Breitbart’s? Pigford ?Report: Distortions And Shady Sourcing
Posted in Main Blog (All Posts) on February 11th, 2011 5:45 am by HL
Breitbart’s? Pigford ?Report: Distortions And Shady Sourcing
In December, Andrew Breitbart published a report, “The Pigford Shakedown,” that purported to reveal the “massive fraud” and “widespread corruption” supposedly tainting a settlement intended to compensate to black farmers who had faced discrimination from the U.S. Department of Agriculture. Breitbart’s report, which is intended to form the basis for a congressional investigation, is laden with distortions, questionable sourcing, and sloppy errors.
Summary Of Pigford Case
Judge Approved Settlement Agreement And Consent Decree To Settle Black Farmers Discrimination Case. From a report by the Congressional Research Service:
On April 14, 1999, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia approved a settlement agreement and consent decree in Pigford v. Glickman, a class action discrimination suit between the U.S. Department of Agriculture (USDA) and black farmers. The suit claimed that the agency had discriminated against black farmers on the basis of race and failed to investigate or properly respond to complaints from 1983 to 1997. The deadline for submitting a claim as a class member was September 12, 2000. As of November 2010, 15,642 (69%) of the 22,721 eligible class members had final adjudications approved.
Many voiced concern over the structure of the settlement agreement, the large number of applicants who filed late, and reported deficiencies in representation by class counsel. A provision in the 2008 farm bill (P.L. 110-246) permitted any claimant who had submitted a late-filing request under Pigford and who had not previously obtained a determination on the merits of his or her claim to petition in federal court to obtain such a determination. A maximum of $100 million in mandatory spending was made available for payment of these claims, and the multiple claims that were subsequently filed were consolidated into a single case, In re Black Farmers Discrimination Litigation (commonly referred to as Pigford II).
On February 18, 2010, Attorney General Holder and Secretary of Agriculture Vilsack announced a $1.25 billion settlement of these Pigford II claims. However, because only $100 million was made available in the 2008 farm bill, the Pigford II settlement was contingent upon congressional approval of an additional $1.15 billion in funding. After a series of failed attempts to appropriate funds for the settlement agreement, the Senate passed the Claims Resolution Act of 2010 (H.R. 4783) to provide the $1.15 billion appropriation by unanimous consent on November 19, 2010. The Senate bill was then passed by the House on November 30 and signed by the President on December 8 (P.L. 111-291). [Congressional Research Service, 12/6/07]
Kalil Had Falsely Claimed To Be Acting On Behalf Of D.C. Bar Counsel. The ethics case against Kalil began after he was suspended for 14 days from his job at USDA. Kalil claimed that the suspension was wrongful because he was protected by the Whistleblower Act. He then filed a complaint with the Merit Systems Protection Board, which oversees federal civil service laws. While the case was pending before the Merit Systems Protection Board, Kalil came to believe that the judge involved was involved in ethical misconduct and contacted the D.C. Bar’s ethics office, the Bar Counsel. He was told that they needed more information. So then, using an alias, he contacted the Merit Systems Protection Board judge handling his case. From the Maryland Court of Appeals decision:
Kalil believed that Judge Cook and some of the witnesses at his MSPB hearing committed acts that breached the applicable rules governing attorney conduct and that he had an ethical obligation to report such acts. While his judicial review action was pending, Kalil called the MSPB Washington Regional Office on at least three occasions. On June 21, 2005, a paralegal specialist for the office, Sheila Stanton, answered a call from a person who identified himself as “John Ford” and who asked to speak with “Tom Cook, an MSPB Judge.” The caller, who was in fact Kalil, indicated that the phone call concerned a personal matter. Stanton put the call on hold and contacted Judge Cook who asked her to transfer the call to his voicemail, which she did. Judge Cook testified that he is reluctant to answer the phone because a large number of cases before him involve pro se litigants who seek to argue their cases ex parte. In addition, Judge Cook does not speak to a litigant after his or her case has been decided.
