblower. And so
the congressional delegation came to Miami, they had a nice visit, and then this guy throws
in this whistleblower complaint that they had created a “Potemkin village,” and had
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essentially defrauded members of Congress into thinking that things were hunky dory when
they really weren’t. You can imagine, there was all outrage on Capitol Hill. And so at the
Department of Justice the IG decided he needed to get in the game and sort it all out. There
was an Assistant U.S. Attorney from the Southern District who was assigned by the
Inspector General to go down and investigate it.
Stu Pierson: Which Southern District?
Bob Trout: No, I’m sorry. From the Southern District of New York.
Stu Pierson: Don’t trust those folks in Florida.
Bob Trout: Right. So she went down and took a ton of depositions, did just a huge
amount of work. And she came back and laid it all on this woman who would become our
client, the Deputy Director, and she was going to be fired.
Stu Pierson: So the IG goes and gets somebody from the Southern District to go down
to Florida to do the investigation.
Bob Trout: Right. And as anybody that has thought about the way Independent Counsel
investigations go—and how these task force investigations go—well, the outcome was writ
at the moment that Congress decided they were going to hold hearings and express outrage.
And so, sure enough, they came down on this woman. And she was to be fired.
Stu Pierson: And she was to be fired because she hid bad stuff?
Bob Trout: That was the allegation. And so she was going to be fired, and there was
going to be some sort of criminal investigation, and there was going to be a congressional
investigation. And that is when Hank called me and said, “You’re just starting out. You’re
going to charge her less than I am going to charge her. And, so I think I’ll send this over to
you.” So she came in, and we got a modest retainer. It was probably not so modest back
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then, but by today’s standards, it would be. And, of course, it didn’t last all that long. In
time, she maxed out on every credit card. We started looking into it, and we saw what they
had relied on to make these findings. And we thought, this is ridiculous. They had spun
every fact, they had taken a torque wrench to turn every fact into something that was
nefarious when, in fact, the natural meaning wouldn’t have been so nefarious. It was so
typical. With the political headwinds we were facing, the facts didn’t matter. We couldn’t
make any headway. We had a meeting at the Office of the Deputy Attorney General.
Stu Pierson: Who was that?
Bob Trout: That was Jamie. We actually didn’t have a meeting with Jamie—Jamie
Gorelick—but we had a meeting with her assistants, and we made a lengthy submission,
with extensive documentary backup, explaining just how wrong the IG’s report had been.
We didn’t get to first base. So then we were going to go to a hearing before an ALJ from
the Merit Systems Protection Board. We were basically warned that the person who was
going to be our ALJ was . . .
Stu Pierson: Not inclined to listen to you.
Bob Trout: Right. And so we could forget this process. We had our hearing before the
ALJ, and Dave Margolis testified for the government as to the decision-making to fire her.
In the meantime, she had been put on administrative leave with pay. And she had been
allowed to get other work, or do other work, while she was staying away from her job. So
she decided that she was going to become a real estate agent. So all this time, she got the
cash flow from her salary while pursuing this alternative career, which was a wonderful
thing. She could develop her business while still . . .
Stu Pierson: Having an income stream.
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Bob Trout: Right. So, as predicted, we lost. Now, by this time we were so far
underwater in terms of fees. And John Richard’s attitude was, in for a dime, in for a dollar,
so let’s keep going here. And having lost before the ALJ, I said, “Well, I’m done here.”
And John basically said, “Well, I’ve got time.”
Stu Pierson: Let me keep on.
Bob Trout: Let me keep on. And so we went before the Merit Systems Protection Board.
And damn if we didn’t finally win up there and get her essentially reinstated. We prevailed.
We didn’t win 100 percent—we should have—but we won enough to prevail. She got what
she needed, and then we got the attorney’s fees as the prevailing party. And we ended up
negotiating our fees with a young lawyer at the Department of Justice, whom I knew
because she had been a paralegal at the Dunnells firm. We recovered 100 percent of our
fees, which at the time was the largest single fee that we had collected. By now it was about
1999, some three years after the matter began. It was a fun story. I’ve never had a
conversation with Jamie Gorelick about it, because I chose not to, but it was a lesson that
if you keep at it, who knows? So it was fun. Even if you call that case part of the criminal
practice, I would say it was still not 50/50 civil/criminal. We were probably mostly civil at
that point. As I say, we got some really good civil work from . . .
Stu Pierson: Holland & Knight.
Bob Trout: From Holland & Knight. We had a case that caused us to need some
additional talent, so we looked to a temp agency, which led us to Patricia Connelly, who
had been in practice here for a while and then had left to go to New Mexico with her
husband. Her relationship there ended, and she came back to D.C. And to reintegrate, she
was just working on a contract basis. Eventually we hired her from her agency, so that she
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joined our firm. We were starting to outgrow our space. And that was particularly true
when Amy discussed joining us. We were in a townhouse on N Street; we had started with
two of us, plus Barbara Nichols, and now there were four of us, plus Barbara. We needed
to move. And with the four of us, for Barbara that is just making the treadmill go a little
bit faster, doing it all, not just for two people, but for four people. I happened to be having
lunch with Plato Cacheris. Plato had been my law partner at the Dunnells law firm and we
continued to stay in touch with each other and deal with each other and do cases with each
other, and so we were having lunch. Phil Inglima had left, and a couple of other people had
left. Preston Burton was still there. John Hundley was still there. But he had a bunch of
empty offices in the suite that he was committed to, at least through the end of his lease,
and he was complaining about that and thinking, “Maybe I’ll go to Virginia; I’m not sure
what I want to do about carrying too much office space.” And I said, “Why don’t we move
into your extra space? That might work for us.” And from the happenstance of having lunch
with Plato, we found ourselves essentially working side by side with Plato with all the
benefits that come with that.
Stu Pierson: What year are we in now?
Bob Trout: We are in the year 2000.
Stu Pierson: Right about the time that Amy comes, right?
Bob Trout: Yes. She arrived, and we literally were out of room. I would say we were
primarily doing civil work at that point. And then I got a call to represent an individual in
a corporate criminal investigation being run out of the Eastern District of Virginia. And I
was going to be representing one of the employees. And there were a whole bunch of other
lawyers who were involved representing different clients, either corporations or
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individuals. This may have been the only criminal case I had at this time. I was representing
an individual who had a marginal role, so it was not going to be a big money maker for our
firm. And then September 11, 2001 came. I remember thinking to myself, “It’s a really
good thing that we’re not known as a white collar shop because those FBI agents are going
to be chasing terrorists; they’re not going to be doing white collar work.” So that was
September 11, 2001, but within six weeks, Enron starts to melt down. As you may know,
a lot of the Enron subjects, targets, you name it, were coming to D.C. for representation.
There were going to be congressional investigations as well as criminal investigations and
parallel SEC investigations being run out of Washington. I got a call from a lawyer in
Houston who was representing a very senior officer at Enron. They needed . . .
Stu Pierson: Did you know the lawyer?
Bob Trout: I did not. But I guess he had called someone in Houston, who called his
partner in D.C., who gave him my name. And so I received a call from this lawyer in
Houston, who was calling me to team with him as Washington counsel in representing the
client, who was scheduled to testify before the Congress, about a week later.
Stu Pierson: Is the testimony in the Senate or in the House?
Bob Trout: Probably Senate. And so I got this call, and as I considered why we were
being hired—simply to assist in the congressional hearing—I was thinking to myself about
the upcoming congressional hearing, “This is not about fact finding; this is about theater.”
That was one thought I had. The other was that I didn’t know what was out there in terms
of the facts that might bear on the client. I knew that there were going to be criminal charges
brought, and this person was very senior. And I couldn’t imagine why he would testify, or
should testify. Or at least I didn’t know enough to say he should and, in that circumstance,
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my view was he shouldn’t. I’m not going to be able to advise someone knowing as little
as I knew.
Stu Pierson: Where the risk is so high.
Bob Trout: Where the risk is so high. I think the lawyers were looking for some comfort
from me that there was really not a meaningful risk from his testifying, since I assume they
were starting with the idea that taking the Fifth was not an option for reasons related to the
client’s self-image. I didn’t know enough to give them the comfort they were looking for—
and given the circumstances, I probably would have advised any high-ranking Enron
official to take the Fifth, regardless of the depth of my understanding of the facts. In any
event, the client was just not of a frame of mind to accept our advice on the matter. And so
we disengaged. Happily we had not had enough . . .
Stu Pierson: Involvement.
Bob Trout: Involvement, or exposure to client confidences that we were going to be
conflicted out of future matters related to Enron. And as luck would have it, a short time
later, I got a call from an individual in Houston, who had gotten my name from a lawyer
in Houston, who gotten my name from his partner in D.C. And this was an individual who
was a very senior banker at Merrill Lynch. As it happened, his wife also wanted our
representation because she was a very senior executive at Enron. And so they came up and
they hired us, and we got clearance from the previous client that they were perfectly happy
for us to take this engagement. No problem. About two weeks later I got a call from the
former President of Enron, but couldn’t do it because . . .
Stu Pierson: You were already engaged.
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Bob Trout: We were already engaged in the matter. Both this banker from Merrill and
the former President of Enron been involved in one of the transactions under investigation,
so there was no way we could represent both clients. That was fine, because Merrill was
standing behind its employee. The person who was really at risk was the banker from
Merrill. He was the head of the Houston office and probably their largest producer in
investment banking in the firm. Although his wife had been a senior executive, she was far
removed from the financial side of Enron’s business and had no real involvement in
anything under investigation. They both reeked of integrity. They are a wonderful couple,
as straight as you can imagine.
Stu Pierson: And he knew nothing about the accounting?
Bob Trout: No, he had nothing to do with the accounting. There were transactions that
Merrill Lynch engaged in with Enron. His role was more as senior relationship manager
on the Enron account. One of the other bankers in the office was, by title, the designated
relationship manager, but he was the senior guy in the office. And he and his wife had a
friendship with Andy Fastow and Andy Fastow’s wife. Given all the entanglements, it was
understandable that they felt exposed even though neither had done anything wrong. With
all the various proceedings—a criminal investigations, a New York Stock Exchange
proceeding, a suit brought by the SEC, numerous civil suits—the client matter did not
finally conclude for close to ten years. It was just one of the most wonderful engagements
that I have enjoyed in the practice of law, because they were both such wonderful people
and great clients. And it went on and on and on.
Stu Pierson: And they didn’t get sucked in?
Bob Trout: Um . . .
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Stu Pierson: Or did they?
Bob Trout: They got sucked in about as close as you could want to get. They had figured
it out that they needed a lawyer, and with Congress conducting investigations, they had
figured out that they wanted a Washington lawyer. Merrill Lynch had long since identified
who needed lawyers and had hired lawyers for them. But because Merrill was located in
New York and the lawyers handling the matter for Merrill were in New York, the lawyers
who were being hired to represent its employees were New York lawyers. And when
Merrill was hiring lawyers for their employees, they were not thinking of this banker in
Houston, the head of the Houston office, because he was not operationally involved in
doing the deals, and besides, he was as straight as an arrow, he was not the first person one
would think of as needing a lawyer. So Merrill didn’t immediately put him on the list of
someone who needed a lawyer. But he figured it out on his own that he was going to need
a lawyer, and that he was going to need a lawyer in D.C. because there were going to be
congressional hearings and the like. And so he ended up with me. And about two weeks
after he hired me, the light went off at Merrill, and they said to my then client, “I think you
need a lawyer, and we’ll bring in a lawyer to represent you.” And he said, “I’ve already
got a lawyer.” In the meantime, after initially hiring me—Amy and I had the initial meeting
with the clients so I don’t discount the importance of Amy’s involvement in getting this
business to me—I think the client wanted to double check his judgment in hiring us; he
wanted to be sure that was the right call. Happily, he ended up talking to or having someone
talk to Bob Bennett, and Bob was very supportive. And so they stuck with our small firm,
rather than going to some large brand name firm. In due course, it was the investment
banks’ time to give testimony before the Senate’s Permanent Subcommittee on
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Investigations about transactions in which the banks had been involved. This was in July
2002. And the subject was going to be the so-called Nigerian barge deal. My client had
been very much involved in that. Not really operationally. He was supportive of the
transaction as a way to build a stronger relationship between Merrill Lynch and Enron,
which at the time was flying high. So he had just put the parties together, and then he had
gone skiing at the end of the year. He is a very impressive person, very articulate, very
smart, very well spoken, very attractive-looking person; he has it all. And so I think they
had in mind that he was such a presentable person, reeking of integrity, that he was going
to be the guy Merrill wanted to talk about this. And I was listening to the story and I was
thinking that there didn’t seem to be a problem here.
Stu Pierson: No problem with the deal or no problem with his perspective?
Bob Trout: Yes, I would say. I mean, I understand why they would look at it. But if you
looked at it, based on everything that we knew and what all the evidence was that I could
see, there was no problem with this transaction and certainly no problem with whatever he
did. So we sat down with the investigators from the Permanent Subcommittee and went
through everything during an informal interview. The actual testimony before the
Permanent Subcommittee would come later. In the meantime, two other banks, CitiBank
and Morgan Chase, had their day in the sun before the Permanent Subcommittee talking
about prepays, which was a particular type of transaction that these banks had helped devise
for Enron. These were incredibly rich for Enron. But those transactions had been blessed
by Arthur Andersen. To get a sense of what was in store for Merrill and my client two
weeks later, I went to the hearing about the prepays, where CitiBank and Morgan Chase
were in the hotseat. And it was incredibly ugly . . .
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Stu Pierson: Who was the Chair of the Committee at this point?
Bob Trout: As I recall, it was Carl Levin.
Stu Pierson: Probably.
Bob Trout: Anyhow . . .
Stu Pierson: The Democrats were the nasties.
Bob Trout: Yes, as I recall. So, anyway, we were there, and there were all these emails
that were being showcased, much worse than any email that I had seen in the Merrill
transactions, and I was thinking, “Why are these people testifying?” So my eyes were
bulging, and the in-house lawyer from Merrill was also there. And I was looking at him
and he was looking at me, and we were looking with crooked brow about, holy cow, how
ugly is this? And happily, probably two days later I got a call from the Deputy Chief of the
Enron Task Force at the Department of Justice saying that he was looking at the Nigerian
barge deal as a criminal case. He didn’t identify my client as a target.
Stu Pierson: He called you.
Bob Trout: But it was clear that he thought this was a bad transaction and that my client
was a champion of it. And so this began a very difficult conversation, because we were
scheduled to give testimony about this transaction two weeks hence.
Stu Pierson: Two weeks hence.
Bob Trout: Two weeks hence before the Permanent Subcommittee on Investigations,
televised nationwide. It was to be followed two days later by an appearance before the
SEC.
Stu Pierson: Two days later?
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Bob Trout: Yes. And he was going to be the face of this transaction, the Nigerian barge
deal. So there was really only one call at this point. It was clear. And I knew the
consequences of his refusing to cooperate. Because Merrill was insisting that all of its
employees cooperate with the government’s investigation, he was going to be fired. And
so one of the reasons he was such a wonderful client is he had to get his head around, in a
very short period of time, the idea that he had to take the Fifth in front of a nationwide
audience, where essentially his social group—the people he would hang around with, the
people that he cared about—would assume taking the Fifth meant he committed a crime.
Oh, and by the way, this brilliant career that you have started at Merrill where you are
among the most, if not the most, successful banker in the entire organization, it is about to
end. And oh, by the way, you’ve got family members who are prominent lawyers, not
experienced in criminal investigations, who can’t imagine that you would ever take the
Fifth if you hadn’t done something wrong. As hard as it would be to get your head around
that idea in a matter of a few days, he got it. So the Friday before he was to testify on the
following Monday, we made the decision he would not testify. The Subcommittee then
issued a subpoena, at which time we advised Merrill and the Senate that he would invoke
his Fifth Amendment privilege. Merrill then placed him on administrative leave, which I
was later told was almost never done—usually Merrill fired anyone who took the Fifth—
but was done in this case because our client was viewed as such a superstar. So the next
Monday, we appeared in a very crowded committee hearing room, and our client took the
Fifth. We had a statement for him, briefly explaining his decision. The lead Senate
investigator on Levin’s staff was a pro. We had very candid, very cordial, very professional
conversations, and the committee staff wasn’t hell-bent to make it worse than it had to be.
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And so we made our statement and then we were excused. Someone who had nothing to
do with the transaction was put up to be the Merrill mouthpiece. That afternoon the New
York Stock Exchange issued a subpoena for him to come testify, because they supposedly
were going to do an investigation. They weren’t really going to do an investigation. All
they were going to do was . . .
Stu Pierson: Hammer him.
Bob Trout: Yes. We’re going to get this guy out. The way we’re going to get him out
is, he is going to come in and he is going to refuse to answer questions. And because we
are a self-regulatory organization, not a government entity, we are not bound to respect his
Fifth Amendment privilege. If he refuses to answer our questions, we can suspend him.
And so they sent him a subpoena and went through the charade of saying that they were
doing an investigation of their own. Well, in the meantime, as more and more people from
Merrill started taking the Fifth, Merrill was feeling the heat. So Merrill fired my client after
first putting him on administrative leave. We saw it coming, and so we resigned. And they
said, “You can’t resign; we’re going to fire you.” It didn’t matter. They were not going to
try to take away whatever his financial . . .
Stu Pierson: Indemnification?
Bob Trout: Yes, indemnification, options, retirement, whatever it is that he was entitled
to—they weren’t messing with that. So I didn’t much care whether they called it a
termination or a resignation at that point. At this point, there were a number of bankers
who had asserted the Fifth and were then being subpoenaed by the New York Stock
Exchange. Others just blew off the New York Stock Exchange, thinking, what’s the point?
They were not only suspended, they also received a reprimand. I suppose you could say,
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what difference did that make. In our case, we decided to engage with the New York Stock
Exchange. We actually went there and our client answered a number of background
questions, refusing to answer only those questions that dealt with Enron. So at the end of
the day we didn’t get a reprimand, we got a suspension. As it happens, it might not have
made any difference. But we didn’t know what the future would hold, and we couldn’t rule
out the possibility that we would soon get greater clarity that our client had no criminal
exposure so that he could then testify and have the suspension lifted. But we didn’t get that
clarity, so after a year of being suspended and without any employment in the industry, he
lost his Series 7, he lost his licenses. In the meantime, a number of Texas plaintiffs who
had sued Merrill had also named him as a defendant for the purpose of defeating diversity
jurisdiction in federal court. Working in tandem with Merrill, we were able to get those
cases removed anyway, under the theory of federal question relating to Enron’s
bankruptcy.
Stu Pierson: What was the principal federal court?
Bob Trout: Houston. The main class action, together with many civil cases were
consolidated in Houston federal court. In the meantime, the Nigerian barge deal continued
to be investigated, and we received a Wells notice from the SEC. The other individuals
who received Wells notices basically blew it off, waste of time—there is nothing we are
going to be able to say that is going to change what they are going to do here. And we
decided we would put in a Wells submission. It would cause us to organize our own
thinking about this, cause us to really drill down and understand all the facts and documents
that were there to be understood, and cause us to really organize the narrative that we
thought was true and completely, utterly innocent. And so we did that, and we put it in. We
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didn’t have any expectations. But we also had in our minds that this is not just going to be
about the SEC. We’re going to be dealing with the Department of Justice at some point.
And so how would we talk about it if we were to make a submission to the Department of
Justice? So at this point I would say we went pretty much overnight from a situation where
a small fraction of our practice was criminal to a very large fraction was criminal in nature,
if you lump all of Enron into the criminal field, even if there were civil parts of it. So that’s
what really moved a lot of our brand, if you will, from much more civil into a little bit more
weighted white-collar criminal. It was only in the last year or two that all aspects of Enron
were finally resolved for our client. What happened is that we put in the Wells submission
at the end of 2002. I was supposed to go on the annual ski trip the following February, and
I got a call from the Deputy Chief of the Enron Task Force saying he was going to . . .
Stu Pierson: Indict your guy?
Bob Trout: Yes, the next week. So we went in and we met with the Deputy Chief of the
Enron Task Force. We provided him with a copy of our Wells submission. And then we
followed it up with a meeting with him and the Chief of the Enron Task Force.
Stu Pierson: Who was that?
Bob Trout: Leslie Caldwell was the Chief. She is now the Assistant Attorney General.
She runs the Criminal Division. Andrew Weissmann was the Deputy Chief. He is now the
Chief of the Fraud Section—newly appointed. Anyway, I thought that we had successfully
pushed back. By that time the pattern was that the Department of Justice would file a
criminal indictment and the SEC would simultaneously file civil charges. In this case, the
SEC brought civil charges against Merrill, which Merrill simultaneously settled. And they
charged three other individuals, including my client, with involvement in the Nigerian
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barge deal. There was another transaction that was also the subject of the SEC
investigation. There were no simultaneous criminal charges, so we were convinced that we
had been able to thwart a criminal case. But a few months later, as Merrill continued to
look for documents that responded to the government’s discovery requests, they stumbled
upon a document, an email, that was a couple of years after the Nigerian barge deal. It was
written by one of the people who was involved in structuring the Nigerian barge deal for
Merrill, and in this later email he had referred to the earlier deal in a way that was different
from how he had described it in his grand jury testimony and seemed more in keeping with
the government’s view of the transaction. And all of a sudden, it kick-starts the
investigation. And they were back at it. So in the summer of 2003, it became pretty clear
they were going to go after the Nigerian barge deal after all. And I had some further
communications with the Enron Task Force. Our client unquestionably had a role—the
government thought an important role—in influencing Merrill to go forward with the
Nigerian barge deal, which the government was claiming was a parking transaction
designed to keep the Enron share price artificially inflated when Enron’s year end
financials were reported early in the new year. Clearly the government was going to allege
that Merrill and Enron management participated in a scheme to defraud the shareholders
of Enron. We had a unique fact in our favor. As I mentioned, our client’s wife had been a
very senior executive at Enron. And she was paid a very sizable bonus at the end of the
year. And their employees were allowed to get their bonus in cash or they could get their
bonus in Enron stock. And at the very time that Enron was reporting its financial statements
that the government was alleging to be falsely. . .
Stu Pierson: Inflated.
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Bob Trout: Inflated. She took her bonus in stock. As it turned out, in the very first part
of the government’s opening statement in the trial of the criminal case that they eventually
brought against certain individuals at Merrill and Enron for the Nigerian barge transaction,
they were talking about how these defendants had defrauded the Enron shareholders. I was
in the courtroom, but happily not as one of the defendants’ attorneys. There were four
individual bankers from Merrill who were on trial, but my client was not charged. And
while I would like to think it was because I was such an effective attorney, I suspect it was
because the government realized in the very first part of my opening statement, I would
have been identifying my client as one of those shareholders.
Stu Pierson: The victim.
Bob Trout: Yes, the victim. It didn’t come to that. Everybody around him was charged,
and he was not.
Stu Pierson: Because?
Bob Trout: Because he had not testified before Congress. And because he hadn’t given
any statements himself, and because he was not operationally involved in any of the
transactions.
Stu Pierson: Lack of knowledge.
Bob Trout: Yes. We made that point in our Wells submission, and I think they
understood that they would have a hard time proving he thought there was anything wrong
there, that he believed that these were fraudulent financial statements or that they were
inflated or that Enron was in any way deceiving the shareholders. After all, he and his wife
made an investment themselves—a very sizable investment in Enron stock at that very
moment. I haven’t had a conversation with the people who made that decision not to indict
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my client, but he was not charged—which is not to say that he was completely out of the
danger zone at that point—but he was not charged. Tragically, there were individuals who
were charged. They went to trial in Houston. I would say that there was an appalling
absence of the application of the hearsay rule, and they were all convicted. Everybody was
convicted. So . . .
Stu Pierson: It was a conspiracy trial?
Bob Trout: Yes. So you have that element that gets in the way of the hearsay rule, the
exception to the hearsay rule that says statements in furtherance of the conspiracy are
admitted, an exception that seems to swallow the rule. It seems there was no hearsay that
was kept out of that case. And so they were all convicted. At sentencing the government
was making an outrageous demand for lengthy prison sentences. Fortunately, the judge did
not follow the prosecutors’ recommendation. Still, in my view, the sentences—substantial
prison time—were excessive. And because the judge couldn’t see the serious legal issues
that were unquestionably going to be part of an appeal, he denied bail pending appeal. And
these people went off to prison. And that is where they were until the afternoon of the oral
argument before the Fifth Circuit, at which time the Fifth Circuit issued an order releasing
them on bail.
Stu Pierson: Now these defendants included Arthur Andersen employees as well?
Bob Trout: No. I think that the government brought the Nigerian barge case—it was
miniscule compared with the prepays—because Arthur Andersen could argue that they
were not involved, they didn’t bless this transaction. When the case was indicted, it turned
on a conversation between senior folks at Enron and senior folks at Merrill, and Arthur
Andersen could claim they had no knowledge of that conversation. Enron was coming to
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the end of the year and they expected to sell an asset, barges off the coast of Nigeria that
were going to be used to produce electricity, as part of their effort to meet their earnings
target. Apparently there was a snag in the deal with the prospective purchaser, so Enron
asked Merrill to buy the barges. This was not the sort of asset that Merrill typically invested
in, but Enron was assuring them that there shouldn’t be any trouble finding a buyer early
in the new year, either the original purchaser who couldn’t get the deal done by year end,
or some other purchaser. There was some dissent within Merrill, including a view that there
was a reputational risk to Merrill if the transaction was viewed as aiding Enron in managing
earnings. But there was another view that this would help the relationship between Merrill
and Enron and help Merrill secure investment banking work from Enron, which generated
large fees for the investment banks with which it did business. The key event in the case
was the conversation between senior bankers at Merrill Lynch and their counterparts at
Enron. The key participant was Master of the Universe, Andy Fastow, the Enron CFO who
obviously had an interest in Enron meeting its earnings targets. The idea was that Merrill
would convey its point of view that the only reason it was doing this was as a favor to
Enron, obviously trying to enhance the relationship. In turn, Merrill wanted Enron to know
that it did not want to hold the asset long term and was looking for Enron to commit to help
Merrill find a buyer early in the new year. It was important for Fastow to hear that. So there
was this conversation and there were several people on that call, including . . .
Stu Pierson: Your guy.
Bob Trout: My client. And then what happened was they were getting down the road
and they didn’t have a buyer. There was an affiliate of Enron that Andy Fastow was . . .
Stu Pierson: Controlling.
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Bob Trout: Controlling. And so that affiliate ended up buying the barges from Merrill,
and it was legally speaking an independent operation, but he had given the government
enough to argue that this was a parking transaction, that the conference call at the end of
the year was really a guarantee that Enron or an affiliate would buy the barges back if they
couldn’t find another buyer so that Merrill would not really be at risk. It turns out that that
the affiliate, within two or three months, actually sold the barges to a completely different
operation for essentially the same amount that had been paid. My client really had nothing
to do with anything that happened after the year-end conference call. Right after the call
he went skiing with his family so he had nothing to do with structuring or closing the deal
at the end of 1999 or with anything that happened later. After Enron unraveled and the
government began its criminal investigation, Fastow entered into an agreement to
cooperate with the government and enter a guilty plea. The government had obviously gone
after the accountants, it was going after Enron and its senior executives, and it clearly
wanted to find a transaction that would allow them to prosecute the bankers. Although the
Nigerian barge deal was peanuts compared with many of the transactions that led to
Enron’s demise, I think the government was thinking it was bite size, it could be made
understandable to a jury, and the fingerprints of Arthur Andersen could not be found, so
no outside accountants approved the deal. I think that is the reason they focused on the
Nigerian barge deal. But there was a lot of ambiguity in the evidence, in particular what
was said during the year-end conference call with Andy Fastow. The government had some
sort of ersatz consolidated 302, which was a memo of various interviews that Fastow had
given the FBI and the prosecutors during his cooperation sessions. Normally there is a
separate 302 or interview memo for each session. But the government came up with this
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ill-conceived idea of a consolidated 302. And it was clear from this so-called consolidated
302 that Fastow was trying to give the government something that was not inconsistent
with their theory of the Nigerian barge deal, which was that he had guaranteed Merrill it
wouldn’t lose anything on the deal. But he stopped short of describing it as a guarantee.
Who knows what he actually said to the FBI, versus how the FBI wrote it down. But I think
that we do know that there was a difference between what was in the 302 and what was in
the FBI notes. Much later, in connection with the case against Skilling and Lay, some notes
ended up getting produced that showed that there was a different . . .
Stu Pierson: Retained FBI notes?
Bob Trout: Yes. My recollection is that in the Nigerian barge transaction, they tried to
get the notes and the judge in that case refused to order the government to produce them to
the defense.
Stu Pierson: And the Bureau was retaining the notes and not destroying them?
Bob Trout: Yes. And so eventually, I think, the notes got produced in the Lay and
Skilling case, and after the convictions in the Nigerian barge case were all reversed on
appeal and before the government decided, wisely, I think, to just dismiss the case on their
own, there was a lot of Brady litigation . . .
Stu Pierson: This is after they blew up Arthur Andersen?
Bob Trout: Yes, long after that. All this discovery of the FBI’s raw notes of the
interviews with Fastow occurred well after everyone was convicted in the original Nigerian
barge trial in the fall of 2004. And while my client was never indicted in that case, it was
clear we were not entirely out of the woods. Shortly before the trial the government
discovered a witness in London who had been a freshly minted banker for Merrill at around
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the time of the Nigerian barge transaction. She had left Merrill and was working in London,
I believe for another bank. She described an internal Merrill conference call among the
senior people at Merrill who were deciding whether to buy Enron’s interest in the Nigerian
barges. This was just an internal call. It did not involve any Enron people. The government
thought this was a very powerful piece of evidence, consistent with the theory of the
government’s case, which they said that they had not had at the time of the indictment.
This witness who was young and inexperienced was apparently invited to join the call and
she did. This young banker and my client did not know each other, but she placed him on
this conference call. When the government brought the original indictment they did not
have this evidence. I was in Houston for various parts of the trial and from sidebar
comments that the prosecutors made to me, it seems that if they had known about this
witness at the time of the indictment, they might have made a different decision about
leaving him out of the indictment. So while my client had not been charged in the original
indictment and therefore was not convicted as the other Merrill bankers were, I was
nevertheless concerned. A short time after the original trial, our family had arranged for a
big family reunion for Thanksgiving. We had rented several cabins near Montreat, North
Carolina. I think we were flying out either Tuesday or Wednesday to Charlotte to then
drive to Montreat. Shortly before I was to leave for the airport, I was in my office and I got
a call from Bill Dolan, who represented the former President of Enron, who had been on
the critical conference call with Andy Fastow related to the Nigerian barge deal. And he
said, “I have heard that your client, my client, and this other person are going to be indicted
next week on the barge deal. And it comes from a reliable source, or someone who has
always been reliable.” This was very unwelcome news, needless to say. So I got a cab to
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the airport. When I arrived at the airport, there was an email message from a lawyer in
Houston who represented the third individual. I called him. He said, “I have heard from a
reliable source that your client, my client, and this other guy represented by Dolan are
going to be indicted next week.” And we talked, and my blood pressure was starting to go
up. I then got on a plane and flew to Charlotte. I got off the plane, and there was a voice
mail from in-house counsel at Merrill. I called him back, and he conveyed the same
message, that three other people who had been involved in the Nigerian barge deal,
including my client, were about to be indicted. Again, it was attributed to a source who had
always been reliable in the past. I think it was a reporter for the Houston Chronicle. No one
ever told me who, but that is what I think. And I decided I was not going to ruin my client’s
Thanksgiving, so I didn’t tell him. I think we all agreed that we were not going to ruin our
clients’ Thanksgiving. I think if I got four hours of sleep the entire Thanksgiving weekend,
that would probably be a generous estimate.
Stu Pierson: This is all within your own brain.
Bob Trout: Yes. And I don’t think, even the next week I called my client about this. I
just figured, well, I would just wait for them, the prosecutors, to call me. I was sure they
were going to call me. I was just going to wait for that call. But then it didn’t happen
Stu Pierson: We’ve gone through to 2004.
Bob Trout: Right. Which is exactly five years after the deal, the year-end deal. And then
we came to, I think, January 2005, and we were now past—
Stu Pierson: The statute.
Bob Trout: So I say. We were now five years past the time when the purpose of the socalled conspiracy had been achieved. Enron had issued its financial report in mid-January
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2000, and that would have accomplished the goals of the alleged conspiracy. But there was
a theory that said Merrill’s sale of the barges back to this Enron affiliate was an overt act
in the alleged conspiracy that did not occur until June 2005. So we had our theory that the
statute has passed, but there was also another theory that, no, the statute would not expire
until June 2005. I want to say that sometime in about March 2005, I received a call from
the Enron Task Force, from Kathy Ruemmler, who at the time was the Deputy Chief of the
Task Force. She and I are friends so we were able to have candid conversations about the
case. She told me that the government was thinking about bringing another criminal case
on the barge. She told me they needed to hear from me the next week, specifically
addressing the evidence the government had found so powerful, the testimony from the
banker from London who had participated in the internal conference call where the barge
deal was discussed. Well, I had a vacation or some trip planned for the next week. So I
pushed back pretty hard, and because Kathy and I knew each other and were able to
communicate, I think she agreed to a pause. She told me not to do anything or change any
plans, she would call be back if they needed to hear from me. In the meantime, I started
putting together a submission addressing once again why they shouldn’t charge my client
and in particular this new witness whom the government did not know about when it
brought the original indictment relating to the Nigerian barge deal. Obviously I was hoping
not to hear from her again. And, happily, I didn’t. And so June 30th came and went, and I
think everybody recognized that the statute had passed. So he was off the hook on the
criminal case. There were still a number of civil suits as well as the SEC’s suit that had
been stayed for quite a while at the government’s request since Andy Fastow was
cooperating and the government did not want the civil suit to serve as an opportunity for
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the defendants to take his deposition. Because of the various appeals and also because the
Lay and Skilling case was still pending, nobody was seeking to get that case reinstated.
And so in the meantime, we were working on civil cases. And the class action was going
forward. My client was not himself named as a defendant in the class action, but there were
a number of opt-out cases or separate direct action cases that had been brought naming him
as well. So we were working at this point with Shearman & Sterling, which was
representing Merrill and was very aggressive in fighting the plaintiffs’ claim that the banks
could be found liable in a private right of action for aiding and abetting securities fraud.
This was large multi-district litigation being run out of federal court in Houston, and the
parties arranged for large deposition centers in New York—in the Chrysler Building—and
in Houston. One party or the other would schedule the deposition of a witness and they
would then negotiate the amount of time a particular party could depose that witness.
Lawyers from all over the country would then travel, say to the Chrysler Building, to attend
the videotaped deposition. There would be banks of tables, with maybe 30 lawyers or more
sitting at these tables—not paying attention to the deposition but instead staring at their
Blackberries—while one lawyer questioned the witness for a period of time, until it was
time for the next lawyer to ask questions. And while I was not attending every deposition,
nor even most of them, I was going to depositions in both New York and Houston. Very
late in the process, and to the surprise of the defendants who had not settled, Fastow made
an agreement to cooperate with the plaintiffs in the civil cases. The plaintiffs knew that the
money was with the banks, and they were therefore anxious to prove that the banks were
not mere aiders and abettors but were primary actors with Enron in its fraud. So they made
a deal with Fastow where they let him keep what was left of his money—or most of it—
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and he would provide evidence against the banks. It truly was a devil’s bargain. Some of
the financial institutions had already settled. Merrill was not going to do that, and so, all of
a sudden, we got this affidavit from Fastow that specifically targeted the financial
institutions and, more particularly, targeted Merrill and, more particularly still, described
conversations supposedly with my client, once a good friend of his. By this time he has
started serving his sentence so he was in custody. The plaintiffs made arrangements to pay
for his security for him to come to the deposition center in Houston for up to nine days of
depositions.
Stu Pierson: They being the plaintiffs?
Bob Trout: The plaintiffs. They had him locked in, so this was going to be nine days of
. . .
Stu Pierson: Cross-examination.
Bob Trout: Cross-examination by the various other people, primarily the banks. Well
this was a lawyer’s dream. Andy Fastow had become almost this mythical figure in one of
the largest corporate meltdowns in history, and he’s going to be deposed. I think I was
allocated 45 minutes. And I think that Merrill would have preferred for me not to ask any
questions, because they clearly didn’t want me screwing it up. But I was not going to do
that. I was going to take advantage of my time to cross-examine Fastow. And I had no
intention of screwing it up. My time came on something like day four. I had a pretty good
cross lined up for this guy. But one of the key pieces of evidence was this conference call
that my client was on with Fastow and others from Merrill and from Enron. From Merrill’s
perspective, there were no guarantees, Merrill would be at risk, the only assurance they got
from Fastow was that he and Enron would use their best efforts to find a buyer that would
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buy the Nigerian barges from Merrill within the next six months. The plaintiffs, like the
government before in the criminal case, were trying to prove that Fastow had made a
guarantee that Merrill would not own the barges more than six months, that Merrill had no
risk in the transaction. Such a guarantee would have killed the accounting treatment for the
transaction. Essentially, it would have been treated as not a bona fide sale so that the sale
should not have been booked as part of the year end earnings. So when I finally had Fastow
on cross, among the questions I had in mind to ask him were a couple that I knew presented
a risk, but I thought were worth the risk because I thought he would deliver what I wanted.
I asked him, “When you got on the call with the bankers from Merrill, did you want to
make sure that you didn’t say anything that would blow the accounting?” He said, “Yes.”
My next question was, “And when you hung up the phone after the call, were you satisfied
that you hadn’t said anything that would blow the accounting?” And he said, “Yes.”
Stu Pierson: Your witness.
Bob Trout: Yes. Done. For the deposition, all the lawyers were using Realtime or
LiveNote for simultaneous transcription. By the time this deposition was occurring, the
criminal convictions in the Nigerian barge case had been overturned and the case had been
sent back for retrial. The defendants were engaged in collateral Brady litigation, trying to
get additional discovery that they hadn’t had previously, and also engaging with the
government to persuade them not to retry the Nigerian barge case. And while the Fastow
deposition was going on, I was in touch with Larry Robbins, who was then representing
one of the defendants who was facing possible retrial of the Nigerian barges criminal case.
By email, I was sending excerpts of the transcript to Larry. And when I sent him that little
segment from the cross of Fastow, Larry was thrilled. I don’t know whether, at the end of
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the day, that may have made an impact in the government’s decision to just drop the
criminal case and not retry the case. The momentum had turned, I think, a little bit in favor
of the defendants. The government had brought a criminal case against Arthur Andersen,
which had caused the company to go out of business and had created unemployment for
many thousands of innocent people, and then the Supreme Court unanimously held, in
effect, that the case should never have been brought. For the Enron Task Force a number
of their initial victories had turned into not victories. And one of those had been the original
criminal case involving the Nigerian barge deal. I was not privy to what the government
was thinking and why they decided not to retry the Nigerian barge case. But what happened
is that those individuals entered into a settlement with the SEC—probably paid them a little
bit of money, I don’t know—and then they dismissed the criminal case. So the Nigerian
barge criminal case just went away. It ended up being dismissed.
Stu Pierson: And the shareholder litigation was settled eventually?
Bob Trout: No, Merrill had made the right bet, that legally under 10(b)(5) it would
shake out that Merrill could not be found liable in a private securities fraud case for aiding
and abetting the primary actor. But the district court was basically giving the plaintiffs
whatever they were looking for. The defendants seemed never to win in the district court.
So it went up to the Fifth Circuit. And around this time there was litigation headed to the
Supreme Court on this very issue—could a third party in a private action brought under
10(b)(5) be found liable for aiding and abetting. The Supreme Court eventually made it
clear that there was no such aiding and abetting liability. And the Fifth Circuit, I think
maybe in anticipation that the Supreme Court would rule that way, said that there was no
such aiding and abetting liability. So the Fifth Circuit reversed the decision of the district
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court that had certified the class. And it just ended. The Supreme Court ruled in a related
case, and the case went away for Merrill. Everything was done as far as my client was
concerned, except the SEC case was still pending against him. It had been stayed because
Fastow was cooperating, but that was long since over. A couple of the Merrill people had
settled with the SEC as part of the government’s agreement to drop the criminal case rather
than retry it. So there was this loose end, the SEC suit, with my client. The lead lawyer for
the SEC who had brought the case had long since left the government. It was probably in
2012 that I received a call from his successor at the SEC. He suggested that maybe my
client should settle with the SEC. It was a short and frank conversation. By this time there
had been the financial meltdown, and there was a lot of talk about why weren’t any of the
individuals—the miscreants who were involved in the subprime debacle—why hadn’t they
been called to task. So there was a lot of criticism about how the SEC was doing its job, or
more pointedly not doing its job. And I’m sure I conveyed that if they pursued this, they
would not hear the end of criticism from me about the utter waste of proceeding with this
10-year-old case and about how the government was choosing to deploy its resources. My
client had been basically barred from the industry since 2002. He hadn’t had his license.
He had been out of the industry. They could not seriously be thinking about using scarce
resources to go after this deal. As I say, it was a frank conversation, and I conveyed we
were not interested. Of course I called my client to let him know about the conversation,
and he approved. And I didn’t hear anything back from the SEC. About six months later,
the SEC formally entered a dismissal of the SEC case against my client. So my client
avoided the criminal case, and any personal liability in the civil cases, and the SEC suit.
Of course, he didn’t avoid all of pain. There was a lot of stress, undoubtedly. There were a
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lot of close calls. There was a lot of very bad publicity. But he is an elegant person, and he
is very well grounded, so he survived. In fact, he has thrived. He has a great family, and he
got to spend time with his children that he wouldn’t have otherwise spent. And so he has
been very philosophical about it. He has a wonderful life, and we continue to see each
other.
Stu Pierson: So are we right about 2009 or ’10?
Bob Trout: Yes, on that case. But the real serious work in that case was really done
through June of 2005 when we knew that we were in the clear of the criminal case.
Stu Pierson: So why don’t we take a break now and we’ll do the next ten years in the
next session?
[END OF FOURTH SESSION]

