by John Fund
The long list of wrongdoing by the FBI agents and Justice Department prosecutors in this case cataloged by the judge is shocking and shows once again the apparent win-at-any-cost attitude that seems to have infected the Holder Justice Department. One of the prosecutors inserted a false statement into the affidavit of an FBI agent without consulting the agent, a false statement that was crucial to proving the government’s case about payments supposedly being transferred between two organizations. That false statement was also used to obtain search warrants, resulting in what the judge called “unauthorized warrantless searches.”
There were no transfer payments, yet the prosecutors also made the same claim to the grand jurors who issued the original indictments of the Lindsey defendants when they presented the testimony of one of the key FBI agents in the case, Susan Guernsey. Judge Matz detailed the “unfounded and erroneous portions” of Guernsey’s grand jury testimony, saying that “perhaps she was [just] sloppy, or lazy, or ill-prepared by the prosecutive team.”35 But the prosecutors apparently realized she would be a poor witness and that the Justice Department’s investigation was “terribly flawed,” and so they did everything they could to keep Guernsey outside the courtroom and off the witness stand. They even refused to turn over her grand jury testimony to the defense, as well as exculpatory evidence from other witnesses, as was their obligation.
In another move that showed the depths to which the prosecutors were willing to sink in order to win the case, prosecutors put on another FBI agent, Dane Costley, to testify. Through his testimony, the government introduced a chart as an exhibit that supposedly showed that part of the payments made by Lindsey Manufacturing to another company, named Grupo, owned by defendant Enrique Aguilar, was used to pay the tuition of a private school of a Mexican utility executive. But Judge Matz discovered after the trial was over that in the O’Shea case, the Justice Department had “attributed the source of that very tuition payment” to a different company—not Lindsey Manufacturing. Since one of the very same prosecutors who had been involved in the O’Shea prosecution was on the trial team for the Lindsey case, this could not have been an inadvertent error. The court said the misleading link demonstrated “how far the government was willing to go” to obtain a conviction.
Matz was shocked at the behavior of the prosecutors over this conflicting testimony. He cited a prior Supreme Court case about how “serious questions are raised when the sovereign itself takes inconsistent positions in two separate criminal proceedings against two of its citizens.” But this flatly contradictory testimony by government witnesses showed “just how far the Government was willing to go.”
In an action reminiscent of the NSA eavesdropping scandal, the prosecutors obtained recordings from the U.S. Bureau of Prisons of the privileged telephone conversations and copies of emails between Ms. Aguilar and her defense lawyers. She was being kept in prison to prevent her flight back to Mexico (she had been arrested on a shopping trip in the United States). DOJ had obtained a warrant for her telephone conversations with her husband, who was still in Mexico and was being sought by federal authorities. But prosecutors also obtained the attorney-client communications and the emails, which were not covered by the warrant, and then lied to the court when they claimed they had been authorized to obtain all “communications” that Aguilar made from prison.
The Lindsey defendants would not have suffered through this outrageous prosecution if Eric Holder’s prosecutors had been doing their jobs in the ethical and professional way they should have been. Prosecutors can certainly lose cases they believe are valid and credible and that had a thorough and effective investigation because they are, for some reason, unable to convince a jury that a particular defendant is guilty. The vagaries of the criminal justice system are something all lawyers are familiar with.
