Federal Prosecutors Need a Watchdog, Too

https://www.nytimes.com/2018/12/25/opinion/editorials/prosecutors-justice-inspector-general.html

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“Whatever it takes, this behavior must stop.”

So wrote a federal judge five years ago in dismay over repeated instances of “prosecutorial misbehavior and discovery improprieties” by federal prosecutors in North Carolina.

The legal troubles of Gregory Bartko, a crooked investment banker and lawyer who was the victim of these prosecutorial shenanigans, are a bit of a yarn. But even a swindler is entitled to fair treatment by prosecutors, including the constitutionally protected right to see any exculpatory evidence.

In Mr. Bartko’s case, the prosecutors who went after him blew by that basic principle. And though his conviction was ultimately upheld, the appeals court that reviewed his case took the extraordinary step of referring the prosecutors in the office of the United States attorney for the Eastern District of North Carolina to the Justice Department’s Office of Professional Responsibility.

And yet therein lies a problem. The very office charged with policing lawyer misconduct is an artifact of bureaucratic history that answers to the attorney general and not to Congress or the American public.

Under federal law, a vast majority of lawyers working in the executive branch are subject to oversight and accountability by inspectors general in their respective departments. These watchdogs, who answer to Congress and issue public reports of their work, can independently investigate claims of professional misconduct and, when warranted, refer the cases for appropriate action, which may include dismissal or even criminal prosecution.

But because of a quirk in the Inspector General Act of 1978, federal prosecutors and other lawyers working for the Department of Justice — which also houses the F.B.I., the Drug Enforcement Administration and the Marshals Service — don’t get the same kind of independent oversight required in other government agencies.

Instead, what misbehaving lawyers there get and have gotten for the past 30 years is referral to the Office of Professional Responsibility, which was created in 1975 and whose director reports to the attorney general. The office claims independence, but in practice it can be overruled — as when the Justice Department ignored an O.P.R. conclusion that the two lawyers who wrote the Bush-era torture memos had committed “professional misconduct.”

Under this anomalous regime, allegations of misconduct by the F.B.I. director or his agents would be handled by Inspector General Michael Horowitz — as he did in his recent review examining the F.B.I.’s actions in the run-up to the 2016 election, including how James Comey handled the Hillary Clinton email investigation. But similar allegations of wrongdoing against lawyers in the F.B.I.’s general counsel’s office or line prosecutors bringing cases in federal court — like those in Mr. Bartko’s case — would be shielded from Mr. Horowitz’s purview.

In effect, this means there are two tracks of justice at Justice: one for prosecutors and other lawyers and another for every other employee.

That’s an aberration, not just because a federal prosecutor “has more control over life, liberty and reputation than any other person in America,” as Attorney General Robert Jackson said in a famed 1940 speech, but also because examples of lawyer misconduct at the Justice Department are legion. And it’s often the case that the public learns about them only in the most extreme of cases.

The botched prosecution of former Senator Ted Stevens of Alaska, the “flagrant misconduct” in the dismissed case of Cliven Bundy in Oregon and allegations that Labor Secretary R. Alexander Acosta may have mishandled the sexual abuse case of Jeffrey Epstein while serving as a United States attorney in Florida all point to a culture that demands accountability to the American public. Under current law, the Justice Department’s inspector general has no power to investigate such cases.

And the Office of Professional Responsibility … did what? Hard to tell, because other than annual reports listing examples of lawyer misconduct that the office has reviewed in a given year, the office provides far less detail to the public than the Office of the Inspector General.

Congress now has an opportunity to fix this. In November, the House of Representatives passed a bill that would allow the inspector general of the Justice Department to oversee department lawyers — as he does virtually every other employee in the department.

The Senate should follow suit. For many years, versions of this same proposal have enjoyed broad bipartisan support, including that of the current Republican chairman of the Judiciary Committee, Charles Grassley.

Against this tide of legislative unity stands the Justice Department itself, which says that the O.P.R. is independent and effective and that giving the inspector general primary jurisdiction would only lead to bureaucratic delays.

The reality is starker: 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.

That framework is unsustainable today. It makes sense to give Mr. Horowitz’s office oversight authority over the activities of Justice Department lawyers — as other inspectors general have over lawyers in their departments.

Doing so would aid the cause of justice and strengthen the public’s trust in an institution charged with upholding it.

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