No Comment — October 18, 2007, 10:31 am

For Justice: A Light at the End of the Tunnel?

The OPR Hit Squad
In the past couple of months I have examined four cases handled by the Justice Department’s Office of Professional Responsibility. Through some time in 2002, OPR seemed to perform its function normally. OPR acts as a professional ethics advisor and oversight mechanism for the Department of Justice. However, sometime in the course of that year a number of very strange things began to happen, and since then I have identified a series of cases in which the Office’s function seems to relate to the persecution and punishment of whistleblowers, and not to ethics enforcement. In sum, OPR suddenly became intensely political. It’s had some internal political consequences for Justice. By all accounts, the Justice Department’s Inspector General and his team have functioned in a normal and professional way throughout both the Ashcroft and Gonzales terms. As a result, the political miscreants in the Department seem to be concerned about the prospect of an IG probe. How do they counter? Consistently OPR stands up and insists that the question is a professional ethics issue within its bailiwick. It pushes the IG to the side. And what happens when OPR gets its hands on a case? It’s dead on arrival. Nothing happens. Particularly if the case involves political shenanigans. OPR’s function is to shield and protect, not to probe wrongdoing.

Conversely, OPR is used to persecute those who are viewed as politically out of line. Today Murray Waas gives us some more fascinating detail on how Gonzales manipulated and used OPR in a report at the Huffington Post:

Alberto Gonzales was briefed extensively about a criminal leak investigation despite the fact that he had reason to believe that several individuals under investigation in the matter were potential witnesses against him in separate Justice Department inquiries. While Attorney General, Gonzales oversaw the probe into the disclosure of the Bush administration’s warrantless surveillance program to the New York Times. However, many of those under scrutiny in that investigation were likely to be crucial witnesses about whether Gonzales himself had violated the law while promoting the program as White House counsel and testifying about it to Congress.

Justice Department Inspector General Glenn Fine is currently investigating whether Gonzales gave false or misleading testimony about the eavesdropping program while under oath. Earlier, the Justice Department’s Office of Professional Responsibility (OPR) attempted to investigate whether Gonzales and other government attorneys acted within the law in authorizing and overseeing the program. President Bush personally intervened in the spring of 2006 to shut down that investigation by preventing OPR investigators from gaining the necessary security clearances. Senior federal law enforcement privately question the propriety of Gonzales receiving such sensitive information about subordinates being scrutinized in one inquiry when those same individuals were likely to be witnesses about alleged misconduct by Gonzales for the other investigations.

A senior law enforcement official said, “Most of the people who have been looked at [during the leak investigation] are never going to be charged. Most did nothing wrong.” Yet, during the course of the leak investigation, the official said, people were asked about their contacts with the press, whether they disagreed with aspects of the Bush administration’s eavesdropping program, and even their personal politics. The official said that special care should have been taken in briefing Gonzales — a political figure who also was the nation’s chief law enforcement official — and indeed was to some degree. But the fact that some of those investigated had information about potential wrongdoing against Gonzales was even worse.

Of serious concern, the law enforcement official said, was that the “investigative files in the [leak] case are the equivalent of raw intelligence files for someone like Gonzales.”

Waas proceeds to quote a number of legal ethics luminaries, who state the perfectly obvious: this is unethical conduct. So in yet another Orwellian play, the ethics enforcement arm of the Justice Department is actually deployed in highly unethical dealings.

And this highlights another routine and common practice of the Bush Administration: leak investigations are launched to intimidate and silence individuals believed to be critical of the administration. There are many reports circulating in Washington today to the effect that General Hayden at the CIA opened up a leak investigation on the basis of articles by Jane Mayer, Katherine Eban and Mark Benjamin about the Mitchell and Jessun contracts to develop a SERE-like training program for the CIA. This seems to be done to protect Mitchell and Jessun who are now known to be the target of a Congressional probe, not because of any real concern about leaks. The politically punitive leak probe has become a basic modus operandi of the Bush Administration.

War on the Trial Lawyers
The New York Times offers a fascinating report today on the major criminal probe launched by the Justice Department against the nation’s highest profile class action lawyers. Having spent my career as a corporate lawyer representing just the sort of corporations that Milberg Weiss sued, I have to confess to a measure of Schadenfreude at reading of their troubles. The Times’s Mike McIntire puts the case in an interesting new perspective. The targets in this prosecution were big donors to the Democrats:

Over the years, as it became Exhibit A for critics of shareholders’ class action lawsuits, the law firm of Milberg Weiss often enjoyed the support of Democrats who called the suits an invaluable weapon in the universal conflict between big business and the little guy. The Democrats, in turn, enjoyed the support of Milberg Weiss and its partners, who together have contributed more than $7 million to the party’s candidates since the 1980s.

