This Addendum was originally created on June 28, 2010, following the nomination of Robert E. O'Neill for the position of United States Attorney for the Middle District of Florida and when it appeared that a false statement O’Neill made on the United States Attorney application he submitted to the Florida Federal Judicial Nominating Commission would cause O’Neill not to be confirmed. It was periodically updated to serially record events as they unfolded and usefully illustrates the way the Department of Justice and the Senate Judiciary committee will sometimes ignore even the clearest evidence of the unsuitability of a candidate for a high law enforcement position. But unless the reader desires to study that issue in depth, it is probably not worth his or her time to read the item in its entirety (or even beyond the first four paragraph of the body of the Addendum).
The crucial aspects of the matter can be gleaned from the Truth in Justice editorials listed below, especially those marked with an asterisk. The July 1, 2010 item, while not as germane to the process issues, highlights the contrast between Robert O’Neill’s lying on his application and his penchant for calling other people liars, even when he knows they have not lied (as in the subject of Section B supra and Section B.1 of the main Prosecutorial Misconduct page).
June 23, 2010 (“Curious United States Attorney Nomination for One of Nation’s Busiest Districts”)
July 11, ne 23, 2010 (“The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill”)
August 17, 2010 )“Additional Problems with Middle District of Florida U.S. Attorney Nomination”)
September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”).
* September 26, 2010 (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”)
*October 3, 2010 (“Whom Can We Trust?”)
February 6, 2011 (“Bruce Swartz – Our Man Abroad”)
February 19, 2011 (“Robert E. O’Neill and 18 U.S.C. § 1001”)
As discussed in Addendum 3, on June 5, 2009, O’Neill submitted to the Florida Federal Judicial Nominating Commission an application for the position of United States Attorney for the Middle District of Florida. According to its Rules, members of the Nominating Commission are appointed by Florida’s United States Senators, though the web site of the Florida Bar shows it as a committee of the Florida Bar and in some of the references below I described it as an arm of the Florida Bar.
In the application, in response to a request for information concerning disciplinary matters, O’Neill provided the following entry (at 43):
(b) Deborah Gore Dean, Office of Bar Counsel, The Board on Professional responsibility, District of Columbia Court of Appeals (1995):
I prosecuted Deborah Gore Dean on behalf of the Office of Independent Counsel. The trial occurred in Washington, D.C. After her conviction on all counts, Ms. Dean filed a bar complaint alleging a number of instances of prosecutorial misconduct during the trial. On June 27, 1996, Bar Counsel sent a letter stating that there was "insufficient evidence of professional misconduct" and Bar Counsel terminated the investigation.
The Office of Bar Counsel in the District of Columbia did investigate O’Neill’s conduct in the Dean case. The investigation commenced some time after the Court of Appeals for the District of Columbia Circuit issued its May 26, 1995 decision “deplor[ing]” certain conduct of prosecutors in the case. But O’Neill’s statement that the investigation was initiated by a complaint filed by Deborah Gore Dean is false. In fact, Dean never filed a bar complaint. As is explained on the first page of the June 27, 1996 Bar Counsel letter cited by O’Neill,[1] the investigation was self-initiated by Bar Counsel as a result of its review of the court of appeals’ criticism of the conduct of O’Neill and his colleagues.
O’Neill could not possibly be mistaken on the matter. As noted, the information is on the first page of the letter O’Neill cites. In fact, as discussed at page 4 of the June 27, 1996 letter cited by O’Neill, O’Neill and his co-respondents complained to Bar Counsel concerning my prior revealing (in 1995) to officials at the Department of Justice that an investigation had been initiated by Bar Counsel.[2] The only possible inference is that O’Neill falsely attributed the initiation of the Bar Counsel investigation to Dean because he believed that an investigation initiated by convicted defendant would raise fewer concerns with the Florida Nominating Commission and other readers of his application than an investigation initiated by Bar Counsel after reviewing court criticism of O’Neill’s conduct. And if O’Neill made a similar misrepresentation to a federal entity, he almost certainly violated 18 U.S.C. § 1001. In any event, however, the misrepresentation before the Florida Nominating Commission ought to preclude O’Neill’s confirmation to the United States Attorney position.
