Mark Levin Takes Obama's EPA to Task in Court

Talk radio’s Mark Levin is in a legal knife fight with Barack Obama’s Environmental Protection Agency and may have the EPA by the throat in what would be a humiliation for the Obama White House.

Levin is a talk radio giant and conservative hero (“The Great One,” as Sean Hannity describes him). But he’s also actually a lawyer, who served as chief of staff to a leader held in the highest reverence by conservatives, Attorney General Edwin Meese. And Levin continues to litigate through Landmark Legal Foundation, where he is president.

Landmark is seeking information from EPA that would prove EPA abused its power to influence the 2012 election. EPA was formerly led by the hyperpartisan Lisa Jackson. (Now it’s led by former Romney top aide Gina McCarthy.) Landmark accuses Jackson’s EPA of deliberately delaying draconian regulations are would inflict tremendous economic damage until after the 2012 election, so Obama would not pay a heavy political price in energy-producing states that could have cost him his reelection.

Landmark sought emails and information through a Freedom of Information Act (FOIA) request it filed on August 17, 2012, but were immediately concerned that EPA may attempt to destroy the incriminating information. “The EPA is a toxic waste dump for lawlessness and disdain for the Constitution,” Levin said in a statement today. “When any federal agency receives a FOIA request, the statute says it must preserve every significant repository of records… that may contain materials that could be response to the request.”

In 2012, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia issued an opinion when he declined to issue a protective order in the case, writing:

The individual overseeing the EPA response to this request has stated that he will comply to the best of his ability with the EPA’s obligation to preserve information relevant to this FOIA litigation and that his staff has been instructed to comply with the preservation obligations.

It seems that individual deceived the judge, as now the EPA has evidently destroyed some of that information. So Landmark has now filed a motion asking for Judge Lamberth to impose sanctions against the EPA for spoliation.

The doctrine of spoliation is that when a party possesses evidence and then loses that evidence (perhaps claiming it was “inadvertently destroyed” such as in the IRS’s Lois Lerner’s now-infamous computer crash), the court may presume that the evidence would have been fully incriminating against the party that lost it.

The practical effect is the complete opposite of the usual result of when the accusing party cannot produce the evidence to the court. Normally if evidence is missing, a court does not speculate as to what it would have shown.

With spoliation, the court must assume the worst-case scenario–not just that evidence was bad for the party that lost it–but that it could not have been worse. That’s a harsh rule, but it’s the best way to motivate a party with evidence that will cause them trouble in court to choose to keep that evidence safe and make sure the court gets it.

Imagine a situation where a businessman and his business partner cheated in a business deal with a client that cost the client $5,000. Then they had a separate, bigger deal where the client lost $50,000. The police investigate the businessmen regarding both deals and seek email records of every exchange the partners had that mention the client.

Further imagine that the partners had emailed back and forth about stealing the money in the first deal. Why not just have a convenient Lois Lerner-style computer crash to destroy the evidence? Because while the emails show them plotting to steal money in the first deal, they also show the partners worked the bigger deal honestly and that the $50,000 was lost through no fault of theirs.

So if the businessmen destroy the emails, the judge could tell the jury to assume that the lost emails would have contained proof that the partners stole from the client in both deals and convict them of stealing both the $5,000 and the $50,000. Thus, the doctrine of spoliation motivates them to preserve emails that show they stole the $5,000 and pay the price for that–but avoid being wrongly convicted for stealing the $50,000.

Spoliation is what is happening in Levin’s case against EPA. “The spoliation has continued during this lawsuit even after the failure to preserve documents was brought to light by Landmark’s deposition of EPA officials,” the motion reads, and it gives specific details of the loss.

Of course, the dollar amounts at stake from these EPA regulations are measured by the tens of billions–not tens of thousands–of dollars. And whether Obama’s political appointee at the head of EPA was manipulating the vast powers of that agency to put her thumb on the scales of the 2012 election should be a point of interest for every American.

Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.