by James Scanlan, Esq.
On July 27, 2011, Bruce C. Swartz, the Department of Justice’s Criminal Division Deputy Assistant Attorney General responsible for international affairs, testified before the Senate Judiciary Committee in support the Consular Notification Compliance Act of 2011. The act provides for review of federal and state cases where a foreign national was sentenced to death without having been provided the treaty-guaranteed opportunity to contact a representative from his nation’s consulate. Supporters maintain that the act is important to ensuring that United States citizens arrested abroad are afforded an opportunity to contact the American consulate. Swartz also maintained to the Committee that the act is important to ensuring foreign cooperation in transnational criminal justice and anti-terrorism matters. Keynotes to Swartz’s written and oral testimony were reciprocity and trust.
Swartz has been featured in a number of my Truth in Justice items over the last year. See, e.g., items of September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”), February 6, 2011 (“Bruce Swartz - Our Man Abroad”) , March 10, 2011 (“Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”), and June 4, 2011 (“Willful Ignorance at the Department of Justice, and its Consequences”). These items discuss, inter alia, the Department of Justice’s implied assurance to foreign nations before whom Swartz represents the Department that Swartz is a person of integrity – an assurance that the Department would have great difficulty justifying.
Swartz has also been discussed in a number of very recent Truth in Justice items. The June 29, 2010 item styled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.),” which is the first of a series on deceitful tactics employed by Robert E. O’Neill in the prosecution of United States v. Dean, discusses the need to recognize that Swartz’s perverse brilliance likely had an important role in the particular subject of the item. That point will apply as well to matters addressed in forthcoming parts of that series. The July 26, 2011 item on the mistrial in the Roger Clemens case (“Will the Truth (About the Prosecutors) Come out in the Clemens Case?”) discusses, in the context of anticipating the prosecutors’ impending opposition to the defense motion to preclude a second trial, that Swartz’s post-trial conduct in the Dean case provides a useful case study of impermissible deceptions and evasions of government lawyers in responding to allegations of prosecutorial abuse.
The items mentioned above, which address Swartz’s involvement in pervasive prosecutorial abuses in the Dean case and his efforts to deceive the courts in covering up that conduct, suggest that Swartz is a manifestly unsuitable person to represent the Department of Justice concerning matters were trust is at issue. Nevertheless, even as representatives of foreign nations read these items or the Bruce C. Swartz profile and come away with disturbing pictures of Swartz’s character, Swartz continues to be the key Department of Justice official addressing international issues and interacting with foreign nations.
For example, in addition to the recent Senate Judiciary Committee testimony, in mid-May 2011 Swartz accompanied Assistant Secretary of State for International Narcotics and Law Enforcement Affairs William R. Brownfield, and Criminal Division Assistant Attorney General Lanny Breuer on trips to Portugal, Ghana, and Liberia to address transnational crime issues. On June 2, 2011, Swartz represented the Department of Justice in a meeting with the Home Secretary of Bangladesh to discuss matters related to the Mutual Legal Assistance Act, the Anti Money Laundering Act, and the Anti Human Trafficking Act. On June 6-7, 2011, Swartz represented the Department at a meeting of the Anti-Corruption Sub-Group of the Civil Society Working Group (CSWG) of the U.S.-Russia Bilateral Presidential Commission. Swartz, who is one of the U.S. Co-Chairs of the Anti-Corruption Sub-Group, appeared on a panel reporting on American and Russian experiences and ideas for future cooperation.
But when I discuss the prodigious incongruity of the Department of Justice’s putting Swartz forward to represent it in dealing with foreign nations, even no doubt with respect to assuring foreign nations that their citizens will receive a fair trial in the United States, it should be recognized that very few people in the Department know that Swartz can be fairly seen as epitomizing prosecutorial abuse. I doubt, for example, that Assistant Attorney General Breuer, Swartz’s immediate superior, knows anything of substance about Swartz’s conduct in United States v. Dean, much less the extent to which such conduct has been publicized. Similarly, Jeffrey M. Olson, a Department of Justice official accompanying Swartz to the meeting with the Bangladeshi Home Secretary, probably has no reason to suspect that Swartz is anything other than a person of the great integrity that one assumes the Department of Justice demands of a person representing it to foreign nations.
The Russian Co-Chair of the Anti-Corruption Sub-Group of CSWG, Arkady Tonkoglas, Director, Department of International Cooperation, Ministry of Justice, probably knows more about matters calling Swartz’s integrity into question than Swartz’s Co-Chair from the United States Department of State, Elizabeth Verville, Deputy Assistant Secretary for Crime, Bureau of International Narcotics and Labor (though persons from the Department of State do review the Swartz profile from time to time). I suspect that at any meeting that includes Swartz and other representatives of the Department of Justice or other United States agencies as well as representatives of one or more foreign nations, the representatives of the foreign nations are more likely to be familiar with issues concerning Swartz’s integrity than the representatives from the United States. For the representative of the United States assume that they know all that it is necessary to know about Swartz, while representatives of foreign nations may prepare for a meeting with Swartz by researching him on the internet. And it is not possible to conduct such research without being taken immediately to one of the referenced Truth in Justice items or the Swartz profile.
The lack of knowledge of Swartz’s conduct in the Dean case does not exonerate the Department. The Truth in Justice items referenced in the second paragraph discuss that the Department recently refused to determine whether Swartz’s conduct in the case indicates that he is unfit to represent the United States citing a policy that the Department will not investigate matters that were or could have been raised in litigation. It should be evident that, even if there might exist circumstances where the policy is a reasonable one, it provides an absurd basis for refusing to consider matters that bear on the fitness of a person to hold a high position in the Department. Thus, whether or not the Department relied on the policy in good faith, one can have little faith that the Department will take even the most minimal measures to ensure that persons who represent it at home or abroad are persons of integrity. See the October 3, 2010 Truth in Justice item styled “Whom Can We Trust?” regarding the Department’s purported reliance on the policy to refuse to consider whether Robert E. O'Neill lied in the course of seeking the position of United States Attorney for the Middle District of Florida.
The Department official most responsible for the situation, of course, is Swartz himself. Given the widespread availability of my accounts of his conduct in the Dean case, Swartz has a clear obligation to advise his superiors of the existence of such accounts, advising them as well, while subject to 18 U.S.C. § 1001, of whether the accounts are correct and of whether there also occurred serious abuses that I have overlooked. I doubt, however, that Swartz has fulfilled that obligation. More likely, as in the Dean case itself (see especially Section E of the Swartz profile and other places discussing Swartz’s covering up of what most would regard as the suborning of the perjury of Supervisory Special Agent Alvin R. Cain, Jr.), Swartz is subordinating the interests of the Department of Justice and the United States to his personal interests. But it is with regard to the failure to fulfill this obligation that conduct for which Swartz can be condemned is not something that happened a long time ago, but something that occurs on a continuing basis and that may compromise important national interests.
In any case, Swartz’s star continues to rise at the Department. The March 10, 2011 Truth in Justice item discussed whether Swartz’s actions were responsible for the refusal of Switzerland to extradite Roman Polanski (which, more important, also gave Switzerland reason to distrust the United States), and whether Swartz’s superiors may have demanded an explanation. But whatever the facts of that matter, neither it nor the increasingly widespread publication of accounts of Swartz’s conduct in the Dean case has done him apparent harm at the Department. According to this Washington Post item, on April 28, 2011, Swartz was one five officials from the Department of Justice or FBI receiving a Presidential Rank Award, the nation’s highest honor for federal civil servants. The award was accompanied by a bonus of 35% of salary.