Because of concern about Bar confidentiality rules for some time I did not disclose that an investigation was initiated by Bar Counsel. In Section B.11a of the main Prosecutorial Misconduct page, I referred only to my Bar Counsel complaint, which was filed after I learned of the ongoing Bar Counsel investigation. The letter of July 20, 2009, to the Florida Nominating Commission mentioned in Addendum 3 supra did not disclose whether the Bar Counsel investigation had been initiated by me or some other person or entity, but (at 7-8) encouraged the Nominating Commission to secure such information from O’Neill or DC Bar Counsel. Even when O’Neill was nominated I did not immediately disclose the fact that the investigation was initiated by Bar Counsel.
By letter dated June 14, 2010, to District of Columbia Bar Counsel Wallace E. Shipp, Jr. (copied to O’Neill), among other things, I advised Bar Counsel of O’Neill’s statement concerning the initiation of the Bar Counsel investigation in the Florida Nominating Commission application. I suggested that Bar Counsel had an obligation to provide the Senate Judiciary Committee information indicating that O’Neill’s description of the initiation of the Bar Counsel investigation was false.
By letter dated June 16, 2010, to members of the Senate Judiciary Committee, I raised a number of issues as to the unsuitability of O’Neill for the United States Attorney position. In the fourth of six briefly summarized items (at 4), I advised that O’Neill’s statement concerning the initiation of the Bar Counsel investigation in the Florida Federal Judicial Nominating Commission application was false. I urged the Committee to secure the relevant records from District of Columbia Bar Counsel that would reveal the true origin of the investigation.
On reviewing a publicly available Senate Judiciary Committee questionnaire completed by O’Neill that did not address disciplinary matters, I came to recognize the likelihood that, possibly in a Senate Judiciary Committee questionnaire on sensitive issues that was not publicly disclosed, O’Neill provided information on disciplinary matters. There is a strong chance that any statement O’Neill made to a federal entity akin to that made to the Florida Nominating Commission would violate 18 U.S.C. § 1001. I therefore, by letter dated June 22, 2010, advised Bar Counsel of such matter, suggesting that the obligation to bring to the attention of appropriate authorities that a person seeking a United States Attorney position has made a false statement when doing so would be heightened with respect to a false statement that violated a federal law. I also advised Bar Counsel that upon coming to believe that there is a high likelihood that O’Neill provided the Senate Judiciary Committee or other federal entities the same information concerning the origin of the Bar Counsel investigation that he provided to the Florida Nominating Commission, I would consider myself free, if not obligated, to inform the Senate Judiciary Committee and other government entities of facts I know indicating that the information provided by O’Neill is false, including the identity of the person or entity that actually initiated the investigation and why that person or entity initiated the investigation.[3]
On June 23, 2010, I posted an editorial styled “Curious United States Attorney Nomination for One of Nation’s Busiest Districts” on the web site truthinjustice.org. The editorial discusses, inter alia, the courts’ criticism of O’Neill’s conduct in the Dean case as well as the likelihood that O’Neill violated 18 U.S.C. § 1001 by making false statements concerning the initiation of the District of Columbia Bar Counsel investigation. The editorial did not disclose the actual initiator of the Bar Counsel investigation.
By letter dated June 28, 2010, I brought to the attention of Attorney General Eric Holder the aforementioned facts concerning O’Neill’s false statement about the origination of the Bar Counsel investigation of his conduct in the Dean case and the possibility or likelihood that O’Neill violated 18 U.S.C. § 1001 by making similar statements to federal entities involved in the United States Attorney nomination or confirmation process. As in the case of the Senate Judiciary Committee, I advised Attorney General Holder to secure information on the origination of the Bar Counsel investigation from the Office of Bar Counsel.
