Misconduct at Justice Department isnt always prosecuted

BY MARISA TAYLOR AND MICHAEL DOYLE

McClatchy Washington BureauSeptember 10, 2014
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The Department of Justice in Washington, D.C.
TISH WELLS McClatchy
RELATED LINKS:
LinkJustice Inspector General misconduct cases obtained by McClatchy
LinkSenator Grassley letter on Justice Inspector General misconduct case
WASHINGTON Dozens of Justice Department officials, ranging from FBI special agents and prison wardens to high-level federal prosecutors, have escaped prosecution or
firing in recent years despite findings of misconduct by the departments own internal watchdog.
Most of the names of the investigated officials, even the highest-ranking, remain under wraps. But documents McClatchy obtained under the Freedom of Information Act reveal
for the first time a startling array of alleged transgressions uncovered by the departments inspector general.
These include:
Investigators concluded an assistant U.S. attorney lacked candor when interviewed by FBI agents investigating her husbands embezzlement activity. The prosecutor also
made misleading and contradictory statements to other investigators who were asking about her husbands criminal activities. She was verbally admonished this year, but the
Justice Department opted not to prosecute.
A U.S. attorney violated federal laws and regulations by accepting a partially paid trip to a foreign country by a nonprofit organization, according to investigators. The unnamed
presidential appointee was given a written admonishment and he was ordered to reimburse the organization. Prosecution was declined.
Two FBI supervisory special agents accepted free tickets to the NBA All-Star Game and gave them to family members. One agent lied under oath about his actions, and was
found to have misused government resources to engage in extramarital affairs with three women. That agent resigned after the bureau proposed his dismissal and the other was
suspended for three days. Neither was prosecuted.
An FBI assistant special agent in charge sexually harassed female subordinates, retaliated against a female special agent who refused to have a relationship with him and used his
FBI-issued BlackBerry to pursue romantic relationships with 17 FBI employees, nine of whom were direct subordinates, as well as 29 other women. In January, the FBI told the
inspector general it had issued an undisclosed disciplinary action. No charges were brought. In a statement to McClatchy, the FBI said it couldnt comment on an ongoing
personnel matter.
The records, which cover the period from January 2010 to March 2014, detail some 80 cases, only a few of which appear to have been previously made public. The accused
officials work for agencies that include the Drug Enforcement Administration, the U.S. Marshals Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
In at least 27 cases, the inspector general identified evidence of possible criminal wrongdoing but no one was prosecuted.
These previously undisclosed cases, and dozens of others like them reviewed by McClatchy, reveal more than an underside to federal law enforcement. The cases underscore how
much discretion federal prosecutors have in deciding whether to press charges, and they raise questions about when and why this discretion is applied.
I think its fair to ask why some of these cases werent prosecuted, Justice Department Inspector General Michael E. Horowitz said in an interview. Thats clearly a concern we
have: To make sure there are not two standards of justice at the Department of Justice.
However, he said its understandable in many cases that criminal charges arent filed. His office presents a case for prosecution in every instance where theres credible evidence
that could support elements of a crime, even when its weak.
Some of them are just legitimately difficult cases, he said.
The reports come, however, amid an overall decline in public corruption prosecutions during the Obama administration. So far this year, records obtained by the nonpartisan
Transactional Records Access Clearinghouse at Syracuse University show that 34 percent of investigators referrals of public corruption allegations were accepted for prosecution.
During the George W. Bush presidency, records show, 41.6 percent of the official corruption referrals resulted in prosecution.
Gauging the reasons behind an individual prosecutors decision-making is nearly impossible, because the Justice Department and inspector generals office wont release most of
the names or discuss the details of the cases.
Justice Department records show that federal prosecutors nationwide declined a total of 25,629 criminal matters during fiscal year 2013. The reasons most commonly reported
included weak or insufficient evidence and lack of criminal intent.
Peter Carr, a Justice Department spokesman, said prosecutors followed federal rules when deciding whether to initiate or decline charges in a case.
Carr pointed to the U.S Attorneys Manual, which says, Federal law enforcement resources and federal judicial resources are not sufficient to permit prosecution of every alleged
offense over which federal jurisdiction exists.
Public corruption cases are very fact-specific, and statistics fluctuate routinely year by year, Carr said Tuesday. The decision to bring a case involves a number of factors, all
covered by the Principles of Federal Prosecution, which may include the seriousness of the allegation, the admissible evidence and whether there is a substantial federal interest in