But according to Judge Matz, the government should have known from the very beginning that it did not have a credible case. The grand jury transcripts that the government improperly withheld from the defense lawyers “show that at the investigative stage the Government failed to consider a number of factors pointing to [the] innocence” of Lindsey Manufacturing and its executives.36
Some may question whether the prosecution simply made a series of unintentional errors. But there was no doubt in the mind of Judge Matz of the shamelessness of the government’s actions:
[H]ow could a prosecutor’s insertion of a false statement in an FBI agent’s affidavit not be flagrant? How could a prosecutor’s failure to detect and correct numerous unfounded misstatements of an agent testifying under oath before a grand jury not be flagrant? How could the prosecution’s obtaining of privileged communications between a Defendant and her attorney, followed by a misrepresentation about whether the Court had approved it, not be flagrant? Perhaps the Government’s failures . . . were inadvertent, as the prosecution contended . . . but even those acts were clearly wrongful. They demonstrate, at best, that the Government was reckless in disregarding and failing to comply with its duties.37
The consequences of this “flagrant” misbehavior by Eric Holder’s prosecutors were a “severe ordeal” for Keith Lindsey and Steve Lee. As Judge Matz pointed out, the “charges were filed against them as a result of a sloppy, incomplete and notably over-zealous investigation, an investigation that was so flawed that the Government’s lawyers tried to prevent inquiry into it.” The government attributed “motives, statements and conduct” to them “that were wholly unfounded or were obtained unlawfully.” Even though the “financial costs of the investigation and trial were immense, the emotional drubbing these individuals absorbed undoubtedly was even worse.” In fact, the judge indicated that “the very survival of that small, once highly respected enterprise has been placed in jeopardy.”38
After this very embarrassing end to a case that Lanny Breuer had touted as “historic,” the Justice Department at first filed an appeal. But in May 2012, it voluntarily withdrew its appeal without explanation and dropped its attempt to get $24 million from the company “in the form of asset forfeiture.”39 Although the judge threw out the case because it said that the Government team committed many wrongful acts and “should not be permitted to escape the consequences of that conduct,” there is no indication that the Justice Department ever took any steps to discipline the lawyers or FBI agents involved in “flagrant” lies, misdeeds, and prosecutorial misconduct.
But then, that is no surprise in the Holder Justice Department. What is also no surprise is that nowhere on the DOJ website can you find any mention of the dismissal of these (and other) FCPA prosecutions that the Justice Department has lost. As some have pointed out, President Obama has “championed transparency and open government.” If that were really true, then the Justice Department and Eric Holder would “keep citizens informed of all FCPA developments—not just those that cast the DOJ in a favorable light.”40 But informing the public of the numerous cases in which courts have found prosecutorial misconduct by Eric Holder’s prosecutors would not be helpful to the image that Eric Holder has tried to cultivate with the public about his conduct as attorney general, or the historical view of his boss, Barack Obama, and his administration.
CHAPTER 10
WHAT IS TO BE DONE?
The power to enforce the law, which carries with it the equally salient power not to enforce the law, is a president’s most imposing domestic weapon—rivaled in importance only by the awesome authority (and potential for global mischief) inherent in a president’s status as commander-in-chief of the U.S. Armed Forces.1
—Andrew McCarthy, lead federal prosecutor against 1995 World Trade Center bombers
The evidence is clear that Eric Holder and his political subordinates have politicized the Justice Department to an unprecedented degree—“worse than John Mitchell under Richard Nixon,” one former Justice Department lawyer told the authors. This is quite a criticism given that many DOJ veterans believe the department reached its nadir under Mitchell. But Mitchell seems like an amateur by co
mparison to how Holder has corrupted the law enforcement duties of the Justice Department to carry out the political objectives of Barack Obama and to implement his radical ideology.
The many cases in which judges have accused DOJ prosecutors of engaging in prosecutorial abuse during Holder’s tenure show, unfortunately, how this high-level corruption has also seeped into the lower levels of the department. The political hiring into the civil service–protected career ranks that has gone on in parts of DOJ, such as the Civil Rights Division, guarantees that radical ideologues will continue to trouble the department long after Holder and his unethical, biased political appointee subordinates have left. Most political appointees leave when an administration ends, but appointees and their political allies who have burrowed down into career positions will be there for decades.
