Complaints About Justice Department Go Nowhere

By Andrew Kreig / Project Director

Andrew KreigArnett Thomas, a small business contractor, an ex-offender and a community activist from Irvington, New Jersey, travelled from his home near Newark to the nation’s capital this month with a simple objective: He wanted to hand-deliver legal papers to the U.S. Justice Department on behalf of a friend.

But the Justice Department’s rules forbade Thomas and a colleague from dropping off the filing. This was because of federal safety procedures created for installations such as the DOJ that secure potentially controversial personnel. The rules, created after the 2001 anthrax scare in Washington, DC, limit hand-deliveries by the public except in special circumstances. Frustrated by such rules that are largely unknown to the general public, Thomas and his friend, a retired policeman, sought me out at the nearby Justice Integrity Project offices following several months of correspondence with me about their larger concerns. Thomas is chairman of the Essex County Legal Defense Coalition for Sonnie L. Cooper, a defendant in a federal bribery case pending since early in 2010 in Newark’s federal court.  We discussed that case at a coffee shop a block from the Justice Department “Main Justice” headquarters on Pennsylvania Avenue.

Today, I provide my end of that conversation about DOJ complaint procedures. My goal is to guide others trying to find their way through the maze.  In doing so, I’ll show why cockroaches and deadly anthrax vividly illustrate how Washington really works. That comes later.  For now as an overview: Authorities keep procedures needlessly complicated. This complexity discourages complaints.
I won’t attempt in this column to judge the Sonnie Cooper case. Trial is scheduled to begin his June. Several times, as in the unrelated federal prosecution in New Jersey of an accused candidate, Louis Manzo, we have researched a case enough to speak out. Manzo, for example, was prosecuted under a law intended for office-holders, not candidates. All four federal judges ruling on the issue have so decided. But I have not yet studied the Cooper case sufficiently to make those kinds of conclusions.

The Cooper indictment, U.S, v. Salahuddin and Cooper, is here.  A newspaper report about it, tilting to the prosecution view of events as most do, is among the appendix of sources below. The gist of the allegation is that Cooper, owner of a demolition company, gave money illegally to Newark Deputy Mayor Ronald Salahuddin.

Defendants deny the charges, and say that $5,000 check from to Cooper to the official was to repay a pre-existing loan. “Sonnie Cooper was the largest businessman who hired and trained more minorities, ex-offenders, and women than any other businessman in the city of Newark,” says Thomas. He suspects that a government informant has made false claims against Cooper to win leniency for other wrongding. Therefore, Thomas wants the Justice Department’s internal review units to investigate the prosecution evidence pre-trial. More specifically, Cooper and other supporters asked DOJ to probe the procedures of New Jersey U.S. Attorney Paul Fishman, especially use of the $5,000 check as evidence.  DOJ’s Office of Professional Responsibility (OPR) now supervises the complaint against DOJ’s New Jersey office. Cooper delivered the complaint electronically and then unsuccessfully tried to hand-deliver it on his May 12 visit to Washington.

Complaint Procedures
Eric Holder, Jr.The government makes it hard to challenge evidence or prosecutors before trial via complaints except through the prosecutor’s office or the courts. OPR, under the jurisdiction of Attorney General Eric Holder, left, typically undertakes a full review with the possibility of real action only at the end of litigation. It occasionally makes interim reports, usually at the strong promptings of a judge or Congress, with elected representatives usually unwilling to intervene.

Here is OPR's official description of its mission and procedures.

The objective of OPR is to ensure that Department of Justice attorneys continue to perform their duties in accordance with the high professional standards expected of the Nation's principal law enforcement agency.

Some allegations of misconduct by Department attorneys do not fall within the jurisdiction of OPR and are investigated by the Office of the Inspector General (OIG). OPR's jurisdiction is limited to reviewing allegations of misconduct made against Department of Justice attorneys and law enforcement personnel that relate to the attorneys' exercise of authority to investigate, litigate, or provide legal advice. The OIG is required to notify OPR of the existence and results of any OIG investigation that reflects upon the professional ethics, competence or integrity of a Department attorney. In such cases, OPR will take appropriate action.

