James P. Scanlan, Attorney at Law

This is a more easily accessed version of Section 8 of the main Prosecutorial Misconduct page on jpscanlan.com.  The page is also available as a PDF file with endnotes converted to footnotes.

8.         The Department of Justice’s Role in Perpetuating All Actions of the Independent Counsel [b8]

In approximately July of 1999, while Dean’s February 1997 motion and her request for reconsideration of the ruling on her December 1996 motion were still pending, the case was transferred to the Public Integrity Section of the Department of Justice.  The case was there assigned to Robert J. Meyer, the former Independent Counsel attorney who had signed the opposition to Dean’s November 30, 1993 Rule 33 Motion.  See the Robert J. Meyer profile.  In addition to the December 17, 1999 letter to Robert J. Meyer, the implications of the Department of Justice’s assumption of responsibility for continuing the Dean prosecution are discussed in my letter of December 26, 1999, to Attorney General Janet Reno, Deputy Attorney General Eric Holder,  and other officials of the Department of Justice and my letter of January 22, 2000, to H. Marshall Jarrett, Counsel for the Office of Professional Responsibility.

Robert J. Meyer left the Department of Justice some time in 2000 and by notice of August 30, 2000, responsibility for the case was assumed by Public Integrity Section attorney Raymond N. Hulser.  In March 2001, Hulser moved for a hearing to resolve the case.  When Dean argued that the government had not yet responded to her pending motions, in a document dated March 28, 2001, Hulser maintained that the Independent Counsel had provided detailed pleadings stating why Dean’s request for reconsideration of the ruling on her motion to overturn Count One should be denied and her motion for a new trial should be stricken.  Thus, while presumably knowing that the Independent Counsel had repeatedly attempted to deceive the courts, and that the Independent Counsel’s representation in the motion to strike Dean’s February 1997 motion that there had been no efforts to deceive the court previously in the case was false, the Department of Justice took an affirmative step toward continuing the concealment of Independent Counsel actions regarding such matter.  But, even without such affirmative action on the part of the Department of Justice, assuming that it was aware that Independent Counsel attorneys had used false evidence or attempted to deceive the court previously in the prosecution of the case, it could fairly be said that the failure of Department of Justice attorneys to bring such matters to the attention of the court involved a perpetuation of that conduct.

Such points, however, pertain to the role of the Department of Justice in the prosecution of the case after it replaced the Independent Counsel as the prosecutor and the actions of the Independent Counsel became Department of Justice actions.  Also deserving of examination are the actions of the Department of Justice when the case was still being handled by the Office of Independent Counsel and the Department’s role was limited to determining whether to investigate the Office of Independent Counsel and whether actions of Department of Justice attorneys while serving in the Office of Independent Counsel warranted their removal from positions in the Department of Justice   In that regard, I suggest the reader examine the letters to me from Counsel for the Office of Professional Responsibility Michael E. Shaheen, Jr. dated June 28, 1995, and January 30, 1996, and my responses dated August 15, 1995, and March 11, 1996, and, in light of those responses, consider whether the Shaheen letters either accurately characterize the matters at issue or reflect an appropriate concept of the role an overseer or prosecutorial conduct. 

The March 11, 1996 letter explains that the only matter as to which the Shaheen’s January 30, 1996 letter even accurately characterized the issues – that is, “that the jury chose to believe these government witnesses and to disbelieve as not credible the testimony of Ms. Dean” – involved the testimony of Supervisory Special Agent Alvin R. Cain, Jr.  Shaheen never responded to my request that he explain to me whether the Department’s decision not to take any action – whether with regard to an investigation of the Office of Independent Counsel or the removal of Robert E. O’Neill and Bruce C. Swartz from positions in the Department of Justice – was based on the view that their conduct was permissible because Agent Cain’s testimony was, or was supposed to be, literally true.

