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Opinion E-mails back claim that Sen. Rand Paul ‘stole’ NSA lawsuit

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The intrigue over the authorship of Sen. Rand Paul’s NSA lawsuit continues. In a column posted Wednesday, I wrote that constitutional lawyer Bruce Fein had been unceremoniously dropped from the complaint after writing it, that he had been replaced on the complaint by former Virginia attorney general Ken Cuccinelli, and that Fein had not been fully paid for his work. I quoted his spokeswoman and ex-wife, Mattie Fein, accusing Cuccinelli of stealing Fein’s work.

After furious complaints from Paul advisers, Fein issued a statement Thursday saying: “Mattie Lolavar was not speaking for me. Her quotes were her own and did not represent my views. I was working on a legal team, and have been paid for my work.”

However, Mattie Fein has routinely been identified as Bruce Fein’s spokeswoman in media reports, and e-mails I sent to Bruce Fein this week were answered by Mattie Fein, who again identified herself as his spokeswoman and who relayed information between Bruce Fein and me. The e-mails, which I was authorized to publish, also show that Bruce Fein was angry about the way he had been treated by Paul and Cuccinelli and was seeking payment from Paul’s political action committee as late as Wednesday.

In a telephone conversation Thursday evening, Cuccinelli, joined by Bruce Fein, repeated that Mattie Fein was “not authorized” to speak for Bruce Fein, and said “Mattie sent emails in his name from his account.” But Bruce Fein confirmed on the call that he had, in fact, written one of the two emails forwarded to me from his account, in which he complained about the way he was treated by the Paul team and requested payment. “I was disgruntled with some elements,” he said. Asked about the second email from his account, in which he lists several questions that could be asked at the Paul-Cuccinelli news conference, he declined to comment.

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Fein said that Mattie Fein, whom he identifies as Mattie Lolovar, has been his spokeswoman on previous matters but that he “never authorized her to speak for me” on this matter.

Here is the first email Fein wrote, which he sent to Doug Stafford, Paul’s top political advisor.

On Feb 12, 2014, at 1:56 PM, “Bruce Fein” b***** wrote:
Dear Doug,
The protocols for preparing and filing the class action complaint today were hugely suboptimal.
My name was not on the complaint despite the fact that it was predominantly my work product over several weeks and two hundred hours of research, meetings, and drafting. Ken never showed me the final complaint before submission. My name could not be on the complaint under DC Bar Rules because I could not prepare a timely engagement letter. I was never informed until yesterday by Ken of the details of the collaborative arrangement between FreedomWorks and Rand for litigating and paying for the lawsuit. I promptly revised the engagement letter when the information was received, and it has been forwarded via Ken to Rand and FreedomWorks.
I did not learn of the date for filing except by inadvertence from Ken a few days ago.
I was not included in any briefing of Rand about the complaint before filing and press conference today despite the fact that I know vastly more about the Fourth Amendment issue and the history of NSA surveillance than anyone else on the team.
All of this has been especially distressing because I have been an impeccable team player from the outset. I did not ask for an upfront retainer. I did not publicize my role to the media. I heavily discounted my fees. I shared my work product freely with Ken. I responded to all of Ken’s inquiries with alacrity. And I have eagerly defended Rand in the past on Fourth Amendment issues in the media.
Yet I was excluded from key decision points leading up to the filing of the complaint and press conference as though I could not be trusted. I was not only excluded from meetings. I was never informed that they took place and what the decisions were.
My marginalization was thoroughly unfair. Going forward, I expect complete transparency and inclusion on all non-trivial decisions. My name will be on all future pleadings. Ken and I plan to meet shortly to discuss these matters.
My outstanding invoice for work indispensable to the lawsuit should be paid no later than Friday, February 14, an expectation which is completely justified in light of all the circumstances. Please alert me if the work description on the invoice needs alteration.
Thanks for your attention to these matters.
Bruce Fein

Here is Bruce Fein’s invoice to Sen. Paul’s PAC. An early version of my Wednesday column said that Fein had not been paid and that Paul’s aides had not responded to inquiries. When Stafford responded after publication that Fein had been paid on Feb. 3 $15,000 of the $46,849.96 Fein had billed, the column was updated.

This is Stafford’s response to Bruce Fein’s complaint, and Mattie Fein’s retort to Stafford.

—– Reply message —–
From: “Doug Stafford” dstafford06@*****.com
To: “Bruce Fein” b*****
Subject: class action complaint
Date: Wed, Feb 12, 2014 2:47 PM
It should be noted that when asked about the legal team, on several occasions, Ken has brought up your name. And of course, after the engagement letter I anticipate they would want you on the filings
But Bruce, I don’t understand how you expect people to accept what was done today? That is crazy and makes no sense if your interest is to work as part of the team. None.


—– Reply message —–
From: “m*****” m******
To: “Doug Stafford” dstafford06@*****.com
Subject: Re: class action complaint
Date: Wed, Feb 12, 2014 2:54 PM
Doug it should be noted that Bruce and our firm should have been on the pleading…and lens past experience is the equivalent on FISA as an overcooked vegetable. Seriously, you screwwd him and I called it. Why wasn’t Bruce included on the freedomworks agreement. It’s not about bringing him in later you guys STOLE his work product…petals before swine my friend. Not good enough.Mattie Sent from my Verizon Wireless 4G LTE Smartphone

This an email exchange between Ken Cuccinelli, who wrote to Bruce Fein’s email address, and Mattie Fein, who responded.

