Professional Courtesy has Run Amok at the Department of Justice

The level of corruption in the Department of Justice is astounding.  Bureaucrats receive little or no punishment for serious infractions, as illegal activity is frequently overlooked as a result of what is called professional courtesy.  For instance, a police officer might not ticket a fellow officer for exceeding the speed limit.  This is almost excusable; we often excuse behavior by a family member that we would not tolerate in a stranger.  But when a life-threatening situation is excused it is no longer a matter of courtesy. Allowing a highly intoxicated driver to proceed with only a warning does no favor for the driver or his potential victims.

It appears that the U.S. Department of Justice (DOJ) is metaphorically allowing our judicial highways to be flooded with drunken drivers. 

Judge Emmet Sullivan, the highly respected judge in the Michael Flynn case, is capable of outrage.  He told General Flynn, "Arguably, you sold your country out," and “I’m not hiding my disgust, my disdain for this criminal offense.”  Sullivan questioned prosecutors, "Could he have been charged with treason?”  Clearly it does not appear that Sullivan plans to go easy on Flynn. 

Sullivan is much more forgiving of his colleagues in the legal profession.  For the record, he has made many denunciations and threats in response to gross misconduct by prosecutors.  However, consequences have been minimal.  Sullivan has had a great deal of exposure to prosecutorial misconduct.  He presided over the trial of Senator Ted Stevens.  The prosecution's criminal activity in this case was so blatant that the conviction was thrown out.  Unfortunately, Stevens lost his Senate seat giving the Democrats a 60-seat filibuster proof majority as Brack Obama first took office as president.

Much of the evidence leading to Stevens's conviction was gathered by FBI lead agent Mary Beth Kepner.  Kepner was described by her supervisor as a "top-notch, creative investigator, dogged and determined and so creative in developing cooperating witnesses, cooperating subjects."  Investigators found that while she may have been very creative, she was not "top-notch."

FD-302s are official records based on notes taken during FBI interviews.  They must be composed within five days of the interview.  Judge Sullivan ordered the Feds to turn over all of the FBI's 302s to the defense. Kepner had not documented all of her interviews, so she made them up following the judge's order, backdating two of the 302s by more than two years.  Kepner denied under oath that she had done this.  Her excuse was, "You know, unfortunately, you know, I was disorganized with this, you know, I was overwhelmed and, you know, I lost materials that had, you know, I lost notes, I lost 302s."   Attention was brought to Kepner's behavior by her partner, "whistleblower" Chad Joy.  While Joy was taken off criminal cases, in effect ending his career, Kepner was allowed to remain with the FBI.

The DOJ's prosecution team "was part of an elite group of prosecutors in the Public Integrity (PIN) Section, with experience pursuing high-profile and complex cases."  The team included Brenda K. Morris, principal deputy chief of the PIN Section, William M. Welch II, James A. Goeke, Edward P. Sullivan, Joseph W. Bottini, and Nicholas A. Marsh.  This team was repeatedly chastised by Judge Sullivan for withholding exculpatory information. "As any law student knows, prosecutors must disclose any potentially exculpatory evidence to the defendant in a case." The prosecutors not only withheld information they also submitted false information.  Judge Sullivan complained, “It’s very troubling that the government would utilize records that the government knows were false.”

Judge Sullivan was losing patience with the prosecutors.  He insisted they release the documents.  He stated, “That was a court order. That wasn’t a request,” and “I didn’t ask for them out of the kindness of your hearts….  Isn’t the Department of Justice taking court orders seriously these days?”  He then held Morris, Welch, and Patricia Stemler, chief of the Criminal Division’s Appellate Section, in contempt of court.  Sullivan appointed a special prosecutor, Henry F. Schuelke III, to investigate the case.  Schuelke III, did not recommend criminal charges against any of the federal prosecutors, despite finding widespread misconduct, some of it intentional.  Sullivan said he would not hold them criminally responsible for their "ill-gotten verdict."

18 U.S. Code § 1519. deals with the destruction, alteration, or falsification of records in Federal investigations and bankruptcy.  The penalty for knowingly falsifying documents includes imprisonment for up to 20 years.  The team appears to have gotten off lightly. Joseph W. Bottini was suspended without pay for 40 days.  James A. Goeke was suspended without pay for 15 days.  Nicholas A. Marsh escaped punishment by committing suicide. William M. Welch II and Brenda K. Morris were both exonerated.  This was Morris's second escape from a misconduct charge.  In 2007 the government paid a $1.34 million misconduct settlement in a case she was involved in.

Now, Judge Sullivan has been dealing with a new set of prosecutors.  He is confronting many of the same old problems.  The case against General Flynn involves an interview he had with the FBI dealing with his meetings with the Russian Ambassador Sergey Kislyak.  Contrary to protocol James Comey had sent two FBI agents to interview Flynn without notifying the White House.  The interview has been described as a "perjury trap."  Flynn was advised by FBI officials that he did not need to have White House counsel present.  He was also not given his Miranda rights.  The Mueller’s team stated “He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth.”  Notes about the meeting asked, "What is our goal?"  "Truth/Admission or to get him to lie, so we can prosecute him or get him fired?"  Flynn's attorney Sydney Powell wrote. "The object of the interview was to secure, rather than prevent, a 1001 [false statements] violation."  It is understandable why the DOJ was reluctant to release documents to the court and defense.  Judge Sullivan received documents more than two years after he had ordered them.  302s were lost or destroyed and documents were altered by Peter Strzok and Lisa Page.  These documents do not show the investigation of a crime. They show prosecutors trying to create a crime.

Joseph E. diGenova, former U.S. Attorney for the District of Columbia claims, “the people at [the Justice Department] have come to believe that they are immune, that nobody can touch them, and that judges will ignore their prosecutorial misconduct.”  If the officials involved only receive a few days suspension without pay Joseph E. diGenova is correct.  When corruption becomes the norm, it is no longer seen as corruption.

John Dietrich is a freelance writer and the author of The Morgenthau Plan: Soviet Influence on American Postwar Policy (Algora Publishing).  He has a Master of Arts Degree in International Relations from St. Mary’s University.  He is retired from the Defense Intelligence Agency and the Department of Homeland Security.  He is featured on the BBC's program  "Things We Forgot to Remember:" Morgenthau Plan and post-war Germany.

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