We should give serious thought to reforming the rules governing independent counsels.
In a world where government does so much, there is all the more need for transparency and public oversight. Here, of course, would be the place to insert a joke about the most transparent administration in history, but to be honest these problems are not restricted to one party.
A recent report issued by the Project on Government Oversight, based on records acquired from the government, indicates that Justice Department prosecutors have engaged in a large number of serious infractions:
An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work. The violations include instances in which attorneys who have a duty to uphold justice have, according to the internal affairs office, misled courts, withheld evidence that could have helped defendants, abused prosecutorial and investigative power, and violated constitutional rights. From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions, according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports. In the majority of the matters—more than 400—OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.
While this information is helpful, it would be even more valuable if the particular prosecutors who engaged in the wrongdoing and the cases involved were identified. Yet, the Justice Department refuses to do so. This is yet another example of government protecting its own employees from proper scrutiny.
In 1993, Deptury Attorney General Philip Heymann announced a policy of broader disclosure.
Subsequently, OPR released detailed accounts of investigations naming the offenders in some cases where misconduct was found. Those accounts, which OPR described as summarized reports, were more elaborate than the brief summaries in the annual reports.
This was a step in the right direction. But alas the Justice Department under George W. Bush “abandoned the policy Heymann had articulated in 1993”:
In a 2008 story about a “growing shroud of secrecy” at OPR, the Los Angeles Times reported that the Justice Department had reversed the Clinton-era policy. It didn’t say when that happened, but it reported that Associate Deputy Attorney General David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. According to the newspaper, Margolis said the decision reflected a lack of resources and concern about balancing public interests with the privacy rights of individual attorneys facing accusations.
How compelling! The Justice Department was merely saving public resources and protecting privacy. That government attorneys who have engaged in misconduct that affects the interests of specific individuals should have privacy interests is hard to justify.
As with so many other things, the Bush Administration paved the way for the Obama Administration.
It is time for these policies to be reversed. And for the Congress to take action. One reform would be to authorize the Justice Department’s inspector general to investigate attorney misconduct, a power it currently lacks. Legislation supported by Senators from both parties has been introduced to authorize such investigations.