—– Reply message —–
From: “Ken C” ktc*****@*****.com
To: “Bruce Fein” b*****
Subject: Query
Date: Wed, Feb 12, 2014 2:17 PM
Rather pointed questions from media folks have started to arise specifically about you. Has Mattie perhaps had conversations with her contacts that have inspired such questions. As much as possible, our clients dont want the lawyers to become the story.
Pls advise.
Please pardon typos, sent from my iPhone.


Begin forwarded message:
From: “m*****” m*****
Date: February 12, 2014, 2:32:37 PM EST
To: “Ken C” ktc*****@*****.com
Subject: Re: Query
If you have questions of me ask me directly. You basically stole bruces work product and research, there isn’t a press person friend or no in the world that believe you are a legal giant. You had an opportunity ,as well as that snake Stafford, to do the right thing… didn’t. What is your explanation for not being able to answer the numerous FISA suits… I planted that because I know you are dumb as a box of rocks….make this right ken. You have no legal credibility….
Sent from my Verizon Wireless 4G LTE Smartphone


—– Reply message —–
From: “Ken C” ktc*****@******.com
To: “Bruce Fein” b*****
Subject: Query
Date: Wed, Feb 12, 2014 2:40 PM
I think this relationship is untenable. Your wife planted a question BECAUSE she believed it would do damage to our clients. Stated differently, she tried to hurt the clients.
I need to think long and hard about this going forward.
Please pardon typos, sent from my iPhone.


From: m***** [mailto:m*****]
Sent: Wednesday, February 12, 2014 3:14 PM
To: Ken C
Subject: Re: Query
No ken,
First I’m not his wife. Second Bruce had the client before you. Third, admit you werent equipped to answer the questions because you don’t have the legal genius. Fourth, you stole the suit .what will you be prepared to pay since you stole the suit from Bruce? Fifth, what do we do with questions about a possible indictment and legal issue and admission on your receiving gifts? Seriously ????
This will go forward with Bruce , ken. The press thinks your an idiot you have too much baggage without the meat and potatoes..and a lingering federal issue still over your head. Have some respect ken, you know Bruce did the work.
Sent from my Verizon Wireless 4G LTE Smartphone

My original inquiry to Bruce Fein was fielded by Mattie Fein. Later, Mattie Fein forwarded questions suggested by Bruce Fein for the Paul-Cuccinelli news conference.

—– Reply message —–
From: “Milbank, Dana T” Dana.Milbank@*****.com
To: “Bruce Fein” b*****
Subject: rand paul lawsuit
Date: Tue, Feb 11, 2014 10:32 PM
Hey Bruce. Hope you’re well. What think of this lawsuit?
+11 a.m. — (NSA/LAWSUIT/PAUL) EVENT — Sen. Rand Paul (R-Ky.); lead counsel and former Virginia Attorney General Ken Cuccinelli (R); and Matt Kibbe, president of FreedomWorks, hold a news conference in front of U.S. District Court to announce a class action lawsuit against President Obama, Director of National Intelligence James Clapper, National Security Agency Director Keith Alexander and FBI Director James Comey “over NSA spying.” Paul says Obama “has publicly refused to stop a clear and continuing violation of the 4th Amendment.” He says he expects the case to go all the way to the Supreme Court.
Location: In front of U.S. District Court for the District of Columbia, 333 Constitution Ave NW


From: m***** [mailto:m*****]
Sent: Wednesday, February 12, 2014 8:49 AM
To: Milbank, Dana T
Subject: Re: rand paul lawsuit
Mattie Fein here. Call me about this when you get a chance. 703*******.
Sent from my Verizon Wireless 4G LTE Smartphone


From: m***** [mailto:m*****]
Sent: Wednesday, February 12, 2014 9:46 AM
To: Milbank, Dana T
Subject: Fwd: Qs
From Bruce. And it doesn’t look like ken has any fourth amendment experience.
Sent from my Verizon Wireless 4G LTE Smartphone


—– Forwarded message —–
From: “Bruce Fein” b*****
To: m*****
Subject: Qs
Date: Wed, Feb 12, 2014 9:40 AM
1. The FISC has issued 36 separate orders finding the telephony metadata collection and search program legal under section 215 and constitutional. What reasoning in those 36 FISC orders do you believe is flawed?
2. Judge Pauley in the ACLU case concluded that the NSA’s telephony metadata program might have foiled 9-11 by identifying hijacker al-Mihdhar in San Diego from his phone calls to Yemen al Qaeda safe house. Was Judge Pauley wrong and why?
3. How will you overcome a state secrets privilege by the NSA if asserted to withhold alleged cases where the telephony metadata program helped thwart a terrorist plot?
4. Why do you think National Security Letters issued by the FBI are as effective in collecting counterterrorism intelligence as the NSA’s metadata collection program?
5. Are you asking for an overruling of the Supreme Court’s Smith v Maryland precedent? If so, hasn’t the Supreme Court prohibited lower courts like the DC District Court from ignoring Supreme Court rulings unless or until the Supreme Court itself overrules the case? Won’t you thus lose in the District Court?
Bruce Fein

And finally, here is a Jan. 15 draft of the complaint written by Bruce Fein; the complaint filed Wednesday with Cuccinelli’s name on it is nearly identical except for some cuts and wording changes.