I also pointed out to Attorney General Holder that the misrepresentation to the Florida Nominating Commission is a very serious matter in any event. And I suggested that even if O’Neill made no like misrepresentation to a federal entity (and whether or not any crime might be involved), Attorney General Holder should advise the President of such misrepresentation and in doing so, recommend that the President withdraw the O’Neill nomination. I also noted that in the event the misrepresentation was among materials provided to the Senate Judiciary Committee, the Committee should also be advised of such fact.
In the letter, I raised certain other issues about the Department’s obligation to bring to light information bearing on the suitability of O’Neill for the United States Attorney position. I noted that it is difficult to understand how the Department could provide a candid assessment of O’Neill’s suitability for the United States Attorney position without providing information concerning (1) the severe criticism of O’Neill’s conduct in the Dean case by the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit and (2) my extensive allegations against O’Neill and the fact that the allegations are published on the Internet (as well as the Department’s views as to the justification for the courts’ criticisms and as to the validity of my allegations). And I suggested that if the Department had so far failed to provide such information to the President or the Senate Judiciary Committee, the Department has a continuing obligation provide such information.
My suspicion, as suggested in Addendums 5 and 6 supra, is that the Department of Justice never advised the President of any of the above matters. Such failure, which would seem generally to call into question the Department’s vetting process (or at least to do so when one of the Department’s own employees is involved), ought to be difficult to explain to the President. But such difficulty hardly provides an excuse for now failing to advise the President of any false statements O’Neill made in the course of seeking the United States Attorney position.
By letter dated June 29, 2010, I brought the matter of O’Neill’s misrepresentation on the Florida Nominating Commission application to the attention to staff writers of the St. Petersburg Times who had been involved in recent coverage of O’Neill. I urged them, among other things, to address with O’Neill questions as to whether O’Neill statement concerning the origin of the Bar Counsel investigation was true, whether he made the same statement to any federal entity, and why he made the statement.
By letter dated July 1, 2010, I advised Bruce C. Swartz (currently a Deputy Attorney General in the Criminal Division, whose own misconduct in the Dean case is discussed frequently in the O’Neill profile and in the Bruce C. Swartz profile) of O’Neill’s statement regarding the initiation of the Bar Counsel investigation. I noted that because Swartz had also been a subject of the same investigation, Swartz would know that O’Neill’s representation as to the origin of the investigation is false. Pointing out that O’Neill might also have made the same misrepresentation to federal entities in violation of 18 U.S.C. § 1001, I advised Swartz of his responsibility as an official in the Criminal Division to bring the fact of O’Neill’s misrepresentation to the attention of officials in the Criminal Division and elsewhere in the Department of Justice.
I also advised Swartz of his obligation as an official of the Criminal Division to inform officials in the Department of any actions O’Neill may have taken in the Bar Counsel investigation to cover up O’Neill’s (and Swartz’s) actions regarding the testimony of Supervisory Special Agent Alvin R. Cain, Jr. (the subject of Section B supra, which is also the subject of the fifth summarized item in the Senate Judiciary Committee letter, as well as Section A and F of the Swartz profile). It would seem impossible for Swartz to adequately address the matter with Department of Justice officials without addressing Swartz’s own conduct in deceiving both the court and Bar Counsel on the matter. But whether such issues would provide Swartz a basis for avoiding addressing these matters as a private citizen, they would not provide him a basis for failing to fulfilling his responsibilities as a Deputy Assistant Attorney General in the Criminal Division.
On July 4, 2010, drawing on the June 23, 2010 Truth in Justice editorial mentioned above, Paul Mirengoff posted an item on powerlineblog.com styled “A Nomination That Should Be Closely Scrutinized.” Mirengoff referenced his August 2008 post that had treated the subject of the immediately preceding paragraph. Powerlineblog.com is visited by over 40,000 users daily. Immediately after the posting of the July 4, 2010 item, traffic to the prosecutorial misconduct portions of jpscanlan.com increased dramatically.