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ORAL HISTORY OF ROBERT P. TROUT
Fifth Interview
March 25, 2015
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Robert Trout,
and the interviewer is Stuart Pierson. The interview is taking place on March 25, 2015, in
Bob Trout’s office at Dupont Circle in Washington, D.C. This is the fifth interview.
Stu Pierson: So 2005?
Bob Trout: In 2005, there was a very important change for our firm and for me
professionally at the very beginning of the year. Unfortunately, I was in New Zealand with
my wife for most of the month of January when it was happening. My wife and I had made
plans many months in advance to spend an extended period of time on the south island of
New Zealand. The flights being as long as they were, we wanted to fly first class. And first
class being as expensive as it was, we wanted to use our miles to get the tickets. That meant
booking many months in advance, and if I had known what was going to happen in the fall
of 2004, I probably would not have scheduled the trip. But having scheduled it and invested
the miles and made the arrangements, nothing was going to keep us from that trip. What
happened in the fall was that I met with my good friend Plato Cacheris for lunch. I had
been thinking that I wanted to find another lawyer who could help our firm develop
business. Recall that in 2000, we moved into space that Plato had under lease and we shared
space for a few years. In 2003, Plato had decided not to renew his lease in that space at
1100 Connecticut Avenue, so he and John Hundley moved to Baker & McKenzie, one of
the largest firms on the planet. Ironic because Plato had never been a big firm sort of
lawyer. We moved out of that space to the building we now occupy on Dupont Circle,
although then we occupied a suite on the top floor. So one day in the fall of 2004, Plato
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and I were having lunch. I thought he might have his ear to the ground and might have
some ideas about lawyers who had a nice practice but were unhappy in a large firm. So I
asked Plato if he knew anyone who might be interested in joining our firm and who could
share the burden of generating business for the firm. Plato responded, “What about me?”
He said that the big firm was not really for him—no surprise there—and suggested that he
and John Hundley join our firm at the beginning of 2005. We obviously wanted to make
this a big deal for our firm, as it was, with an appropriate amount of hoopla in the litigation
bar. Obviously it was important to me to welcome Plato and John when they moved in, but
it was also important for me to respond promptly to all the congratulatory emails that would
be coming in, as they did. Unfortunately, I was on the other side of the world, only
periodically accessible to email. One issue we had to address was the name of the firm.
John Richards and I had formed the firm over eight years before as Trout & Richards. We
were known in the marketplace, but obviously it was important to have Plato’s name in the
firm. John is a brilliant lawyer, and his legal talents unquestionably were important in our
developing our brand and our reputation for quality. But he had not spent a lot of his time
marketing himself, and so he was not as widely known, and his referral base was not as
robust. He graciously recognized that to maximize what Plato could do for our firm, and to
showcase Plato’s presence, it made sense to substitute Plato’s name in the firm for his. For
many years one of my dearest friends has been Roger Zuckerman. He has been a friend, a
mentor, a counselor. In fact, when I was single, at our regular lunches, Roger would counsel
me on my love life. “Dr. Love,” he called himself. So of course after learning about Plato’s
interest in joining our firm, Roger was one of the first persons I spoke to about it. Roger
was thrilled, but he advised me that my name should remain first in the firm name. Plato
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was joining our firm, I was younger and would be practicing longer, and our practice, which
included commercial litigation, not just criminal, was broader. When I discussed the firm
name with Plato, he did not hesitate a second, and so we renamed the firm Trout Cacheris,
which in keeping with the trend was without an ampersand. When we sent out
announcements, because Plato is such a legal legend, I think many people were surprised
that my name came first. That of course did nothing to diminish Plato or our firm, but I
think it probably did enhance my professional standing. So that was an important
development for our firm in early 2005. Later in 2005, there was another important
development. I got a call from Bill Jeffress about a potential new client. Bill had done a lot
of work in New Orleans and knew a lawyer there who does a lot of criminal work by the
name of Mike Fawer. Mike had been contacted by Congressman William Jefferson after
the FBI searched Jefferson’s home in New Orleans. I had read the article in the newspaper
about the search of the Congressman’s home in New Orleans. There was nothing in there
about $90,000 in the freezer yet. So it was just a relatively small article. And a day or so
later, I received a call from Bill Jeffress, who said that he had gotten a call from this lawyer
down in New Orleans, but he was preoccupied with another case that was scheduled for
trial. The investigation was being run out of the Eastern District of Virginia, and we do a
lot of work there. And so Bill referred William Jefferson to me. And within a day or so,
William Jefferson called me. He came to see me, and we met in this very room where you
and I are now sitting. He engaged me in that meeting.
Stu Pierson: Did you see all the constitutional issues that reared up?
Bob Trout: Yes and no. I mean, it was not in that first conversation that I spotted any
of those issues. But that day or the next day, I received a call from—or maybe I called—
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Geraldine Gennet, who was the General Counsel of the House of Representatives. The
House had received a subpoena at the same time to produce documents. And so she had
called me, or I had called her, and she suggested that we get together so that she could tell
me about the way the General Counsel does things when they get these subpoenas. So I did
a little bit of looking at the Speech or Debate Clause, which was completely unfamiliar to
me. And then I went to the Capitol to meet with Geraldine and Kerry Kircher, who was her
Deputy and is now the General Counsel. I came in and we exchanged some pleasantries. I
think I introduced the subject by saying, “Tell me everything I need to know about the
Speech and Debate Clause.” And she said, “Well, the first thing you need to know is, it’s
not the Speech and Debate Clause, it’s the Speech or Debate Clause.” I got it. I never made
that mistake again. It’s not to say I didn’t hear judges refer to it as the Speech and Debate
Clause. But the way she handled it, it was one of those things that was indelibly in my brain
from that point on. So we sat down and went through it all. She explained that for Members
of Congress, these are their records. Committee records are treated differently, but for the
Member’s records maintained in their office, if a Member wanted to go out and have a
bonfire on the Capitol grounds and throw all of their records from their office, there is
nothing that stands in the way of them doing that, other than the environmental laws and
the like. But the point is they can do with them what they want. And there are no records
preservation requirements at all.
Stu Pierson: Who’s driving the prosecution or the investigation at this time?
Bob Trout: Paul McNulty was the U.S. Attorney. This was being done . . .
Stu Pierson: Out of the Eastern District.
Bob Trout: Out of the Eastern District of Virginia.
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Stu Pierson: No Main Justice involved?
Bob Trout: There was some Main Justice involvement. What I understood the
investigation was about was the allegation that Jefferson was using his office to further
private business activity for his own personal gain. That was essentially what the allegation
was. Jefferson had met someone who had developed a technology that supposedly would
carry high speed broadband over copper wire. He was helping to find money and
opportunities for this technology. One of the opportunities was in Africa, where Jefferson
knew a lot of leaders of African countries owing to his interest in the continent and to his
leadership in Congress in promoting trade with Africa. As part of the process of finding
money, he was introduced to the employer of one of his former staffers. She was an
attractive young woman whose father had sold a high tech company for a lot of money. So
she was quite wealthy, and she was looking around for ways to invest her wealth. Sometime
earlier, she had hired Jefferson’s former staffer to help her identify investment
opportunities. And that is how Jefferson came to deal with her. But there was a problem.
For reasons having nothing to do with Jefferson, or her attitude about him, she became
concerned about the investment and whether she was being ripped off by her employee and
the person who controlled the technology. And so she went to the FBI, not to complain
about Jefferson but rather to complain about the other two. Of course, when the FBI heard
a member of Congress was involved, they jumped to the conclusion that there must be a
corrupt scheme of some sort, and Jefferson became the focus of their investigation. So she
became a cooperator. And as the investigation evolved, at the instigation of the FBI, the
cooperator proposed that, to increase the chances that Nigeria would invest in the
technology, they should bribe the Vice President of Nigeria, whom Jefferson knew. And
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so because it was being put together as an FCPA case—it was a sting operation and it was
wired for that—it fell under DOJ Fraud rather than Public Integrity. Fraud is the unit that
handles investigations under the Foreign Corrupt Practices Act. And with that as
background, my partner Amy Jackson and I went over to Alexandria to meet with the
prosecutors. We were trying to straddle two competing ideas of cooperating but not
providing anything. Normally in this situation you wouldn’t even go through a pretense of
cooperating, but Jefferson was a Member of Congress, and we thought it was important to
avoid anything that publicly appeared to be stonewalling. There were some aspects of this
that are not public and are covered by the privilege obviously, so I cannot discuss them.
Stu Pierson: Sure.
Bob Trout: We met with the prosecutors and had some initial conversations with them.
And we got additional time to respond to the subpoena all at the same time that we were
trying to figure out what we were going to do about this. And so we were trying to get
educated about the Speech or Debate Clause. And we were trying to understand the
implications of the idea that the documents in his office are essentially personal documents.
At this point we knew—but the public did not—that the FBI had seized $90,000 in marked
bills from Jefferson’s freezer in his home in D.C. We also knew that originally the
cooperator had given Jefferson $100,000 in marked bills with the expectation he would be
giving that to the Nigerian Vice President, who had a house in Potomac, Maryland where
the Vice President had been visiting in late July or early August of 2005, around the time
the cooperator gave the cash to Jefferson for the stated purpose of passing it on to the Vice
President. The government had assumed that Jefferson had given the cash to the Vice
President, so when they raided Jefferson’s homes in early August 2005, they also raided
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the Potomac home that the Nigerian Vice President maintained in the U.S. Undoubtedly
the FBI was disappointed that they found no cash in the home of the Nigerian Vice
President. But since the FBI found only $90,000 at Jefferson’s D.C. residence, rather than
the $100,000 that the cooperator had given Jefferson, the government was probably
wondering what happened to the other $10,000 that they had not recovered. We knew that
Jefferson gave about half of it to one of his staffers, who needed some money, and we were
able to verify that. And the rest of what he had, which was $4900, he gave to me. So we
had some of the cash that the government was missing; it was being stored in our safe
deposit box. And the question was, what do we do with this cash? In the beginning we
thought that maybe the FBI was thinking that the missing $10,000 had been given to the
Nigerian Vice President, in the nature of a deposit. And if that was what the FBI was
thinking, maybe the government would pull the trigger on a quick indictment and take that
as their theory of the case. And if they did that, we could easily prove that none of it was
given to the Vice President. So we wanted to see where the government was going to go
with this. At the same time, we had possession of the marked bills, which we knew the
government obviously wanted to find. And the question we had to answer was what was
our ethical obligation in handling the cash. If it was contraband—something illegal to
possess, such as narcotics, illegal weapons, or stolen property—we had a different
obligation than if it wasn’t. It didn’t seem to be stolen property—the cooperator had
voluntarily given the briefcase full of cash to Jefferson. Yes, it would be viewed as
evidence of an alleged crime, but we had a duty of confidentiality to our client, and we
didn’t have to turn over evidence to the government just because we knew the FBI would
want it. There was also the question whether it was covered by the subpoena.
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Stu Pierson: Who was your judge?
Bob Trout: Judge Ellis. But it took us four years to get to trial.
Stu Pierson: No way to persuade the government that they didn’t have a case?
Bob Trout: Well, I thought that was just not going to happen. And I knew that we had
a relatively thin budget that we would be working with, and I just didn’t see that it made
sense to squander it all on pretrial stuff. With the FBI discovering $90,000 in the freezer–
the allegations he was going to bribe the Vice President of Nigeria, which was basically
the setup of the sting—I just didn’t see the government walking away from that. William
Jefferson is the nicest person. There is a gentility to him, so generous and kind in his
manner. It’s such a tragedy what happened to him. But it didn’t seem realistic that his
lawyer could persuade the government not to bring an indictment. But one of the early
events was we had to figure out what we were going to do about the subpoena. There were
two aspects.
Stu Pierson: The one to the House?
Bob Trout: No. He got one in his personal capacity. He got one as a Member of
Congress for all the stuff in his office. And the House got one. So as I said, with respect to
the records in his office we were armed with the information that those are viewed as his
personal records. The other thing we had to deal with is we were sitting on a certain amount
of cash—$4,900. This is all a matter of public record now, although it wasn’t at the time.
What do we do about the cash that by now was in our safe deposit box? By this time,
Jefferson had assembled a team from different firms. And so Amy and I were doing one
thing, and there was another lawyer who was going to be doing something else, and so on,
including seeing if the political powers could be reached here. And, as I say, I thought that
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that was just never going to go anywhere. And I wasn’t going to spend my time, and his
resources, on that. But there was a lot of internal debate as to whether or not we could
appropriately keep the–
Stu Pierson: Keep the funds?
Bob Trout: Retain the funds. No, we weren’t going to deposit them anywhere. We had
them in a safe deposit box. And as I say, there was some thought that if they were going to
return an indictment quickly, and if they were basically going to allege that this $10,000
was delivered to the Vice President, we were going to have this hold card that we could
play to prove that did not happen.
Stu Pierson: Not exactly an ace, but . . .
Bob Trout: Right.
Stu Pierson: At least a face card.
Bob Trout: But there was this internal debate including some thinking among the
lawyers that we needed to turn the marked bills over to the government, that we had an
obligation to turn it over. I was not convinced that we did. As a matter of fact, I think to
the contrary—if our client had said, “You’re not turning that over. I gave that to you as
part of a confidential conversation, and, unless it is contraband, you can’t turn it over.” We
consulted with counsel to advise us as to our obligation. I can’t remember whether I talked
to Bar Counsel, but I know that there are procedures, if you have contraband, for getting
rid of it in a way that does not incriminate your client. Long story short, when the sting did
not work as the government expected—the money was not found at the Nigerian Vice
President’s house in Potomac—the government appeared to settle in for a long
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investigation. And Jefferson authorized us to turn over the cash. So the debate over what
our obligations were became moot
Stu Pierson: So we’re still pre-indictment?
Bob Trout: Oh, yes. The indictment didn’t happen for two years. So, anyway, I went
over to the U.S. Attorney’s Office with my then partner, now a federal judge, Amy Jackson,
and we took with us $4,900 in cash. This was the due date for the subpoena. We took with
us a letter saying that our client would love to cooperate, but because of the uncertainty of
what the investigation is all about, Jefferson has decided that he is going to accept the
advice of his counsel and decline to provide any of his personal documents on the basis of
“act-of-production” privilege, which the Supreme Court recognized in the Webb Hubbell
case.
Stu Pierson: I remember Hubbell well. I got into a big debate with someone, I don’t
know, it must have been about nine months ago, about the meaning of that case and similar
cases.
Bob Trout: We delivered the letter, and I think we had had some other conversations
with them about seeing if we could work out some sort of an arrangement to address the
documents. But it didn’t really go anywhere. So we delivered this letter that essentially
said these are his records. All of the records in his office are his personal records, and he
is not going to produce them. In short, we asserted act-of-production privilege. And we
handed them an envelope with the $4,900. I may have the chronology a little bit wrong.
We may have just sent them a letter asserting act-of-production privilege, but in any event,
we made an appointment with the prosecutors to come see them. And when we got there,
we handed them the cash.
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Stu Pierson: And how long had Hubbell been the law by then? I think Hubbell was
probably not more than several years old.
Bob Trout: Yes, that’s right. That idea had been out there, but it was not until Hubbell
came along that the Supreme Court really grabbed it and said, “Yes, this is right.” Anyway,
when we handed them the envelope containing the cash, the prosecutors were incensed.
They started out, I think, aghast thinking that we were offering them $5,000, “Can you
make this go away?” And even after it became clear what this was, that we were simply
turning over to them evidence that they clearly would have wanted, they remained
nonplussed. I pointed out that these are all marked bills, it’s not like there was going to be
a chain of custody issue or that we were going to make any issue about authenticity.
Stu Pierson: They didn’t have an agent in the room?
Bob Trout: They didn’t have an agent in the room. So they basically insisted we take
the money back to the office with us.
Stu Pierson: And come back and meet again?
Bob Trout: No. We’ll send the FBI agent to your office. So the next day, the FBI agent
showed up and took the money. And that was the end of that. But they were not happy.
They thought that this was a stunt on our part. It really wasn’t. We were just turning over
this cash that we knew that they wanted. And we weren’t going to send it to them by FedEx.
We were going to deliver it in person. And, frankly, we were going to try to take advantage
of the opportunity to have a conversation with the government. But they didn’t show much
of a sense of humor about it, let’s put it that way. There were, as I say, a number of lawyers
representing Jefferson who were doing different things. Personally, I just thought that there
was just too much time being spent in the coordination among all these lawyers and
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debating about what we should do about this and what we should do about that. There was
no real person who clearly was lead. It probably wouldn’t be a surprise that I wanted to be
in the lead, and given the limited amount of available funds to pay fees, and the way we
were spending the scarce fees, I was not willing to be involved if I wasn’t in the lead. And
when we couldn’t get clarity on that, I basically said, “I’m not doing this anymore.” So I
fired myself. Jefferson is a very sweet guy, and we parted on very good terms. I believe the
other lawyers pursued the goal of persuading the government not to prosecute since this
was really not what they thought it was. That obviously didn’t work. In the meantime, the
government began grand jury litigation to determine whether the act-of-production
privilege applied to the documents subpoenaed from his congressional office. In the spring
of 2006, Jefferson called me. By this time he realized that the government was not going
away, the case would eventually be indicted. He wants someone who would try the case.
So Jefferson came back to me. I think he liked us, and I think he thought it was going to be
a more fee-friendly engagement—and surely it was going to be when compared to the large
firm. I was thinking the case the government would eventually bring would look more or
less like what I thought it was going to look like at the beginning. And that it would be a
manageable case. And, yes it would be tough to make it work on the budget that we were
talking about. But in a small law firm like ours, we could do some fun things where we
don’t have the managing partner coming down the hall and beating the tar out of us if we
have—
Stu Pierson: Aren’t billing or collecting?
Bob Trout: Yes. If we have a variance on our collections. Little did I know how big the
variance would be. So what happened in the grand jury litigation is that Judge Ellis—it is
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now public, but at the time it was under seal—issued an opinion that said some of these
records—those maintained by the office manager as custodian—were producible, but other
records—those that Jefferson kept in his personal office in the Capitol—were his
documents even if they involved his work a Congressman. Those documents could be
withheld under the act-of-production privilege.
Stu Pierson: So the act-of-production is part of his decision?
Bob Trout: Yes. No question.
Stu Pierson: Was he the Chief Judge at the time?
Bob Trout: No.
Stu Pierson: How is it that he was hearing this as a grand jury matter?
Bob Trout: I don’t know.
Stu Pierson: Okay.
Bob Trout: In this federal court here in D.C., it is the Chief Judge. Over there in
Alexandria federal court, I don’t know. In any event, he ended up with the case. And as I
recall, in a footnote he said that, of course, there is nothing that stops the Department from
executing a search warrant. You can always execute a search warrant. And he presumably
was thinking out loud, that if you can’t get what you want from a subpoena to a corporation,
you can go in and search it and get what you want.
Stu Pierson: Assuming you have probable cause?
Bob Trout: Yes. Now as I recall, at the time that Paul McNulty was the U.S. Attorney,
Jim Comey was the Deputy Attorney General. I don’t know whether this is true or not, but
I had heard that back in 2005, when we refused to turn over documents based on the actof-production privilege, the U.S. Attorney’s Office, headed by Paul McNulty, wanted to
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execute a search warrant at that time and had been turned down by the Deputy AG,
presumably on Speech or Debate grounds. Congress is different. They have certain
privileges, and we, the Department of Justice are just not going to go there. That is what I
heard. I don’t know whether it is true or not. By the time Judge Ellis had made his decision,
Jim Comey had resigned as Deputy Attorney General and Paul McNulty was the new
Deputy Attorney General. And so I think, armed with this footnote from Ellis, they went
back to the Deputy Attorney General with a request to authorize the search warrant. Now
this is . . .
Stu Pierson: McNulty?
Bob Trout: McNulty. And they got approval. It was around Memorial Day. In the
meantime, the press had initiated litigation to get access to the affidavits in support of the
search warrants from August 2005. I believe Judge Ellis had authorized access to that
material. I can’t really remember the chronology exactly. But, long story short, the
Saturday night of Memorial Day weekend, I went out to dinner with my wife, and when I
got back home—I don’t know why I wouldn’t have had my cell phone with me—there was
a very excited voicemail from my partner, Amy Jackson, who was telling me that the FBI
was at the Capitol searching the office. It was a Saturday night. And she said that she had
called up the prosecutor and had said that she was going to the Capitol, and the prosecutor
had said, to the effect, “You will not be admitted; the FBI has been instructed to keep you
out of the Capitol, so it would be a waste of your time.” Around this time, I was getting all
sorts of calls from the press. And Amy and I are furiously drafting a press release and press
responses to send out. It was a firestorm. It was a very big deal. And so about two o’clock
in the morning, it had finally calmed down. And then bright and early Sunday morning, we
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went in and started working on the motion under Rule 41 for the return of seized property
based on the violation of the Speech or Debate Clause. Because the search was done here
in the District, the matter would be handled by then Chief Judge Hogan, who had approved
the search warrant. Congress was in an uproar over this invasion of the Capitol by the
Executive Branch. So everyone was in uncharted territory, and because the Executive was
by now a bit under siege for what it had done, for the first time in our history, I believe the
prosecutors were themselves treading lightly. I think we got on file by the Wednesday after
Memorial Day. In addition to asking for the return of the seized documents, we sought a
temporary restraining order prohibiting the government from reviewing the documents
while the matter was pending. We talked to the lead prosecutor, and probably because they
knew they were operating in uncharted territory, they agreed not to look at the documents
until the judge had decided our motion for a TRO. Members of Congress were going crazy.
Denny Hastert was very, very angry, and they really raised a stink.
Stu Pierson: I remember that.
Bob Trout: So we filed our motion on Wednesday, and the firestorm just continued.
And then around Friday, President Bush basically ordered a freeze of his own, and ordered
that the Solicitor General take possession of all of the documents and not let anybody see
them for at least 30 days. Amy Jackson came into my office and said, “Have you heard?”
I said, “Heard what?” And she said, “President Bush just entered a freeze of the status quo,”
which was essentially the very order that we asked for when we asked for a TRO. And then
she said, “It’s not every day that a lawyer gets his motion granted by the President of the
United States.” And no more than two minutes later, the Washington Post reporter called
me to discuss the President’s order and to ask me for a comment. So we chatted off the
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record. And then he said, “Can you make a comment for the record?” And I said, “Well,
it’s a good start.” And then I repeated Amy’s line. And so my comment, including Amy’s
clever line, were printed in the Washington Post the next day. About a week later I was
attending the D.C. Circuit Judicial Conference in Nemacolin, PA, and I had any number of
lawyers and judges come up to me to talk about what a great line that was. And of course
I let everyone think that I was the clever lawyer who came up with that line, and I didn’t
set the record straight until telling the story in the speech that I gave about five years later
at Amy’s investiture as a federal judge. Judge Hogan scheduled a hearing on our motion
within the 30-day period, and you could see that he was staging it to make sure he had time
to make a decision within the 30 days. We had a hearing in front of Judge Hogan. And it
was electric. The hearing was in the ceremonial courtroom. And it was packed.
Stu Pierson: Who was arguing for the government?
Bob Trout: Roy McLeese.
Stu Pierson: Was he with the Criminal Division?
Bob Trout: He was the head of Appellate in the U.S. Attorney’s Office here. He is now
on the D.C. Court of Appeals. So he was making the argument for the government. And I
had such a good time with this argument. It was such a pleasure. Chief Judge Hogan, whom
I know, is a real pleasure to appear before. And he is just a nice, nice person. At oral
argument, when I was introducing the procedural background, Judge Hogan interjected
with my line—really Amy’s line—about the President granting the motion for a TRO. We
shared a nice chuckle about that on the record. The government had shifted their position
as to the procedures they were intending to employ to review the documents that they
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argued respected the Speech or Debate Clause. They had set up these protocols to justify
why this was an appropriate search. They had set up some protocol as a search team.
Stu Pierson: A taint team.
Bob Trout: Yes, a taint team, and then they made an adjustment. And they basically
said, “Okay, we won’t do it the way we said we were going to do it in the papers, we’re
going to do it this other way in response to what Jefferson had argued.” I know Chief Judge
Hogan had signed the search warrant, and here we were making the argument …
Stu Pierson: Reconsider.
Bob Trout: Yes, you shouldn’t have done it. So in my argument, I used the fact that the
government had changed its position as to the proper procedure for reviewing the
documents, to express two thoughts. One was what a wonderful thing our adversary system
is that only with the benefit of the adversary system can you really understand that your
first reaction is not necessarily the right answer. I was looking for a hook that might
convince the judge that just because he had approved the search warrant didn’t mean he
should not accept our argument that the government had led him to make the wrong call.
And I said that the other reaction that I had recalled the old Mel Brooks TV show, Get
Smart, “Okay if you don’t believe our original procedures are constitutional, would you
believe our new procedures are constitutional.” And that drew a big laugh from the
audience. I just had a ball during oral argument. I knew what the outcome was going to be,
that the search was going to be upheld. We didn’t believe for a moment that there was
really anything that the government was going to get from the search that they didn’t
already have. But we decided that we were going to spend our time and effort doing this
because it was a fun legal issue. It had never happened before in the history of the United
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States. There had never before been a search of a congressional office. This was a case
truly of first impression. And that doesn’t come around for lawyers every day. And it was
high profile. The other thing is we also thought we could win it in the court of appeals. We
didn’t think we were going to win it in the district court, but we thought that we could win
it. And we were doubtful that we were going to have a lot of wins in this case, so we said,
“Let’s go for this because maybe it will alter the equilibrium.” There had been a D.C.
Circuit case that had been decided by Judge Silberman. He had written an opinion
involving the tobacco company, Brown & Williamson. It was very hard to see how this
search worked if Brown & Williamson was the law. And if we could have picked the judge
to be the judge we were citing to in this circumstance, it would have been Judge Silberman,
because we knew how respected he was by some of the judges who we thought might not
be on our side. Well we didn’t win it in the district court, so we asked for a stay in the
district court so we could take the issue to the court of appeals. Chief Judge Hogan denied
our request for a stay. And then we asked for a stay in the court of appeals, and they granted
us a stay that was a little bit different. It basically said, “Okay, here is what is going to
happen because the government says we want to look at this stuff now.” And they said,
“We’re not ready to decide the merits right now, but what is going to happen is Jefferson
and his counsel get to look at the documents first, and the documents they say are not
covered by Speech or Debate Clause—the legislative privilege—the government can see
those now, while the case is pending. And the documents that the defense lawyers say are
legislative in nature and are covered by the privilege, those will then go to Chief Judge
Hogan for his review. And when he makes a decision yes or no, then you’ll get the results
of that.” And so that is the procedure that was set up. It was time consuming. We had a
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lawyer here who went through the documents. First we had to figure out how much are we
talking about because they had all these computer records. And Judge Facciola was going
to be handling this for . . .
Stu Pierson: The details.
Bob Trout: The details for Chief Judge Hogan. Well, they did an initial cut with the
search terms that they wanted. And one of the individuals who was of interest was a guy
by the name of Vernon Jackson, who went by the name Vern. And so one of the search
terms was Vernon, and one of the search terms was Vern. A mutually agreed upon vendor
was going to do all the search terms. Well, the initial cut came back with, I don’t know,
two or three terabytes of documents, which caused Judge Facciola to say he believed that
would fill up, in paper, both of the twin towers of the World Trade Center. And so we
needed to do something to whittle this down. Well, one of the funny things was that when
the vendor did a search for “Vern” the computer picked up the word “government,” so little
wonder that the initial search yielded an unmanageable number of documents. Long story
short, when we whittled the search terms down, we ended up with about 50,000—I don’t
know whether it was pages or 50,000 documents—that had to be reviewed. And we agreed
on a protocol. We actually worked reasonably well with the prosecutors on this. We would
receive a certain amount of documents and would have a certain period of time to review
those documents before the next batch would arrive. So this process of our document
review probably took close to six months. Chief Judge Hogan was getting these, but it was
not like he was spending his time reviewing all the documents on which we were claiming
legislative privilege. It was always our point of view that all of this was personal business
unrelated to his legislative activities. This was not a crime. This was just personal business.
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So it would have been inconsistent with everything we had been saying about this for us to
say that any of this was covered by the privilege—the legislative privilege. So we made no
claim of privilege as to anything the government wanted. All of that went to the
government. They were scratching their heads thinking about what we might be holding
back. There wasn’t anything being held back related to what they were investigating
because that was totally inconsistent with everything that we were saying about the matters
under investigation. And in the same time period, we were briefing up the legal issue before
the court of appeals. We had a great team of brief writers on this brief. Amy Jackson, now
Judge Jackson, is a superb writer. And we also had our partner, Gloria Solomon, who is as
good a lawyer, as clear a thinker, and as clear a writer, as you could find. I also had a hand
in writing the brief. It was a collaborative process. We wrote a very good brief. Within a
day or two after filing it, I saw some folks from DOJ at an Inn of Court event, and they
came up to me and said that the word in the Department was that we had written a hell of
a brief. So it was a good brief. I can’t remember, but I think it is true that the brief for the
government was written in the Solicitor General’s Office by Michael Dreeben.
Stu Pierson: I would have thought perhaps that the S.G. would have been involved even
at the district court stage.
Bob Trout: No.
Stu Pierson: I mean, that’s against their tradition and their practice, but if you’ve got a
Presidential declaration, that’s pretty important stuff.
Bob Trout: Right. So anyway, we had our oral argument. Michael Dreeben, who is a
friend whom I’ve known for some time, was arguing for the government. He is a brilliant
lawyer, and I was proud just to be on the same stage with him. We argued the case before
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Judge Doug Ginsburg and Judge Rogers and Judge Henderson. And as far as I was
concerned, my trump card, at least in the D.C. Circuit, was this Brown & Williamson
opinion that Judge Silberman had written. I remember Judge Rogers asked me whether the
courts were even allowed to get into this, since we were arguing this was legislative
privilege and the material was off limits to the executive. When we first started briefing
the issue in the district court, this issue had come up, whether the Speech or Debate Clause
was so absolute that neither of the other two branches, the executive and judiciary, had any
business in this at all. And there were some very strong arguments from people representing
the interests of Congress that we should be arguing that separation of powers meant that
the judiciary had no more right to get involved in this than the executive did. I did not see
how that would work, and I did not think that could win. After all, we would have to get a
court to say that. So we never argued that, and probably in our brief we basically conceded
that, yes, the courts get to be the final say on this. But at oral argument, Judge Rogers asked
me about this—are we allowed to see this, are we allowed to decide this?
Stu Pierson: Do we have jurisdiction?
Bob Trout: Yes. And I said in response, “For 35 years, I have yearned for a case where
I could cite Marbury vs. Madison, so yes, the courts have a say.” They all smiled. The other
exchange I remember was a question from Judge Henderson to Michael Dreeben. If I recall
correctly, she asked something like, “How do we get around Brown & Williamson?” And
I think everyone interpreted that as expressing her point of view that she wanted to uphold
the search. I think there may have been a murmur in the audience, so I think she may have
tried to rephrase the question. I don’t remember how Michael handled the question, but as
far as we were concerned, there was no way to get around the holding in Brown &
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Williamson in the D.C. Circuit. Brown & Williamson was basically a disclosure case, the
point being that Members of Congress have a privilege not to disclose legislative material.
In the Speech or Debate context, the easy case is whether material protected by Speech or
Debate Clause can be introduced as evidence against a member of Congress? That’s easy.
There was plenty of Supreme Court precedent on that. Then the question was, what about
a disclosure obligation? This is not about whether the evidence will be used. That is for the
trial court. The disclosure question is, can a member of Congress be forced to disclose
legislative material protected by the Speech or Debate Clause? That issue had never before
been decided in the context of an FBI search of a congressional office. This was the first
such search in the history of the Republic. But Brown & Williamson addressed it in the
context of a subpoena. What happened in Brown & Williamson is that there was a paralegal
working for the law firm that was representing Brown & Williamson in tobacco litigation.
And that paralegal had taken documents incriminating or adverse to Brown & Williamson
in private litigation relating to smoking, and the paralegal had given them to Congress. And
so Henry Waxman was having hearings about these scalawags at the tobacco companies.
And Brown & Williamson was suing the law firm, or at least the paralegal. And so with a
lawsuit pending, the tobacco company subpoenaed to get their own stolen records back
from Congress. They actually said, “Just give us copies.” And Judge Silberman, writing
for the court—the unanimous court—said, “No, Speech or Debate Clause. You don’t get
it. They don’t have to turn it over.” The Speech or Debate Clause is implicated just as much
by a member being forced to disclose privileged information as having it be used in
evidence against the member. So we had the benefit of that precedent in the D.C. Circuit.
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Long story short, in due course we got a two to one decision against the government on
that upholding our position.
Stu Pierson: Ginsburg is the one?
Bob Trout: No, Judge Henderson. So the government basically reacted, “This is a
problem,” and they were counting the ways that it was really going to be a huge problem
for the government in rooting out corruption. There was a lot of Chicken Little, the sky
was going to fall. And Members of Congress were going to be able to—
Stu Pierson: Engage in fraud with impunity.
Bob Trout: Yes. And, of course, we were sitting there saying, “Well for two hundred
and some odd years, they had never searched a congressional office before. Really?”
Stu Pierson: And the Republic is still standing.
Bob Trout: Yes. So they petitioned for rehearing en banc. And I think, by something
like a five to four vote, the vote was not to rehear it. At that point the government petitioned
for a writ of certiorari. And they basically said, “This is a really big deal. You need to grant
cert because . . .”
Stu Pierson: Who was the AG at this point?
Bob Trout: It would have been Mukasey. And by this time, Nancy Pelosi had become
the Speaker. Denny Hastert was no longer the Speaker, and Irv Nathan was the House
General Counsel. I’ve known Irv a long time. He’s a good friend. So we had been working
together to fashion the arguments. In the court of appeals, we had a number of amicus briefs
that I think Irv helped organize. I think there were three amici for us, and I think the
government had one or two on their side. So it was a big deal. It was such a fun case. But
now we were in the Supreme Court, and we needed to write our opposition. Gloria Solomon
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really took the lead on that. And I would say in her first two pages, where she set the stage,
she won it. It was really good. And so we wrote our brief. And then we had one of those
frightful occurrences. We had finished our brief. It’s not like it couldn’t take another edit.
But we had gone through a number of edits. And somehow we thought we had the word
count right. I can’t figure out what the problem was, but we got a call from the printer at
about 5:00 p.m. on the day it was due to be filed by midnight. We were over the word
count.
Stu Pierson: And you had to file that day?
Bob Trout: Yes, but we had until midnight.
Stu Pierson: I know about those.
Bob Trout: And so we were in panic mode. So the three of us separately sat down and
we had in mind that, if worse came to worse, we could take out those first two pages and
the brief would still hang together. But those first two pages that set the stage were really,
really good. So I really didn’t want to do that. I thought those two pages said it all. It’s not
like what was in the first two pages couldn’t be found in the rest of it. But it was so wellexpressed in such a condensed package. So we divided up the brief, and the three of us
went through cutting everywhere we could. And by about seven o’clock, we had it down
within the page limit, and we got it filed by the midnight deadline. And some time later,
we were coming up to the Justices’ Friday conference where they were going to consider
the government’s petition. That Friday afternoon, after the conference, I called up Michael
Dreeben and I said, “Michael, do you have any intelligence as to what they did?” And he
said, “No, we’ll find out the same way you’ll find out. On Monday morning we’ll go on
Scotusblog.com at about 10:15 and find out.” And we chatted for a while, and as we were
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about to hang up, he said, “One more thing, you guys wrote a hell of a brief.” Coming from
Michael, that meant a lot. It was a very generous thing to say. But he was right. It was a
really good brief. And they denied cert. And many in the press and the cognoscenti who
had been following the issue had assumed the Supreme Court would grant cert. and decide
the issue.
Stu Pierson: Well, it was such a juicy case.
Bob Trout: Yes. That was in 2008 when the Supreme Court denied cert. But in the
meantime, the investigation had been proceeding. We had our oral argument in the D.C.
Circuit in May 2007, and I was assuming the government would not indict the case until
the D.C. Circuit decided the case. And I was thinking it would be a while. In June of 2007,
I got on a plane one Monday morning to go meet with a client in California. And when the
plane landed, while it was still taxiing to the gate, I turned on my phone, to pick up message.
And there are like 18 voicemails for me, from my office, from various news outlets
including The Washington Post. I was literally waiting in the aisle to deplane, listening to
messages that my client, William Jefferson, was being indicted that day. The press wanted
to know if I had any comment. And so I called my office. At the time we were working
with Judy Smith, who did crisis management and communications. She was pretty well
known at the time and she is even better known today as the inspiration behind the hit TV
series, Scandal. She is very nice and she was very generous helping us with Jefferson, who
knew Judy. Judy had also done some work with Plato. That’s how she was introduced to
me. Judy is a lawyer herself, so we were very much in sync, and she never made a
recommendation that was at all inconsistent with what we the lawyers thought was in the
best interest of the client. Judy spends a lot of time in D.C., but her permanent residence is
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in Los Angeles, which is where my plane had landed when news arrived that Jefferson was
being indicted that day. I was literally still on the plane waiting to get off. And she was
telling me, “You need to have a press conference. The Deputy Attorney General is having
a press conference this afternoon at 2:00. You need to have a press conference at 4:00.”
She told me she could arrange for it from D.C. where she was. She suggested that I go to
her house in Hancock Park where her husband was working and where there would be
access to a computer and the internet. She would arrange for a press conference there. And
so I got in a cab and I went to her house, where her husband, a television producer, was
working at home. She has one of the most elegant, beautiful, tasteful homes you can
imagine. So with the advantage of a computer and the internet, I got a copy of the
indictment, and we began to exchange ideas and talk about what we wanted to convey. One
of Judy’s assistants in L.A. arrived to help with logistics. As the time approached for my
press conference, the press trucks started rolling up to the curb of this ritzy neighborhood
in L.A., setting up their cameras. I’m sure the neighbors were horrified, or at least curious.
And then right at the appointed time, Judy’s assistant cued me out the door, down the
walkway, to a live press conference.
Stu Pierson: Facing the mikes.
Bob Trout: Facing the mikes. As I say, Judy and her assistant really made it happen. I
didn’t have to do much.
Stu Pierson: What did you say?
Bob Trout: I can’t remember what I said. I remember I said something like they indicted
an innocent man. Lawyers are prone to legalese, and I know that typically rather than speak
in terms of innocence, a lawyer in that situation speaks about the client being “not guilty.”
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I knew I wasn’t going to be making press statements in the future, that this would probably
be the only time I would make such a statement to the press. So I wanted my statement to
be stronger, and I wanted it to sound less like a lawyer wrote it and more like how I wanted
my audience to think about it. Paul Friedman, the judge who is a good friend of mine, later
said to me, “Bob, innocent?” And I said, “Paul, I thought everybody was presumed
innocent until proven guilty beyond a reasonable doubt.” And he laughed, and he said,
“You are absolutely right.” Frankly, I was more than a little surprised that the prosecutors
with whom I had been dealing for many months would not have given me a heads up. I
still don’t really know why they did it this way. Maybe they were concerned that I might
say something to the press in advance. I don’t know. Not that I would have. But I was
surprised they didn’t call me up and say, “Bob, we’ve reached that point. We’re going to
be going to the grand jury next week. I just wanted to give you a heads-up. You know, let’s
talk about issues . . .”
Stu Pierson: Particularly in a case of that kind.
Bob Trout: Yes. I think I probably said something to them about it.
Stu Pierson: I would have.
Bob Trout: Yes. I’m pretty sure I did.
Stu Pierson: They wanted to manage the PR.
Bob Trout: Yes. In any event, we were able to work out issues of bail and some issues
relating to an asset freeze. Currently, in the Fourth Circuit, the only circuit in the country,
mind you, that allows this, the government can get a pretrial asset freeze on assets that are
entirely unrelated to the criminal offense. Just on the basis of the indictment and a request
for an asset freeze. That can be a huge problem when the government freezes a defendant’s
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assets that the defendant was planning to use to hire a lawyer. But we were able to make
arrangements about that and work it out. At the arraignment in June, trial was schedule for
early in the following year. We had a date for filing pretrial motions in 2-3 months. I think
we filed 13 very substantive motions in the Eastern District of Virginia. It was Amy, Gloria
Solomon, and myself, we divided them up. One of the motions was based on Batson.
Stu Pierson: In the grand jury.
Bob Trout: No, the Batson argument was based on the government’s selection of venue
in the Eastern District of Virginia. Every member of Congress who had been indicted
before this on corruption charges had been indicted either in Washington, D.C. or in their
home district, until now. For the most part, the recorded meetings that the cooperator had
with Jefferson were in Washington. The meeting where the cooperator gave Jefferson the
cash was also supposed to take place in D.C., but the FBI used a ruse to get the meeting
changed to the Pentagon City Ritz Carlton. And so we came to refer to that as the Monica
Lewinsky Ritz Carlton. It was where the FBI arranged for Monica Lewinsky to meet Linda
Tripp on the day that the FBI ended up holding Monica for hours in an effort to get her to
cooperate. We use to joke that the FBI probably had a permanent surveillance set up at the
Pentagon City Ritz, for whenever they want to do one of these stings. So they had that
connection to Virginia and they also had the fact that when Jefferson flew to Africa as part
of trying to help promote this business, he flew out of Dulles. But basically the center of
gravity of the case was clearly in D.C. And so we were essentially arguing that they had
selected Virginia as the venue based upon race. We weren’t accusing anybody of being a
racist. We were basically saying that was what . . .
Stu Pierson: Get them away from a venue that was likely to have more black jurors.
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Bob Trout: Yes. And so we grounded it in Batson. Judge Ellis denied the motion, but I
thought it was a good argument. And well after we lost the issue in court, we wrote a letter
to the Attorney General urging that the Department to change its policy to prohibit venue
selection that could reasonably be regarded as having been motivated by race. It’s no secret
that for far too long, the African American community has regarded the criminal justice
system as not serving them. This would be an easy way of trying to remove race as a
consideration in one of the discretionary judgments that prosecutors are called upon to
make. In any event, it never really went anywhere. We received a polite response from an
assistant to the Attorney General thanking us for our views. And that was that. With our
other motions we had some very interesting legal issues, most pointedly relating to the
definition of official act in the bribery statute. In the federal bribery statute, there is a very
specific definition of official acts. And when you line it up, what it is that they were saying
were the official acts that he committed, it just didn’t seem to fit the definition that was in
the statute.
Stu Pierson: So is this general fraud statute no longer FCPA?
Bob Trout: Well, they did include an FCPA count. They alleged a conspiracy. They
alleged basically, yes, he had an agreement with the Vice President. And so their theory
was he had gotten the money to pay the Vice President. He just never got around to
completing it. So they had a conspiracy count related to the money in the freezer. When
they found the cash at Jefferson’s residence rather than at the Nigerian Vice President’s
house in Potomac, they realized they didn’t have the locked-down case that they thought
they were going to have on the FCPA. So they started looking at everything else they could
find that Jefferson might have been involved in. They found other instances where
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Jefferson was talking to businessmen about opportunities in Africa. And these would
involve opportunities in which family members of Jefferson would have a role that would
include compensation or a financial stake for the family member. We learned that the
government leaned pretty hard on these businessmen, who initially denied that there was
any quid pro quo, but later changed their story. So as part of the indictment, apart from the
charges arising from the sting operation related to the broadband opportunity in Africa, the
government alleged a number of other bribery schemes involving these other business
ventures in Africa. So on the issue of bribery, in their indictment the government alleged
that Jefferson had committed all these official acts. And it seemed to us they had actually
never focused on the statutory definition of official acts in the bribery statute. Yes, there
were things that Jefferson did when he had his Congressman’s hat on. But when you look
at the definition of what constitutes an official act, it just didn’t seem to line up in the
statute. So we filed a motion to dismiss on that basis, that whatever the public official does,
to constitute an official act under the bribery statute it really has to be within their
jurisdiction to . . .
Stu Pierson: Act.
Bob Trout: Act. And so there was actually some case law that if someone uses their
influence with some other agency—in other words, they don’t have the authority to make
the decision themselves, but they use their influence with that other agency which does
have the authority to act—that doesn’t constitute an official act under the bribery statute.
And so we filed our motion, and thus began what we regarded to be an evolving theory of
the prosecution where they scratched their head and said, “We’ve got to come up with
something.” So they came up with a theory of constituent services, that he was helping his
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constituents. Now actually none of these people was his constituent. They were
businessmen who had interests in matters that he was interested in. But they weren’t from
his district; they weren’t voters for him. Anyway, we could not move Judge Ellis from his
common sense belief—which we argued was not in keeping with the specific statutory
definition—that if you pay someone to use their influence with someone else, because it
sounds corrupt, it must be bribery. And Judge Ellis kept probing about that. And we
basically said, “Yes, that is what it sounds like, but that is not what meets the definition.
And you’re really bound by what is in the definition.” The other thing is that there was a
Supreme Court case, Sun-Diamond …
Stu Pierson: I remember it vaguely.
Bob Trout: It was a gratuities case. Justice Scalia wrote the opinion, and it was very
similar. Yes, all of what is in there sounds like what ought to be illegal under the gratuities
statute. But if you look at the definition, it doesn’t work. And they threw out the conviction.
So we were working with that, and that ultimately ended up being the basis for the appeal
following the trial. But before we went to trial, we had two other appeals in the Fourth
Circuit. Recall that a short time before the search of Jefferson’s office, Judge Ellis had
ruled that the subpoena of records from his office was not enforceable to get what was in
his personal office. Judge Ellis basically said, “They can have part, but not all.” We
appealed the part where he said, “They can have some,” and the government appealed the
part where he said, “You don’t get what’s in his office.” That ruling was under seal for a
good while, and Amy Jackson argued the appeal in the Fourth Circuit. We and the
government both won and lost. Basically, the Fourth Circuit affirmed Judge Ellis’s
decision. That happened before the indictment. And then we had the litigation in D.C. and
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in the D.C. Circuit related to the search of the Congressional office. For the most part, that
litigation took place before the indictment. After the indictment came down, we obtained
evidence showing that government had introduced evidence in the grand jury material that
we believed was covered by the Speech or Debate Clause. As part of its theory of the case,
the government wanted to prove that Jefferson had a lot of influence in Africa. And so in
the grand jury the government introduced evidence that Jefferson was very influential in
Africa owing to his sponsorship of legislation in Congress that provided for increased trade
with Africa. This was information that classically fit the definition of Speech or Debate
material. As I mentioned, we had filed a good number of motions, and Judge Ellis dealt
with them all, except for our motion to dismiss the indictment on the grounds that it had
been tainted by the introduction of material protected by the Speech or Debate Clause. This
was one of the few situations where the law allowed for an interlocutory appeal by a
defendant if the judge denied the motion. So the government and we had to remind Judge
Ellis that he had not ruled on this motion, and we needed a ruling because even a denial of
the motion would cause a delay in the trial if we took an interlocutory appeal. The law was
clear on this, and probably in an earlier era, the courts would have clearly recognized that
this was Speech or Debate material and that the indictment was tainted by its introduction
before the grand jury. But I don’t have a sense that the courts are as steeped in this issue as
they may have been in the past. We were thinking we had a really great motion. But we
couldn’t get any traction at all—not before Judge Ellis, not before the court of appeals.
There were a number of Supreme Court Speech or Debate opinions back in the ’60s that
would have led you to believe that the Supreme Court wouldn’t have had any trouble
saying, “This was out of bounds, the indictment needs to be dismissed” But nobody else
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seemed to be getting it. We took our interlocutory appeal and, long story short, it was
another year and a half before we actually went to trial in June of 2009. So the search where
they found the money in the freezer was in August of 2005, and it was in August 2009
when jury’s verdict came back, I think to the day, four years after the money was found in
the freezer. It was a very interesting trial.
[END OF FIFTH SESSION]