Last year, the firm was indicted on federal charges of fraud and bribery. But the political partnership has not been entirely severed. Since the indictment, 26 Democrats around the country, including four presidential candidates, have accepted $150,000 in campaign contributions from people connected to Milberg Weiss, according to state and federal campaign finance records. And some Democrats have taken public actions that potentially helped the firm or its former partners.

The recent contributors include current and former Milberg partners who had either been indicted or were widely reported to be facing potential criminal problems when they wrote their checks. One, William S. Lerach, was a fund-raiser for John Edwards’s presidential campaign until his guilty plea last month. Melvyn I. Weiss, a founder of the firm, gave the maximum $4,600 to Senator Hillary Rodham Clinton of New York in June. Other firm members contributed to the presidential campaigns of Senators Barack Obama of Illinois and Joseph R. Biden Jr. of Delaware.

But reading through this article, I began to marvel over Mr. McIntire’s inability to ask some pretty obvious questions. Doesn’t it strike you as odd, Mr. McIntire, that such immense prosecution resources have been focused on a series of trial lawyers who give to Democratic candidates? Haven’t you read the series of stories the Times has run on this subject, including the questions the Times has quite properly been asking for sometime about the specific targeting of trial lawyers who raised money for John Edwards? Doesn’t it strike you as odd that a Republican administration, which according to a recent Syracuse University study has steadily dropped off white collar crime prosecutions since it came to office, would act with such vengeance against one of the principal sources of campaign funding for its opponents? Might that not indeed be potentially something corrupt in its own right? Yes, the article misses the big picture and the obvious questions. Indeed, McIntire says that these matters “led to several embarrassments for the Democrats.” But might it not indeed wind up being an embarrassment to the Justice Department? The politicization of the prosecutorial process is at this point such an acknowledged problem that Michael Mukasey was compelled to discuss it at some length yesterday. And at this point, courts are increasingly getting wise to what’s up.

Memo for Mike McIntire: interesting write up. Problem is that you missed the core of the story. In the last week, federal courts both in Illinois and Michigan who are handling the sister suits to the one he has in focus, have started asking very unsettling questions about the scope of the Justice Department’s quite extraordinary and suspiciously political conduct. Justice has defended this by saying that the prosecutions are all driven by career professionals—contentions which suffer from a fatal defect: they are untrue. Unless my instincts are way off the mark, the Milberg investigation and prosecution is the flagship of this whole G.O.P. armada sent forth to raid and pillage the opposing partisan camp. It’s just politics, you may say. How true. But using the criminal justice system to score partisan political objectives undermines public confidence in our justice system. It’s a vastly graver problem than some campaign finance squabbles.

Mukasey Testimony, Day One
I remember some time back visiting Michael Mukasey’s chambers down in lower Manhattan, and seeing two portraits on the wall. One was Robert H. Jackson, and the other was Eric Blair, better known as George Orwell. As readers of this column know, Jackson and Orwell are two of my heroes. Why, I puzzled, would this loyal Reagan Republican have these two photos on his wall? Jackson is an iconic New Deal liberal, and indeed a man whose views and values veritably define the American tradition in liberal jurisprudence. And Orwell? He was a dedicated lefty, purveyor of assorted socialist causes. But I have a good sense I know what this was all about, and watching Mukasey testify yesterday was a heartening experience in many respects. Jackson, whom Mukasey called the greatest of our modern attorneys general, serves as a reminder that excellence in the enforcement of the law is utterly blind to partisan politics. And Orwell? I’ll wager that it’s not the scarecrow Orwell of Nineteen Eighty-Four who captures Mukasey’s imagination. It’s Orwell, the greatest modern essayist in the English language. Orwell reminds us that language matters; that we must choose our words with care and precision. And that more hangs on this than simply style. It can and will mould the culture we live in and pass to others.

Mukasey’s opening remarks were eloquent, moving and necessary. And his responses to the questions put were thoughtful and candid. I don’t agree with many of Mukasey’s answers, but he gave no response that didn’t merit respect.

Impressed as I was with Mukasey, I was disappointed in the senate panel which failed to probe effectively into key issues, including the use of highly coercive interrogation techniques. Mukasey gave broad assurances, but in light of what we know today that the CIA is doing, more focused questions need to be pressed. Does Mukasey feel that long-time standing, hypothermia, sleep deprivation in excess of two days, the use of psychotropic drugs can be permitted? Those are specific questions that hang over our country today. They are ominous questions. And the nation is entitled to very specific answers.

Still, for a very long time now, the administration of justice in our country has been in the hands of hollow men. You can’t watch Michael Mukasey and not conclude that this spell will finally come to an end. This is a man who is not likely to tolerate the political mischief which has been the hallmark of the Justice Department for six years. And that will be a critical cultural change.

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