The Honorable Robert E. O’Neill Regrets That He is Unable to Answer Questions from the Audience

by James Scanlan, Esq.

In Truth in Justice editorials of June 23, July 11, August 17, and September 4, 2010, I have discussed Robert E. O’Neill, nominee for US Attorney for the Middle District of Florida. O’Neill is the prosecutor who lied on the US Attorney application he submitted to the Florida Federal Judicial Nominating Commission. In an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean, O’Neill attributed the initiation of the investigation to a complaint filed by the defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. Very likely, by making that false attribution before the Nominating Commission or at some other point in the vetting process O’Neill violated 18 U.S.C. § 1001. On September 23, 2010, despite having been repeatedly made aware of this and other matters calling O’Neill’s integrity into question, the Senate Judiciary Committee unanimously, and without discussion, favorably reported O’Neill’s nomination to the Senate floor. Typically this would mean that O’Neill shortly will be confirmed by the entire Senate – perhaps again unanimously.

This will by no means be a good thing for the country or the Middle District of Florida, and some fine and principled people in the US Attorney’s office are greatly distressed at the prospect of serving under a US Attorney of such doubtful character. But it is an ill wind that blows no one any good. Since 2008, I have devoted considerable effort to publicizing what I maintain is unconscionable conduct of O’Neill and other prosecutors in the Dean case (including Bruce C. Swartz, a principal subject of the September 4 editorial) and the Department of Justice’s manner of addressing (or involvement with) that conduct. Though I wrote letters to the Nominating Commission opposing O’Neill’s candidacy, as regards my efforts to secure widespread attention to O’Neill’s conduct, the President did me a great service by nominating O’Neill. O’Neill himself, by lying on his application, did me a similar service. Prior to the nomination, a Google search for “’Robert E. O’Neill’” did not yield the on-line profile I maintain on him until after the 40th result. For some time now, however, it has been the first result and hence, along with my editorials here and Paul Mirengoff’s on powerlineblog.com, is among the public’s readiest sources of information on O’Neill’s character and background.

My editorials and the materials discussed in Addendum 7 to the O’Neill profile hardly reflect a half-hearted effort to prevent O’Neill’s confirmation. But I have to recognize that O’Neill’s prominence as US Attorney for the next two or six years will substantially increase my ability to publicize in various mediums my vision of O’Neill’s character and conduct. And, of course, if this appointment should prove to be a stepping-stone to higher position such as US Senator or Florida Governor – both real possibilities – prospects for securing attention to that vision will be further enhanced.

Moreover, while O’Neill’s appointment will be saddening enough to people who like to believe in the processes of government, aspects of those processes have made O’Neill’s story more interesting and their exposure will serve the public interest. Section B.8 of the main Prosecutorial Misconduct page of jpscanlan.com presents an unflattering picture of the Department of Justice, whose handling of allegations against O’Neill when first brought to its attention in December 1994 may well have been influenced by the fact that O’Neill was in large part carrying out a scheme of deceit initially undertaken by the person who in December 1994 was Assistant Attorney General for the Criminal Division.

As discussed in the September 4 editorial, the Department’s recent actions regarding O’Neill – including the refusal by Jay Macklin, General Counsel for the Executive Office for United States Attorneys, to consider the allegation that O’Neill lied on his Nominating Commission application and during the vetting process because of the transparently inapplicable policy of not investigating matters that could have been raised in litigation – further illustrate the lengths to which the Department will go to avoid addressing disagreeable ethical issues concerning its high officials. One wonders whether Macklin, who will supervise O’Neill as US Attorney, will similarly disregard the evidence of O’Neill’s untrustworthiness when judging O’Neill’s candor in their official interactions.

In the Senate Judiciary Committee, while there was no specific discussion of allegations against O’Neill, in evident allusion thereto both Chairman Patrick J. Leahy and ranking Republican Jeff Sessions briefly mentioned that allegations against a US Attorney or Marshal nominee are carefully considered. In doing so, Leahy cited as an example an allegation that a nominee was involved in a bank robbery. Thus, rather in the manner in which O’Neill minimized the DC Bar Counsel investigation by falsely attributing it to a complaint filed by a convicted defendant, Leahy presumably chose that unlikely example because he believed it would raise fewer concerns than mention of allegations that the nominee – to take as examples just two matters that are in no way open to question – lied on his application or had been the subject of severe criticism by two courts. For his part, Sessions explained that the Committee made sure that “no serious meritorious complaints had been made.” It is hard to know whether Sessions meant that allegations to which he alluded were not meritorious or not serious. But neither meaning could withstand the light of day with regard either to the matters just mentioned or the more serious matters described in my letter to the Committee of June 16, 2010. At any rate, it is fitting enough that in approving the nomination for US Attorney of an individual known to have lied on his application, so eminent a body as the Senate Judiciary Committee would itself act disingenuously and do so in an uncommon exhibition of bipartisanship.

Assuming he is confirmed, O’Neill’s tenure ought to be an interesting one. For even had O’Neill never otherwise done anything unethical, the incongruity of there being a high law enforcement official who is known to have lied on his application is manifest. The July 11 editorial treats the false statement in the context of O’Neill’s tactic of calling defendants and witnesses liars and his even causing a government agent to give misleading testimony in order that O’Neill could lead a jury falsely to believe that a defendant lied about an interaction with the agent (see Addendum 1 below). The July 11 item highlights O’Neill’s “a liar is a liar” remark in US v. Spellissy, by which he meant that someone who lies about one thing cannot be trusted as to anything else. The quoted phrase implicates an additional irony. For those five words have been previously used in an observation by Tennessee Williams, to wit: “The only thing worse than a liar is a liar that’s also a hypocrite.”

There are enough people in the Middle District of Florida who do not like O’Neill for good or bad reasons that one day that editorial may be distributed at the venue of an O’Neill speech. Or at least someone in the audience is going to ask: “Is it true that you lied on your US Attorney application?” O’Neill may find it sensible to avoid such circumstances.

Addendum 1: I have lately given great attention to the false statement on O’Neill’s application because of the simplicity of the matter and because it cannot be disputed. But I do not want readers to lose sight of larger issues, such as O’Neill’s conduct regarding Supervisory Special Agent Alvin R. Cain, Jr., alluded to above and addressed in the September 4 editorial and varied other places. For there is conduct like lying on an application that ought to disqualify an individual from a high law enforcement position and there is conduct that takes one's breath away. Put another way, there are hypocrites and there are monsters.

Addendum 2: In the September 4 editorial, I suggested that the actions of Bruce C. Swartz (currently Deputy Assistant Attorney General in the Criminal Division in charge of international issues) in responding to allegations of prosecutorial abuse in the Dean case could serve as a case study of impermissible evasions and deceptions by prosecutors accused of misconduct. In Addendum 7 to the Bruce C. Swartz profile I have elaborated further on that proposition while suggesting ways to ensure that responses to misconduct allegations are truthful. In doing so, I point out an instance of a representation made on behalf of Swartz and O’Neill in defending themselves in the DC Bar Counsel investigation. Suffice it that it is a representation that no rational person would believe. Perhaps it will eventually be possible to present the full scope of the efforts to deceive Bar Counsel in the investigation that O’Neill falsely attributed to a complaint filed by the defendant.