David Margolis, Associate Deputy Attorney General
John C. Keeney, Deputy Assistant Attorney General, Criminal Division
Marshall Jarrett, Counsel, Office of Professional Responsibility, Department of Justice
Howard Sribnick, General Counsel, Office of Inspector General, Department of Justice
Subcommittee on Commercial and Administrative Law
Committee on the Judiciary
United States House of Representatives
July 27, 2000Good Morning, Mr. Chairman and Members of the Subcommittee. We are pleased to present the views of the Department of Justice concerning H.R.4105, a bill to establish the "Fair Justice Agency" as an independent agency for investigating and prosecuting alleged misconduct, criminal activity, corruption, or fraud by an officer or employee of the Department of Justice. The Department objects to the proposed legislation because it is unsound as a matter of public policy and may be unconstitutional.
Specifically, we oppose H.R.4105 because it purports to address deficiencies in our law enforcement efforts that do not exist, and, if enacted, would do little or nothing to bolster the confidence of the American people in the fair and vigorous enforcement of federal law. Moreover, the bill could be construed as an attack on the integrity, professionalism, and competence of federal law enforcement officials who execute the criminal laws with respect to all citizens. Finally, we oppose the legislation because it raises serious constitutional concerns by impinging on the constitutional duties assigned to the President under Article II, Section 3 of the Constitution.
Let us begin by discussing how the Department’s existing mechanisms already address the concerns that underlie H.R.4105. It is, of course, imperative that the public be confident that professional misconduct, both criminal and non-criminal, is not tolerated among Government officials generally, and in federal law enforcement agencies, in particular. To that end, the Department of Justice devotes substantial resources to the investigation and prosecution of public officials who engage in criminal conduct. In addition, where misconduct falls short of a criminal violation, or where for whatever reason, criminal prosecution cannot be sustained, the Department imposes rigorous discipline for failure to meet required standards of professionalism. Finally, the Department does not wait for misconduct to occur to act: we engage in ongoing Department-wide training in the standards of conduct that must be maintained by attorneys, agents, and other employees.
Our recusal policies work to avoid conflicts of interest in investigations and prosecutions.
Before discussing the various components, let us make clear one overarching principle: persons with an interest in the outcome of a particular investigation are not permitted to participate in that investigation. The Department of Justice employs a variety of means to ensure that allegations against Department employees -- whether they be United States Attorneys or other attorney professionals, Special Agents and supervisors of the Federal Bureau of Investigation or Drug Enforcement Administration, officials of the U.S. Marshals Service, INS and Border Patrol officials, or employees of any one of myriad other Department components -- are pursued vigorously, fairly, and without either the reality or the potential perception of partiality. To ensure the integrity of investigations of Department officials, the Department of Justice has in place long-established practices that permit, and in some cases, require the recusal of prosecutors and, often, entire offices with original jurisdiction over investigations of Department personnel. Thus, for example, a U.S. Attorney for one district would not ordinarily supervise a criminal investigation into the activities of an Assistant U.S. Attorney in the same district. Likewise, if an investigation of a law enforcement officer presented a conflict for a U.S. Attorney’s Office because of a longstanding working relationship with that officer or other reasons, we have long had in place procedures to permit the recusal of that office and substitution of another prosecuting office, including, but not limited to the various components of the Department’s Criminal Division. Nor would an agent with substantial personal or professional ties to another agent or employee under investigation participate in conducting or supervising that investigation. Indeed, as the Subcommittee is probably aware, the Code of Federal Regulations contains provisions governing conflicts of interest involving Department personnel. These recusal procedures effectively ensure that persons with conflicts of interest in particular prosecutions -- e.g., one prosecutor supervising an investigation of her longtime co-worker -- are walled off from the prosecution, thereby furthering public confidence in the objectivity and regularity of our decision-making.
The Department’s various institutional components foster public confidence.
