Saturday, June 04, 2011

Willful Ignorance at the Department of Justice, and Its Consequences

by James Scanlan, Esq.

In a September 4, 2010 Truth in Justice item styled “Doubtful Progress on Professional Responsibility at DOJ,” I questioned the judgment of the Department of Justice reflected in its recent creation of a professional responsibility award, noting that what was essentially an award for being honest could eventually be the subject of derision within the Department. A month later the Department presented the first Claudia J. Flynn Award for Professional Responsibility to retiring Criminal Division Deputy Assistant Attorney General John C. Keeney. In this instance, the award – which was described as recognizing “a Department attorney who has made significant contributions in the area of professional responsibility by successfully handling a sensitive and challenging professional responsibility issue in an exemplary fashion and/or leading efforts to ensure that Department attorneys carry out their duties in accordance with the rules of professional conduct” – appears to have been presented for providing guidance on professional responsibility issues rather than demonstrating professional responsibility. The presentation to Keeney thus doe not implicate the concern I raised about an award for honesty. But the award and its presentation to Keeney raised a number of other issues.

The September 4 item had also criticized the Department of Justice policy of refusing to investigate allegations of misconduct that were or could have been addressed in litigation, which the Department asserted as its reason for failing to consider whether the conduct of Bruce C. Swartz as Deputy Independent Counsel in United States v. Deborah Gore Dean indicated that he was unfit to serve in his current position as Deputy Assistant Attorney General in the Criminal Division. The policy treats prosecutorial abuse as something solely to be revealed by defendants in the courts and ignores the Department’s own obligation to expose such abuse regardless of whether a defendant is able effectively to do so. Reliance on the policy to refuse to examine Swartz’s conduct in the Dean case highlights one of the policy’s serious shortcomings since the issues I raised about Swartz principally involve his deceiving the courts in covering up prosecutorial abuses. The policy thus rewards efforts to deceive courts as long as they are successful. In any case, whatever the supposed interests underlying the policy, it certainly makes no sense to rely on it to refuse to determine whether persons are fit to hold high positions in the Department. See the Truth in Justice items of February 6, 2011 (“Bruce Swartz – Our Man Abroad”) and March 10, 2011 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) regarding Swartz’s responsibilities in representing the Department of Justice before foreign nations.

The Department also relied on the policy as a basis for refusing to investigate whether Robert E. O'Neill, then nominee for United States Attorney for the Middle District of Florida, had lied on his application for the position. In an evident attempt to minimize a District of Columbia Bar Counsel investigation of his conduct in the Dean case O’Neill stated that the investigation was initiated by the convicted defendant; in fact it was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. The Department purported to rely on the policy even though the false statement quite obviously was not something that was or could have been addressed in litigation. The purported reliance on a patently inapplicable policy to avoid examining dishonest or criminal conduct of its high officials is among the clearest evidence that the Department cannot be trusted either to ensure the integrity of its officials or to deal straightforwardly with the public. See the Truth in Justice items of October 3, 2011 (“Whom Can We Trust?”) regarding the confirming of O’Neill as United States Attorney notwithstanding the false statement on his application and February 19, 2011 (“Robert E. O’Neill and 18 U.S.C. § 1001”) regarding the likelihood that the false statement on the application or a like false statement during the nomination/confirmation process violated federal law.

The September 4, 2010 item mentioned at the outset had focused on a particularly egregious prosecutorial abuse by Swartz and O’Neill in the Dean case. As discussed more fully in Section B.1 of the main Prosecutorial Misconduct page on, Swartz and lead trial counsel O’Neill pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would seem to directly contradict defendant Deborah Gore Dean’s testimony about a call she made to Agent Cain in April 1989. O’Neill then relied heavily on Agent Cain’s testimony to provocatively assert in closing argument that Dean lied on the witness stand. Agent Cain had evidently been persuaded that his seeming categorical denial of any recollection of the call from Dean would be literally true because it technically applied to a different date from that given by Dean.

