The Department of Justice has come under fire for aggressively investigating whistleblowers, journalists, and internet activists like Aaron Swartz, but a government watchdog said the agency lacks concern about actual malfeasance committed by its own.
The Government Accountability Office said in a report released Thursday that the department’s Office of Professional Responsibility (OPR), which collects, investigates, and punishes its misbehaving lawyers, lacks transparency and doesn’t “ensure that attorneys found to have engaged in misconduct serve the discipline imposed upon them.”
The oversight agency discovered that “some attorneys found to have engaged in misconduct receive performance awards” and that punishment is applied inconsistently.
In one case, a department attorney was found to have not served disciplinary action until two years after it was ordered, and the punishment was only meted out after the GAO discovered the oversight error.
Attorneys ordered punished by OPR were, however, rewarded for activity not related to the bad behavior, proving that the logical extension of performance evaluation isn’t problematic when it makes the Justice Department look good. Department personnel that should have been punished after OPR rulings but weren’t later received time-off and cash rewards totaling $2,000.
Despite its important responsibilities, the GAO paper portrayed OPR as an office with a history of struggles. During the 1990’s, it came under fire from Congress for taking as many as two years or longer to finish an investigation. As a result of subsequent reforms, the average OPR investigation now takes roughly one year.
But it has also been subject to repeated calls for more transparency, the report documented. The American Bar Association and the National Association of US Assistant Attorneys have both called for OPR to release information on completed probes of department attorneys.
At a House judicial oversight hearing in April, Rep. Cedric Richmond (D-La.), asked Attorney General Eric Holder why details about closed investigations of “prosecutorial misconduct” aren’t revealed to the public. The Attorney General said that the Privacy Act restricts a lot of what it can be open about, but noted that OPR does produce an annual report that reveals in broad strokes the office’s investigatory activities.
According to its most recent report from 2013, OPR investigated 85 allegations of misconduct. FBI whistleblower retaliation complaints, abuse of prosecutorial discretion, and failure to comply with DOJ guidelines were the most prevalent areas of investigation.
But what are missing from OPR reports are reasons why it rejects so many complaints against DOJ attorneys. Of the 819 complaints the office received in 2013, it disregarded 85% of them. OPR claims the majority of dismissals were a result of it not having proper jurisdiction over the cases, but GAO notes that those justifications are not easily verifiable. Although the OPR Deputy Council keeps records of every complaint and how the office evaluated it, that information is not made public in any of the annual reviews.
As a result of its investigation, the GAO recommended that the Justice Department establish new procedures to ensure that discipline for misconduct is implemented. But while the DOJ accepted that suggestion, the department has resisted attempts to empower its inspector general to investigate claims made against federal prosecutors. At the aforementioned House judiciary oversight hearing, Holder said OPR has a “unique expertise” in and a “long distinguished history” of handling these matters.
“There are specific matters that I think only an OPR can handle,” he said.
A separate GAO report, however, concluded that the DOJ inspector general is not any less capable of reviewing misconduct than OPR. It was published in 1994.
Read the full report here.