The Department of Justice has in place several components that work independently of each other, but which produce a coordinated response to allegations of professional or criminal misconduct within our ranks. Each has a distinct function, including 1) criminal investigation and prosecution conducted by the Department’s Criminal Division and U.S. Attorney’s Offices in each federal district in the country; 2) criminal and administrative investigations of Department of Justice employees, including investigations of attorneys when the allegations do not relate to the attorneys’ authority to investigate, litigate, or provide legal advice, conducted by the Department’s Office of Inspector General; 3) criminal and administrative investigations of attorneys, as well as agents, where the allegation of professional misconduct relates to a Department attorney’s exercise of authority to investigate, litigate, or provide legal advice, conducted by the Department’s Office of Professional Responsibility; and 4) criminal and administrative investigation of employees of the Federal Bureau of Investigation (FBI) through the FBI’s Office of Professional Responsibility, and Drug Enforcement Administration (DEA) through the DEA’s Office of Professional Responsibility. Additionally, the Department provides continuing ethics training for employees, in part coordinated by a Department-wide Professional Responsibility Advisory Office, and Professional Responsibility Officers within each litigating unit of the Department.
The Criminal Division and the U.S. Attorney’s Offices
One of the primary means by which the Department of Justice fights misconduct by public officials, including its own employees, is by criminal investigation and prosecution carried out by the various components of the Criminal Division at Main Justice and the U.S. Attorney’s Offices throughout the country. As the Criminal Division’s Public Integrity Section informed Congress in its "Report to Congress on the Activities and Operations of the Public Integrity Section for 1998," submitted pursuant to the Ethics in Government Act of 1978, the Department obtained convictions against more than 8,500 federal officials nationwide during the two decades from 1979 and 1998. The overwhelming majority of these convictions have been obtained against Executive Branch officials. While we do not maintain statistics specifically on the number of criminal prosecutions of Department employees, a cursory review of the Public Integrity Section’s annual reports reveals that in any year, several Department officials suffer criminal prosecution.
Criminal prosecutions against officials and employees of the Department have run the gamut of federal offenses, including bribery, extortion, narcotics offenses, mail and wire fraud, perjury, obstruction of justice, criminal conflict of interest, and others. Indeed, among the several prosecutions of Department of Justice lawyers by other Department of Justice lawyers within the past twenty years was the indictment and conviction on federal drug charges, as well as violations of the federal false statements statute stemming from denials of drug use in an application for a security clearance, of a lawyer who was then employed in the Office of an Attorney General.
The Public Integrity Section’s reports to Congress for the years 1995 through 1998 reveal various prosecutions of Department employees, including federal prosecutors and law enforcement agents convicted of serious felony offenses, which belie any notion that we are unable or unwilling to address misconduct by our employees. These reports do not, of course, present a complete picture because the Public Integrity Section summarizes only its own activities in the case descriptions. It does not summarize the cases brought by the U.S. Attorney’s Offices, which prosecute the vast majority of public corruption cases nationwide, or other Criminal Division components (though the statistics on the numbers of prosecutions are nationwide statistics). Criminal allegations reach the prosecuting components from a variety of sources, including the Department’s investigating components described below, Congress, and the public.
The Office of Inspector General and Office of Professional Responsibility
Keystones of the safeguards to ensure the public trust in the integrity and professionalism of Department of Justice personnel are the Office of Professional Responsibility (OPR) and the Office of Inspector General (OIG). As indicated above, OPR investigates allegations of misconduct by Department of Justice attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice. In addition, OPR has jurisdiction to investigate allegations of misconduct by law enforcement personnel when they are related to allegations of misconduct by attorneys already within OPR’s jurisdiction. OIG, on the other hand, handles allegations of misconduct by Department of Justice attorneys that do not relate to their authority to investigate, litigate, or provide legal advice.
Under applicable guidelines, Department of Justice employees are required to report to their supervisors, or directly to OPR, any evidence and non-frivolous allegations of serious misconduct by Department attorneys relating to their authority to investigate, litigate, or provide legal advice. When misconduct is reported, the supervisor must determine whether the alleged misconduct is sufficiently serious to be reported to OPR. Moreover, any judicial finding of attorney misconduct relating to their authority to litigate, investigate, or provide legal advice must be reported to OPR, which is obligated under the Attorney General’s guidelines to conduct an expeditious investigation except under extraordinary circumstances, without waiting for further judicial or appellate proceedings. Judicial findings of attorney misconduct not related to an attorney’s authority to litigate, investigate, or provide legal advice must be reported to, and are investigated by, OIG.