152
ORAL HISTORY OF ROBERT P. TROUT
Sixth Interview
May 15, 2015
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Robert Trout,
and the interviewer is Stuart Pierson. The interview is taking place on May 15, 2015, in
Bob Trout’s office at Dupont Circle in Washington, D.C. This is the sixth and final
interview.
Stu Pierson: Today is May 15, 2015. We are at Bob Trout’s office. Bob is across the
table from me. When we last met, we resolved that the next topic would be the Jefferson
trial.
Bob Trout: We were coming up to the Jefferson trial in June of 2009. We had a
wonderful legal team on this case. Amy Jackson, my partner at the time, now a federal
judge, and Gloria Solomon, also my partner were trying the case with me. And we were
doing some skirmishing right up before trial on this whole issue of the definition of official
act and whether in Africa a member of Congress can commit an official act. How can it be
that a member of Congress could commit an official act in Africa if what their official
duties are is to be a legislator in the United States, in Congress? So there was a lot of legal
skirmishing about that leading up to trial. The judge ended up having to back up from a
decision that he had made earlier.
STU PIERSON: The judge was?
BOB TROUT: Judge Ellis. He had denied our motion to dismiss, but in his opinion,
when he spoke about what “official acts” the bribery statute applied to, he seemed to be
ruling out, as an official act, everything that happened in Africa. We said, “Well, if that’s
your ruling, then all of this Africa stuff goes out.” Then the government came back in and
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said, “Well, you got it wrong, Judge.” In effect the government was saying it liked the fact
that he denied the motion, but they thought his rationale was flawed. The government
wanted a more expansive . . .
STU PIERSON: Rationale.
BOB TROUT: Rationale. We basically were trying to take advantage of the judge’s
previous opinion to rule out a lot of stuff that happened in Africa, pretty much everything
Jefferson was accused of doing related to Africa. So there was a little bit of what we would
say was moving the goal post on us, and at the end, the judge basically revised his ruling
to make it conform to the way the government was arguing the case. So Africa was now
back in the case. They were going to bring in an expert witness, a former Congressman, to
say that, whatever it is that Jefferson was doing, it constituted an official act, which the
judge defined as anything that members of Congress routinely do in the course of their
official duties. We had argued that was broader than the statutory definition in the bribery
statute.
STU PIERSON: Would that be a legitimate expert?
BOB TROUT: We argued umpteen different ways that it was not. He was simply
trying to fill in a hole that the government perceived in its legal theory, and he was
essentially testifying as to the ultimate legal conclusion, as opposed to testifying about the
facts. But that argument didn’t win, either. So the government was going to get to put on
their expert witness. We were coming up to the beginning of trial, at which time we asked
for a jury questionnaire. What we wanted to get was a jury questionnaire that would be sent
out to prospective jurors well in advance, which would be returned in time for us to review
well in advance. That would give us a couple of weeks to work on it, think about it, and
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then everybody would show up and we would do the voir dire. We had a lengthy jury
questionnaire that we proposed, and while the judge did not accept our questions, he did
approve a jury questionnaire. The way it worked was that the jurors were going to show up
on Monday, the first day of trial, and Judge Ellis would then instruct them and give them
a couple hours to fill out the jury questionnaire. And once the jurors completed them, they
would be available for our review by early afternoon. In the meantime, the government—
on the Friday before—had filed something ex parte under seal. They had done that
periodically—file pleadings ex parte—and we complained every time they did it. We
raised a fuss about the fact that they were filing things ex parte with the judge. But, in any
event, as a result of this ex parte filing, the judge issued an order asking the government to
decide whether or not it was going to call a particular witness, the key witness, the
cooperator who had handed Jefferson $100,000 in marked bills. And so we were trying to
figure out what in the hell did they file under seal. We knew that it related to the key
government witness, whose name was Lori Mody. And so we were scratching our heads.
Judge Ellis called for a hearing on something that we were clueless about. So in response
to the judge’s question—is Lori Mody going to testify?—the government announced that
she was not going to testify. Needless to say, by now we were really scratching our heads.
Recall that she had been cooperating with the FBI for months. She had put a lot of money
into this broadband technology, having been introduced to the investment by William
Jefferson whose former staffer was now her employee and guy Friday, Brett Pfeffer. The
person who controlled the technology was Vernon Jackson. And although her initial
complaint to the FBI was about Pfeffer and Jackson, not Jefferson, the FBI was willing to
invest significant resources into making a case because Jefferson was involved. There were
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probably 120 hours of taped conversations. They also had a Title III so they could wiretap
calls.
STU PIERSON: They got her conversations, but also conversations among others?
BOB TROUT: Yes.
STU PIERSON: They wouldn’t need a Title III if she was cooperating.
BOB TROUT: Right. But they wanted to get a Title III on . . .
STU PIERSON: Pfeffer and Jackson?
BOB TROUT: Yes, right. Which they did. So early in 2005, maybe March of 2005,
she started setting up meetings with Jefferson, and they went to restaurants where a lot of
expensive wine was consumed. And eventually, after many meetings and wine soaked
dinners, Mody was able to get Jefferson to agree that he would pay the Nigerian Vice
President $100,000 to help guarantee that this broadband technology would be deployed in
Nigeria. So, long story short, she was huge as a witness. She was going to be introducing
all the tapes. We had gone through all the tapes, and there was a lot that we wanted to
introduce. Every piece of every conversation affects every other piece and what people’s
intent was, and to understand context you cannot just look at an isolated snippet. But
obviously it was not going to work at trial to put in 120 hours of tapes. Nobody was going
to tolerate that in a trial, and we knew that. So we were picking and choosing our points.
We had some tapes that we wanted to play, and some excerpts that we wanted to play, and
the government obviously had some excerpts they wanted to play. And we were assuming
that she was going to come in and talk about all the things that occurred before she started
cooperating with the FBI. And all of the things that happened afterwards, including things
that might not have been on tape at all, bearing on her relationship with the FBI, and what
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they would have told her, and their instructions for how to ensnare Jefferson. And now we
got to the first day of trial, while the jury was filling out their questionnaires, and the issue
for the day was, would the government call Lori Mody as a witness?
STU PIERSON: How was that made the issue?
BOB TROUT: Because that was what the judge teed up. In other words, he didn’t
tell us what they had filed.
STU PIERSON: What the under seal was?
BOB TROUT: Right. He just asked the question, “So, is she going to be a witness?”
We were trying to figure out what was going on. We were thinking that she had some sort
of mental meltdown. The government said, “No, we’re not going to call her as a witness.
We’re going to put on the tapes through the FBI agent who was essentially her minder—
the lead agent—who was her minder throughout, who was there when she went to meet
with him, and the person who was there when she came back and who received the tape,
and so …
STU PIERSON: A dicey evidentiary proposal?
BOB TROUT: Yes. So we started the trial. I have to say that before the trial started,
we wanted to make sure the client was prepared for what was coming. “Now, Jeff”—that’s
what his friends called him—“Now Jeff, we’re going to have some bad days. We’ll have
good days. But there are going to be bad days.” If anything we sugarcoated it, because we
thought there were going to be a lot of bad days and not many good days. While we
believed in our legal theory that as a technical matter, what Jefferson had done did not meet
the definition of bribery in the bribery statute, we knew the government was going to put
on many cooperators talking about what would be described as many different bribery
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schemes. And there were a lot of very ugly recordings, including a videotape of Jefferson
accepting a briefcase full of $100,000 in cash for the supposed purpose of paying the
Nigerian Vice President a bribe. So we were expecting a lot of bad days. The government
put on Vernon Jackson as its first witness. And every day it seems like we came back from
court and remarked that it was a good day. The witnesses were not as strong as we thought.
Many days ended with us on cross-examination or having just finished a cross. In other
words, the timing was working for us, and we had good crosses. And every day, it seemed,
we were feeling like that was a good day. That was much better than we had reason to
expect. And then at a certain point—I can’t remember whether it was at the beginning of
trial or early in the trial before any tapes were played—the government moved to preclude
our being able to play any tapes or excerpts of tapes. We had spent an interminable amount
of time going over the tapes figuring out those portions that we wanted to play to provide
context or clarity. In fact as the parties were heading for trial we had discussions with the
government in which the government acknowledged that we would be playing some
excerpts of tapes ourselves. So this was a complete surprise when the government, at the
beginning of trial, took the position that they got to play the excerpts that they wanted to
play, but we didn’t get to play . . .
STU PIERSON: Because you didn’t have anybody to authenticate them?
BOB TROUT: No. The theory was that they didn’t need her to authenticate the
tapes, the case agent could do that. And whatever it is that was on the tapes, from her
perspective, was not being admitted for the truth. And whatever the government wanted to
put in of his statements were statements of the defendant and therefore not considered
hearsay. But whatever we wanted to put on, the government argued that those statements
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were self-serving hearsay. And therefore we should not be allowed to put it on. The
government analogized it to an accused at the police station who says, “I’m not guilty. I
was here or I was there,” and offers up an alibi, and then at trial the defendant wants to put
in his self-serving statements to the police. They said, “That’s all this is.” We said, “No,
that is not what this is about.” The government was saying that this was a corrupt bargain,
a corrupt agreement. We said, “This is like the corpus delicti. You’re not letting real time
evidence in as to the complete discussion, including the defendant’s side of the
conversation that the government was claiming was a corrupt conversation.” We argued it
is like the bank surveillance photo in a bank robbery. If Patty Hearst is arguing that she
was under duress because some guy had a gun pointed at her back, threatening to shoot her
if she didn’t act in a certain way, you can’t show only the part of the bank surveillance
photo that shows her holding a gun, if there is another part of the photo or some other photo
showing someone else pointing a gun at her. You cannot exclude the photo that shows it
all, just because it backs up the defense. We argued best evidence—these are the actual
conversations that you say were corrupt. There was a 2006 Supreme Court case, Holmes v.
South Carolina, holding that the Constitution guarantees that the defendant have a
meaningful opportunity to present a complete defense. It prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose, or are disproportionate to the ends
that they are asserted to promote. So we argued that. And we argued the catchall Federal
Rules of Evidence exception to the hearsay rule. We argued everything, and nothing
worked. The best we could get was the judge deciding he would consider it again after the
government had concluded its case. So we couldn’t do it on the cross of the . . .
STU PIERSON: Agent.
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BOB TROUT: Of the agent. I don’t know how many briefs we filed on this. We
had a lot that we wanted to play when the agent was on the stand and the excerpts we
wanted would have been close in time to the excerpts the government wanted. But as we
saw our chance to put in anything hanging by a thread, we began to whittle down what we
wanted to use. And so rather than six to eight hours of tapes, we whittled it down to maybe
four hours, then maybe two hours. But there was a lot of briefing on this, and nothing we
were arguing was working. All of this really impeded our ability to address the Lori Mody
allegations in the case, which was the major part of the case. But recall that the government
alleged that there were a bunch of other bribery schemes. When they discovered that the
FCPA case that they were building with Lori Mody was not a laydown, because they
realized Jefferson had never delivered the cash to the Nigerian Vice President, they began
looking at other things Jefferson had been involved in. And what led them to those other
things was their search of Jefferson’s house in New Orleans. The search warrant was very
limited and was related to the broadband allegations. But when the agents were searching
the home, they proceeded to take photos of anything that they saw of interest. We likened
it to rolling a Xerox machine into the house and essentially conducting a general search.
Yes, they only took these documents, but they–
STU PIERSON: But they visually searched.
BOB TROUT: They visually searched everything and took with them copies of
anything of interest, regardless whether it was specified in the warrant. We had filed a
suppression motion in which we argued that the evidence pertaining to the so-called other
schemes was the fruit of an illegal search. The government first argued that the agents were
entitled to take the documents under the plain view exception to the warrant requirement.
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They actually put on agents at the suppression hearing to testify about it. We thought that
was laughable. Yes, the documents looked like they pertained to some sort of business
ventures in Africa, but there was no way one could seriously assert that on their face any
of the document were evidence of a crime. The FBI agents may as well have been testifying
that it was a crime for a member of Congress to be in possession of documents relating to
a private business. The government’s backup argument was they discovered these other
business deals in Africa independently of the documents that they had taken from the
search. It seemed clear to us that the FBI knew they were on thin ice with these documents,
that they knew what their end game was, and with that end game in mind, they retrofitted
their investigation to figure out how to develop evidence that they could then argue was
independently derived. In other words, now that the FBI knew what it had, they figured
out how to collect the independent evidence that would allow them to get from independent
means the same documents that they had seized illegally. We argued that essentially, they
figured out what they needed to get . . .
STU PIERSON: From the photos.
BOB TROUT: From the illegally obtained documents. And then went out and put
together a strategy to go get it. They reverse engineered obtaining the evidence
independently. And I still believe that that was the more persuasive case, but that one didn’t
get traction either. So these other so-called schemes were also part of the case, in addition
to the main part of the case, which was the broadband copper wire, Lori Mody and Vernon
Jackson piece of it. The way we divided it up is I was going to be the person taking the
lead on the broadband piece of it. And Amy Jackson and Gloria Solomon were each going
to take primary responsibility for these other schemes. And eventually we moved into that
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phase of it. And as we were driving back to the office at the end of each day, it seemed like
every day we were saying, “This was another good day. We had another good day.” But
before we got to that other piece of it—the so-called other schemes—and while the FBI
agent was on the witness stand authenticating the Lori Modi tapes, Judge Ellis had a
conference at the bench where he expressed discomfort with our remaining in the dark
about what the government had filed ex parte at the beginning of the trial. So we were
given a copy of the pleading that had been under seal. We could not discuss it with anyone,
not even with our secretary. And that was when we finally discovered what it was that was
behind the government’s ex parte submission at the beginning of trial. Early in Lori Mody’s
cooperation with the FBI, she had gone to New Orleans for Jazz Fest as part of the FBI’s
plan to get close to Jefferson. They had met late one night in her hotel room. Nothing
inappropriate happened, and there was nothing on the tape that was incriminating. But that
weekend, when she was in New Orleans, she had sexual relations with an FBI agent who
was her minder. This was all made public after the trial, but during the trial it remained
under seal. We filed a motion under seal to allow us to explore this with the lead agent who
was on the stand. The FBI clearly knew about this. This guy, the errant agent, was no longer
in the Bureau, as he had been fired when it was discovered he had had sex with another
witness. Some six to nine months before, when the agent was first caught having sex with
another witness in another case, he admitted to having done the same thing with a
cooperating witness by the name of “Lori.” Now even the Keystone Cops would have had
no difficulty figuring out who that was, but apparently the FBI never followed up on this
information. So it did not come to the attention of the prosecutors in the Jefferson case until
the Friday before trial was going to start. That’s when Lori Mody, apparently realizing that
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this case was really going to go to trial and she was definitely going to be a witness, called
the lead agent and admitted to having had sex with the FBI agent during Jazz Fest.
STU PIERSON: And it was already in the FBI records for six months.
BOB TROUT: Yes.
STU PIERSON: Who was the director at the time? Was it Louie Freeh?
BOB TROUT: No, it would have been Mueller. But they just didn’t bother to follow
through on it. To her credit, she brought it to the attention of the case agent. We were sitting
on a bunch of emails between her and the lead agent that were provocative and very
flirtatious. Professional they were not. These are emails between her and the lead agent.
STU PIERSON: And not the agent who authenticated the tapes.
BOB TROUT: No. The lead agent is the one who authenticated the tapes. But the
agent who had had sex with Lori Mody was no longer an agent. And he was never anything
other than one of several minders on the team. So there was the lead agent, and he is the
one that is authenticating the tapes. And he was testifying. But we had some . . .
STU PIERSON: Some salacious emails.
BOB TROUT: Yes. We had some juicy emails that were . . .
STU PIERSON: They were suggestive.
BOB TROUT: Yes. They were suggestive. The lead agent had exchanged these
suggestive, flirtatious emails with Lori Mody, who we now know had sex with a different
FBI agent who had been supervised by the lead agent. The lead agent was now testifying,
and one of the things he testified about was the various policies they followed because it
was really important to maintain the integrity of the investigation, and the credibility of the
investigation. And that was why the FBI had this very disciplined process. So I was
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thinking maybe he just opened the door to getting in to the fact that one of his agents was
having sex with . . .
STU PIERSON: The witness, the chief witness.
BOB TROUT: Yes, the chief witness. And so I started to develop this line on cross
with the idea that if it was so important for the integrity and credibility of the investigation
to follow all the right policies and discipline, what did it say about the integrity and
credibility of the investigation he was supervising that one of his agents was having sex
with the key cooperating witness. But as I was creeping up to the punch line, the judge saw
where I was going. And even though the government never objected . . .
STU PIERSON: You didn’t get to third base.
BOB TROUT: Right. I didn’t get to third base. He said, “Bob Trout, come to the
bench.” And so we went to the bench, and he basically said, “No, you’re not going to go
there.” So we argued about it a while, and he cut me off. So with that, I went back to get
into the emails, the suggestive emails. The government was not objecting.
STU PIERSON: And the timeframe here of the suggestive emails are during all the
periods when the tapes were . . .
BOB TROUT: Were being made. And you can see Judge Ellis was just very fidgety.
And he was essentially inviting them to object. And they didn’t object. And finally he just
couldn’t stand it, and he said, “No more.” And so he wouldn’t let me go any further. I think
I got a lot in. I’m not sure that I got everything in that I wanted.
STU PIERSON: But enough to argue that . . .
BOB TROUT: Yes. So that was the iGate side of the case, the part that dealt with
the broadband investment. Amy Jackson and Gloria Solomon did just a fabulous job on
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their parts of the case, which were the so-called other schemes. Gloria was just a civil
litigator when she joined the firm. After she joined the firm, and it became clear that we
could use her substantial talents, I asked her to help us with it? As I mentioned, she did a
brilliant cert. opposition in the Supreme Court—just really first class. I’m not sure whether
she had tried a case before, but her cross-examination at trial was terrific, like she had done
it countless times before. We remembered one day when a witness assigned to Gloria was
testifying. We had nothing on this guy—he was testifying without immunity or any other
deal with the government—and we ended the day with him still on direct. It had really not
been good for us, so we ended the day with some bad evidence. That may have been the
first day when we said to ourselves, “This was a bad day.” The government finished its
direct early the next morning, and Gloria had only about 45 minutes of cross before our
first break. That’s all she wanted. So we took the break after her cross, and it was fabulous.
The courtroom security officer came back, and he commented, sotto voce, “You all are
smoking.” He meant it in a good way. He was very complimentary of our work. We had a
wonderful relationship with all the courtroom personnel, always appropriate. But there
were times when we felt that Judge Ellis, overstepped the role of the judge. And . . .
STU PIERSON: Not in your favor.
BOB TROUT: Yes, definitely not in our favor. I get along fine with Judge Ellis.
But I believe there were probably five or six times during the course of the trial when we
objected, outside the presence of the jury, to his conduct before the jury. There were several
times when we scored points on cross-examination, only to have Judge Ellis interrupt the
cross with softball questions to try to rehabilitate the witness. So we objected, although
perhaps not as often as we could have and maybe should have. All of our objections were
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overruled, and he made it clear that he was going to continue to jump in—as he described
it, to get the truth out. I don’t know if he would have injected himself more if I hadn’t
repeatedly made an issue of it. And I’m not sure anything I said did any good. My general
approach to objections before a jury is that I don’t normally object unless I think it matters
and I think it will be sustained, or if I feel an objection needs to be made to make a point.
Almost never will a jury verdict be overturned on appeal based on most of the evidentiary
objections that a lawyer might make. I didn’t expect to get very far with my objection to
Judge Ellis injecting himself in the presentation of the evidence. But the jury wasn’t
present, and I wanted to place a marker. In any event, we came to the end of the
government’s evidence, and it was now time to put on our case. Jefferson did not testify.
We had tried to deal with this whole issue of the expert witnesses. We had a former member
of Congress who was a Republican who was prepared to testify for us. Jefferson is a very
nice, elegant man. Very courteous. Just a sweetheart of a man. And so it was unsurprising
to us that he would have very good relations across the aisle. He was not a flaming liberal,
especially on economic issues, and he was well-liked as a person. Our expert was prepared
to testify about what Jefferson had done in relation to the definition of “official act” in the
bribery statute. But given the way the government’s expert had testified, which was much
broader, we were concerned that our expert might end up agreeing to many of the points
that the government’s expert had testified to. So we elected not to put on our expert. We
had a couple of witnesses to discredit testimony that a couple of the cooperating witnesses
had given as to dates or conversations, and that was about it. Except for the tapes. Now we
were making our final plea for the tapes. We were feeling so much better about our chances
in the case than we had thought at the beginning of the trial. We had so many of what we
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regarded as good days that I would say, “We had drunk the Kool-Aid.” We were starting
to think we might just win this case. So now we were trying to get in the tapes. And the
client was anxious to get in the tapes. We made one final push to get in the tapes. We had
whittled down what we wanted to play to the barest minimum, no more than a couple hours.
We made our arguments, and the judge left the bench to consider what he was going to let
in. He had the transcripts, and he was going to go back and figure out what could come in
and what couldn’t come in. It was taking a while. And so as all the lawyers were sitting in
the courtroom, I was basically chewing on the prosecutor about how they were really
making a mistake by objecting to our putting in portions of the conversations that we
wanted, that this had to be reversible error. I was telling them that they were really being
greedy, that they couldn’t seriously think that in a criminal case only the government’s
evidence of what was said in a recorded conversation should be admissible.
STU PIERSON: Who was the lead prosecutor?
BOB TROUT: Mark Lytle was the lead and Becky Bellows was also on the team.
Chuck Duross was the third prosecutor, on assignment from Main Justice. He had been an
AUSA in Miami, and then had come to the Fraud Section, which was involved because it
was being run as an FCPA case. So anyway, I was beating on Mark Lytle, and eventually
the judge came back, and he went through what he is going to let us play. And it was like,
“I’ll let you play this clause and this phrase from this one, and over here you can play this
sentence.”
STU PIERSON: No continuity.
BOB TROUT: None. It was completely incoherent, and when he was done, I stood
up and I said, “Your Honor, playing those tapes the way you would let us play those tapes
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is completely incoherent. Your ruling eviscerates the defense.” And it was as though a light
bulb went on. And he turned to Lytle and he said something like, “Mr. Lytle, you’ve had
seven, eight weeks to put on the government’s case, and they want to put in two hours,”
and he said, “I think I’ve got it right, that I’ve made the correct ruling, but if I’m wrong,
we have wasted all this time.” And this was after I’d been chewing on Lytle about how he
was building reversible error into the case. I looked at Lyle, probably whispered something
like “Mark, come on,” maybe with a begging or pleading tone of voice. He hesitated and
then said, “All right, we’ll withdraw our objection.” So now we had our two hours’ worth
of tapes that we played. It just didn’t–
STU PIERSON: Do anything.
BOB TROUT: It didn’t. It really didn’t. I don’t know if it might have made a
difference if we’d been able to play what we wanted, when we wanted. Perhaps not. But
we all agreed that we didn’t get much out of the tapes the way they were played. And so
after a weekend break, we had closing oral arguments. Our theory of the case was that with
its vast power, the government had seized on conduct that was at most a violation of
congressional ethics, and had reshaped it into a crime. They did it after discovering the
crime they were hoping to manufacture—the FCPA case involving a payment of $100,000
of marked bills to the Nigerian Vice President—had not panned out as they had hoped.
And so I argued that when they realized they had a lemon on their hands, they decided to
make lemonade out of lemons, and to do that, they had to squeeze a lot of lemons. In other
words, they squeezed some witnesses to get them to change their story, offering them
immunity or promises of leniency. So speaking truth to power was my theme in closing.
And as part of that theme, I wanted to lead with an attack on one of the counts in the
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indictment, a charge of obstruction of justice. The government had charged him with
obstruction of justice because they had given him a subpoena when they were searching
his house. While the search was going on, he had a document on his person, and he put the
subpoena over top of the document. The FBI agent saw him do that, so she asked him,
“What is that?”, and he said, “It is just a document,” and he handed it to the agent. And
they accused him of obstruction, apparently thinking he was trying to hide the document
from them, even though the agent was looking at him the entire time. That was the
obstruction count. It was an absurd charge, one we regarded as an obvious overreach. We
made our Rule 29 motion for judgment of acquittal. But we were concerned that the judge
was going to grant our motion on the obstruction count. We wanted that count in the case
for the jury to consider because the government overreach fit so nicely with our theme that
the government was exercising its power to make a crime out of something that wasn’t.
We made our argument without pushing it and without arguing it much. Even without any
argument from us, it was obvious that the judge was really troubled by that count. He
thought it was really thin. The government pushed it and pushed it and pushed it, and so
the judge denied the motion as to all counts. And so we had the obstruction count in for
closing argument. And that is what I led with in the closing argument. That was a count for
which we had no legal defense, and the jury acquitted him on the obstruction count. And
the other count for which we had no legal defense was the FCPA count. That was the
money-in-the-freezer count. Because none of the money was paid to the Nigerian Vice
President, the government was arguing that there was a conspiracy to bribe the Vice
President. Because Lori Mody was acting as a government agent, she could not be a coconspirator. So the government’s case on the money-in-the-freezer count was that the Vice
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President, and maybe his wife, who also had conversations with Jefferson, were the coconspirators. All the government had on that was Jefferson’s statements to Mody on tape
that the Vice President was in on it. But Jefferson also told Mody on tape that he had passed
the money to the Vice President, and that was clearly not true. We argued that Jefferson
was never going to bribe the Vice President, he was just telling her that because she wanted
to do it since she was reluctant to invest her money unless she was assured, through bribery,
that the Vice President would back the venture in Nigeria. So we argued that in order to
keep Lori Mody in the game, Jefferson was going to play along with this idea, her idea, of
bribing the Vice President. But the . . .
STU PIERSON: He had no intention.
BOB TROUT: He had no intention of doing that. Now we left unaddressed the
question of what was he going to do with the money. Was he going to just pocket the
$100,000 and lead her to believe that he had paid the bribe when in fact he hadn’t? Or,
when all was said and done after the venture succeeded, or not, would he basically say,
“Here is your money back on the $100,000”? That issue was left open. We didn’t address
it. Whatever they thought he was going to do with the money, that was not what he was
charged with. So that was the theory of the defense on money-in-the-freezer count. The
jury acquitted him on that count. So he was acquitted on the obstruction count, and he was
acquitted on the money-in-the-freezer count.
STU PIERSON: The FCPA count.
BOB TROUT: The FCPA count. Those were the only two counts that we had no
legal defense, we had to win on the facts. And we did. He was acquitted on two or three
other counts that were hard to understand what the jury was thinking when they made that
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decision, given that he was convicted on other similar counts. The jury was out for about
five days, so the length of deliberations was also giving us reason to be encouraged. But
on the fourth day the jury had a question, shared with the lawyers but not in open court,
that told us that there was not going to be good news. Up until then, we were hopeful. And
when the jury finally came back a day later, although we were prepared for what was to
come, it was still like a punch to the gut. We had spent almost four years of our lives with
this case, we had been in a fight for our client’s life, or at least his freedom, for two months
straight, working 18-hour days, and it was a painful thing when the jury came in with a
guilty verdict. And if that was not enough, the next day we had to go back and argue over
forfeiture issues and what was the proper forfeiture amount.
STU PIERSON: They didn’t step him back and . . .
BOB TROUT: No. They did not. I think they asked to. I can’t really remember, but
I think they may have asked that he be stepped back. But the judge wouldn’t hear anything
of that. After the verdict came down Bob Bennett called me up to offer his condolences.
It’s a gesture that’s in keeping with the bond that is shared by trial lawyers. As I say, we
had drunk the Kool-Aid, and we thought we might just win that case. So we were obviously
quite down over the verdict. When I got back to my office right after the jury verdict, there
was a voicemail from Bob saying, “Don’t give any thought to whether the outcome could
have been any different. This case was over the second the FBI agents opened the freezer.”
That was a nice gesture, and I think what he said was probably true, the money in the
freezer was such a toxic image, it infected pretty much everything in the case. As I’ve said,
Jefferson is a very nice man, but it just put him in such an awful light. In this work you get
to see individuals not only at their worst, but also at their best. And there were plenty of
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occasions when we saw him at his best as a human being. He was very admirable in many
ways. So it is one of the rich things about doing the work that we do, you get to see that. A
short time after the trial, the material that had been under seal was made public, which
meant that the facts relating to Lori Mody’s relationship with the FBI agent all became a
matter of public record. We filed a motion for a new trial trying to once again reargue that
issue, but none of it worked. Se we had to prepare for sentencing. We looked at all of the
members of Congress who had been prosecuted on corruption charges, as far back as we
could find. The sentences ranged from not much to a maximum of eight years for Duke
Cunningham. Now Cunningham had pled guilty, but he also had very explicit bribe menus.
For example, if you want this, this is how much it is going to cost you. If you want that, it
would cost something different. It was very unambiguous and very raw. There was none
of that in Jefferson’s case. Our theory was that, yes, he had done some things that violated
congressional ethics, but what was really in play here was the government using its
immense power to bend the facts and bend the law to fit what was really nothing more than
ethics violations into a criminal offense. There was really no way to avoid the ethics issues
that were in the case, and we were very upfront about that, even in the opening statement.
In its sentencing memorandum, the government asked for 27 years, which was its
Guidelines calculation. We were arguing for no more than 10 years. One of the problems
that we had was that the cooperators, Vernon Jackson and Brett Pfeffer, had been sentenced
before trial to eight years. Oftentimes the judges withhold sentencing with cooperators until
after the cooperation is complete because that’s the way the government wants it. The
government wants to use the uncertainty of its recommendation and sentence over
cooperators as leverage to make sure the cooperators deliver at trial. Judge Ellis doesn’t
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wait, or at least he didn’t do that in this case. He said explicitly he wanted to protect the
government from the argument that defense counsel routinely makes, based on the very
harsh sentencing guidelines, that these people are facing what amounts to as much as a life
sentence unless they testify the way the government wants them to. And this way, by
imposing sentence before they testify, the judge was protecting against the argument that
they are facing ridiculously long prison sentences. Because Brett Pfeffer and Vernon
Jackson were each sentenced to eight years in prison, we knew going in that was surely the
floor. Neither was a public official. They were accused of bribing a public official, and
they had come in, pled guilty, and cooperated. By contrast, Jefferson was a public official
who had gone to trial. So we knew what we were dealing with there. We were trying to get
it to no more than 10 years. The judge ended up imposing a 13-year sentence, which we
regarded as excessive, particularly when compared to sentences imposed on other members
of Congress who had been convicted on corruption charges. On the other hand, it was a far
cry better than what the government was arguing for, which was 27 years. And after
sentencing, when the judge imposed a lengthy prison sentence, we asked for bail pending
appeal. And probably to everybody’s surprise, the judge granted it. The government had
opposed the motion as though to say, “Yeah, this is a no-brainer. We’re going to win this
because we’ve won every other one.”
STU PIERSON: Gosh, I wouldn’t have been surprised if it was granted.
BOB TROUT: The official act issue was litigated to a fare-thee-well. I can’t count
the number of briefs that got filed dealing one way or another with the proper definition of
official act. And that issue was embedded in every single count on which he was convicted.
Not the FCPA count and not the obstruction count.
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STU PIERSON: Both of which he was acquitted.
BOB TROUT: He was acquitted on those. So we had the argument that every single
count would stand or fall, depending on the outcome of this one issue. And after reflecting
on it for a while, Judge Ellis acknowledged it was unsettled, and he said that he was going
to grant bail pending appeal. The prosecutors must have been surprised so they
immediately moved for reconsideration but were simply re-arguing the same points. And
eventually the judge figured it out and said, “Well, if you want me to reconsider, file a
motion.” And they never did. And so that was the Jefferson trial. By this time, I believe
Jefferson had filed for bankruptcy. Our unpaid receivable was then a matter of public
record, I think, somewhere between five and six million dollars. The matter had by then
gone on for over four years. It was four years to the day from the time the FBI showed up
at his house in New Orleans to the day the jury came back with their verdict. We had three
interlocutory appeals. Obviously, we had invested a great deal in this case. So we felt duty
bound to follow through and do the appeal even if as CJA counsel. Jefferson reached out
to Larry Robbins at the Robbins Russell firm, a very good firm that does a lot of appellate
work. Larry is a terrific lawyer, a friend, and Jefferson had been able—through friends—
to put together a little bit of a war chest that was probably not going to be adequate for an
appeal, but Larry, I think, was interested in the case, and so was willing to do it a little bit
on the skinny. Jefferson was very gracious about essentially acknowledging that if money
was to be found for legal fees, it rightfully ought to go to us. That said, unlike so many
criminal defendants who find themselves on the wrong side of a guilty verdict, he never
once criticized us or the way we tried the case. He couldn’t have been more generous and
more gracious about the effort that we put in and the quality of our work.
174
STU PIERSON: Your receivable was wiped out in the bankruptcy.
BOB TROUT: It was wiped out in the bankruptcy. From our perspective, yes, I
would like to have gotten more money, but at the same time I was actually more interested
in his finding another lawyer to handle the appeal because we were going to get paid CJA
rates if we did it. And, frankly, I was much more interested in Larry coming in and doing
it. And that is what happened. We were in on the briefs and reviewed the briefs and
commented. And I was at counsel table for oral argument. We had the same panel that we
had had for an interlocutory appeal. And as soon as we saw the panel, we knew . . .
STU PIERSON: And the panel was?
BOB TROUT: I cannot remember all the names, but we knew that it was . . .
STU PIERSON: Not good.
BOB TROUT: It was not going to be good, and it wasn’t. In due course they ruled.
And then . . .
STU PIERSON: And it was unanimous?
BOB TROUT: It was unanimous. Shortly after that he had to report for the
beginning of his prison term.
STU PIERSON: Have you had contact with him?
BOB TROUT: I have.
STU PIERSON: How is he doing?
BOB TROUT: He seems to be doing fine. We talked the day after the most recent
midterm election. And he said that he had been up all night watching the election returns.
It had been something of a nightmare for the Democrats. I’m sure he would have kept up.
Even if he wasn’t watching the returns, he was probably stewing about them.
175
STU PIERSON: So during the time that you had the Jefferson trial, were you here at
this address on Connecticut Avenue, or had you left N Street?
BOB TROUT: We left N Street in 2000. We came here to Dupont Circle in 2003.
So we were here in this office throughout that period of time when we were involved in
the Jefferson case. I would say that on the Jefferson case we obviously spent a fortune in
legal fees that were not compensated. We fortunately had other work at our firm that we
were able to do that kept the bills paid and the lights on and allowed us to pay our mortgages
and educate our children and do all the things that we needed to do. But it was a huge
financial sacrifice. On the other hand the non-monetary rewards were incomparable.
STU PIERSON: Huge.
BOB TROUT: Yes, they really were. The legal issues were so rich, doing this very
unique, first-time-in-history challenge to the search of a congressional office. And the
litigation over that was very high profile, very historic. Those cases just don’t come along
every day. And I was really blessed to be involved. It was hard to beat. No regrets.
STU PIERSON: I’m sure. So life after the Jefferson case?
BOB TROUT: Well, I was working on various matters, and Bob Bennett called me
and said that he had just finished doing an investigation of Marion Barry for the City
Council. And he said that the Council had called him up because something else had come
up. There was an investigation that they were doing relating to cronyism and possible
corruption relating to construction contracts for the City’s Department of Parks and
Recreation. He said that he had given my name to Vince Gray, who was then the Council
Chair, to help them out with this because he had done his duty. As he understood it, the
only thing they wanted me to do was to examine at a Council hearing a squirrely witness
176
whom they had a hard time getting under subpoena. They were apparently concerned that
they didn’t have an experienced interrogator for this hearing. It was going to be pro bono,
but I had the impression it would be bite-size, examining a single witness at a Council
hearing. I spoke with my partners, and we said, “Sure, why not?” So I went down to meet
with Vince Gray and Harry Thomas, who was then on the Council—it was his committee
that had responsibility, so he was running it. It was about ten minutes before the press
conference when I was to be announced as Special Counsel to the City Council to do this
investigation, and I was thinking it would involve appearing at a hearing, doing an
examination and be done. But in the meeting a few minutes before I was to be announced,
I learned they had in mind this huge investigation that they needed to get done. Obviously,
there was a communication problem, but at this point, it was too late for me to back out of
it. So I was basically signing my firm up to do this. Vince Gray had a press conference
where he announced that I would be doing this. This was early April in 2010. The
allegations related to Mayor Fenty and whether his buddies were getting favorable
treatment and were basically corruptly awarding and getting a piece of the construction
work for Department of Parks and Recreation projects. It was very political as the mayoral
primary election was in September. This matter happened to come to our firm when my
son Philip was working for us, before he started full time at Hogan Lovells. When this
investigation for the City Council came in, we were able to keep him really busy. Amy,
Gloria, Philip and I spent a lot of time working together on this interesting investigation
into allegations of corruption in the D.C. government. Over the course of close to a year,
we did this investigation, and when we finished, we prepared a length report. It’s probably
no secret that the allegations that we were investigating touched the Mayor’s office,
177
because the primary subject were cronies of Mayor Fenty, and the question was whether
these cronies had been able to get construction contracts with the City because of their
relationship with the Mayor and whether the fix was in. While we didn’t find any evidence
of wrongdoing by the Mayor, we did have some harsh things to say about individuals who
were close to him. I was concerned about making accusations without at least giving an
opportunity to respond to those who were being criticized in our report. I decided that in
many respects this was similar to the investigations performed under the now discredited
Independent Counsel statute. In Independent Counsel investigations, subjects or targets of
the investigation were given an opportunity to review and comment on the findings in the
Independent Counsel’s report. As far as I’m concerned, that’s about the only part of the
Independent Counsel statute that was sound. So I made the decision that we ought to give
them an opportunity to . . .
STU PIERSON: To respond.
BOB TROUT: Yes. And to see it in draft. There had been a number of these City
Council investigations. And I don’t think that had been done before. We had a robust
debate–internal debate–as to whether that was something we should do or not. But I
decided that we should do it. And I actually was pretty pleased about that. I think that the
abiding assumption is that, whenever one of these independent counsel gigs or special
counsel gets hired, they come into it with an agenda to find a certain way, and they always
end up coming out that way. I think Peter Nickles, speaking for the Mayor, was absolutely
convinced that we were going to come out and hammer the Mayor. I think he thought this
was all political on the part of the Council and that it was a foregone conclusion that we
would come down hard on Fenty. As I say, we had some harsh things to say about some
178
individuals and some harsh things to say about the way the government had worked or not.
But we did not find anything that the Mayor had done that was improper or inappropriate.
Nickles came over and read a copy of the draft report. And he called me up and
congratulated me on doing a nice job. And we did do a good job. By that time, Adrian
Fenty was history anyway, and Vince Gray was the Mayor, and so it was a little bit of an
afterthought by the time we actually completed the investigation and issued our report. I
would say our findings were something of a mixed bag in that different people could look
at it and find different things. For example, on the one hand, we didn’t find anything that
implicated Fenty in any wrongdoing. At the same time, it is not true to say that we didn’t
find . . .
STU PIERSON: Irregularities.
BOB TROUT: Yes, any wrongdoing. Just not by Fenty, the Mayor. I think The
Washington Post editorial page pitched our findings as demonstrating that this was all
political anyway. That he never should have been . . .
STU PIERSON: Targeted.
BOB TROUT: Yes. Well, and he should still be Mayor. As part of our investigation,
we talked to a number of people who seemed to have their ear pretty close to the ground
of politics, and very early on we were given to understand that Fenty didn’t have a chance
in the election. He had so squandered his advantages with his constituencies–
STU PIERSON: By his own behavior.
BOB TROUT: Not wrongful behavior. Just arrogance and not paying attention to
what politicians ought to be doing to pay attention to their constituencies, some of it being
easy stuff. There was a straw vote, I believe in June, that he lost badly. And everybody was
179
really surprised by that except the people I was talking to. For them it was not a surprise at
all. It was totally predictable.
STU PIERSON: So now Bob Bennett has a Mayor for a client. Have you been
involved in that at all?
BOB TROUT: Yes. But not in a way that I can talk about.
STU PIERSON: Or you can’t say. Okay. So, reflections for 10 or 15 minutes.
BOB TROUT: Yes, a few observations. First, it may have been calculated or it may
have been happenstance, but when I either chose or drifted into a litigation practice—and
more particularly a trial practice—I think I ended up doing something that played to my
strengths. And that obviously increased the chances that I could succeed as a lawyer.
Trying cases is hard work and high stress. When you’re in the middle of it, working late at
night and long days during weekends when friends are relaxing on the golf course or doing
whatever they enjoy, you think to yourself, “Why am I doing this? There must be an easier
way.” But then you get to court, you get the adrenalin rush that comes with trying a case,
and you realize why you do it. When you finish a trial, you’re pretty well spent, but after a
while, you find yourself complaining that you haven’t had a trial in a while. For me, it’s
all consuming. I’ve developed some of my best cross-examinations and arguments while
lying in bed, stewing at 3:00 a.m. So I’ve loved it, even when I was complaining about it.
Second, I think it is really important to have strong mentors. And I’ve had the best. Plato,
of course. We first met almost forty years ago. He has been a dear friend, a law partner—
twice—and a wonderful supporter of mine for many years. Bob Bennett and Dick Duvall
in the Dunnells Duvall firm were both very generous mentors. They have remained
wonderful friends. I can’t say enough for them. Paul Friedman, since well before he was a
180
judge, has been a good friend and supporter. Thanks to Paul I served on the Grievance
Committee for the U.S. District Court, which was a rewarding professional experience for
me and allowed me to get to know some really interesting and talented lawyers. Roger
Zuckerman, who was the founder and remains the glue for a very successful litigation firm,
is one of my dearest friends. I cannot count the number of times that I have called on Roger
for advice. And that is especially true as I transitioned from a large firm to the small firm
that I founded almost 20 years ago. I am completely convinced that I was more successful
in the small firm than I would have been had I stayed at Holland & Knight. I don’t know
that I can point to any single reason that would account for that. But there is not a doubt in
my mind that it’s true. I’ve probably had more interesting cases, certainly more high-profile
cases. I’ve probably learned and grown in the practice, more and better, as a result of that.
Oftentimes it is the folks in the larger firms who have the platform that allows them to
flourish. Maybe it’s the person and not the platform, but in any event I have been more
successful in this platform, by a wide margin, than I would have been if I stayed in a big
firm, any big firm. Maybe it’s luck. But I also think it is in keeping with what can come
from a more entrepreneurial environment. In a small firm, you cannot survive, much less
thrive if you are not constantly hustling, working hard to make your business succeed. In a
large firm, it’s easy, maybe inevitable, to fall into an employee’s mentality. But if you start
a small firm, you can’t help but have an owner’s mentality. And that might have been the
difference for me. So my legal career has been enriched by change. A small firm also gave
me the flexibility to get involved in some cases that I probably couldn’t have taken on in a
large firm, even if I had gotten the call. Unquestionably that was true for the Jefferson case.
I was also able to stay active not just litigating cases, but trying cases. And that probably
181
led to my being selected for induction in the American College of Trial Lawyers, a genuine
honor that not only enhanced my self-esteem but probably enhanced my credibility among
my peers. When I was a prosecutor, I thought this is the greatest job in the world. Why
would anybody leave this? And there are so many former prosecutors who say the same
thing. You get so much responsibility at such a young place in your career that everybody—
maybe not everybody—but so many people look back at that time and say, “Best job I ever
had.” And I remember thinking, why would anybody leave this? One of the very senior
lawyers in the office when I was in Baltimore, Barney Skolnik, was very well known
because of his involvement as the lead prosecutor in the cases against Vice President
Agnew and later Governor Mandel. Barney had been there forever, it seemed, and I thought
of Barney as a career prosecutor. And because I loved the job so much, I was convinced
that is what I was going to do. And then Barney left, and it was a little bit of a jolt to me
because I was thinking this guy was a career prosecutor, and I was thinking that is what I
wanted to be. Until I didn’t. I got to a point where, yes, I need to move on. And I have no
regrets about that. I have thought from time to time, as I’ve seen people go in and out of
the government, whether that is something I would do. I certainly don’t quarrel with the
idea of going into the government. I don’t know whether the Department of Justice would
be right for me now. I actually have come around to the value of having someone who
pushes back on the power of government. It really is true that we have this wonderful
government and so many people who are really trying to do the right thing in government.
But I do think that there is a tendency for government to use its power to fill any void.
Perhaps that is especially true now, when the threats to our national security and cyber
security loom so large. There was a time, it seems to me, when we wanted our government,
182
our police, those with authority to stop short of the outer limits of what our constitution
said was permissible. In other words, there was a difference between so called “best
practices” and what we were willing to tolerate from our government as being within the
bounds set by the constitution. Today and probably since 9/11, it seems we have come to
the view that the best practices are those that reach as far as our constitution will allow.
The constitutional limits, whatever they are, are the best practices. Especially when that is
the case, I think that there is real value in always having a counterforce against government
power, that the government will perform better. And so I think that the role that I’ve come
to really embrace is to be a constructive force pushing back against government power. A
concluding observation, I think, is that our adversary system has really been degraded by
the high cost of litigation. Civil litigants cannot afford to go to trial. The ongoing legal fees
are exorbitant, and the risks of an adverse verdict can be huge. At least in the settlement of
civil cases, the parties are simply making self-interested calculations rooted in economics.
In criminal cases, the sentencing guidelines and the collateral consequences to corporations
have seriously eroded the adversary system. Today, prosecutors have more say in
sentencing than judges do, from the way they charge the case, to the plea deals they strike,
to benefits they bestow on those who agree to cooperate with the criminal case the
prosecutor is trying to make. Sentencing guidelines are an abomination, at least in their
current form, and they have created an environment where fewer and fewer people are
willing to challenge the government and to go to trial and let the chips fall where they may.
The price for going to trial is huge. There was a recent sentencing in Alexandria. A couple
of years ago, I represented an individual by the name of John Kiriakou, who was a former
CIA agent who was prosecuted for leaking the name of a covert agent, basically the same
183
issue that came up with Valerie Plame. It was a fairly high-profile case. Kiriakou had been
on television, ABC, and he was the first agent, or former agent, to speak on the issue of
waterboarding. And so he had a little bit of a target on his head from the agency. They
didn’t like that. And he screwed up. He disclosed to a member of the press the identity of
a covert agent. It was never publicly disclosed. And before he retained counsel, he was
interviewed by the FBI, and during that interview he essentially closed off all of the escape
hatches. And so we concluded he had no realistic chance of winning at trial. He pled guilty
and was sentenced to 30 months. It was a stipulated sentence, in other words, the parties
agreed to what the sentence would be, so that if the judge accepted the guilty plea, the judge
was bound to the agreed sentence. At Kiriakou’s sentencing, the judge said she would have
imposed a much longer sentence if she could have. But she agreed to accept the plea under
the stipulation that she would impose a 30-month sentence. I thought the sentence was
certainly fair, and I didn’t think that a sentence any longer would have been appropriate.
But she thought it would. What was interesting is that recently in the similar case of Jeffrey
Sterling, who was convicted following a trial, the government wanted him hammered. And
under the Guidelines, the paint-by-the-numbers Guidelines, the government was seeking a
lot of years. And to her credit, Judge Brinkema felt constrained by the 30-month sentence
she had imposed on Kiriakou. So while Sterling was going to have to pay a price for going
to trial, rather than pleading guilty as Kiriakou had, the 42 month sentence that Sterling
received was well short of the sentence that the government was urging. The Sentencing
Guidelines, certainly when they were mandatory, and even now, they scare the hell out of
people. You’re normally going to pay a much, much higher price if you go to trial and lose.
STU PIERSON: When you challenge the government.
184
BOB TROUT: Right. So I think that has really degraded our adversary system. I
don’t know what is to be done about it. But I definitely think we are worse off for it.
STU PIERSON: Perhaps the only antidote is lawyers who are willing to take on cases
even though they are not compensatory.
BOB TROUT: Yes. Well, I think there is certainly that. And I think you find that
all the time. And in the CJA cases, the lawyers are getting a fraction of what their normal
rate would be. Some of them are doing it because they just enjoy it. Some of them are doing
it because they recognize that it is a valuable service that lawyers need to provide.
STU PIERSON: I think that is a good place to end.
A-1
Oral History of Robert P. Trout
Index
Abubakar, Atiku
Nigerian Vice President, 123-25, 127, 132-35, 147, 155, 157, 159, 167-69
“act-of-production” privilege, 128, 130, 131
adversary system, 135, 182, 184
African American community
and the criminal justice system, 147
Agnew, Spiro, 21, 24, 39, 181
Aldisert, Ruggero, 27
Andover. See Phillips Academy Andover
Arnold & Porter, 59, 60, 74, 77
Arthur Andersen, 98, 106, 108, 109, 116
Baker & McKenzie, 119
Baker Botts, 83
Baker, Tim, 22, 50
Bank, Rita, 67
Barry, Marion, 175
Bates, John, 37-38
Batson v. Kentucky, 146-47
Battaglia, Lynne, 40
Beall, George, 22, 24
Bellows, Becky, 166
Bennett, Alexander (Alex), 80
Bennett, Robert (Bob), 49, 54, 58, 59, 60, 61, 77, 97, 170, 175, 179
Berkeley, Al, 26
Blair, Stanley, 39
Blake, Catherine (Cathy), 40
Blankingship & Keith, 49
Blankingship, Hugo, 49
Boggs, Roderick (Rod), 70
Bork, Robert
Acting Attorney General, 22
Solicitor General, 27, 29
Born, Brooksley, 80
Brady v. Maryland, 109, 115
Brennan, William, 46
Brinkema, Leonie, 183
Brown & Williamson Tobacco Corporation, 136
Brown & Williamson. See FDA v. Brown & Williamson Tobacco Corp.
Bryan, Albert, 82
A-2
Burton, Preston, 93
Bush, George W., 18, 133
Cacheris, John, 51
Cacheris, Plato, 51, 56-59, 82, 93, 119-21, 143, 179
Caldwell, Leslie, 103
Casteen, John, 71
Charlotte, North Carolina, 19, 63, 64, 65, 110-11
Cheney, Richard (Dick), 35
Chevy Chase, Maryland, 66, 68
Civiletti, Benjamin (Ben), 74
CJA, 173, 174, 184
Comey, James (Jim), 131
Connelly, Patricia, 92
consolidated 302 memo, 108-9
Cotton, Rachel (daughter-in-law), 72
clerk for Judge Diana Motz, 73
clerk for Judge Henry Kennedy, 73
Council of the District of Columbia, 73, 175
Covington & Burling, 59, 73, 81
Craig, Gregory (Greg), 76
Cunningham, Randall (“Duke”), 171
D.C. Circuit Judicial Conference, 134
Dean. Howard, 72
District of Maryland. See U.S. District Court for the District of Maryland
Dolan, Bill, 110
Donahue, Warren, 67
Dreeben, Michael, 138-139, 142
Dunnells Duvall, 54, 58, 77, 79, 82, 86, 92, 93, 179
merger with Holland & Knight, 62, 78, 80, 86, 88
Dunnells, Duvall, Bennett & Porter, 49, 57, 65, 76
Duross, Charles (Chuck), 166
Dusen, Francis, 30
Duvall, Richard (Dick), 54, 55, 60, 74, 78, 79, 82, 89, 179
Eastern District of Virginia. See U.S. District Court for the Eastern District of Virginia
Edward Bennett Williams Inn of Court, 87, 188
Egon Zehnder, 71
Ellis, Thomas, 126, 130, 132, 147, 149-50, 152, 154, 161, 163-65, 171, 173
Enron case, 94-96, 98-99, 100, 102-8, 110-11, 114-16
Episcopal High School, 9-13, 20, 49
study of Latin, 10
Facciola, John, 137
Farmland Elementary School, 66, 67
A-3
Fastow Andrew (Andy), 96, 107, 108, 109, 112-15, 117
Fawer, Michael (Mike), 121
FBI, 56, 94, 108-9, 121, 123-26, 129, 132, 140, 146, 154-56, 160-62, 168, 170, 173, 183
FCPA. See Foreign Corrupt Practices Act
FDA v. Brown & Williamson Tobacco Corp., 136, 139-142
Federal Rules of Evidence, 48, 158
Fenty, Adrian, 176-78
Fifth Circuit. See U.S. Court of Appeals for the Fifth Circuit
Finney, Jervis, 24
Foley, Jan, 49
Foley, John, 49
Foreign Corrupt Practices Act, 124, 147, 159, 166, 167, 168, 169, 172
Fourth Circuit. See U.S. Court of Appeals for the Fourth Circuit
Freeh, Louis (Louie), 162
Friedman, Liz, 83
Friedman, Paul, 83, 145, 179
Frisch, Michael (Mike), 45
Gennet, Geraldine, 122
Get Smart, 135
Ginsburg, Douglas, 139
Goldberg, Irving Loeb, 21
Gorelick, Jamie, 91, 92
Grand Cayman, 6, 69
Gray, Vincent (Vince), 175
Green Acres School, 66, 67
Grievance Committee for the U.S. District Court for the District of Columbia, 180
Gunn, John, 14
Harvey, Alexander, 38
Hastert, Dennis (Denny), 133, 141
Henderson, Karen, 139
high cost of litigation, 182
Hildebrandt Consulting, 58, 60
Hirschhorn, Joel, 23
Hogan & Hartson, 49, 71, 81
Hogan Lovells, 71, 176
Hogan, Thomas, 133, 134, 136
Holland & Knight, 62, 74, 78, 79, 81, 83, 84, 86, 88, 92, 180
merger with Dunnells Duvall, 62, 78, 80, 86, 88
Hollins College, 2, 63
Holmes v. South Carolina, 158
Houston Chronicle, 111
Howrey LLP, 83
Hubbell, Webster (Webb), 128-129
A-4
Hundley & Cacheris, 51, 57
Hundley, John, 93, 119
Hundley, William (Bill), 51, 56
Hurson, Daniel (Dan), 51, 52
iGate, 163
Inglima, Philip (Phil), 93
Inn of Court. See Edward Bennett Williams Inn of Court
Jackson, Amy, 41, 73, 87, 89, 93, 97, 124, 128, 132, 138, 149, 152, 163, 176
Jackson, Vernon (Vern), 137, 154, 157, 160, 171, 172
Janis, Richard (Dick), 81
Rule 29 motion, 168
Jeffress, William (Bill), 121, 123, 126, 143
Johns Hopkins University, 25
Justice Department, U.S., 21, 103, 138
Criminal Division, 18
Fraud Section, 124
Public Integrity Section, 124
Kaufman, Frank, 38
Keith, John, 49
Kennedy, Henry, 73
Kircher, Kerry, 122
Kiriakou, John, 182-183
Kirkland & Ellis, 59
Latham, Richard, 67
Lawrenceville School, 11, 69
Lay, Kenneth, 109, 113
Levin, Carl, 99
Liebman, Ron, 22
LiveNote software, 115
Lynn, Virginia, 6
Lytle, Mark, 166
Mandel, Marvin, 24, 51, 52, 53, 181
Marbury vs. Madison, 139
Margolis, Dave, 91
Marlboro Race Track, 52
Marshall, Thurgood, 46
Martin, James (Jim), 64
Maryland Court of Appeals, 40
Mayo, George (, 49
McCree, Wade, 46
McJunkin, Tom, 14
A-5
McLeese, Roy, 134
McNulty, Paul, 122, 131
Merit Systems Protection Board, 91, 92
Merrill Lynch, 95-114, 116-17
Miller, James, 39
Miller, Laurie, 87
Mitchell, Attorney General John, 51
Mody, Lori, 154, 155, 159, 160, 162, 168, 171
Montreat, North Carolina, 110
Moscowitz, Jane, 40
Motz, Diana, 73
Mueller, Robert, 162
Mukasey, Attorney General Michael, 141
Murray, Herbert (Herb), 39, 42
Murry, Harold (Hal), 83
Nathan, Irvin (Irv), 141
Nemacolin, Pennsylvania, 134
Nepal, 61
New York Stock Exchange, 101
New Zealand, 119
Nichols, Barbara, 83, 84, 86
Nickles, Peter, 177
Nigerian barge case. See Enron.
North Bethesda, Maryland, 66
North Cross School, 2
Northrop, Edward, 37, 45
Norton, Eleanor Holmes, 76
“Oo,“ See Porter, Bertha
Operation Ill Wind, 58
Pelosi, Nancy, 141
Pentagon City Ritz Carlton, 146
Permanent Subcommittee on Investigations, 99
Peterson, Henry, 19
Pfeffer, Brett, 154, 171, 172
Phillips Academy Andover, 69
Plame, Valerie, 183
Porter, Bertha, 4-6
Porter, Stephen (Steve), 60, 77
Rasin, Gale, 40
Rauh, Carl, 55
Realtime software, 115
reflections, 179
A-6
Richards, John, 81, 84, 86, 88, 120
Richardson, Elliott, 21, 22
Roanoke, Virginia , 1, 2, 5, 19, 24, 40, 69, 70, 77
Robbins Russell, 173
Robbins, Lawrence (Larry), 115, 173
Rocket Docket., 77
Rogers, Judith, 139
Rolling Stone, 71
Rosenberg, Paul, 45
Ruemmler, Kathryn (Kathy), 112
Ruff, Charles (“Chuck”), 55
Rule 10(b)(5), 116
Rule 41, 133
Rymer, Pam, 18
Saturday Night Massacre, 22, 78
Scalia, Antonin, 149
Scandal (television series), 143
Schuelke, Henry (Hank), 81, 84, 89
Securities and Exchange Commission (SEC), 53, 94, 96, 99, 112, 116, 117
Enron, 94
Merrill Lynch, 103-4
Wells notice, 102
Wells submission, 102, 103, 105
Senate Permanent Subcommittee on Investigations, 98
Sentencing Guidelines, 183
Shearman & Sterling, 113
Sherman, Peter, 67
Sidley Austin, 59
Silberman, Laurence, 136, 139, 140
Skadden, Arps, Slate, Meagher & Flom, 59, 60, 77
Skilling, Jeffrey, 109, 113
Skolnik, Barnet (Barney), 22, 52, 56, 181
Smith Mountain Lake, 6, 8
Smith, Chesterfield, 78, 88
Smith, Judy, 143
Solomon, Gloria, 73, 76, 138, 141, 146, 152, 160, 163, 176
Southern District of New York. See U.S. District Court for the Southern District of New York
Spaeder, Roger, 81
Speech or Debate Clause, 122, 124, 133, 135-36, 139,-40, 150
St. Catherine’s School, 19
Sterling, Jeffrey, 183
Studley, Janet. See Trout, Janet Studley
Sun-Diamond. See United States v. Sun-Diamond Growers of California
Supreme Court, 25, 29, 31, 128, 129, 140, 141, 143, 149, 150, 158, 164
and obscenity, 21
A-7
Enron case, 116-17
Youth Corrections Act, 45
Third Circuit. See United States Court of Appeals for the Third Circuit
Thomas, Harry, 176
Thomsen, Roszel, 37
Thornberry, Homer, 21
Thornburg, Richard, 36
Title III, 155
Toy & Rymer, 18
TRO (Temporary Restraining Order), 133
Trout, Carter (son), 8, 64
Farmland Elementary School, 66
Lawrenceville School, 11, 69
Lindsay (daughter-in-law), 71
Mozilla, 71
Walter Johnson High School, 68
Yahoo, 71
Trout, Hugh (brother), 1
Trout, Janet Studley,(wife), 70, 78
Holland & Knight, 79
marriage, 80
Trout, Page (sister), 1
Trout, Philip (son), 8, 64, 176
clerk for Judge Diana Motz, 74
Green Acres School, 66
Hogan Lovells, 71
Howard Dean presidential campaign, 72
Kerry presidential campaign, 72
Lawrenceville School, 11, 69
President, University of Virginia Inter-Fraternity Council, 71
Rachel (daughter-in-law). See Cotton, Rachel
Walter Johnson High School, 68
Trout, Robert (Bob) – Personal
Boy Scouts, 8
Chevy Chase, Maryland, 66
divorce proceedings, 67
draft lottery, 15
failed the physical, 16
Episcopal High School, 9-13, 20, 49
tudy of Latin, 10
family life, 63
father
death following a stroke, 6
prominent surgeon, 1
remarriage, 6
A-8
Fulbright Scholarship application, 15
grandfather
prominent surgeon, 1
Georgetown, 33, 35, 64
marriage to Janet Studley, 80
marriage to Taisie Berkeley, 20
mother
death from breast cancer, 3
disciplinarian, 2
North Cross School, 2
personality, 2-3, 4, 10
Navy Reserve, 15
failed the physical, 14
North Bethesda, Maryland, 66
Old Town Alexandria, Virginia, 32, 33, 36, 63
Silver Spring, Maryland, 35, 64
Trout Cacheris, 121
University of Virginia law school, 16
Washington & Lee, 63
W&L. See Washington and Lee University
Trout, Robert (Bob) – Professional
admission to District of Maryland, 67, 76
admission to Eastern District of Virginia, 77
admission to Western District of Virginia, 77
Assistant U.S. Attorney, 24
Dunnells Duvall, 54, 58, 77, 79, 82, 86, 92, 93, 179
merger with Holland & Knight, 62, 78, 80, 86, 88
Dunnells, Duvall, Bennett & Porter, 49, 57, 65, 76
Enron case, 94-96, 98-99, 100, 102-8, 110-11, 114-16
Grievance Committee for the U.S. District Court for the District of Columbia, 180
Justice Department, U.S., 20-23, 31-32, 36, 51, 64, 99, 103, 123, 132, 181
Criminal Division, 18
Government Regulation Section, 20
Honors Program, 18
Lillick McHose & Charles, 18
Maryland Bar, 36
Special Counsel to the D.C. Council, 73
reflections, 179
thoughts on small firm practice vs. large firms, 87
Trout & Richards, 83, 120
Trout Cacheris, 121
U.S. Attorney’s Office, 24, 28, 31-32, 35-51, 53-56, 64, 66, 76-77, 122, 128, 131, 134
“greatest job in the world,” 41
caseload, 41
diverse experience, 40
A-9
Virginia Bar, 19
Wells notice, 102
Wells submission, 102, 103, 105
Trout, “Taisie” Berkeley (wife), 19-20, 31, 35
career decisions, 65
Hollins College, 63
marriage, 20
St. Catherine’s School, 19
Tucker, Marna, 67
Tuohey, David, 59
United States v. Hubbell, 128-129
United States v. Sun-Diamond Growers of California, 149
United States v. William J. Jefferson, 75-76, 121-151
U.S. Attorney’s Office, 24, 28, 31-32, 35-51, 53-56, 64, 66, 76-77, 122, 128, 131, 134
“greatest job in the world,” 41
caseload, 41
diverse experience, 40
U.S. Court of Appeals for the Third Circuit, 25, 26, 28, 29, 31
U.S. Court of Appeals for the Fifth Circuit, 21, 32, 106, 116
U.S. Court of Appeals for the Fourth Circuit, 45, 46, 47, 73, 145, 149
U.S. Court of Appeals for the Ninth Circuit, 18
U.S. District Court for the District of Maryland, 67, 68
U.S. District Court for the Eastern District of Virginia, 82, 121, 122, 146
Rocket Docket, 77
U.S. District Court for the Southern District of New York, 90
U.S. District Court for the Western District of Virginia, 77
University of Virginia, 71, 72
Venable LLP, 74
Verner, Liipfert, Bernhard, McPherson and Hand, 51
Virginia Bar, 77
Walter Johnson High School, 68
Walter Reed Army Institute of Research, 34
Washington Lawyers’ Committee, 70
Washington Post, 133, 143, 178
waterboarding, 183
Watergate, 51
Watkins, Dorsey, 38
Waxman, Henry, 140
Webb Hubbell case, 128
Wechsler, Larry, 81
Weiner, Arnold, 53
“Never Plead ’Em Arnold,” 53
Weissmann, Andrew, 103
Wells notice, 102
A-10
Wells submission, 102, 103, 105
Western District of Virginia. See U.S. District Court for the Western District of Virginia
White, Jeffrey, 42
wiretap, 155
Wisdom, John Minor, 21
Young, George, 23
Young, Joseph (Joe), 40
Youth Corrections Act, 45, 46
Zuckerman, Roger, 81, 180
“Dr. Love,” 120
B-1
Oral History of Robert P. Trout
Table of cases discussed, in which Mr. Trout was counsel in some stage of the matter.
Durst v. United States, 434 U.S. 542 (1978), aff’g 549 F.2d 799 (4th Cir. 1976), 45-48.
Immigration & Naturalization Serv. v. Bagamasbad, 429 U.S. 24, rev’g 531 F.2d 111 (3d Cir.
1976) (en banc), 25-30.
In re Enron Corp. Sec. Litig., MDL-1446, No. H-01-3624 (S.D. Tex.), 94-116.
In re Grand Jury Subpoena: John Doe, No. 05GJ1318, 584 F.3d 175 (4th Cir. 2007), 149.
Securities and Exchange Commission v. Merrill Lynch & Co., Inc., Daniel H. Bayly, Thomas W.
Davis, Robert S. Furst, Schuyler M. Tilney, Case No. H-03-0946 (S.D. Tex.), 95-112.
United States v. Brown, 459 F.3d 509 (5th Cir. 2006), 98-116, 124-27, 147, 155-59, 167-68.
United States v. Jefferson, 571 F. Supp.2d 696 (E.D. Va. 2008), 75-76. 121-27.
United States v. Jefferson, 534 F. Supp.2d 645 (E.D. Va.), aff’d, 546 F.3d 300 (4th Cir. 2008),
cert. denied, 556 U.S. 1236 (2009), 149.
United States v. Jefferson, 562 F. Supp.2d 687 (E.D. Va. 2008), superseded in part and reaff’d,
634 F. Supp.2d 595 (E.D. Va. 2009), aff’d, 674 F.3d 332 (4th Cir.), cert. denied, 133 S. Ct. 648
(2012), 141-43.
United States v. Kaplan, 588 F.2d 71 (4th Cir. 1978), 47-49.
United States v. Kiriakou, 2012 WL 3263854 (E.D. Va. 2012), 182-83.
United States v. Kiriakou, 898 F. Supp.2d 921 (E.D. Va. 2012), 182-83.
United States v. Rayburn House Office Bldg., Room 2113, Washington, D.C. 20515, 497 F.3d
654 (D.C. Cir. 2007), cert. denied, 552 U.S. 1295 (2008), 126, 130-32.
United States v. Seidel, 620 F.2d 1006 (4th Cir. 1980), vacating in part & aff’g convictions, 47-
49.
Other
Robert P. Trout and Gloria B. Solomon, Trout Cacheris, PLLC, Report of the Special Counsel to
the Special Committee on Investigation of Capital Projects of the Department of Parks and
Recreation (2011), available in the Appendix at http://www.dcwatch.com/council18/110311.pdf,
73.
Other cases cited
Batson v. Kentucky, 476 U.S. 79 (1986), 146-47.
Brady v. Maryland, 373 U.S. 83 (1963), 109, 115.
Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), 136, 139-42.
Marbury vs. Madison, 5 U.S. 137 (1803), 139.
B-2
Regents of the University of California v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372
(5th Cir. 2007), cert. denied, sub. nom., Regents of the University of California v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 552 U.S. 1170 (2008), 116-17.
United States v. Hubbell, 530 U.S. 27 (2000), 128-29.
United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), 149.

