The Justice Department’s Hurricane-Strength Misconduct
Along with former Department of Justice lawyer and PJ Media Legal Editor J. Christian Adams, I have written a lot over the past several years about the misbehavior, unprofessionalism, and unethical conduct of lawyers at the Civil Rights Division of the Department of Justice. We have also written of the bias and incompetence of the lawyers in DOJ’s Office of Professional Responsibility, which is supposed to investigate misconduct by Justice lawyers. But now there’s a new author writing about the “skullduggery” and “perfidy” of DOJ lawyers. Those are the words of Louisiana federal district court Judge Kurt D. Engelhardt. They appear in his 50-page order issued Nov. 26, 2012, in U.S. v. Bowen. (Christian Adams noted this order at PJ Media on November 28.)
Bowen involved the Obama administration’s prosecution of former New Orleans police officers for shooting suspected looters on New Orleans’ Danziger Bridge. The shooting occurred on September 4, 2005 in the aftermath of Hurricane Katrina. The case was handled by the Criminal Section of the Civil Rights Division of the Justice Department, as well as the U.S. Attorney’s Office for the Eastern District of Louisiana. In August 2011, five of the six defendants were found guilty on numerous criminal counts, including making false statements to authorities to cover up what happened.
The defendants then filed a motion with Judge Engelhardt for new trials, claiming that the government attorneys had “engaged in a secret public relations campaign … [to ensure] that public opinion would be inflamed against the defendants, and that the government’s version of the facts would be well known before anyone set foot in a courtroom.” This was done through leaks to the media about “the activities of the federal grand jury, the identities of targets, the status of plea negotiations, and other sensitive confidential information that became widely known publicly before trial.”
Some of these leaks, particularly those of grand jury proceedings and sealed proceedings, violated the Federal Rules of Criminal Procedure.
There were also anonymous postings on Nola.com, the website run by the New Orleans Times Picayune, “both before and during the trial.” These postings “mocked the defense, attacked the defendants and their attorneys, were approbatory of the United States Department of Justice, declared the defendants obviously guilty, and discussed the jury’s deliberations.”
It turns out that many of the anonymous blog postings were made by two DOJ lawyers, although we don’t know yet how many others may have been involved.
The first was Assistant United States Attorney Salvador Perricone, a high-ranking supervisory attorney in the Louisiana U.S. Attorney’s Office. Even worse, anonymous postings were also made about the case by the First Assistant United States Attorney Jan Mann, the chief assistant to United States Attorney in Louisiana Jim Letten. At an initial hearing called by the judge about the leak allegations, Mann sat in the courtroom and remained silent as her boss, Jim Letten, stood up and told Judge Engelhardt that neither he nor Jan Mann had any knowledge or involvement in these leaks and the anonymous blog postings.
The judge ordered the Justice Department to investigate the matter “to discern the source of the leaks” and Perricone’s contacts with other government employees and to file a report with the judge. That report was “supervised, compiled, written and submitted” by Jan Mann, the anonymous blogger, who claimed in the report that no one “associated with the government” was the source of leaks. She failed to reveal her involvement or her knowledge of Perricone’s activities.
When Perricone was examined under oath over his anonymous postings by the judge at a hearing, Mann was actually there representing the government. She not only failed again to reveal her knowledge of and participation in the blogging, but she “objected on the record to certain questions asked of Perricone.”
Former Assistant U.S. Attorney Mike Magner testified that Mann’s husband, who is also an assistant U.S. attorney in the same office, was anonymous blogger Perricone’s “best friend.” They spent a great deal of time together and Magner found it “very difficult” to believe that Mann would not know about Perricone’s anonymous blogging. Mann was only discovered as being one of the other anonymous bloggers after another lawsuit was filed against her in federal court in November identifying her.
Judge Engelhardt essentially called both AUSAs liars, saying that “no one, especially this Court, could reasonably find it credible that Perricone and former First AUSA Mann, while posting under the same nola.com articles, and responding to and echoing each other’s posts, were unaware of the identity of the other.”
