Monday, July 25, 2011
Has the Justice Department Lost Credibility?
"You don’t need a weatherman to know which way the wind blows" - Subterranean Homesick Blues, Bob Dylan
The Justice Department has taken some serious hits lately -- some have been fair and some are not accurate. All in all, the trend is not good. If the buck truly stops with the Attorney General, then he is responsible for the "tone-at-the-top."
DOJ's missteps lately are alarming. After securing the FCPA convictions of Lindsey Manufacturing and several officers, the prosecutors revealed that they failed to turn over grand jury testimony of the FBI case agent which was important to the defense and specific cross-examination of the case agent. Judge Matz has now put a break on the case to consider what remedies should be imposed on the government.
In Baltimore, Judge Bennett reamed out the government for its handling of the Tom Drake case -- the NSA whistleblower who was charged with ten felonies and allowed to plead at the last second to a misdemeanor. The government's case unraveled and the judge let the Justice Department prosecutors know he was displeased with their handling of the matter.
In another stinging rebuke, Judge Mott in Maryland granted a motion for judgment of acquittal for Laura Stevens, in-house counsel for GlaxoSmithKline, after ruling that the government's case was so flimsy that he could not in good conscience let the case go to a jury.
In Washington, D.C., after parading the FCPA sting operation leading to over 20 defendants being charged in an undercover operation, the government was unable to convict any of the 4 initial defendants at trial.
You will notice that I omitted the recent missteps which occurred in the Clemens case resulting in Judge Walton declaring a mistrial. I know the prosecutors personally who are handling the case and I can vouch for their professionalism, dedication and integrity. I will not include them in the list because they do not deserve to be there.
What can we glean from this pattern? As a long-time AUSA, and a manager in the US Attorney's Office in DC, I can tell you exactly what this reflects -- poor management from the Justice Department, and more importantly, a poor tone at the top. Let's judge the Justice Department by its own standards. When an FCPA violation occurs in a company, the prosecutors look to the tone at the top for compliance. Here, let's look at the tone at the top at the Justice Department.
In response to the Senator Stevens allegations of misconduct, the Justice Department renewed its training efforts to ensure that prosecutors followed the law. Along the way, this effort has been derailed. More is needed than just training. Take your cues from compliance programs -- follow up, assessment, and vigilance are critical. What is clear is that victory at all costs has become more important than winning while preserving the justice system.
The buck stops with AG Holder. It is up to him to address this latest trend.