C‐1
Biographical Sketch
Robert P. Trout
Bob Trout was born July 17, 1948 in Roanoke, Virginia. After graduating from
Washington & Lee University in 1970, and University of Virginia School of Law in
1973, he joined the Criminal Division of the U.S. Department of Justice as a trial
attorney. After two years at the Criminal Division, Bob became an Assistant United
States Attorney in Baltimore, Maryland, where he served for four years. In 1979,
Bob returned to Washington to practice at the firm of Dunnells, Duvall, Bennett &
Porter. He became a partner in 1981.
In 1994, Bob became a partner in Holland & Knight following the merger of
the Dunnells, Duvall firm into Holland & Knight. He left Holland & Knight in 1996 to
form his own firm, Trout & Richards, with John Richards, another partner from
Holland & Knight. The name of the firm was changed to Trout Cacheris when Plato
Cacheris joined the firm in 2005. Since 2014, with the arrival of Dick Janis, the firm
has been known as Trout Cacheris & Janis. Bob’s entire career has been focused on
civil and criminal litigation and trial practice.
Bob is a Fellow of the American College of Trial Lawyers, and he has served
as a member as well as Chair of the College’s State Committee for the District of
Columbia. One of the original members of the Steering Committee of the Litigation
Section of the District of Columbia Bar, Bob served as Chair of the Litigation Section
in 1984‐85. He previously served for six years, including one year as Chair, on the
Attorney Grievance Committee of the United States District Court for the District of
Columbia.
Bob is married to Janet Studley, who is also a lawyer. He has two sons, Carter
(married to Lindsay) and Philip (married to Rachel Cotton), and three grandchildren
(hopefully, more to come).
C-2
Stuart F. Pierson
Morvillo LLP
Washington, D.C.
Born: Washington, D.C. 1943
Admitted: District of Columbia, 1969
New York 1984
United States Supreme Court, 1974
Hobart College, 1965
Duke Law School, 1968
United States Department of Justice:
Civil Rights Division: 1968-1971
Assistant U.S. Attorney, WDWA: 1971-1973
Special Assistant U.S. Attorney, WDWA, 1974
Private Practice:
Verner, Liipfert, Bernhard, McPherson & Hand: 1973-1988
Davis Wright Tremaine: 1988-1996
Levine, Pierson, Sullivan & Koch: 1996-1998
Troutman Sanders: 1998-2013
Morvillo LLP: 2013-present
Notable Representations:
United States v. Washington: 1974 declaration of the off-reservation treaty rights of
Washington State Indian tribes, sustained repeatedly by the Supreme Court.
Martin Marietta v. The Evening Star: successful defense of newspaper for article about a
defense contractor’s party for military officials, establishing that corporations may be
public figures under the First Amendment.
Manuchar Ghorbanifar: Representation of the alleged Iranian middle man in the IranContra investigation.
Charlie Willson: Representation of Texas congressman in response to government
investigations.
Marsha Scott: Representation of deputy assistant to President Clinton in congressional
and other investigations of the President’s personal conduct.
Stiles Kellett; Defense of chair of the compensation committee of Worldcom in multiple
suits arising out of the bankruptcy of the company.
Volt Information Sciences: representation of staffing and technical company in response
to SEC investigation of its revenue accounting.
Phaedra Almajid: representation of the whistleblower who first disclosed direct evidence
of corruption in FIFA.
Report of the Special Counsel

to the

Special Committee on Investigation of
Capital Projects of the Department of Parks
and Recreation

March 11, 2011

Robert P. Trout
Gloria B. Solomon
TROUT CACHERIS, PLLC
D-1
D-2
TABLE OF CONTENTS
Page
INTRODUCTION AND EXECUTIVE SUMMARY………………………………………………………….. 1
SCOPE OF THE INVESTIGATION ………………………………………………………………………………. 16
A. How It Began ………………………………………………………………………………………….. 16
B. The Authorizing Resolution………………………………………………………………………. 17
C. The Special Counsel Resolution ………………………………………………………………… 20
D. Methodology…………………………………………………………………………………………… 21
1. Document collection and review …………………………………………………….. 22
2. Skinner’s testimony before the Council……………………………………………. 24
3. Depositions and interviews…………………………………………………………….. 25
E. Limitations of the Investigation…………………………………………………………………. 28
LEGAL BACKGROUND ……………………………………………………………………………………………… 30
A. The Council Approval Requirement…………………………………………………………… 30
B. Laws Governing District Procurements………………………………………………………. 32
C. Local, Small and Disadvantaged Businesses……………………………………………….. 34
D. Memoranda of Understanding …………………………………………………………………… 35
CHRONOLOGY OF KEY EVENTS………………………………………………………………………………. 37
FACTS AND ANALYSIS……………………………………………………………………………………………… 41
I. BACKGROUND: DPR, WALKER JONES, DEANWOOD, AND
THE BANNEKER-REGAN TEAM…………………………………………………………………. 41
A. DPR’s Inability to Move Capital Projects Forward………………………………………. 41
B. DPR Looked to Other Agencies for Help with Construction. ………………………… 45
C. Walker Jones…………………………………………………………………………………………… 47
1. The Banneker/Regan Associates team……………………………………………… 50
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iv
D. Deanwood ………………………………………………………………………………………………. 55
1. The Deanwood program management RFQ ……………………………………… 57
2. Banneker as program manager………………………………………………………… 57
3. DCHA’s role on Deanwood……………………………………………………………. 59
II. THE DPR CAPITAL PROJECTS AND THE MOU TO DMPED ……………………….. 61
A. The Attempted Transfer to OPEFM …………………………………………………………… 61
B. DMPED’s Involvement ……………………………………………………………………………. 64
C. DMPED Looked to Banneker from the Start……………………………………………….. 64
III. THE MOU FROM DMPED TO DCHA……………………………………………………………. 68
A. Why DCHA?…………………………………………………………………………………………… 70
IV. THE SELECTION OF BANNEKER VENTURES AS PROJECT
MANAGER ………………………………………………………………………………………………….. 76
A. The Project Management RFQ ………………………………………………………………….. 76
B. Communications between Jannarone and Karim while the RFQ
was pending ……………………………………………………………………………………………. 79
C. The Banneker-Regan Response to the RFQ ………………………………………………… 83
D. The Selection Process ………………………………………………………………………………. 84
1. Did Glover have a disqualifying relationship with
Banneker? ……………………………………………………………………………………. 85
2. Was the selection committee or its scoring manipulated to
favor Banneker?……………………………………………………………………………. 86
V. THE BANNEKER PROJECT MANAGEMENT CONTRACT…………………………… 92
A. The Intent to Award Letter; Work Begins …………………………………………………… 93
B. DMPED controlled the contract negotiations………………………………………………. 94
1. The fixed fee ………………………………………………………………………………… 94
2. The 9% mark-up …………………………………………………………………………… 98
C. Finalizing the Contract……………………………………………………………………………. 103
D-4
v
D. DCHE Approval of the Contract………………………………………………………………. 107
VI. THE BANNEKER CONTRACT WAS NOT SUBMITTED TO THE
COUNCIL…………………………………………………………………………………………………… 111
VII. BANNEKER’S SELECTION AND MANAGEMENT OF LIBERTY
ENGINEERING & DESIGN…………………………………………………………………………. 120
A. Liberty Engineering & Design…………………………………………………………………. 121
B. The Relationship between Karim and Skinner …………………………………………… 123
1. Banneker Ventures………………………………………………………………………. 124
2. Liberty Law Group ……………………………………………………………………… 124
3. Liberty Industries………………………………………………………………………… 126
4. The 12th Street address…………………………………………………………………. 131
5. The financial relationships between Karim and Skinner …………………… 133
C. “I Don’t Recall” …………………………………………………………………………………….. 138
D. Banneker’s Selection of LEAD ……………………………………………………………….. 141
1. The initial sole source contract ……………………………………………………… 141
2. The engineering RFQ…………………………………………………………………… 145
3. LEAD’s proposal ………………………………………………………………………… 149
4. LEAD’s selection based on CBE status………………………………………….. 159
E. LEAD’s Performance and Invoices ………………………………………………………….. 163
1. LEAD’s role on the projects …………………………………………………………. 164
a. LEAD contracted out the surveying work ……………………………. 166
b. LEAD contracted out the civil engineering work………………….. 168
c. LEAD contracted out much of the geotechnical and
environmental engineering work ………………………………………… 170
d. LEAD used consultants for the “management”
function too. …………………………………………………………………….. 173
2. LEAD’s invoices…………………………………………………………………………. 176
D-5
vi
a. Consulting and surveying services………………………………………. 178
b. Civil engineering services………………………………………………….. 189
c. Geotechnical engineering…………………………………………………… 192
d. Environmental Site Assessments ………………………………………… 194
F. Management and Oversight of LEAD ………………………………………………………. 195
VIII. AWARD OF THE CONSTRUCTION CONTRACTS …………………………………….. 201
IX. EVENTS AFTER THE INVESTIGATION BEGAN ……………………………………….. 215
A. The Funds Cutoff and the Stop Work Order………………………………………………. 215
B. The December 2009 Change Order and MOU …………………………………………… 219
C. Removal of the DCHA Board Chairman…………………………………………………… 225
D. The December 24 Payment……………………………………………………………………… 231
E. The July Settlement………………………………………………………………………………… 246
RECOMMENDATIONS……………………………………………………………………………………………… 255
A. Legislative Recommendations…………………………………………………………………. 255
B. Referral to the United States Attorney………………………………………………………. 258
D-6
INTRODUCTION AND EXECUTIVE SUMMARY
In October 2009, members of the Council of the District of Columbia became aware that
the District of Columbia Housing Authority was overseeing multi-million dollar contracts for the
construction and renovation of city recreation centers, ball fields, and parks. Groundbreakings
had been announced for multiple projects on a schedule that did not seem to correspond with the
DPR capital budget with which the Council members were familiar. They discovered that the
funding and authority for the capital expenditures had been transferred from the Department of
Parks and Recreation (DPR) to the Deputy Mayor for Planning and Economic Development
(DMPED), and from there to the Housing Authority (DCHA), which then assigned responsibility
for the projects to its wholly-owned subsidiary, District of Columbia Housing Enterprise
(DCHE). Moreover, a $4.2 million dollar contract to manage the construction of all of the
projects had been awarded to a single firm, Banneker Ventures, whose principal, Omar Karim,
was reportedly a close ally and friend of then-Mayor Adrian Fenty. This came as a surprise to the
Council members since under the Home Rule Act, contracts that exceed one million dollars or
are to be performed over multiple years are supposed to be submitted to the Council for
approval, and no parks contracts had been presented to them. Adding to the Council’s concerns,
Banneker, as project manager, was entitled to receive a 9% mark-up on the amounts it paid
consultants such as architects and engineers, and it had awarded the engineering work on all of
the parks to Liberty Engineering and Design (LEAD), whose principal, Sinclair Skinner, was
also known to be close to the Mayor.
All of these facts raised the question: why? Why had the funding taken such a circuitous
route, so that parks and recreation projects were now being managed by the independent agency
responsible for public housing? The Council learned that DCHA took the position – and that
D-7
2
DMPED also understood – that DCHA contracts were not subject to the requirement of Council
approval. Were the funding transfers simply a sleight of hand, then, designed to avoid Council
oversight? Was the lack of transparency the bi-product of a decision to transfer the projects for a
legitimate reason, or was the circumvention of Council review rooted in a concern that the
Council would scrutinize and possibly disapprove valuable contracts that had been awarded to
firms with ties to the Mayor?
The Council members also wanted to know: had the program management procurement
been steered to Banneker or manipulated in some other way to give Banneker an advantage?
Was the engineering work appropriately awarded to LEAD? In other words, were the contracts
the outcome of a fair and lawful procurement process, or grounded in cronyism or something
worse? And finally, were the public and private entities and individuals tasked with providing
the necessary oversight performing their functions? Were taxpayer dollars for DPR capital
projects being appropriately managed and spent?
After the Council began looking into the matter in late October, more questions arose. If,
as the Attorney General found on Friday, October 23, 2009, DCHA was actually bound by the
Home Rule Act when it contracted to spend the city’s money, did the Attorney General correctly
advise DCHA the following Monday that the Banneker contract was valid and could proceed?
The Council froze the flow of funds in November, so why did DMPED and DCHA agree to
increase the number of parks and the amount of funds to be transferred at the beginning of
December? Why did DCHA issue a check to Banneker for $2.5 million on Christmas eve, even
though by then, the Council had formally disapproved and cancelled the project management
contract altogether? And why did the Mayor remove the Chair of the DCHA Board of
Commissioners – a critic of the Banneker contract – from his position?
D-8
3
Faced with these questions, the Council appointed Special Counsel to undertake an
investigation that would attempt to answer them and to aid the Council in determining whether
any further legislative action or inquiry was warranted. This Report is the result of that
investigation.
Background
We note at the outset that the public discussion of the DPR capital projects issues has
often included references to “90 million dollars’ worth of contracts,” but the amount of money
that was actually transferred or spent before the Council halted the projects was considerably
lower than that. By the time the Council inquiry began, DPR had transferred authority for the
expenditure of approximately $87 million of capital funds to DMPED. The actual amount of
money sent from DPR to DMPED, however, was $18,413,500.1
And the actual amount
transferred from DMPED to DCHA was only $6,200,000. Moreover, Banneker did not receive
all of the contracts for construction of the projects; instead, it was awarded the project
management contract, which represented only a small portion of the total construction budget.
By December 24, 2009, a total of $4,483,578.77 had been paid to Banneker – not only for
management fees, but also for hard costs and amounts due to its consultants.2

As will be described in greater detail in the body of the Report, based on the scope of the
investigation we were authorized to conduct, and the information that was provided to us, we
came to the following findings and conclusions:

1
Ex. 1, Letter from Barbara Roberson, DPR Fiscal Officer, and Conrad Bridges, DMPED
Fiscal Officer, to then Chairman Vincent C. Gray (Nov. 23, 2009) with DPR project funding
chart attached.
2
Ex. 2, DCHE charts showing a breakdown of invoices paid.
D-9
4
The Transfer of Funds
Our investigation uncovered no wrongdoing on the part of the Mayor, and we found that
the DPR capital funds were not transferred for the purpose of avoiding Council oversight.
• The transfer of funds for the DPR capital projects from DPR to DMPED, and from there
to DCHA, was prompted by a sincere desire on the part of administration officials to
expedite the completion of long-awaited public projects.
• The Fenty administration identified the renovation of parks and community centers as an
important priority, and the Mayor’s office and DPR officials were frustrated by the
backlog of stalled projects. Speed was considered to be imperative, and it was generally
understood that DPR was ill-prepared to deliver it.
• DPR is required to conduct its solicitations through the Office of Contracting and
Procurement (OCP), which delegated authority for construction procurements to the
Department of Real Estate Services (DRES). The OCP process can be slow and
deliberate. DPR also believed that its in-house construction management capacity was
insufficient to handle multiple large scale projects involving the building of new facilities
as opposed to the ongoing repair and maintenance of existing parks.
• Before the funds were transferred to DCHA, city officials attempted to transfer
responsibility for the DPR capital projects to the Office of Public Education Facilities
Management (OPEFM), which had independent procurement authority and was not tied
to OCP. In November 2008, though, the Council intervened and prohibited the transfer.
• OPEFM would have utilized its existing project management team, so there would have
been no need to procure a construction management firm for that function. Moreover,
since the agency is bound by the Home Rule Act, any contracts that exceeded the million
dollar threshold would have been submitted to the Council for review had the projects
remained under OPEFM’s control. The fact that city officials initially sought to transfer
the DPR projects to OPEFM is therefore a significant factor in our conclusion that the
projects were not transferred for the purpose of avoiding Council review.
• The execution of a memorandum of understanding (MOU) to move funds to another
agency – including to DCHA to obtain its assistance on construction projects – was
lawful, and it was consistent with prior practice that predated the Fenty administration. In
fact, DCHE had been specifically created to generate revenue for DCHA by providing
construction services to other entities, and what it proposed to offer them was efficiency.
• The Fenty administration utilized the procedure, though, to an unprecedented degree.
Prior to the DPR projects, DMPED implemented an MOU process culminating at DCHE
for two major projects that far exceeded the cost of anything transferred to the housing
agency before: the completion of a combined public school, library, and recreation center
project at the Walker Jones educational campus in Northwest D.C., and the construction
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5
of the Deanwood Community Center in N.E. Those projects were then viewed as possible
templates for the DPR capital projects.
The Selection of Banneker
• Banneker Ventures was not selected alone, but rather, it was teamed with a seasoned
construction management firm with significant experience in public projects, Regan
Associates, Inc. And it was the Banneker-Regan team that had previously managed both
Walker Jones and Deanwood.3
Thus, there were reasonable grounds for choosing the
Banneker-Regan team on the merits to assume the project management role on the DPR
capital projects.
• When the Regans were first seeking a local, minority-owned firm with which to partner,
Banneker was brought to their attention through a referral from DMPED’s David
Jannarone. But there was no evidence in the bank records of any benefit flowing to
Jannarone from Banneker or from Karim or Skinner’s other businesses. And no
participant in the DPR project manager selection process reported being subjected to any
improper influence or even advocacy on the part of Jannarone, or anyone else in city
government, in favor of Banneker.
• DCHE issued a Request for Qualifications (“RFQ”) to which a number of firms
responded. Their submissions were fairly reviewed by a selection panel made up of
representatives from DPR, DMPED, and DCHE, and the Banneker-Regan team in fact
received the highest score. We found no evidence of improper influence in the selection
and scoring process. We have therefore concluded that the award of the contract to
Banneker is not a matter that calls for further investigation.
The Failure to Obtain Council Approval
Many of the questions that were raised at the time the Council became aware of the
Banneker contract concerned the issue of the failure to obtain Council approval.
• DCHA is an independent agency, and it did not view itself as bound by the D.C. law
requiring Council approval of certain contracts. Thus, when DMPED decided to transfer
funding for the DPR projects to DCHA, it was with the expectation that DCHA would
not be submitting the resulting contracts to the Council. While administration officials
responsible for the decision indicated that they were well aware that Council review
typically takes additional time they did not want to spend, they stated that the MOU was
not prompted by a desire to evade Council review. Officials on both sides of the
DMPED/DCHA transfer testified that the move was inspired by DCHA’s capacity to
manage construction efficiently and that Council approval was not discussed.

