Friday, June 26, 2020

DOJ Office of Professional Responsibility 'pretextual' investigations okay

Federal prosecutor John Elias testified before Congress that “[w]hile these were nominally antitrust investigations, and used antitrust investigative authorities, they were not bona fide antitrust investigations.” According to Slate, they were instead initiated because Attorney General William Barr “did not like the nature” of the companies’ “underlying business.” Elias’ analysis was largely circumstantial—which, contrary to popular belief, is totally fine—and it was compelling: It included data on the rarity of the type of reviews at issue, references to documents in which staffers had repeatedly indicated that there was no basis for the investigations, and an allegation that during a March 2019 meeting Barr personally ordered division leadership to reject the analysis of career attorneys because “he did not like the nature of [the] underlying business.” (Elias did not attend the meeting in question.)
Elias first reported his concerns to the DOJ’s inspector general, but they were eventually investigated by the DOJ’s Office of Professional Responsibility, which generally handles allegations of ethical misconduct by attorneys while they are on the job. OPR concluded that nothing improper had occurred and summarized its findings in a two-page summary that was publicly disclosed late Wednesday. The memo was signed by the head of the office, who is a career official who was appointed to the position by Barr last month.
Much of OPR’s summary is maddeningly conclusory—simply asserting that Elias was wrong on certain factual questions without explaining how the office came to that view. It is, however, the end of the memo that is truly disturbing. OPR noted that Elias and another whistleblower had accused DOJ of “conducting pretextual investigations” in the cannabis industry “even though such mergers presented no competitive concerns.” The office nevertheless concluded that “even if” the “allegations were true,” these pretextual investigations “would not have violated any relevant laws, regulations, rules, policies, or guidelines.”
This is a stunning finding, and the implications reach far beyond just antitrust enforcement. This is a green light from the DOJ’s internal ethics watchdog to launch investigations that have no legitimate law enforcement objectives. This could include, say, a pre-election investigation into Joe Biden that is intended to inflict political damage on his candidacy, or an investigation into other companies or industries that the president, the attorney general, or other political allies dislike—for political reasons or otherwise. Under OPR’s bizarre logic, as long as the investigation actually occurs (!), then everything is fine. 
Elias apparently received OPR’s report the night before the hearing, and he was understandably taken aback. At the hearing, he testified that OPR’s conclusion was “very concerning to me because it seems so self-evident that if your sole motivation is animosity, that is impermissible. If there is no rule or regulation, there is one missing because that’s obviously wrong.”
In fact, the conduct at issue—if Elias is right about it—is plainly improper under the ethical rules that govern attorneys’ conduct. Under the American Bar Association’s Model Rules of Professional Conduct—the template for the vast majority of state bar rules that govern lawyers’ work—lawyers are not allowed to “make a false statement of material fact or law to a third person” in the course of their work, and they are also not allowed to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (Federal regulations also prohibit federal employees—lawyers and nonlawyers alike—from engaging in “dishonest” conduct, as well as wasting money and abusing their authority.) 
In the case of “pretextual” investigations, the argument for illicit falsehood is pretty straightforward: When the DOJ investigates someone, it is impliedly representing that it is doing so because it believes there may have been unlawful conduct. If that is not true, then the department is engaged in dishonest conduct.
This is not the first time OPR’s work has raised eyebrows. The office has a historically questionable track record doing anything about prosecutorial misconduct. Critics often attribute this to the fact that OPR is not truly independent: The office itself explains that it “reports directly to the Attorney General and the Deputy Attorney General.” By contrast, the DOJ’s inspector general is a presidential appointee, but he is confirmed by the Senate and reports to both the attorney general and Congress.
The problem is that the inspector general has broad investigative jurisdiction over misconduct at DOJ, but it is OPR that generally handles allegations of ethical misconduct by attorneys—a division of labor that has long been criticized. As the New York Times put it in 2018, “Prosecutors, like others in law enforcement, prefer self-policing. And the O.P.R. exists within a culture of exceptionalism and self-preservation that the Justice Department has fought hard to maintain.” (Disclosure: Before I left DOJ, I submitted an internal complaint that may be investigated by OPR, but writing this piece is not likely to endear me to anyone over there.)
As it happens, there is a bill pending in Congress that would eliminate OPR’s role and task the DOJ’s inspector general with handling investigations of attorney misconduct as well. The bill passed unanimously in the House last year, and it was voted out of the Senate Judiciary Committee on Thursday with near-unanimous and unusually broad bipartisan support. It has also drawn rare cross-ideological support from groups as varied as the ACLU and Freedom Works—but DOJ lawyers are fighting hard against it.
Practically speaking, it is hard to say how much the pending bill would really change. The DOJ Inspector General’s Office is far from perfect, and it is not immune from political and public pressure. But OPR’s response to Elias’ complaint—a license to personalize and politicize law enforcement, issued intentionally or not—is among the best pieces of evidence to date that something needs to change. 
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