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Profile: Arnold Burns
Arnold Burns was a participant or observer in the following events:
Associate Deputy Attorney General Stanley Morris writes to James Rogers, an attorney acting for Inslaw, and admits that the company owns privately funded improvements to the PROMIS software. Morris first points out that part of the software was financed by the government: “We agree that the original PROMIS, as defined in your letter of May 26, 1982 (see May 26, 1982), is in the public domain. We also agree that the printed inquiry enhancement is in the public domain.” This means that Inslaw could never charge the department for the use of software comprising only the original application and the printed inquiry enhancement (although it could of course charge for installation and maintenance). However, Morris adds, “To the extent that any other enhancements to the system were privately funded by Inslaw and not specified to be delivered to the Department of Justice under any contract or other arrangement, Inslaw may assert whatever proprietary rights it may have.” This means the department agrees that Inslaw can sell a version of the software with privately-funded enhancements. [US Congress, 9/10/1992] This statement is made in response to a letter sent by lawyers acting for Inslaw founder William Hamilton, informing the department that Inslaw intends to become a private company, and asking it to waive any proprietary rights it might claim to the enhanced version. Clarification will be provided in a 1988 deposition in which Deputy Attorney General Arnold Burns will say, “Our lawyers were satisfied that Inslaw’s lawyers could sustain the claim in court, that we had waived those [proprietary] rights.” [Wired News, 3/1993]
Deputy Attorney General Arnold Burns is told that the Justice Department has waived its rights to enhanced PROMIS software (see August 11, 1982). Following a letter asking about the Inslaw case from Senator Charles Mathias (see July 9, 1986), Burns asks subordinates about the litigation with Inslaw and is told the company wants the department to pay royalties. Burns then suggests that the issue should be turned around and that a claim against Inslaw should be made for it to pay royalties to the government, which funded the development of the first version of PROMIS (see Mid-1970s). However, further research comes up with a result shocking to Burns, who will say in 1988, “The answer that I got, which I wasn’t terribly happy with but which I accepted, was that there had been a series of old correspondence and back and forthing [sic] and stuff, that in all of that, our lawyers were satisfied that Inslaw could sustain the claim in court, that we had waived those rights, not that I was wrong that we didn’t have them but that somebody in the Department of Justice, in a letter or letters, as I say in this back and forthing [sic], had, in effect, waived those rights.” The House Judiciary Committee will later comment, “Considering that the deputy attorney general was aware of Inslaw’s proprietary rights, the department’s pursuit of litigation can only be understood as a war of attrition between the department’s massive, tax-supported resources and Inslaw’s desperate financial condition, with shrinking (courtesy of the department) income.” The committee will add, “In light of Mr. Burns’ revelation, it is important to note that committee investigators found no surviving documentation (from that time frame) which reveal the department’s awareness of the relative legal positions of the department and Inslaw, on Inslaw’s claims to proprietary enhancements referred to by Mr. Burns.” [US Congress, 9/10/1992]
Richard Willard, assistant attorney general of the civil division, writes a memo to Deputy Attorney General Arnold Burns about the Inslaw affair. According to Willard, George Bason, the bankruptcy court judge dealing with the Justice Department’s alleged theft of enhanced PROMIS software, should be taken off the case. Willard writes that Bason’s conduct is “so extraordinary that it warranted reassignment to another judge.” The House Judiciary Committee will comment that department officials are “concerned” about Bason’s handling of the case “very early in the litigation,” and that they think Bason tends to believe statements made by Inslaw. The committee will add: “The department believed that Judge Bason disregarded the sworn statements of department witnesses. The department also believed that Judge Bason made lengthy observations regarding the credibility of its witnesses and that Judge Bason’s uniformly negative conclusions were based on inferences not supported by the record.” Therefore, by the summer of 1987, the department is “actively seeking ways to remove Judge Bason from the case.” Bason will rule in favor of Inslaw in the autumn (see September 28, 1987). [US Congress, 9/10/1992]
Deputy Attorney General Arnold Burns asks his subordinates at the Justice Department’s civil division to “consider initiatives for achieving a more favorable disposition of this matter [a legal dispute between the department and Inslaw over PROMIS software].” This is apparently a reference to the possible removal of Judge George Bason from the case, as the department thinks he is biased against it (see June 19, 1987). In response to the comments, the department will draft a report about removing Bason (see After July 7, 1987). [US Congress, 9/10/1992]
