FROM THE ARCHIVE

Court report blasts McCaleb for destroying records

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MONDAY, JANUARY 27, 2003

Former assistant secretary Neal McCaleb and his top aide Aurene Martin invented a story to cover up the ex-Bush administration official's failure to abide by court orders and federal law, a court investigator said in a scathing report released on Friday.

Despite being required to preserve Indian trust fund documents, McCaleb destroyed them "with impunity," special master Alan Balaran wrote in a 54-page opinion. Yet when the oversight was finally discovered, McCaleb "fabricated" an explanation by blaming a subordinate while Martin "assisted" in creating a "fictional account" of his activities, the report charged.

"The special master’s investigation revealed that, not only did the former Assistant Secretary-Indian Affairs delete individual Indian trust records in derogation of a myriad of legal and trust principles but, when his actions came to light, fabricated a story that attempted to blame others for his misdeeds," Balaran said. "Simply stated, McCaleb proved to be as complacent with the truth as he was with his fiduciary responsibilities."

Last October, McCaleb admitted that he deleted e-mails related to the management of the Indian trust, which is worth $3.1 billion. Included were highly-sensitive documents that listed dollar amounts owed to hundreds of thousands of individual account holders. The documents were specially encrypted and only certain officials were allowed access.

At the time, McCaleb and other officials insisted that the incident was a simple "misunderstanding." Dan DuBray, McCaleb's communications aide, said the Department of Interior hired a consulting company to recover the missing e-mails from computer backup tapes.

By that time, however, senior officials already knew the information was probably irretrievable, the report said. Even before the court was informed, Associate Deputy Secretary Jim Cason and others looked into the situation and arrived at a dismal conclusion.

"We learned that the Bureau of Indian Affairs was not making daily backup tapes," Martin testified under oath, "that we were conducting weekly backups."

Weeks later, McCaleb denied culpability. In the November 20 declaration, written under penalty of perjury, he said he relied on a staff assistant, a ten-year BIA employee named Jean Maybee, to backup his e-mails.

Testimony by Maybee, admissions by Martin and evidence on the record contradicts that claim, the special master's report said. While Maybee's account was "inherently logical" and "independently corroborated" by Martin, McCaleb's version was not, Balaran wrote.

"In sum, the special master finds that the former Assistant Secretary crafted the events . . . out of whole cloth to create the facade that he was zealously following agency policy and studiously preparing for an upcoming deposition," the report said. "His account is not believable."

Martin, an attorney who is now acting Assistant Secretary due to McCaleb's recent resignation, was also taken to task for her involvement. Even though she is forbidden by federal law and Interior policy from providing legal advice, she wrote the first version of McCaleb's declaration without consulting government lawyers. In her own testimony, the former Republican Senate aide revealed that she had never drafted an affidavit in her entire legal career.

At first, McCaleb approved Martin's affidavit but later rejected it in favor of a similarly worded one that was created by his own private attorneys at the Washington, D.C., law firm of Mannatt, Phelps & Phillips. Reached at his office on Friday evening, Michael Rauh, who specializes in white-collar crimes, was unable to comment on the report critical of his client because he said he hadn't seen it.

Rauh is one of dozens of attorneys who have been hired by current and former government officials as part of the ongoing trust fund litigation. Depending on experience, they are reimbursed with taxpayer funds up to $200 an hour for up to 120 hours a month, according to a Department of Justice document.

Attempts to reach McCaleb at his home outside of Oklahoma City, Oklahoma, were unsuccessful and department officials did not return requests for comment. But they were slow to respond to the matter, Balaran recounted.

McCaleb first became aware of the problem on October 10 and on that day, Maybee reported it to his chief of staff Jerry Gidner, who waited five days to tell Martin. Only when Martin informed Cason the following day did the Interior report the incident to the court.

Subsequently, Balaran on November 10 asked for McCaleb to attest to the situation. He delayed his response for nine more days.

Government attorneys, and McCaleb's private counsel, have 10 business days to challenge Balaran's report. U.S. District Judge Royce Lamberth can then accept it as part of the ongoing suit.

Get the Report:
OF THE SPECIAL MASTER REGARDING THE DELETION OF INDIVIDUAL INDIAN TRUST INFORMATION BY FORMER ASSISTANT SECRETARY-INDIAN AFFAIRS NEAL MCCALEB (January 24, 2003)

Relevant Documents:
Dan DuBray E-mail to Aurene Martin | Jean Maybee Notes | Neal McCaleb Draft Declaration (October 19, 2002) | Neal McCaleb Final Declaration (November 19, 2002)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp

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