Nick Schwellenbach, former investigations director at the Project on Government Oversight, was the primary author of a study highlighting the secrecy of prosecutorial misconduct cases.
Nick Schwellenbach, former investigations director at the Project on Government Oversight, was the primary author of a study highlighting the secrecy of prosecutorial misconduct cases. (Diego M. Radzinschi/NLJ)

The U.S. Department of Justice faces new pressure to make lawyer-misconduct investigations more transparent and less subject to potential conflicts of interest.

Lawmakers on Capitol Hill have backed legislation that would shift oversight of misconduct investigations away from the department’s Office of Professional Responsibility (OPR), which is under the attorney general, to the independent Office of the Inspector General. Similar proposals have been kicked around Main Justice and Capitol Hill for decades but failed to advance. The push was given new life following the publication last month of a study that highlighted the secrecy of prosecutorial misconduct inquiries — even in instances when OPR concluded that an attorney violated rules.

Names and details of hundreds of instances of ethical lapses over the past 12 years remain confidential, ­according to the report from the Project on Government Oversight. As a matter of policy, OPR doesn’t release identifying information in its reports. The Project’s report, written by Nick Schwellenbach, recommended the DOJ inspector general’s office oversee the investigations.

Attorney General Eric Holder Jr. pledged early in his tenure — when the case against the late Sen. Ted Stevens collapsed amid prosecutorial misconduct allegations — to make the OPR process more open. Responding to questions from lawmakers this month on Capitol Hill, Holder defended the status quo.

Sen. Mike Lee, R-Utah, cited the study’s findings when he filed the Inspector General Empowerment Act last month. The bill has four co-sponsors: sens. Jon Tester, D-Mont.; Chuck Grassley, R-Iowa; Tom Coburn, R-Okla.; and Lisa Murkowski, R-Alaska.

Lee pointed to a recent example: USA Today reported in September that OPR did not investigate repeated complaints by federal judges that lawyers had misled them about the government’s secret surveillance of phone calls and Internet communications. “Current law invites undue influence from the attorney general’s office into the process and should be changed to ensure the integrity of investigations of misconduct within the Justice Department,” Lee said in announcing the bill. “Placing this responsibility under the [inspector general] increases government transparency and ensures that instances of abuse will be handled in a timely and responsible manner.”

‘HARD HURDLES’

Rep. Cedric Richmond, D-La., a member of the House Judiciary Committee, told Holder a similar proposal would be put forward in the House.

For Richmond, the issue is local. The Justice Department is investigating a scandal in the U.S. Attorney’s Office for the Eastern District of Louisiana tied to the resignation of U.S. Attorney Jim Letten. Two top assistant U.S. attorneys, Jan Mann and Sal Perricone, resigned amid revelations they made covert comments about active criminal matters on the The Times-Picayune website.

“OPR falls under you,” Richmond told Holder during an April 8 oversight hearing. “We’ve asked for the report to be made public, it has not been made public.”

Holder said the Privacy Act prohibits the Justice Department from making the information public. “We’ve tried to be more transparent over the years in producing summaries of the reports that we have made available,” he said.

Justice Department Office of Professional Responsibility reports on the Stevens case and on the so-called CIA “torture memos” were released to the public — but only through Congress. Two prosecutors in the Stevens case who were cited for ethics violations — Joseph Bottini and James Goeke — are challenging the findings before the Merit Systems Protection Board.

Mary Patrice Brown, who took over the leadership of OPR in April 2009, said Holder ran into a tangle of laws preventing greater openness. In addition to the Privacy Act, the department can’t disclose information about grand jury proceedings or investigations into law enforcement personnel, said Brown, now a partner at O’Melveny & Myers in Washington.

“Even though we very much wanted to be as transparent as possible, those are hard hurdles to overcome,” Brown said. “I think we accomplished it to the most we could under the law.”

Holder also told lawmakers during the House hearing that he does not support any effort to shift jurisdiction from the Office of Professional Responsibility to the inspector general’s office. The former “has had, I think, a long and distinguished history of looking at these matters” and is a place where the investigators “have a unique expertise,” Holder said.

“There are specific matters I think only an OPR can handle,” he said. “I have great respect for the inspector general’s office, but I don’t think the merger of those functions would be in the best interest of the Justice Department.”

That argument doesn’t get far with two former Justice Department inspector generals — Glenn Fine of Dechert and Michael Bromwich of Goodwin Procter — or with Bruce Green, a professor at Fordham University School of Law who has written about prosecutorial misconduct.

“From the point of view of expertise, I don’t know why the [inspector general's] office, if it began to do this on a regular basis, couldn’t develop the expertise that the DOJ has,” Green said. “I’m not sure why there would be anything terribly different.”

Similar fears were unfounded, Fine said, when the attorney general gave the inspector general’s office oversight of FBI misconduct allegations in 2001. “As shown through history we clearly took over that responsibility and handled it well,” said Fine, the DOJ inspector general from 2000 to 2011.

Michael Horowitz, the sitting DOJ inspector general, pressed Congress during an appropriations hearing this month to expand the power of his office to review attorney misconduct cases. A system that differentiates between attorney misconduct and malfeasance by other department employees “cannot help but have a detrimental effect on the public’s confidence in the department’s ability to review misconduct by its own attorneys,” Horowitz said in written testimony.

Even with the change, the Office of Professional Responsibility would “almost certainly remain in place” to handle misconduct allegations that do not require independent outside review by an inspector general, Horowitz said. The inspector general oversees internal affairs units at the FBI and other law enforcement components within Justice Department.

“Giving the [inspector general] the ability to exercise jurisdiction in all attorney misconduct cases, just as it does in matters involving nonattorneys throughout the department, would enhance the public’s confidence in the outcomes of these important investigations and provide our office with the same authority as other inspectors general,” Horowitz said.

Contact Todd Ruger at truger@alm.com.