It’s been a typically wild year for the Justice Department, so often the epicenter of the great (and sometimes sadly humorous) debates of our times. We take a look back on the stories that shaped 2012, in no particular order:
Eric Holder Held in Contempt of Congress: In June the Republican-led House voted to hold the Attorney General in criminal contempt of Congress over Fast and Furious, a botched gun-investigation that got Fox News conservatives in a lather but which barely registered with the rest of the country. Why? Because Fast and Furious was screwed up by anonymous low-level Bureau of Alcohol, Tobacco, Firearms and Explosives agents out in Arizona who were trying, however ineptly, to staunch the flow of weapons from the U.S. to violent drug cartels in Mexico. Congressional Republicans seemed more intent on collecting high-level scalps at the DOJ than conducting a serious discussion of the problem, which inevitably would have put the GOP on the defensive by shifting debate to its opposition to common sense gun controls measures such as a registry of weapons purchases that might have helped ATF actually do its job. Starting with the impeachment of Bill Clinton in 1998 essentially over his dalliance with a White House intern, House Republicans have abused the disciplinary powers of Congress to the point those powers don’t matter much any more. Holder was the first sitting Cabinet member to be held in contempt; it didn’t hurt him much.
Solicitor General Donald Verrilli Emerges Victorious After Widely Panned Supreme Court Oral Argument. Verrilli is a serious appellate lawyer with loads of experience before the highest court. But after his fumbling defense of President Barack Obama’s signature health care law, the Affordable Care Act, he was the butt of jokes. CNN commentator and New Yorker writer Jeffrey Toobin memorably called his performance a “train wreck.” But then Chief Justice John Roberts surprised the world by siding with the court’s liberal wing to uphold the law, and Verrilli was suddenly a hero. Obama later phoned him to offer congratulations.
The Flagellation of Lanny Breuer: It’s been a trying year for the Criminal Division chief. Sen. Charles Grassley (R-Iowa) tried to get him fired over the Fast and Furious failure. His Public Integrity Section embraced the legally indefensible prosecution of former presidential candidate John Edwards that was begun by a partisan U.S. Attorney in North Carolina with his eye on higher office, only to see a jury fail to acquit and all charges dropped. The New York Times has editorialized against the frequent use of deferred prosecution agreements to settle financial crime allegations. And Breuer’s been roundly criticized for a perceived failure to hold the architects of the financial crisis accountable for driving the economy into the ground (former New York Gov. and AG Eliot Spitzer was particularly vitriolic, calling him “horrendous.”) Ironically, Breuer contributed to his predicament by running the division in a manner that drove out many of the experienced prosecutors who might have built those financial crime cases for him. Morale in parts of the division is low.
David Petraeus Scandal: Sen. Dianne Feinstein (D-Calif.), chair of the Senate intelligence committee, was upset that the Justice Department didn’t inform her of the CIA director’s extramarital affair. While she has a statutory right to know about significant developments affecting national security, Holder and FBI Director Robert Mueller made the right move in going slow on the notifications. The high-school level cat fight between Petraeus’ mistress, Paula Broadwell, and the Tampa socialite Jill Kelley was a personal embarrassment to the highly decorated former general that in pre-electronic communications times never would have come to light. Speaking of how it came to light, that in itself is the bigger scandal.
The Muscular Civil Rights Division. The DOJ’s lawsuit against rouge Sheriff Joe Arpaio in Arizona for discriminating against Latinos got the most headlines, but the Civil Rights Division also has been tackling one of the biggest yet most unremarked scandals of our country’s justice system – the abusive state and local courts, police departments and school systems where constitutional rights of the least powerful citizens are routinely trampled. To cite just one example, the division forced changes in Mississippi, where it found the Lauderdale County Youth Court and Meridian Police Department were operating a “school to prison” pipeline that ripped children from their parents’ custody on charges as flimsy as “defiance” and even “flatulence” without giving them competent public defenders or other due process rights. Most of those children were minorities.
