Fordham Law


Judge: Justice Department can keep secret names of lawyers warned over leaks

Bruce Green in Politico, January 20, 2011

Media Source

The Justice Department’s war on leaks apparently does not extend to disclosing the names of lawyers from the department’s own ranks who received formal warnings for leaking classified information to the media.

Last week, a federal judge ruled that the department complied with the Freedom of Information Act when it refused to disclose the identities of two lawyers who were the focus of a leak probe that triggered high-level disagreement at the Justice Department in the late 1990s. (Full disclosure: the original request for information on leak probes and the ensuing lawsuit to enforce the request were brought by this reporter in 2006.)

In a Jan. 11 opinion, U.S. District Court Judge Maxine Chesney upheld the Justice Department’s refusal to disclose the names of two officials found by an internal investigation to have intentionally disclosed classified information to the media in 1996.

DOJ’s internal watchdog for lawyers, the Office of Professional Responsibility, found that the two lawyers — an assistant director in charge at the FBI and an assistant United States attorney — committed “intentional professional misconduct” by leaking information to the press. One Justice Department document called part of the breach “very serious” and suggested that the two lawyers “deliberately” disclosed the information to the press to “correct what they saw as … misconceptions.”

After conducting more than 30 interviews, OPR found the allegations to be “substantiated.” However, more senior Justice Department officials nixed any serious discipline, documents show. In 1998, Assistant Attorney General for Administration Stephen Colgate “disagreed with OPR’s finding of intentional professional misconduct” and “decided to impose no disciplinary sanctions.” Instead, the two lawyers were issued letters of caution.

The identities of the two lawyers became the final lingering issue in a four-year-plus court battle over Freedom of Information Act requests about government investigations into leaks of classified information and why so many of them go nowhere. FBI records disclosed earlier in the FOIA process showed that at least some of the investigations were closed because of what the FBI regarded as a protracted lack of cooperation at the “victim agency,” which appeared to be the CIA.

Redacted documents released by the Justice Department described one of the alleged leakers in the 1996 case simply as an “assistant United States attorney” — which is the title of most front-line prosecutors. However, last October, the Justice Department revealed that the AUSA “was detailed to serve as the acting head of a DOJ component” at the time of the leak probe.

Disagreements about the case within the Justice Department have persisted even recently. Late last year, officials in the Office of Professional Responsibility “preliminarily determined” that the names should be disclosed, court filings show. However, officials at the Office of Information Policy reversed that decision, the records indicate.

“Because the Department overruled OPR’s findings and declined to impose significant discipline, the subject employees have a substantial privacy interest in not being associated with serious allegations that were not ultimately adopted by agency officials. In contrast, the public has a minimal interest in learning the identities of employees who were not ultimately considered by DOJ to have committed serious professional misconduct,” OPR Attorney Margaret McCarty wrote in a declaration filed last October. “To reveal the identity of those employees would unnecessarily invade their personal privacy and possibly injure their professional reputations in a matter in which OPR’s findings of intentional professional misconduct were overruled by Department officials.”

The Justice Department also argued, and Chesney agreed, that releasing the name of the FBI official involved would identify the prosecutor involved and that, therefore, neither name should be released.
“The public’s interest must also be balanced against the AUSA’s privacy interest,” Chesney wrote. “In light of the lack of serious wrongdoing by the FBI official, the Court finds the AUSA’s privacy interest continues to outweigh the public’s interest, such that disclosure of the FBI official’s identity ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy’ with respect to the AUSA.”

The Justice Department has faced continuing criticism for a lack of transparency in how it handles attorney discipline through the Office of Professional Responsibility. Last August, the American Bar Association’s House of Delegates passed a resolution, calling on DOJ to make public more information about attorney misconduct investigations.

Many experts expected the Obama administration to usher in more openness in the area, but some say that has not happened.

“I had hoped that after President Obama's call at the outset of his administration for greater transparency in the workings of the executive branch, DOJ would readopt the practice under the Clinton administration, or that the recent ABA resolution calling for greater transparency of OPR's work product would spur some such change,” said Bruce Green at Fordham University Law School. “To be sure, DOJ has legitimate confidentiality interests and individual lawyers have legitimate privacy interests. But courts often defer to DOJ to clean its own house, and there is a significant public interest in knowing what kind of job DOJ is doing. At present, the balance tips too far in the direction of confidentiality and privacy."
Asked how discipline disclosure policies have changed since Obama came into office, Green said: “No significant change.”

Keeping in mind that I’ve been a participant in this battle, I’d offer a couple of concerns about Chesney’s ruling.

First, the “hug-an-underling” strategy. The ruling suggests that those who may have committed misconduct can escape public accountability in some instances just by involving a lower-level employee in his or her misdeeds. This seems bizarre.

Second, undue deference to DOJ’s subjective findings. One of the purposes of FOIA is to allow the public and the press to act as watchdogs over the decisions of top government officials. But the judge’s ruling assumes that the final finding of Colgate and Margolis (who also nixed discipline in the John Yoo case) was correct and that the conclusions of the head of the Office of Professional Responsibility were wrong. There is a strong argument to be made for protecting the privacy of individuals in cases where there is no serious evidence of misconduct, but in cases where the facts lead an entire component of the agency to conclude that very serious misconduct took place, a bit more transparency is merited into how and why that decision was reversed.

One added footnote: On Tuesday, Attorney General Eric Holder announced the creation of a Professional Misconduct Review Unit to rule on some attorney discipline cases arising from OPR.

"The current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions, but this new Unit will help change that by providing consistent, fair and timely resolution of these cases,” Holder said in a statement, which did not mention the issue of informing the public about attorney discipline cases.