by James Scanlan, Esq.
On April 4, 2013, Robert E. O’Neill announced that this summer he is leaving his post as U.S. Attorney for the Middle District of Florida to become a managing director with Freeh Group International Solutions, LLC, a global risk management firm founded by former FBI Director and former U.S. District Judge Louis J. Freeh. O’Neill was apparently hired by Freeh Group CEO James R. Bucknam, who has known O'Neill since the mid 1980s when both worked at the Manhattan District Attorney's office. A Tampa Bay Times article quotes Bucknam as observing that, among other qualities, O’Neill has “a keen sense of ethics.” A Tampa Bay Tribune article quotes Bucknam as noting that O’Neill is “extremely ethical.”
O’Neill’s ethics, and his reputation for ethics, would naturally be important to the Freeh Group. The firm, whose specialties include business ethics and compliance, as well as investigations and due diligence, and which was retained by Penn State’s Board of Trustee’s to investigate the University’s leadership’s handling of evidence of child abuse by former football coach Jerry Sandusky, lists integrity and credibility as the first two of the attributes it brings to a client.
O’Neill is the subject of more than a dozen articles I posted here between 2010 and 2011 as well as the Robert E. O’Neill profile page on jpscanlan.com and a large group of related materials I make accessible by means of the Prosecutorial Misconduct page of the same site. The articles, links to which are collected here, and the materials on the website discuss prosecutorial abuses committed by O’Neill as lead trial counsel in U.S. v. Dean, a case in which both the district court and court of appeals severely criticized O’Neill’s conduct. The articles and other materials also address the fact that O’Neill made a false statement on an application for the U.S. Attorney position that he submitted to the Florida Federal Judicial Nominating Commission. Most of these materials have been brought to the attention of the Department of Justice, the Senate Judiciary Committee, the Tampa Bay press, and judges in the Middle District of Florida by letters that that are available here.
My descriptions of O’Neill’s conduct are well documented and generally provide links to underlying materials. I suggest that the essential correctness of those descriptions is difficult to dispute. But one thing that no one could possibly dispute is that O’Neill made a false statement on his U.S. Attorney application. In an apparent effort to minimize the matter, O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in the Dean case was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” the conduct of O’Neill and his colleagues. In making the false statement on the application or at other points in the vetting/confirmation process for the U.S. Attorney position, O’Neill almost certainly violated 18 U.S.C. § 1001, a violation for which the limitations period will not expire before June 2014. See the February 19, 2011 Truth in Justice item titled “Robert E. O’Neill and 18 U.S.C. § 1001.”
Among many remarkable aspects of O’Neill behavior as a prosecutor discussed in the referenced materials is O’Neill’s penchant for calling people liars, sometimes (perhaps much of the time) while believing or knowing with absolute certainty that they did not lie. See the September 26, 2010 Truth in Justice item titled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience” and the June 29, 2011 Truth in Justice item titled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)”
The latter item concerns an instance in the Dean case where O’Neill pressured a government agent into giving false or misleading testimony in order that O’Neill could then lead the jury falsely to believe that the defendant lied about a call to the agent. O’Neill then provocatively relied on the agent’s supposed contradiction of the defendant to generally undermine her credibility. That item is lengthy, but, I suggest, worth the time of persons interested in O’Neill’s character or prosecutorial abuse generally, whether or not they conclude that O’Neill and others should have served time in prison either for the underlying conduct or subsequent efforts to cover it up.
The former item discusses the following strident remarks O’Neill made in an effort to undermine a witness in U.S. v. Spellissy: “A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you cannot trust that person.” Given the undisputable fact that O’Neill lied on his U.S. Attorney application, these remarks may one day make him a subject of considerable derision among an informed public.
One must assume that O’Neill is aware of these materials, among other reasons, because I have on more than one occasion called them to his attention, including in a July 5, 2010 letter advising him of his obligation to advise the President and those involved in the confirmation process that he had lied on the U.S. Attorney application. And certainly he is aware of the criticism of his conduct by two courts, including that which lead to the DC Bar Counsel investigation.
So, given the premium the Freeh Group places on integrity and credibility, one must wonder what O’Neill told the firm about the existence of so much readily available material calling his integrity into question, as well as about the merit of those materials. Even if there were no merit to anything I (or the courts) have written about O’Neill, a person in O’Neill’s position would have an obligation to advise a potential employer of the widespread dissemination of materials that could cause the employer embarrassment or undermine its reputation. Indeed, even if the materials did not exist, O’Neill would seem to have an obligation to advise the potential employer of the two courts’ criticism of his conduct in the Dean case. For that matter, O’Neill would also have the obligation to advise a potential employer that he had lied on the U.S. Attorney application and that, assuming he violated 18 U.S.C. § 1001 by doing so, he would remain vulnerable to prosecution for some time.
