Long-gagged FBI whistleblower re-iterates request for citizen media in D.C. to show up at Saturday morning deposition...
By Brad Friedman on 8/7/2009, 8:06pm PT  

The DoJ is now jumping into action, at least on behalf of covering the FBI's rear, if not yet to issue any "states secrets" claims to stop the scheduled testimony of FBI whistleblower Sibel Edmonds in D.C. tomorrow morning in the Ohio Election Commission (OEC) case of Schmidt v. Krikorian.

For background, first see Wednesday night's report:
FBI Whistleblower Sibel Edmonds Subpoenaed, Set to 'Break' Gag Order Unless DoJ Intercedes
Former agency translator called to testify in Ohio election case this Saturday on Turkish infiltration of U.S. government...

...and then today's update:
EXCLUSIVE: FBI Attempts to Block Edmonds Testimony in OH Election Case; Attorneys Say Effort Insufficient to Stop Her
Whistleblower org says FBI/DoJ attempting 'censorship,' trying to 'silence whistleblower' answering 'lawful subpoena'

Tonight Arthur Goldberg of the DoJ's civil division sent a letter to the OEC's Executive Director Philip C. Richter, and Richter has replied. Both letters are downloadable below, and the text is posted there as well.

In short, the DoJ has informed the OEC that Edmonds has "not complied with the procedures for obtaining authorization from the FBI, her former employer, prior to making any disclosure relating to information that she acquired in the course of her work for the FBI. Therefore, she is not authorized to testify at the deposition."

Edmonds and her attorneys argued earlier today in their letter to the FBI (see today's earlier story and documents) that her employment agreements do not preclude her from answering a lawful subpoena, which they consider this to be, nor further do those agreements require approval from the FBI for oral, versus written, testimony. She was subpoenaed earlier this week on behalf of candidate David Krikorian, who is defending himself in an OEC "false statements" claim by U.S. Rep. Jean Schmidt (R-OH-2nd).

The DoJ further claims in its letter that the OEC's subpoena is not enforceable, because the deposition is to take place outside of Ohio.

In response, the OEC has said it will not enforce the subpoena, but it has not withdrawn it, either. Thus, it seems, Krikorian is still within his rights to carry out the deposition at this time, and Edmonds tells The BRAD BLOG she plans on being there in the morning to answer it.

As we reported earlier today, the National Whistleblowers Legal Defense & Education Fund, representing Edmonds, issued a statement [PDF] today blasting the FBI and DoJ's attempts to block Edmonds' testimony as "censorship" and trying to "silence [a] whistleblower."
The Bush Administration's DoJ had twice invoked the "state secrets" privilege in order to gag Edmonds, to keep her from testifying on matters they argued were of national security. So far, however, the Obama Administration's DoJ has failed to re-invoke that privilege, though it's possible it still could do so prior to tomorrow's testimony.

In a brief conversation with Edmonds moments ago, she re-iterated her belief that the "MSM will be a no-show tomorrow," and therefore says "citizen journalists are needed" to cover what may happen at the deposition. Both she and Krikorian, as well as attorneys from all sides, will be available to answer questions from media --- both corporate and citizen --- before and after the scheduled deposition tomorrow. It is slated to begin at 10:30am Saturday morning (8/8/09) at the National Whistleblowers Center, 3238 P St. NW, in Washington D.C..

* * *

Tonight's letter from the DoJ's Arthur Goldberg to the OEC's Philip C. Richter may be downloaded here [PDF]. Richter's reply to Goldberg may be downloaded here [PDF].

The text of both letters now follow below in full...

Aug 7 2009

BY FAX

Philip C. Richter
Executive Director
Ohio Elections Commission
21 West Broad Street, Suit 600
Columbus, Ohio 43215

Re: Schmidt v. Krikorian --- testimony of Sibel Edmonds

Dear Mr. Richter:

Thank you for taking the time to speak with my colleagues and me this afternoon about the above-captioned matter.