By letter dated July 5, 2010, I advised Robert E. O’Neill of his obligation to inform various persons or entities of the misrepresentation in the Florida Nominating Commission application and to advise them of the identity of the person or entity that actually initiated the District of Columbia Bar Counsel investigation and of what O’Neill knows as to why the person or entity initiated the investigation. Persons or entities that I specifically identified as among those to whom O’Neill should provide such information include President Barack Obama, who was presumably unaware of the misrepresentation at the time he nominated O’Neill for the position of United States Attorney for the Middle District of Florida. I also advised O’Neill that I might at any time disclose the identity of the person or entity that initiated the Bar Counsel investigation and requested that he inform me if he had any objection to my doing so.
By letter of July 5, 2010, I advised Jay Macklin, General Counsel for the Executive Office for United States Attorneys (recipient of the June 10, 2010 letter discussed in Addendum 6), of O’Neill’s misrepresentation concerning the origination of the Bar Counsel investigation in the application to the Florida Nominating Commission. I also advised General Counsel Macklin that, whether or not O’Neill had violated any federal law, the making of the misrepresentation in the circumstances O’Neill made it called into question the appropriateness of O’Neill’s continued employment as an Assistant United States Attorney.
On July 8, 2010, I was advised by a representative of the Office of Bar Counsel that, even if O’Neill committed a crime by falsely representing the origin of the Bar Counsel investigation of his conduct in the Dean case, Bar Counsel would not contact the Attorney General to inform him of the true origin of the Bar Counsel investigation. The representative declined to say what Bar Counsel would do if the Attorney General contacted Bar Counsel on the matter.
By letter of July 9, 2010, I advised Attorney General Eric Holder of certain developments since my above-discussed letter to him of June 28, 2010. I also provided Attorney General Holder a copy of page 1 of the June 27, 1996 letter cited by O’Neill in the Florida Nominating Commission application entry set out at the beginning of this addendum (with all names redacted save for that of O’Neill). Quoting from page 1 of the letter, I advised Attorney General Holder of the identity of the initiator of the Bar Counsel investigation and why that person or entity initiated the investigation. I suggested to Attorney General Holder that the inference is inescapable that O’Neill attributed the initiation of the Bar Counsel investigation to Deborah Gore Dean because he believed an investigation initiated by a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission or other readers of his application than an investigation initiated by that actual initiator. I again urged Attorney General Holder to advise the President to withdraw the O’Neill nomination.
I provided copies of the July 9, 2010 letter to Robert Bauer, Esq., Assistant and Counsel to the President, the Honorable Patrick J. Leahy, Chairman of the Senate Judiciary Committee, and the Honorable Jeff Session, Ranking Member of the Senate Judiciary Committee. As with the copy of the letter that is made accessible by the link in the immediately prior paragraph, the copies sent to these persons were redacted as to the identity of the initiator of the Bar Counsel investigation and did not include the page of the June 27, 1996 letter that had been provided to Attorney General Holder.
But on July 11, 2010, I published a second editorial on truthinjustice.org, disclosing the origin of the Bar Counsel investigation and making available an unredacted copy or the July 9, 2010 Holder letter with its attachment.
By letter of July 13, 2010, I advised Jay Macklin, General Counsel for the Executive Office for United States Attorneys (recipient of the June 10, 2010 letter discussed in Addendum 6 and the July 5, 2010 letter discussed several paragraphs above), of the documentary proof that O’Neill’s statement in the Florida Nominating Commission application concerning the origin of the DC Bar Counsel investigation was false. I again suggested to General Counsel Macklin that O’Neill’s making of the false statement called into question whether O’Neill should be permitted to continue to serve as an Assistant United States Attorney. I also advised General Counsel Macklin of the July 5, 2010 letter to O’Neill (which was copied to his immediate superior First Assistant United States Attorney A. Lee Bentley) stating that O’Neill had an obligation to advise his superiors and others that the statement in the Florida Nominating Commission application was false and suggested that unless O’Neill and Bentley had advised their superiors that the statement was false, inquiry should be made as to why they had not.
