Anonymous DOJ Statement: “Trust Us”

The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.

When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.

In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.

In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”

Right off the bat, I can think of 5 major problem with this statement:

No one has been held accountable

We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.

No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.

This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.

Even after this training, discovery problems remain

As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.

And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).

If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.

Eric Holder won’t run DOJ forever

The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.

In short, while Holder may require prosecutors to meet their discovery obligations (I’m much, much less sanguine that Criminal Division head Lanny Breuer will), that’s no guarantee the next Attorney General won’t just blow off a judge’s concerns about it.

DOJ released this statement on the same day as reports that FBI agents told they can “suspend the law”

One of the problems with the Stevens case Schuelke referenced today arose when FBI Agents without a great understanding of Brady and Giglio requirements conducted the document review to fulfill discovery. Given lapses in prosecutorial management, that resulted in failures to comply with discovery.

Now, last year, DOJ conducted a 4-hour training session for FBI agents to review these issues. But look at what else DOJ has trained its FBI agents, as revealed by Spencer Ackerman today:

One FBI PowerPoint — disclosed in a letter Durbin sent to FBI Director Robert Mueller on Tuesday and shared with Danger Room — stated: “Under certain circumstances, the FBI has the ability to bend or suspend the law to impinge on the freedom of others.”

Now, if DOJ went back and made sure all the agents who had received the training telling agents they could break the law, this might not be such a problem. But how seriously can you take DOJ’s current training efforts given what they have reinforced in the past?

Trust us. Love, anonymous

Ultimately, this statement amounts to DOJ–and the Executive Branch more generally–again imploring Congress to just trust the Executive Branch. Trust us, allow us flexibility, we won’t screw up again.

But as noted, this is an unsigned statement.

That is, DOJ is asking Congress to just trust that it–“we”–will fix the problem. But no one is signing that promise.

Who is the “us” we’re supposed to trust?

This is what the Executive Branch has increasingly become, a bureaucracy resisting any controls on its power–all in the name of flexibility–all while shielding the decisions made under the veil of anonymity from any accountability.

“Trust us. But you’ll just have to take it on faith that we’re worthy of your trust.”

16 replies
  1. PeasantParty says:

    “Who is the “us” we’re supposed to trust?”

    Bush, Cheney, Rove, and all their minions in the DOJ.

    The special class on special discovery rules is a tell all. How many paralegals, attorney’s, legal assistants do you think would risk being disbarred for not keeping up with their annual continuing education classes? NONE!

  2. Arbusto says:

    What has lead to the apparent decline of the FBI and DoJ, at least in high profile cases such as Stevens? You’d think that all the agents and prosecutors would have to do is follow paint by numbers policies and procedures in place for the last 50 yrs, or in its absence use common sense. Christ, its not like investigation and prosecution in court is quantum physics. Maybe there’s a preferred hiring quota from a special education law school that’s caused a marked decrease in core competences.

  3. Peterr says:

    From Spencer’s piece:

    “Of the approximately 160,000 pages of training material reviewed, less than one percent contained factually inaccurate or imprecise information or used stereotypes,” [FBI spokesperson Christopher] Allen told Danger Room. “But mistakes were made, and we are correcting those mistakes. Through this review process, we recognized that we lacked a centralized process to ensure all training materials were reviewed and validated. We are addressing that gap so this does not happen again.”


    No one who prepared any of the “factually inaccurate or imprecise” instructional material faced disciplinary action. “All FBI employees who prepared inaccurate, imprecise, or stereotyped materials were interviewed,” Allen said. “It was made clear to them what was wrong with the materials and why they were not acceptable for FBI training.”

    That’s left Sen. Durbin dissatisfied.

    Me too.

    Note the use of the favorite tool of those wishing to avoid assigning responsibility: the passive voice, as in Allen’s “mistakes were made” line. Does the DOJ even understand the word “accountability”?

  4. lysias says:

    It’s Holder’s DOJ that has given William Welch authority to supervise all the whistleblower/leaker prosecutions.

  5. Philip Munger says:

    Reposted at Progressive Alaska. Otherwise, nobody up here is going to get anything remotely as meaningful (in terms of a lot of things, including the truth).

  6. orionATL says:

    fyi –

    holder is NOT in charge of the doj, just as obama is not in charge of the presidency.

    holder tolerates and moderates and ensures the whitehouse gets what it wants.

    but as far as reforming the profoundly corrupt, power-vacuuming, muslim-entrapping, national-security-letter-abusing, prosecutorial-misconduct-tolerating doj (or fbi),

    holder is a floppy, spineless ragdoll.

  7. orionATL says:

    @Philip Munger:

    “progressive alaska” is a gift to the state.

    but it must be frustratingly difficult to try to reach poorly informed, but nonetheless self-confident, freedom lovers.

  8. Bob Schacht says:

    What this shows is that, rather than going “by the book,” the DOJ often tries to “game the system.” Lady Justice weeps.

    Bob in AZ

  9. Vulgar Boatman says:

    The stunning acquittal of seven Michigan militia members charged with conspiring to go to war against the government could make federal agents reluctant to pursue certain investigations at a time when the number of so-called patriot groups is increasing nationwide, experts said Wednesday.

    “It’s an embarrassment to the government to lose this case,” said Mark Potok, who tracks extremist groups at the Southern Poverty Law Center, a noted civil rights organization in Birmingham, Alabama. “I very much worry this could discourage officials from moving forward on the most open-and-shut cases in the future. I’m not trying to criticize the judge at all, but it might have ramifications.”

    Potok said most members of militias never will commit a crime but the “militia movement has produced an enormous level of criminal violence.” The law center counted more than 1,200 anti-government groups last year and lists them on its website. The FBI recently said it is focusing on “sovereign citizen” extremists who don’t recognize government authority.

    Chicago lawyer Lloyd Meyer, who prosecuted militia leaders in Michigan in the late 1990s, said “The feds should be more conservative after this disaster. They’re creating hate and discontent in the very community they’re trying to win over.”

  10. P J Evans says:


    “Of the approximately 160,000 pages of training material reviewed, less than one percent contained factually inaccurate or imprecise information or used stereotypes,

    That’s still 16,000 documents that were bad. Didn’t anyone review them at some point before putting them into use?

  11. jerryy says:

    @orionATL: “so what was former dept of homeland security chief michael chertoff’s role in tsa’s procuring this scanner?”

    The short answer is $. Lots and lots and lots and lots of $$$$$$$$.

    It really does look like failure as defined by these folks (and their ilk) means not having their investment portfolio ready to benefit from the inevitable ‘no one could have anticipated’ tragedies.

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