In further proceedings before the judge, the U.S. attorney tried to shift responsibility for DOJ’s internal investigation to the Office of Professional Responsibility (OPR) at DOJ. Letten issued a press release saying that because the matter was under review by OPR, he would not release any further information about his lawyers’ misbehavior.
So what was the response of OPR to this unethical, unlawful, and potentially perjurious behavior by DOJ employees, which Judge Engelhardt says “might also constitute prosecutable criminal conduct?”
Placing the investigation in the hands of OPR “seems useless,” Judge Engelhardt noted in his opinion:
First of all, having the DOJ investigate itself will likely only yield a delayed yet unconvincing result in which no confidence can rest. If no wrongdoing is uncovered, it will come as a surprise to no one given the conflict of interest existing between the investigator and the investigated. Moreover, the Perricone matter has been under investigation for eight months (since March), and yet it comes as a complete surprise to everyone at DOJ and the U.S. Attorney’s Office that another “poster” exists, especially one maintaining as high a position in the U.S. Attorney’s Office. It is difficult to imagine how this could possibly have been missed by OPR, and surely raises concerns about the capabilities and adequacy of DOJ’s investigatory techniques as exercised through OPR.
Judge Engelhardt pointed out the incongruity of this entire situation. Posting anonymous online comments “might be unprofessional and unethical, but not criminal.” But activities of DOJ employees the court was looking at also included “apparent false testimony/statements (by commission or omission), suborning false testimony, and making false statement to a federal judge. … Ironically, the defendants in this case have been accused and convicted of counts involving conduct designed to ‘cover up’ or obscure material facts.” Yet the DOJ lawyers involved seem to have engaged in the same behavior.
The lead prosecutor in the case, Barbara Bernstein, the deputy chief of the Civil Rights Division’s Criminal Section, told the judge that she knew nothing about the anonymous blogging or the leaks. Yet she tried to minimize the unprofessional and potentially criminal conduct of her colleagues by asserting to the judge “that the conduct at issue had no effect on the validity of our verdict in the Danziger case” and Jan Mann’s anonymous postings were “irrelevant.”
Perricone resigned as an Assistant United States Attorney in March of 2012. U.S. Attorney Letten announced that Mann had been relieved of her posts as first assistant U.S. attorney and chief of the Criminal Division. But Mann remains an employee of DOJ despite her misconduct, which included sitting “through the sworn testimony of Perricone knowing full well the infirmities of his assertions and untruths which he told” and submitting a report to the court that was “tendentious, unreliable and unacceptable.” As Engelhardt said, the “very appearance of any attorney, acting on behalf of the United States of America, participating in such conduct should be dealt with promptly and harshly. The integrity of our criminal justice system requires as much.” Apparently, U.S. Attorney Jim Letten does not agree, since he has not fired Mann or her husband who apparently also knew about the anonymous postings but failed to inform Letten or the court.
The judge’s condemnation of the Justice Department in the final pages of the court order is devastating. As the judge says, a “cavalier attitude toward the truth cannot be indulged at any juncture or level.” In addition to the leaks and anonymous blog posts, the judge outlines other extremely questionable tactics employed by Bernstein, her prosecution team, and FBI agents. This included “shockingly coercive tactics” employed against witnesses, such as three defense witnesses who refused to appear at trial after DOJ threatened to prosecute them for perjury as a result of earlier grand jury testimony. Yet as the court pointed out, none of the witnesses was ever charged with any crime.
This case is not over. Judge Engelhardt ordered DOJ to do a real investigation of the grand jury leaks and other problems that occurred in this case. And he stated that he was forwarding a copy of his order to the Louisiana Bar Association for disciplinary proceedings against Perricone and Mann. He refused to rule on the defendants’ requests for new trials, but only because of the “inadequacies” of DOJ’s superficial investigation of wrongdoing in the case. As he said, “prosecutorial misconduct in this case is a very near and present thing” but he did not yet have enough information to come to a final conclusion. Judge Engelhardt said that he intended to “follow the advice of Washington himself: ‘There is but one straight course, and that is to seek truth and pursue it steadily.’”
Let’s hope the inspector general at DOJ also takes the straight course and steadily seeks the truth of what happened internally at DOJ in this shameful and shocking case.