By letter of July 14, 2010, to the St. Petersburg Times staff writers who had received the June 29, 2010 letter mentioned above of developments, since June 29, concerning the O’Neill nomination and the false statement in the Florida Nominating Commission application, including the July 4, 2010 item in powerlineblog.com and July 11, 2010 item on truthinjustice.org. I suggested to them that there likely existed a larger story in the failure of the Department of Justice to advise the President of the courts’ criticisms of O’Neill’s conduct in the Dean case and the materials I maintain on the Internet concerning that conduct, as well as the failure of the Florida Federal Judicial Nominating Commission to consider these issues or to secure information indicating that O’Neill’s statement concerning the origin of the DC Bar Counsel investigation was false.
By letter of July 26, 2010, I informed members of the Senate Judiciary Committee of the true origin of the District of Columbia Bar Counsel investigation of O’Neill’s conduct in the Dean case and addressed the fact that that if O’Neill misrepresented that origin of the investigation to the Committee or other federal entity he would like have violated 18 U.S.C. § 1001. I also suggested that whether or not O’Neill violated any federal law, if O’Neill were to be confirmed as United States Attorney notwithstanding the false statement on his application, the public faith in the integrity of federal law enforcement would be substantially undermined. But I also suggested that even if the O’Neill nomination should be withdrawn, the Committee should address the larger issues of prosecutorial misconduct raised in the O’Neill profile and the main Prosecutorial Misconduct page.
By letter of July 29, 2010, I advised former Supervisory Special Agent Alvin R. Cain, Jr. of developments since my last correspondence to him (by letters of July 8, 2008, and July 13, 2008), including the attention given to the securing and use of his testimony in October 1993 (the subject of Section B.1 of PMP, Section B of this profile, and a matter highlighted as the fifth summarized item in the June 16, 2010 Senate Judiciary Committee letter) and nomination of Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida. I suggested to Cain that he had an obligation to bring to the attention of the Judiciary Committee the facts concerning O’Neill’s securing of Cain’s testimony in October 1993.
Copies of the Cain letter were provided to the Chairman and Ranking Member of the Senate Judiciary Committee, Assistant and Counsel to the President Robert Bauer, and Attorney General Eric H. Holder, Jr. The June 16, 2010 Senate Judiciary Committee letter had encouraged the Committee to contact Cain and provided it Cain’s last known address.
On August 17, 2010, I posted another editorial (“Additional Problems with Middle District of Florida U.S. Attorney Nomination”) on truthinjustice.org. The editorial discussed two matters arising out of the lawsuit filed against O’Neill and Attorney General Eric H. Holder. Jr., by former Assistant United States Attorney Jeffrey J. Del Fuoco. One matter involves Del Fuoco’s allegations that O’Neill committed perjury in an earlier case, a matter as to which he names three present or former Assistant United States Attorneys as witnesses. The second matter involves the fact that in defending against Del Fuoco’s claims that O’Neill defamed him by statements made in O’Neill’s Florida Federal Judicial Nominating Commission application, Department of Justice attorneys representing O’Neill and the Department asserted that the statements had an absolute privilege because the Nominating Commission is a “a quasi-legislative body, established by members of the U.S. Senate.” The assertion, which means “a quasi-federal legislative body,” could provide a basis for an argument that O’Neill violated 18 U.S.C. § 1001 by falsely describing the origin of the Bar Counsel investigation in his Nominating Commission application.
The two matters are suggestive of a variety of problems arising from having Department of Justice attorneys represent both O’Neill and the Department. As representatives of the Department, the attorneys ought to be investigating whether O’Neill committed perjury as Del Fuoco alleges (including questioning the witnesses identified in the complaint) and considering their responsibilities to bring their findings to the attention of the Department. But their representation of O’Neill may compromise them in that regard. On the other hand, O’Neill ought to be able to advise his counsel whether there is merit to Del Fuoco’s allegations concerning perjury. Presumably, when they filed the motion in April 2010, the Department of Justice attorneys did not know that O’Neill made a false statement about the DC Bar Counsel investigation in the Nominating Commission application. But someone in O’Neill’s position ought to be able to advise his counsel of the fact that he made the false representation in considering what position to take regarding the status of the Nominating Commission.
