[Editor’s note: This story originally was published by Real Clear Investigations.]
By Eric Felten
Real Clear Investigations
It wasn’t the first time the FBI attorney had been in the Marine Corps Base Quantico Exchange. Nor was that day in February 2018 the first time she had secreted cosmetics in her purse. But it was the first time she was caught – with $257.99 worth of shoplifted beauty products in her bag. She admitted to the crime – and to stealing from other area stores. And yet she was not prosecuted.
Not that it was a surprise. The Justice Department regularly declines to prosecute high-ranking current and former department officials, even when its Office of Inspector General provides the grounds for it.
The Department of Justice OIG does not keep complete public records on the number of prosecutions that result from its investigations. But the office does keep track of certain cases – those involving wrongdoing by senior DoJ managers and officials that Justice declines to prosecute.
In 2019 the Justice Department’s Inspector General’s office issued 27 such reports of alleged wrongdoing by senior Justice Department officials and employees that went unprosecuted – everything from nepotism in hiring, to making false claims on mortgage documents, to “lack of candor” with federal investigators, to sexual assault. RealClearInvestigations reviewed the OIG’s summaries of its investigations and found that in at least a dozen of those cases the inspector general determined that the wrongdoing was serious enough to be criminal. Even so, the Department of Justice declined to bring criminal charges. The sticky-fingered FBI attorney was one of the more strictly treated – she had to agree to 125 hours of community service to avoid prosecution.
The OIG also makes public the outcomes of “cases involving high profile investigations” such as those into former FBI Director James Comey and former Deputy Director Andrew McCabe.
“By not safeguarding sensitive information obtained during the course of his FBI employment,” the OIG found, “Comey set a dangerous example.” The Inspector General’s office provided its “findings to the Department for a prosecutorial decision.” But, “After reviewing the matter, the Department declined prosecution.”
As for McCabe, the OIG found he repeatedly lacked candor while being questioned under oath. Justice chose not to bring charges against him either.
It’s much harder to find cases of senior officials who are found by the OIG to have committed wrongdoing and are subsequently prosecuted. An example is Barbara Zoccola, who was an Assistant U.S. Attorney in Memphis until the OIG caught her falsifying her time and attendance records.
But there are reasons to believe such prosecutions are rare. For example, the U.S. Attorney for the District of Columbia – who would have jurisdiction over misconduct committed in Washington – puts out press releases announcing indictments and convictions. In 2019 there were press releases regarding any number of murders, robberies, and molestations – the all too common crimes of any big city. But Washington being the seat of government, there were announcements of indictments and convictions of government employees, including cases of bribery at the Department of Housing and Urban Development and at Veterans Affairs, as well as espionage at the departments of State and Defense. But none of the 2019 releases involved wrongdoing by senior DOJ officials.
Another advantage DOJ officials apparently enjoy is that those alleged to have committed wrongdoing – even criminal wrongdoing – are rarely named publicly.
This leniency is drawing new scrutiny in the wake of Special Counsel Robert Mueller’s investigation of Russian collusion, which repeatedly used the full force of the law to convict associates of President Trump of process crimes, especially the crime of making false statements to government investigators.
Many of the 27 cases of senior official wrongdoing reported by the Justice OIG last year were resolved by the resignation of the misbehaving employee. “Federal employees facing potential disciplinary action do often resign instead,” says Sean Bigley, who practices government employment and security clearance law. “So the fact is that a lot of senior officials found culpable of misconduct escape accountability.”
Government employees have job protections that few in the private sector enjoy. Officials who have gotten themselves in trouble “can frequently negotiate their exit in lieu of punishment,” Bigley says. “These types of arrangements are, indeed, undertaken with an eye toward avoiding the time and hassle of litigation.”
But even when an official is already long gone from federal service, the DOJ instinct is to treat its own with a generosity that has not been on display in the cases involving associates of Donald Trump.
A former deputy assistant attorney general was not happy that his brother was sharing a hospital room with another patient. A January 2019 OIG report states that he called the hospital claiming he was “the No. 4 person with the Department of Justice.” Leveraging that falsehood, the former Justice official demanded his brother be moved to a private room. The hospital complied.
