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Doing a little light reading of the quarterly report from the Justice Department Office of Inspector General (OIG) last week, I came across an interesting pattern: the DOJ may be the safest place in America to break the law. Because if you work there, your prosecution is most likely to be declined.
One of the odd byproducts of being a former House Oversight Committee chairman is a strange fascination with the independent investigations of misconduct within the federal government. You can learn a lot about the stories our media is choosing not to tell from these routine reports.
These quarterly snapshots offer a glimpse into how the Justice Department polices itself.
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This is the entity charged with enforcing the law against you and me. They choose whether to charge people with crimes or to look the other way. And as I read through the list of investigations against DOJ personnel from the last quarter, I developed a deep concern that Lady Justice often seems to be afraid to prosecute anyone inside the DOJ.
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The list of investigations found on pages 4-5 of the report identified serious misconduct – unwanted sexual contact, serious undisclosed conflicts of interest, inappropriate touching of an intern's breast, and the familiar "lack of candor" (aka lying by a federal employee) to the OIG. These cases all had one thing in common: all were recommended for criminal charges, and all resulted in a "decline to prosecute" response. That's just the most recent quarter.
In one case, an assistant U.S. attorney (AUSA) was investigated for allegations of verbally and sexually harassing an intern. The investigation found that the AUSA had also made sexually suggestive comments to three other individuals, including another AUSA, an FBI forensic analyst and a USPIS postal inspector. What was the result?
"The investigation was presented for federal prosecution on July 1, 2019 and declined on Feb. 10, 2020, and was presented for state prosecution on Aug. 24, 2020, and declined that same day. "
I am reminded of the results of the FISA abuse investigation: more than a dozen recommendations for action with only one resulting in a plea deal. None fully prosecuted.
Why doesn't Chairman Jerry Nadler, D-N.Y., do a hearing on misconduct within the DOJ?
In some cases, when the investigation turns up criminal misconduct, a DOJ employee can simply leave federal employment to escape accountability for impropriety.
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What's going on at the DOJ? How can we trust this entity to fairly apply the law when they can't even apply it objectively within the walls of their own buildings? More importantly, why don't the stories of misconduct at DOJ, especially the FBI, ever seem to see the light of day?
According to the report, "At the close of the reporting period, the OIG had 90 open criminal or administrative investigations of alleged misconduct related to FBI employees."
This is what House and Senate Judiciary Committees should be looking at. Why doesn't Chairman Jerry Nadler, D-N.Y., do a hearing on misconduct within the DOJ? When Republicans held the House majority – and certainly during my chairmanship – we routinely called upon DOJ leaders to answer for misconduct within their agency. That's just not happening anymore.
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And who even knows what will happen with John Durham's investigation of the Russia collusion hoax. Even if he finds ironclad evidence, will it ever be prosecuted? Will it even be reported?
It's becoming more and more clear that the DOJ is losing the trust of the American people, in part because of its unwillingness to hold itself accountable and fully prosecute those we have entrusted with special policing powers.