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.
Attorney General Eric Holder named Robin C. Ashton on Thursday to serve as head of the Office of Professional Responsibility (OPR).
OPR’s mission is to investigate attorneys employed by the Justice Department who have been accused of misconduct or crimes in their professional functions.
Ashton has worked in the U.S. Attorney’s office for the District of Columbia since 1991. She currently serves as the Executive Assistant U.S. Attorney for Management. From 2001 to 2005, she served as Deputy Director in the Executive Office for U.S. Attorneys (EOUSA). She began her DOJ career in the litigation section of the Antitrust Division.
This year, Ashton received the United States Attorney’s Award for Meritorious Service 2010 Award Recipients. In 2004, she was given the EOUSA’s Director’s Award for Executive Achievement.
“As a veteran career prosecutor, Robin is uniquely qualified to serve as Counsel for Professional Responsibility, and I am confident she will lead the office with the highest standards of professionalism, integrity and dedication,” Holder said in a prepared statement.
Attorney General Eric Holder on Thursday defended the work of Justice Department lawyers after a stinging USA Today investigation into prosecutorial misconduct.
Holder said an “overwhelming majority” of DOJ lawyers handle themselves appropriately. The newspaper reported that the DOJ frequently categorizes misconduct that brought overturned convictions as mistakes.
The newspaper’s investigation found that the DOJ Office of Professional Responsibility probed 756 misconduct complaints between 2000 and 2009, unearthing wrongdoing in 196 cases. OPR recommended DOJ officials fire five prosecutors for misconduct during the last decade. Four of the prosecutors retired or resigned. One was terminated.
“You can find a few instances where mistakes have occurred and people have been disciplined,” Holder said at an unrelated news conference following a meeting with European officials. “But the people who represent the United States on behalf of the United States Department of Justice do so honorably and do so within the rules.”
Nonetheless, many federal judges complain privately – and sometimes publicly - that the DOJ’s internal ethics office is a black hole where embarrassing misconduct allegations against prosecutors are sent to be covered up, not punished. Last year, U.S. District Judge Emmet Sullivan cited mistrust of the OPR process in his decision to appoint his own investigator, Washington attorney Henry Schuelke III, to probe the prosecution errors that led to the dismissal of the public corruption case against then-Sen. Ted Stevens (R-Alaska).
Sullivan at the time said the prosecution errors were ”too numerous to be left to an internal investigation that has no accountability.”
Earlier this year, OPR was again in the headlines when long-serving 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 authored the legal memos that justified waterboarding and other harsh interrogation techniques against terrorism suspects. Margolis softened the OPR findings to rule that Yoo and Bybee had been guilty of “poor judgment” and not misconduct in authorizing techniques that Attorney General Eric Holder and others have called torture.
In the Stevens matter, a preliminary 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 this year to bolster 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 creating a book for its prosecutors that will address discovery issues that may arise while handling a case.
Mary Jacoby contributed to this report.
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The Justice Department Inspector General said Monday that his office will examine how the Civil Rights Division enforces voting laws after House Republicans expressed concern about the way prosecutors handled a voter intimidation case against the New Black Panther Party.
Inspector General Glenn Fine wrote in a letter dated Sept. 13 that the review will not focus just on the case, which involved members an anti-white fringe group who stood outside a majority-black polling place in November 2008 wearing military clothing. His office will instead examine the Civil Rights Division Voting Section’s enforcement of voting laws over the years.
The letter was in response to inquiries from Reps. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, and Frank Wolf of Virginia, the leading Republican on the House panel that oversees the DOJ budget. Both expressed concern that politics may have influenced the DOJ’s decision to dismiss charges against all but one defendant in the case.
“We believe that our review of these issues will address many of the issues raised in your recent letters to me,” Fine wrote.
Smith said he was “pleased” with the Inspector General’s decision to review the DOJ’s enforcement of voting laws over time.
“In order to preserve equality under the law, we must ensure that the Justice Department enforces the law without prejudice,” Smith said in a statement. “I look forward to seeing the results of Inspector General Fine’s review of this matter.”
The DOJ Office of Professional Responsibility is also examining potential prosecutorial misconduct stemming from the case. The office is wrapping up its probe, which has lasted more than a year, and is starting to write up a report on its findings, Fine wrote.
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The North Carolina State Bar has suspended the license of a former Assistant U.S. Attorney this month for practicing law without an active license, according to an order from the bar’s disciplinary commission.