When questioned by agents of the Department of Justice Inspector General, the former high-ranking attorney readily admitted he had committed “an ethical violation.” He “also agreed that his conduct amounted to the impersonation of a government official.”
In fact, using one’s government position to secure special treatment is by itself serious ethical misconduct. But doing so when one isn’t even in government compounds the offense by impersonating a federal official. A person who had been a top-ranking official at the Department of Justice would know what he was doing was wrong. Such a serious charge might seem excessive to press against a concerned brother, but perhaps not in an era in which misstatements to FBI agents are treated as serious crimes – think former Trump associates George Papadopoulos and Gen. Michael Flynn. As for the concerned brother, ultimately, the OIG reported that the U.S. Attorney’s Office and the DOJ “both declined a criminal prosecution of this matter.”
This resolution underscores both the power prosecutors have to decide how and when to apply the law, and the leniency they often apply to their colleagues.
Another expression of the leniency was that the former deputy assistant attorney general was never named. Throughout the report of the OIG, obtained by RealClearInvestigations through a Freedom of Information Act request, his name is blacked out. Any information that might make identification possible is similarly redacted. In other words, he is still being protected.
Asked why the subjects of such inquiries are allowed to remain anonymous, Stephanie M. Logan, a spokesperson for the DOJ’s Office of Inspector General, told RCI, “We make a determination in each individual case by reference to applicable privacy and public disclosure laws, what information we can release.”
Yet even when officials plead guilty to crimes, the inspector general is inclined to spare them the notoriety that comes with being named. This month the OIG reported on its investigation into an assistant U.S. attorney who was arrested for driving drunk. The inspector general found that the official threatened the police who pulled him or her over and invoked his office in a belligerent bid to avoid arrest. “The AUSA resigned during the OIG investigation,” said the inspector general, “and pleaded guilty to the DUI offense.” By contrast, the DOJ doesn’t hesitate to name the accused when it announces indictments, let alone convictions, of those not in the Justice hierarchy.
A deputy assistant director (DAD) of the FBI went unnamed when the inspector general found that, among other offenses, the official had “disclosed to the media the existence of information that had been filed under seal in federal court.” Though this was a violation of 18 US Code, Section 401, the federal law governing criminal contempt of court, the OIG noted that “Prosecution of the DAD was declined.”
The Department of Justice inspector general reported in September that a Bureau of Prisons assistant director “engaged in a sexual and personal financial relationship with a Bureau of Prisons Union executive.” This included sending sexually explicit photos on her government cell phone. The OIG found this resulted “in a conflict of interest, in violation of federal regulation and BOP policy.” Beyond that, investigators found that in their in their interviews, the BOP assistant director “lacked candor…in violation of federal law.” When it came to the Mueller probe, dishonesty in an interview was met with the full force of the law. However, not only did Justice decline to prosecute the prison official, the inspector general declined even to name her. (USA Today identified her as Judith Garrett). Contacted by RealClearInvestigations, Garrett said, “There is a lot the IG got wrong.” Beyond that she said, “Sorry, I have nothing to share with you.” Garrett resigned from the Bureau of Prisons and is now a real estate agent.
Criminal prosecution was also declined in the case of an unnamed assistant U.S. attorney who, according to an October, 2019 inspector general’s report of the investigation, “improperly disclosed [DC] Superior Court grand jury materials to an unauthorized individual.”
Another high-ranking Justice Department official went unnamed and unprosecuted even when he admitted misleading investigators about viewing pornography at work, according to the inspector general. The offense of misleading investigators has been enforced unsparingly against individuals not employed in senior positions within the Justice Department. Initially, the man – identified by the National Law Journal as Donald Kempf, Jr. — “insisted that he never viewed or accessed any pornographic material or websites on his government computers,” according to the OIG report, obtained by RealClearInvestivations through a Freedom of Information Act request.
The OIG’s digital forensics team, however, found “sexually explicit material” on his DOJ computer along with “numerous” visits to pornographic websites and search engines such as “xvideos.com.” When confronted with the computer evidence, the OIG reports Kempf apologized to investigators and said, “I didn’t mean to mislead you.”
