Despite an investigation this week by USA Today that showed federal prosecutors are unlikely to be fired even when investigators conclude that they committed prosecutorial misconduct, Attorney General Eric Holder said Thursday that the Office of Professional Responsibility is up to its task.
“I think OPR does a real good job,” Holder said in response to a question from TPM. “The overwhelming majority of federal prosecutors in this country handle themselves in appropriate ways.”
“You can find a few instances where mistakes have occurred and people have been disciplined, but people who represent the United States on behalf of the U.S. Department of Justice do so honorably and do so within the rules,” Holder added.
That puts Holder at odds with the founder of OPR, Michael E. Shaheen, who said before his death that the office is plagued with bureaucratic delays and should be abolished. And it puts Holder at odds with DOJ’s Inspector General, who has called for his office to be given more power to investigate prosecutorial misconduct.
OPR — described by one former federal prosecutor as a “roach motel” because “cases check in, but they don’t check out” — has also come under harsh criticism from federal judges.
Allegations of prosecutorial misconduct have derailed some major Justice Department investigations, most infamously the government’s case against the late Sen. Ted Stevens (R-AK). The OPR report still hasn’t emerged, but news reports say it finds two prosecutors as well as an FBI agent engaged in misconduct during the trial.
USA Today’s investigation found that the Justice Department “often classifies as mistakes violations that result in overturned convictions,” that even when “investigators conclude that prosecutors committed misconduct, they are unlikely to be fired” and that the results of the investigations are concealed from the public.
Calls from Democrats to reform OPR were renewed after the Justice Department’s top career lawyer overruled an OPR report that found the authors of the torture memos had committed professional misconduct, but the effort hasn’t gone anywhere.
One former DOJ Inspector General, Michael Bromwich — now working for the government to fix the Interior Department’s scandal-plagued Minerals Management Service (MMS) — agreed that the Inspector General would be more independent than OPR. “The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress,” Bromwich told me earlier this year. “In theory and in fact, the AG controls the OIG far less than he controls OPR.”
One of the most egregious instances found by USA Today in which a federal prosecutor faced few consequences for his actions was in the case of Assistant U.S. Attorney Stephen Kunz. An OPR inquiry — revealed in Florida bar records despite DOJ’s attempts to keep the conclusion secret — found that Kurz recklessly broke the rules in a case against two parents of a baby girl charged with lying about her disappearance. OPR found Kutz inflamed the grand jury and included unreliable excerpts from recordings in the indictment.
The government eventually dropped the case against the parents and paid defense lawyers nearly $1.5 million for mishandling of the case. Kurz lost his position handling criminal cases in that U.S. Attorney’s office, but quickly found a job 200 miles away in Tallahassee — as a federal prosecutor, where he’s been since 2003.