A Recent Report Reveals Numerous Ethics Violations by Former Justice Department Attorneys Relating to the U.S. Attorney Firings of 2006 - So Why Haven't Bar Disciplinary Referrals Followed?

On September 28, 2008, the U.S. Department of Justice's Office of the Inspector General (OIG) and Office of Professional Responsibility (OPR) issued a long-awaited report on their investigation into the controversial removal of nine U.S Attorneys ("the Report"). It has long been clear, and the report confirms, that the nine were fired because of their politics - not, as had been claimed, their performance.

The investigators said they did not have enough evidence to justify recommending criminal charges in the case-despite detailed descriptions of witness tampering, subornation of perjury, false statements to the government, and obstruction of justice. Fortunately, Attorney General Michael B. Mukasey has appointed a special prosecutor to continue the inquiry.

In this column, I'll raise the question of why OPR is failing to take the kind of action that is clearly merited based on what we already know, and advise bar disciplinary authorities of possible professional misconduct on the part of the derelict attorneys. This is the relatively low standard used by OPR in the past and it would be hypocritical for OPR not to apply it here as well.

DOJ's failure to refer the offending attorneys to the relevant bars strikes me as especially ironic, for the very same DOJ chose to refer me to my state bars for misconduct when - as I explain in detail below - all I had done was to seek to ensure that other DOJ attorneys complied with ethics rules and honored a criminal defendant's constitutional rights.

Supervisors Alberto Gonzales and Paul McNulty Violated the Rules Regarding Oversight of Subordinates

To begin, the rules governing responsibility of supervisory lawyers and subordinate lawyers would certainly be triggered by the information already revealed by the Report.

Section (b) of American Bar Association (ABA) Model Rule 5.1, which governs supervisory lawyers, states that: "A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." Both former Attorney General Alberto Gonzales and former Deputy Attorney General Paul McNulty failed to satisfy this standard.

The Report does not mince words: On page 325, it states that "we found that Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty failed to adequately supervise the U.S. Attorney selection and removal process, and they were remarkably unengaged in [it]." On pages 339-40, it adds, "This was not a simple personnel matter that should be delegated to subordinate officials-it was an unprecedented removal of a group of high-level Department officials."

Instead of satisfying their supervisory obligations, Gonzales, McNulty and others in the senior leadership of the Department let subordinate attorneys Monica Goodling, of Messiah College and Regent Law School fame, and Kyle Sampson handle the U.S. Attorney dismissals, in an effort that, in the words of the Report (at page 329), was "arbitrary, disorganized, and unsystematic."

Subordinates Monica Goodling and Kyle Sampson Violated Rules Requiring Them to Properly Communicate Their Actions to DOJ

Meanwhile, Goodling and Sampson themselves were bound by Rule 5.2, among others, which governs "Responsibilities of a Subordinate Lawyer." It makes clear in section (a) that, "A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person." Moreover, Goodling and Sampson never raised the Nuremberg defense that they were just following orders, nor did they claim that they suffered from inexperience, which could mitigate (though not excuse) a 5.2 violation.

As a general matter, the removal plan utterly fails the "Communication" dictates of Rule 1.4, one of the most fundamental of a lawyer's obligations. That Rule requires in section (a)(2) that a lawyer reasonably consult with the client (in this case, the Justice Department) about the means by which the client's objectives (in this case, removing U.S. Attorneys) are to be accomplished. Here, Sampson consulted with his superiors only informally, and the Report found (at page 329) that he "did not make it clear to some of the people he consulted about the purpose for asking what they thought about particular U.S. Attorneys."

In particular, Sampson certainly did not "explain [the] matter to the extent reasonably necessary to permit the client to make informed decisions," as Rule 1.4(b) requires. Instead, the Report reveals (at page 29) that he chose to "sound people out in an informal setting in order to get their 'frank assessments' of U.S. Attorneys." Sampson also had a duty to "keep the client reasonably informed about the status of the matter," Rule 1.4(a)(3), which was not done; in fact, McNulty -- the second-in-command of the Justice Department and the immediate supervisor of the U.S. Attorneys, "was not even made aware of the removal plan until the fall of 2006," Report at 327, nearly two years after it began.

Part of this communication breakdown may have been due to confusion on Goodling and Sampson's part over the identity of the client under Rule 1.13, which governs an "Organization as Client." Goodling and Sampson had as their client an organization-the Justice Department-rather than any individual officeholder.

Granted, the Report notes (at page 18) that White House Counsel Harriet Miers requested that Sampson "provide recommendations in the event the Administration decided to ask for resignations from a 'subset' of U.S. Attorneys." Yet Miers was not the client, nor was President Bush, as Goodling seemed to think. Indeed, Miers was not even a constituent of the organizational client, unless you take the broad view that the client was not only the Justice Department, but the entire executive branch of the U.S. government.

Under either view, Comment 4 to the Rule instructs that "[w]hen constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful." But that is no defense here: Where a lawyer knows that a constituent is acting illegally and that conduct could be imputed to the organization, the lawyer must take action to prevent or mitigate the harm.

In short, the legal ethics rules require lawyers to protect entity clients from harm committed by their constituents. The report finds Goodling and Sampson did not do so.

Violations of the Rule Regarding Truthfulness in Statements to Others

Rule 4.1, which governs "Truthfulness in Statements to Others," also comes into play here. It mandates that, in the course of representing a client (again, presumably the Justice Department), the lawyer shall not knowingly make a false statement of material fact or law to a third person.

Here, such falsehoods became the reason for the whole unraveling of the removal plan. The Report (at 336) notes that the initial script provided to Michael Battle, director of the Executive Office of U.S. Attorneys, called for him to tell the U.S. Attorneys that "they were being removed because the Administration wanted to give someone else a chance to serve." But then Gonzales and McNulty "testified that the removals were based on performance" - as the Report notes at 337.