The inspector general concluded he “made false statements during his initial interview…in violation of Title 18 U.S.C. Section 1001.” That is the same false statements law Gen. Michael Flynn pleaded guilty to violating. Flynn was pursued until he pleaded guilty, while Donald Kempf was allowed simply to resign. The Justice Department “declined criminal prosecution in this matter.” The most serious action taken based on the OIG investigation was that the DOJ’s Office of Professional Responsibility asked the department’s Professional Misconduct Review Unit to report Kempf to the state bars where he is admitted.
OIG investigations are not – nor should they be – the final word. For example, if an IG finds one party more believable in a he-said, she-said situation, the IG may or may not be right in that judgment. There’s a difference between establishing facts about what someone did or didn’t do and making determinations about what that person’s motives or intentions were. The law comes with a presumption of innocence for a reason.
Donald Kempf points out that at the end of January, Justice’s Professional Misconduct Review Unit rejected the Office of Professional Responsibility’s request that he be reported to bar associations. “The OIG’s finding that you made false statements under oath is erroneous,” the Review Unit told Kempf.
The case might not have ended that way if Kempf had faced a prosecutor eager to make the most of the inspector general’s findings rather than an internal review board willing to question the OIG’s conclusions.
Experts say that sort of case reflects a fundamental inconsistency in how false-statement laws are enforced. Harvey Silverglate, a civil liberties litigator and author whose books include “Three Felonies a Day” and, most recently “Conviction Machine” (written with Michael Flynn attorney Sidney Powell), told RCI, “Because of the vague nature of so many federal criminal statutes, it is very easy for the prosecutors to indict some for making ‘false statements’ to a federal official, while refusing to indict others who simply ‘lack candor’ or perhaps made an inadvertent misstep.” Silverglate says, “The combination of vague statutes and politically oriented investigations makes for a very uneven enforcement of federal criminal law.”
The DOJ’s discretionary leniency to its own is highlighted by the case of a senior official in the Office of Justice Programs who was, among other things, accused of coercing female co-workers to have sex with him if they wanted any chance at promotion.
That wasn’t all that was discovered by investigators about how female employees were treated by Edison Aponte. (As usual, the OIG did not release the official’s name, but his identity was revealed by BuzzFeed.) A woman working in the Office of Justice Programs told investigators that Aponte followed her home one night after an office outing to a basketball game. He came into her house on the pretense of using the bathroom, and then asked for a tour. According to the OIG’s October 2018 Report of Investigation, obtained by RealClearInvestigations, once in the bedroom, Aponte “started touching her.” She told him to “knock it off.” Instead, “he became forceful,” the woman said, “and sexually assaulted her by having sexual intercourse with her.”
At first, Aponte denied to the OIG that he followed the woman home or that he assaulted her. Confronted with evidence to the contrary, Aponte “recanted his denial.” He “admitted further that he had inappropriate relationships with subordinates.”
Finding the women “to be credible witnesses,” whose testimony “was detailed and specific” and consistent with one another, the OIG concluded Aponte “engaged in the misconduct as alleged,” including sexual harassment, sexual assault, and lacking “candor in his statements to the OIG.”
Still, for all that, “The U.S. Attorney’s Office,” according to the OIG, “declined criminal prosecution.”
Aponte has denied the accusations. Contacted by RealClearInvestigations, Aponte said, “I have no comment.” Had he been charged, he would have had a forum in which to defend his reputation. Instead, he retired, leaving the charges unchallenged. He is now a soccer coach at St. Paul VI Catholic High School in Northern Virginia.
DOJ spokesperson Wyn Hornbuckle insists department officials get no special treatment. “The Department of Justice expects all employees to hold themselves to the highest standards of ethical and professional conduct,” he tells RealClearInvestigations. “The department takes allegations of employee misconduct seriously, including claims that employees lacked candor when dealing with investigators, and has a zero-tolerance approach to sexual harassment in the workplace.” Allegations of misconduct are met with “appropriate action” he says, including “criminal prosecution, if warranted.”
Not necessarily so, says Sidney Powell, Michael Flynn’s attorney. Accusations that would be aggressively investigated and prosecuted if alleged against a DOJ target are treated differently when alleged of DOJ or FBI officials, she says. “They are given passes.”
[Editor’s note: This story originally was published by Real Clear Investigations.]