In general, OPR's stated procedures appear to make sense as a prudent use of scarce public resources.  But this process is unfair to defendants unless DOJ is, in fact, committed to research its own wrongdoing thoroughly at some point, and punish it to deter future misconduct within its ranks.

Leura CanaryIs such a system in place? No.  First, a huge imbalance of resources exists. A wrong-headed prosecution can destroy a defendant’s finances and family, leading to pressures or an unjust guilty plea in ways our project and noted legal scholars have repeatedly documented. By contrast, prosecutors suffer scant sanction even when they grossly abuse their powers. Here are a few recent examples: The Obama administration permitted the nation’s most notorious federal prosecutor, Leura Canary of the middle district of Alabama, to continue in office until May 27. This enabled her to flout U.S. tradition that political appointees resign upon a change of administration and thereby obtain 20 years of pension benefits. This is even even though the Bush-appointee from 2001 is heavily implicated in the government’s framing of Democratic former Gov. Don Siegelman on corruption charges. The Obama administration has ever permitted her and her colleagues to delay responses to motions questioning her about whether she in fact recused herself from the Siegelman case because of her husband's political work against the defendant.

Paul FishmanLack of DOJ oversight has many parallels across the country. The federal prosecutors who tried to frame Republican Sen. Ted Stevens of Alaska in 2008 by withholding evidence are still undertaking high-profile prosecutions in Alabama and elsewhere. Our project has shown major abuses in a federal corruption prosecution in New Jersey headed by Fishman, left, whose office leads the prosecution against Cooper. More generally, a major USA Today investigative series on abusive federal prosecutors last fall has had no discernable impact.  President Obama’s administration has even argued that prosecutors who intentionally framed a suspect causing 20 years needless imprisonment should be immune from any court review or sanction.

Let’s look specifically at OPR.  Chief U.S. District Judge Mark Wolf of Massachusetts, the key living person who helped create of OPR in the 1970s when he was special assistant to then-Attorney Gen. Edward H. Levi, is now a vehement critic of OPR’s effectiveness. According to newspaper reports, Wolf wrote Obama’s Attorney Gen. Eric Holder in 2009 that he needed to increase the effectiveness of OPR to curb the kind of prosecutorial misconduct that Wolf had witnessed in overseeing Massachusetts cases. These included a Alberto Gonzalesmajor Mafia case where Wolf felt compelled to write a 600-page decision documenting evidence of criminal conduct by the top FBI case agent, John Connolly. Because of the judge’s initiaMichael Mukaseytive authorities convicted the former agent Connolly of racketeering and have also accused him of murder. But Wolf’s 2009 letter to Holder reiterated previous ones to Bush Attorney Gen. Alberto Gonzales, left, and Michael Mukasey, right. The judge warned against the danger of the DOJ permitting lax oversight of its over rogue personnel. (Note: As a former law clerk to the judge two decades ago, I have followed his criticisms from afar. I obtained all of the documentation below directly from Google and the court system’s electronic PACER system open to the public because my work now is totally independent of his.)

Finally, the OPR complaint system is marred by a lack of transparency that needlessly confuses the public. Instead, the public receives a false sense of security that complaints will be handled fairly and in a timely fashion. Let'stake a closer look at the bureaucracy's refusal to accept hand-deliveries because of anthrax worries. This arose after letters tainted with a special strain of anthrax were received by mail at the offices of Senate Majority Leader Thomas Daschle D-SD) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT), among others, shortly before their votes on the Patriot Act in 2001.

If anthrax fears are such a continuing problem why was the actual federal prosecution for anthrax mailings so massively bungled and delayed under such suspicious circumstances? The deliveries helped stampede Congress into promptly passing the Patriot Act. Congress this week extended the act's intrusive restrictions on civil liberties for four more years with scant debate. But lingering questions remain to this day over how the initial anthrax was delivered to federal employees and how likely a reoccurrence might be. In sum, this is like the escalating federal searches at airports and now on other public transportation. Fear and federal authority are trumping common sense and cost-benefit analysis.

