An Ethics Meltdown at the Justice Department

- "Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just."
- U.S. Attorney General Robert H. Jackson, April 1, 1940 -

By Scott Horton at Harper's

USA Today offers an extraordinary multi-part study of prosecutorial misconduct [authored by Brad Heath and Kevin McCoy] at the Department of Justice over the last decade, under both Democratic and Republican administrations. The stories generally show prosecutors out to support the political agendas of their bosses. They also indicate a systematic evasion of the requirements of prosecutorial ethics and a collapse of ethics training and enforcement within the Justice Department, where an ethos of “victory at all costs” now controls.

USA TODAY spent six months examining federal prosecutors’ work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations. USA TODAY found a pattern of “serious, glaring misconduct,” said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. 'It’s systemic now, and … the system is not able to control this type of behavior. There is no accountability.' He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper’s findings “the tip of the iceberg” because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

The study quotes former U.S. attorney general Dick Thornburgh, who headed the Justice Department in the first Bush Administration and who was harshly critical of the collapse of ethics standards in the second Bush Administration. Thornburgh surveys the record of the past decade and states that “No civilized society should countenance such conduct or systems that failed to prevent it.”

What does Thornburgh mean by “systems that failed?” The focus of his ire is plainly a culture within the Justice Department that promotes abuse and fails to deal with abuse when it is publicly exposed. Despite his promises to clean the situation up, Eric Holder has done nothing other than arrange some ethics training courses. The Department steadily resists disciplinary action against prosecutors who misbehave and attempts to block public exposure of their misconduct through congressional probes with claims of prosecutorial immunity. Holder refuses even to take questions on the subject at public events (as occurred just this week at an event marking the fiftieth anniversary of To Kill a Mockingbird in Alabama). The U.S. attorney who is perhaps the worst single Bush-era offender remains in her position as Republican senators block efforts to appoint a replacement, and the Justice Department continues to stonewall an investigation into some of the most serious cases of abuse. In recent testimony before the House, Justice Department Inspector General Glenn Fine has acknowledged (PDF) the damage these disclosures have done both to the Department’s morale and to its reputation. Fine’s own office has revealed significant evidence of prosecutorial misconduct, particularly in political cases. Moreover, his reports often show how even his internal team is often blocked from getting to the bottom of abuse stories.

The USA Today study includes a database reviewing 201 cases, interviews with some of the Justice Department’s innocent victims, and summaries of some of the searing criticisms of prosecutors run amok from federal judges. What it covers is only a tiny fraction of the systematic abuses that scar the administration of justice in this country. Still, the USA Today effort is substantial and impressive, and clearly puts the publication in Pulitzer territory.