Attorney General Eric Holder announced Tuesday he has appointed one of his most trusted associates to head a new unit that will deal with disciplinary actions against career attorneys.
Kevin Ohlson will bring “high standards of professionalism and integrity” to his position at the new Professional Misconduct Review Unit., Holder said in a statement. Ohlson was Holder’s Chief of Staff and Counselor from February 2009 until this week. He also served as Holder’s spokesman in the 1990s, when Holder was the U.S. Attorney for the District of Columbia.
The new unit will handle disciplinary action stemming from Office of Professional Responsibility findings, in which intentional or reckless professional misconduct is alleged. The unit will decide whether evidence and the law back those OPR discoveries. It will also take over from OPR the responsibility for deciding whether the misconduct merits referral to the prosecutor’s state bar association for discipline.
OPR will continue to send discoveries of mistakes and bad judgment to the relevant U.S. Attorney through the Executive Office for United States Attorneys or the DOJ component chief for action. A memo outlining the responsibilities of the new unit is here.
“The current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions, but this new Unit will help change that by providing consistent, fair, and timely resolution of these cases,” Holder said in his statement. “In the vast majority of cases, Department attorneys meet their professional obligations but when allegations of misconduct occur, all parties deserve a fair and timely resolution. This Unit will be instrumental in achieving that goal and will also further the Department’s mission of meeting its ethical obligations in every case.”
The OPR, EOUSA, the Criminal Division, the Justice Management Division and the Office of Attorney Recruitment and Management recommended the unit after examining ways to improve efficiency and consistency in the disciplinary system. The unit only covers career attorneys from the components that conducted the review. But the DOJ anticipates that more of its component offices will come under the unit’s jurisdiction over time.
Federal judges have long grumbled that the department’s internal ethics process seemed rigged to sweep embarrassments under the rug. The new review unit doesn’t appear to address those concerns, because it won’t review cases where prosecutors weren’t found by OPR to have committed misconduct. A Justice Department spokeswoman did not respond to a request for comment.
A USA Today investigation published in December showed that OPR probed 756 misconduct complaints between 2000 and 2009, finding wrongdoing in 196 cases. OPR recommended that DOJ officials fire five prosecutors for misconduct during the last decade. Four of the prosecutors retired or resigned. One was terminated.
In 2009, U.S. District Judge Emmet Sullivan cited mistrust of the OPR process in his decision to appoint his own investigator, D.C. lawyer Henry Schuelke III, to investigate the prosecution errors that led to the dismissal of the public corruption case against then-Sen. Ted Stevens (R-Alaska).
Sullivan said at the time that the prosecution errors were “too numerous to be left to an internal investigation that has no accountability.”
A draft of an OPR report on the allegations that prosecutors withheld exculpatory evidence from the Stevens defense concluded Assistant U.S. Attorneys Joseph Bottini and James Goeke engaged in misconduct. But the draft report cleared several other lawyers — including lead prosecutor Brenda K. Morris and former Public Integrity Section chief William Welch — of misconduct allegations.
The DOJ has taken steps in the last year to beef up its prosecutors’ knowledge of Brady v. Maryland, the 1963 Supreme Court case that mandates prosecutors turn over exculpatory information to the defense.
DOJ lawyers now have regular Brady training, written office policies on Brady to review and discovery coordinators at their disposal. The DOJ is also working on a book for its prosecutors that will address discovery issues that may come up while handling a case.
Last year, OPR was in the media spotlight again when Associate Deputy Attorney General David Margolis, who oversees that office, downgraded its findings in an investigation of John Yoo and Jay Bybee, the George W. Bush administration DOJ lawyers who penned the legal memos that authorized waterboarding and other harsh interrogation techniques against terrorism suspects. Margolis toned down the OPR findings to rule that Yoo and Bybee used “poor judgment” and not did not engage in misconduct when they approved techniques that Holder and others have called torture.
Robin C. Ashton has led OPR since December. She replaced Mary Patrice Brown, who had been the office’s acting head since April 2009. Brown is now a Deputy Assistant Attorney General in the Criminal Division, succeeding Jack Keeney, who spent 59 years at the DOJ.
Ohlson, a career official at the DOJ who also served as director of the Executive Office for Immigration Review, became the chief of the Professional Misconduct Review Unit this week following the appointment of former acting Deputy Attorney General Gary Grindler as the Attorney General’s new chief of staff.
Grindler was acting Deputy Attorney General following the departure of David Ogden from the post last February. He stepped down as the No. 2 official at the Justice Department on Jan. 3 when President Barack Obama installed James Cole as Deputy Attorney General through a recess appointment.