Failing to police their own

Justice’s oversight office called ineffective, unresponsive

December 13, 1998
By Bill Moushey, Post-Gazette Staff Writer

The story was as devastating as it was untrue.

Newspapers across the country, including the Post-Gazette, reported in 1990 that Roger Pilon, a former Justice Department official, had been investigated and forced to resign for leaking — through his wife — top secret information to the apartheid government of South Africa.

But at the time, the FBI already had cleared Pilon of the unfounded charge. In fact, the Justice Department, in a letter sent in the fall of 1988 exonerating him and his wife of wrongdoing, had thanked Pilon for his patience and cooperation.

It would be years before Pilon learned in court that the men who leaked this erroneous information to newspapers — leaks that violated federal privacy laws — included top attorneys at the Office of Professional Responsibility, who were angry that the Justice Department hadn’t heeded their recommendation to fire him.

OPR is the very office that is supposed to ensure that federal lawyers abide by the laws and ethical standards set by the federal government.

Pilon figured such blatant misconduct within the Justice Department’s own watchdog agency would be punished. He was wrong. He eventually sued the Justice Department and in 1996 received a $250,000 settlement, but no one was ever disciplined.

"In negotiations (with the Justice Department), we asked that disciplinary action be taken," Pilon told Congress at a 1996 hearing on the ethical responsibility of attorneys. "That was the first thing to go. The department, it seems, would rather pay money — the taxpayer’s money — than discipline . . . its own."

His experience mirrors many of the incidents detailed by the Post-Gazette’s two-year investigation into misconduct by federal agents and prosecutors. Even when misconduct is clear, federal officials are loath to acknowledge it, punish it or ensure that it doesn’t happen again.

U.S. Rep. John Murtha, D-Johnstown, whose Citizens Protection Act passed the House last year before being partially dismantled in a conference committee, last week described the Post-Gazette series as a diagram showing what needs to be reformed.

He said he has received calls complaining about misconduct by federal law enforcement officers from around the country since the series started three weeks ago.

Murtha said he will press for legislation to address problems raised in the series and will send a copy of the series to every member of Congress along with a letter describing the investigation as "required reading."

Referring to the Justice Department, he said: "When you have the ability and the vast resources to take away a person’s liberty, you better play by the rules."

Rogue investigators

Created by the Justice Department in 1975, OPR investigates complaints lodged against Justice Department attorneys "involving violation of any standard imposed by law, applicable rules of professional conduct, or Department policy."

It also oversees internal investigations by the FBI and DEA. The U.S. Customs Department and Bureau of Alcohol, Tobacco and Firearms have their own internal affairs sections.

OPR employs 19 attorneys — its staff was doubled after 1995 Senate hearings into disastrous confrontations by federal agents at Ruby Ridge, Idaho, and Waco, Texas.

The Justice Department in a statement Friday said the following changes have been made since Janet Reno was appointed attorney general in 1993: The OPR now conducts investigations as soon as it learns of misconduct accusations rather than waiting until after litigation ends; it completes investigations even if an attorney resigns or retires; it publicly discloses results of OPR probes "in certain cases"; and it files complaints with state bar associations against lawyers who make "bad-faith complaints" with OPR.

The Justice Department also said that the U.S. Drug Enforcement Administration and FBI Offices of Professional Responsibilities have been reorganized and expanded.

In Roger Pilon’s case, it looked as though the system had worked.

After a nine-month FBI investigation in 1988, he and his wife, who lost an appointment at the Department of the Interior because of the probe, were cleared of charges that they’d illegally leaked classified information to the government of South Africa.

But OPR wasn’t satisfied with the FBI probe and initiated its own investigation, which concluded that Pilon should be asked to resign or be fired. The Attorney General’s office then reviewed both investigations, along with rebuttals by the Pilons’ attorney. Again, Pilon and his wife were cleared. Afterward, they both resigned from their government posts to take jobs in the private sector.

Later, Pilon would learn that OPR attorneys thought he’d been cleared by the Justice Department because then-Attorney General Dick Thornburgh was miffed over an OPR investigation into two of his aides and wanted to discredit the office.

In an annual report published in 1989, the OPR made this erroneous statement: a high ranking Justice Department official had been forced to resign because he may have disclosed classified information to a foreign government. Newspapers quickly connected Pilon to the statement. The Justice Department again exonerated the couple, made it clear that Pilon had left for another job on his own volition, and this time paid Pilon and his wife $25,000 to cover legal expenses.

This was followed by still more leaks discrediting Pilon. This time he sued. The Justice Department fought the case for more than six years, and finally lost. In 1996, the department agreed to pay him $250,000.

OPR never disputed the leaks in court proceedings – it argued the disclosures didn’t violate the law. The U.S. Court of Appeals noted that the leaks had been carried out by OPR Deputy Counsel Richard Rogers and Peter Nowinski, who had worked on the Pilon case but left the Justice Department before he leaked the materials to the press.