New Orleans U.S. Attorney Jim Letten Resigns. This sad affair is testament to the wisdom of changing out U.S. Attorneys. Letten, a holdover from the George W. Bush administration, served 11 years, and obviously his staff became too comfortable with him. First Assistant U.S. Attorney Jan Mann and Assistant U.S. Attorney Sal Perricone were caught posting anonymous, derogatory online comments about cases before their office. “NONE of these guys should have been given a badge – you put crap in, you get crap out!!!” Perricone wrote on the New Orleans Times Picayune website under the moniker HenryLMencken1951, referring to the cops later convicted of shooting citizens after Hurricane Katrina. When Mann, his deputy, was unmasked as the person using the handle “eweman” to make similar comments, Letten ended a long, distinguished Justice Department career in disgrace.
Alaska Assistant U.S. Attorneys Blamed for the Sen. Ted Stevens Debacle: The Justice Department proved true to form in blaming, with the help of outside investigator Henry Schuelke III, the lowest-level prosecutors for the disclosure screw-ups that led to dismissal of all corruption charges against the Alaska Republican. Stevens was the longest serving Republican in the Senate when he was convicted in 2008 of failing to report gifts and subsequently lost his re-election. (Stevens later died in an airplane crash.) Two AUSAs in Alaska, Joseph Bottini and James Goeke, were found by the DOJ’s internal watchdog, the Office of Professional Responsibility, to have engaged in “reckless professional misconduct.” Yet Terence Berg, a career Justice Department lawyer who reviewed the case for the Professional Misconduct Review Unit, which recommends punishments, concluded that the problems were the result of myriad bad decisions, including those made by the politically appointed Criminal Division leaders at the time, and could not be pinned solely on the AUSAs. Berg, who was later confirmed as a federal judge, was overruled. The Justice Department does itself no favors with a highly skeptical federal judiciary in shielding the “higher ups” from responsibility for its failures. In this case, as in virtually all Office of Professional Responsibility “investigations,” the true aim seems to be to protect the institution, not finding the truth.
Caronia Decision. A panel of the U.S. Court of Appeals for the Second Circuit dealt a major blow to the government’s theories of pharmaceutical company misconduct with a 2-1 decision on Dec. 3 that drug company salespeople have a First Amendment right to engage in “truthful” discussions with doctors about uses of drugs for purposes not approved by the Food and Drug Administration. Drug companies have paid billions of dollars in penalties over the last nine years under the theory that promoting drugs for so-called “off label” purposes violates the law. The case involves a pharmaceutical company salesman named Alfred Caronia who was convicted in federal court in Brooklyn, N.Y, in 2009 for illegal promotion of Xyrem, approved for treating narcolepsy. He was accused of promoting the drug to physicians for treating other conditions as well, including insomnia and fibromyalgia. The problem; It is legal for physicians to prescribe medications for any purpose they see fit, even if the FDA hasn’t expressly approved it. Given how long and expensive the FDA approval process is, approvals often lag behind the real-world uses of drugs. The Second Circuit panel said it was a constitutional violation to gag drug company representatives when anyone else is free to discuss the information. The Second Circuit decision applies only in New York, Vermont and Connecticut, and may be appealed. So while it is unlikely to have an immediate impact on high-profile pharmaceutical company prosecutions, it may mark the beginning of the end of the government’s aggressive enforcement.
The Foreign Corrupt Practices Act. The Justice Department and Securities and Exchange Commission issued long-awaited new guidance to the business community on complying with the controversial 35-year-old anti-foreign bribery statute that won praise even from its harshest critics at the U.S. Chamber of Commerce. New revelations in the New York Times of top Wal-Mart executives’ cover up of a bribery scheme in Mexico stirred public outrage and made it politically imposible for the Chamber and its business allies to win changes in the law it had sought in Congress. Enforcement of the anti-corruption law continues unabated, despite several embarrassing failures by the DOJ’s FCPA unit to win convictions at trial.
Voting Rights. The Justice Department has been aggressively challenging state voter identification laws and other perceived “voter suppression” measures. Long lines at the polls in Virginia, Ohio and Florida – states run by Republicans officials who have tried to erect obstacles to voting – caused outrage among Democrats and an election night comment from President Barack Obama that “we have to fix that.” In December Holder gave a speech calling for “fail-safe procedures” to guarantee ballot access.