Critics said Margolis, the department’s top non-political career official, was protecting the institution over doing what was right. Attorney General Eric Holder expressed disappointment in the decision to soften a misconduct finding against former Office of Legal Counsel lawyers
John Yoo and Jay Bybee, whose legal theories provided the authorization for water boarding and other techniques critics said violated American values and treaty commitments. Margolis’s intervention meant their cases weren’t referred to their bar associations for possible suspension of their law licenses.
Today, there is a new Justice Department mechanism for making final decisions on disciplinary matters involving serious misconduct. It appears to be playing a similar institution-protecting role as Margolis did in 2010. The difference now is that instead of one man bearing the brunt of any criticism, an institutional “process” has been established that, critics say, effectively ends up with the same outcome: shielding the highest-ranking Justice Department officials from blame in botched or controversial matters.
That process is the department’s year-old Professional Misconduct Review Unit. The unit, formed in early 2011, recommends discipline for department lawyers found by the Office of Professional Responsibility to have committed intentional or reckless professional misconduct. The unit is headed by Attorney General Eric Holder’s former Chief of Staff, Kevin Ohlson.
The OPR is the department’s internal ethics watchdog. Before the new review unit was created, OPR both made findings about department lawyers’ professional conduct and recommended discipline. If DOJ managers disagreed with OPR’s recommended punishment, they could appeal to Margolis.
When it announced the new unit last year, the department said the “involved department employees” who handled appeals have “many assigned responsibilities,” resulting in delays. “In addition, the current process creates the risk of inconsistent resolution of disciplinary actions involving similarly situated employees,” the department said.
“[The] new unit will help change that by providing consistent, fair, and timely resolution of these cases,” Holder said in a January 2011 statement. ”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.”
But it wasn’t long until the unit reviewed another high profile case: that of the Justice Department lawyers who botched the prosecution of the late Sen. Ted Stevens (R-Alaska). In that matter the new unit appeared to function much as Margolis had in the review of Yoo/Bybee’s legal documents: it shielded top Justice Department officials.
In 2010 the OPR launched an investigation into the Justice Department’s failed prosecution of Stevens. Alaskan Assistant U.S. Attorneys James Goeke and Joseph Bottini were found to have acted with “reckless misconduct” because they failed to disclose exculpatory evidence to the defense during the trial’s discovery phase. The violation prompted the dismissal of the case.
After the OPR released its report, the PMRU reviewed its investigation. The PMRU appointed career attorney Terrence Berg (who has since been nominated to the federal bench) to review OPR’s findings. In a memo released after his review, Berg said he disagreed “substantively” with the OPR’s conclusion that the two Alaskan Assistant U.S. Attorneys engaged in “reckless professional misconduct.”
Rather, the two U.S. Attorneys exercised “poor judgment” and should not be recommended for disciplinary action, Berg concluded. (The lower “poor judgment” conclusion was the one also reached by Margolis when he softened OPR findings in the Yoo/Bybee case). Berg argued that the Stevens mistakes were made collectively over time by the entire prosecution team – including the lead prosecutor, Brenda Morris, who largely escaped blame. In a footnote, Berg also said poor decisions made by the politically appointed acting Attorney General for the Criminal Division and his deputy also contributed to the dysfunction.
“The team as a whole, and particularly the team’s managers in the Department of Justice, should be held fully responsible in my view, both collectively and as individuals, for the disclosure violations and other failures and mistakes that occurred in this case,” the memo said. The attempt to attach the blame to a single person “resulted in inconsistent application of the recklessness standard that does not effectively hold the team as a whole, or its supervisors, properly responsible for the impact that their individual and collective conduct had on the disclosure violations.”
But Ohlson overruled Berg’s findings.
It’s possible that both DOJ lawyers made a “good faith effort to decide who was responsible,” said former Inspector General Glenn Fine. Ohlson and Berg may have simply wound upon “other sides” of the debate, he said.
But Melanie Sloan, executive director of the watchdog group Citizens or Responsibility and Ethics in Washington, described the review unit as “too much of an inside player.” She added: ”You read a [Professional Misconduct Review Unit] decision and realize ‘the Justice Department has cleared itself.’ What a shock.”
The president of the National Association of Assistant U.S. Attorneys, Robert Gay Guthrie, said in an interview that the “natural tendency of every bureaucracy is to protect itself.” Even though the unit may be “conceptually” sound, “in practice it certainly appears to have misfired,” he said. The unit’s review of the Stevens prosecution “was unfair to the [Alaskan] assistant U.S. Attorneys,” he added.
The Justice Department declined to comment on the Professional Misconduct Review Unit’s work outside of the Ted Stevens case. ”PMRU was created to improve consistency and efficiency in disciplinary matters,” a spokeswoman said before referring a reporter to the Justice Department’s website for further information.
While the new review unit may take pressure off Margolis directly in his perceived role as protector of the institution of the Justice Department, his downgrading of the findings against Yoo and Bybee haven’t been forgotten on Capitol Hill.
Democratic Sen. Sheldon Whitehouse asked Holder in recent written questions after a congressional hearing whether the department has raised its standards of conduct for Office of Legal Counsel attorneys. Or, jabbed the liberal Rhode Islander, “Absent a different rule, is not the ‘Margolis policy’ the effective rule?”