OPR General Counsel Michael Shaheen was also questioned in the case. He denied in a deposition having done anything wrong. But the appeals court noted in its ruling a later deposition given by former Deputy Attorney General Donald B. Ayer, in which Ayer said Shaheen had tried to release confidential information to him about Pilon after Ayer had resigned from the department. Pilon said Shaheen was not questioned again after Ayer gave his testimony.

Shaheen could not be reached for comment.

Michael Gordon, a Justice Department spokesman, said: "No sanctions were imposed on any OPR official [in the Pilon case] because the Department determined that the conduct of the officials was legal." The appeals court judge disagreed.

Nowinski is now a federal magistrate in California and did not return a telephone call seeking comment.

Rogers eventually served as interim head of the OPR before being replaced last May. The Justice Department did not make him available for an interview.

Shaheen retired from the OPR last December. In June, he was appointed by Independent Counsel Kenneth Starr to examine allegations that a key witness in the Whitewater scandal — David Hale — had received cash from critics of President Clinton.

Pilon in 1996 testified in support of Murtha’s Citizens Protection Act. He said the mind set in the Department of Justice has not changed, and he still has difficulty fathoming efforts to smear him.

"The only thing I can think of, and others have said it as well, is that Shaheen is a guy used to winning, and this is a case that he has lost at every turn," Pilon told the Post-Gazette.

Scrutinizing OPR

The effectiveness of OPR in its fight against misconduct is nearly impossible to quantify.

The agency issues annual reports regarding its work, but no specific cases are discussed.

The Post-Gazette talked to nearly 200 people who had filed complaints with the OPR. Most of them said the agency simply wrote them a letter saying it found no basis for their complaints. A few said OPR told them it was taking action. None of the complainants ever learned what that action was.

The General Accounting Office in 1993 reported a troubling pattern in 59 cases the GAO had monitored as the result of a 1992 audit of OPR.

It found OPR sometimes closed cases before doing basic investigative work like contacting other Justice Department agencies who were involved in the probes that led to complaints.

"Although OPR is responsible for helping to ensure that Justice employees uphold high ethical standards, OPR did not ask for or expect ... a response from (other Justice Department entities) concerning its investigative outcome," the GAO said.

Marvin Miller, who has served as chairman of the ethics caucus of the National Association of Criminal Defense Attorneys, said the problem is a simple one: "The government will not prosecute its own.

"I’ve had cases where what they did was worse than what they claim the defendants did, and they are completely exempt from prosecution. No matter what kind of misconduct was committed, it’s OK."

Arnold I. Burns, who served as deputy attorney general for President Reagan, said the problem may also be a matter of money.

OPR was staffed with capable people when he was in office, Burns said. "The problem was they had too limited a budget, a zillion cases and few people to run them, so it was not an effective check."

Murtha’s concern

OPR is the focus of legislation U.S. Rep. Murtha wants to see passed next year. He wants the watchdog agency to make public all of its findings, and he wants Justice Department employees who engage in misconduct to face specific penalties from OPR.

"If they do violate their obligations and the law, there will be punishment," he said.

Murtha’s concerns about overzealous federal prosecutions is personal.

He watched as his colleague, Rep. Joseph McDade, R-Scranton, had his political career almost destroyed by an eight-year federal investigation into allegations of accepting kickbacks from contractors he helped get government work.

In 1996, a jury acquitted McDade after deliberating only a few hours.

Murtha wondered how an average citizen could have have withstood such an attack.

So he and McDade introduced the Citizens Protection Act in the House last year to establish oversight and safeguards that would protect citizens against unfair and illegal tactics by federal agents and prosecutors.

It was their belief, affirmed by defense attorneys and former federal prosecutors interviewed for this series, that real reform will require Congress to establish specific safeguards.

Their bill’s most important provision would have established an independent oversight board to monitor federal prosecutors and require them to abide by the legal ethics laws of the states in which they operate. It also provided sanctions against prosecutors who knowingly committed misconduct.

Despite opposition from the Justice Department, the legislation was approved on a broadly bipartisan vote, 345-82.

The House bill became part of the federal appropriations package that Congress passed in October, and the Justice Department managed through intense lobbying to have many of the provisions killed in the conference committee that crafted the budget bill. The provision requiring federal prosecutors to abide by the ethics laws in the states where they work remained, but the appropriations bill delays its implementation for six months.

Murtha said the Justice Department has increased its efforts to have even the watered-down law repealed before it takes effect in mid-1999.

He said he plans to meet those efforts head-on.

"My fellow members didn’t vote overwhelmingly for this because they liked us," he said. "Each and every one of them know of abuses and understand what people [who’ve suffered from those abuses] are saying."

He said he will work to get a bill passed in both the U.S. House and Senate, "so there is no chance for it to be repealed."