In a post-trial motion alleging pervasive prosecutorial abuse, Dean maintained that Agent Cain committed perjury and that prosecutors knew or should have known that he did. At that point, the only appropriate course for Swartz, who defended against the allegation, would have been to advise the court of the literal truth rationale underlying Agent Cain’s testimony. Had Swartz done so, however, there was good chance that the court (which almost overturned the verdict for other identified abuses) would have dismissed the indictment and recommended that Swartz and O’Neill be sanctioned or prosecuted for suborning perjury.

So Swartz instead sought to cover up what he and O’Neill had done by leading the court to believe that the testimonies were irreconcilable and that Agent Cain had told the truth while Dean had lied. As part of an aggressive strategy in this regard, Independent Counsel attorneys even tried to have Dean’s sentence increased by six months for lying about the call. In deceiving the court in an effort to prevent discovery into the matter Swartz and those assisting him likely engaged in a conspiracy to obstruct of justice. See Addendum 3 of the Bruce C. Swartz profile regarding some of Swartz’s more hypocritical behavior in deceiving the court on the matter.

As it happens, one of the persons aiding Swartz in covering up this matter was Claudia J. Flynn, the name source of the Department of Justice’s professional responsibility award. Flynn had been an AUSA in the United States Attorney’s office in the New Jersey since 1984 and served as the Deputy Chief of the office’s Criminal Division before joining the Office of Independent Counsel in 1992. At a February 22, 1994 hearing where Swartz resisted discovery concerning Agent Cain’s testimony, Flynn appeared for the purpose of arguing sentencing issues, including that involving the probation officer’s recommendation that Dean’s sentence be increased for lying about the call to Agent Cain.

It would turn out that Flynn did not have the opportunity to address the matter. The court refused even to hear argument, indicating that it believed that Dean had probably told the truth. But inasmuch as the effort to show that Dean lied about the call to Agent Cain was an integral part of the scheme to keep the court from finding out the truth about Agent Cain’s testimony, if the scheme constituted a conspiracy to obstruct justice, Flynn was party to it. Whether or not a crime was committed, however, Swartz and Flynn had engaged in prosecutorial abuse of sufficient gravity that they ought not to have thereafter held positions in the Department of Justice.

Later in 1994 Flynn returned to the New Jersey United States Attorney’s office to become Chief of the office’s Criminal Division. Then in February 1997 (possibly with the support of her former supervisor Swartz who had since become a Special Assistant in Main Justice’s Criminal Division) Flynn was appointed Chief of Staff to Criminal Division Acting Assistant Attorney General John C. Keeney.

On learning that Flynn was Keeney’s Chief of Staff, I wrote to Flynn, by letters of June 10, 1997, July 6, 1997, and August 18, 1997, concerning implications of her role in covering up Independent Counsel conduct regarding Agent Cain and seeking information on her tenure with the Office of Independent Counsel and Department of Justice. Receiving no reply from Flynn, by letter of October 6, 1997, I wrote to Keeney, detailing the events concerning Agent Cain and Flynn’s involvement with the matter, and advising Keeney of his obligations, not only to see that Flynn was removed from her current position, but to bring to the attention of appropriate authorities evidence that Flynn was involved in a conspiracy to obstruct justice. By letter to Keeney of December 5, 1997, I also sought information on Flynn’s tenure with the Criminal Division.

Keeney did not respond to either of these letters. And, though I continued to mention Flynn in correspondence to other Department officials concerning Independent Counsel conduct in the Dean case, the Department never mentioned Flynn in its correspondence back to me.

I assume that the Department failed to seriously consider whether Flynn’s involvement in the Agent Cain matter indicated either that she ought not to hold a high position in the Department of Justice or warranted her prosecution. Possibly such failure rested in the policy of refusing to consider matters that were or could have been addressed in litigation. And possibly Keeney and others in the Department simply ignored the allegations.

In any case, my raising these issues appeared to have no effect on Flynn’s career at the Department and in no manner to influence consideration of her suitability for particular assignments. For in 2000 then Deputy Attorney General Eric H. Holder, Jr. appointed Flynn as the first permanent director of the Professional Responsibility Advisory Office. Flynn held that position until retiring shortly before passing away in 2006.

