James P. Scanlan, Attorney at Law

Addendum 7 – Swartz’s Conduct in Responding to Allegations of Prosecutorial Misconduct as a Case Study for Developing Procedures to Require That Prosecutors Respond Honestly to Such Allegations  (Sept. 6, 2010; rev. Feb. 12, 2011) [a7]

Note added February 7, 2011:  My September 4, 2010 Truth in Justice editorial (“Doubtful Progress on Professional Responsibility at DOJ”) highlighted Bruce C. Swartz’s conduct in defending against allegations of prosecutorial abuse in the Dean case and suggested that such conduct would provide a useful case study for illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations.  The items also suggested that the Department of Justice require that in responding to allegations of prosecutorial abuse prosecutors shall provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. This addendum was created as a further development of those points and was then referenced as such in Truth in Justice editorials of September 26, 2010 (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”) and February 6, 2011(“Bruce Swartz ­– Our Man Abroad”).  But a reader directly accessing this item should not lose sight of the fact that the Bruce C. Swartz profile and much of Section B of the Prosecutorial Misconduct page are substantially comprised of accounts of Swartz’s deceiving the courts in defending against allegations of prosecutorial abuse, especially Sections A through D and Addendums 2, 3, and 4 of the profile (some of which are separately accessible  by the indicated links).  Those parts mainly address Swartz’s actions in orally deceiving the courts.  The material below is limited to discussing how, with regard to a few particular matters, the requirement of affidavits might have prevented, or at least made more difficult, the deceiving of the courts.  Some of the same things could be said about deceptions described in the parts just referenced.  But, in any case, a reader of the limited treatment below should not regard it as reflective of the scope of Swartz’s actions in endeavoring to deceive the courts concerning the nature of the conduct of Independent Counsel attorneys under Swartz’s supervision including that in which he was personally involved.  Even the entire profile and PMP merely provide abbreviated treatments of parts of matters addressed in the December 1, 1994 materials and Dean February 1997 motion. 

There are numerous examples in the Independent Counsel Opposition authored by Swartz and Robert J. Meyer illustrating the need for affidavits and several of these may eventually be addressed further.  Some of these are discussed in the Introduction and Summary to the materials provided the Department of Justice on December 1, 1994, and its narrative appendixes, as well as in Dean’s February 1997 motion, which addresses some matters that had not been discovered as of December 1994.  And Swartz’s efforts to deceive the courts in responding to Dean’s allegations of misconduct are the principal subjects of several parts of the main body and certain addendums to this profile, as well as parts of Section B of the main Prosecutorial Misconduct page.

A serious problem with a failure to require affidavits is that otherwise, as in the referenced Independent Counsel Opposition, prosecutors responding to misconduct allegations may merely make arguments about how the facts might provide an innocent basis for the challenged conduct, while never explicitly stating their true reasons for acting as they did.  In many places I have maintained that in context these arguments are at least implied representations.  But the process of revealing the truth would be much more effective if the prosecutors were required to make explicit representations and to do so under oath.

A useful example is found in the Section B.3 of PMP (also discussed in Section D infra), both with regard to the failure to make a Brady disclosure of the Mitchell telephone messages slips (which indicated that in January 1984 John Mitchell had been talking to Lance Wilson about the Arama funding and that Wilson had told Mitchell he was talking to Barksdale about the matter) and the failure to bring the information on the message slips to the attention of Maurice Barksdale before having him testify in a manner inconsistent with the information on the message slips. 

As to the former issue, the Opposition (at 11) asserted there was no obligation to identify the message slips as Brady material because they “were as consistent with guilt as with innocence,” further suggesting, with cryptic references to the fact that the award took place after Wilson left HUD and a post-award call to Mitchell, that the message slips were incriminating by “reinforc[ing] the defendant’s role.”  The Independent Counsel court of appeals brief (47), also authored by Swartz and Meyer, asserted that the message slips “were not exculpatory,” again going on to suggest that they were incriminating for cryptic reasons akin to those mentioned in the district court.  As discussed in Section D, in oral argument Swartz stated that the message slips were “far from being exculpatory” (while obliquely phrasing the response in terms of “the government’s position is”).  But there he advanced a new a new theory as to why the slips were incriminating.[i]  Evolving reasons as to the basis for attorneys’ thinking at the time they made certain decisions highlights the avoidance of the responsibility to explain the reasons underlying the decisions at the time they were made and even suggests a scenario whereby very intelligent or creative people would be called in after the fact to develop theories supposedly underlying actions previously taken by other people.  In any case, it would be a much harder thing for an attorney to say in an affidavit that he believed that the message slips were as consistent with guilt as with innocence (or were deemed incriminating) and that such was the true reason for failing to identify them as Brady material.[ii]