The North Carolina law license of David P. Folmar Jr., who represented the Justice Department from November 2003 to March 2009 without a valid license, is suspended for five years. But he can apply to have the suspension lifted after a year and a half, according to the order dated June 11, 2010.
Folmar’s license was initially suspended in November 2003 for failing to obey mandatory continuing legal education obligations. He also was licensed to practice law in Florida, but his Florida Bar license was retired before November 2003. An Assistant U.S. Attorney must have an active license from at least one state bar to practice law.
The ex-prosecutor did not notify his supervisors in the Middle District of North Carolina U.S. Attorney’s office about his suspension. Middle District U.S. Attorney Anna Mills Wagoner fired Folmar in March 2009. She then informed lawyers and judges who worked with Folmar on hundreds of cases. The DOJ Office of Professional Responsibility also disciplined him, according to the order.
The former Assistant U.S. Attorney was “having personal and family problems” and “suffering from depression and turned to alcohol” when he practiced law without a license, according the order.
Folmar was convicted in 2008 of driving while impaired. Police reports said he had almost three times the legal blood-alcohol content of 0.08.
He sought counseling and has shown “extreme remorse,” the order said. Folmar had an “unblemished” record and has a “professional reputation of being an honest lawyer,” according to the order.
Wade M. Smith, Folmar’s lawyer, did not immediately respond to requests for comment from Main Justice.
Smith told Main Justice that it was a “serious, serious mistake” for Folmar to practice law without a valid license. But the lawyer said he thinks there is still a place for Folmar in the legal community.
“I see so much good in him and I’m keeping my fingers crossed for him,” Smith said.
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The Justice Department Office of Professional Responsibility is probing whether the FBI and the U.S. Attorney’s office for the Southern District of New York leaked information on the insider trading case against the Galleon Group hedge fund to media outlets including the Wall Street Journal, Dealbreaker.com reported this week.
Galleon founder, billionaire Raj Rajaratnam, was charged with insider trading which allegedly brought him more than $33 million in illicit profits. Rajaratnam has made several complaints about the supposed leaks and has waged a public relations war against the Journal, which used anonymous sources in its reporting of the case.
John Dowd, Rajaratnam’s lawyer, said that information in the media “could only have come from the government itself. In a number of cases, these leaks have included the identities of individuals who have never been charged with any crimes.”
The Journal has said that the use of anonymous sources isn’t unusual. But the newspaper said it does not elaborate on its reporting techniques.
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Former Deputy Attorney General David Ogden said he supported legislation governing long-term detention of suspected terrorists “in theory” but acknowledged political difficulties in enacting it.
“I think it makes sense as a matter of good government, in theory, to have with something of this magnitude a political consensus that would come out of legislation,” Ogden said Tuesday at American University Washington College of Law, his first public appearance since stepping down in February. He added that it “would be a desirable thing” to have a process, loaded on the executive branch rather than the courts, to guide the administration as suspected terrorists are scooped up around the world.
But he said that the possibility of a defective law gave him pause. And the politics would be tough with the diversity of views on the issue, said Ogden, now a partner at Wilmer Cutler Pickering Hale and Dorr LLP.
His remarks came on the same day The Washington Post reported that Sen. Lindsey Graham (R-S.C.) had submitted draft legislation to the White House that would develop a framework for handling terrorism suspects. The White House is urging Democrats to give the proposal serious consideration in hopes of striking a deal that would lead to the closure U.S. military prison at Guantanamo Bay, Cuba, and resolve other detainee-related issues.
A task force created by President Barack Obama on his second day of office recommended in January of this year that 50 of the nearly 200 detainees at Guantanamo Bay be held indefinitely. Until recently, the administration had not shown an interest in pursuing legislation that would change the current process of judicial review. Guantanamo detainees can challenge their confinement in federal court in Washington, but some judges on the court have asked for guidance from Congress, and thorny questions remain about indefinite detention and what process should be afforded to suspected terrorists held outside the United States.
On Tuesday, Ogden gave a speech on the restoring the Justice Department and was interviewed by American University law professor Daniel Marcus, a former Associate Attorney General in the Clinton administration who has been named as Ogden’s possible successor as DAG.
Marcus, who also served as general counsel to the 9/11 Commission, focused heavily on national security issues, at one point asking Ogden about a controversial ethics finding against the former Office of Legal Counsel lawyers who approved waterboarding and other interrogation methods. The Office of Professional Responsibility concluded that lawyers Jay Bybee, now a federal judge, and John Yoo, now a law professor, violated professional standards. A career official in Ogden’s former office, David Margolis, downgraded the finding of misconduct to “poor judgment.”
