Doubtful Progress on Professional Responsibility at DOJ

by James Scanlan, J.D.

When the Department of Justice had to have the conviction of the late Senator Ted Stevens overturned, Attorney General Eric H. Holder, Jr. spoke as if he intended to make prosecutorial integrity a Department priority and immediately appointed new heads of the Office of Professional Responsibility (OPR) and the Public Integrity Section of the Criminal Division. But there yet is little evidence that the Department actually understands the basic obligations of a prosecutorial authority and some evidence that it does not.

My July 11, 2010 editorial here regarding US Attorney nominee Robert E. O’Neill touched upon a particularly egregious prosecutorial abuse in United States v. Dean. The matter is discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page and Section B of the Robert E. O’Neill profile and Sections A and E and Addendums 3 and 4 of a similar profile on Bruce C. Swartz . O’Neill and Swartz pressured a government agent into giving misleading testimony in order that O’Neill could lead the jury falsely to believe that the defendant lied about a conversation with the agent. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. O’Neill’s repeated emphasis of the agent’s testimony in provocatively asserting that the defendant lied on the stand may have had a substantial impact on the outcome of the trial.

In a post-trial motion alleging pervasive prosecutorial abuse, the defendant maintained that the agent committed perjury and that prosecutors knew or should have known that he did. Swartz, who defended against the allegation, did not have the temerity to advance the literal truth rationale to the court, which almost overturned the verdict because of other identified prosecutor misconduct. Instead, Swartz sought to cover up his own and O’Neill’s actions by leading the court to believe that the testimonies were irreconcilable and that the agent told the truth while the defendant lied. As part of an aggressive strategy in this regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation. In seeking to prevent discovery into the matter, Swartz and those aiding him may have engaged in a conspiracy to obstruct of justice. In any case, several aspects of prosecutor conduct in the matter must be considered heinous.

Since at least 2001 Swartz has been a Deputy Assistant Attorney General in the Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. But when last year I brought to the Department’s attention that Swartz’s actions in the Dean case indicated that he was unfit to represent the United States, the Department refused even to consider whether my allegations were true, stating that is was OPR policy not to investigate matters that were or could have been raised in litigation.

More recently, Jay Macklin, General Counsel of the Executive Office for United States Attorneys, even relied on this policy as a basis for refusing to consider whether O’Neill’s June 2009 false statement on his US Attorney application (a subject of editorials here dated June 23, 2010, July 11, 2010, and August 17, 2010) should cause O’Neill to be removed from his current position as Chief of the Criminal Division of the US Attorney’s Office in the Middle District of Florida. Quite obviously, O’Neill’s false statement on his application is not a matter that was or could have been raised in litigation (save in a prosecution of O’Neill), as discussed in my August 18, 2010 letter to Macklin and Holder. So blatant a reliance on an inapplicable policy to ignore a false statement by a high-level prosecutor and US Attorney nominee may reveal much about the Department’s willingness to address disagreeable integrity issues arising within its ranks, as will a failure of the Department to advise the President to withdraw the O’Neill nomination.

My January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish addresses reasons that the stated OPR policy is misguided even as to matters that in fact were or could have been raised in litigation. The policy treats prosecutorial abuses as matters solely to be revealed by defense counsel and courts and ignores the Department’s own obligation to advise courts of prosecutorial abuses regardless of whether a defendant was able to effectively expose them. And, as illustrated with regard to Swartz and O’Neill, it ignores Department obligations to ensure the trustworthiness of persons who represent it internationally or domestically. In any event, continuation of the policy is inconsistent with a commitment to ensuring the integrity of federal prosecutions or the essential honesty of Department attorneys.

But there is another, somewhat ironical, indication of the Department’s failure to grasp certain fundamentals. In October 2009, Holder announced the creation of professional responsibility award, which will first be presented in October 2010. According special recognition to government attorneys for demonstrating professional responsibility – as if there existed levels at which government attorneys fulfill their ethical obligations – hardly suggests a refined understanding of the standards of conduct citizens have a right to expect from all government attorneys. Yet presumably some number of high-level Department officials agreed that the award would at least enhance the Department’s image if not actually improve ethical standards. Given that countless Department attorneys will appreciate the incongruity of what in effect is an award for being honest, there is some prospect that even within the Department the award will eventually be a subject of derision.

In any case, more useful than a dubious decoration for professional responsibility would be firm requirements as to the manner in which prosecutors respond to allegations of misconduct, including that they must provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. For purposes of illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations, the Department will find a useful case study in the actions of Bruce C. Swartz detailed in his profile page and the materials it references. The Department should also abrogate the OPR policy that causes conduct of O’Neill and Swartz in the Dean case still to go unexamined and otherwise make clear, not only that surviving court scrutiny of allegations of abuse will not end a matter, but that deceiving a court in responding to such allegations is itself a serious abuse if not also a crime.

See also discussion of Attorney General Janet Reno’s 1994 ethics initiative in Section B.8 of my Prosecutorial Misconduct page and the profile page on Jo Ann Harris, the person who first hired Bruce C. Swartz into the Criminal Division.