Update: Due to a couple of requests I am re-posting this diary from earlier today.
The Project On Government Oversight's new report revealed that hundreds of Department of Justice Attorneys violated professional standards while prosecuting cases over the last 10 years. This has occurred with no transparency in the disciplinary process that DOJ's Office of Professional Responsibility has used in these cases. The public doesn't get to know what cases were involved or the names of the attorneys that disciplinary actions were taken against.
Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards
Administration Won’t Name Offending Prosecutors
An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.
The violations include instances in which attorneys who have a duty to uphold justice have, according to the internal affairs office, misled courts, withheld evidence that could have helped defendants, abused prosecutorial and investigative power, and violated constitutional rights.
From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions, according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports.
In the majority of the matters—more than 400—OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.
The information the Justice Department has disclosed is only part of the story. No less significant is what as a matter of policy it keeps from the public.
As a general practice, the Justice Department does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.
Types of MisconductHere are a couple of examples of the of misconduct the Project On Government Oversight cited in their new report
An examination of OPR case data for the past 12 fiscal years shows that, among the more severe violations—those that involve recklessness or intentional wrongdoing and are defined by the Department as professional misconduct—OPR substantiated:
48 allegations that federal attorneys misled courts, including 20 instances in which OPR determined that the violations were intentional
29 allegations that federal prosecutors failed to provide exculpatory information to defendants, including 1 instance OPR concluded was intentional
13 allegations that Justice Department personnel violated constitutional or civil rights
4 allegations of abuse of investigative or prosecutorial authority or general prosecutorial misconduct, including 3 instances in which OPR determined that the violations were intentional
3 allegations that prosecutors abused the grand jury or indictment process
1 allegation of “overzealous prosecution”
An immigration judge—immigration courts fall within the Justice Department—made disparaging remarks about foreign nationals, showed bias, and violated procedural standards in cases where defendants were “contesting removal proceedings”—in other words, fighting to stay in the United States. (The Department gave the immigration judge a 30-day suspension.)Those punishments strike me as slaps on the wrist.
A DOJ attorney failed “to timely disclose to the defense a tape recording of the crime despite repeated defense requests for the information,” and falsely told the court that the government had no evidence that a key witness had been diagnosed with a mental illness. (The Department gave the attorney a 14-day suspension.)
DOJ's Office of Professional Responsibility was made more transparent during the Clinton years, something George Bush's DOJ did away with, and Obama's DOJ under Holder following Bush's pattern of secrecy.
The American Bar Association has recommended that the Obama administration make more information available about DOJ attorney misconduct. The ABA passed a resolution in 2010 calling upon the Obama administration to return to the 1993 policy or something similar. “The non-public nature of DOJ’s disciplinary determinations deprives the public of information about prosecutors and civil government lawyers who are alleged to have engaged in acts that warrant discipline and about how DOJ responds in such cases,” stated the resolution.Why should DOJ's attorneys be protected by a blanket of secrecy over their discipline that private attorneys don't have? DOJ's attorneys risk losing the public's trust without more transparency.
The ABA said it was calling on the DOJ to “‘release as much information regarding completed individual investigations as possible, consistent with privacy interests and law enforcement confidentiality concerns,’ whether by reinstituting the practices of DOJ pursuant to its 1993 policy or otherwise.”
As matters now stand, DOJ’s handling of misconduct cases feeds perceptions that the Department does not aggressively police misconduct in its own ranks.
“DOJ’s secrecy undermines public confidence in prosecutorial accountability,” Bruce A. Green, a Fordham University law professor and a contact person listed on the ABA resolution, wrote in The Yale Law Journal in March 2009. “When kept secret, OPR’s work fails to effectively deter future prosecutorial misconduct or educate federal prosecutors about where the disciplinary lines are drawn.”
“OPR’s work is even more secretive than ordinary attorney disciplinary processes, which have themselves been criticized as too opaque,” argued Green, “yet there is a far greater public interest in transparency when it comes to wrongdoing by prosecutors than by private attorneys.”
This lack of transparency at OPR and DOJ compounds the corrosive loss of confidence in the Rule Of Law. That confidence was severely shaken when Wall Street Bankers were treated as being above the law, when Holder's DOJ let them walk away from the economic catastrophe they created without any legal consequences.