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Van Valkenburg is trying to hand Missoula a cracked plate



Last week, Missoula County Attorney Fred Van Valkenburg announced his plan to sue the U.S. Department of Justice, which is every bit as exciting as it sounds. Van Valkenburg wants the county to release $50,000 to seek a declaratory judgment that the DOJ has no right to investigate his office's handling of sexual assault cases—an investigation with which his office has refused to cooperate for the last 20 months.

The money isn't for him, though. Van Valkenburg hasn't done anything wrong. He wants Missoula to sue the federal government for the benefit of county attorneys everywhere.

"To me, it's a significant responsibility to resolve it not only for Missoula's benefit but for every prosecutor in America," he told the Missoulian, "so that they know where they stand in terms of being taken to task by the civil rights people in the U.S. Department of Justice."

It's a classic case of civil rights people run amok, and we are duty bound to stop it. Also, suing the feds would be a fantastic deal.

U.S. Attorney Michael Cotter, who has already completed investigations of the University of Montana and Missoula Police Department with their cooperation, proposed that the county attorney's office hire two full-time staff members to prosecute sexual assaults and a compliance officer to see that they do it right.

That would run the county approximately $400,000. Standing up against obvious judicial overreach, on the other hand, might save the county the price of a nice ranch house.

"[Attorneys at the Missoula legal firm Boone Karlberg] think we have a very good chance of being successful and that we could do it for under $50,000," Van Valkenburg said, "which is $350,000 less than ... the likely outcome of agreeing with these people."

So really we can't afford not to stand against federal overreach. Here Van Valkenburg's arguments take on a jarring tone, as they have since spring 2012.

When the DOJ first announced its investigation, Van Valkenburg told Fox News that it was an election-year ploy by the Obama administration to look good on women's issues. That claim seemed dubious, given that Van Valkenburg was a fellow Democrat who had supported the president's 2008 campaign. But it was ostensibly why his office refused to cooperate, even though it also hadn't done anything wrong.

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Then Van Valkenburg realized the DOJ had no authority to investigate him anyway. And also, even though the county attorney's office isn't doing anything wrong, suing the DOJ would be cheaper than doing what the DOJ considers right.

I am reminded of the rabbinical story of the cracked plate. A woman loans a serving plate to her neighbor, who returns it with an enormous crack. When the woman complains, the neighbor says, "I never borrowed your plate—and besides, it was cracked when you gave it to me."

Van Valkenburg is handing Missoula a cracked plate. He can oppose the DOJ's investigation of his office because he's done nothing wrong, or because it's politically motivated, or because it's unconstitutional, or because suing the feds will save money, but it can't be all four. Some of those reasons are simply not compatible with others.

If the DOJ won't find anything when it investigates Van Valkenburg's office, why should he sue to stop them? If the DOJ has no authority to investigate a county prosecutor, why would the Obama administration try to score political points by doing so? If Missoula County is handling sexual assaults well, why is it cheaper to sue the federal government than to implement its standards?

Any one of these arguments might be convincing on its own. Taken together, they sound like the full-court press of a man who is playing out the clock.

Van Valkenburg is retiring at the end of this year. He has reached the end of a long career as a widely respected prosecutor. His is an experienced and savvy legal mind, and if he says the DOJ has no right to investigate how his office does business, there is reason to believe he is right.

But there is also reason to believe that, at least in the area of sexual assaults, the county attorney's office has been doing business wrong. The results of the DOJ's investigation of UM and the MPD suggest it. Cotter's recommendations suggest it, as does the observation that it would be cheaper to sue than to implement them.

The sheer number of Van Valkenburg's principled objections suggests it most of all. He's done nothing wrong, and the investigation is illegal, and we should cut our losses before it goes to court. It's a medley of dissonant reasons, but they keep striking one note: slow down.

Pursuing a declaratory judgment in federal court could take months, and even if Missoula County won, the DOJ might appeal. Forcing Cotter to sue to continue his investigation would eat up even more time. Already, Van Valkenburg's intransigence has kept the inquiry into his office a controversy after the UM and MPD investigations have ended.

Our county attorney appears to be playing for time, and we should not front him the money to do it. He will be out of the game before we will.

Dan Brooks writes about politics, culture and lying at His column appears every other week in the Independent.


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