The U.S. Justice Department again showed how its protects its own in scandals involving government lawyers. The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. This week is no exception. Waiting until late Thursday to inform Congress to guarantee a low media coverage, the DOJ announced that it had found no intentional violations by its attorneys in the failed prosecution of U.S. Senator Ted Stevens — despite the contrary finding made by an independent investigation. Instead, the investigation again offered rhetorical punishment as a substitute for true punishment — declaring that the attorneys were only guilty of “reckless professional misconduct.” As a result, Joseph Bottini will be suspended for only 40 days and James Goeke will be suspended for 15 days. Even that level of punishment is viewed as noteworthy for the DOJ given its prior history of whitewashing misconduct by its attorneys. Even the finding of misconduct and brief suspension was contested within the department by Terrence Berg, a lawyer with the department’s Professional Misconduct Review Unit.
Prosecutors brought charges against Stevens for concealing gifts on financial disclosure forms. However, they concealed evidence like conflicting statements by witnesses that was obviously supposed to be turned over to the defense. The special prosecutor found that Mr. Bottini and Mr. Goeke had intentionally withheld evidence. However, the DOJ wiped away the finding and found effectively negligence.
For civil libertarians, it brings back to mind the slap on the wrist given Judge Jay Bybee and Professor John Yoo for their roles in the Bush torture program. They just showed “poor judgment” in misrepresenting the governing law on torture and ratifying a policy of torture. Other notorious DOJ lawyers like Monica Goodling or former Gonzales chief of staff Kyle Sampson were never charged over their actions and testimony vis-a-vis the hiring scandals of the Bush Administration.
Many of us in practice were shocked by the earlier decision that the DOJ lawyer could not be charged with contempt because they were not directly ordered to comply with legal and ethical rules. Most of us assumed that we are always required to comply with such rules, but it left the impression that DOJ attorneys have to be specifically ordered to act in a reasonable and ethical way.
I have litigated against the Justice Department for years and I have many friends and people who I respect in that department. However, I have also run across DOJ attorneys who routinely misrepresent and withhold evidence with impunity. There is a clear sense that they are untouchable and it is a common complaint that judges often shy away from sanctioning the government for misconduct. Once again, I have had cases with some of the best at the department — lawyers who act ethically and civilly out of their personal commitment to the bar and the profession. However, the department as a whole has a checkered history in dealing with its own violations — and this is a good example of the problem.
I cannot see how anyone could withhold this evidence without realizing that they were violating core obligations in a criminal case. I am not sure which is a greater indictment — the notion of an intentional withholding of evidence or a culture that made the attorneys believe it was alright to withhold the evidence. What is clear (as made evident by the celebration of the defense counsel for the lawyers this week) is that the report sends another message to DOJ attorneys that the department will protect them in even the most obvious violations of legal and ethical rules.
The DOJ’s timing of the release of the report just before the Memorial weekend speaks volumes about its view of the investigation and public. The Department often releases stories on Thursday nights to hit the low coverage window of the end of the week. It decided after years to release the report just before Memorial Weekend to further avoid any public scrutiny or backlash. It was the perfect closing moment for the investigation — a largely rhetorical punishment announced in a whisper by the department.
I have always loved the fact that the Justice Department is unsure of the meaning of the motto on its seal Qui Pro Domina Justitia Sequitur. It appears to refer to the Attorney General as the person “who prosecutes on behalf of justice.” Cases like this one may offer a more clear understanding of what it means to work “on behalf of Justice.”
Source: NY Times