In any event, particular attention should be given to the apparent view in the Shaheen letters that, if the extent of misconduct of government attorneys is not revealed in the court proceedings, the authority overseeing the conduct of those attorneys is absolved of responsibility in the matter – and that such view holds even when the government attorneys’ misleading of the courts was the reason that the misconduct was not revealed.  Further, implicit in Associate Deputy Attorney General David Margolis’s raising of the issue of whether Agent Cain’s testimony might be literally true – which was apparently suggested as a rationale by which the Independent Counsel actions would not have been as egregious as I was portraying them – is the view that it is permissible both for government attorneys  to lead the court and jury to believe things those attorneys know be false as long as the testimony offered for that purpose is literally true and for government attorneys to mislead the court in effort to conceal the nature of the government attorneys’ conduct.  Thus, one must consider the possibility that actions such as those Independent Counsel attorneys apparently undertook with regard to Agent Cain and varied other matters may not in fact be unusual among federal prosecutors.

One should consider also the fact that, apart from Arlin M. Adams himself, most of the offending attorneys had been Department of Justice attorneys before they joined the Office of Independent Counsel, as some would also be after they left the Office of Independent Counsel.  In the court of appeals, both orally and in writing, Deputy Independent Counsel Bruce C. Swartz, in denying that there had been any bad faith on the part of the prosecutors, would emphasize that all involved attorneys were experienced Department of Justice prosecutors.  See generally the profile pages on Jo Ann Harris, Bruce C. Swartz, Robert E. O’Neill, and Paula A. Sweeney.

Jo Ann Harris was lead counsel in the Dean case at the time that the Independent Counsel decided to draft a superseding indictment containing statements or inferences Independent Counsel attorneys knew or believed to be false, and with the evident intention of failing to make Brady disclosures in a timely manner, or at all, of statements or documents that would interfere with the Independent Counsel’s efforts to lead the jury and the courts to believe those things Independent Counsel attorneys knew or believed to be false, and, equally important, with the intention of failing to confront government witnesses with information that would cause them to acknowledge that the testimony the Independent Counsel planned to elicit was false.  See my May 17, 1995 letter to Abner J. Mikva and the Jo Ann Harris profile. 

Prior to serving as an Associate Independent Counsel, Harris had held the position of chief of the fraud section of the Criminal Division and had twice been an Assistant United States Attorney.  After her service with the Independent Counsel, Harris would hold the position of Assistant Attorney General for the Criminal Division.  While there she would be noted in the press for imposing very modest discipline upon a prosecutor who had withheld important evidence from the defense, apparently asserting as the basis for the modest discipline that the prosecutor had failed to recognize the significance of the material withheld.  In 1994, she would be appointed, along with, among others, Deputy Assistant Attorney General Margolis and Counsel for the Office of Professional Responsibility Shaheen, to a newly-created Advisory Board on Professional Responsibility. 

Swartz, whose efforts to deceive the district court and the court of appeals are discussed in some detail in the Cain and Park Towers appendixes, and more recently summarized in the Swartz profile, including (with regard to Park Towers) the way Brady violations assisted in those efforts (see also the profiles on Jo Ann Harris, Paula A. Sweeney, and Robert J. Meyer), would be called upon orally to defend the Independent Counsel conduct with regard to its Brady obligations in court of appeals in response to concerned questioning from Judge Laurence Silberman.  In defending a position on disclosure of Brady materials that Judge Silberman termed “unconscionable” or “ridiculous,” Swartz would seek deference to the position by noting that the approach was developed by a trial counsel who was now the Assistant Attorney General for the Criminal Division.  Judge Silberman seemed to take little comfort in such fact.  See Transcript 40-41, 46.

At any rate, both those who may be skeptical of my allegations as to the nature of Independent Counsel conduct and those who may be skeptical of the ethics of federal prosecutors generally (or of the role of the Office of Professional Responsibility of the Department of Justice in overseeing such conduct) should be aware that the Office of Professional Responsibility is on record that the conduct identified in the December 1, 1994 materials did not call into question the fitness of the involved prosecutors to continue to represent the United States.[i]  

See also (1) Section B.9 infra regarding implications of the former Independent Counsel document manager’s complaint; (2) my emails to the Department of Justice of July 14, 2008 and July 17, 2008 regarding whether Deputy Assistant Attorney General Bruce C. Swartz and (then) interim United States Attorney Robert E. O’Neill should be permitted to remain with the Department of Justice should they now (a) acknowledge their conduct in the Dean case or (b) continue to deny it; and (3) my email to the Department of Justice of April 8, 2009 regarding whether the current Attorney General’s asserted commitment to correcting prosecutorial abuses can be taken seriously if Swartz and O’Neill are permitted to continue serving in their current positions.