With respect to judicial findings of attorney misconduct, wholly apart from OPR’s investigative mandate, the recently-enacted McDade legislation already subjects Department of Justice attorneys to the rules of state bar associations, and the so-called Hyde Amendment permits defendants who are acquitted to seek damages from the Department to the extent that they can prove that their indictment and prosecution were pursued in bad faith. Thus, even beyond the rigid safeguards within the Department of Justice, professional misconduct by Department of Justice attorneys is also a matter that can be addressed by the courts, as well as by professional licensing authorities.
The Office of Inspector General (OIG) is a statutorily-created independent entity within the Department of Justice, subject to the general supervision of the Attorney General, that conducts and supervises audits, inspections, and investigations relating to the programs and operations of the Department; recommends policies to promote economy, efficiency, and effectiveness and to prevent and detect fraud and abuse in Departmental programs and operations; and keeps the Attorney General and Congress informed about the problems and deficiencies relating to the administration of the Department and the necessity for and progress of corrective action.
In order to carry out its responsibilities, the OIG:
(1) Audits and inspects Department programs and operations as well as non-Department entities contracting with or receiving benefits from the Department;
(2) Investigates allegations of criminal wrongdoing and administrative misconduct on the part of certain Department employees;
(3) Investigates allegations that individuals and entities outside of the Department have engaged in activity that adversely affects the Department’s programs and operations;
(4) Undertakes sensitive investigations of Department operations and/or personnel, often at the request of senior Department officials or Congress.
Department of Justice employees must report evidence and non-frivolous allegations of waste, fraud, or abuse relating to the programs and operations of the Department to the OIG or to a supervisor for referral to OIG. Evidence and non-frivolous allegations of serious misconduct by Department employees (other than employees of the FBI or DEA) outside the jurisdiction of OPR (i.e., allegations not related to misconduct pertaining to an attorney’s authority to investigate, litigate, or provide legal advice) must also be reported to OIG. Evidence and non-frivolous allegations against FBI personnel must be reported to FBI OPR; likewise such evidence or allegations against DEA personnel must be reported to DEA OPR.
Generally, the activities of OPR and OIG are not publicly known. Unlike criminal cases, there exists less of a public record of administrative sanctions against Department personnel that may easily be consulted to ensure regularity. This reduced transparency is, of course, due in part to the Privacy Act, which prohibits disclosure of certain kinds of information from government record-keeping systems. That said, OPR submits annual reports to the Attorney General which describe its work and provide information about the nature of specific allegations it has handled. These reports are available to the public. In addition, OIG reports to the Attorney General and Congress on a semi-annual basis a summary of all of its significant audits and investigations completed during the preceding six-month period.
The Attorney General has recognized that transparency with respect to the handling of alleged misconduct on the part of Department employees is important. In December 1993, the Deputy Attorney General announced a new policy governing public disclosure of OPR’s findings in certain cases. That policy, the procedures for which were designed by the Office of Legal Counsel to comport with the restrictions of the Privacy Act, calls on the Department to disclose the final disposition, after all available administrative reviews have been completed, of matters in the following categories:
a. A finding of intentional or knowing professional misconduct in the course of litigation or investigation where the Attorney General or Deputy Attorney General finds that the public interest in disclosure outweighs the privacy interest of the attorney and any law enforcement interests;
b. Any case involving an allegation of serious professional misconduct where there has been a demonstration of public interest, including referrals by a court or bar association, where the Attorney General or Deputy Attorney General finds that the public interest in disclosure outweighs the privacy interest of the attorney and any law enforcement interests;
c. Any case in which the attorney requests disclosure, where law enforcement interests are not compromised by the disclosure.
