The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

by James Scanlan

In a June 23, 2010 editorial here on the nomination of Robert E. O’Neill for the position of US Attorney for the Middle District of Florida, among other things suggesting O’Neill’s unsuitability for the position, I pointed out that O’Neill made a false statement in an application for the position that he submitted to the Florida Federal Judicial Nominating Commission. In the application, O’Neill attributed the initiation of a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean to a complaint filed by the defendant. In fact, the investigation was not initiated by Dean or anyone associated with her. I also explained that if O’Neill made the same misrepresentation to a federal entity he likely violated 18 U.S.C. § 1001.

Concern about DC Bar confidentiality rules caused me not to reveal the initiator of the investigation in the earlier editorial. But those rules could not be intended to keep the public from knowing that a nominee for one of the most important law enforcement positions in the country made a false statement in the course of seeking the position, particularly when the nominee may have violated federal law. As reflected in a July 9 letter to Attorney General Eric Holder, the investigation was initiated by the Office of Bar Counsel itself as a result of reading a court of appeals opinion criticizing the conduct of O’Neill and his colleagues in the prosecution of the Dean case. The inference is inescapable that O’Neill misrepresented the origin of the investigation because he believed an investigation initiated by a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission or other readers of his application than an investigation initiated by Bar Counsel itself, especially one prompted by a court’s criticism of O’Neill’s conduct. One would think that such a misrepresentation would disqualify the maker from further consideration for any law enforcement position.

The July 9 letter encourages the Attorney General to advise the President to withdraw the O’Neill nomination. If that does not happen, and if the Judiciary Committee should confirm O’Neill, his tenure will be remarkable for nothing if not irony. For O’Neill has achieved some of his notable successes by provocatively asserting that other people lied. Materials on the Dean case made available under the ’Must’ Reading (and Viewing)” portion of this site give great attention to O’Neill’s 50 or so provocative assertions that Dean lied on the stand, often if not invariably in circumstances where he believed or knew for a fact that Dean had not lied. Section B.1 of the Prosecutorial Misconduct page of jpscanlan.com and Section B of the Robert E. O’ Neill Profile address the way O’Neill and a colleague apparently pressured a government agent into providing testimony that would seem to categorically contradict Dean’s testimony about an interaction with the agent in order that O’Neill could stridently assert that the agent’s testimony showed that Dean lied about the interaction (when O’Neill knew with absolute certainty that Dean had not lied about the interaction). See Section E.2 of the O’Neill profile for other examples of O’Neill’s tactics to facilitate his asserting the Dean lied.

In United States v. Spellissy – a case, like Dean, that O’Neill cites in his application as one of his most important – much of the government’s proof rested on O’Neill’s impeachment of his own witness in these provocative terms:

A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you can not trust that person. And for [the witness] to have said what he said in this courtroom, he must have lied repeatedly before the other judge. Or as I said before, he told lies here and told the truth before others.

Only O’Neill knows how often this tactic played a important role in cases that never attracted attention. But regardless of O’Neill’s own practice of calling people liars, in light of the false statement in his US Attorney application, an O’Neill confirmation will diminish the faith of the public in prosecutors generally and the faith of prosecutors in each other. But maybe that would be a good thing. As one observer recently noted:

There is a bond among prosecutors, as there is in most organizations. If a prosecutor makes a statement, there is a consensus among other prosecutors that the statement is correct. For many years, I shared that perspective. I no longer do. Now, I am more apt to question my colleagues when they embark on dubious courses of action. I do not take what a colleague says at face value simply because he or she is a federal prosecutor.

These seemingly philosophical remarks may be found at page 39 of O’Neill’s Florida Nominating Commission application, where he disparages allegations against him by a former subordinate four pages before falsely attributing the DC Bar Counsel investigation of his conduct in the Dean case to a complaint filed by the defendant.