3
The circumstances surrounding those procurements were outside the scope of this
investigation.
D-11
6
• We conclude, though, that DCHA was wrong in its judgment that the contracts were not
subject to Council review. DCHA did not receive a formal opinion from the Attorney
General until October 23, 2009, after the Council expressed dismay that it had been
bypassed in this instance. But DCHA’s general counsel, Hans Froelicher, was aware as
early as 2007 that the Attorney General’s Office was of the view that DCHA was subject
to the requirement, particularly when District funds were involved. In 2008, the Attorney
General expressed himself unambiguously and in writing on the subject, and he cited the
authority underlying his opinion. Although we believe that DCHA can be faulted for its
refusal to acknowledge the Council’s authority to approve contracts involving city funds,
we note that there was no evidence that DCHA’s legal position grew out of the intent to
shield any particular contract or contracts from review.
• When the Attorney General declared on October 23 that DCHA was indeed bound by the
Home Rule Act when contracts encumbering District funds were awarded, he premised
his opinion in large part upon a formal opinion that had been issued in 1996 applying the
same ruling to a different independent agency. We therefore question the basis for the
memorandum the Attorney General sent to DCHA on October 26, which stated that since
his October 23 opinion was not retroactive, the Banneker contract remained in force.
Based on the law set forth in the October 23 opinion, we conclude that absent Council
approval, the contract was not valid.
Questions Related to the Procurement
Records related to the procurement revealed other anomalies that prompted questions
from the Council.
• Jacqueline Glover, who had been offered a job at Banneker before taking a position at
DMPED, served as a DMPED representative on the selection panel that considered the
responses to the RFQ for the project manager. We find that her limited interaction with
Banneker did not disqualify her. Moreover, her participation in the procurement made no
difference to the outcome, since Banneker-Regan would have been the top scorer even if
Glover’s scores were excluded entirely.
• Even before the Banneker-Regan team was formally selected as program manager for the
DPR capital projects, there appears to have been an assumption within DMPED, at least
on the part of David Jannarone, that Banneker would be involved in the program
management for the projects. Jannarone was the DMPED official with primary
responsibility for overseeing the projects, and he was a close friend of Sinclair Skinner’s.
Initially DMPED considered adding the DPR capital projects to the Walker Jones
contract through the execution of a change order. Even after that concept was abandoned,
Jannarone acted as if it was a foregone conclusion that Banneker would be awarded the
contract. After DCHE issued the RFQ, but before the proposals were due, Jannarone
directed Karim to prepare cash flow projections for DPR capital projects. It was
inappropriate for an official involved in the procurement to communicate with a single
bidder about the work while the procurement was pending, and the exchange bespeaks a
bias on Jannarone’s part in favor of Banneker. But we concluded that neither the subject
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matter of the communication nor Jannarone’s apparent mindset gave the Banneker-Regan
team an actual advantage given the manner in which the procurement was carried out, the
scores fairly awarded by disinterested panel participants, and the fact that budget
information played no role in the procurement.
• Another question that arose was why, if the selection panel chose “Banneker-Regan” as
the project manager, was the contract executed with Banneker alone? That circumstance
arose out of the terms of the mentoring relationship Regan established with Banneker,
over which city officials exerted no control. Pursuant to agreements between the two
private parties, Regan was the signatory on the project management contract on Walker
Jones, and it executed a subcontract bringing Banneker on as a consultant for 33% of its
fee. The roles were reversed on Deanwood and the DPR projects, and Banneker’s share
was increased, as Regan was committed to Banneker’s advancement to the leadership
position.
Although we conclude that no further investigation is warranted into the decision to
transfer funds from DPR through DMPED to DCHA or the selection of Banneker as project
manager, certain of the explanations given for those decisions did not hold up under close
scrutiny.
Review of Justifications Provided to the Council
• One reason for the transfer of the projects to DCHA that was advanced by city officials at
the initial Council hearings was DMPED’s need to utilize the superior construction
management expertise available at the housing agency. But this explanation did not align
with the plain terms of the MOU or the manner in which the arrangement was actually
implemented. The MOU between DMPED and DCHA engaged DCHA only to perform
contract administration services and serve as a “pay agent.” DCHE staff reviewed
Banneker invoices for accuracy, but they compared them to budgets that had been
supplied to them by DMPED and Banneker, and they relied on DMPED – which they
referred to as DCHA’s “client” – to verify that the work had been performed and the
expenditures were reasonable and necessary. DMPED remained in full control of the
projects: it negotiated the terms of the project management contract with Banneker,
approved Banneker’s invoices, and directed and oversaw Banneker’s work. Indeed,
DMPED resisted DCHE’s attempts to provide guidance on the terms of the contract. So
while we did not uncover evidence establishing that the capital funds were transferred for
the purpose of avoiding Council oversight, there was little evidence to support the
publicly proffered justification that DMPED wanted to utilize the superior construction
management expertise available at DCHA.
• Similarly, DMPED and Banneker took the position that the 9% mark-up on amounts due
consultants was a reasonable fee – even on top of the $4.2 million fixed fee – since it was
Banneker that would be responsible for procuring and contracting with the design
professionals and that would be at risk for their negligence or breach of contract. But in
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fact, the Banneker contract specifically relieves the project manager of any liability for
the consultants’ performance or misconduct.
• DMPED and other city officials publicly defended the Banneker contract on the grounds
that it had been “competitively bid.” But the decision to proceed by RFQ – while not
unusual or inherently improper – did not provide for any price competition at all. It is our
view that the District would have been better served by a process that solicited price
proposals, either at the outset or after the most qualified firms had been identified via the
RFQ. The total to be paid once the mark-up on consultants was added to the fixed fee
sparked a great deal of public second-guessing and discussion; price competition would
have opened the process to other bidders and established some basis for confidence that
the work was actually being performed at the lowest cost.
• Finally, while the Banneker procurement and the terms of its contract were explained at
the Council hearings as the replication of a formula that had previously worked well at
Walker Jones and Deanwood, in March of 2009, it was premature to assess the success of
Deanwood, and in fact, Deanwood was handled quite differently. The MOU from DPR to
DMPED in that instance expressly recognized the need for Council approval; DMPED,
and not DCHA, conducted the procurement for the project manager; the project
management contract was awarded after a procurement process that solicited competitive
price proposals; and the contract did not include the controversial 9% mark-up.
Events Occurring After the Council Inquiry Began
We also reached conclusions about questioned events that transpired after the Council
inquiries were underway.
• On December 9, 2009, DMPED and DCHA amended their MOU to increase the number
of parks and the total amount of capital funds transferred to the housing agency. On the
same date, DCHE and Banneker executed a change order to the project management
contract, expanding the scope of the work and revising the fee arrangement, while
reducing and capping the controversial 9% mark-up. We found that these actions were
simply part of an effort led by DMPED to present a complete package to the Council for
approval at that time. The parties took steps to ensure that the paperwork finally reflected
the full scope of the work, and they amended the contract to address Councilmembers’
concerns in the hope of securing approval so that work could proceed. While the effort
was ultimately unsuccessful, there is nothing about it that warrants further investigation.
• There were some within DCHA who agreed that moving forward to seek Council
approval was the right course of action. There were others, in particular, William Slover,
then Chair of the DCHA Board of Commissioners, who felt that in light of the Council’s
decision to cut off the flow of funds for the projects, the agency would be better advised
to terminate its MOU with DMPED and conclude its involvement in the projects. Slover
had also raised a number of questions about the terms of the Banneker contract. The
Mayor made the decision to remove the Chair in November, but we did not find that the
personnel action was motivated by a desire to silence a critic. The Mayor’s action was
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prompted by the Attorney General, who was frustrated at the time that the General
Counsel of DCHA was proposing a course of action other than the one that the Attorney
General had recommended. The Attorney General suggested that therefore, a change in
leadership at DCHA was required. The Chair served at the will of the Mayor in any
event.
• The $2.5 million payment to Banneker on Christmas eve came as a shock to Council
members who had formally disapproved the contract nine days before. We found that
DCHA made the decision to pay the outstanding invoices, under some prodding by David
Jannarone at DMPED, in a good faith effort to make contractors who had already
performed work whole and to bring the agency’s involvement in the projects to a close.
While the CFO of DCHA expressed reservations at the time, and the report raises
questions about the legal underpinnings for the settlement agreement and the decision to
issue the payment without broader notification or consensus, the matter does not require
further examination. We found no evidence that the Mayor or the Attorney General were
involved.
Banneker’s Management of the Projects
Our investigation went on to reach certain findings and conclusions concerning
Banneker’s management of the DPR projects: in particular, its selection of LEAD to perform
engineering services and its procurement of certain general contractors to build the individual
projects. It is with respect to these issues that we conclude that further investigation is warranted.
The Selection and Payment of Liberty Engineering & Design
• Banneker selected LEAD to perform all of the engineering work on all of the projects.
LEAD was a year-old, two-man firm, and only one of its two principals was a licensed
professional engineer. LEAD had not previously been hired to provide the full range of
civil engineering services on a large scale public recreation project.
• Immediately after it was notified of DCHE’s intent to award it the project management
contract, Banneker hired LEAD on a sole source basis to provide consulting services and
to survey the sites. There was no licensed surveyor at LEAD.
• Banneker subsequently issued an RFQ seeking a firm to perform all of the civil
engineering services – civil engineering, geotechnical engineering, environmental
assessments, structural engineering, testing and inspection, and also, the surveys – for all
of the parks. The RFQ required participation by a firm identified by the Department of
Small & Local Business Development as a “Certified Business Enterprise.”
• While LEAD met few of the limited set of other criteria set out in the RFQ, Banneker
selected it on the grounds that it was the only respondent that met the CBE requirement.
Price played no role in the procurement.
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• LEAD’s response to the RFQ was false in several material respects. In particular, LEAD
misrepresented its capacity, and it provided resumes falsely identifying individuals who
worked elsewhere as LEAD employees. Based on facts uncovered about the relationship
between Skinner and Karim, and Banneker and LEAD, there is reason to believe that
Karim knew or should have known that LEAD’s RFQ response was inaccurate and that it
significantly exaggerated LEAD’s qualifications.
• Banneker did not involve Regan – which was supposed to have responsibility for half of
the parks – with respect to either the original sole source arrangement or the subsequent
consulting services contracts with LEAD. Banneker assumed sole responsibility for the
pricing and procurement of the engineers.
• After LEAD was awarded the engineering work, it did little of the work itself. It engaged
other, non-CBE firms to perform the surveying and civil engineering and to draft the
environmental site assessments while it provided “management, direction, and
supervision.”
• While LEAD’s “management” of the other engineers amounted to little more than
scheduling and transmitting their work product, it submitted invoices to Banneker that
marked up its payments to those engineers by more than 125%. Surveys were marked up
by more than 400%. Thus, Banneker’s selection of LEAD, as opposed to a firm with the
capacity to perform the work itself, added an extremely expensive layer of management
to the projects, resulting in, at the very least, considerable waste to the taxpayers.
• While Banneker was on notice of LEAD’s reliance on other engineering firms, there is no
evidence that Banneker required LEAD to produce records of its costs before applying its
9% markup and transmitting LEAD’s invoices to DMPED and DCHE for payment.
• There is no evidence that Banneker negotiated with LEAD before accepting its proposed
pricing structure; indeed, Banneker submitted LEAD’s overpriced invoices for the first
five surveys to DMPED – applying the 9% mark up – before it had even executed a
contract with LEAD determining what the survey prices would be.
The Relationship between Skinner and Karim
and the Witnesses’ Testimony on those Matters
How did this happen? The investigation has uncovered multiple ties between Skinner and
Karim that may bear on the questions presented to the Special Counsel. At one time, Skinner
represented himself as being affiliated with Banneker Ventures: he was issued a Banneker
Ventures business card with a phone extension and email address there, and he testified in an
unrelated matter that Banneker was one of the clients for whom he sought to develop
government business opportunities. Karim and Skinner also worked together through their sole
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proprietorships – Liberty Law Group and Liberty Industries – which they started in 2007.
According to one of their clients, their efforts were also related to assisting would-be city
contractors. Bank records reflect that Karim’s Liberty Law Group paid Skinner’s Liberty
Industries more than $1,000,000 between 2008 and 2010 for services that neither witness could
or would explain. The businesses had separate bank accounts, but they utilized the same office
address – an address that was also used by Banneker Ventures and LEAD. Indeed, Karim’s
Liberty Law Group was paying at least some portion of the rent for the office suite at the very
time that LEAD was obtaining work from his construction firm.
These connections and transactions were not fully clarified in the course of the
investigation, but the inability to plumb the depths of the issues cannot be attributed to any lack
of effort on the part of the Council or the Special Counsel. The Council was forced to resort to
court proceedings to secure Sinclair Skinner’s appearance at the hearings to which he had been
subpoenaed. But when Skinner testified pursuant to the court order, his counsel objected to
questions related to Liberty Industries and the payments from Liberty Law Group on relevance
grounds, and he directed Skinner not to answer them. Karim appeared for his deposition, but he
also refused to answer questions or produce documents related to Liberty Law Group or Liberty
Industries. Ultimately, Skinner agreed to answer the questions, and the court granted the
Council’s motion to compel Karim to do so. But despite the court order and the promise of
cooperation, the witnesses did not answer the questions in any substantive way when they
appeared a second time. Instead, they repeatedly responded: “I don’t recall.”
Karim, Skinner, and Skinner’s partner at LEAD, Abdullahi Barrow, professed to be
unable to remember basic facts about their businesses, such as how many people they employed,
how they came to work with each other, how they spent their time, or the nature of the work they
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performed for their clients. The obfuscation was particularly comprehensive when the questions
turned to the relationship between Skinner and Karim and the connections between Banneker
Ventures, Liberty Law Group, and Liberty Industries. Karim failed to produce any records
related to Liberty Law Group. He could not recall why anyone had ever hired his firm for
anything other than “community consulting,” which he defined as “consulting in the
community.” Skinner could not recall the specific reason behind a single payment he received at
Liberty Industries from Liberty Law Group, but he swore that none had anything to do with the
DPR capital projects. The only thing Karim and Skinner could say about the million dollars that
changed hands was that Liberty Industries had performed unspecified “consulting” services for
Liberty Law Group. The witnesses’ claimed failure of recollection was so extensive and so
complete that it was unworthy of belief. Karim and Skinner essentially thwarted the
investigation, and their performance left us with the clear impression that they believed they had
something to hide.
The Selection of the General Contractors
The problems went beyond possible improprieties in Banneker’s selection of LEAD. Our
investigation also discovered that Banneker led the procurement of the general contractors, even
for the parks within Regan’s portfolio, and that it recommended that contracts be awarded to
several firms with financial ties to either Karim or Skinner: Blue Skye Construction, AF
Development, Capital Construction, and District Development Corp. Bank records revealed that
all of these successful bidders made substantial payments to either Liberty Law Group or Liberty
Industries close in time to procurement of the general contractors, but the payments were not
disclosed during the selection process, and neither Karim nor Skinner would explain to us the
reasons behind those payments.
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The Need for Further Investigation
Thus, the testimony that was provided and the records we reviewed give rise to concerns
about the arms length nature of Banneker’s award of DPR work to LEAD and to others. We find
that LEAD submitted a false proposal in connection with its effort to obtain city contracts, and
that its invoices were grossly inflated, and that there is reason to believe that Karim knew or
should have known about LEAD’s lack of capacity and its unsupportable profits. In their refusal
to offer any satisfactory explanation for their financial dealings, Karim and Skinner have left
open the question of whether Karim’s payments to Liberty Industries or the fees paid to Liberty
Law Group by other contractors indicate the existence of undisclosed conflicts of interest, or
worse, an unlawful scheme. A reading of the witnesses’ unresponsive testimony in its entirety
also raises the question whether the “I don’t recall” incantation was knowingly false or designed
to obstruct the investigation. For these reasons, while we express no view as to the likely
outcome of a future inquiry, given the limits on the investigative tools available to us as Special
Counsel, we recommend that the Council refer these matters to the United States Attorney for
further examination.
Conclusions about Government Oversight
Finally, we conclude that Banneker was able to direct such a large proportion of the
dollars expended on the DPR projects in 2009 to LEAD because of a failure of oversight on the
part of DCHE and particularly, DMPED. DCHE personnel reviewed Banneker’s invoices to
ensure that project expenditures were in accordance with project budgets, and they checked for
arithmetic errors and supporting documentation. But they deferred to their “client,” DMPED, to
assess whether the work claimed in the invoices was actually performed and properly priced.
Even in its limited role, DCHE should have asked more questions about LEAD’s invoices when
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there was no indication that Banneker had sought approval to hire LEAD under the terms of the
project management contract DCHE was being paid to administer.
DMPED, for its part, simply relied on Banneker to review the invoices submitted by its
consultants, and it took no action to question LEAD’s charges even though the DMPED project
manager, Jacqui Glover, observed that they were high. She was well aware that LEAD was
actually subcontracting the work to other firms, but she signed off on the invoices even in the
absence of records reflecting LEAD’s costs for those subcontractors.
Ultimately, while we are recommending further investigation with respect to Banneker,
LEAD, and Skinner and Karim’s other business entities only, our review uncovered areas for
improvement across the board as many government officials share responsibility for what took
place. District officials gave priority to the need for speed while ignoring the preference for price
competition that is embodied in both District and DCHE procedures and would have better
served the District’s interests. DMPED was operating under an assumption that Banneker would
end up with the project management contract, and when the time came to negotiate its terms,
there was a lack of hard bargaining on the city’s side. Terms from previous contracts that were
favorable to Banneker were repeated without an exploration of their continued justification, and
DMPED brushed aside DCHA’s attempts to take time to improve the contract. This combination
of expedition, inattention, and inertia left the city vulnerable to complaints that there had been at
least an appearance of impropriety, and the use of the RFQ left city officials unable to point to
proof that would dispel complaints that the deal was too rich for Banneker.
The Council was told that funds and authority were transferred from DPR to DMPED in
an effort to supplement DPR’s construction management capacity. But DMPED was just getting
its construction team off the ground, so it transferred funds and authority to DCHA – and agreed
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to pay DCHE $700,000 – to tap into its superior construction management expertise. But
DMPED turned a deaf ear when DCHE tried to offer that input. And in the end, DCHE was not
expected to serve as the project manager either. At DMPED’s direction, DCHE paid to engage a
private firm to hire and manage the consultants and contractors, and Banneker, once selected for
that role, selected an engineering firm that did little more than hire and manage its own
contractors. All of these multiple layers of management led to a significant waste of taxpayer
funds.
In addition, the successive hand-offs resulted in such a diffusion and dilution of
responsibility that in the end, no one in government took ownership of the projects, and
Banneker was presented with an opportunity it may have exploited for the benefit of LEAD and
possibly others. Banneker was considered and selected for the award in combination with Regan,
but the firm took advantage of its lead position. DCHE held Banneker’s contract, but DMPED
retained control of the projects and the project manager, and neither agency paid sufficient
attention. Both agencies fell short in their roles and both promptly pointed fingers at the other
when problems with the contracts first came to light.
In light of all of the facts and circumstances to be set forth in detail below, we
recommend that the Council refer the matters related to Banneker, LEAD, and Banneker’s
selection of the general contractors to the United States Attorney for further investigation and
that the Council consider the additional legislative recommendations set forth at the conclusion
of this report.
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SCOPE OF THE INVESTIGATION
A. How It Began
On October 22, 2009, four members of the Council of the District of Columbia
(“Council”) wrote a letter to Mayor Adrian M. Fenty, stating that it had come to their attention
that week that “tens of millions of dollars in contracts are being awarded through the District of
Columbia Housing Authority.”4
They noted that “Funding for these contracts appears to be
directed from District government agencies for projects related to parks, recreation centers and
fields.” The Council members voiced their concern that the “transfer of procurement authority
may circumvent District procurement laws” and was not sufficiently transparent.5
They also
pointed out that “work appears to have been started or completed on projects over $1 million
without Council approval.”6
One of the questions raised by the Council and in ensuing media reports was why funding
for DPR projects was transferred from DPR to the Deputy Mayor for Planning and Economic
Development (“DMPED”), and then again from DMPED to DCHA and its wholly-owned
subsidiary, District of Columbia Housing Enterprises (“DCHE”).7
Questions were also raised
about the award of the multi-million dollar project management contract to Banneker Ventures

4
Ex. 3, Letter from Kwame Brown, Chair, Committee on Economic Development, Marion
Barry, Chair, Committee on Housing and Workforce Development, Mary Cheh, Chair,
Committee on Government Operations & the Environment, and Harry Thomas, Jr., Chair,
Committee on Libraries, Parks & Recreation, to Adrian M. Fenty, Mayor of the District of
Columbia (Oct. 22, 2009).
5
Id.
6
Id.
7
Nikita Stewart, D.C. Council Questions Parks Projects It Didn’t Approve, Wash. Post,
Oct. 23, 2009, at B1.
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LLC (“Banneker Ventures” or “Banneker”), a company owned by Omar Karim, a fraternity
brother of Mayor Fenty’s,8
and about Banneker’s award of the civil engineering contract for the
projects to a company owned in part by Sinclair Skinner, also a friend and fraternity brother of
the Mayor’s. 9
In light of these questions, the four Council members, each the chair of a committee with
relevant oversight responsibility, convened a joint public oversight roundtable on October 30,
2009 to examine the DPR capital projects.10 At the roundtable, City Administrator Neil Albert
and several other District officials testified about the projects. In addition, community members
spoke out about their concerns over the contracting and procurement process.11
B. The Authorizing Resolution
Based in part on testimony presented at the October 30 roundtable, the Committee on
Libraries, Parks and Recreation (“the Committee”) found that the circumstances surrounding the

8
Id.
9
Stewart, Wash. Post, Oct. 31, 2009.
10 Pursuant to Council Rule 501(c), “a committee may hold a roundtable on any matter
related to the affairs of the District that is properly within the committee’s jurisdiction.” In
essence, a roundtable meeting is similar to a hearing except for the notice requirements involved.
Rules for the Council of the District of Columbia, Council Period 18 Resolution of 2009,
effective January 2, 2009 (Res. 18-1, 55 DCR 784) (“Council Rules”). The roundtable was
convened by Kwame Brown, Chair, Committee on Economic Development, Marion Barry,
Chair, Committee on Housing and Workforce Development, Mary Cheh, Chair, Committee on
Government Operations & the Environment, and Harry Thomas, Jr., Chair, Committee on
Libraries, Parks & Recreation.
11 Joint Public Oversight Roundtable on the Contracting Process Related to Parks and
Recreation Before the Committee on Economic Development, the Committee on Housing and
Workforce Development, the Committee on Government Operations & the Environment, and the
Committee on Libraries, Parks & Recreation (hereinafter “Joint Roundtable”), 18th Council
Period (D.C. Oct. 30, 2009); see also Nikita Stewart, Contractor Chose Firms Linked to Fenty,
D.C. Council Told, Wash. Post, Oct. 31, 2009, at B1.
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transfer of DPR funds demonstrated “inadequate controls and accountability over the budget
process,” and that the “unanswered and potentially inappropriate involvement of [DPR] and
other District agencies” warranted an investigation.12 Accordingly, on November 2, 2009, the
Committee passed the Committee on Libraries, Parks and Recreation Budget Transparency
Investigation Authorization Resolution of 2009 (“Authorizing Resolution”).
The Authorizing Resolution directed the Committee to investigate the following:
• “A determination of policies, procedures, or other practices surrounding
the transfer of funds or authority via memoranda of understanding, or any
other instrumentality, for Department of Parks and Recreation capital
projects;”
• “All funds concerning Department of Parks and Recreation capital
projects;” and
• “All relevant facts and circumstances related to the matters listed above
to determine what, if any, legislative action may be appropriate.”13

12 Ex. 4, Committee on Libraries, Parks and Recreation Budget Transparency Investigation
Authorization Resolution of 2009, effective November 2, 2009 (56 DCR 8724) (the “Authorizing
Resolution”). The Authorizing Resolution was amended by the Committee on Libraries, Parks
and Recreation Resolution Budget Transparency Investigation Amendment Resolution of 2010,
effective March 9, 2010 (57 DCR 3210) (Ex. 5, the “Special Counsel Resolution”).
13 Ex. 4, Authorizing Resolution § 3(1)-(3).
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The Authorizing Resolution granted the Committee authority to use subpoenas to compel
the attendance of witnesses, to obtain testimony, and to require the production of documents or
other information or tangible items.14
The Committee then held a series of joint roundtables on November 5, 2009, November
16, 2009, December 2, 2009, December 10, 2009, January 8, 2010, and January 27, 2010.15
Among the witnesses that appeared before the Committee were representatives of DPR,
DMPED, DCHA, DCHE, the Office of Contracting and Procurement (“OCP”) and the Office of
the Chief Financial Officer (“OCFO”). In addition, Omar Karim testified on behalf of Banneker
Ventures, alongside two representatives of Regan Associates LLC, the firm that shared project
management duties with Banneker. Several members of the public also testified.
The Committee also sought the testimony of Sinclair Skinner. Skinner was a founder and
principal of Liberty Engineering & Design (“LEAD”). LEAD was hired by Karim’s company,
Banneker Ventures, to perform civil engineering, geotechnical, environmental, and surveying
services for the DPR capital projects. After Skinner failed to appear to testify,16 the Council

14 Ex. 4, Authorizing Resolution § 4. In addition, on November 5, 2009, Councilmember-atLarge Brown formally requested that the District of Columbia auditor conduct an audit of the
contract and procurement practices related to the DPR capital projects. Ex. 6, Letter from
Deborah K. Nichols, District of Columbia Auditor, to Adrianne Todman, Interim Executive
Director, DCHA (Nov. 16, 2009).
15 Like the October 30, 2009 joint roundtable, these roundtable meetings were also
conducted jointly with the Committee on Economic Development, the Committee on Housing
and Workforce Development, and the Committee on Government Operations & the
Environment.
16 Ex. 7, Letter from Harry Thomas, Jr., Chair, Committee on Libraries, Parks and
Recreation, to Sinclair Skinner, Liberty Engineering and Design, PLLC, Dec. 8, 2009; Ex. 8,
Subpoena to Sinclair Skinner issued by Council member Harry Thomas, Jr., Chair, Committee
on Libraries, Parks and Recreation of the Council of the District of Columbia, Jan. 14, 2010.
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moved to enforce its subpoena in the Superior Court of the District of Columbia.17 On February
26, 2010, the Superior Court granted the Council’s petition, and ordered Skinner to appear and
provide testimony before the Committee, subject to a $5,000 fine for the day of his nonappearance and a $1,000 fine for every subsequent day that he failed to appear.18 Skinner
appeared before the Committee on April 15, 2010.
C. The Special Counsel Resolution
In light of Skinner’s recalcitrance, the Committee sought the assistance of outside
counsel in taking Skinner’s testimony. The Committee also requested assistance in reviewing the
facts relating to the DPR capital projects and determining whether further action was warranted.
Accordingly, on March 9, 2010, the Committee unanimously approved the Committee on
Libraries, Parks and Recreation Resolution Budget Transparency Investigation Amendment
Resolution of 2010 (“the Special Counsel Resolution”). The Special Counsel Resolution
appointed Robert P. Trout of Trout Cacheris PLLC as Special Counsel,19 and directed him to do
the following:
• “Review all material he deems appropriate concerning this investigation;”
• “Conduct a thorough review of District laws to determine if the
circumstances surrounding the transfer of capital funds, the subsequent
awarding of contracts, or the approval and expenditure of funds warrant
further review of the United States Attorney for the District of Columbia or
any other investigative or enforcement agency;”

17 Pursuant to D.C. Official Code section 1-204.13, which authorizes the Council to petition
the Superior Court of the District of Columbia to enforce a Council subpoena on a witness, the
Committee adopted the Enforcement of Subpoena of Sinclair Skinner Resolution of 2010,
effective February 2, 2010 (Res. 18-379). See Ex. 9.
18 Ex. 10, Council of the District of Columbia v. Sinclair Skinner, No. 1122-2010 (D.C.
Super. Ct. Feb. 26, 2010) (order granting consent motion).
19 Ex. 5, Special Counsel Resolution, § 3a.
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• “Make any recommendations that he may have for any necessary changes
to District laws;” and
• “Examine any other areas or matters that may be necessary to assist the
Committee as determined by the Chairman.”20
The Special Counsel Resolution also provided that the “Special Counsel is permitted,
through the Committee, to utilize subpoenas to obtain testimony and documents” and provided
that the Special Counsel may take testimony of witnesses by deposition.21 It noted that the
Chairman of the Committee may “retain and delegate investigative duties to Mr. Trout,” and that
Mr. Trout would provide his services on a pro bono basis.22 Finally, the Special Counsel
Resolution directed Mr. Trout to issue a report within 60 days of the conclusion of the
investigation.23
Other attorneys from Trout Cacheris assisted Mr. Trout in this investigation.
D. Methodology
At the outset of the investigation, we were briefed by Council staff on District budgeting
and contracting policies and procedures and on the status of the Committee’s investigation. We
researched the applicable laws governing contracting, procurement, and budgeting in the District
of Columbia. We reviewed the information already collected by the Committee, including
numerous documents and the testimony taken at the seven hearings held by the Council between

20 Ex. 5, Special Counsel Resolution, § 3a(c)(1)-(4).
21 Ex. 5, Special Counsel Resolution, § 3a(e)-(f).
22 Ex. 5, Special Counsel Resolution, § 3a. The Committee did not authorize or provide
funding for forensic accountants or experts in construction management or government contracts.
23 Ex. 5, Special Counsel Resolution, § 3a (c)(5).
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October 30, 2009 and January 27, 2010. Approximately 45 witnesses appeared during these
roundtables (some more than once), providing more than 45 hours of testimony.
Using that information as a baseline, we proceeded to gather facts and evidence by means
of document subpoenas and requests, Committee hearings, depositions and interviews.
1. Document collection and review
After reviewing the documents gathered by the Committee, we issued 14 document
subpoenas pursuant to our authority under the Special Counsel Resolution and Council Rule 611
and made additional document requests.24 We collected and reviewed thousands of documents
from a variety of sources, including District agencies and private contractors and subcontractors
who worked on the DPR capital projects. We also subpoenaed bank records of Banneker
Ventures and LEAD, as well as Liberty Law Group, a law and consulting firm owned by Omar
Karim, and Liberty Industries, a consulting firm owned by Sinclair Skinner.
Our efforts to obtain documents were at times hindered by incomplete and delayed
productions. For example, on April 7, 2010, we issued a subpoena to Sinclair Skinner for
documents relating to LEAD’s activities, to be produced at the time of his appearance before the
Council on April 15, 2010.25 Skinner made a partial production on April 15. He made a second
production on April 26 and a third production on April 27, which he described as final and

24 Council Rule 611 states: “The Council, any standing committee of the Council, and, if
authorized by the Resolution establishing it, any special committee, may subpoena the
attendance and testimony of witnesses and the production of documents and other tangible items
at meetings, hearings, and depositions in connection with an investigation….”
25 Ex. 11, Subpoena to Sinclair Skinner issued by Council member Harry Thomas, Jr.,
Chair, Committee on Libraries, Parks and Recreation of the Council of the District of Columbia,
Apr. 5, 2010.
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complete.26 Skinner then appeared before the Council a second time on April 28, and during that
appearance we requested several specific documents that had not been produced.27 Skinner then
made a fourth production of documents on May 728 and a fifth production on May 24, 29
representing again that this was a final and complete production.30 Yet on May 28, 2010, Skinner
produced a sixth set of responsive documents,31 and still failed to produce documents that should
have been in LEAD’s possession if its records had been adequately maintained.
We also experienced delays and a seriously inadequate response in our efforts to obtain
documents from Omar Karim and Banneker Ventures. Banneker’s initial production of
documents to the Council was notably incomplete. To take one important example, e-mails were
produced with critical attachments missing. We issued a follow-up subpoena to Karim, which
was met with the assertion that no production could be accomplished without significant delay.32
In the end, no additional documents or records were provided by Karim or Banneker, and we did

26 See Ex. 12, Letter from A. Scott Bolden, Counsel for Sinclair Skinner, to Robert Trout,
Special Counsel to the Council of the District of Columbia, Apr. 27, 2010.
27 Joint Roundtable (April 28, 2010) 6:2-11; 136:17-137:14.
28 See Ex. 13, Letter from A. Scott Bolden, Counsel for Sinclair Skinner, to Robert Trout,
Special Counsel to the Council of the District of Columbia, May 7, 2010.
29 See Ex. 14, Letter from A. Scott Bolden, Counsel for Sinclair Skinner, to Robert Trout,
Special Counsel to the Council of the District of Columbia, May 24, 2010.
30 See Ex. 15, Letter from Robert Trout, Trout Cacheris PLLC, to A. Scott Bolden, Reed
Smith, June 4, 2010.
31 See Ex. 16, Letter from A. Scott Bolden, Reed Smith, to Robert Trout, Trout Cacheris
PLLC, May 28, 2010.
32 See Ex. 17, E-mail from Lawrence Sher, Reed Smith, to Robert Trout, Trout Cacheris
PLLC (July 20, 2010, 11:55 EST).
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not receive any indication that they made any effort to search for documents in response to our
subpoena.
The process of obtaining documents from District agencies also moved slowly, for a
number of reasons. First, facts learned during the investigation caused us to issue more than one
document request to certain agencies. Second, some agencies took a significant amount of time
to provide documents, requesting successive extensions to our deadlines. Third, some agencies
produced e-mails without attachments, and other agencies produced documents in a manner that
made it difficult to correlate e-mails with their attachments, adding additional time to our
review.33 We also do not believe that we received complete productions from any of the agencies
involved since, among other things, we received many e-mails where a copy was produced by
the sending or receiving party but not by the other.
2. Skinner’s testimony before the Council
Shortly after the Special Counsel was appointed, we took the lead in questioning Sinclair
Skinner, one of the principals of LEAD, during his court-ordered testimony before the
Committee on April 15, 2010 and again on April 28, 2010. During both appearances, Skinner,
through his counsel, refused to answer questions that he claimed were outside of the scope of the
investigation.34 Among other things, these questions related to the activities of Liberty Industries,
LLC, a company solely owned by Skinner, and its relationship to Liberty Law Group, a firm
solely owned by Omar Karim. Special Counsel pursued these inquiries because the evidence
showed close ties between Skinner and Karim through their companies, including transfers of

33 See, e.g., Ex. 18, E-mail from Amy Jackson, Trout Cacheris PLLC, to Kelly Kramer,
Nixon Peabody LLC (Oct. 28, 2010, 1:35 PM EST).
34 See, e.g., Joint Roundtable (Apr. 15, 2010) 143:11-145:3 (refusing to answer questions
about Liberty Industries or Liberty Law Group).
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more than one million dollars from Liberty Law Group to Liberty Industries between 2008 and
April 2010. The relationship between Skinner and Karim raised serious questions about whether
the contracts for engineering work were awarded in a fair and open manner. Although Skinner’s
objections to our inquiries about Liberty Industries and Liberty Law Group were overruled,35
Skinner’s counsel nevertheless directed him not to answer or provide related documents. The
Committee held Skinner’s appearance open at the conclusion of the April 28, 2010 hearing
subject to resolving these objections.36
After meetings with Skinner’s counsel, we were advised that Skinner had changed his
position and would testify about the subjects he had previously claimed were outside the scope
of the investigation. By agreement, the follow-up testimony was taken by deposition. Because of
Skinner’s continuing objections and scheduling conflicts, that deposition was not held until
October 6, 2010, nearly six months after Skinner’s original appearance before the Committee. As
will be discussed in more detail below, however, Skinner’s professed willingness to testify
proved illusory.
3. Depositions and interviews
In addition to Sinclair Skinner, we deposed 14 witnesses, either through their voluntary

35 See, e.g., Joint Roundtable 145:4-145:15 (Apr. 15, 2010); see also Council Rule 621
(providing that a witness may claim statutory or common law privileges recognized by the
Superior Court of the District of Columbia, but if the presiding member determines the claim of
privilege is not warranted, he or she shall direct the witness to answer the question, and a
continued claim of privilege constitutes contumacy by the witness).
36 Joint Roundtable (Apr. 28, 2010) 137:15-19.
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cooperation or testimonial subpoenas.37 The deponents included District government employees,
as well as contractors and subcontractors for the DPR capital projects. Several depositions were
conducted in executive session, 38 but have since been released for use in this Report.
We filed a motion to compel with regard to one witness: Omar Karim. Karim appeared
for a deposition, but refused to answer questions or to produce documents related to Liberty Law
Group and his relationship with Sinclair Skinner and Liberty Industries. Karim, like Skinner,
claimed that these questions were irrelevant to the investigation.39 Karim similarly refused to
answer questions about ties between Liberty Law Group and other companies that also were
awarded contracts to work on the DPR capital projects. Accordingly, Special Counsel sought
permission from the Council to file a motion to compel, which was granted in a resolution passed
unanimously on August 12, 2010.40 On September 17, 2010, the Superior Court entered an order
finding that these issues were within the bounds of the investigation, and ordering Karim to

37 Depositions were taken at the Council’s chambers in the John A. Wilson Building and, as
is the Council’s practice, were preserved by audiotape recording, using the technology made
available to us by the Council. After each deposition, electronic copies of the audiotapes were
provided to the witness or their counsel. The audiotape of each deposition was subsequently
transcribed. We learned after the fact that due to errors in the operation of the recording
equipment during four of the depositions, some portions of the witnesses’ testimony were not
captured on the recordings. We advised counsel for each of these deponents of the recording
issues, and provided them with the opportunity to propose solutions that would leave each
deponent satisfied that the record accurately reflected his or her statements. We also provided
counsel for these deponents with copies of our detailed notes of the depositions and with the
opportunity to review this Report before final submission to the Council. We have not been
advised of any inaccuracies in our descriptions of the witnesses’ statements. Where we rely on
any portions of the testimony that were not recorded, we treat that testimony as an un-sworn
interview, and cite to them as “Dep. Notes.”
38 See Ex. 19, Council Rule 504.
39 Deposition of Omar Karim (August 5, 2010) at 76:1-14. Karim, Skinner and their
companies were represented by the same counsel in this investigation.
40 Ex. 20, The Enforcement of Subpoena of Omar Karim Resolution of 2010, effective
August 12, 2010 (Res.18-615).
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answer questions and to produce the documents relating to Liberty Law Group that he had
previously refused to provide.41 Karim, however, did not produce any additional documents. He
was re-deposed on September 21, 2010. But as described more fully below, his testimony was
more evasive than responsive, and he provided virtually no meaningful information about the
activities of Liberty Law Group or Liberty Industries.
In addition to taking depositions, we interviewed 30 witnesses, including contractors,
architects and engineers who worked on the DPR capital projects, employees and former
employees of a number of District agencies, Councilmember Harry Thomas, Jr., and Attorney
General Peter Nickles. Because the projects were originally slated in 2008 to be managed by the
Office of Public Education Facilities Modernization (OPEFM), and were again transferred to
OPEFM after the Council’s action in December 2009, we interviewed Allen Lew, then Executive
Director of OPEFM, and the two OPEFM project managers who were assigned responsibility for
the projects: Will Mangrum of Brailsford and Dunlavey and Marcos Miranda of McKissack &
McKissack, about those circumstances.42 Since, as noted above, the appointment of Special
Counsel did not provide for the engagement of independent experts in construction management
or any other field, we asked the project managers, engineers, architects, and others we did
interview to shed light on industry practices in general and their practices in particular, and while

41 Ex. 21, Council of the District of Columbia v. Omar Karim, No. 1122-2010 (D.C. Super.
Ct. Sept. 17, 2010) (order granting motion to compel testimony and compliance with Council
subpoena duces tecum).
42 While the projects were originally assigned to OPEFM, Brailsford and McKissack
worked on the RFP for design-build services that was issued by OPEFM on February 2, 2009.
See Ex. 22, D.C. Office of Public Education Facilities Modernization, Request for Proposals,
Design-Build Renovation Services, Recreation Centers, Solicitation #: GM-09-M-0204-FM
(Feb. 2, 2009). Brailsford also submitted a response to the project management RFQ issued by
DCHE on March 9, 2009, but was not chosen. McKissack did not respond to the DCHE RFQ.
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we do not proffer these comments as expert opinion, we include them in the report where
relevant.
We also requested the opportunity to depose or interview Mayor Adrian Fenty.
Responding on behalf of the Mayor, the Attorney General asserted that the Council did not have
the authority to compel the Mayor to testify, and declined our request for a deposition.43
However, he indicated that the Mayor would answer a limited number of written questions:
… in the spirit of transparency and cooperation, I am informed that the Mayor is
willing to answer certain specific questions that are neither privileged nor
repetitive of questions already addressed by other witnesses in the investigation.
In order to preserve precedent, however, I propose that the questions be submitted
in writing and answered in writing. Given these parameters, I’m certain such
questions would number no more than between 5-10 separate queries.44
After consultation with the Committee and in light of the evidence already gathered, Special
Counsel decided to accept the Mayor’s offer to answer written questions in lieu of a deposition
or interview. A copy of the written questions and the Mayor’s answers is attached to this
Report.45
E. Limitations of the Investigation
Pursuant to the Special Counsel Resolution, our investigation focused on the transfer of
funds and authority for the DPR capital projects to DMPED and then to DCHA, the awarding of
contracts to carry out the work on those projects, and events relating to termination of the
contracts and the December 2009 payment. We did not have the benefit of forensic accounting
expertise in our investigation. While the Joint Roundtable hearings exposed possible funding

43 See Ex. 23, Letter from Peter J. Nickles to Robert P. Trout (Dec. 3, 2010).
44 Id.
45 Ex. 24, Letter from Peter J. Nickles to Robert P. Trout (Dec. 30, 2010).
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deficiencies, questions about DMPED’s decisions to authorize spending in excess of amounts
budgeted for particular parks or allocated for the particular fiscal year,46 and inconsistencies
between the list of projects DMPED directed Banneker to manage and the list of projects
covered by the MOUs, the Committee agreed that since the D.C. Auditor was conducting a
parallel investigation into those matters, questions related to reprogramming and anti-deficiency
act concerns fell outside the scope of our investigation. For the same reason, we did not
undertake an audit of Banneker’s invoices.
One question we were asked to address was whether any of the circumstances warranted
further review by the United States Attorney for the District of Columbia or any other
enforcement agency.47 As Special Counsel, we had the investigative tools provided under the
Council’s rules, but we did not have access to the government’s full range of investigatory
resources, and we could not exercise the powers available to a public prosecutor conducting a
grand jury investigation, including the power to grant immunity to certain witnesses. Thus, we
do not represent that we have uncovered every fact relating to the DPR capital projects. Where
we have uncovered sufficient facts to give rise to a concern that potential violations of law may
have occurred, or there are questions that cannot be answered without the tools available to a

46 David Jannarone operated under the mistaken impression that DMPED had “pool
authority” to move funds between projects and between fiscal years. Jannarone Dep. 93:5-94:2.
DPR employees were troubled by DMPED’s approach to funding and brought their concerns to
Jannarone’s attention on several occasions before he sought legal guidance on the issue. Ex. 25,
E-mail from Bianca Fagin (DPR) to Jacquelyn Glover (EOM), Bridget Stesney (DPR), and
David Janifer (DPR) (Aug. 3, 2009 2:40 PM EST); Janifer Dep. 105:5-106:10. DCHE personnel
did not track this issue at all, and instead saw their task as managing the budgets provided to
them by DMPED. Interview with Asmara Habte, Contractor, DCHA (Jul. 27, 2010).
47 Ex. 5, Special Counsel Resolution.
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prosecutor, we have recommended that the issues be referred for investigation by the appropriate
authorities.
LEGAL BACKGROUND
This section briefly outlines several legal and regulatory issues that are relevant to the
events under investigation: (1) the requirement of Council approval for District contracts of more
than one million dollars; (2) the differing procurement rules applicable to different District
agencies; (3) procurement requirements relating to small, local, and disadvantaged business
enterprises; and (4) the use of memoranda of understanding (MOUs) as a means of transferring
authority and budgetary funds between District agencies.
A. The Council Approval Requirement
Congress enacted the District of Columbia Self-Government and Governmental
Reorganization Act (“Home Rule Act”) in part to delegate certain legislative powers to the
District of Columbia.48 The Home Rule Act, in a provision now codified as Section 1-204.51 of
the D.C. Code, requires the Council to approve certain types of contracts to be entered by the
District and its agencies before those contracts can be valid. The Mayor must submit to the
Council for approval any contract for goods and services “involving expenditures in excess of
$1,000,000 during a 12-month period.”49 The Mayor must also seek Council approval for

48 See D.C. Code § 1-201.02(a).
49 D.C. Code § 1-204.51(b)(1) (“No contract involving expenditures in excess of
$1,000,000 during a 12-month period may be made unless the Mayor submits the contract to the
Council for its approval and the Council approves the contract (in accordance with criteria
established by act of the Council).”).
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multiyear contracts for goods and services.50 In the D.C. Court of Appeals’ 2007 decision in
Fairman v. District of Columbia,51 dealing with the multiyear contract approval provision, the
court held that any contract requiring Council approval that is not so approved is “invalid.”52
DCHA is an independent authority of the D.C. government, created in 2000 to construct
and manage public housing in the District. The majority of DCHA’s activities are funded by the
U.S. Department of Housing and Urban Development. DCHA has also formed a wholly-owned
subsidiary called D.C. Housing Enterprises (“DCHE”). DCHE carries out real estate
development and construction activities on a fee basis, with its earnings going to support
DCHA’s mission.53 Until the Committee began investigating the DPR capital projects, DCHA
took the position that as a federally-funded independent authority, neither it nor its subsidiaries
were subject to the Council approval requirement. As a result, Banneker’s program management
contract with DCHE was not submitted to the Council for approval – even though the contract
amount was well in excess of $1 million, and it involved District money, not federal funds.