If a matter appears to meet these criteria, OPR prepares a summary of the matter including the employee's name, sufficient facts to explain the context of the allegation, and the final disposition. This summary is submitted to the Department's Office of Information and Privacy ("OIP"), which determines whether the Privacy Act permits disclosure of the included information and whether revisions should be made to the summary prior to disclosure. If OIP advises that the statement is appropriate for disclosure, the summary is sent to the employee and the appropriate supervisory official, and both are given the opportunity to make written comments and objections to the proposed disclosure on grounds of privacy or law enforcement concerns. Any such objections are reviewed by OIP.
OPR forwards the proposed summary to the Deputy Attorney General with its recommendation regarding release and attaches all comments that were received. The final decision on whether to release a summary is made by the Attorney General. If the Attorney General decides that disclosure is appropriate, the summary is forwarded to the Office of Public Affairs for release.
Even where a particular matter is not deemed suitable for release, disclosure of OPR and OIG investigations occurs in their respective annual or periodic reports. That is, in those significant cases in which an investigation into allegations of misconduct of an individual employee may not describe the employee by name, abstracts of those cases allow public accountability of the Department of Justice as an institution.
Professional Responsibility Advisory Office
On March 30, 1999, the Attorney General created the Professional Responsibility Advisory Office (PRAO), which reports to the Deputy Attorney General. In so doing, the Attorney General established a centralized office with six core functions:
(1) to provide definitive advice to Department attorneys on issues relating to professional responsibility;
(2) to assemble and to maintain the codes of ethics, including, among other things , all relevant interpretative decisions and bar opinions of the District of Columbia and every state and territory, and other reference materials, and to serve as a central repository for briefs and pleadings as cases arise;
(3) to provide coordination with the litigating components of the Department to defend attorneys in any disciplinary or other hearing where it is alleged that they failed to meet their ethical obligations;
(4) to serve as liaison with the state and federal bar associations in matters related to the implementation and interpretation of 28 U.S.C. § 530B ("ethical standards for attorneys for the Government") and amendments and revisions to the various state ethics codes;
(5) to coordinate with other Department components to conduct training for Department attorneys and client agencies to provide them with the tools to make informed judgments about the circumstances that require their compliance with Section 530B, the Hyde Amendment, or other professional responsibility requirements; and
(6) to perform such other duties and assignments as determined from time to time by the Attorney General or Deputy Attorney General.
Thus, the PRAO serves as yet another resource to ensure that our attorneys conform to appropriate ethical and professional standards in the course of investigation and litigation.
Coordination of efforts to ensure appropriate responses
These various components work cooperatively to ensure that allegations of employee misconduct are investigated by the appropriate entity. Once OPR or OIG -- or DEA or FBI OPR -- receives a non-frivolous allegation of misconduct, those offices must assess whether the allegation suggests the possible commission of a crime. If so, those offices refer the allegations to an appropriate prosecuting office. Depending on the circumstances -- including whether the Office of the United States Attorney in the district in which venue for prosecution would ordinarily lie has a conflict of interest, or whether a Main Justice prosecuting office enjoys original jurisdiction over a particular type of matter -- the matter is then reviewed by a U.S. Attorney’s office or the Criminal Division at Main Justice. Exercising appropriate prosecutorial discretion and working with law enforcement agents, those offices would then decide whether further investigation or prosecution is warranted. They decide whether to take a case to indictment and trial, or whether to decline prosecution. If prosecution of an employee is declined, the matter is then referred to OPR or OIG for consideration of administrative action. Those offices then determine what, if any, investigative steps are warranted to resolve the allegations.
The coordinated efforts of these anti-corruption offices throughout the Department demonstrate that our officials and employees can and do vigorously root out misconduct within our ranks. The annual reports of the Public Integrity Section, OIG, and OPR illustrate their serious efforts and paint a portrait of public servants who investigate, prosecute, or otherwise resolve allegations of misconduct because they understand that corrupt or seriously unprofessional colleagues endanger the institutions for which they work and, ultimately, the public that they serve.
Special prosecutor guidelines
Notwithstanding the many procedural safeguards of the integrity of investigations and prosecutions described above, there may be individual cases in which an actual personal, political, or other conflict of interest might require the Attorney General to recuse herself or the entire Department. This possibility underlies the recently-promulgated regulations pursuant to which the Attorney General may determine whether to appoint a special prosecutor to handle particular matters.