Assistant Attorney General Richard Willard reports to Deputy Attorney General Arnold Burns about the Inslaw case. Willard says that the Justice Department has developed a good trial record, but: “[T]here is virtually no reason for optimism about the judge’s ruling. Even though our witnesses performed admirably and we believe we clearly have the better case, Judge Bason made it apparent in a number of ways that he is not favorably disposed to our position.” The department has been trying to have Bason removed from the case for some time (see June 19, 1987) and he will soon rule in favor of Inslaw (see September 28, 1987). [US Congress, 9/10/1992]
The Office of Professional Responsibility (OPR), an oversight component at the Justice Department, begins an investigation into allegations made by the software company Inslaw against some Justice Department staff. The OPR had conducted a preliminary investigation the previous year (see 1986), concluding the officials were not biased against the company. However, after a bankruptcy court finds serious wrongdoing by departmental officials (see September 28, 1987), Deputy Attorney General Arnold Burns asks for “a complete and thorough investigation into the allegation of bias and misconduct by various Justice Department officials against Inslaw.” The full investigation will again conclude that the officials were not biased against Inslaw (see March 31, 1989). [US Congress, 9/10/1992]
The Public Integrity Section (PIS), a Justice Department oversight component, decides not to open a preliminary investigation of the Inslaw affair over the department’s alleged misappropriation of PROMIS software (see February 1988). The decision is communicated in a memo drafted by William F. Weld, the assistant attorney general for the department’s criminal division, of which the PIS is a part. The PIS finds that at least some of the people Inslaw complains about, including Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, and Deputy Attorney General Arnold Burns, are appropriate targets of an investigation and that Inslaw is generally a credible source for allegations. However, according to Weld, the information Inslaw provides is not specific enough to constitute grounds to begin a preliminary investigation of the need for an independent counsel. This is because the PIS regards the facts Inslaw presented as unsupported speculation that the officials were involved in a scheme to get the enhanced PROMIS software. Therefore, the review should be closed “due to lack of evidence of criminality.” The House Judiciary Committee will be critical of the PIS’s finding, calling its investigation “shallow and incomplete,” and saying the department appeared to be “more interested in constructing legal defenses for its managerial actions rather than investigating claims of wrongdoing which, if proved, could undermine or weaken its litigating posture.” [US Congress, 9/10/1992]
The Office of Professional Responsibility (OPR), an oversight unit at the Justice Department, issues a report on the Inslaw affair over the department’s alleged theft of enhanced PROMIS software. The report finds that allegations of bias made by Inslaw and seconded by a bankruptcy court (see September 28, 1987) against departmental officials are unsupported. Inslaw had questioned the performance of former Attorney General Edwin Meese, former Deputy Attorney General Lowell Jensen, former Deputy Attorney General Arnold Burns, and others. The OPR says that the court’s findings on misconduct by department officials are “clearly erroneous.” In addition, the report says: “There is no credible evidence that the department took or stole Inslaw’s enhanced PROMIS by trickery, fraud, and deceit. Additionally, we have found no credible evidence that there existed in the department a plot to move to convert Inslaw’s Chapter 11 bankruptcy to one under Chapter 7 of the bankruptcy code.” The House Judiciary Committee will be extremely critical of this investigation, commenting, “During its investigation OPR chose to ignore the court’s findings and conclusions that there was bias against Inslaw at the department.” In addition, the committee will say that the OPR looked at the bias allegations in isolation and “incredibly” did not examine the merits of the contract dispute, meaning its conclusions on the taking of PROMIS and the type of bankruptcy were “gratuitous,” especially as Burns had told it the department agreed Inslaw owned the enhancements it made to PROMIS (see August 11, 1982). The committee will also point out that the OPR’s deputy counsel, Richard M. Rogers, said he was recused from the investigation because of his association with Burns, although he was present when Meese provided a sworn statement. In this context, the committee will highlight problems found by the Government Accountability Office with OPR around this time (see February 7, 1992). [US Congress, 9/10/1992]
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