As stated in our letters of August 6, 2009, to the parties in the matter, Ms. Edmonds has not complied with the procedures for obtaining authorization from the FBI, her former employer, prior to making any disclosure relating to information that she acquired in the course of her work for the FBI. Therefore, she is not authorized to testify at the deposition now scheduled for Saturday, August 8, 2009, here in Washington, D.C. Nor has Mr. Krikorian, whom we understand requested you to issue the subpoena from the Ohio Elections Commision, complied with the Department of Justice regulations, 28 C.F.R. §§ 16.21 - 16.29, governing the provision of information by current and former employees of the Department.

In our telephone conversation, you acknlowedged that the subpoena you issued to Ms. Edmonds' attorneys was not enforceable because the Commision's jurisdiction does not extend beyond the boundaries of the State of Ohio, and that it was only entitled to whatever weight the parties to this dispute decided to give it.

In light of these circumstances, the Department of Justice requests that on behalf of the Ohio Election Commission you withdraw the subpoena in question and promptly notify the parties of this action.

Alternatively, we request that a copy of this letter be placed in the appropriate file or record related to this proceeding to note that the Department of Justice has a standing objection to any testimony provided at any deposition by Ms. Edmonds that relates to information she obtaine3d in the course of her employment with the FBI.

Thank you for your kind consideration of this request.

Sincerely
//signature//
Arthur R. Goldberg
Assistant Director
Federal Programs Branch
Civil Division

cc: Mark Geragos (via email)
Josh Bollinger (via email)
Donald C. Brey (via email)
Stephen Kohn (via email)

August 7, 2009

Arthur Goldberg, Esq.
Counsel
United States Department of Justice
Civil Division
Federal Programs Branch
Room 7316
20 Massachusetts Ave., NW
Washington, D.C. 20001

Re: Ohio Elections Commission Case No. 2009E-003

Dear Mr. Goldberg:

For your information, on Tuesday August 4, 2009 at 4:04 p.m., the Commission received a Request to Issue Subpoena for the Deposition of Sibel Edmonds for the deponent to appear on Saturday August 8, 2009 at 10:30 a.m. Pursuant to Ohio Revised Code §3517.153(B), the Commission has the authority to issue subpoenas in matters pending before it. The applicable sentence in this section reads as follows

The commission or a member of the commission may administer oaths, and the commission may issue subpoenas to any person in the state compelling the attendance of witnesses and the production of relevant papers, books, accounts, and reports.

Even though the deponent and the location of the deposition in this situation are not "in the state" of Ohio, it is standard operating procedure for Commission Staff to issue a subpoena when the parties submit a request to the Commission, unless the staff attorney to the Commission makes a determination that such issuance would be "overly burdensome or requested solely for the purpose of harassment or delay". This is true even if the party to whom the subpoena is issued is outside of the state. This is done as an accommodation to the parties or a witness with the understanding that an issuance to a party outside of the State of Ohio is otherwise unenforceable by the Commission, an administrative agency in the state of Ohio.

In this situation, the Commission has no desire to involve itself in any controversy that attempts to extend the authority of a Commission subpoena beyond the statutory allowance granted the Commission under the terms of R.C. §3517.153(B). On behalf of the Commission, I was both unadvised and unaware of any limitations to which the deponent is subject. While in the past I have taken vigorous action to enforce a Commission subpoena, and should a situation arise am prepared to do so in the future, I acknowledge that the Commission's ability to take action to enforce one of its subpoena [sic] and any authority to compel the appearance of or testimony by a person receiving a Commission subpoena can only occur within the boundaries of the state of Ohio. In light of your letter and these circumstances, I am not prepared to take any action available to the Commission under R.C. §3517.153(B) to compel the enforcement of the Commission's subpoena to Sibel Edmonds on behalf of the Commission.

Please feel free to contact me if you have any additional questions or concerns.

Sincerely,

Philip C. Richter
Executive Director

cc: Vesper Mei, Esq., Senior Counsel, U.S. Department of Justice
Christopher P. Finney, Esq. & Joshua B. Bollinger, Esq., Counsel for Respondent, David Krikorian
Donald C. Brey, Esq., Counsel for Complainant, Jeanne Schmidt
Steven Kohn, Esq., Counsel for Deponent, Sibel Edmunds [sic]