pursuing charges.
The inspector generals summary of unprosecuted cases was provided to Republican Sens. Charles Grassley of Iowa and Tom Coburn of Oklahoma, and independently obtained by
McClatchy through a FOIA request.
Grassley said he agreed that not all cases warranted prosecution. However, he called for more transparency in the decisions because of the obvious appearance of a conflict of
interest.
The public needs to be reassured that the department doesnt have one standard for its own employees and another standard for everybody else, he said.
Other cases federal prosecutors declined that were cited in the documents obtained by McClatchy include:
Allegations against an unnamed prosecutor who was recused from involvement with a criminal investigation because of a personal relationship with a criminal target. The
inspector general, however, concluded the prosecutor had disclosed information about the investigation and the wiretap to her spouse, who subsequently disclosed it to the target.
The prosecutor initially denied revealing the information to her spouse, but subsequently acknowledged that she might have said something about the investigation. The
prosecutor retired last November.
The husband of former Assistant U.S. Attorney Paula Burnett in New Mexico was convicted last September of leaking details of an investigation to Mexican drug cartel members.
Burnett retired late last year, according to news accounts. The inspector general and the U.S. attorneys office in New Mexico wouldnt confirm whether it was the same case.
Burnett declined to comment.
The inspector generals review found $211,000 in questionable purchases at a district U.S. marshals office, including ceremonial and promotional items previously banned by
headquarters, personal or other wasteful items. The investigators concluded that the marshal and the chief deputy marshal had misspent funds, knowingly misused the government
purchase card program and violated public service laws. Disciplinary action was still pending this year.
Investigators concluded that an immigration judge had solicited attorneys to purchase jewelry from her, borrowed money from a lawyer and interpreter, and failed to recuse
herself from cases that involved lawyers representing her relatives in criminal matters. The Executive Office for Immigration Review, which oversees immigration judges,
proposed disciplinary action in January. Spokeswoman Kathryn Mattingly said her office does not comment on personnel matters.
Several cases also involve prosecutors misusing their positions, including one whod sent emails on behalf of her boyfriend, disclosed sensitive information to him without
authorization, used government databases to conduct legal research for him, gave him access to government computer accounts and sent a gift to an attorney to get her boyfriend
legal assistance. In December 2011, she received a letter of suspension for 14 days.
In the interview, Horowitz wouldnt comment on specific cases but he added that hes personally appealed to U.S. attorneys to consider prosecution in some instances.
I pick up the phone and call them, said Horowitz, a former longtime federal prosecutor who handled corruption cases in New York.
Horowitzs role is not to make the prosecution decisions, but to ensure that prosecutors get the information they need .
There are some where I might have pulled the trigger. But Im not a prosecutor anymore so I respect the discretion not to. I cant think of any case where a decision was made not
to prosecute that I thought was unreasonable, he said.
Some of the misconduct cases may not be pursued because they involve low-dollar waste or abuse, Horowitz said. Or cases may be seen as too tough to prosecute, sometimes for
the wrong reasons, he added, such as the sexual abuse of prisoners. Prosecutors can view prisoners as unsympathetic witnesses.
Before Horowitz took over in 2012, the inspector generals office disagreed with a federal prosecutor who didnt want to file charges. In that case, a correctional officer had
accepted $1,300 from an undercover agent in exchange for agreeing to smuggle tobacco into a correctional facility. After prosecutors from the federal district based in Houston
declined to pursue criminal charges, a local district attorney took the case. The officer later pleaded guilty to bribery, was sentenced to probation and was fined $2,000.
Earl Devaney, a former inspector general for the Department of Interior, said a decision not to pursue criminal charges didnt necessarily mean investigators or prosecutors were
pulling their punches.
There are always a lot of good reasons to not prosecute, he said. Also, you can have a thousand little crappy cases that just make you look good and just one case that has
enormous impact.
Devaney nonetheless added that hed found the Justice Departments public integrity unit, which is set up to prosecute cases of high-level corruption, to be risk adverse in the
past. He worked with it as part of a federal task force that investigated superlobbyist Jack Abramoff and his influence peddling.
Sometimes, alleged misconduct by prosecutors and investigators might be handled less aggressively because of concern that it would taint criminal cases, Devaney said. At trial,
defense attorneys are permitted to learn of serious misconduct of the agents and prosecutors involved in their cases.