Ogden said the matter raised “big questions” about the role of the ethics office. ”I think there are real questions about the ability of…an ethics watchdog to really evaluate potential violations by an office like OLC, where the gist of the ethical allegations is that the opinion was so wrong that it couldn’t be in good faith,” he said. “This is really hifalutin stuff that these folks do. They’re the smartest — you hope anyway — they’re the smartest lawyers the government can find and put in that situation, and it’s tough to have other folks come in and look over their shoulder and say, ‘You know what, not only are you wrong, but you’re so outrageously wrong that I think you acted in bad faith’ — not to say that if someone did act in bad faith they shouldn’t be subject to discipline. It’s a really hard thing to do and a really hard thing to look at.”
While the five-year investigation and report-drafting process raised several novel issues, Ogden said, the decision to let Margolis have final say was in keeping with department precedent. Margolis, who as Associate Deputy Attorney General is the department’s senior career official, has overseen the ethics office since 1993.
“We took a look at this one, we thought about the question of whether for some reason we should deviate from that given the importance and profile of this,” Ogden said.
He concluded that ”it would be a mistake because, what happens if a political appointee, albeit one of unimpeachable good faith, reverses, disagrees with David Margolis, or agrees with him. Does that help anybody at all? It seems to me it doesn’t, particularly where that would be unusual.”
He added: “I’m a great believer… in normal process, and that’s what the normal process was.”
Watch David Ogden’s speech here.
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New York Democratic Rep. Jerrold Nadler plans to renew a push for legislation that would change the way the Justice Department handles allegations of misconduct.
The measure championed by Nadler would allow the Office of the Inspector General the right of first refusal to investigate misconduct claims. Under the current structure, the Justice Department’s internal review board, the Office of Professional Responsibility, investigates all attorney misconduct allegations.
Supporters of the change say the Inspector General has much more autonomy given his unlimited term, greater resources and the fact that he reports to both Congress and the Attorney General, whereas OPR is much more susceptible to interference from political leaders.
Defenders of OPR, including Attorney General Eric Holder, counter that the specialized office is necessary because it has developed an expertise in applying complicated ethical and legal standards to DOJ employees and that allegations of misconduct, many of which are frivolous, should be handled out of the public realm.
Some members of Congress have tried and failed to give more power to the Inspector General before. The renewed interest is the result of a recent OPR investigation into the Bush administration’s interrogation policies. In a long-awaited report, OPR found that Bush-era Office of Legal Counsel lawyers Jay Bybee and John Yoo committed professional misconduct by authoring memos that approved the use of enhanced interrogation techniques. But that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department. In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct.
Nadler said the recent OPR report highlighted the need for change because of how easily a report can be overruled by just one man.
“I met with my staff … and said why don’t we introduce that bill?” Nadler told Main Justice.
Such a bill, Nadler’s staff told him, was actually quietly introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) in October. HR 3847 was referred to the House Committee on Oversight and Reform on Oct. 20, and has sat there since. Now Nadler plans to make a new push. Nadler does not serve on the Oversight panel.
“We’re going to pursue that,” said Nadler.
Long Running Disagreement
The tussle between OPR and the Inspector General is not new.
The Inspector General’s office is an independent entity within the department that publishes public audits and reports on DOJ programs. Congress and the executive branch have limited oversight over the DOJ’s Inspector General; the head of the office is selected by the president and confirmed by the Senate, and can be removed only by the president himself. The office has the authority to issue subpoenas to compel testimony or documents for investigations, but it is specifically prohibited from investigating the department’s lawyers for misconduct related to their official duties.
Only OPR — which answers to the Justice Department’s political leaders — can investigate Justice attorneys or other DOJ employees for misconduct. OPR does not have the ability to issue subpoenas and the results of investigations are not usually made public.
Much of the office’s workload remains a mystery.
While OPR is required by law to provide an annual report, the last one available is from fiscal 2007. The report is scrubbed of any identities.
In 2007, OPR received 906 complaints. The office determined that 207 of the matters, about 23 percent, warranted further review. OPR opened full investigations in 71 of those; the remaining 136, which are called “inquiries,” were resolved with no findings of professional misconduct.
Of the 75 investigations that were closed in fiscal 2007 — some of which took the investigators more than a year to finish — OPR found professional misconduct in only 23.
The report gives little to no detail on the subject of investigations.
“The matters opened as inquiries during fiscal year 2007 were remarkably diverse,” the report states. “Many of those matters did not involve a complaint against a department attorney. For example, some inquiries were based on allegations of whistleblower retaliation made by FBI employees. Others involved abuse of prosecutive or investigative authority by agents or unauthorized leaks to the media.”