But raising any of these matters would be problematic for O’Neill given the absence of plausible explanations, especially when the potential employer specializes in investigations and due diligence. And advancing an unfounded defense would be deemed deliberate deception of the employer. So, too, however, would be failure to mention things the employer would want to know.
Yet, if O’Neill did advise the Freeh Group of the existence of these things, it is difficult to know how it could have offered O’Neill a position as a managing director. Regardless of what O’Neill might proffer about the credibility of the materials, once aware of their existence, the firm could not responsibly fail to determine whether any serious allegations were well founded. I suggest, however, that it would be difficult for a careful investigation to disagree other than in minor respect with my interpretation of multiple abuses committed by O’Neill in the Dean case, including the heinous and very likely criminal conduct that is the subject of the June 29, 2011 Truth in Justice item. But even if there were not the least merit to my interpretation of O’Neill’s conduct in the Dean case, and not the least basis for the two courts’ criticisms of O’Neill’s conduct in the case, it would remain undisputable that he lied on the U.S. Attorney application. How then could the Free Group offer to hire O’Neill, leave aside publicly laud his ethics?
One possible answer, and one consistent with his behavior in seeking the U.S. Attorney position (as detailed in Addendum 7 to O'Neill’s profile), is that O’Neill did not tell the Freeh Group anything about the web site materials or Truth in Justice items or anything else raising question about his integrity to which he did not have the solidest rebuttal. A person with the tortuous ethics described in the O’Neill profile might even maintain, as prosecutors sometimes do in discovery, that he did not have to tell the potential employer things that were already in the public record (indeed widely available on the Internet). It is a defense that, ironically, would even apply to the false statement on the application. Few employers, however, would be pleased with a candidate’s taking such a position.
Assuming O’Neill failed to advise the Freeh Group of the many widely disseminated materials calling his integrity into question, such failure would raise like questions about his integrity irrespective of the validity of those materials. It would also provide the Freeh Group a basis for withdrawing its offer quite apart from a need to do so to maintain its credibility.
But if O’Neill did not tell the Freeh Group about these matters, one must still wonder how the Freeh Group could offer O’Neill a managing director position without doing the things that typically would bring such matters to its attention. Possibly the firm relied on Bucknam’s long acquaintance with O’Neill (and possibly Freeh’s as well). The firm may also have assumed that the recent vetting of O’Neill by the Department of Justice and Senate Judiciary Committee afforded it some confidence that O’Neill would withstand its own inquiry into his background. Unfortunately, the dubiousness of Department of Justice and Senate Judiciary Committee implied or explicit representations as to the trustworthiness of presidential appointees – as reflected in the above-mentioned September 26, 2010 Truth in Justice item and an October 3, 2010 Truth in Justice item titled “Whom Can We Trust?” – is not as widely known as it ought to be. One must doubt, however, that the Freeh Group would encourage a client to hire a person for an important position without at least doing an Internet search of the person. Yet one cannot do a simple Internet search on O’Neill without being confronted with many of the materials described above.
In any case, the Freeh Group is now aware of these materials and, and so long as it wishes to represent itself to its clients as a firm of integrity and credibility, and to impliedly or expressly represent that O’Neill has these attributes as well, it faces obligations akin to some of those faced by the leadership of Penn State that were the subject of the Freeh Group investigation. One key difference, of course, is that the subject of the obligation is already widely publicized and the firm must face the prospect that a client may one day ask it to explicitly address whether there is merit to issues I or the courts have raised about O’Neill’s integrity, including the simple matter of whether he in fact lied on the U.S. Attorney application. The firm will have several months to consider these issues before O’Neill joins it to head a Miami office that is apparently intended to provide a base for the firm’s growing Latin American practice.
Addendum - The FBI Award to Independent Counsel David M. Barrett
Louis J. Freeh is mentioned in a March 8, 2011 Truth in Justice item titled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett,” an item that also mentions O’Neill in its body and two addendums and that raises issues about the processes of putatively competent governmental entities charged with ensuring the integrity of public officials that are similar to those raised by the appointment of O’Neill to the U.S. Attorney position. The main subject of the item is former Independent Counsel David M. Barrett, whose investigation of HUD Secretary Henry Cisneros for a false statement during the appointment process ran from 1995 to 2006 and expended $22,750,000 and would be described by one former Department of Justice official as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” At some point Barrett received the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award, with an inscription signed by FBI Director Freeh that read: “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation.” The web page for Barrett’s firm stated that Barrett received the award after completion of his Independent Counsel investigation. Inasmuch as Freeh left the FBI in June 2001, however, the award could have been made no more than six years into Barrett’s investigation.