The conflicting explanations did not go unnoticed. Indeed, the ousted U.S. Attorneys had already begun to compare notes, speculating that they might have been removed for improper political reasons-which ultimately proved to be true-and did not take kindly to having their terminations blamed on poor performance. (McNulty later wrote that "we all thought 'performance' was a safe word," as the Report states at 66 n.50, and that it did not sound as negative as the U.S. Attorneys who were removed later perceived it.)

At a Bare Minimum, It Cannot Be Questioned that the Catchall Anti-Misconduct Provision Surely Was Violated Here

Finally, even if none of the aforementioned rules apply, then the catchall provision of Rule 8.4, which governs "Misconduct," surely does.

Under section (c) of that rule, it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." The rule covers lying as well as acts of omission, and a misrepresentation to anyone can subject a lawyer to discipline.

It is beyond question that the Report establishes numerous instances of misconduct. The term "misleading" appears over 25 times in Chapter IV on "The Conduct of Senior Department Officials." The section on Kyle Sampson (at Chapter IV(c)(1)-(3)) is even broken into three subparts labeled "Misleading Statements to the White House," "Misleading Statements to Congress," and "Misleading Department Officials."

It is simply impossible to believe that none of the negligent attorneys in the Report ran afoul of Rule 8.4(c) when they clearly violated so many of the other ethics rules.

My Own Story: Evidence of Bush DOJ Hypocrisy Regarding Bar Referrals

In contrast, as the first Justice Department attorney purged for political reasons, my personal experience with OIG and OPR was quite different.

In 2002, as the DOJ ethics attorney in the case of "American Taliban" John Walker Lindh, the first major terrorism prosecution following 9/11, I advised that the FBI should not interrogate him without his lawyer. When the FBI did so anyway, I advised that the interview might have to be sealed and used for only for national security or intelligence-gathering purposes, not for criminal prosecution.

Nevertheless, the Department decided to prosecute Lindh, and I inadvertently learned of a discovery order seeking all Department correspondence related to Lindh's interrogation. This order had been deliberately concealed from me.

When I went to consult my files to comply with the order, I found that more than a dozen of my e-mails on the subject were missing. Even worse, they had not been produced to the judge who presided over the Lindh case.

I recovered the e-mails from my computer archives, provided them to my boss, resigned, and took home a copy in case they "disappeared" again. When DOJ continued its misconduct by withholding the e-mails from the court, I disclosed them to the media.

The OIG conducted a four-month investigation, focusing on me rather than on the serious misconduct I had brought to the office's attention. On January 7, 2003, Glenn Fine, the same inspector general who authored the report on the U.S. Attorney scandal, told my attorney that his office had looked into my whistleblower allegations and was not going to pursue them.

My immediate reaction was that they did not look very deeply because they didn't even bother to ask me, the complainant, what had happened. To add insult to injury, Fine advised that there was an open criminal investigation of me (for what alleged offense, I was never told), and that they had referred it to the U.S. Attorney's Office in D.C. for prosecution. Eight months later, the case was closed, with no charges ever being brought.

A month later, apparently believing that I had not been "punished" enough for exposing the Department's discovery abuses, OPR dispatched letters to the Maryland and D.C. bars in which I am licensed as an attorney, based on the secret OIG report, to which I did not have access.

If this all sounds Kafkaesque, it was. I asked the Lindh judge to unseal the OIG report so that I would have a fighting chance of defending myself, which he did. Unlike the thorough and exhaustive report on the U.S. Attorney massacre, the flimsy report in my case was so shoddy and riddled with contradictions that the Maryland Bar dismissed the charges shortly thereafter. Five years later, the complaint against me is still pending in the D.C. Bar.

DOJ Should Decide Whom to Prosecute, and Whom to Refer to the Bar, Based on Evidence - Not Politics

In sum, despite the numerous, detailed and major violations of law documented in the U.S. Attorney firings matter, a controversy of epic and historical importance, investigators said they did not have enough evidence to justify recommending criminal charges in the case. In my small case, the OIG recommended criminal action. We'll have to see if the Mukasey DOJ has enough integrity to go forward. If it does not, you can be sure the reason is pure politics.

Despite clear ethical violations, OPR did not refer any of the wayward attorneys in the U.S. Attorney debacle to their state bars. In my case, OPR referred me to the bars in which I'm licensed for "possible professional misconduct." It is crystal-clear from the comparison that politics - not evidence - is driving decisions whether or not to refer former DOJ attorneys to the bars to which they are admitted.

Moreover, the alleged misconduct of those responsible for the U.S. Attorney scandal occurred while they were acting in their official capacity. In contrast, my alleged misconduct occurred after I left the government-action I took in my personal capacity as a private citizen, which was authorized by the Whistleblower Protection Act.

Finally, OPR used an extremely low standard to refer me-claiming I had committed a single act that "may have" violated my professional duties. This stands in stark contrast to the multiple instances of serious professional misconduct committed by multiple senior attorneys, sometimes acting in concert with one another, that are exhaustively chronicled in the Report on the U.S. Attorney dismissals.

Ultimately, the thing the Justice Department got right here was appointing a special prosecutor to continue the inquiry-something I requested regarding the Lindh case, but was denied. Instead, it fell to Pulitzer-Prize-winning investigative journalist Eric Lichtblau to reveal in Bush's Law (at page 35) that Gonzales, as White House counsel, "had decided not to turn anything over to Lindh's defense lawyers in the way of documents. 'We're not going to provide discovery,' Gonzales said."

That's something that merits investigation and bar referrals-of Gonzales, not me.