50 Congress authorized this requirement as part of the District of Columbia Appropriations
Act of 1996, Pub. L. No. 104-134, § 134, Apr. 26, 1996, 110 Stat. 1321-92. It is now codified at
D.C. Code section 1-204.51(c), which provides, in part: “No [multiyear contract] shall be valid
unless the Mayor submits the contract to the Council for its approval and the Council approves
the contract (in accordance with criteria established by act of the Council). The Council shall be
required to take affirmative action to approve the contract within 45 days. If no action is taken to
approve the contract within 45 calendar days, the contract shall be deemed disapproved.”
51 934 A. 2d 438 (D.C. 2007). While Fairman focused on the language of the multiyear
contract provision, the same policies underlie the requirement for Council approval of contracts
in excess of $1 million.
52 Id. at 448.
53 According to Michael Kelly, who was the Executive Director of DCHA when DCHE was
created, DCHE’s purpose was to use available engineers and project managers to earn nonfederal dollars to supplement the funds received by DCHA from HUD. Interview with Michael
Kelly, former Executive Director, DCHA (Nov. 4, 2010).
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DCHA took this position despite a 1996 opinion of the District’s Corporation Counsel
concluding that independent agencies were governed by the Council approval requirement,54 and
despite being advised by the Attorney General’s Office in 2007 and 2008 of its view that DCHA
was subject to the requirement. DCHA only changed its position in October 2009, after the
Attorney General issued a formal opinion concluding that “without any doubt,” DCHA must
abide by the Home Rule Act and its Council approval provision with respect to contracts
involving District funds.55
Because of the importance of this issue to the events under investigation, it is discussed in
detail in Section VI below.
B. Laws Governing District Procurements
The Procurement Practices Act (“PPA”) is the District’s primary procurement law. It is
implemented through Title 27 of the District of Columbia Municipal Regulations.56 The statute
and regulations set the standards and procedures for purchases of goods and services by the
District. The PPA was amended in 1997, primarily to centralize procurement authority and
activities in the Office of Contracting and Procurement (“OCP”), headed by the District’s Chief

54 Ex. 26, Opinion of Corporation Counsel, Is Council review required for proposed
contracts of independent agencies in excess of one million dollars during a 12-month period?,
May 10, 1996 (“1996 Opinion”).
55 Ex. 27, Opinion of the Attorney General of the District of Columbia, Whether the DCHA
must seek approval of the City Council for contracts for goods and services involving
expenditures in excess of $1,000,000 during a 12-month period, Oct. 23, 2009 (“October 23
Opinion”). The Attorney General’s opinion does not explicitly address the applicability of the
Council review requirement to DCHA contracts involving federal funds, and this remains an
open question.
56 D.C. Code § 2-301.1 et seq.
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Procurement Officer.57 OCP personnel issue solicitations and enter contracts on behalf of District
agencies. If Council approval is required, OCP submits the contract to the Council prior to
execution.58
Most, but not all, District agencies are obligated to follow the PPA and to conduct
procurements through OCP.59 However, some of the agencies that are subject to the PPA have
their own procurement authority and may enter contracts without going through OCP. And
certain agencies are exempt from both the PPA and OCP and may do their own contracting
following their own procurement policies and procedures.
Each of the three agencies involved in the DPR capital projects falls into a different
procurement regime. DPR is subject to the authority of both the PPA and OCP. DMPED is
subject to the PPA but has its own procurement authority by delegation from the Mayor, and
may enter contracts without going through OCP. DCHA is exempt from both the PPA and
OCP.60 It has the authority to “[a]dopt and administer its own procurement and contracting

57 44 D.C. Reg. 1423 (Jan. 3, 1997), codified at D.C. Code § 2-301.05.
58 Interview with David Gragan, Chief Procurement Officer of the District of Columbia,
Office of Contracting and Procurement (Jul. 28, 2010).
59 D.C. Code § 2-301.04(a) (“Except as provided in § 2-303.20, this chapter shall apply to
all departments, agencies, instrumentalities, and employees of the District government, including
agencies which are subordinate to the Mayor, independent agencies, boards, and commissions . .
. .”).
60 There is one exception to this exemption, regarding the Contract Appeals Board, but it is
not applicable here. D.C. Law 13-105 (2000); D.C. Code § 6-219; D.C. Code § 2-303.20(m)
(“Nothing in this chapter shall affect the authority of the District of Columbia Housing
Authority, except that subchapter IX of Unit A of this chapter shall apply to contract protests,
appeals, and claims arising from procurements of the Housing Authority.”).
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policies and procedures in accordance with” D.C. Code section 6-219.61 Its subsidiary, DCHE,
also has its own procurement policies.
Like the Home Rule Act, the PPA requires Council approval for multiyear contracts and
for contracts in excess of one million dollars. Unlike the Home Rule Act, however, these
provisions only apply to contracts governed by the PPA, and therefore do not apply to DCHA.62
C. Local, Small and Disadvantaged Businesses
The Department of Small & Local Business Development (“DSLBD”) was established
with the goal of fostering greater opportunities for local, small and disadvantaged businesses to
participate in District contracting and procurement.63 One of the ways it does this is through the
Certified Business Enterprise (“CBE”) program. Local business enterprises that are also small or
disadvantaged, or meet certain other criteria, may be certified as CBEs.64 Each District agency is
required to meet the goal of procuring and contracting 50% of the dollar volume of its goods and
services to small business enterprises.65 Of particular importance here, CBEs are entitled to

61 D.C. Code § 6-203(16).
62 D.C. Code § 2-301.05d (“Pursuant to § 1-205.51(b) the Mayor and all independent
agencies and entities of the District government shall submit to the Council for approval any
proposal to contract out services covered by this act that involves expenditures in excess of
$1,000,000 during a 12-month period.” (emphasis added)). The Home Rule Act requirement
applies to contracts of any District agency whether covered by the PPA or not.
63 D.C. Code § 2-218.13(a).
64 D.C. Code § 2-218.31 through 218.37. To qualify as “local,” a business must have “its
principal office located physically in the District of Columbia,” and must require “that its chief
executive officer and the highest level managerial employees of the business enterprise maintain
their offices and perform their managerial functions in the District,” as well as meeting other
standards. D.C. Code § 2-218.31.
65 D.C. Code § 2-218.41.
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receive certain preferences from agencies when they are evaluating bids or proposals.66 In the
case of proposals, points are added to a business’s score, with the number added depending on
which LSDBE categories the business falls into; in the case of a bid, the statute provides for a
deemed reduction in the bidder’s price.67 The statute also provides for mandatory set-asides of
small contracts for small business enterprises.68 In addition, the statute imposes requirements on
the dollar volume of subcontracts to be awarded to small business enterprises or CBEs under
construction contracts greater than $250,000.69
D. Memoranda of Understanding
District law permits District departments, offices and agencies to place orders with other
District agencies for goods or services.70 Such orders are documented in Memoranda of
Understanding (“MOUs”) between the agencies.

66 D.C. Code § 2-218.43.
67 Id.
68 D.C. Code § 2-218.44. David Gragan also noted that set-asides are permissible even
where not mandatory. Interview with David Gragan.
69 D.C. Code § 2-218.46.
70 D.C. Code § 1-301.01(k)(1) (“The Mayor may authorize the heads of District
departments, offices, and agencies to place orders with any other department, office, or agency of
the District for materials, supplies, equipment, work, or services of any kind that the
requisitioned department, office, or agency may be in a position to supply or equipped to render;
provided, that the Mayor shall submit annually to the Council a report of all Memoranda of
Understanding between District agencies involving an exchange of materials, supplies,
equipment, work, or services of any kind. …”). Effective October 22, 2009, D.C. Law 18-63
amended the first sentence of subsection (k)(1), which had required the District’s Chief
Procurement Officer to authorize MOUs. 56 D.C. Reg. 3053 (Jul. 28, 2009). This change was
proposed by CPO David Gragan. He felt that if two agency heads had already agreed that an
MOU was appropriate, his review used resources and added delay, but little value. Interview
with David Gragan.
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Until the statute was changed effective October 2009, all MOUs had to be approved by
the Chief Procurement Officer. David Gragan, the CPO through the relevant period, estimated
that he signed 3 or 4 per week.71 MOUs are used for many different purposes, and often involve
relatively small sums. Gragan indicated that a typical MOU might involve an agency that needs
to provide a certain type of training to its employees and procures that service from another
agency that has trainers on its staff.72 According to Gragan, MOUs are not treated as open market
procurement contracts.73 They are not required to be submitted to the Council for approval.
Not only did the MOUs in this case – from DPR to DMPED and then from DMPED to
DCHA – transfer millions of dollars in parks funding, they also had the effect of moving
procurement for the parks projects to DCHA and DCHE, which were subject to different
procurement regulations than DPR and DMPED, and which took the position that they were
exempt from the Council review requirement. These actions spawned the concerns that underlie
this investigation.

71 Id.
72 Id.
73 Id.
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CHRONOLOGY OF KEY EVENTS
Date Event
February 27, 2009 MOU between DPR and DMPED for up to $40,350,000 for
DPR Capital Projects.
March 9, 2009 Request for Qualifications (“RFQ”) for Project Management
issued by DCHE.
March 11, 2009 DCHA Board authorizes entry into an MOU with DMPED (but
the MOU is not signed until July).
March 12, 2009 DCHA assigns its tasks under the MOU to DCHE.
March 18, 2009 David Jannarone (DMPED) asks Omar Karim (Banneker) to
prepare budget spreadsheets and cashflows for DPR projects.
March 27, 2009 13 bidders, including a team made up of Banneker Ventures
and Regan Associates, submit responses to the Project
Management RFQ.
April 29, 2009 Contractor selection panel recommends that Banneker
Ventures-Regan Associates be awarded the project
management contract.
April 30, 2009 DCHE sends notice of its intent to award the project
management contract to Banneker-Regan.
May 4, 2009 Banneker hires LEAD under a letter agreement for consulting
and surveying work on parks.
May 15, 2009 LEAD retains Currie and Associates, LLC to complete 5
surveys.
June 2, 2009 Banneker issues an RFQ for architects/engineers for the DPR
projects.
June 3, 2009 Banneker issues an RFQ for civil engineering and surveying
for the DPR projects.
June 10, 2009 Banneker submits invoice #1 to DMPED.
June 11, 2009 LEAD responds to Banneker’s RFQ for engineering services.
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Date Event
June 26, 2009 Banneker submits invoice #2 to DMPED.
July 14, 2009 DCHE Board authorizes entry into project management
contract with Banneker-Regan “joint venture;” resolution
references flat fee but not 9% mark-up.
July 14, 2009 DCHE signs Project Management Services contract with
Banneker (effective date May 1, 2009). Project management
fee is fixed fee of $4,212,600, plus bonuses, and a 9% mark-up
on consultants’ fees.
July 20, 2009 Banneker issues RFQ for general contractors
July 20, 2009 Banneker and Regan Associates execute consulting agreement;
Regan will receive 48% of Banneker’s fee, not including the
9% mark up.
July 22 & 25, 2009 Consulting Services Agreements between Banneker and LEAD
for LEAD to provide surveying, civil engineering and
geotechnical services.
July 31, 2009 First amendment to MOU between DPR and DMPED, adding
parks and increasing amount to $68,394,795.64.
July 31, 2009 MOU between DMPED and DCHA for $40,350,000 for DPR
capital projects. DCHA to receive $700,000 fee.
July 31, 2009 Banneker submits invoice #3 to DMPED.
August 11, 2009 Banneker issues Requests for Proposals (RFP) to qualified
general contractors for large, medium, and small projects.
Sept. 2, 2009 Banneker submits invoice #4 to DCHE and DMPED
Sept. 14, 2009 Second amendment to MOU between DPR and DMPED,
adding parks and increasing amount to $86,854,000.
Sept. 21, 2009 Consulting Services Agreement between Banneker and LEAD
for LEAD to provide environmental site assessments.
October 6, 2009 Banneker submits invoice #5 to DCHE and DMPED.
October 22, 2009 Councilmembers send letter to Mayor Fenty raising questions
about DCHA’s award of contracts for DPR projects.
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Date Event
October 23, 2009 Attorney General issues formal opinion, in response to request
from DCHA general counsel made the same day, concluding
that DCHA must obtain Council approval for contracts over $1
million.
October 26, 2009 Attorney General issues memorandum stating that his October
23 opinion is not retroactive, so any previously executed
DCHA contracts are valid and binding.
October 30, 2009 First Joint Roundtable Hearing on the DPR contracts
November 3, 2009 Banneker submits invoice #6 to DCHE and DMPED.
November 3, 2009 DC Council passes Budget Transparency Emergency Act to cut
off flow of funds from DPR to DCHA.
November 12, 2009 DCHA Board Chair William Slover proposes a resolution
terminating the MOU with DMPED due to insufficient funds.
November 20, 2009 DCHE issues stop work notice to Banneker, effective on
November 30.
November 20, 2009 Mayor Fenty removes Slover as Chair of DCHA Board.
November 30, 2009 Work stops.
December 8, 2009 Banneker submits invoice #7 to DCHE and DMPED
December 9, 2009 DCHE and Banneker execute Change Order No. 1 to the
Banneker contract, expanding the scope of the projects and
adjusting compensation. New fixed fee of $3,778,488 with a
5% mark up on consultants, capped at $350,000.
December 9, 2009 The MOU between DMPED and DCHA is amended, to
transfer up to $99,354,000.
December 9/10, 2009 The revised project management contract is submitted to the
Council for approval.
December 15, 2009 DC Council disapproves the Banneker contract for project
management services on DPR projects; authorizes OPEFM to
handle the DPR projects.
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Date Event
December 24, 2009 DCHE enters into a Settlement Agreement with
Banneker/Regan and pays Banneker $2,554,071 for invoices 5
– 8 (portions of invoice #7 left open for further negotiation).
January 5, 2010 Banneker sends a settlement proposal for contract close-out
amounts.
January 14, 2010 Banneker submits “final” invoice #9 to DMPED and DCHE.
February 25, 2010 Banneker issues cease and desist letters to project architects,
claiming ownership of drawings.
July 8, 2010 Attorney General and Banneker sign settlement agreement
providing for $550,000 payment to Banneker; no payment
made as of March 1, 2011.

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FACTS AND ANALYSIS
This portion of the report outlines the facts that we found through our investigation, and
provides answers, where possible, to the key questions raised by the DPR capital projects
transactions.
I. BACKGROUND: DPR, WALKER JONES, DEANWOOD, AND THE
BANNEKER-REGAN TEAM
In order to understand why the DPR capital projects were handled as they were, it is
important to examine DPR’s prior experience with the construction and procurement process,
and particularly with Walker Jones and Deanwood, two major projects that also involved
DMPED and DCHE.74
A. DPR’s Inability to Move Capital Projects Forward
There is a consensus that during the 2007-2008 time period, DPR was unable to construct
capital projects in a timely manner. Clark Ray, the director of DPR from August 2007 through
April 2009, acknowledged that there were a number of funded projects, particularly recreation
centers – which are bigger, more complex and more expensive than parks – that were in the
“queue” for construction but had not moved forward.75 Witnesses offered a number of reasons
for this problem, including the lack of qualified staff and insufficient “drive” on the part of DPR
management. Although DPR had about 10 full time positions in its capital projects division at

74 For background purposes, this report discusses other DPR projects, and particularly
Walker Jones and Deanwood, but those projects were not within the scope of our investigation.
We did not undertake to examine the propriety of any transactions relating to those projects.
75 Interview with Clark Ray, former Director of D.C. Department of Parks and Recreation,
(Oct. 26, 2010).
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that time, half of those were planners and architects, not construction managers.76 Of the
remaining positions, in mid-2008 only one was filled with an experienced construction engineer,
and he was overextended.77
Another significant reason for delay was the procurement process.78 Because DPR does
not have independent procurement authority, it could not handle on its own any of the many
contracts that are required for a construction project. Instead, DPR, like other agencies without
procurement authority, was supposed to turn to the Office of Contracts and Procurement (OCP)
for its contracting.79 OCP’s function is to buy goods and services for all covered agencies,
including DPR. For various reasons, however, the OCP process was slow, and particularly illsuited for handling complex construction projects.

76 Interview with Jason Turner, former Chief of Capital Projects and Planning, D.C.
Department of Parks and Recreation (Oct. 19, 2010).
77 Id.; see also Deposition of David Janifer, Capital Projects Division, DPR (Jul. 20, 2010)
at 18:12-14: “… DPR has … project management capability, but it doesn’t have the capacity for
the number of jobs that we have to manage.”
78 Interview with Clark Ray; Interview with Jason Turner.
79 David Janifer of DPR’s capital projects division described the process as follows:
… DPR requests money for a construction budget. All of the actions or the
contracts are negotiated by a procurements office, which was formerly named
Office of Contracts and Procurements and now it’s the Department of Real Estate
Services.
DPR identifies projects that it would like to engage in. It provides all that
information to the procurement office and the procurement office actively solicits
all the vendors or contractors who actually perform services, perform the
construction services.
Janifer Dep. 12:18-13:5.
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David Gragan became the District’s Chief Procurement Officer, and head of OCP, in
June 2007.80 When he started, OCP had approximately 150 employees; as of mid-2010, it had
approximately 100. OCP is responsible for procurement for construction as well as other types of
goods and services. According to Gragan, this structure is unusual. Due to the complexity of
construction contracting, in other jurisdictions it is usually assigned to a separate, specialized
agency. In an effort to concentrate expertise, Gragan decided to delegate authority for
construction procurement to the Department of Transportation (“DOT”) for “horizontal”
construction (roads and bridges) and to the Office of Property Management (“OPM”) – renamed
the Department of Real Estate Services (“DRES”) in August 2009 – for “vertical” construction
(buildings). According to Gragan, OPM initially did not embrace the procurement function
because it did not feel it had appropriate capability. Gragan revisited the issue and in 2008
assigned all OCP employees focused on construction to OPM.81 DRES now has both a
construction procurement group and a construction management group. Like procurements done
through OCP, DRES procurements are subject to the PPA.82
Gragan described OCP’s procurement process as “built for deliberation, not for speed.”
The process is purposefully slow to some degree, in order to provide for control over the
expenditure of public funds. The DRES employees we interviewed agreed that working under
the PPA slowed the construction process down because of the many upfront approvals and

80 Interview with David Gragan.
81 Interview with David Gragan; Interview with Diane Wooden, Procurement, D.C., DRES,
and Gerick Smith, Deputy Director Construction Division, DRES (Dec.7, 2010).
82 While the DPR capital projects are now being handled by OPEFM, DRES does
construction procurement for other DPR projects, with project management handled by DPR.
Interview with Diane Wooden and Gerick Smith.
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compliance documents required to issue a solicitation and then to award a contract.83 Issues with
internal OCP processes, capacity and staff capabilities also affect the pace of OCP
procurements.84
OCP’s problems were well known to the administration. Albert noted that as early as the
transition to the Fenty regime, “there were serious conversations about how do we make OCP a
better functioning agency to support the District government?”85
Clark Ray and others also pointed to the types of contracts that OCP entered as a source
of delay. One key distinction they saw was between “design-build” and “design-bid-build”
contracts. Under a design-build contract, one firm or team (referred to as the design-builder) is
hired to both design and construct a project. In a design-bid-build procurement, the architect is
hired first, and the procurement of the general contractor cannot begin until the drawings are
complete. Although each method has advantages and disadvantages, many witnesses expressed
the view that using a design-build contract can reduce the time it takes to complete a project
because, among other things, the contractor can start to mobilize before the drawings are
complete. Ray noted, however, that OCP was reluctant to enter design-build contracts, and some
District employees believed that OCP was precluded from doing so. In fact, D.C. law does not
prohibit the use of design-build contracts.86 However, Ray’s perception that OCP was reluctant
to use such contracts was correct. The DRES employees we interviewed stated that the District

83 Id.
84 Interview with David Gragan; Deposition of Neil Albert, City Administrator and former
Deputy Mayor for Planning and Economic Development (Oct. 19, 2010) 89:5-91:3.
85 Id. at 89:1-3.
86 See D.C. Code § 2-303.11.
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typically does not use the design-build method on larger projects because it leaves the city with
less control over the design process, and OCP does not presently have a standard form designbuild contract. As will be discussed further below, OCP also does not use “guaranteed maximum
price” contracts, which also can facilitate early mobilization.
B. DPR Looked to Other Agencies for Help with Construction.
Faced with these issues with OCP, Clark Ray looked for ways to make parks construction
move more quickly. He determined that he could bypass OCP by partnering with other district
agencies that had independent contracting authority.87 Ray identified DCHA, OPEFM and
DMPED as agencies with procurement authority that he could work with to get projects built.
And while OPEFM and DMPED were subject to the PPA, DCHA was not. Instead, DCHA was
governed by its own procurement policies. Its subsidiary, DCHE, also had its own set of policies.
The partnering arrangements were created via MOUs between the agencies. According to
Ray, he obtained David Gragan’s approval to handle parks projects in this manner.88 For
example, DPR entered into the following MOUs for parks-related construction:
• MOU between DPR and DCHA, effective date July 6, 2007, signed by DPR and
DCHA in August, 2007, for demolition of the existing facility at the Wilson
Pool.89
• MOU between DPR and DCHA for field lighting, signed in August 2008.90

87 Interview with Clark Ray.
88 Id.
89 Ex. 28, Memorandum of Understanding Between the District of Columbia Department of
Parks and Recreation and the District of Columbia Housing Authority (Jul. 6, 2007).
90 Ex. 29, Memorandum of Understanding Between the District of Columbia Department of
Parks and Recreation and the District of Columbia Housing Authority (Aug. 21, 2008).
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• MOU between DPR and OPEFM in August 2008 for the development and
construction of a new Stoddert Recreation Center at 39th and Calvert Streets,
N.W.91
• MOU between DPR and DCHA in November 2008 for redevelopment of the park
at 14th and Girard Streets, N.W.92
From DPR’s point of view, use of an MOU was not seen in itself as a means for evading
the Council approval requirement. The current and former DPR employees that we spoke to were
well aware that contracts in excess of $1 million had to be submitted to the Council. Further, it
was their understanding that involving DMPED or DCHA in a project would not change that
requirement. The MOUs listed above contained language referencing the necessity of
compliance with the Council approval requirement. DPR’s then general counsel told us that she
was aware that DCHA was not subject to the PPA, and inserted this language to be sure that the
Council approval requirement was met.93
For example, the MOU for the park at 14th and Girard addressed the Council approval
issue in its termination provision, stating that “This MOU shall automatically terminate if the
Council fails to approve the construction contract for the 14th & Girard Playground Project or at
any time lawfully appropriated funds are not available.” 94 The MOU between DPR and DCHA
for field lighting specifically assigns to DCHA the responsibility to
Insure compliance with all District of Columbia laws and regulations and secure
advance approvals, if any, relative to the award of any contract hereunder

91 Ex. 30.
92 Ex. 31, Memorandum of Understanding Between the District of Columbia Department of
Parks and Recreation and the District of Columbia Housing Authority (Dec. 11, 2008).
93 Interview with Marie Claire Brown, former General Counsel, DPR (Sep. 9, 2010).
94 Ex. 31, at 7. DCHA, however, did not believe that it had any obligation to take contracts
to the Council for approval.
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including, but not limited to, Council approval pursuant to D.C. Official Code §1-
204.51 of any contract involving expenditures in excess of $1,000,000.95
We have not reviewed the contracts awarded for the field lighting project, but because the total
budget under the MOU was $1,023,000, it is unlikely that any of the contracts met the $1 million
threshold for Council review. However, we note that inclusion of this provision obligated DCHA
by contract to take on the responsibility for obtaining Council approval – an approach that was
not used in the DPR capital projects MOUs.
C. Walker Jones
In addition to MOUs for smaller projects, DPR was involved in two significantly larger
projects with other agencies prior to the capital projects MOU: Walker Jones and Deanwood.
Both of these projects, and particularly Walker Jones, are frequently cited as models for many
aspects of the DPR capital projects procurements. Although an examination of these projects was
outside of the scope of our investigation, key background facts are discussed below.
The Walker Jones project involved the redevelopment of two school sites in the
Northwest One neighborhood of Ward 6 into a new school, library and recreation center. Walker
Jones was part of the “New Communities” initiative, for which DMPED was the implementing
agency.96 Because Walker Jones had school, library and parks components, its funding came
from three agencies (D.C. Public Schools, D.C. Public Libraries and DPR), with coordination
provided by DMPED.97

95 Ex. 29 at 5.
96 Albert Dep. 41:4-11.
97 DMPED’s general mission is promoting economic development in the District. See
Deposition of Valerie Santos, Deputy Mayor for Planning and Economic Development (Sept. 27,
2010) at 15:1-3. It does that by trying to get property owned by the District into productive uses,
and by negotiating tax increment financing and other public finance tools. Id. at 15:14-22.
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DMPED sought DCHA’s assistance in constructing the Walker Jones project. According
to Neil Albert, who was Deputy Mayor at that time, DMPED involved DCHA in Walker Jones
because DCHA “had the capacity to – and the history and the track record of getting things done
quickly.”98 Albert also believed that involving DCHA was a way of “getting program
management oversight to augment the puny program management … expertise that I had within
DMPED.”99 At the time, David Jannarone was the only DMPED employee with construction
management experience.100
DMPED and DCHA had also worked together on other New Communities issues. As
explained in a memorandum from Michael Kelly, then-Executive Director of DCHA,
DMPED and DCHA have been partners in the New Communities
initiative. The New Communities Initiative focuses on the District’s most
distressed neighborhoods and contemplates methods to transform them into
vibrant and productive areas, by focusing on the physical and human capital needs
of residents. This wide reaching initiative aims to leverage DMPED spending to
direct $1 billion in public and private funds to some of the most troubled
neighborhoods in Washington, D.C.
One of the communities to be revitalized through this program is the
Northwest One Neighborhood in Ward 6. … To date, DCHA has worked closely
with the District on the New Communities Initiatives including providing under
various memoranda of understanding with DMPED services that include master
planning, facilitation of community planning and resident participation, assistance
with resident tracking and program evaluation, various predevelopment work, and

98 Albert Dep. 41:14-16.
99 Id. at 41:19-21. Although real estate development is part of DMPED’s portfolio, most of
its real estate related activities involved private developers who were constructing projects on
land owned or sold to them by the District. Id. at 35:14-36:8; Santos Dep. 36:9-22. According to
Albert, DMPED was just “standing up” its own construction management function in 2007 when
the Walker Jones project was getting underway. Albert Dep. 32:20-33:3.
100 From Special Counsel’s notes from the unrecorded portion of the Deposition of David
Jannarone, former Development Director for DMPED taken on September 29, 2010 (hereafter,
“Jannarone Dep. Notes”).
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the management and joint ownership of Temple Courts, a troubled Project-based
Section 8 HCVP property.
* * *
Because of DMPED’s favorable experience working with DCHA and
DCHE in similar endeavors and DCHA’s active participation in the Northwest
One redevelopment effort, DMPED has asked DCHA to redevelop the Walker
Jones Elementary School and R.H. Terrell Junior High School sites. DCHA
intends to assign the MOU to its wholly-owned subsidiary, DCHE, for DCHE to
perform in an expeditious and cost-effective manner.101
DMPED and DCHA signed the MOU for Walker Jones in September 2007.102 DMPED
was to provide DCHA with funds from the three agencies involved, and DCHA was responsible
for using the funds “to perform or cause to be performed the demolition, development and
construction services necessary for the Project, at the request and direction of the DMPED.”103
DMPED retained “programmatic and policy jurisdiction” over the activities under the MOU.104
Other than the general statement that “[t]he Parties agree to comply with all applicable laws,
rules and regulations whether now in force or hereafter enacted or promulgated,”105 there is no
reference in this MOU to the requirement for Council approval of any contracts exceeding $1
million. The budget for the project was $47,200,000, and DCHA was to receive a $200,000 fee
for its services, to be paid by DMPED.106

101 Ex. 32, Memorandum from Michael Kelly to DCHA Board of Commissioners (Sept. 12,
2007), at 1-2.
102 Ex. 33, Memorandum of Understanding between the Office of the Deputy Mayor for
Planning and Economic Development and the District of Columbia Housing Authority (Sept. 13,
2007).
103 Id. at § 2(B)(1).
104 Id. at § 2(A)(2).
105 Id. at § 8.
106 Id. at § 5(A).
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Prior to Walker Jones, DCHA had entered into other MOUs with District agencies. A
chart provided by DCHA lists 12 other MOUs involving DCHA between 2003 and 2007.107 But
the $47 million Walker Jones MOU was by far the largest. Of the prior 12, two were for $2.5
million, three were for $1 million, and the rest were under $1 million.108
DPR and DMPED entered into an MOU for the Walker Jones project in February 2009;
although $2 million was provided by DPR to DMPED in 2008, there does not appear to have
been an MOU executed in 2008.109 The February 2009 MOU provides that DPR will transfer up
to an additional $8 million for the recreation center portion of the project, which DMPED was to
construct “per DPR specifications.”110 There is no mention in this MOU of the Council approval
requirement, or of DCHA. According to Clark Ray, he was never made aware of DCHA’s
involvement in the project.
1. The Banneker/Regan Associates team
The team of Banneker Ventures and Regan Associates, which was awarded the project
management contract for the DPR capital projects, first came together on the Walker Jones
project.
Regan Associates was originally formed in 1995 as the Highland Company. It does
project management work, consulting for school systems and universities, and property

107 Ex. 34, Chart: “MOU With District Agencies.”
108 David Gragan, who at the time was required to approve all MOUs, told us that he noted
the unusual magnitude of the $40 million DPR capital project MOU, but did not make any
further inquiry about it. Interview with David Gragan.
109 Ex. 35, Memorandum of Understanding Between the Department of Parks and
Recreation and the Office of the Deputy Mayor for Planning and Economic Development (Feb.
25, 2009).
110 Id. at § II (B)(1).
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development. According to the Regans, the company has been involved with approximately 50
projects on the east coast, primarily in the Washington, D.C. area.111 Sometime prior to 2007,
Regan Associates was involved with the Capitol Hill Community Development Foundation on a
project to renovate elementary and middle school libraries on Capitol Hill. This experience led
the Regans to become concerned about the condition of the city’s schools; they became
supporters of Mayor Fenty’s campaign because of that issue. At the same time, they decided to
explore the possibility of doing business with the District. In order to comply with District CBE
requirements, they sought out minority partners. According to the Regans, they were looking for
a CBE firm they could “mentor,”112 and considered a number of different firms, including firms
on the D.C. Public Schools facilities division approved contractor list. Banneker was not on the
list. Instead, the Regans recall that in the course of talking to many people about potential CBE
partners they were given the name of David Jannarone at DMPED, and he referred them to
Banneker.113
After meeting with Banneker representatives, the Regans thought Banneker was
appropriate for the mentoring relationship they had in mind: big enough to take on work but
small enough to need training. They envisioned giving Banneker a small stake in their first
project together, and a bigger role in subsequent projects, so that Banneker could eventually
stand on its own.114 The Regans learned that Omar Karim, the Banneker principal, had

111 Interview with Sean M. Regan and Thomas J. Regan, Regan Associates LLC (Apr. 20,
2010).
112 Id.
113 Interviews with Sean Regan and Thomas Regan, Regan Associates LLC (Apr. 20, 2010;
Nov. 12, 2010).
114 Id.
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previously worked for a construction company with which they were familiar.115 They were also
aware of Karim’s work on Mayor Fenty’s campaign. During their interview, they reported that
Karim made it known to them that he was in the same fraternity as the mayor. They
acknowledged that as businesspeople, they viewed this relationship with the Mayor as something
that “can’t hurt.”116
No other witness could provide any helpful information as to how Banneker and Regan
Associates got together. Karim testified that he could not recall how Banneker came to work
with Regan Associates, and that he did not think Jannarone had recommended Regan to him.117

115 Karim’s education and experience as an engineer and an attorney, including his previous
experience at Bundy Development Corporation and work on The Jazz @ Florida Avenue and
The Residences @ Thayer Avenue, among other projects, are detailed in the resume attached to
Banneker-Regan’s response to DCHE’s RFQ. See Ex. 36, Response to Request for
Qualifications for Capital Projects – District of Columbia Parks and Recreation Project
Management, submitted by Banneker Ventures LLC and Regan Associates LLC (Mar. 27, 2009).
116 Id.
117 Q: How did Banneker Ventures come to work with Regan and Associates?
A: I think the Walker Jones project was our first project together.
Q: And how did it come about that you all ended up working together on that?
A: … I don’t recall, it was a couple years ago.
Q: Did you call them? Did they call you?
A: I don’t recall.
Q: Had you heard of Regan and Associates before working together on Walker
Jones?
A: I don’t recall. I might have.
Q: Do you remember how it was that the name Regan and Associates first came
to your attention?
A. No.
Q: Did David Jannarone recommend Regan to you?
A: I don’t recall.
Q: Is it possible that David Jannarone recommended Regan to you?
A: I don’t – I don’t think so.
Q: What is your best recollection as to how it was that Regan and Associates
came to your attention?
A: Well, you gotta ask him. We were a subcontractor to them on Walker Jones.
(footnote continued on next page)
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Karim denied that he told the Regans that he was a fraternity brother of Mayor Fenty’s or that he
had a relationship with the mayor that could be helpful.118

Q: Well, I understand. What I’m trying to find out is how did you come to first
have dealings with each other. I understand that once you connected up you
ended up in a subcontractor relationship with them. But they didn’t pick you
out of the blue.
A: I don’t – you gotta – I mean, you talk to them. You gotta ask them. What do
they say? You know. I don’t recall.
Q: Well, I’m trying to get your understanding of how it was that you all came to
work together.
A. I don’t recall. …
Deposition of Omar Karim (Aug. 5, 2010) 81:1–82:16.
118 Id. at 85:8-86:8.
Jacquelyn Glover, who interviewed for a job with Banneker Ventures in the summer of
2008, testified that during her interview Karim told her that “he was friends with the Mayor and
he had gotten quite a few projects in the D.C. government.” Deposition of Jacquelyn Glover,
Construction Manager, DMPED (Sept. 13, 2010) at 79:6-7. Karim denies that this conversation
occurred.
In our written questions to Mayor Fenty, he was asked, “Were you aware that Omar
Karim told prospective business partners and employees, among others, that his relationship with
you would help him get business with the District? Do you believe that it would be appropriate
for you to help Karim get District business or contracts?” The Mayor responded “No to both
questions.” Ex. 24 at 2, No. 5.
Another answer provided by the Mayor does suggest, however, that he may have had
some general conversations with Karim about doing business with the city:
Did you ever talk to Omar Karim … about opportunities for Banneker Ventures,
LLC, or any other business he had an interest in, to do work for the District of
Columbia or on District of Columbia projects? If so, describe each such
conversation in detail.
(footnote continued on next page)
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When Jannarone was asked whether he had recommended Banneker to Regan Associates,
he responded, “Not that I remember,” and added that he did not remember specific
conversations.119 We find the Regans’ clear recollection of their introduction to Banneker to be
credible.120
DCHE issued a Request for Qualifications (RFQ) for a project manager to oversee the
Walker Jones project on June 29, 2007. The team of Regan Associates and Banneker Ventures
was selected for the award. Although they were proceeding as a team, Regan Associates and
Banneker did not form a joint venture for the project management work. Instead, only Regan
Associates was a party to the project management contract with DCHE. It was to receive a flat
fee of $1,410,000, plus a 9 percent mark-up on certain consultants’ costs.
Banneker was identified in the contract as a consultant who would work with Regan on
all aspects of project management. The Regans explained that entering into a joint venture was
more of a commitment than they wanted to make, and that they could satisfy CBE requirements

ANSWER: Over the course of the last four years, I have had frequent occasion to
talk to businessmen/developers who have inquired about opportunities to work
with the District on various projects. Generally speaking, I would suggest that
these businessmen/developers talk to the relevant agencies and pursue their
requests in accordance with the standard procedures. I don’t recall any
conversations with Omar Karim that would have gone beyond this type of
conversation.
Id. at 1, No. 1.
119 Jannerone Dep. Notes.
120 A full examination of the Walker Jones project was outside of the scope of this
investigation. Accordingly, we do not offer any conclusions about the propriety of the
introduction by Jannarone or about any other matters relating to the selection of the Regan
Associates/Banneker team as the project manager for Walker Jones.
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through a contractual relationship with Banneker.121 Their consulting relationship was
memorialized in a letter agreement between Regan Associates and Banneker, which provided
that Banneker would receive 33% of Regan Associates’ fees, exclusive of mark-ups.122
Because the Walker Jones contract was used as the model for the project management
contract for the DPR capital projects, its terms will be discussed in more detail below.
The Walker Jones program management contract was not submitted to the Council for
approval in 2007, nor was the construction contract between DCHE and Forrester Construction
Company. Both contracts were submitted in December 2009, after the Council’s investigation
began, and were approved as of January 4, 2010.123 Although we have not independently verified
it, numerous witnesses have stated that the Walker Jones project was completed on time and on
(or under) budget.
D. Deanwood
Deanwood Community Center is a recreation center and library located at 49th and
Quarles Streets, N.E. This was a large project that had been in DPR’s “queue” for a number of
years.
In 2008, DMPED took on the task of managing the construction of the Deanwood
project. The evidence as to how this came about is somewhat inconsistent. Clark Ray and Jason
Turner recalled that the impetus for DMPED’s involvement came from DMPED.124 According to
Neil Albert, who was then the Deputy Mayor for Planning and Economic Development and had

121 Interview with Sean Regan and Thomas Regan (Apr. 20, 2010).
122 Ex. 37, Letter Agreement between Regan and Banneker (Sep. 4, 2007) at 3.
123 D.C. Act 18-258.
124 Interview with Clark Ray; Interview with Jason Turner.
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formerly been the director of DPR, he made the decision in conjunction with Ray and then-City
Administrator Dan Tangherlini, because DPR did not have the capacity to do a project of this
magnitude.125
The MOU between DPR and DMPED for Deanwood was signed by Ray and Albert on
April 2, 2008.126 It states that DPR will provide approximately $31 million to DMPED, with $8.8
million to be transferred immediately and the remaining amounts in subsequent fiscal years.
DMPED was to use the funds to construct the project. The MOU provides that DMPED will
obtain a delegation of construction authority from the Mayor and a delegation of procurement
authority from the Chief Procurement Officer prior to the transfer of funds. A written delegation
of contracting authority to DMPED signed by David Gragan accompanies the MOU.127
However, Gragan believed that DMPED already possessed procurement authority delegated to it
by the Mayor, and could not explain why this additional delegation was necessary.128
Unlike the Walker Jones MOUs, the Deanwood MOU expressly recognizes the Council
approval requirement, providing that:
This MOU shall automatically terminate if the City Council fails to approve the
construction contract for the New Deanwood Community Center or at any time
lawfully appropriated funds are not available.129

