Whom Can We Trust?

by James Scanlan, Esq.

Most people who have had substantial exposure to events that are reported in the press at least occasionally, if not commonly, find that the press has gotten it all wrong. They must then wonder what faith they can place in reportage of events they know little or nothing about. The same holds with respect to governmental institutions for people who are able to observe the conduct of those institutions closely enough to know that the institutions have gotten something all wrong – or have even knowingly gotten something all wrong. The matter is worth reflecting upon in light of the fact that on September 30, 2010, the Senate confirmed Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida.

O’Neill is the subject of my Truth in Justice editorials of June 23, July 11, August 17, September 4, and September 26, 2010. Readers of those editorials and even a smattering of the materials to which they provide links would, I think, regard it to be true beyond any doubt that (a) O’Neill lied on his US Attorney application by falsely attributing a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean to a complaint filed by the defendant; and (b) that O’Neill was the subject of severe criticism by two courts for his conduct in the case. They would also regard it as virtually certain, or at least extremely likely, (c) that in the Dean case O’Neill engaged in egregious prosecutorial misconduct going well beyond the things considered by the courts that were so critical of his conduct; and (d) that in a 2005 deposition O’Neill falsely denied having made certain putatively threatening statements in the federal workplace.

In order to come to these conclusions, one does not have to leave one’s computer. The facts are set out in detail in materials made readily available on the Internet with electronic links to supporting documents. For example, the attachment to my July 9, 2010 letter to Attorney General Eric Holder made available by this link should leave no one in doubt as to the fact that O’Neill lied about the origination of the Bar Counsel investigation. The other points are supported in a similar manner. Thus, as should be clear from the documents discussed and made available in Addendum 7 to the Robert E. O’ Neill profile, it required virtually no work for the Justice Department or the Senate Judiciary Committee to reach solid conclusions on each of these matters. The truth was handed them on the electronic equivalent of a silver platter, leaving, at most, a few loose ends that could be readily addressed by simple phone calls.

And yet the Department of Justice allowed the O’Neill nomination to go forward while refusing to consider even those things that were made clearer to it than daylight. See in the September 4 and 26 editorials the discussion of Executive Office for United States Attorneys General Counsel Jay Macklin’s transparently inapplicable excuse for failing to investigate whether O’Neill lied on his US Attorney application – which Macklin had already to know was the case. For its part, as discussed in the September 26 item, the Senate Judiciary Committee did not simply show itself to be untroubled by these issues, but, through its chairman and ranking member, affirmatively led the public to believe that there existed no matters calling O’Neill’s integrity seriously into question.

Thus, based on what we have observed in a situation where the facts are crystal clear, when confronted with a situation that we know little about, what faith ought we to place in assurances by the Attorney General or the leadership of the Senate Judiciary Committee that there is nothing in the background of a candidate for a position of trust suggesting that the candidate in fact is not trustworthy? It seems that, whether we should be worrying more about the integrity or the competence of these institutions and their leadership, we cannot reasonably rely on such assurances.

Concern about the processes of government must make one wonder, for example, whether on concluding that it did not regard O’Neill’s false statement on his application to constitute an obstacle to his appointment as US Attorney, the Department of Justice felt a responsibility to advise the White House or the Senate Judiciary Committee of the fact of the false statement just in case those entities might have a different view. The same holds with regard to whether, notwithstanding the Department’s determination that it would not investigate O’Neill’s conduct in the Dean case because, in its view, the matters were or could have been addressed in litigation, the Department felt some obligation to advise the White House or Senate Judiciary Committee of the courts’ criticisms of O’Neill’s conduct or the probability that O’Neill engaged in more serious misconduct than that noted by the courts.

Interesting questions, I think, but beside the larger point here. On that point, we must look back again to Robert E. O’Neill’s observations in US v. Spellissy (discussed in the July 11 and September 26 editorials) to the effect that when you know a person is untrustworthy as to one thing, you cannot trust the person as to other things. I have previously mentioned the matter as it bears on the implications of the fact that, if we know nothing else about Robert E. O’Neill, we know that he lied on his US Attorney application. It warrants consideration as well for its bearing on the faith we can henceforth place in the Department of Justice and the Senate Judiciary Committee when they in some manner assure us that they have verified the trustworthiness of a high government official.