With all these procedures and institutional safeguards in place, it is counterintuitive to suggest that Department of Justice is unable or unwilling effectively to investigate and prosecute wrongdoing by Department personnel, including attorneys and agents. Indeed, the current system engenders confidence in the fairness and regularity of such investigations and prosecutions precisely because its procedures guarantee that no preexisting relationship exists between the prosecutor and the prosecuted, or the investigator and the investigated. Moreover, as we have discussed, our institutions and regulations assure the orderly reporting, supervision, and investigation or prosecution of misconduct allegations. In short, existing law and practice already provide for the sort of investigative and prosecutive independence, as well as the coordinated response to possible misconduct, that H.R. 4105 purports to create in the proposed Fair Justice Agency.
Let us now turn to a discussion of why H.R.4105 would be bad public policy, unwise, and possibly unconstitutional:
H.R. 4105 would undermine, rather than promote, public confidence.
This bill would undermine, rather than promote, confidence in the fairness and objectivity of the investigative and prosecutive function. Numerous factors inform the Department’s decisions about the merits or deficiencies of particular cases. These factors have been developed over years of experience and involve, in part, an effort to ensure the even-handed enforcement of the laws. Collectively, we benefit from thousands of years of experience and institutional memory on which we may draw in determining whether an investigation or prosecution should proceed. Department officials do not decide whether to investigate or prosecute based on who the subject is; instead, we act based on the nature of the alleged conduct, the quality of the proof, the likelihood of conviction, and a host of other factors that both support and mitigate the need to pursue a prosecution. This analysis, of course, is the essence of prosecutorial discretion.
H.R. 4105 would create a team of permanent prosecutors who would make their living prosecuting a class of persons based in part on their status as Department of Justice officials. Even if it were staffed by an army of former Department prosecutors, the proposed Fair Justice Agency would lack the institutional memory and historical resources that we find so critical to ensuring even-handed and balanced application of the law. Within the Department of Justice are years and years of non-public materials, including prosecution memoranda and internal statements of policy and practice, that would be unavailable to the proposed agency.
Moreover, because H.R.4105 would vest protection against removal in its Director that far exceeds that of any Member of the President’s Cabinet or even the Director of the Federal Bureau of Investigation, who serves a ten-year term at the pleasure of the President, the proposed agency would be virtually unaccountable. This proposed agency would not even be obliged to observe Department of Justice policies, practices, and precedents -- which govern our current assessment of the prosecutive merits of a case against any other person in the United States -- in investigating and prosecuting Department of Justice personnel. Nor would the Director report to the Attorney General, who under the proposed legislation, would have no supervisory role over the new agency. In these respects, the bill would vest in a new agency substantially more unchecked and extraordinary power than that which proved unworkable under the now-lapsed Independent Counsel statute. As is discussed below, this flaw renders the bill not only unwise as a matter of public policy, but also possibly unconstitutional.
H.R.4105 would introduce uncertainty into law enforcement functions.
H.R.4105 would neither confer on the proposed Fair Justice Agency exclusive jurisdiction to investigate and prosecute misconduct by Department of Justice officials nor authorize the Agency to investigate and prosecute persons who are not officers or employees of the Department of Justice. The legislation does not purport to strip jurisdiction to investigate and prosecute Department of Justice employees from the Department itself. As such, the bill gives no guidance as to how the proposed Fair Justice Agency would interact with the Department of Justice in the event of jurisdictional conflict. Likewise, it ignores the reality that allegations of criminal misconduct against Department employees routinely involve allegations against others outside the Department, both as subjects of the allegations and as parties in collateral investigations and prosecutions. A simple example makes clear this critical point. Consider a case involving the payment of bribes to a Department of Justice official by a private person or business entity. In such a foreseeable event, both the Department of Justice and the proposed new agency would be authorized to prosecute at least one side of the bribe. Indeed, the Department of Justice could continue to prosecute both sides of the transaction. This proposed construct permits us to envision a rush to the grand jury by competing prosecuting authorities, as well as litigation over which "United States" could prosecute which aspect of a given case. The scope and method of investigation could also have significant impact on other pending investigations and litigation. There is no apparent advantage attendant to the introduction of confusion and inefficiency engendered by the proposed legislation.