125 Albert Dep. 59:22-60:19.
126 Ex. 38, Memorandum of Understanding Between the Department of Parks and
Recreation and the Office of the Deputy Mayor for Planning and Economic Development (Apr.
2, 2008).
127 Id., Delegation of Contracting Authority (Apr. 3, 2008).
128 Interview with David Gragan.
129 Ex. 38 at § IX(B).
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1. The Deanwood program management RFQ
Deanwood also differed from Walker Jones in other respects. First, DCHA was not
involved in the project at the outset, and it was DMPED, not DCHA, that procured the program
manager. On April 28, 2008 DMPED issued a Request for Proposals (“RFP”) for project
management, not an RFQ. DMPED’s RFP was a 71-page, detailed document that specifies the
contractual provisions that would govern the program manager’s performance.130 It also required
responding companies to provide pricing information as well as qualifications.131 According to
Albert, either OCP or a contracting officer within DMPED was involved in preparing the RFP.132
Jannarone recalled that it was the OCP employee assigned to DMPED.133
Banneker and Regan submitted a joint response on June 6, 2008. They followed up with a
Best and Final Offer submitted on June 24, 2008, offering a total not-to-exceed contract amount
of $579,456 for the first year and $509,184 for the second option year.134
2. Banneker as program manager
The program management contract for Deanwood was signed by Omar Karim on behalf
of Banneker and by Jonathan Butler, DMPED’s Director of Contracts, on July 23, 2008. Unlike

130 Ex. 39, Request for Proposals, Solicitation No.: DCEB-DMPED-080R-Deanwood (Apr.
28, 2008).
131 Id. According to the RFP, the drawings and specifications for Deanwood were already
100% complete, which could account for the decision to seek price submissions from bidders for
this project. See id. at 8.
132 Albert Dep. 66:10-67:4.
133 Jannerone Dep. Notes. Although DMPED had independent procurement authority, it was
still subject to the PPA and all of its procedures, and used assigned OCP personnel to assist with
its procurements.
134 A full examination of the Deanwood project was outside of the scope of this
investigation. Accordingly, we do not offer any conclusions about the selection of the BannekerRegan team or the terms of the project management contract.
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the Walker Jones contract, this contract is on a standard government contract form. It states that
the contract is a Firm Fixed Price Contract in the amount of $579,456 for the first year, and
incorporates by reference the RFP, standard contract clauses, and Banneker-Regan’s proposal.
One year later, Karim and Butler signed a contract modification adding another year to the
contract, for a firm fixed price of $509,184.00. Neither contract was submitted to the Council for
approval, presumably because neither exceeded the $1 million mark. Unlike Walker Jones, there
was no mark-up for consultants in the Deanwood contract. Karim testified that he was not sure
why, but thought that it was because DMPED used a different form contract than DCHE.135
The Regan-Banneker proposal for Deanwood asserted that “If selected, Regan and
Banneker will complete this project on a 50-50 basis where we will split staff and
responsibilities.”136 The project management contract, however, was executed solely by
Banneker.137 As they did on Walker Jones, Banneker and Regan Associates entered into a
consulting agreement. This time, however, Banneker was the contractor and received 51% of the
fees, and Regan Associates was the consultant, receiving 49% of the fees. According to the
Regans, giving Banneker the lead on this project was in furtherance of the Regans’ mentoring
role; they also believed the city would look more favorably on their team with Banneker, the
CBE, at 51%.138

135 Karim Dep. (Aug. 5, 2010) 99:14-100:3.
136 Ex. 40, Letter from Regan Associates and Banneker Ventures, LLC to Office of the
Deputy Mayor for Planning & Economic Development regarding Program Management Services
for Deanwood Project Solicitation # DCEB-DMPED-08-R-Deanwood (June 6, 2008).
137 Ex. 41, Letter from Jonathan R. Butler, Director of Contracts, DMPED, to Omar A.
Karim (July 11, 2008).
138 Interview with Sean Regan and Thomas Regan.
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3. DCHA’s role on Deanwood
After the construction drawings for Deanwood were completed, the project stalled
because of funding issues, but was restarted in 2008.139 Jannarone stated that the initial plan was
for DMPED to procure the general contractor itself, but that discussions with OCP as to how
DMPED could handle this were frustrating.140 For Walker Jones, DCHE used a guaranteed
maximum price (“GMP”) contract, which Jannarone described as the most advantageous type of
contract from an owner’s point of view.141 Although DMPED has independent procurement
authority, Jannarone believed that under District procurement policies, DMPED could not enter
into a GMP contract, while DCHE operated under different procurement policies that permitted
it to do so.142 In fact, as with the design-build versus design-bid-build issue, D.C. law does not
preclude the use of GMP contracts, but OCP and DRES had never used one, and did not have a
form GMP contract that was compliant with the PPA.143 So Jannarone was correct as a practical
matter that even though a GMP contract might help control costs and decrease the total time
needed to complete the project, it would have been very difficult for DMPED to attempt to
utilize one. Involving DCHE, however, meant that they could use the same form of GMP
contract that had been used for Walker Jones. Jannarone commented that a point came when

139 Janifer Dep. 65:10-66:6; Jannarone Dep. Notes.
140 Jannarone Dep. Notes.
141 Id. Under a GMP contract, before the design drawings are complete, the contractor offers
to do the job for no more than a fixed maximum price. Cost savings are split with the owner,
while the contractor is at risk for costs that exceed the GMP. The contractor will begin work
before all of the drawings are complete, resulting in a faster job. Interview with Diane Wooden,
and Gerick Smith.
142 Jannarone Dep. Notes.
143 Interview with Diane Wooden and Gerick Smith.
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DMPED decided they should go back to something they knew had worked.144 With DCHE and
the Walker Jones GMP contract, they could move forward to get bids for the Deanwood
construction work “without re-inventing the wheel.”145
The DCHA/DMPED MOU for construction of the Deanwood Community Center was
signed by Michael Kelly for DCHA on November 21, 2008, and by Deputy Mayor Neil Albert
on March 5, 2009.146 It provides for a project budget of up to $27.3 million, and a contract
management fee for DCHA of $100,000.147 There is no reference to a Council approval
requirement.
A joint venture between Forney Enterprises and Manhattan Construction Company was
selected as the general contractor for the Deanwood Community Center. The construction
contract with DCHE was not submitted to the Council for approval when entered; instead, it was
submitted in December 2009 and approved by the Council as of January 4, 2010.148 The facility
opened on June 25, 2010.149

144 Jannarone Dep. Notes.
145 Id. Although he recalled conversations about getting the project moving, Neil Albert
testified that he did not know why DCHA got involved with Deanwood at this point. Albert Dep.
71:17-71:18.
146 Ex. 42, Memorandum of Understanding Between the Office of the Deputy Mayor for
Planning and Economic Development and the District of Columbia Housing Authority (Mar. 5,
2009).
147 Id. at § 6(A).
148 D.C. Act 18-528.
149 See “Fenty Officially Opens Deanwood Recreation Center and Library,” DPR Press
Release (Jun. 25, 2010), http://dpr.dc.gov.
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II. THE DPR CAPITAL PROJECTS AND THE MOU TO DMPED
A. The Attempted Transfer to OPEFM
As discussed above, during 2008, DPR was attempting to work with other agencies to
increase the pace of parks construction in line with the “significant emphasis” placed by the
Mayor “on moving parks construction quickly.”150 But the Mayor and then-City Administrator
Tangherlini continued to be dissatisfied with DPR’s efforts: “the Mayor was constantly frustrated
[be]cause he would be in the community and get broadsided. The Parks Department would give
the community dates for a project and will miss the dates until … within the executive offices of
the Mayor, there were conversations about how to help Parks and Rec deliver its projects on a
timely basis.”151 They considered the possibility of using other agencies and of requesting
independent procurement authority for DPR. 152
At a meeting to discuss the status of capital projects in October of 2008, the Mayor and
Tangherlini decided that the DPR projects should be moved to OPEFM.153 In mid-November
2008, DPR and OPEFM executed an MOU under which OPEFM agreed “to oversee and manage
DPR’s capital projects that directly or indirectly relate to the District of Columbia Public

150 Ex. 24 at 3.
151 Albert Dep. 87:11-87:18.
152 Id. at 87:21-88:1.
153 Interview with Jason Turner.
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Schools.”154 The MOU contemplated that up to $35 million in FY 2009 funds would be
transferred by DPR to OPEFM.155
Although OPEFM has independent procurement authority, it is subject to the Council
approval statute (except with respect to Convention Center contracts) and routinely submits
contracts to the Council for review.156 There is no suggestion that any of the parties involved in
the decision to transfer the projects to OPEFM expected it to bypass this requirement.
On February 2, 2009, OPEFM issued a Request for Proposals for contractors to provide
design-build services for the renovation and modernization of four recreation centers: Rosedale,
Kenilworth, Guy Mason and Bald Eagle.157 On February 5, 2009, OPEFM held a pre-proposal
conference to discuss the solicitation.158
But OPEFM was not permitted to proceed. On November 17, 2008, Councilmember
Harry Thomas, Jr. introduced legislation to limit construction by OPEFM to D.C. public school
facilities only.159 According to Councilmember Thomas, he was concerned that moving projects

154 Ex. 43, Memorandum of Understanding Between the District of Columbia Department of
Parks and Recreation and the Office of Public Education Facilities Modernization (Nov. 21,
2008), § II.
155 Id. at § II (A)(1).
156 Interview with Allen Lew, Executive Director, OPEFM (Jul. 16, 2010).
157 Ex. 22 at 2.
158 Ex. 44, Government of the District of Columbia Office of Public Education Facilities
Modernization, Design-Build Renovation Services, Recreation Centers, Solicitation #: GM-09-
M-0204-FM, Preproposal Conference Sign-in Sheet (Feb. 5, 2009). Neither Regan Associates
nor Banneker appears on the sign-in sheets for the conference.
159 Office of Public Education Facilities Modernization Clarification Emergency
Amendment Act of 2008; Office of Public Education Facilities Modernization Clarification
Temporary Amendment Act of 2008; Office of Public Education Facilities Modernization
Clarification Congressional Review Energy Amendment Act of 2008.
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to OPEFM would cause the Council to lose oversight of how budgeted funds were spent, and
would waste the 11 fully-funded employees in DPR’s capital projects division. He was also
concerned about what he saw as a disparity in OPEFM’s level of spending in different areas of
the city. Finally, he believed that OPEFM should not become the capital development center for
all of DC unless there was legislation to that effect.160 Thus, on February 18, 2009, OPEFM
cancelled the recreation center procurement. 161
In our view, the administration’s decision to assign the DPR projects to OPEFM –
although rescinded as the result of Council action – is significant evidence that the Fenty
administration was not attempting to structure the projects to avoid Council review or to permit
project contracts to be steered to particular companies. OPEFM operates with its own
procurement authority and utilizes its own project managers. OPEFM is subject to the Council
approval requirement and routinely submits contracts to the Council for approval.162 The initial
effort to assign the projects to OPEFM is simply inconsistent with an intent to manipulate the
projects to benefit associates of the Mayor or to otherwise bypass the Council. These facts
support the conclusion that transferring the projects out of DPR was done in an effort to move
construction forward and not for an improper purpose.

160 Interview with Harry Thomas, Jr., D.C. Councilmember (Ward 5), Chair, Committee on
Libraries, Parks & Recreation, (Sep. 28, 2010).
161 Ex. 45, Office of Public Education Facilities Modernization, Design-Build Services,
Recreation Centers Solicitation #: GM-09-M-0204-FM, Addendum No. 5, Issued: February 18,
2009.
162 Interview with Allen Lew.
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B. DMPED’s Involvement
After the projects were removed from OPEFM, DPR needed another “partner” agency to
get the projects moving. Deputy Mayor Neal Albert offered DMPED’s assistance in constructing
the projects.163 Ray was willing to work with DMPED because he knew it had independent
procurement authority, and because DMPED was already handling the Deanwood recreation
center project.164
In his written responses to our questions, the Mayor explained the move to DMPED as
follows:
My original idea to ensure that projects important to the citizens of the District
moved quickly was to have Allen Lew take over such projects. When the Council
rejected my request, I discussed with senior officials of the Administration how
we could move the DPR capital projects forward as quickly as possible. It would
have been in the context of those discussions that I received the recommendation
that we follow the lead of former Mayor Williams and transfer the DPR capital
projects to DMPED. I generally approved the transfer, but had nothing to do with
the implementation of any such transfer.165
C. DMPED Looked to Banneker from the Start
Banneker and Regan Associates were already working with DMPED on Walker Jones
and Deanwood, and the evidence suggests that DMPED personnel assumed that they would work
on the DPR capital projects as well. On February 17, 2009, Ayris Scales of DMPED sent an email to confirm a meeting for the next day, described in the “re” line as “Rosedale and

163 Interview with Clark Ray.
164 Id.
165 Ex. 24 at 2.
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Kenilworth-Parkside Rec Centers Kick Off Mtg,” to be held at the Walker Jones trailer.166 The email was sent to Omar Karim, Larry Dwyer of DCHA, Duane Oates of Banneker, David
Jannarone and Jacquelyn Glover of DMPED, and David Janifer and Jason Turner of DPR. The email identifies the agenda for the meeting as “SOW; Solicitation process and requirements
for.”167 None of the witnesses we spoke to had a specific recollection of what happened at this
meeting,168 but Banneker’s inclusion suggests that they were expected to have a role in the
Rosedale and Kenilworth projects, two of the parks that “came back” from OPEFM. David
Jannarone’s suggestion that the Banneker employees were included on the e-mail simply to
advise them that their construction trailer would be used for the meeting169 does not ring true.
Neil Albert testified that consideration was given to doing the DPR capital projects as an
add-on to the Walker Jones contract.170 Although both Jannarone and Karim testified that they
were unaware of such a plan,171 the documents support Albert’s testimony. On February 19,
2009, Jannarone sent an e-mail to Omar Karim, requesting that Karim prepare a change order to

166 Ex. 46, E-mail from Ayris Scales (EOM) to Omar Karim; Lawrence Dwyer; Duane W.
Oates; David Jannarone (EOM); Jacquelyn Glover (EOM), David Janifer (DPR); Jason Turner
(DPR) (Feb. 17, 2009 5:01 PM).
167 Id.
168 Deposition of Larry Dwyer, Director of Planning and Development, DCHA; President,
DCHE (Aug. 6, 2010) 90:1-90:6; Glover Dep. 45:12-46:3; Janifer Dep. 38:8-39:4; Jannarone
Dep. 5:9-6:5.
169 Jannarone Dep. 5:9-6:5.
170 Albert Dep. 92:13-93:20.
171 Jannarone Dep. 8:9-8:14; Karim Dep. (Aug. 5, 2010) 101:10-108:8.
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the Walker Jones program management contract based on an enclosed project list.172 The version
of the e-mail originally produced to the Council by Banneker Ventures did not include a project
list, but the subject line indicates “DPR Capitol project list enclosed.”173 At his deposition, Omar
Karim testified that he could not recall the e-mail, but would not agree that it referred to the DPR
capital projects; instead, he stated that it looked like it related to other DPR projects being
handled by Regan Associates.174 David Jannarone testified that he was not sure what this e-mail
was about, but thought it referred to the Emery Football Field (which was done as an add-on to
the Walker Jones contract), and several other smaller projects.175
After Jannarone’s deposition, DMPED, through the Attorney General’s Office, provided
the attachment, which confirms that the e-mail does relate to the particular projects at issue here.
The attachment is a chart entitled “MOU for DPR Capital Projects – EXHIBIT A,” which
includes the four projects covered by OPEFM’s RFP – Rosedale, Kenilworth, Guy Mason and
Bald Eagle – as well as two additional projects – Chevy Chase Ballfield and Justice Park.176 It
indicates that the program management contract for each project except Kenilworth will be
handled by a change order to Walker Jones;177 for Kenilworth, the chart provides for an “RFP

172 Ex. 47, E-mail from David Jannarone (EOM) to Omar A. Karim; Duane Oates; Thomas
Maslin (Feb. 19, 2009 3:38 PM).
173 Id.
174 Karim Dep. (Aug. 5, 2010) 103:22-105:22.
175 Jannarone Dep. 6:17-7:20.
176 Ex. 48, E-mail from David Jannarone (EOM) to Omar A. Karim; Duane Oates; Thomas
Maslin (Feb. 19, 2009 3:38 PM) with attachment “MOU for DPR Capital Projects – Exhibit A.”
177 Regan Associates was the signatory on the Walker Jones program management contract.
On that contract, the fees were split 67% to Regan Associates and 33% to Banneker, with the 9%
soft cost mark-up going to Regan Associates.
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through DCHE.”178 However, the change order idea was not pursued. Albert could not recall the
reason why.179
Instead, on February 27, 2009, Clark Ray and Neil Albert signed the MOU for the DPR
Capital Projects.180 The MOU obligates DPR to provide DMPED with up to $40,350,000 for the
projects, and obligates DMPED to “use the funds from DRP to facilitate the repair, construction,
and/or modernization of DPR recreation facilities per DPR specifications.”181 There is no
specific reference to the requirement for Council approval of contracts in excess of $1 million,
and the MOU does not provide that it will terminate if Council approval of construction contracts
is not obtained. A chart attached to the MOU lists seven projects to be constructed by DMPED:
Chevy Chase, Rosedale, Kenilworth, Guy Mason, Bald Eagle, Justice Park and Barry Farms.182

178 Ex. 48, Exhibit A.
179 Albert Dep. 95:7-95:9.
180 Ex. 49, Memorandum of Understanding Between the District of Columbia Department of
Parks and Recreation and the Office of the Deputy Mayor for Planning and Economic
Development (Feb. 27, 2009).
181 Id. at § II (A)(1); (B)(1).
182 Id. at attachment: “DMPED Projects.”
Even after the February 2009 MOU was signed, DPR continued to ask DMPED to add
additional parks to its list. In May of 2009, for example, Ximena Hartsock, who had recently
succeeded Clark Ray as director of DPR, was advised about an issue at the Watts Branch
Recreation Center: “… the Mayor is adamant that he wants the resurfacing of the basketball
courts completed before he returns to the community on June 18th, 2008 at 4pm.” Ms. Hartsock’s
response was to forward the e-mail to Deputy Mayor Albert with the following message:
(footnote continued on next page)
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The evidence we have reviewed does not support the claim that this MOU had an
improper purpose. The Mayor first attempted to move the capital projects to OPEFM, which had
independent contracting authority, utilized its own project managers, and routinely brought
contracts to the Council for review. DMPED only became involved after the Council
disapproved OPEFM’s participation in the projects, and it too was subject to the Council
approval requirement. The evidence supports the consistent testimony that DPR teamed with
DMPED in order to move the projects forward.
III. THE MOU FROM DMPED TO DCHA
Although it does not appear to have been discussed with DPR, it is clear that DMPED
expected from the beginning that DCHA would be involved in the DPR capital projects.
Jacquelyn Glover, DMPED’s project manager for the DPR projects, testified that she understood
that DCHA would be involved at the time the DPR/DMPED MOU was being put together.183
Larry Dwyer, the president of DCHA’s subsidiary DCHE, recalled learning around March 2009
that DMPED would request DCHE’s assistance on projects that DPR could not get done on a
timely basis.184 Dwyer understood that DMPED wanted DCHE’s help to expedite the work: “I
was told the work was – the schedule was lagging behind severely and that expectations weren’t

I keep coming back to you because DPR cannot do fast enough. I would love to
discuss how we can find a way to get work done faster. In the meanwhile, can you
help us to get this one done? We do have the funds.
Thanks so much. Sorry for being a pest.
Ex. 50, E-mail exchange dated May 12, 2009, 5:27 PM.
183 Glover Dep. 51:20-52:1.
184 Dwyer Dep. (Aug. 6, 2010) 13:5-14:7.
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being met and that they were trying to accelerate the development process of the Parks and
Recreation project process.” 185
Although DCHE initially anticipated that it would handle project management on the
DPR projects, in fact DMPED asked it to play a much more limited role.186 DMPED tasked
DCHE only with procuring the project manager and providing financial and accounting support
for the projects.187 Dwyer described DCHE’s function as merely “contract administration.”
Project management services were assigned to an outside project manager, and program
coordination and decision making were to be handled by DMPED in conjunction with DPR.188
Asmara Habte, DCHE’s primary representative on the project, described DCHE’s role
similarly.189 Under this division of responsibilities, DCHE personnel thought of DMPED as their
“client.”190
On March 11, 2009, the DCHA board passed a resolution authorizing entry into an MOU
with DMPED. The memorandum recommending approval of the resolution described DCHA’s
limited role:
Under the MOU, DCHA would conduct the primary project management’s
solicitation for the repairs, provide oversight of the project management process,
and process payments between DMPED and the project contractors.191

185 Id. at 14:16-14:20.
186 Id. at 20:16-21:17.
187 Id. at 17:9-17:18.
188 Id. at 17:9-17:18; 33:12-33:19.
189 Interview with Asmara Habte.
190 Dwyer Dep. (Aug. 6, 2010) 30:7-30:8, 33:1-33:4.
191 Ex. 51, Memorandum from Michael Kelly to the Board of Commissioners District of
Columbia Housing Authority (March 11, 2009) at 1.
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The MOU between DMPED and DCHA, which was not actually signed until July 31,
2009, further defined DCHA’s role:
As an agent for DMPED, DCHA will coordinate procurement of a Project
Manager, provide administrative oversight to the Project Manager and act as
financial manager and “pay agent” with District of Columbia Government funds
provided by DMPED, all in coordination with DMPED.192
For these functions, DCHA was to be paid an administrative fee of $700,000.193 DCHA assigned
its functions under the MOU to its for-profit subsidiary, DCHE.
It appears that DPR was never formally advised that DMPED was bringing DCHA into
the project. Clark Ray, who was the director of DPR until April 19, 2009, told us that he had no
knowledge that DCHA would be involved.194 Other DPR employees became aware that DCHE
had a role only when they saw DCHE representatives at project meetings.195
A. Why DCHA?
One of the key questions raised by these events is why DCHA and DCHE were involved
in the DPR capital projects. It has been suggested that DMPED moved the projects to the
independent agency as a means to avoid Council review of the contracts for the project, possibly
to shield the contract with Banneker Ventures from scrutiny, or to avoid any delay Council
review might entail. But we did not find either to be the case.
It is true that DMPED personnel were aware of DCHA’s position that it was not required
to bring contracts to the Council for approval. Neil Albert stated that DCHA “constantly

192 Ex. 52, Memorandum of Understanding Between the Office of the Deputy Mayor for
Planning and Economic Development and the District of Columbia Housing Authority, § 2.
193 Id. at § 6(A).
194 Interview with Clark Ray.
195 Janifer Dep. 47:3-7; Stesney Dep. 44:2-16.
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articulated” that they did not need to take contracts over $1 million to the Council.196 David
Jannarone said that he was told by DCHE that they had a legal opinion stating that Council
approval was not required.197 Glover testified that Jannarone told her that DCHA was not subject
to the Council approval requirement.198
However, we did not find evidence that DMPED personnel involved DCHA in the DPR
capital projects in order to evade review of the Banneker contract or otherwise provide improper
advantages to Banneker, Karim or Skinner. We reviewed bank records from Karim’s and
Skinner’s businesses, and saw nothing to suggest that payments were being made to Jannarone or
anyone else at DMPED. Nor was there other evidence suggesting that DMPED’s decision was
improperly influenced.
The Council approval process can increase the amount of time it takes to carry out a
procurement. According to several witnesses, obtaining Council approval takes up to
approximately one month, and sometimes longer.199 Avoiding this step would have been
consistent with the Mayor’s goal of expediting construction of parks and recreation centers. It is
plausible that avoiding Council review as a time saver was at least a consideration in the use of
DCHA, even if it was not the primary motivation. However, none of the witnesses pointed to the

196 Albert Dep. 44:9-44:13.
197 Jannarone Dep. Notes.
198 Glover Dep. 40:17-40:20.
199 David Gragan noted that when OCP sent a contract package to the Wilson Building, it
would be reviewed and then sent to the Secretary of the Council; if the Council did nothing, the
contract would be deemed approved in 10 days. Interview with David Gragan. Jason Turner said
the Council approval process took approximately one month, although he described means he
used to shave the time down. Interview with Jason Turner. Neil Albert recalled one contract
taking nine months to get approvals while he was at DPR. Albert Dep. 45:18-46:9.
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Council approval issue as a reason for involving DCHA in the capital projects, even in the
interests of speed. When asked, Albert and Jannarone specifically denied that it was a
consideration.200
Instead, the witnesses who offered testimony on this issue asserted that the reasons for
involving DCHA were that it had the ability to move projects along more quickly and efficiently
than DMPED or DPR, as exemplified by its work on Walker Jones and Deanwood. Further, they
stated that DCHA had capabilities, particularly in financial administration, that those agencies
did not have.
At the October 30, 2009 Council Roundtable, Neil Albert testified that DCHA had been a
partner with DMPED on a variety of capital projects in both the Williams and Fenty
administrations. He stated that DCHA had experience in design, construction and construction
management, and had a “nimble and efficient” system that allowed projects to be designed,
permitted and built quickly. He pointed to Walker Jones and Deanwood as successful projects
that were constructed in partnership with DCHA.201 At the Roundtable on December 2, 2009,
David Jannarone testified that partnering with DCHA was the fastest, cheapest and most efficient
way to get projects done, and offered Walker Jones as the prime example. He also testified that
DCHA had accounting resources that DMPED did not have, and that DCHA applied these
resources to accounting for the projects, reviewing invoices, and tracking line items in the
budget.202 Larry Dwyer, the president of DCHE, understood that DMPED wanted DCHA’s

200 Albert Dep. 98:13-98:18; Jannarone Dep. Notes. The Mayor was asked whether he
instructed anyone in his administration to structure the DPR capital projects procurements in a
way that would avoid Council review of the contracts, and answered “No.” Ex. 24 at 3.
201 Skinner Dep. 37:3-37:7, 38:1-39:10 (Oct. 30, 2009).
202 Joint Roundtable 56:5-58:18 (Dec. 2, 2009).
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assistance on the DPR capital projects “to do the job faster, just to move the projects.”203 The
March 11, 2009 memorandum from the executive director of DCHA recommending approval of
the MOU with DMPED noted that “DMPED has indicated that the MOU is of some urgency and
requests the Board of Commissioner’s prompt consideration.”204
There is no doubt, as the Mayor acknowledges in his written responses to our questions,
that the administration wanted to accelerate the pace of park and recreation center construction.
This was the reason for the effort to move the parks to OPEFM, and the sense of urgency
imposed by the Mayor is also supported by the record throughout the period when the projects
were underway. For example,
• In a May 12, 2009 e-mail regarding the Watts Branch Recreation Center,
DMPED advised DPR that “we completed a Walk-Thru with the Mayor
and the NE Boundary Civic Association yesterday. We discussed all of the
upcoming projects to be completed at the center, and the Mayor is
adamant that he wants the resurfacing of the basketball courts completed
before he returns to the community on June 18, 200[9] at 4pm.”205
• In a May 14, 2009 follow-up e-mail to David Jannarone and David Janifer,
Deputy Mayor Albert said, “let’s piggyback on an existing contract to
meet the Mayor’s deadline.”206
• In a July 7, 2009 e-mail about the 7th and N Street Park, Jacquelyn Glover
said, “Per David Jannarone’s meeting with the Mayor this morning, we

203 Dwyer Dep. (Aug. 6, 2010) 16:16-17:4 (“motion was basically most of the
conversation”).
204 Ex. 51 at 2.
205 Ex. 53, E-mail from Demetria Harris (EOM) to Bridget Stesney (DPR) (May 12, 2009
5:16 PM).
206 Ex. 54, E-mail from Neil Albert (EOM) to David Jannarone (EOM); David Janifer (DPR)
(May 14, 2009 9:28 AM).
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have to move quickly to get 7th and N done .. The Mayor wants a ground
breaking in September, which we can do.”207
• In a September 4, 2009 e-mail, Jannarone told Glover, Karim and others:
“The Mayor told me to have the groundbreakings on the following dates:
Justice park Oct. 13
Kennilworth Nov. 1
He’s pissed we missed the dates we told him per the original draw
schedules. I took the bullet, but you guys must figure out how to make the
dates listed. Next week I want a plan on how you will accomplish this.
…”208
Increasing the pace of construction activity had public relations value for the
administration, but it also would bring needed facilities to District residents more quickly.
However, the witnesses did not agree on precisely why adding DCHA to the projects when
DMPED was already involved would result in greater speed or efficiency, and the evidence does
not support some of the explanations they offered for seeking DCHA’s assistance.
For example, in the public hearings in October 2009, DCHA’s capacity and capability in
construction management was highly touted, and witnesses such as Neil Albert and David
Jannarone explained the move to DCHA on those grounds.209 But this expertise was not actually
used. The MOU limited DCHA’s role to contract administration. Negotiations for the program
management contract were carried out by DMPED, not DCHE, and DCHE’s attempts to
comment on the terms of the contract were cut off by David Jannarone of DMPED. DCHE does
not appear to have overseen the work of the program manager. While DCHE reviewed and paid

207 Ex. 55, E-mail from Jacquelyn Glover (EOM) to Bridget Stesney (DPR); David Janifer
(DPR) (Jul. 7, 2009 11:36 AM).
208 Ex. 56, E-mail from David Jannerone (EOM) to Jacquelyn Glover (EOM); Cc to: Omar
Karim; Sean Regan; Tom Maslin; Erin Jackson (EOM) (Sep. 4, 2009 6:12 PM).
209 See, e.g. Albert Dep. 41:13-42:4, 43:5-16, 82:18-19.
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the invoices submitted by Banneker, its personnel relied on Jacquelyn Glover of DMPED to
determine whether the work had been satisfactorily done.210 DCHE personnel did not participate
in weekly project meetings or project specific meetings,211 did not participate in the selection of
architects, and did not participate in the selection of general contractors for the DPR projects.212
Indeed, Neil Albert testified that he tasked David Jannarone with managing the project
for DMPED, and that Jannarone “had the experience and the skill-sets to manage all aspects of
the project.”213 When asked in his deposition, then, what DCHE’s role was supposed to be,
Albert testified, “it is fuzzy right now. You know, but, again, you know, sort of just broad, sort
of program management responsibilities. … Just making sure the projects got delivered on time,
good quality and within the budget.”214 When asked how DCHE would do that, Albert
responded, “we hired them because … they had a track record of doing it … And we had
someone from DMPED who was sort of the liaison to them … David [Jannarone] was the one
keeping their feet to the fire.” 215
Some witnesses pointed more persuasively to the different procurement rules that apply
to District agencies and DCHA to explain why they would turn to DCHA when speed was
required. DMPED and DPR employees believed that DCHA and DCHE could enter into types of

210 Interview with Asmara Habte.
211 Glover Dep. 99:2-17; Deposition of Bridget Stesney, Planning and Design Officer, DPR
(Nov. 10, 2010) at 74:11-75:5.
212 See Glover Dep. 169:11-169:21; Stesney Dep. 110:10-111:9.
213 Albert Dep. 129:11-12.
214 Id. at 129:19-130:6.
215 Id. at 130:8-13.
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contracts that reduced the time needed to complete a project, and that DCHA’s procedures
allowed for greater efficiency and ease in the procurement process. As discussed above, it is true
that design-build contracts are rarely used in procurements conducted by OCP/DRES, and GMP
contracts have never been used. Although DMPED had independent contracting authority, it was
still subject to the PPA and, as the Deanwood example shows, worked with OCP contracting
officers in conducting its procurements. DCHE, by contrast, does not conduct procurements
through OCP and is not subject to the PPA. It is plausible, therefore, that involving DCHE could
speed up procurements and decrease project completion times.
In sum, even though the explanations offered do not all hold up under scrutiny, we credit
the consistent testimony that DMPED brought DCHA into the DPR capital projects in order to
increase the speed with which the projects could be constructed and to supplement DMPED’s
team. DMPED personnel believed that what had worked before would work again: they wanted
to follow the pattern established on Walker Jones and Deanwood, successful projects where
DCHA, through its subsidiary DCHE, was involved. While the actual value of DCHE’s
involvement in the DPR projects can be questioned, and while the combination of a lack of
Council review and diffused responsibility between DMPED and DCHE may have provided
Banneker and LEAD with an opportunity to abuse the contracting and payment process, the
evidence does not support the conclusion that the MOU with DCHA was entered for an improper
purpose.
IV. THE SELECTION OF BANNEKER VENTURES AS PROJECT
MANAGER
A. The Project Management RFQ
On March 5, 2009, about a week after the DPR/DMPED MOU was signed, Glover emailed a project list to DCHA. Shortly thereafter, on March 9, DCHE issued a Request for
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Qualifications (RFQ) for a program manager for the DPR Capital Projects.216 The RFQ was
prepared by an outside consultant to DCHE.217 Glover was the only witness from DMPED or
DPR who acknowledged playing any role in the RFQ. She said that she provided scopes and
budgets to DCHE and reviewed a draft of the RFQ, but offered no changes.218
The RFQ required prospective contractors to provide their qualifications and experience,
but, unlike a request for proposals (RFP), it did not require them to provide cost or fee
information. Instead, the RFQ provided that “DCHE and/or DMPED will negotiate fee proposals
with finalists and may request a Best and Final fee proposal from qualified respondents or
solicitation finalists.”219 It further stated:
DCHE and DMPED will conduct price negotiations with the highest qualified
offeror(s) and anticipate that the successful bidder’s compensation will be based
on a fee structure that is reasonable and within normal industry standards for
similar work. If DCHE/DMPED cannot negotiation [sic] an acceptable price,
negotiations will be conducted with the next highest ranked offeror(s) who has
been determined to have sufficient qualifications.220
Glover stated that the suggestion to use an RFQ rather than an RFP came from DCHE,221
while Dwyer and Habte recalled that the idea was discussed in a conference call between

216 While the RFQ was issued on March 9, the DCHA board did not approve entry into the
MOU with DMPED until March 11 (and the MOU was not actually finalized until months later).
Dwyer testified that it was not unusual for DCHA to issue a solicitation based on anticipated
board approval. Dwyer Dep. (Aug. 6, 2010) 44:1-12.
217 Ex. 57, E-mail from Jack Geary to Anthony Gilardi (Mar. 8, 2009 16:23:48).
218 Glover Dep. 57:3-12.
219 Ex. 58, Request for Qualifications for Capital Projects, District of Columbia Parks and
Recreation Project Management, Solicitation No.: 2009-5 (Mar. 9, 2009) at 4.
220 Id. at 9.
221 Glover Dep. at 58:13-15.
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DMPED and DCHE staff and the decision was made to proceed by RFQ to facilitate DMPED’s
goal of expedition.222 When she was asked who made the decision, Habte pointed out that
DMPED was DCHA’s “client.” Dwyer did not remember the specifics of the discussion, but he
did not believe it was a “huge source of debate.”223 He indicated that DCHA occasionally
utilizes RFQs to accelerate the selection process because they provide a means to weed out
unqualified bidders. He did not have a particular objection to proceeding by RFQ for the project
manager function as long as there would ultimately be a competitive RFP process for the high
cost construction contractors.224
It is not clear, however, whether DMPED and DCHE had authority to proceed solely by
means of an RFQ. The PPA, which governs DMPED’s contracting, does not list RFQs as a
permissible method of procurement.225 And DCHE’s procurement policy contemplates that
major procurements will be handled by solicitations for bids or proposals, which would include a
price component.226 While price need not be determinative, “[p]rice comparability is expected to
be a major factor in the selection of vendors and contractors.”227 Moreover, paragraph 3(C)(1) of
the MOU between DMPED and DCHA provides that DCHA will procure a project manager
“through a competitive bidding process.” This language would exclude the use of an RFQ, which

222 Dwyer Dep. (Aug. 6, 2010) 47:5-14; Interview with Asmara Habte.
223 Dwyer Dep. (Aug. 6, 2010) 47:2-49:12; Interview with Asmara Habte.
224 Dwyer Dep. (Aug. 6, 2010), 47-49.
225 See D.C. Code § 2-303.02; see also Interview with David Gragan.
226 Ex. 59, DC Housing Enterprises Procurement Policy (April 2009 Revision) at 5.
227 Id. at § 2002.1.
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does not call for bids. However, the MOU was not executed until July 31, 2009, long after
Banneker had been selected as project manager via the RFQ process.
Various industry witnesses offered different views about the use of RFQs. Architect Dale
Stewart of CORE indicated that it is not unusual for government solicitations to omit a price
component, particularly in the case of federal solicitations; and that “the city does it both
ways.”228 He noted that when price was not requested in an RFQ, the selection could be made
based on qualifications, with a fee negotiation to follow. Will Mangrum of Brailsford said that
while competitions for project managers typically include a price component, it was not usual
not to ask for price, particularly very early in a project when budgets have not been
established.229 Allen Lew stated that at OPEFM, he might start a procurement with an RFQ but
would always follow up with an RFP.230
Even if an RFQ was used at the outset here to narrow the field quickly to the most
qualified, DCHE could have proceeded to solicit prices from the top qualifiers. We believe that
the District was ill-served by the decision not to obtain price information from a range of
potential project managers.
B. Communications between Jannarone and Karim while the RFQ was pending
Responses to the RFQ were due on March 27, 2009. The evidence shows that between
March 9 and March 27, while the RFQ was “on the street,” DMPED and Omar Karim were
communicating about the budgets and cash flows for the capital projects. Their e-mails fueled

228 Interview with Dale Stewart, Principal, CORE Architects (Oct. 29, 2010).
229 Interview with Will Mangrum, Vice President of Brailsford and Dunlavey, and Marcos
Miranda, program director from McKissack & McKissack (Oct. 1, 2010).
230 Interview with Allen Lew.
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concerns expressed at the Joint Roundtables that the project management contract had been
steered to Banneker. Without condoning private communications between procuring officials
and one prospective contractor, based on our review of the selection panel’s activities, we do not
believe that these communications ultimately affected the procurement, and we do not find that
further investigation of the award to Banneker is warranted.
On March 18, 2009, Karim sent an e-mail to Jacquelyn Glover and David Jannarone,
with the subject line “Cash flows – DPR Projects” and the following text: “As requested,
attached please find in Excel a combined as well as individual cashflows for the DPR projects.
Please let me know if you have any questions.”231 This e-mail was produced to the Council by
Banneker without any attachments. When questioned about it at his deposition, Karim asserted
that he did not know whether this e-mail related to the capital projects included in the DPR
MOU, or to other DPR projects.232 David Jannarone similarly stated that he did not think these
cash flows related to the DPR capital projects.233 Glover, however, testified that this e-mail did
relate to the DPR Capital Projects, and that Jannarone asked Karim to provide cash flows so that
DMPED would know how money would be spent throughout the duration of the projects. 234
Subsequently, DMPED produced the attachments to the March 18 e-mail. They consist of
spreadsheets showing draft draw schedules for Bald Eagle, Guy Mason, Kenilworth, Chevy

231 Ex. 60, E-mail from Omar A. Karim to Jacquelyn Glover (EOM) and David Jannarone
(EOM) (March 18, 2009 10:31 AM) with attachments.
232 Karim Dep. 108:12-110:16.
233 Jannarone Dep. 10:11-14.
234 Glover Dep. 62:1-10.
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Chase, Justice Park, and Rosedale.235 Each schedule is labeled “Regan-Banneker Team” in the
upper left-hand corner. Each spreadsheet identifies an amount labeled “Cash in Agency
Estimated” for the particular project, and shows estimated expenditures on soft costs and hard
costs over a series of months (the number of months varies per project).236 Jannarone responded
to Karim’s e-mail, saying “Great work.”237
This e-mail exchange appears to have been followed by a conversation between
Jannarone and Karim. The next day, Jannarone sent Karim an e-mail with no text, and the
following subject line: “Where are the revised spreadsheets front loading the bell curve like we
discussed? You were supposed to get them to me yesterday.”238 Karim responded that they had
been sent and would be re-sent, to which Jannarone replied, “You modified them per our
conversation? You had edits to make, the ones you sent at 4pm didn’t work. Come on dude, we
talked about this.”239 At his deposition, Karim suggested that these e-mails might refer to

235 See Ex. 60, E-mail from David Jannarone (EOM) to Omar A. Karim (Mar. 18, 2009
12:11 PM) at attachments.
236 Id.
237 Ex. 60.
238 Ex. 61, E-mail from David Jannarone (EOM) to Omar A. Karim (Mar. 19, 2009 4:01
PM).
239 Ex. 62, E-mail exchange between David Jannarone (EOM) and Omar A. Karim (Mar. 19,
2009 4:48 PM; 4:56 PM).
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“generic” bell curves.240 But in a March 20, 2009 e-mail, which was provided to us by DMPED
after Karim’s deposition, Karim sent Jannarone updated draw schedules for Kenilworth, Justice
Park, Guy Mason, Chevy Chase, Bald Eagle and Rosedale.241
Thus, it is evident that Banneker was working with DMPED on budgeting issues for the
DPR projects at the same time as it was participating in the solicitation for the project
management contract. While it does not appear that Banneker obtained any direct advantage in
preparing its response to the RFQ as a result of this work, it can be inappropriate for a
prospective responder to have private communications with the procuring officials while a
solicitation is in progress or to receive information that would give it an unfair advantage.242 It
appeared to us that both Jannarone and Karim were determined to avoid acknowledging that
DMPED was talking to Banneker about the DPR projects before the procurement was complete.
The fact that they consistently denied it even in the face of the subject line on the e-mails
suggested to us that they were uncomfortable about the communications.