Soon after, Stanton answered another call, but the caller did not identify himself. Stanton, however, recognized the caller to be the same person who earlier had identified himself as “John Ford.” This time, the caller asked Stanton whether Judge Cook was a member of the Bar of the District of Columbia. Judge Cook is a member of the California Bar and is not admitted to the District of Columbia Bar. Stanton informed the caller that she was not sure and that he would have to ask Judge Cook. She then forwarded the call to Judge Cook’s voicemail. The transcript of the voicemail reads as follows:
“Yes, Judge Cook, this is Thomas Cahill. If you could contact me at [telephone number] I would appreciate it. I have a technical question I have to obtain information from you. This is not related to the case, but I’m calling on behalf of D.C. Bar Counsel. Thank you.”
[…]
Kalil’s exception regarding his representation that he was calling “on behalf of Bar Counsel” is without merit. Whether Kalil intended to deceive the recipients of his calls or misrepresent himself does not alter Judge Thompson’s finding and conclusion that, “[r]egardless of Respondent’s intentions, his actions of representing that he was calling on behalf of Bar Counsel were deceitful and untrue.” Judge Thompson’s factual finding regarding the manner in which Kalil represented himself to the MSPB is not clearly erroneous, and the conclusion of law that Kalil violated Rule 8.4(c) is supported by the record. [Maryland Court of Appeals, 12/6/07]
Judge Presiding Over Kalil’s Case: Kalil “Has An Inflated View Of His Role At The U.S. Department Of Agriculture And His Public Responsibilities.” From the Maryland Court of Appeals decision quoting the lower court judge:
The actions of the Respondent in this matter are largely undisputed. To understand exactly what happened and why it occurred requires some insight into the character and personality of the Respondent. During the hearing on this matter, with the Court’s ability to observe the Respondent testify, it became clear that the Respondent is an intelligent career civil servant who has an inflated view of his role at the U.S. Department of Agriculture and his public responsibilities. He is also hampered by his selective interpretations of facts and their application to his situation together with an inability, on occasion, to acknowledge that he is wrong about matters with which he is dealing. An apt description of the Respondent is as an unappreciated gad fly. At times during his testimony, Respondent was argumentative or non-responsive to the questions asked, not because he was evasive, but because he elected to split hairs during his answer or to try to restate the question to fit what Respondent believed was appropriate. It is the Court’s belief that this personality trait is what led to Respondent’s troubles with his employer, the MSPB, and the Office of Bar Counsel for the District of Columbia.[Maryland Court of Appeals, 12/6/07]
Breitbart Claims An Anecdote From The Newsletter Of Dr. Ridgely Muhammad “Backs Up” Kalil’s Theory That Pigford Was Designed To Buy 2000 Election. In The Pigford Report, Breitbart quoted at length a passage from a newsletter posted on the personal website of BFAA Vice President Dr. Ridgely Muhammad. This passage, Breitbart claimed, “backs up the accusations of Thomas Kalil.” Earlier in the report, Breitbart had written that Kalil “maintains that Pigford was designed to buy the rural vote for Al Gore and the Democratic party in the 2000 election.” [BigGovernment.com, “The Pigford Shakedown,” 12/6/10]
Even Assuming The Anecdote Is Accurate, It Does Nothing To Corroborate Kalil’s Theory. The cited portion of the newsletter in full reveals nothing about the motives of the Gore campaign or any Democratic political operatives. It simply recounts a threat Muhammad supposedly delivered to Paul Fiddick, then the Department of Agriculture’s Assistant Secretary for Administration. The passage gives no indication of how Fiddick reacted or if the threat was remotely credible. Here, in full, is the portion Breitbart cites:
[I] asked him [Fiddick] to listen very carefully and deliver a message to Dan Glickman for Al Gore. “Since you can just listen, then pass this on. If Dan Glickman ain’t cleaned up this mess with the Black farmers, that is give them their money, then he can tell Al Gore that he will not be president of these United States. See you next Monday and bring Dan with you.” [MuhammadFarms.com, 3/7/200, emphasis added by Breitbart]