In 2001, one of the authors encountered such burrowed-in former Clinton administration political appointees when he first went to work at Justice as a career lawyer. They did everything they could to stop the implementation of the new administration’s policies and law enforcement priorities, sabotaging, leaking, and generally engaging in unprofessional behavior that would get you fired if in the private sector. But as career employees, it was virtually impossible to fire them because of the civil service protections of federal law—even when they were totally incompetent. One longtime career lawyer in the Civil Division said that because it was so hard to fire even bad staff, he would regularly get them out of his area by promoting them—at which point they would become someone else’s problem.
We cannot expect any help in remedying the unprofessional and politicized behavior of high-level Justice Department lawyers from the internal office at the department that is supposed to be the watchdog against unprofessional behavior: the Office of Professional Responsibility (OPR). OPR reports directly to Eric Holder, who has encouraged, directed, and approved this behavior. OPR’s own website says it is “responsible for investigating allegations of misconduct involving Department attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice.” But OPR is filled with biased lawyers who are often barely competent, and is headed by a hyper-Democratic loyalist, Robin Ashton, whom Holder installed on Christmas Eve 2010.
As one of the authors discovered when he worked at the Justice Department, besides being populated overwhelmingly by liberal Democrats, OPR is also full of lawyers that many in the Justice Department view as lacking the general level of professional competence found elsewhere in the frontline divisions within Justice. OPR has demonstrated on numerous occasions that it is incapable of handling politically charged issues in an even-handed manner. Nowhere was this shown more so than in the report it released in 2009 on its investigation of John Yoo and Jay Bybee, the Bush administration lawyers in the Office of Legal Counsel who wrote the memos analyzing the legality of the “enhanced interrogation techniques” that were used with certain terrorism suspects. OPR accused Yoo and Bybee of “unprofessional misconduct” for supposedly not providing “thorough, candid, and objective” legal advice.2
But the error-filled OPR report and its erroneous finding were flatly rejected by David Margolis, the Justice Department’s most senior career official, a veteran lawyer with many decades of experience at Justice under many different administrations.3 Attorney General Michael Mukasey (who was not at DOJ when the Office of Legal Counsel memos were written) and Deputy Attorney General Mark R. Filip also blasted OPR for attempting to deny basic due process to Yoo and Bybee by not giving them the opportunity to review the initial draft report.4 This injustice was only corrected after Mukasey and Filip personally intervened to demand that OPR follow its own well-established procedures.
That initial draft report by OPR was leaked to the news media in “an unethical attempt to smear the reputations of [Yoo and Bybee] while they were under a gag order and unable to reply,” an acute demonstration of the reprehensible behavior of the personnel in OPR.5 Unfortunately, the same ambush tactic of not allowing an opportunity to review a draft report was used in OPR’s prior investigations of the U.S. attorney firings and the faux scandal over supposed “politicized” hiring in the Civil Rights Division during the Bush administration.
In their memos, Yoo and Bybee had carefully outlined in great detail the legalities of a complex question in a very unsettled legal area shortly after the most devastating terrorist attack the United States had ever suffered. The men operated under what General Mukasey astutely characterized as “enormous time pressure” as the Bush administration was quickly “trying to formulate a plan to ensure that the Sept. 11, 2001 attacks would not be repeated.” Yet OPR ignored this reality.
Indeed, the OPR lawyers assigned to the investigation made little effort to disguise their own left-leaning prejudices. It was thus no surprise that, as General Mukasey and Mark Filip noted, OPR’s “investigation” was “based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motive of Messrs. Bybee and Yoo, and a misunderstanding” of significant interagency practices.
Some of OPR’s criticisms were laughable. For example, the OPR attorneys accused Yoo and Bybee of professional misconduct for not citing a particular case from the Ninth Circuit Court of Appeals—an unpublished opinion. But the Ninth Circuit’s own rules specify that unpublished opinions can’t be cited by lawyers for any purpose. To do so would be an ethical violation. These types of repeated errors throughout the OPR report demonstrated a lack of basic competence by the OPR lawyers—the exact charge made by OPR against Yoo and Bybee.