True, the Cooper's supporters from New Jersey, like any others from around the country, could deliver their documents electronically to federal authorities without the kind of personal contact increasingly deemed dangerous within our top-down government system. But they illustrate an authoritarian, “government is always right” theme that the leadership of both major political parties increasingly adopts.

Regarding Justice Department complaint procedures, it would be easy enough for the DOJ to make more clear that it’s OPR prefers to delay resolution of citizen complaints until after litigation ends in the courts.  That roadmap for the average citizen apparently carries a danger that complainants might adjust tactics, and thus become more effective.

Instead, Washington insiders treat the citizen complainant like a cockroach.  Here’s how Scott Horton, a well-connected New York attorney and prolific commentator, described the process in a blog commentary for Harper’s last year entitled, “A Triumph for the DOJ Roach Motel.” It asks the question, “Is the Justice Department any longer capable of policing itself? “ His answer:

It is clear now that the OPR itself is totally dysfunctional. The institutional ethos is now simple: the client is the president, and the department should do what it takes to make the client happy. Lawyers who serve their client will be protected and exonerated, even if they commit serious crimes in the process. Lawyers who cross the client are in serious trouble, even if they have only acted because of ethics requirements.

Horton's conclusion is congruent with my report published last weekend providing a near-comprehensive update on how the Justice Department under both the Obama and Bush administrations has relentless prosecuted those within the justice department and similar agencies who John Kellyoppose ethical breaches and government waste. My OpEd News article abut government prosecutions against whistleblowers received some 8,000 page views in a few days, underscoring the public appetite for such news. Former CIA officer John Kelly, left, a director of our Project and a guest on my radio show May 26, argued that it’s becoming a crime for government employees to protest crime by their supervisors.

For a concise description, read Horton’s blog in its entirety. It’s in the appendix below along with other source materials arranged in order of their presentation in this column. For those without time for that, here is Horton's conclusion:

Boston NPR affiliate WBUR recently did a series of reports on the ethics implosion in the Justice Department. In the final episode, “The Judges’ Rebellion,” they reviewed how federal judges finally became so disgusted with the institutionalized misconduct and the Justice Department’s refusal to discipline misbehaving lawyers that they began disciplining the prosecutors themselves—taking the same approach adopted by Judge Sullivan in Washington.

Fordham law professor Bruce Green, a former federal prosecutor, recently provided the ABA Journal with a disturbing slogan for OPR. “I used to call it the Roach Motel of the Justice Department,” he said. “Cases check in, but they don’t check out.” A year after the arrival of a new president and a new attorney general, the roach motel remains in business.

Contact the author Andrew Kreig or comment

Appendix I
Sections in order of mention in column above and in reverse chronological order

New Jersey Cooper Case
Newark Star-Ledger, Ex-Newark official facing corruption charge brags about contacts on mayor's staff, March 4, 2010. A former city official charged last month with corruption boasted he recruited Mayor Cory Booker’s then-chief of staff to help steer demolition contracts that included work at the Prudential Center, according to an indictment and three officials familiar with the probe. Pablo Fonseca, Booker’s ex-chief of staff and current campaign manager, is the "high-ranking" Newark official mentioned repeatedly in the indictment charging former Deputy Mayor Ronald Salahuddin with extortion and bribery, the officials said. On seven occasions in the 35-page document, Salahuddin is quoted saying Fonseca would pressure city officials to funnel contracts to a Springfield trucking firm. The five-count indictment describes a series of meetings in 2006 and 2007 between the undercover informant (Nicolas Mazzocchi), an unnamed consultant, Salahuddin and Sonnie L. Cooper, his partner in the trucking company.

New Jersey Manzo Case

Barack ObamaJustice Integrity Project, Obama DOJ Continues War Against Bush Prosecution Victims, Andrew Kreig, May 13, 2011.  The Obama/Holder Justice Department’s win-at-all-costs campaign against political prosecution victims of the Bush administration continued this week. In unrelated prosecutions of Democrats in New Jersey and Alabama, the Department illustrated once again the unfairness of its procedures and its self-serving ethic of silencing critics.