***

This section warrants some revisions to expand on the nature of the exchanges with Counsel for the Office of Professional Responsibility Michael E. Shaheen, Jr., and to address certain developments. 

The first development involves certain recent exchanges with the Department of Justice.  By letter of November 2, 2009, I wrote Attorney General Eric Holder principally concerning whether Deputy Assistant Attorney General Bruce C. Swartz ought to be permitted to serve in his current position in light of conduct with which he, Robert E. O’Neill, and other Independent Counsel attorneys were involved in the Dean case.  The letter, which gave considerable attention to Swartz’s action in covering up his own and O’Neill’s conduct regarding Agent Cain’s testimony, also briefly addressed (at 4) issues concerning O’Neill’s candidacy for the United States Attorney position as well as his fitness to serve in his current position as Chief of the Criminal Division of the Office of the United States Attorney for the Middle District of Florida.  By letter dated December 28, 2009, Judith B. Wish, Deputy Counsel for the Office of Professional Responsibility, referencing my November 2, 2009 letter to the Attorney General as well as my emails to the Department of Justice dated July 14, 2008, July 17, 2008, and April 9, 2009, advised that it was the Office of Professional Responsibility’s policy to refrain from investigating issues or allegations that were addressed, or could have been addressed, in the course of litigation, unless a court has made a specific finding of misconduct or there are present other extraordinary circumstances.

By letter dated January 15, 2010, I responded to Deputy Counsel Wish questioning the wisdom of the stated policy and its pertinence to the matters I had brought to the Department’s attention concerning the conduct of Bruce C. Swartz, Robert E. O’Neill and others in the Dean case.  I also raised (at 7-9) issues as to the relevance of the possibility that a matter could have been raised in litigation to the Department’s actions in responding to inquiries by any person or entity regarding Swartz’s actions in his current position and by the President or others involved in the United States Attorney appointment process concerning O’Neill’s suitability for such position.  An important issue regarding the Department of Justice’s handling of this matter in the present will involve how the Department has or will respond to inquiries from the President or Senators regarding that issue, as discussed in a January 26, 2010 Addendum 5 to the O’Neill profile and a January 31, 2010 Addendum 5 to the Swartz profile.

The second involves events relating to the Office of Professional Responsibility Advisory Board and the recent creation of the Claudia J. Flynn Professional Responsibility Award.   While as of my last effort to learn of Department of Justice Actions concerning the advisory board, some time in 1999, it seemed that nothing of substance had been done to follow through with Attorney General Reno’s effort to make the curbing of prosecutorial abuses a Department priority.  But it seems that in or around 2000, the Department created the Professional Responsibility Advisory Office and Deputy Attorney General appointed an attorney named Claudia J. Flynn to head that office.  Then, following the revelations of prosecutorial abuses in the Public Integrity Section that led to Attorney General Eric Holder’s decision to seek dismissal of the case against Senator Ted Stevens, Holder himself announced that he would make the curbing of prosecutorial abuses a Department priority.  As one of the early steps in this effort, Holder announced the creation of a Professional Responsibility Award, which he named after Flynn, who had passed away in the 2006.   The creation of an award for professional responsibility, as if there were levels at which government attorneys ethically conduct themselves, suggests a poor understanding of the standards citizens should be able to expect from all government attorneys.  But given that Flynn assisted Bruce C. Swartz in the effort to increase Dean’s sentence for allegedly lying about the call to Agent Cain (the matter discussed at length in Section B.1 of PMP and section [5] of the Swartz profile though without mention of Flynn), and that this was repeatedly brought to the attention of high officials within the Department even before Flynn was appointed to head the Professional Responsibility Advisory Office, both the 2000 appointment of Flynn and the Department’s recent decision to name a professional responsibility award after her raise additional questions about the judgment of Department officials responsible for oversight of prosecutorial conduct.