by James Scanlan, Esq.
Since at least 2001 Bruce C. Swartz has been the Deputy Assistant Attorney General in the Department of Justice’s Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. At least in this era, this is certainly one of the most important career positions in the Department and it is likely more important than many presidentially-appointed positions. A Google search for “bruce swartz deputy 2011” will give one a hint, though surely only a hint, of the scope of Swartz’s current involvement in crucial international issues, as will a like search with the word “wikileaks” added.
Among my Truth in Justice editorials regarding the nomination of Robert E. O’Neill for United States Attorney for the Middle District of Florida (June 26 , July 11, August 17, September 4, September 26, and October 3, 2010) the September 4 item (“Doubtful Progress on Professional Responsibility at DOJ”) gave special attention to Swartz, who, as Deputy Independent Counsel, supervised O’Neill’s prosecution of United States v. Dean and then responded to allegations of pervasive prosecutorial misconduct. The item discussed that during the trial Swartz and O’Neill pressured a government agent into giving misleading testimony in order to enable O’Neill to provocatively assert that the defendant had lied about a conversation with the agent, even though Swartz and O’Neill knew that the defendant’s testimony was true. 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. The item also discussed Swartz’s efforts to deceive the court in covering up these actions when the matter was raised in a post-trial motion. As part of an aggressive strategy in that regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation.
The agent was Supervisory Special Agent Alvin R. Cain, Jr., and actions of Swartz, O’Neill, and their colleagues regarding Agent Cain are discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page (PMP), Sections A and E and Addendums 3 and 4 of the Bruce C. Swartz profile, and Section B of the Robert E. O’Neill profile. Readers of those materials will conclude that, assuming my interpretation is essentially correct, Swartz’s actions certainly were heinous and probably were criminal as well. And I doubt that many will question my interpretation, which, it warrants note, was originally suggested to me by Associate Deputy Attorney General David Margolis – albeit, incongruously, as a reason for believing that the conduct of Swartz and O’Neill was not as egregious as I maintained. See Sections B.1 and B.8 of PMP and Section B.1 of my May 25, 1995 letter to Margolis.
The September 4 item also suggested that Swartz’s actions in generally defending against allegations of prosecutorial abuse could serve as a case study of impermissible evasions and deceptions that prosecutors employ to hide their misconduct. In Addendum 2 to a September 26 item (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”), I then noted that Addendum 7 had been added to the Swartz profile to further develop that point and suggest measures to ensure that prosecutors respond truthfully to misconduct allegations.
The September 4 item also discussed the Department of Justice’s recent refusal to consider whether Swartz’s actions concerning Agent Cain’s testimony and other aspects of the Dean prosecution called into question Swartz’s fitness to serve in his current position. The Department based its refusal on the grounds that it was Office of Professional Responsibility policy not to investigate matters that were or could have been addressed in litigation. It seems a fair assumption that the Department has failed even to ask Cain (or Swartz or O’Neill) whether the allegations concerning Cain’s testimony are true.
Nevertheless, the Department of Justice, by putting Swartz forward to represent it in dealing with foreign nations, has impliedly assured those nations that it has no basis to question Swartz’s integrity. Such, at any rate, is what representatives of those nations have every reason to expect.
What then are representatives of those nations to think when they inquire into the background of the person with whom they are dealing on highly sensitive issues by a simple Internet search for, say, “bruce c. swartz” or “bruce swartz department of justice,” and they are taken immediately to one of the Truth in Justice editorials or one of the pages I maintain on Swartz’s conduct (as recently happened to representatives of Hungary and the European Union and as from time to time happens to representatives of varied foreign governments)? One thing that they might reasonably think is that they ought not to regard Swartz as a trustworthy person in their dealings with him. A more important thing that they might reasonably think is that they cannot trust the Department of Justice that has impliedly assured them that Swartz is a person of integrity. That failure of trust goes not merely to the Department’s word, but to the Department’s judgment, given that both the allegations against Swartz and the Department’s dubious justification for refusing to examine them are so readily available on the Internet.
This point holds even as to the Department’s implied assurances. But the matter will rise to another level if a foreign government confronts the Department with some perceived basis for distrusting Swartz and the Department is placed in the position of deciding whether it can affirmatively, and truthfully, vouch for Swartz’s integrity. That, I think, is something that it would be impossible for the Department to do without thoroughly investigating Swartz’s conduct in the Dean case, including what actions he may have taken to cover up that conduct in a District of Columbia Office of Bar Counsel investigation (which investigation is the same one that Robert E. O’Neill lied about in his United States Attorney application). See Section B.11a of PMP and Addendum 7 to the Swartz profile.
The Department of Justice’s approach to the allegations against Swartz, as with the refusal to allow Robert E. O’Neill’s false statement on his application or varied other indications of dishonesty to stand as an obstacle to his appointment, is presumably founded on the belief that too few people will ever know about the matter to cause the Department serious embarrassment. The belief was likely sounder prior to the advent of the Internet, but the belief still may be correct. Yet, even if the Department never experiences significant embarrassment from its failure to ensure the integrity of its officials, that will leave open the question of the extent to which perceptions arising from the Department’s failure compromise the interests of the United States or diminish the regard in which the nation’s officials and institutions are held by foreign governments.
My October 3 editorial, which addressed whether citizens of the United States can rely on assurances of the Department of Justice (or the Senate Judiciary Committee) as to the integrity of public officials given what we know about the confirmation of Robert E. O’Neill, was titled “Whom Can We Trust?” This item could have been titled “Whom Can They Trust?”