OPR’s Toughest Critics
Some of OPR’s biggest detractors are federal judges.
Judge Mark L. Wolf, the chief judge of the District of Massachusetts, was forced to let two mob figures out of prison in 2003 after discovering that a federal prosecutor never told defense attorneys that the star witness in the murder trial had recanted his testimony.
An OPR investigation found the prosecutor’s conduct reckless but not intentional, and the attorney was privately reprimanded by the Massachusetts U.S. Attorney. But Wolf did not learn of the OPR finding until two years later and was highly displeased with the result.
Wolf wrote to the state bar disciplinary counsel and publicly released a letter to then-Attorney General Alberto Gonzales.
“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in the 2007 letter.
In a more recent case, U.S. District Judge Emmet G. Sullivan decided to open his own investigation into the botched prosecution of former Sen. Ted Stevens (R-Alaska) rather than rely on an OPR investigation.
Stevens was accused of failing to disclose gifts he received on his Senate Ethics form. He was convicted in October 2008, but after the trial a FBI whistleblower and many others accused the prosecution of mishandling evidence. Holder moved to dismiss the case, concluding that prosecutors improperly withheld evidence favorable to Stevens.
At an April 2009 hearing voiding Stevens’ conviction, Sullivan called the prosecution’s mistakes the worst mishandling and misconduct he had seen in his 25 years on the bench. Although the Justice Department had opened an internal OPR investigation, Sullivan said it was not enough. He appointed attorney Henry F. Shuelke III as an independent prosecutor to look into the matter.
“The court looks forward to receiving the results of the OPR investigation whenever that investigation concludes,” Sullivan said at the hearing. “But the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability.”
Holder Opposed Similar Bill
Efforts by Nadler or other lawmakers to press for enactment of Conyers’ bill will undoubtedly face opposition from the leadership of the Justice Department. A department spokeswoman declined to comment for this story.
Conyers’ legislation is similar to a 2007 measure introduced in the wake of the U.S. Attorney firing scandal.
That legislation, which dealt with inspectors general at all federal agencies, would have given Justice Department’s inspector general the authority to conduct legal ethics reviews.
But the legislation changed during Senate floor consideration, when the provision related to OPR was removed by Sen. Jon Kyl (R-Ariz.).
“I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not,” said Kyl at the time. “I fear that OPR’s actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.”
Kyl’s intervention came after the Justice Department and supporters from previous administrations raised objections to a stronger role for the Inspector General.
During the debate in 2007 on the inspector general legislation, Attorney General Eric Holder, then in private practice at Covington & Burling, wrote Sen. Joe Lieberman, one of the bill’s co-sponsors, in support of OPR. (A copy of the letter is embedded below.)
“I believe strongly that, far from curing the problems now under investigation, authorizing an IG to investigate the sensitive issues historically investigated by OPR would create additional opportunities for improper political concerns to influence law enforcement decisions,” Holder wrote.
“OPR has been recognized consistently as a strong, independent entity within the Department since its creation in 1975,” he continued. “Over the years, Attorneys General of both parties have considered proposal that OPR’s jurisdiction be given to the OIG, and have concluded that allegations OPR investigates, such as exercise of prosecutive discretion and legal judgment, should remain the mission of a dedicated staff of specialists responsible directly to the Attorney General.”
Margolis, who has overseen OPR as part of his role in the Deputy Attorney General’s office, is one of OPR’s biggest supporters.
In 2000, he testified along with other department officials that a bill to change the way misconduct cases were handled would be “profoundly unwise” and potentially unconstitutional. In his testimony he noted that OPR was subject to the “general supervision” of the Attorney General, and noted that the Attorney General has the final say regarding the release of information about the results of investigations.
After years of promoting the independence of OPR attorneys, his memo on the Bybee-Yoo report highlights what critics say is its major flaw — that it takes just one person to overrule OPR’s findings.
Inspectors General Want Change
There are several people within the DOJ who support a stronger role for the Office of the Inspector General, including the inspector general himself.
Inspector General Glenn Fine declined to comment directly on the recent OPR report, but said that his views about the need for an independent inspector general are very public.
“I think this should be a bipartisan issue, and it’s something we have talked about for awhile. My views on this are well known. We’ll see what happens,” Fine told Main Justice last month. “I expect that when I’m asked about this, I’ll continue to state my position on this.”
The previous Inspector General agrees.