To bolster its claim that Yoo and Bybee had “advanced novel legal theories” and “ignored relevant authority,” the OPR attorneys prominently cited Professor David Luban of Georgetown University as an “expert.” But they failed to mention that Luban isn’t a lawyer, has never practiced law, has a doctorate in philosophy, and was a longtime critic of the Bush administration and the war on terror.
The OPR report even criticized Yoo and Bybee for not considering the moral implications of these issues, something that was very revealing about the biases of the OPR investigators and their lack of understanding of the duties of a lawyer. Yoo and Bybee had been tasked with providing pure legal analysis—not moral and social critiques. The Office of Legal Counsel is supposed to give legal advice “shorn of any policy preference or shading,” as General Mukasey and Mr. Filip noted, so that senior policy makers at Justice and in the White House receive legal analysis that does not “mask discretionary policy preferences as legal requirements.”
In other words, Yoo and Bybee were tasked with analyzing the legal issues involved—it was up to the White House and the president to decide the moral and policy questions about “enhanced interrogation techniques.” Through its report, OPR was trying to criminalize the rendering of frank legal opinions on a complex and difficult issue of the law, and to damage the professional reputations of government lawyers who were valiantly performing their duties under the most difficult of circumstances, an outrageous and spiteful miscarriage of justice that was fortunately stopped by David Margolis. Even the release of the final report showed the “political nature” of the whole OPR attack on the former Bush administration lawyers—the Justice Department failed to release the highly critical letter that had been written by Mukasey and Filip on the OPR investigation.
None of the problems with the OPR report should have been a surprise. After all, the OPR’s lead lawyer in the investigation was Tamara Kessler. She had also led the OPR investigation into the claims of “politicized” hiring in the Civil Rights Division during the Bush administration, despite the fact that she was a former Civil Rights Division lawyer who was friends with many of the individuals unfairly criticizing the Bush administration. That report was also laced with the same bias, inaccuracies, gross exaggerations, and misstatements of fact and law found in the OPR report on Yoo and Bybee.6
These reports were supervised by the head of OPR, H. M
arshall Jarrett, a Holder protégé. Holder rewarded him with a reassignment to lead the Executive Office for U.S. Attorneys, a much more powerful position within the Justice Department, even though his behavior, according to the Wall Street Journal, made “him unfit for such a job.”7 Eric Holder saw an opportunity to put in a loyalist, someone who would make sure that, unlike in the Bush administration, there would be no critical reports filed about Holder during his tenure. This was also particularly important because at the time OPR was conducting an investigation into the dismissal of the New Black Panther Party voter intimidation case and the Civil Rights Division’s hostility to race-neutral enforcement of the law.
Eric Holder had made no secret of his desire for a report that cleared his personnel of any wrongdoing. In the middle of this open investigation and only one week after he appointed Robin Ashton as the new head of OPR in December 2010, he told the New York Times that “there is no ‘there’ there” and that the Black Panther investigation was over a “made-up controversy.”8 Thus, Holder was improperly and unethically signaling to the lawyers in OPR and his new subordinate what their conclusion should be in their investigation—never mind what the facts uncovered.
It is true that Ashton was a career Justice Department lawyer and not a political appointee in the literal sense. But according to lawyers who worked with her at DOJ, she was also a highly political person who was so upset over George Bush’s reelection in 2004 that she angrily vented her frustration to her colleagues in the Executive Office for U.S. Attorneys (EOUSA), where she was a deputy director. She requested that she be “detailed” to the office of Senator Patrick Leahy of Vermont, one of the fiercest and most partisan Democrats in the Senate.9 The Justice Department acquiesced to her request and paid Ashton’s salary while she worked in Leahy’s office, helping him attack the Bush administration’s Justice Department. As one Justice Department lawyer who worked with Ashton told one of the authors, “You don’t do a detail with Patrick Leahy if you’re not a committed, solid Democrat whose political loyalty Leahy would never question.”