240 Karim Dep. (Aug. 5, 2010) 111:2-13; 112:12-13; 118:15-120:4. Asked what he recalled
about the conversation with Jannarone referenced in the e-mail, Karim responded: “I don’t
remember. I mean we were working on a lot of stuff with them. Walker Jones was going full
blast at the time. Deanwood was going full blast and these were these, you know, to put together
some generic bell curve cash flows.” Id. at 112:9-13. Karim also evasively described these emails as referring to “generic” bell curves in his testimony before the Council without agreeing
that they related to the DPR projects in particular. (Dec. 10, 2009 hearing transcript at 190-193,
295-296).
241 Ex. 63, E-mail from Omar A. Karim to David Jannarone (EOM) (Mar. 20, 2009 12:58
PM) with attachments.
242 See generally, 27 DC ADC § 1602.3 (in the context of competitive sealed proposals,
“The contracting officer shall furnish identical information concerning a proposed procurement
to all prospective contractors receiving the RFP.”). Neil Albert commented that although he did
not know the full context of this e-mail exchange, he would not do it that way. Albert Dep.
120:14-121:10.
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C. The Banneker-Regan Response to the RFQ
On March 27, 2009, thirteen firms submitted responses to the project management RFQ.
Banneker and Regan Associates submitted as a team. According to the Regans, their response
was put together by Banneker;243 Karim stated that they worked on it together with Regan
Associates.244 The response stressed their experience on Walker Jones and Deanwood. In his
cover letter, Karim wrote, “We believe that no other responder has more experience or
familiarity with large-scale, complex, District of Columbia recreation center and parks projects
than the Banneker-Regan Team.”245 He also stated,
As you may know, we are currently working on two large-scale, recreation center
projects (Walker Jones and Deanwood) and to date, have been successful in
meeting both our schedules and budgets. If selected to provide Project
Management Services for the Capital Projects listed in this RFQ, we expect to
deliver these projects on schedule and within budget as well.246
The cover letter indicates that Banneker will lead the Banneker-Regan team.247
The response includes a chart of relevant project experience for Banneker and Regan.
Walker Jones, Deanwood and Emery Recreation Center are identified as joint projects of the
team.248 The other projects listed for Banneker are The Residences @ Thayer Avenue; Pattern

243 Interview with Sean Regan and Thomas Regan.
244 At his deposition, Karim testified that after they saw the RFQ advertised in the
Washington Post, his firm “spent thousands of dollars putting it [a response] together and
hundreds of hours putting it together as well.” Karim Dep. (Aug. 5, 2010), 113:20-22. See also
124:18-125:3.
245 Ex. 64, Response to Request for Qualifications for Capital Projects – District of
Columbia Parks and Recreation Project Management, submitted by Banneker Ventures LLC and
Regan Associates LLC (Mar. 27, 2009) at 2.
246 Id.
247 Id.
248 Id. at 10, “Matrix of Relevant Project Experience.”
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Shop Lofts; The Jazz @ Florida Avenue; a project in connection with the Park Morton Master
Plan; and a role as “co-master developer,” as well as the developer of residential/retail space and
commercial space, for the Northwest One Redevelopment.249 The remaining projects on
Banneker’s chart are described as “staff involvement,” apparently meaning that they were
projects undertaken by Bundy Development Corporation while Karim was employed there.
Regan’s experience is also detailed in the RFQ response.
D. The Selection Process
Questions have been raised about whether the program management contract was
deliberately steered to Banneker. As noted above, some DMPED personnel seemed to assume
from the beginning that Banneker would be involved in the DPR Capital Projects. However, we
did not find that the selection process was manipulated to reach this result.
The responses to the RFQ were reviewed by a committee of 5 members. Initially,
DMPED proposed a committee consisting of 3 DMPED employees (Clint Jackson, Jacquelyn
Glover and David Jannarone) and two DPR employees (David Janifer, Bridget Stesney).250 No
DCHE representatives were included in DMPED’s proposed committee even though DCHE had
been specifically tasked with doing the program management solicitation. Within several days,
two DCHE employees – Asmara Habte and Christopher Regan251 – were put on the committee in
place of Clint Jackson and David Jannarone.252

249 Id. at 11. The chart shows a Fall 2001 completion date for the Thayer Avenue and Florida
Avenue projects, but that is obviously incorrect.
250 Ex. 65, E-mail from Jacquelyn Glover (EOM) to Jack Geary (Apr. 1, 2009 3:42 PM).
251 Christopher Regan of DCHE is no relation to the Regans of Regan Associates.
252 See Ex. 66, E-mail from Anthony Gilardi to Christopher Regan and Asmara Habte (Apr.
3, 2009 1:17 PM).
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1. Did Glover have a disqualifying relationship with Banneker?
Questions have been raised about Glover’s participation on the selection committee
because Banneker’s Best and Final Offer for the Deanwood contract, submitted on June 24,
2008, identifies Jacqueline Glover as a Banneker project engineer who is expected to spend
100% of her time on Deanwood. Banneker also listed Glover as an employee on the Employment
Plan submitted as part of its First Source Employment Agreement, also dated June 24, 2008.253
However, Glover was never employed by Banneker. At her deposition, Glover testified
that while working for another contractor, she met Karim at a networking event.254 In mid-2008,
she interviewed with Banneker, which offered her a position as a project manager.255 Glover
turned the job down in July 2008, deciding that she was not interested in working for a small
company.256 Glover also testified that no one from Banneker had asked whether they could list
her in a submission to the government.257 At the Joint Roundtable on December 2, 2009,
however, Glover testified that while she was considering Banneker’s offer, she gave them
permission to list her name on its proposal, but that they later included her name on a DOES
form without her permission.258 At the Joint Roundtable on December 10, 2009, Karim testified
that they thought they had an agreement with Glover to join Banneker, and that her name was

253 The First Source Employment Agreement relates to the contractor’s obligations to use the
Department of Employment Services as its first source of employee recruitment and to hire
District residents.
254 Glover Dep. 11:18-12:10.
255 Id. at 12:16-13:5.
256 Id. at 13:4-11.
257 Id. at 15:9-14.
258 Joint Roundtable (Dec. 2, 2009) 67:14-67:19.
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included on their Best and Final Offer with her authorization.259 He stated that including her
name on Banneker’s later DOES form was a mistake.260
Glover was called for an interview at DMPED in late July or early August of 2008, after
giving her resume to a headhunter.261 She started working at DMPED in late October 2008.262
Based on these facts, we do not believe that Glover had a relationship with Banneker
Ventures that disqualified her from participating on the selection committee for the DPR projects
program manager.
2. Was the selection committee or its scoring manipulated to
favor Banneker?
The Special Counsel deposed or interviewed each member of the selection committee,
and reviewed the score sheets and other documents related to the selection process. As described
in detail below, the selection committee evaluated the RFQ responses on four criteria, and while
there were three respondents with relatively close high scores – Banneker/Regan, KCI
Technologies, Inc. and Brailsford & Dunlavey, Inc. – the Banneker-Regan team led the scoring
at that time. CBE scores, which were obtained from the Department of Small & Local Business
Development and were not subject to the panelists’ judgment, were then added. They solidified
Banneker/Regan’s lead, resulting in the decision to award the project management contract. We
do not find that the selection process was manipulated to favor Banneker.

259 Joint Roundtable (Dec. 10, 2009)165:19-166:1.
260 Joint Roundtable (Dec. 10, 2009) 166:2-166:9, 234:7-234:8. As noted above, however,
Banneker’s Best and Final Offer and its DOES form have the same date.
261 Glover Dep. 16:12-16:15.
262 Id. at 21:10-21:14. There was a report that Glover introduced herself as a Banneker
employee at a community meeting about the projects. Glover testified that she never introduced
herself this way (Glover Dep. 192:4-193:5), and we view this testimony as credible.
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The committee members’ recollections of the selection process were not consistent in all
their details. Some members recall the responses being sent to them at their offices,263 while one
remembers picking them up at the initial meeting of the committee.264 Most of the members
recalled that the committee met twice. It appears that the first meeting took place on April 6,
2009.265 Glover thought that the proposals were discussed at that meeting, and that the
Banneker/Regan response was identified as a “good proposal.”266 Other members of the
committee did not think that any substantive discussions took place at the first meeting.267
The selection committee members used a score sheet created by DCHE based on the
criteria in the RFQ.268 Each respondent was to be rated on 5 evaluation factors:
▪ Demonstrated Experience & Qualifications
▪ Demonstrated ability to coordinate complex projects
▪ Familiarity with applicable DC and Federal Laws

263 Glover Dep. 76:16-19; Interview with Asmara Habte.
264 Stesney Dep. 47:17-48:17. The documents show that on April 3, 2009, Anthony Gilardi
of DCHE e-mailed copies of the responses to the two DCHE members of the selection
committee, Chris Regan and Asmara Habte. See Ex. 67, E-mail from Anthony Gilardi to
Christopher Regan and Asmara Habte (Apr. 3, 2009 5:21 PM). Chris Regan then asked for all of
the responses to be printed and made available at the meeting. See Ex. 68, E-mail from
Christopher Regan to Anthony Gilardi (Apr. 3, 2009 7:04 PM). We have no documents showing
transmittals to the other members.
265 Ex. 66.
266 Glover Dep. 77:10-78:1.
267 Interview with Christopher Regan, Project Manager, DCHE (Jul. 22, 2010); Interview
with Asmara Habte; Stesney Dep. 48:18-49:1. David Janifer testified that the selection
committee received over 20 proposals, narrowed them down to 5 on which they focused, and
heard oral presentations from the candidates. Janifer Dep. 53:6-53:17. We believe that Janifer’s
testimony was a mistaken reference to a different selection process.
268 Interview with Asmara Habte.
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▪ Experience with publicly funded projects
▪ Business Enterprise Designation (MBE, WBE, etc.)269
It is not clear when the score sheets were provided to the committee members.
The committee held its second meeting on April 22, 2009.270 The witnesses did not agree
on whether the committee members filled out their score sheets before the meeting271 or at the
meeting.272 There was agreement, which is supported by the documents, that at the April 22
meeting, each member read their total scores for each proposal out loud, and that Larry Dwyer of
DCHE took notes of each score and calculated totals for each respondent.273 Those totals did not
include CBE points (the fifth evaluation factor) for any of the respondents.274 According to
Glover, the fact that Banneker was the top scorer at that point was discussed at the meeting.275

269 Ex. 69, Proposal Evaluation and Scoring Sheet, DCHE Solicitation No. 2009-05,
DMPED Capital Projects – DC Parks and Recreation Project Management Services (Apr. 22,
2009).
270 Interview with Asmara Habte; see Ex. 70, Handwritten tally of scores (2 pages), initialed
“LD” and dated Apr. 22, 2009.
271 Glover Dep. 89:3-6; Stesney Dep. 68:5-7; Interview with Christopher Regan.
272 Interview with Asmara Habte.
273 See Ex. 70.
274 A comparison of Dwyer’s handwritten scores, see Ex. 70, and the scores on the final
score sheets, see Ex. 71, minus the CBE points, which were not known at the time of Dwyer’s
tally, reveals that they are generally consistent. Dwyer’s notes list 5 scores for each of the 13
contractors. Although the notes do not indicate which member gave which score, it seems clear
that Dwyer listed the scores from the committee members in this order: Glover, Janifer, Stesney,
Regan, Habte. There are 3 instances where the score sheets and Dwyer’s notes do not match:
Glover’s score for Eller Group DC, and Janifer’s scores for Banneker and KCI. However, the
scores on the score sheets match the totals on the combined score sheet attached to Dwyer’s
selection memo, Ex. 72, so the 3 discrepancies do not appear to have made any difference.
275 Glover Dep. 94:12-14.
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Other witnesses did not recall this, and beyond the reading of the scores, we have not been able
to get a full picture of any discussions that took place at the April 22 meeting.
Both Banneker and Regan Associates’ qualifications were presented in their proposal,
and according to the committee members we interviewed, they assessed them together. Glover
testified that the fact that it was a joint proposal was particularly important to her:
Banneker is not a large company. Regan has definitely got a significant history
and good work performance in construction management. So the team made them
stronger.276
She also indicated that she would have evaluated a proposal from Banneker alone quite
differently: “Alone they could not handle the large volume of projects that we had.”277
After the April 22 meeting, Habte went to the District’s LSDBE website and determined
the business enterprise points for each responder.278 She e-mailed the LSDBE points to the other
committee members that evening.279 It appears that the members entered the points on their score
sheets and then determined the final totals for each proposer.280
DCHE collected signed score sheets from each member of the selection committee. They
are dated as follows:

276 Glover Dep. at 85:5-8.
277 Id.
278 Interview with Asmara Habte.
279 Ex. 73, E-mail from Asmara Habte to Jacquelyn Glover (EOM); David Janifer (DPR);
Bridget Stesney (DPR); Lawrence Dwyer; Christopher Regan (Apr. 22, 2009 7:33 PM).
280 Ex. 71.
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Habte April 14, 2009
Janifer April 22, 2009
Stesney April 22, 2009
Regan April 23, 2009
Glover June 1, 2009281
The June 1 date on Jacquelyn Glover’s score sheet has raised questions about whether her scores
may have been changed after the fact to enable Banneker to win.
The witnesses’ accounts of what happened to Glover’s score sheet are not consistent.
Glover testified that she turned in her score sheet on April 22, the day of the second meeting, but
that either Dwyer or Habte told her that DCHE had lost it.282 Habte stated that it was Glover who
lost her score sheet. Habte said that she asked her for it several times and that she ultimately
went and picked up another score sheet from Glover.283 Chris Regan thought that Habte found
an arithmetic error in Glover’s score sheet and asked Glover to re-do it. At the time, Chris Regan
and Glover were working together on another project, and Regan recalled that Glover brought
him the score sheet and he gave it to Habte.284 Neither Bridget Stesney nor David Janifer, the
other members of the selection committee, had any knowledge about Glover’s score sheet.285
It is clear that Glover’s June 1 score sheet was created after the fact. Glover testified that
Habte provided her with the scores she had originally awarded each contractor as they were
recorded at the April 22 meeting, and that she used these scores to fill out a new score sheet.286

281 Id.
282 Glover Dep. 89:14-17, 91:2-11.
283 Interview with Asmara Habte.
284 Interview with Christopher Regan.
285 Stesney Dep. 70:15-71:6; Janifer Dep. 58:19-60:2.
286 Glover Dep. 91:17-92:9.
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Habte did not give her the scores for each evaluation factor; instead, Glover filled those in based
on her memory.287
While Glover’s score sheet was mishandled, we did not find any evidence that Glover’s
scores were manipulated after the fact to allow Banneker to win. The comparison between
Glover’s June 1 score sheet and Dwyer’s handwritten notes from the April 22 meeting is
particularly important in this regard. Although there was one score on Glover’s June 1 score
sheet that differed from her score in Dwyer’s notes, it was a score for a contractor that had no
chance in any event. After accounting for CBE points, which were not within Glover’s control,
all the other scores on Glover’s sheet, including the score for Banneker, matched Dwyer’s April
22 notes. Moreover, Banneker had the highest combined score from the other four committee
members and would have won even without Glover’s score.
None of the members of the selection committee reported experiencing anything
inappropriate about the process, or reported knowledge of any facts suggesting that the contract
might have been steered to Banneker.288 None of the panelists recalled that Glover, Jannarone or
anyone else advocated for Banneker in particular or pressed them to vote in a particular way. We
found no evidence of financial or other ties between any of the selection committee members and
Banneker that would suggest improper bias or favoritism. As discussed above, we do not believe
that Glover’s job offer from Banneker was meaningful in this regard. Several of the committee
members viewed the experience of the Banneker/Regan team on Walker Jones and Deanwood as

287 Id. at 92:10-15.
288 Glover Dep. 219:2-9; Stesney Dep. 71:10-72:2; Janifer Dep. 60:14-61:11; Interview with
Asmara Habte; Interview with Christopher Regan.
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particularly significant in their consideration of the proposals,289 but this was not an improper
advantage.290 In short, the facts we have found do not support a conclusion that the selection
process was manipulated.
In a memorandum dated April 29, 2009, Dwyer recommended the selection of Banneker
to the DCHE board. It is not clear how this memorandum, which purports to attach all of the
evaluation forms,291 could have been written and sent on April 29 when Glover’s score sheet was
dated June 1. While it thus appears that the recommendation was made before the supporting
paperwork was fully in place, it was consistent with what Dwyer knew to be the results of the
selection process.
V. THE BANNEKER PROJECT MANAGEMENT CONTRACT
Questions have been raised about whether the program management contract provided
excessive compensation to Banneker or terms that were otherwise unfair to the District. Based on
the evidence we have reviewed, we do not believe this issue warrants referral for further
investigation. But the manner in which the contract negotiations were handled does raise
concerns about the appropriateness of the compensation to Banneker and whether the District’s
interests were adequately protected. Banneker was entitled to negotiate the most favorable terms

289 Glover Dep. 255:8-20; Stesney Dep. 56:4-10. Glover testified that after the RFQ
responses were received, she talked with DMPED project managers about some of the
responding companies. Knowing that Banneker was working on Walker Jones and Deanwood,
she spoke with the project managers for those projects, who had nothing negative to say and
were pleased with Banneker’s work. Glover Dep. 255:19-20.
290 The decision to proceed by RFQ alone, rather than to solicit price proposals from the
most qualified bidders, compounded the advantage, though, as no other contractor had an
opportunity to compete with the Banneker/Regan team on the basis of price.
291 Ex. 72.
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it could, so if the contract was overly favorable to Banneker, it is the government officials, not
Banneker, who should be faulted.
A. The Intent to Award Letter; Work Begins
By letter dated April 30, 2009, DCHE notified Banneker that the program management
contract would be awarded to the Banneker/Regan team.292 According to the letter, DCHE –
consistent with the responsibilities assigned to it under the MOU – expected to be handling the
contract negotiations:
DCHE Project Manager, Asmara Habte, will be contacting your office over the
next few days to finalize the contractual agreement and to schedule the work for
this project. In the meantime, please provide us with a proposed budget for your
services based on the scope of work detailed in the DCHE solicitation No. 2009-
05.293
Although the project management contract had not yet been signed, DMPED directed
Banneker to begin work. A kick-off meeting for the DPR projects was held on May 1, 2009.294
As will be discussed in more detail below, on May 4, 2009, without any competitive solicitation,
Banneker issued a letter to Liberty Engineering & Design, informing LEAD that it would be
receiving a contract for consulting and surveying services for the DPR capital projects, and
authorizing LEAD to begin performing consulting and surveying work immediately.295 On May
14, 2009, representatives of Banneker, Regan, DMPED and DPR held a planning meeting, at
which, among other things, they scheduled site visits to Kenilworth, Bald Eagle, Guy Mason and

292 Ex. 74, Letter from Larry Dwyer to Omar A. Karim (Apr. 30, 2009).
293 Id.
294 Ex. 75, E-mail confirmation regarding DPR Projects Kickoff Meeting scheduling (May 1,
2009).
295 Ex. 76, Letter from Duane W. Oates, Banneker Ventures, L.L.C., to Abdullahi Barrow,
P.E., Liberty Engineering and Design, PLLC (May 4, 2009).
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Chevy Chase for the following week.296 Banneker continued to move forward, and to invoice the
District, during the two and a half months it took for the parties to finalize the program
management contract.
While it may have been advantageous to the District to allow Banneker to begin before
contract execution, it also could have made it more difficult for the District to reject contract
demands from Banneker and begin negotiations with another contractor. At the same time,
Banneker was technically at risk of not being compensated for work done, or of being
compensated at less than its anticipated rate, if its negotiations with the District did not result in
an executed contract.
B. DMPED controlled the contract negotiations
Both the MOU and the award letter to Banneker contemplated that DCHE would have
responsibility for negotiating Banneker’s program management contract. It is clear, however,
that the negotiations, such as they were, were controlled by DMPED, and that DMPED largely
regarded attempts by DCHE to have input into the terms of the contract as an unwanted
annoyance.
1. The fixed fee
Jacquelyn Glover of DMPED was the District employee primarily responsible for
negotiating fees with Banneker. She described her role as “a representative for DPR, just making
sure that we get, in a sense, our best bang for our buck.”297

296 Ex. 77, E-mail from Jacquelyn Glover to Bridget Stesney (DPR); David Janifer (DPR);
Omar A. Karim; Duane Oates; Tom Maslin; Bernard Guzman (EOM); David Jannarone (EOM);
McClinton Jackson (EOM) (May 14, 2009 4:04 PM).
297 Glover Dep. 100:13-15.
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It appears that the first document presented to the District as part of the contract
negotiations was a fee proposal, which Glover described as a “funding sheet that basically
outlined how much their monthly billing would be.”298 Despite requests, we have not received a
copy of the initial fee proposal. According to Karim, the fee proposal was prepared by Regan
Associates, and was based on the staffing plan included in the Banneker-Regan response to the
RFQ. Although Glover thought that the proposal was also provided by Banneker to DCHE, and
possibly to DCHE first,299 Karim testified that the initial fee proposal went to DMPED,300 which
seems more likely.
On May 18, 2009, Glover sent Karim a response to the fee proposal, copying
representatives of Banneker, Regan, DPR and DMPED, but not DCHE.301 Glover’s e-mail
indicates that the proposal was based on a monthly fee of $44,000 per “project.” “Project” in this
context did not mean an individual park; instead, the parks were grouped for purposes of
calculating workloads.302 Banneker calculated that it would be working on 4 “projects” during
months 1-15 of contract performance, and 3.1 “projects” during months 16-28, for a total fee

298 Glover dep. at 100:22-101:3.
299 Id. at 101:4-7.
300 Karim Dep. (Aug. 5, 2010) 138:14-15.
301 Ex. 78, E-mail from Jacquelyn Glover (EOM) to Duane Oates; Sean Regan; Tom Maslin;
David Janifer (DPR); David Jannarone (EOM); Jacquelyn Glover (EOM) (May 18, 2009 5:59
PM).
302 Glover dep. at 109:19-110:9. The contract included 10 different parks and recreation
centers (3 more than were in the initial DPR/DMPED MOU).
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over 28 months of $4,413,200.303 Glover testified that she discussed the calculation of the
monthly fee with Karim, and that it was based on “units of work per project.”304
According to the Regans, Banneker’s fee was based on expected staffing levels, and was
calculated in the same manner as their fee on Walker Jones.305 On the earlier project, the Regans
priced 3 full time employees at $45,000 per month, and then priced the work by determining how
many full time employees would be needed in total.306 They said that the same analysis was
applied here.307
In her response, Glover offered a lower monthly fee of $40,000 per project group, but
added a bonus of $250,000 for successful completion of certain parks in the first 15 months and a
second bonus of $300,000 that could be earned at the end of 28 months.308 Although both Glover
and Karim describe Banneker’s fee as having been negotiated down,309 in fact Glover’s proposal
provided for a total potential fee of $4,562,000, which was $148,800 more than Karim requested.
Glover testified that the reason for the increase in the total fee was to create an incentive for
Banneker to move quickly and meet the “very aggressive” schedules imposed by DPR.310

303 Id. at 110:2-9.
304 Id. at 103:15-22.
305 Interview with Sean Regan and Thomas Regan (Apr. 20, 2010).
306 Id.
307 The Regans indicated that contract negotiations with the city were handled by Banneker,
which consulted with them; “we had to be comfortable with what the fee would be.” Interview
with Sean Regan and Tom Regan. According to Karim, representatives of Regan Associates met
with Glover to explain the fee proposal.
308 See Ex. 78.
309 Glover Dep. 104:20-105:9, 108:17-109:12; Karim Dep. (Aug. 5, 2010) 139:4-5.
310 Glover Dep. 105:19-106:1.
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Glover and Karim compromised on a monthly fee of $42,000 per “project” (with the
workload calculated at 4 projects in the first 15 months and 3.1 projects in the subsequent
thirteen months),311 resulting in a contract amount of $168,000 per month from May 2009 to July
2010, and $130,200 from August 2010 to August 2011. Glover reduced the bonus amounts to
$150,000 and $200,000, which resulted again in a total potential fee of $4,562,600 – again, more
than Karim had originally proposed.312
It appears that no one in DMPED other than Jannarone reviewed this decision. Neil
Albert testified that he was not aware of the fees being negotiated, and that it was David
Jannarone’s responsibility to manage the project.313 Jannarone did not conduct an in-depth
review. He testified that he discussed the fees with Glover after Banneker’s proposal came in.
Glover was “going to go back and try to negotiate the lower fees, which she did successfully.”314
They also discussed whether the fees were consistent with other projects and fair and
reasonable.315 However, Jannarone rejected the suggestion that he was responsible for the final

311 Glover Dep. 109:17-110:1; Ex. 79, E-mail from Jacquelyn Glover to Omar A. Karim
(May 19, 2009 7:34 PM) (“Omar, Per our conversation, we will meet in the middle and adjust
your monthly fee … from $44,000 to $42,000/month/project. Then adjust the Bonuses
accordingly to ensure the Grand Total Fee is 4,562,600, as shown in my original Proposed Fee
Calculation ….”).These numbers were carried through into the contract. See Ex. 80, Contract for
Services between DCHE and Banneker Ventures, Contract No. 2009-05 (Jul. 14, 2009) at 4. The
bonus targets were based on two groups of parks: Part A, the smaller parks that were expected to
be completed first (Barry Farms, Justice Park, Parkview Community Park, 7th and N Street), and
Part B (Bald Eagle, Chevy Chase, Fort Stanton, Guy Mason, Kennilworth-Parkside, Rosedale
Community Center). Ex. 80 at 35; Glover Dep. 104:20-105:18, 109:19-110:9. Note that the
contract covered 3 parks that were not included in the DPR/DMPED MOU.
312 See Ex. 79.
313 Albert Dep. 129:9-18.
314 Jannarone Dep. 36:7-8.
315 Id. at 36:9-11.
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numbers: “[Glover] did what she had to do, and when she ended up in a place that she felt
comfortable with[,] her and I talked about it.”316
Once the fee issue was concluded, Glover requested that Karim send her his contract, in
terms that suggested DCHE’s role was only a formality: “Please send over your contract, with
these amounts included, for review, and we will then send it to DCHE for formal execution.”317
2. The 9% mark-up
The contract proposed by Banneker was largely based on the program management
contract for Walker Jones: “Banneker had an existing contract on Walker Jones with DCHE so
pretty much they used the same template, just changed the scope and the funding portions of
it.”318 In addition to the monthly fee and bonuses, Banneker was entitled to be paid “Amounts
due to Consultants under the Contractor’s contracts with the Consultants (other than Regan
Associates), plus a mark-up of nine percent (9%) thereof for the Contractor’s overhead and
management (Consultant Payments).” 319
The contract includes construction contractors in the definition of Consultant320 During
some of the hearings, this 9% mark-up was described as mark-up on the entire construction

316 Id. at 36:19-22.
317 Ex. 79.
318 Glover Dep. 101:19-22.
319 Ex. 80, at § 9(A)(11). The PPA prohibits the use of the “cost-plus-a-percentage-of-cost
contract system of contracting.” D.C. Code, § 2-303.09. While DCHA and DCHE are not
governed by the PPA, we understand that the D.C. Auditor is looking into whether including the
9% mark-up made the Banneker contract a cost-plus-percentage-of-cost contract, and if so, why
DCHE would issue such a contract. See Ex. 81, E-mail from Francis Bonsiero, Senior Analyst,
Office of the District of Columbia Auditor to Hans Froelicher (Feb. 3, 2010 4:45 PM).
320 Id. at § 5.
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budget. However, the parties understood the mark-up to apply only to “soft cost” consultants,
primarily engineers and architects, and not to the construction contractors.321
The 9% mark-up is a term that was included in the program management contract for
Walker Jones and stayed in the version used by Banneker for the DPR Capital Projects.322
Although Glover testified that she discussed the mark-up with Karim, it does not appear to have
been the subject of serious negotiation, nor was it reviewed by anyone other than Glover. She
thought it was standard for a mark-up to be added when a contractor, as opposed to the owner,
would be holding contracts with consultants or sub-contractors.323 She stated that the mark-up
was justified because the contractor was taking on additional liability, both for paying the
consultant and for the work done by the consultant.324 Jannarone did not recall any specific
discussions about the 9% mark-up, and pointed to the Walker Jones contract as justification.325
Asked about the mark-up in the Walker Jones contract, Karim stated that it was normal to charge
a fee for holding a contract and that the 9% amount was “industry standard.”326

321 See e.g. Jannarone Dep. 43:6-46:16; Dwyer Dep. (Aug. 6, 2010) 109:5-9, 138:15-141:22;
Interviews with Sean Regan and Thomas Regan (Apr. 20, 2010, Nov. 12, 2010).
322 There was no similar provision in the Deanwood project management contract.
323 Glover Dep. 106:20-22.
324 Id. at 107:1-108:16.
325 Jannarone Dep. 37:1-12.
326 Karim Dep. (Aug. 5, 2010) 97:6-7. Karim’s explanation was as follows:
[Regan and Associates] had to manage those contracts. They have to manage
those staff. They had to negotiate the contracts. They had to negotiate invoices
every month and submit them and oversee them and when – if the District didn’t
pay, they’re the ones who get those emails and phone calls and reputations are on
the line when all of those consultants begin to ask where’s our money.
(footnote continued on next page)
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During the investigation, we spoke to numerous people in various positions in the
construction industry. Based on those discussions, it appears that it is not unusual for a contractor
to add a percentage fee when it holds a contract, and we heard various estimates of a standard
mark-up amount, ranging from 2 to 10%.327 But in this case, the mark-up was being added on top
of a significant fixed fee.
More importantly, the purpose of such a mark-up is to cover costs to the contractor of
managing the sub and assuming additional liability.328 But Banneker did not take on that liability
in this case. The language of the contract does not support Karim’s claim that Banneker retained

And then you have reputations on the line and all of those things.
Similarly, the same situation that we’re in under the – our contract with DCHE
and all the subcontractors who aren’t paid. It’s a major, major burden on us
because we don’t have the funds to directly pay those consultants. They have to
come from the government.
So I think a nine percent fee is certainly industry standard. It’s regular.
General contractors charge the same thing. Architects charge the same – they
charge more for this.
Karim Dep. (Aug. 5, 2010) 96:12-97:9.
327 Interview with Dale Stewart; Interview with Mangrum and Miranda. Larry Dwyer
testified that in DCHE’s view, a mark-up of 4 to 6% would be more in line. Dwyer Dep. (Aug. 6,
2010) 55:10-13. During the negotiations, Habte recommended a 4% mark-up on Banneker’s
subs.
At the Council hearing on Nov. 16, 2009, Valerie Santos, who became Deputy Mayor for
Planning and Economic Development in June 2009, testified that 9 percent was in line with
industry standards for taking on liability and risk associated with the work. Council Hearing
(Nov. 16. 2009) 161:10-16. At her deposition, Santos testified that she got this explanation from
Dwyer and Jannarone, who advised her that the program manager was bearing all the risk if
anything went wrong with the work of the consultants. Deposition of Valerie Santos, Deputy
Mayor for Planning and Economic Development (Sep. 27, 2010) at 45:18-46:9.
328 Interview with Mangrum and Miranda; Interview with Dale Stewart.
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liability for the work of its consultants.329 The contract states that Banneker “is responsible for its
own negligence and willful misconduct.”330 But it also provides that “Notwithstanding anything
else in the Contract Documents, however, the Contractor is not responsible for the performance
of Enterprises [DCHE], of the Consultants, or of construction contractors, as such performance is
solely the responsibility of those firms.”331 Banneker is not relieved of responsibility “for
coordinating efforts of or managing Consultants as set forth in the Contract Documents or for
administration of Consultant contracts” – which are its obligations under the contract. But it is
expressly relieved of liability for the consultants’ acts:
To the extent a claim by Enterprises involves or relates to the
performance, breach of contract, negligence, or intentional misconduct or any
other act or omission by a Consultant, Enterprises (at its own expense, including
attorneys’ and experts’ fees) will pursue its claim either through the Contractor
(i.e., in the name of the Contractor) or directly against the Consultant, and
Enterprises will be limited in its recovery to the amount that Enterprises recovers
from the Consultant. ….332
Asked about the meaning of this provision in the project management contract for Walker
Jones,333 which was the model for the Banneker contract, Karim stated that it did not disclaim

329 The 9% mark-up also cannot be justified as compensation for Banneker’s taking on the
risk of having to pay the consultants. Its contracts with LEAD and the architects expressly state
that the consultants are not entitled to any payment from Banneker unless and until Banneker has
received payment from DCHE. See, e.g., Ex. 82, Consulting Services Agreement between
Banneker and LEAD (Jul. 22, 2009) at 8, Schedule 2 “Contract Sum.”
330 Ex. 80, at § 5.
331 Id.
332 Id. at § 5.B.
333 See Ex. 83, Contract for Services between DCHE and Regan Associates, LLC (Aug. 3,
2007) (“Walker Jones Contract”) at § 5B.
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liability for the work of the consultants.334 But the Regans, who negotiated the Walker Jones
contract with DCHE, acknowledged that in return for reducing their original demand for a 15%
mark-up, they were able to obtain contract language relieving them of claims.335
Because the Banneker contract was disapproved long before completion, the total amount
that would have been paid to Banneker due to the 9% mark-up is unknown. For analysis
purposes, we looked at a set of project budgets produced by DCHA dated June 8, 2009.336
Applying a 9% mark-up to the soft cost category entitled “Program Manager Contracts” in each
budget (some of which appear to be missing architects’ fees) yields $388,823. Using this
amount, the total fee payable to Banneker under the contract would have been $4,601,423
without bonuses, and $4,951,423 with bonuses. With a total estimated project budget of
$53,150,000, as indicated in the scopes of work for each of the 10 parks covered by the contract,
Banneker’s fee without bonuses could have totaled 8.7% of the budget; with bonuses, 9.3%.337
It is outside of the scope of the Special Counsel’s responsibilities to set compensation
standards for project management. But the absence of price competition in the original award,
the manner in which the negotiations for the contract were conducted, the lack of hard bargaining
on the price components, and the inclusion of the 9% mark-up on consultants’ costs, when

334 Karim Dep. (Aug. 5, 2010), 92:9-93:5.
335 Interview with Sean Regan and Thomas Regan (Aug. 2, 2010).
336 Ex. 84, Projected Budget tables for Rosedale, Kenilworth, Bald Eagle, Guy Mason,
Chevy Chase Field, Barry Farms, Justice Park, Park View, 7th and N (Cash Flow as of 5/4/2009),
Fort Stanton (Jun. 8, 2009).
337 The total project budget is higher than the $40 million MOU amount because parks were
added to the projects after the MOU was executed. As happened throughout these projects,
documents authorizing additional funding or work were prepared after the fact.
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Banneker was relieved of liability for the consultants’ performance, give rise to the view that the
District’s interests could have been better served.
C. Finalizing the Contract
On May 26, 2009, Karim sent Jacquelyn Glover and David Jannarone an e-mail attaching
a draft of the contract between DCHE and Banneker Ventures.338 Karim noted that “[i]t is
essentially the same contract that was signed for Walker Jones.” He also indicated that he would
provide the contract attachments once the scopes of work were finalized; they appear to have
been sent to Glover on June 9, 2009.339 Later that same day, Glover forwarded the draft and
attachments to Asmara Habte340 with no comments.341
DCHE took steps to review the language of the contract. Its insurance analyst provided
comments on June 16, 2009.342 The analysts noted the sentence in paragraph 5 of the contract
providing that Banneker was not responsible for the performance of the Consultants or the
construction contractors, and commented “We believe the Contractor SHALL be responsible for
the performance of the Consultants and of construction contractors.”343 They noted the language
of the insurance provision, section 10, which as drafted provided that the insurance maintained
by Banneker would cover “the Contractor’s own operations (and not the operations of

338 Ex. 85, E-mail from Omar A. Karim to Jacquelyn Glover (EOM) (May 26, 2009 7:04
PM).
339 Id.; Ex. 86, E-mail from Jacquelyn Glover (EOM) to Asmara Habte (June 9, 2009 3:50
PM). We have not been provided with a copy of the draft attached to this e-mail or the contract
attachments that were subsequently forwarded.
340 Id..
341 Glover Dep. 115:4-6.
342 Ex. 87, E-mail from Julie Ellis to Jack Geary; Nancy Ahrens (June 16, 2009 1:36 PM).
343 Id.
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Consultants or anyone else),” and commented that Banneker should be responsible for the
consultants and contractors, and that the insurance requirements should be extended by Banneker
to the Consultants and contractors.344 They also recommended other specific language changes
to the insurance provisions of the contract.345 However, none of these recommendations or
changes were incorporated into the contract.346
On June 24, 2009, Asmara Habte advised Karim that “there are many issues in the
contract that we need to discuss and change.”347 David Cortiella of DCHE was asked to review
the contract by Larry Dwyer.348 On June 25, Cortiella sent Karim a red-lined copy of the contract
with DCHE’s comments.349 Among the proposed changes were edits to paragraph 5 that appear
to have been intended to make Banneker responsible for the work of its consultants.350
Cortiella’s efforts provoked a flurry of dismissive responses from DMPED. At 12:38 pm,
David Jannarone sent him an e-mail stating “Jacqui will get you the contract we approve.”351

344 Id.
345 Id.
346 See Ex. 80, at 6-7.
347 Ex. 88, E-mail from Asmara Habte to Omar A. Karim (Jun. 24, 2009 4:15 PM); Habte
was concerned that Banneker would have minimal responsibility for the work, and also thought
that 4% would have been a more appropriate management mark-up fee. Interview with Asmara
Habte.
348 Ex. 89, E-mail from David Cortiella to David Jannarone (EOM) (Jun. 25, 2009 10:18:51).
349 Ex. 90, E-mail from David Cortiella to Jacquelyn Glover (EOM); David Jannarone
(EOM); Omar A. Karim (Jun. 25, 2009 2:10 PM) with attachment (“Contract for Services”).
350 See id., attachment at 2-3. In other words, DCHE tried several times to require Banneker
to carry the liability that might have justified its 9% mark-up.
351 Ex. 91, E-mail from David Jannarone to David Cortiella; Omar A. Karim; Jacquelyn
Glover (EOM) (Jun. 25, 2009 12:38 PM).
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Glover followed up at 12:44 pm, indicating that they had reached agreement with Dwyer on
certain changes and would make no more:
Banneker is revising their contract to reflect the revisions suggested to the
Insurance Section only which we discussed and agreed upon with Larry this
morning. They will send the updated agreement this afternoon for Larry to
promptly review and approve.352
Jannarone continued to e-mail Cortiella:
• June 25, 2:07 pm: “To be clear, we will send you the contract we
would like you to sign as I said earlier. If Larry has issue with what
we send, he will call me.”353
• June 25, 2:08 pm: “You are wasting your time, we have a path
forward. We will be in touch.”354
• June 25, 3:05 pm: “Larry has our copy that we want him to sign.
Thanks for your hard work.”355
When asked about these exchanges, Jannarone said that the negotiation of the terms of
Banneker’s contract should have been straightforward, because the parties had already agreed on
a form of project management contract for Walker Jones.356 Jannarone described Cortiella’s
proposed edits as “minor stuff that didn’t make one difference one way or the other. That was a

352 Ex. 92, E-mail from Jacquelyn Glover (EOM) to David Cortiella (Jun. 25, 2009 12:44
PM).
353 Ex. 93, E-mail from David Jannarone (EOM) to David Cortiella; Jacquelyn Glover
(EOM) (Jun. 25, 2009 2:07 PM).
354 Ex. 94, E-mail from David Jannarone (EOM) to David Cortiella; Jacquelyn Glover
(EOM) (Jun. 25, 2009 2:08 PM).
355 Ex. 95, E-mail from David Jannarone (EOM) to David Cortiella; Larry Dwyer; Jacquelyn
Glover (Jun. 25, 2009 3:05 PM).
356 Jannarone Dep. 61:14-62:20, 65:3-9.
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lot of time.”357 As long as Dwyer was comfortable with the language, that was the end of it as far
as Jannarone was concerned.358
Dwyer, however, testified that he was primarily interested in including language making
it clear that DCHE was responsible only for the $700,000 worth of work it would perform, and
not on other substantive issues in the contract.359 Dwyer was aware at the time that DMPED was
not being particularly responsive to DCHE’s other comments, but chose not to press the issue,
for fear that the discussions were becoming unproductive.360 The contract was not reviewed by
DCHA’s Office of General Counsel, contrary to agency standard practice.361
Thus, the only change that was made in the final version of the contract was the one
requested by Dwyer – the addition of an introductory sentence in the insurance section in which
DCHE disclaimed responsibility for negligent or wrongful acts of the contractor or its
subcontractors, agents or employees.362 But this change did not alter the language relieving
Banneker of liability for its consultants’ work. The project management contract was signed by
Omar Karim on June 25, 2009363 and e-mailed by him to Larry Dwyer on the same day.364

357 Id. at 73:12-14.
358 Id. at 73:5-74:7.
359 Dwyer Dep. (Aug. 6, 2010) 57:3-20.
360 Id. at 64:20-65:6.
361 Interview with Hans Froelicher, General Counsel DCHA (Sep. 14, 2010).
362 Ex. 90, attachment at 7; Ex. 80, at 6.
363 Id. at 15.
364 Ex.96, E-mail from Omar A. Karim to Asmara Habte (Jun. 26, 2009 11:17 AM).
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Banneker and Regan Associates subsequently signed a letter agreement under which
Regan Associates was retained as a consultant to Banneker on the DPR projects.365 The
agreement provides that Regan Associates will receive 48% of Banneker’s contract amount
(excluding consultant mark-ups) and will play the lead management role for half of the projects.
D. DCHE Approval of the Contract
On June 18, 2009, while contract negotiations were still ongoing, Larry Dwyer circulated
a DCHE board resolution proposing approval of the contract.366 But DCHE did not act on the
resolution at its June 18 meeting because it lacked a quorum.367 The MOU between DCHA and
DMPED had not been finalized at this point.
By the end of June, although the contract had not been signed by DCHE and the MOU
was not in place, Karim had already submitted Banneker’s first invoice for work done in May to
DMPED, and would soon submit a June invoice. Asmara Habte advised him that DCHE could
not make any payments without a signed contract.368 Karim pressed DCHE to approve the
contract and the MOU so payments could begin.369 On June 29, Glover told Karim that the issue

365 Ex. 97, Letter from Sean M. Regan, Regan Associates to Omar A. Karim, Banneker
Ventures (Jul. 20, 2009) (consulting agreement).
366 Ex. 98, Memo from Larry Dwyer to DCHE Board of Directors (Jun. 18, 2009).
367 See Ex. 99, E-mail from Larry Dwyer to Omar A. Karim (Jun. 28, 2009 22:29:57);
Dwyer Dep. (Aug. 6, 2010) 71-72; Ex. 100, E-mail from Asmara Habte to Omar A. Karim (Jun.
25 2009 10:36 AM).
368 Ex. 101, E-mail from Asmara Habte to Omar A. Karim (Jun. 25, 2009 10:36 PM).
369 See Ex. 102, E-mail from Omar Karim to Asmara Habte (June. 29, 2009 9:51 AM); Ex.
103, E-mail from Omar Karim to Lawrence Dwyer (Jul. 1, 2009 5:22 PM); Ex. 104, E-mail from
Omar A. Karim to Lawrence A. Dwyer (Jul. 6, 2009 6:48 PM).
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of DCHE’s fee still needed to be resolved before the MOU could be finalized.370 Glover offered
to look for other ways to pay Banneker in the interim:
Once the fees have been approved the MOU can be executed and the money can
be transferred. Since DCHE is delayed with providing their fee information, I’ll
talk with David Jannarone today to see if there are other mechanisms to issue
payment in order to prevent delay on work that is already in play.371
It appears that one of the options considered was adding the DPR invoices to Deanwood.
But after receiving Banneker’s second invoice, Glover told Karim that would not work:
Your invoices are very very high and as a result we can’t add to Deanwood
because that would put your contract over $1 Million forcing it to go to council,
per the conversation I had with Jonathan Butler. Plus you want to modify your
contract to add more money today and I’m sure you’ll be doing so again before
next summer.372
At her deposition, Glover testified that she described the Council approval requirement as a
problem because Banneker was looking to get paid quickly: “there is no way to put in the whole
– put in a change order over a million dollars, put it through Council and then have it be paid
quickly.”373
As noted, the fees to be charged by DCHE to DMPED were an issue between the
agencies, which was finally resolved on July 10, 2009.374 According to Jannarone, the $700,000
fee for DCHE was the result of negotiations he had with Larry Dwyer.375 Dwyer said that the
amount was a combination of actual costs that DCHE would incur for its role in the project and a