Justice Integrity Project, Feds Fight To Uphold Christie-era Jersey Charges, Andrew Kreig, April 3, 2011. New Jersey federal prosecutors last week won court permission for a new 30-day delay to check with Washington headquarters on whether to give up their so-far unsuccessful effort to expand federal bribery law by courtroom maneuvers instead of congressional action.

The Jersey StingJustice Integrity Project, Book ‘Jersey Sting’ On Christie Probes Raises Questions, Andrew Kreig, March 22, 2011. The Jersey Sting is a new book about a major federal corruption case that helped former New Jersey U.S. Attorney Chris Christie win his state’s governorship in 2009. Readers here know that our Justice Integrity Project has documented in multiple columns the unfairness of the controversial 46-defendant case initiated by the Republican Christie.
Chris Christie
Daily Censored, Politicians, Press Cheat Taxpayers By Whitewashing DOJ’s Wasteful Election-Season Witch-hunt, Andrew Kreig, Sept. 8, 2010. This exclusive report by the Justice Integrity Project shows the following: Far from limiting government, New Jersey Gov. Chris Christie wasted vast amounts of taxpayer funds to help himself and his cronies.

Anthrax Investigation
McClatchy Newspapers, FBI lab reports on anthrax attacks suggest another miscue, Greg Gordon, May 19, 2011. Buried in FBI laboratory reports about the anthrax mail attacks that killed five people in 2001 is data suggesting that a chemical may have been added to try to heighten the powder's potency, a move that some experts say exceeded the expertise of the presumed killer.

FireDogLake, FBI Ignored, Hid Data Potentially Excluding Bruce Ivins as Anthrax Killer, Jim White, May 20, 2011.  A report from McClatchy provides important new evidence and analysis in the FBI’s Amerithrax investigation of the 2001 anthrax attacks. The report shows that the FBI ignored as potentially erroneous a measurement of silicon in one anthrax sample and then hid this information from Congressman Jerrold Nadler (D-NY). Significantly, it is virtually impossible that Bruce Ivins, whom the FBI has concluded acted on his own to carry out the attacks, would have been able to perform the necessary chemical manipulations involved in this treatment of the spores.

Washington Post,
Anthrax report casts doubt on scientific evidence in FBI case against Bruce Ivins, Jerry Markon, Feb. 15, 2011.  A panel of prominent scientists is casting new doubt on scientific evidence that was a key part of the FBI's case against Bruce E. Ivins, the deceased Army scientist accused of carrying out the deadly 2001 anthrax attacks. The National Research Council, in a report issued Tuesday (read the 39-page summary), questioned the link between a flask of anthrax bacteria in Ivins's lab at Fort Detrick, Md., and the anthrax-infested letters that killed five people and sickened 17 others. The government closed the case last year after concluding that Ivins had single-handedly prepared and mailed the deadly anthrax spores, an incident that terrorized a nation still reeling from the Sept. 11, 2001 terrorist attacks.

DOJ Misconduct
Judicial Concerns
Boston Herald, Mark Wolf Not Sheepish About Exposing Court Misconduct, Peter Gelzinis, April 5, 2009. For the third time in three years, Mark L. Wolf, chief justice of the federal court in Boston, has Fed Ex’d another impassioned letter to the U.S. attorney general. With Eric H. Holder, the hope is that maybe the third time will prove to be the charm.

Legal Times, Text of Letter by Chief U.S. District Judge Mark Wolf to Attorney Gen. Eric N. Holder, Jr. on prosecutorial misconduct, April 23, 2009. 

National Misconduct
USA TODAY, Misconduct at the Justice Department: Prosecutor misconduct lets convicted off easy, Brad Heath and Kevin McCoy, Dec. 29, 2010.  What happened to [James] Strode underscores one of the least recognized consequences of misconduct by Justice Department attorneys in charge of enforcing the nation's laws. Although those abuses have put innocent people in prison, misconduct also has set guilty people free by significantly shortening their prison sentences.