On August 18, 2010, I received a letter dated August 13, 2010, from Jay Macklin, General Counsel for the Executive Office for United States Attorneys, stating that it was a response to my letter of July 13, 2010. General Counsel Macklin’s recent letter states that in my July 13, 2010 letter I continued to raise allegations of misconduct by Mr. O’Neill; that those allegations had been reviewed by the Department, the Office of Professional Responsibility (OPR), and the Office of Inspector General; and that I have been informed by OPR that it is that office’s “policy to refrain from investigating issues or allegations that were addressed, or that could have been addressed, in the course of litigation” (an apparent reference to the letter dated December 28, 2009, from Judith B. Wish, Deputy Counsel for the Office of Professional Responsibility, which is discussed in Addendum 5). The Macklin letter also stated it would be the Department’s last response to me concerning “this matter.”
This was a curious letter. Whatever the wisdom of the OPR policy or its relevance to the issues that had been brought to OPR’s attention at the time it expressed that policy to me (which matters of wisdom and relevance were addressed in my January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish), the policy had no bearing whatever on the issues raised in July 13, 2010 letter – which involve the simple fact that in an application submitted to the Florida Federal Judicial Nominating Commission on June 5, 2009, O’Neill made a false statement and the possibility that he may have made the same false statement to a federal entity. Further, this a subject that quite obviously was not and could not have been raised in the litigation to which Deputy Counsel Wish referred and that probably could not be raised in any other litigation save in a Department of Justice prosecution of O’Neill for violation of 18 U.S.C. § 1001.
When I received the Macklin letter, I was already in the process of writing an August 18, 2010 letter to both Attorney General Holder and General Counsel Macklin bringing additional information to their attention regarding the subjects of the letters of June 28, 2010, and July 9, 2010, to Attorney General Holder and July 5, 2010, and July 13, 2010, to General Counsel Macklin. Such additional information was mainly comprised of the fact that Department of Justice attorneys had taken the position in the Del Fuoco litigation that the Florida Federal Judicial Nominating Commission was a “quasi-(federal) legislative body” and the bearing of that position on the possibility that O’Neil violated 18 U.S.C. § 1001 by making the false statement to the Commission (the first subject of the August 17, 2010 Truth in Justice editorial). I added a further point regarding the plaintiff’s claim in the Del Fuoco case that Department attorneys could represent O’Neill in his personal capacity regarding the statements in Nominating Commission application only if those statements were considered to have been made pursuant to O’Neill’s employment with the Department.
I added a paragraph addressing the Macklin letter along the lines of the second paragraph above. I also pointed out that apart from the fact that the reasoning set out in the Macklin letter had nothing to do with the subject of my July 13, 2010 letter, particularly given that O’Neill is now the nominee for the United States Attorney position, the Macklin letter seems to say that even heinous conduct by a federal prosecutor will not stand as an obstacle to a Presidential appointment if the matter was or could have been addressed in litigation. I suggested that the Department should reconsider that position, if not with regard to the O’Neill appointment, at least with regard to future appointments as to which the Department is called upon to advise the President.
Given that I have been led to understand that the White House will not withdraw the nomination, I shall shortly create a document exploring some of the incongruities of having a United States Attorney who violated a statute that he is charged with enforcing and that he will remain subject to prosecution under until 2014 or 2015 (possibly under a different administration) – unless he makes any new false statement regarding the matter in which case the five-year limitations period will run from the time of the new false statement. In the event that anyone else makes a false statement before the Florida Federal Judicial Nominating Commission, O’Neill would presumably have a large role in determining whether false statements before the Nominating Commission are covered by 18 U.S.C. § 1001. But incongruities abound.