As to the failure to confront Barksdale with the information on the message slips, no person of modest intelligence could believe other than that the failure was motivated by a concern that doing so would cause Barksdale to state (truthfully) that Wilson had caused the funding and Dean was not involved, and that Independent Counsel attorneys instead went forward with the hope and expectation of eliciting false testimony that would support of their claim.  Here Independent Counsel attorneys never even impliedly advanced a reason for failing to confront Barksdale with the information.  Rather, they merely asserted that the government does not have “an affirmative duty to question any potential witness before trial in order to seek out all potentially material evidence conceivably related to the defense."  Opposition at 16-17 (original emphasis).

Requiring affidavits would not alone solve all problems.  Attorneys still might respond evasively, including by stating what their responsibilities were rather than what their reasons were, and in many other ways.  And, particularly with regard to matters as serious as the pressuring of Supervisory Special Agent Alvin R. Cain, Jr. to provide testimony intended to lead the jury to believe things prosecutors and Cain knew to be false (as discussed in the September 4, 2010, and February 6, 2011 Truth in Justice editorial and Section A supra), attorneys may choose to commit perjury rather than reveal their actual conduct.  It discloses nothing confidential about the District of Columbia Bar Counsel investigation to note that in responding to the investigation at the time that it was limited to the issues discussed by the court of appeals, an attorney representing Swartz and O’Neill (among others) stated on behalf of the respondents (Oct. 20, 1995 Response at 11): 

[Respondents] wish to advise Bar Counsel that if they had noticed truly exculpatory documents within the production made in discovery, they would have specifically called the attention of defense counsel to those documents, rather than leaving the defense to discover then on its own.

Given what is known not only about the message slips but the many other documents specifically contradicting things Independent Counsel attorneys attempted to prove at trial (including, just as one example, the items discussed in Section B, supra),[iii] no intelligent person could regard this representation that Swartz and his co-respondents allowed to be made of their behalf as other than false.  When making this representation (before Dean’s counsel or I knew of the Bar Counsel investigation) respondents believed that all they had to contend with were the Mitchell slips discussed by the court of appeals.  The respondents (who, it also warrants note, never brought a single document to the attention of the defense) might have been more cautious, if not more truthful, in their representation had they been confronted with the varied other exculpatory documents that they chose not to bring to the attention of counsel.  But the representation does reveal that government attorneys will make specific statements that they know to be false in order to defend themselves.  And persons who are willing to make false statements, as a group, to Bar Counsel through their counsel might also make false statements under oath.  Nevertheless, requiring affidavits still would be likely to promote the disclosure of the truth in inquiries into prosecutorial abuse, especially if courts are willing to ensure that the affidavits are responsive to the issues and to scrutinize the plausibility of the prosecutors’ sworn statements. 

See Appendix A to my February 1996 District of Columbia Bar Counsel submission, which sets out questions for Bar Counsel to require respondents to answer by affidavit.  Bar Counsel’s decision gives no indication that its attorneys ever read this item.  But had Bar Counsel required affidavits along the suggested lines, the outcome of that proceeding might have been quite different.

At the time of submitting Appendix A to Bar Counsel, I apparently had not discovered the Sankin Harvard Business School application that was exculpatory as to two project in Count Two of the Superseding Indictment (the item discussed in Section B.7a of PMP, as well as the Introduction and Section D of this profile, that was actually for a time withheld and then actually hidden).  But consider the following question to which it would be reasonable to require the respondent Independent Counsel attorneys to provide answers: 

a. When did Independent Counsel attorneys become aware of the document?

b. Why was the document not produced as Brady material?

c. Why was the document not provided at all in the Sankin production during discovery?

e. Why was the document inserted in the massive collection of Stanley Arms materials when it was finally provided as part of a preliminary exhibit production?

f. Was the item inserted in the Stanley Arms materials in order to diminish the chance that the defendant would discover it?

And so on.  But as illustrated in the referenced Appendix A, there exist numerous comparable examples where true answers would repeatedly reflect what most people would regard as outrageous government misconduct.