Harper’s No Comment, How Prosecutorial Misconduct Helps Criminals Get Off, Scott Horton, Dec. 29, 2010. The USA Today series on the systematic misconduct of federal prosecutors continues today, with an examination of the consequences that prosecutorial misconduct has for criminal defendants….The Justice Department’s push-back against this article reveals the depths of its denial: "Once again, USA TODAY misleads readers by providing a statistically inaccurate representation of the hard work done by federal prosecutors daily in courtrooms across the country by cherry-picking a handful of examples dating back to the 1990s and confusing cases where attorneys made mistakes with cases where actual prosecutorial misconduct was involved."  Horton says, "The Department’s claim that it acts and transparently corrects mistakes when they occur is also simply dishonest."

Alabama
Montgomery Advertiser, Canary to step down as US attorney for the Middle District of Alabama, Matt Okarmus, May 27, 2011. Leura G. Canary retires today from her position as U.S. attorney for the Middle District of Alabama after more than two decades with the Department of Justice.  "I've had a wonderful career," Canary said. Canary was appointed interim U.S. attorney in September 2001.

Main Justice,
Leura Canary, One of the Last Bush US Attorneys, to Retire, Andrew Ramonas, May 26, 2011. One of the last remaining U.S. attorneys appointed by President George W. Bush will resign Friday.  Leura Canary, who has led the Middle District of Alabama U.S. Attorney’s Office since 2001, has no immediate plans for her career after she steps down as U.S. Attorney. Canary alienated many Democrats in Alabama for what they considered a politically motivated prosecution of former Alabama Gov. Don Siegelman (D).

George BeckJustice Integrity Project, Senate Must Grill Tainted Alabama DOJ Nominee: Part I, Andrew Kreig, April 5, 2011. President Obama ended more than two years of high-profile White House indecision March 31 by naming the prominent Alabama attorney George L. Beck, right, as his nominee to become U.S. attorney for the state’s Montgomery-based middle district. Despite an impressive career overall, Beck is a horrible choice because he was a compliant defense attorney in the notorious prosecution of former Alabama Gov. Don Siegelman’s, the state’s leading Democrat. Beck’s role in that travesty further destroys public confidence in that long-troubled DOJ office. At the minimum if confirmed, Beck must recuse himself and all of the most prominent staff at DOJ's Montgomery offices from the Siegelman case and every spin-off public corruption probe. The more logical outcome, however, is for the Senate Judiciary Committee to grill Beck and other witnesses to bring out all relevant facts, and then block Beck’s nomination because of his conflict of interest.


U.W. ClemonHuffington Post, Siegelman's First Trial Judge Blasts U.S. Prosecutors, Seeks Probe of 'Unfounded' Charges, Andrew Kreig, May 21, 2009.  One of the most experienced federal judges in recent Alabama history is denouncing the U.S. Justice Department prosecution of former Alabama Gov. Don Siegelman. Retired Chief U.S. District Judge U.W. Clemon of Birmingham, left, calls for a probe of misconduct by federal prosecutors ─ including their alleged "judge-shopping," jury-pool "poisoning" and "unfounded" criminal charges in an effort to imprison Siegelman.

Huffington Post,
Siegelman Deserves New Trial Because of Judge’s ‘Grudge’, Evidence Shows….$300 Million in Bush Military Contracts Awarded to Judge’s Private Company, Andrew Kreig, May 15, 2009.  The Alabama federal judge who presided over the 2006 corruption trial of the state's former governor holds a grudge against the defendant for helping to expose the judge's own alleged corruption six years ago. Former Gov. Don Siegelman therefore deserves a new trial with an unbiased judge ─ not one whose privately owned company, Doss Aviation, has been enriched by the Bush administration's award of $300 million in contracts since 2006, making the judge millions in non-judicial income.

Justice Integrity Project, Big Political Cases Highlight Hidden DOJ Incentives, Andrew Kreig, March 25, 2011.