On August 28, 2010, I wrote another letter to the Senate Judiciary Committee member, among other things, advising as to recent developments such as the matter addressed in the August 17, 2010 Truth in Justice editorial and the Macklin letter of August 13, 2010. The same day I wrote a letter to the Florida Senators Bill Nelson (D) and George LeMieux (R ) advising them in a somewhat summary fashion of issues previously brought to the attention of the Senate Judiciary Committee.
On September 4, 2010, I posted another Truth in Justice editorial, this one styled “Dubious Progress on Professional Responsibility at DOJ.” The item principally addresses the Attorney General’s asserted commitment to addressing prosecutorial abuses, but discusses issues pertaining to Bruce C. Swartz and Robert E. O’Neill with regard to the Department’s refusal to address disagreeable integrity issues concerning high-level employees. The item suggests that Swartz’s conduct in the defending against allegations of prosecutorial misconduct in the Dean case would be a useful case study illustrating impermissible deceptions or evasions in prosecutor responses to misconduct allegations. A separately accessible Swartz Addendum 7 was added to the Bruce C. Swartz to address the subject further.
On September 8, 2010, Paul Mirengoff posted an item on powerlineblog.com calling for the Senate Judiciary Committee to hold hearings on the issues I raised and the allegation of perjury raised in the Del Fuoco case.
Between September 9 and 13, 2010, I sent emails to members of the Senate Judiciary Committee advising them of the attention given to allegations about O’Neill in my Truth in Justice editorials and the Paul Mirengoff powerlineblog.com items and the issues that could arise concerning O’Neill’s credibility unless the Committee addresses the allegations against O’Neill.
On September 22, the Senate Judiciary Committee voted unanimously to forward the O’Neill nomination to the Senate floor with a favorable recommendation. On September 26, 2010, I published a Truth in Justice editorial discussing the Committee’s action and the statements by the Chairman and Ranking Republican. It also discusses the likelihood that during his tenure a United States Attorney O’Neill will be confronted by questions as to whether he lied on his application.
On September 29, 2010, by voice vote the Senate confirmed O’Neill for the position of United States Attorney for the Middle District of Florida.
On October 3, 2010, I published a Truth in Justice editorial addressing the implications of the handling during the nomination/confirmation process of issues like the false statement by the Department of Justice and Senate Judiciary Committee with regard to the faith the public may place in assurances by either of these entities or their leadership as to the trustworthiness of other candidates for high government position.
On October 5, 2010, O’Neill was sworn in as United States Attorney for the Middle District of Florida.
[1] The page may be found as an attachment to my July 9, 2010 letter to Attorney General Eric Holder discussed infra.
[2] Such disclosures occurred in my November 30, 1995 letter to John C. Keeney, Esq. Acting Assistant Attorney General for the Criminal Division (at 5), which letter was copied to Attorney General Janet Reno, United States Attorney Charles R. Wilson, and Independent Counsel Larry D. Thompson. Bar Counsel concluded (at 4 of the referenced June 27, 1996 letter) that my disclosures, “while not technically in compliance with Rule XI [of the District of Columbia Court of Appeals’ Rules Governing the Bar], do not warrant responsive action on our part.” Bar Counsel noted that its ruling did not foreclose the respondents from raising the matter with the Board of Professional Responsibility or the court. But I am unaware of any further action taken by the respondents concerning the matter.
[3] A version of this addendum prior to July 11, 2010, included a note at this point concerning my thinking regarding disclosure:
I am likely being too scrupulous in not immediately disclosing the circumstances of the initiation of the Bar Counsel investigation. Rule XI of the District of Columbia Court of Appeals’ Rules Governing the Bar could hardly be intended to preclude someone from making public that a candidate for a United States Attorney position lied about a Bar Counsel investigation in the course of attempting to secure that position. Further, there may be constitutional questions as to whether Rule XI can preclude me from making public anything I want about the investigation. But there is little harm to the public in allowing Bar Counsel, the Department of Justice, the press, and the attorneys who were subject to the investigation a reasonable opportunity to fulfill their obligations to bring the matter to light (as discussed infra).
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