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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