“The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress. In theory and in fact, the AG controls the OIG far less than he controls OPR,” said Michael Bromwich, who served as Inspector General during most of the Clinton administration and is now a partner at Fried Frank.
When he took on the role, Bromwich was promised that the Office of the Inspector General would absorb the Office of Professional Responsibility. That transition never happened because of internal opposition.
For 22 years Michael E. Shaheen served as chief counsel in the Office of Professional Responsibility, investigating big cases across the department including cases that took on the FBI and even the attorney general.
Shaheen, wrote Jim McGee and Brian Duffy in their book “Main Justice,” gained the reputation of a dragon slayer, and kept his independence because of his allies on Capitol Hill, including now-Vice President Joe Biden during his stint as chairman of the Senate Judiciary Committee and his Republican successor, Orrin Hatch of Utah.
So it was surprising when in 2007 Shaheen called for his former office to be abolished, telling NPR its functions should be merged with the Office of the Inspector General.
It pained him to say so, he said, but the Office of Professional Responsibility has been “plagued by a history of delays and bureaucratic layers imposed on it,” he said.
Shaheen died that same year. But Bromwich said Shaheen’s comments on OPR after so many years leading the office “sent a pretty powerful statement” about the need for change.
Joe Palazzolo and Leah Nylen contributed to this story.
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A bipartisan group of former Attorneys General and Deputy Attorneys General have come to the aid of the Justice Department’s highest-ranking career official, David Margolis, who is under the microscope for his decision to overturn a finding of professional misconduct against former Office of Legal Counsel lawyers Jay Bybee and John Yoo.
Seventeen former officials — including every AG and DAG in the past 17 years, excepting Eric Holder — signed a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking Republican Jeff Sessions of Alabama extolling Margolis’ impartiality and wisdom.
“We all benefited during our tenures from the wise counsel and good judgment of David Margolis,” the March 4 letter states. “His advice is informed by his long experience and delivered with utter lack of partisan bias or any other distorting prejudice.”
As Associate Deputy Attorney General and a 45-year veteran of the department, one of Margolis’ duties is to oversee the Office of Professional Responsibility, which determined that Bybee and Yoo committed professional misconduct in authoring legal memos blessing brutal interrogation techniques, including waterboarding.
In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct. He also took aim at OPR for using what he described as shifting and incoherent standards against which Yoo and Bybee’s conduct was measured.
The letter makes no comment about the merits of his decision but concludes that it was reached “conscientiously and wholly without partisan purposes.”
Margolis’ decision has drawn sharp rebukes, and in some cases personal attacks, from the left, and praise, generally, from the right. The Senate Judiciary Committee held a hearing last week on the report, though it did not live up to the ferocity of the debate unfolding on editorial pages and blogs. Only four senators attended.
See the letter below.
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Former Justice Department Office of Legal Counsel lawyer John Yoo said in a column in Sunday’s Philadelphia Inquirer that he didn’t know why the DOJ’s Office of Professional Responsibility couldn’t find e-mails he exchanged with a colleague during the period in which Yoo was working on memos detailing the legal basis for interrogating terrorism detainees.
Acting Deputy Attorney General Gary Grindler told members of the Senate Judiciary Committee Friday that the DOJ is trying to retrieve the Yoo e-mails, which could not be recovered during the OPR investigation of potential misconduct by Yoo in the authorization of harsh interrogation methods for terrorism suspects. Yoo, who served in the OLC from 2001 to 2003, was recently cleared of misconduct stemming from the “torture” memos.
“During my interviews, OPR lawyers showed me several printouts of my e-mails,” Yoo wrote. “If they need more they should look in the files of the other lawyers on the network.”
He added that there couldn’t be any e-mails discussing interrogation methods to his ex-colleague, former OLC lawyer Patrick Philbin, because the Justice Department’s e-mail system is unclassified and could not be used to discuss interrogation techniques, which were “classified at the highest levels of secrecy.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) chastised Grindler on Friday for the missing e-mails. He said their disappearance raised “serious concerns” about government transparency.
Grindler said the OPR report on the authorization of the harsh interrogation methods does “not suggest that there was anything nefarious” about deletion of e-mails. But the National Archives sent a letter to the DOJ on Wednesday asking it to investigate “possible unauthorized destruction of e-mail and other records” in OLC.
Yoo said in his op-ed column that the OPR’s handling of the investigation is the “gift that keeps on giving,” adding that the OPR investigators are “incompetent.” He said that “Leahy’s outrage displays how little he and OPR understand the basics of intelligence.”