According to the most recent report by the office, the Justice Departments inspector general received nearly 5,900 allegations of misconduct, opened 195 investigations and was
involved in 32 arrests and 38 convictions from October through March.
This year, for instance, a former federal correctional officer in Missouri was sentenced for trying to hire an inmate to murder his wifes ex-husband.
However, the Justice Departments inspector general doesnt break down details on prosecutions. As a result, McClatchy couldnt determine the prosecution rate for the offices
cases.
At least one other inspector general does report such statistics. The Interior Department Inspector Generals Office opened 742 cases in the year that ended March 31. During the
same period, the office reported referring 44 cases for possible prosecution. Nineteen cases were declined.
During the same year, the Department of Homeland Security opened 551 investigations, referred 322 for prosecution and had 196 declined.
Horowitz is one of some 72 federal inspectors general, spanning myriad federal agencies. They are auditors, in part, scrutinizing government agencies in hopes of rooting out waste
and inefficiencies. In fiscal 2013, for instance, the inspectors general identified $44.9 billion in funds that could be put to better use.
Inspectors general also investigate criminal allegations. In fiscal 2013, their work led to 6,705 successful criminal prosecutions.
The agencies make the calls on disciplinary action.
In the Justice Department cases, Devaney said he was struck by instances of weak punishment.
An oral admonishment is not a deterrent, Devaney said.
One case was triggered by a complaint by Grassley about FBI Assistant Director Stephen Kelly. Kelly, who managed the bureaus Office of Congressional Affairs, told Grassleys
staff that the FBI knew that the senator planned to attend the wedding of a subject of an FBI investigation, according to the inspector generals report.
He assured Senator Grassley that he was not a focus of the FBI investigation, the documents say.
The OIG concluded that Kelly did not have the authority to disclose nonpublic information about an ongoing criminal investigation to Senator Grassley or his staff, and in doing
so exhibited poor judgment, the report states.
Grassleys office said the senator never planned to attend the wedding and was invited by the son of the target of the investigation. The target was Russell Wasendorf Sr., founder
of Peregrine Financial Group Inc., who pleaded guilty to embezzling more than $100 million from customers.
Senator Grassley and the staff member who spoke with Mr. Kelly both thought the disclosure was inappropriate, and could have been intimidating to somebody who hasnt dealt
with the FBI like Senator Grassley and his staff have, said Grassley spokeswoman Beth Levine.
This year, the FBI concluded that the allegation Kelly had violated internal policy was unsubstantiated and gave him nondisciplinary counseling.
FBI concluded that Kellys disclosure of nonpublic information derived from an ongoing investigation was improper, for which he received nondisciplinary counseling, the
bureau said in a statement. The FBIs Office of Congressional Affairs must be afforded some measure of latitude and flexibility in dealing with members of Congress. As this
instance did not result in harm to the ongoing investigation, and was done with good intentions, the matter did not constitute official misconduct.
TISH WELLS CONTRIBUTED TO THIS STORY.
Email: mtaylor@mcclatchydc.com, mdoyle@mcclatchydc.com; Twitter: @marisaataylor, @MichaelDoyle10.

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Sidney Powell President at Sidney Powell P.C.
Just read LICENSED TO LIE: Exposing Corruption in the Department of Justice--a legal thriller but true. It names names, and you can see how high up it goes. Riveting, shocking. Also see my
articles at www.Observer.com the site of the New York Observer.
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1 September 11 at 11:09am
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Choctaw Love Top Commenter
I know so far no lawyers will sue for the violations done to me by federal agents. Including wrongful imprisonment, kidnap, identity theft all done with malice and prejudice.
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1 September 11 at 12:16pm

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Adrian Nardi Wisconsin University
This DOJ is a disgrace when it comes to enforcing the laws on the books. They are unwilling to prosecute their own in fears that the public would find out how corrupt their leadership is.
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September 11 at 7:36am

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Steve Neely Top Commenter University of Arizona College of Law
The Holder DOJ, like the Obama Administration that spawned it, is an ongoing criminal conspiracy.
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September 12 at 8:36am

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Nick Hail Top Commenter The University of Oklahoma
I wonder what the common thread is for the last few years, hmm what could it be?
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September 11 at 7:25am

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Jim At JB's Old Dominion University
As the head of the IRS just said "we follow the law.... when we can".
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September 11 at 8:59am