After being forced to have the conviction of the late Senator Ted Stevens overturned because of prosecutorial abuses in the Criminal Division’s Public Integrity Section, and recognizing that the Department must give greater attention to ensuring the integrity of its prosecutions, in October 2009, the Department created the Claudia J. Flynn Award for Professional Responsibility ostensibly as part of the effort to further that goal. I raised with the Department the appropriateness of the Flynn award in the same November 2, 2009 letter to Attorney General Holder by which I most recently sought the removal of Swartz (by reference to a then password protected page that addressed the matter in detail). The Department’s response of December 28, 2009, made no reference to the matter. But, according to the Department’s lights, the rationale proffered for refusing to investigate the issues I raised regarding Swartz would apply as well to the issues I raised about the Flynn award. The shortcomings of such policy that are so evident in the refusal to consider the issues as they bear on Swartz’s suitability to serve in his current position are equally evident in the refusal to consider the issues as they bear on the appropriateness of naming a professional responsibility award after Flynn. For, though her role was limited, Flynn was not merely involved in serious prosecutorial misconduct, but was involved in such conduct in a case that epitomizes a prosecutorial philosophy in which the truth is irrelevant. See generally the Prosecutorial Misconduct and Misconduct Profiles pages of

Failing to consider these issues, however, the Department went on to present the award in October 2010. And it chose to name as the first recipient Deputy Assistant Attorney General Keeney, one of the principal Department officials who could have prevented the situation where the Department has a professional responsibility award named after an attorney who is known to have been a party to prosecutorial abuse, as well as the situation where individuals known to have been deeply enmeshed in pervasive abuses now hold one of the most important positions in the Criminal Division and one of the most important United States Attorney posts. See my letters to Keeney of November 30, 1995, and March 11, 1996, regarding Swartz and O’Neill.

The Stevens affair highlighted serious prosecutorial ethics problems in the Department. There is reason to believe that such problems are longstanding. Notably, most of the offending attorneys in the Dean case were experienced federal prosecutors, as Bruce C. Swartz would himself point out in maintaining that Independent Counsel attorneys had done nothing improper whatever. Long-time federal prosecutor Jo Ann Harris, lead trial counsel at the time an indictment was drafted containing various statements or inferences contradicted by materials in Independent Counsel files and the decision was made to ignore the district court’s instructions regarding the production of exculpatory material, had gone on to be the Assistant Attorney General for the Criminal Division by the time Swartz and Flynn appeared at the February 22, 1994 hearing. Later that year Harris would be appointed to Attorney General Janet Reno’s Advisory Board on Professional Responsibility, part of a Reno initiative to address prosecutorial abuse that, so far as one can tell, accomplished nothing of note. See the Jo Ann Harris profile and the March 2, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris.”

Further, it was Associate Deputy Attorney General David Margolis who, during the week of December 12, 1994, first suggested to me that Agent Cain’s testimony may have been elicited on the basis that even though Dean’s testimony that Agent Cain seemed to contradict was true, Agent Cain’s testimony was also literally true. That Agent Cain’s testimony was elicited on such basis necessarily meant both that Independent Counsel attorneys had calculatedly undertaken to deceive the jury in order to lead the jury falsely to believe that the defendant committed perjury and that Swartz and those assisting him had deceived the court in covering up the truth about the nature of Cain’s testimony. But Margolis raised the point apparently as a basis for believing that Independent Counsel conduct was not as egregious as I maintained. Margolis has for quite some time been regarded as the conscience of the Department of Justice and, along with Keeney, has greatly influenced the Department’s policies on a variety of prosecutorial ethics issues. But it is a flawed ethos that fails to consider it a grave abuse for government attorneys, by whatever means, to lead courts and juries to believe things those attorneys know to be false.

An award for professional responsibility, whether for demonstrating it or for providing guidance on it, is probably not a good idea in any event. So it is hard to say that presenting it to someone other than Keeney would have done more toward addressing the Department’s prosecutorial ethics problems. But presenting the award to Keeney does seem more of a tribute to a regime that created the problems than a step toward solving them. The same may be said of presenting the award to Margolis, which, left to its own thinking, the Department is certain to do within the
next few years.

I am not sure what to say of the Department’s one day presenting the award to Swartz. But given the Department’s policy of willful ignorance as to matters that supposedly were or could have been raised in litigation, that would hardly come as a surprise.

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