While there were jurisdictional disputes with independent counsels under the now-lapsed Independent Counsel statute, those disputes pale in comparison to what would occur under the regime contemplated by H.R.4105. Independent counsels investigated identifiable and known persons. To the extent that they needed to expand their jurisdiction, it was by comparison a simple matter to consult with the Attorney General and allow her to decide whether to grant the requested expansion of jurisdiction. By contrast, because the proposed Fair Justice Agency would exist in perpetuity and have a mandate simply to investigate and prosecute misconduct on the part of literally thousands of persons, it would rarely if ever be known across agency and Departmental lines whether there was duplication of resources or whether two prosecutors were working at cross purposes. Imagine that a U.S. Attorney’s Office might be investigating an allegation against a Department employee who is simultaneously being investigated by the proposed agency. This legislation contains no mechanism and no chain of command to resolve such conflicts, which might reasonably be expected to produce plea agreements, grants of immunity, and numerous other common investigative tools in one prosecutor’s office that might well conflict with -- and even obstruct -- the investigation supervised by another prosecutor. Foreseeably, the Department -- lacking knowledge of the existence or status of specific allegations -- would be deprived of information critical to its own staffing and case management decisions.
Further, such a convoluted structure would seriously undermine the ability of the Department to appropriately inform judges and defendants in pending matters -- as it must do under Brady v. Maryland and its progeny to ensure the fairness of criminal trials -- of allegations of wrongdoing against prosecutors or agents involved in the case. This result would redound to the detriment of all parties in litigation. Criminal defendants would be deprived of information that would otherwise allow them to challenge credibility or biases of law enforcement witnesses. Moreover, the people and their government would suffer because otherwise validly-obtained convictions would be overturned because exculpatory or impeaching material relating to investigations of law enforcement witnesses being conducted by the proposed Fair Justice Agency was not shared with the Department to allow its timely disclosure at trial. Such foreseeable consequences of this bill surely would not promote but, rather, would undermine the efficient and effective administration of justice.
H.R.4105 raises serious constitutional concerns.
The proposed independence of the agency and the tenure protection afforded the Director would interfere with the President’s exercise of the "executive power" and his ability to fulfill his duty to "take Care that the Laws be faithfully executed," set forth in Article II, Section 3 of the Constitution. As such, we believe the bill poses a serious threat to the core constitutional values of political accountability and coordinated Executive Branch policy-making. While we would require more time to study these issues before speaking definitively about our tentative view that the legislation would be unconstitutional, we observe here that in Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court upheld against constitutional challenge the provision of the Ethics in Government Act limiting removal of an independent counsel to situations in which the removal was for "good cause."
As we have already opined, the powers of the proposed Director of the Fair Justice Agency far exceed those of an independent counsel under the Ethics in Government Act. Under H.R. 4105, removal by the President could occur only in the event of "inefficiency, neglect of duty, or malfeasance." Because these limitations on Executive power far exceed those that existed under the Independent Counsel Act, we are far from confident that the limited holding in Morrison v. Olson would permit the usurpation of the presidential authority and prerogatives contemplated in this legislation.
Mr. Chairman, Department of Justice officials should be, and are subject to the same criminal laws as all other Americans. Likewise, we must be, and are, held to account for violations of those laws to the same extent as all other Americans. This flawed bill would not improve the enforcement of the law against Department of Justice officials who violate the law. Instead, it would single out federal law enforcement personnel within the umbrella of the Department of Justice to be prosecuted under unknown standards by an unbridled prosecuting authority. Such a course would be profoundly unwise and would work innumerable harms on the federal law enforcement apparatus. Moreover, the proposal is of dubious constitutionality. Finally, the suggestion that the Department of Justice cannot police the misconduct of its own employees in the ordinary course is simply not supported by the record.
Thank you for the opportunity to appear before you today. We would now be pleased now to answer any questions you may have.