DOJ Internal reviews
Justice Integrity Project, May 26 Radio: Expert Analyzes U.S. Leak Charges, Andrew Kreig, May 26, 2011. Former network newscaster and CIA officer John Kelly will analyze on the May 26 edition of MTL Washington Update radio the White House prosecutions of suspected leakers within national security agencies. Under President Obama, the crackdown includes spy charges against former National Security Agency (NSA) analyst Thomas Drake.

OpEd News, June Trial Looms As Obama DOJ Crusades Against Critics, Andrew Kreig Thomas Drake (Steven DePolo Photo)
May 21, 2011.The Obama administration's shocking crackdown on government whistleblowers became more prominent this week with the New Yorker Magazine's publication of a hard-hitting article about the plight and June trial of former National Security Agency officer Thomas Drake, right (Steven Depolo photo)

Justice Integrity Project, Obama DOJ Continues War Against Bush Prosecution Victims, Andrew Kreig, May 13, 2011. The Obama/Holder Justice Department’s win-at-all-costs campaign against political prosecution victims of the Bush administration continued this week. In unrelated prosecutions of Democrats in New Jersey and Alabama, the Department illustrated once again the unfairness of its procedures and its self-serving ethic of silencing critics.

DOJ Cover-ups and Whitewash Internal Reviews

Justice Integrity Project, DOJ Absolves CIA for Destroying Torture Evidence,
Andrew Kreig, Nov. 5, 2010.

Dr. Cyril WechtConnecticut Watchdog, Famed Physician Dr. Cyril Wecht: Fight Justice Department Misconduct, Andrew Kreig, Sept. 28, 2010. Forensic medical expert Dr. Cyril H. Wecht, left, provides a vitally needed defendant’s perspective on the terrible Justice Department misconduct that USA Today just documented in a major investigative project. On Sept. 23, the paper reported 201 criminal cases in which federal judges found that prosecutors broke laws or ethics rules since 1997. Overall, the abuses put innocent people in jail, and set guilty people free. Wecht’s prosecution didn’t fall within the newspaper’s scope because his first judge in Pittsburgh coddled the prosecution instead of criticizing it. But we at the Justice Integrity Project, a non-partisan legal reform group, documented Wecht’s ordeal from 84 overblown felony charges in 2006 carrying long prison sentences for trivial matters. Wecht was vindicated last year at age 78.

Nora DannehyNieman Watchdog, New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings, Andrew Kreig, July 25, 2010. Four days before Nora Dannehy, right, was appointed to investigate the Bush administration’s U.S. attorney firing scandal, a team of lawyers she led was found to have illegally suppressed evidence in a major political corruption case. Andrew Kreig writes that this previously unreported fact calls her entire investigation into question as well as that of a similar investigation by her colleague John Durham of DOJ and CIA decision-making involving torture.

Office of Professional Responsibility
Harper’s / No Comment, A Triumph for the DOJ Roach Motel, Scott Horton, Feb. 22, 2010.  Is the Justice Department any longer capable of policing itself? The question has little to do with the torture issue, important as that is, or with partisan politics in general. It is clear now that the Office of Professional Responsibility itself is totally dysfunctional.


Appendix II

Selected Government Websites


Government

U.S. Department of Justice

DOJ Office of Professional Responsibility

U.S. Office of Government EthicsLamar Smith

Patrick LeahyU.S. Senate Judiciary Committee Sen. Pat Leahy (D-VT), Chairman, at left


U.S. House Judiciary Committee Rep. Lamar Smith (R-TX, Chairman, at right





Department of Justice Remarks at ABA White Collar Crime Conference
… there are a few in the defense bar who see blood in the water and are determined to attack the Department's prosecutors indiscriminately – and without any factual basis.
    Lanny A. Breuer, DOJ Criminal Division Assistant Attorney General


Remarks by Lanny A. Breuer, Assistant Attorney General for the Criminal Division at the American Bar Association National Institute on White Collar Crime, Feb. 25, 2010