Former veteran federal prosecutor and criminal defense attorney Sidney Powell created quite a stir in 2014 when she published her book Licensed to Lie exposing how federal prosecutors routinely lie and abuse their power. Her book addressed the prosecutions of U.S. Senator Ted Stevens (R-AK), Arthur Anderson, and Merrill Lynch executives, and others. Americans need to understand that there is real truth in the title, and that the problem continues.
While federal officials, including prosecutors, lie routinely, ordinary Americans dare not lie to the federal government. In 1948, Congress made it a federal crime, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,” to make “any materially false, fictitious, or fraudulent statement or representation.” 18 U.S. Code § 1001 (emphasis added). False statements carry up to a five-year prison term. While that statute could be read to apply to federal prosecutors as well, it should be no surprise that federal prosecutors do not prosecute other federal prosecutors who lie.
In 2016, Texas and other states sued the Obama Department of Homeland Security (DHS) over its handling of “Deferred Action for Childhood Arrivals (DACA)” immigration cases. For months, Department of Justice (DOJ) lawyers defending DHS lied to the court and to the plaintiff states, assuring them that the new DACA processing guidelines would not take effect until February 2015. However, by January 2015, DHS had already processed more than 100,000 aliens under the new guidelines. After catching DOJ lawyers repeatedly lying, District Court Judge Andrew Hanen was critical, but restrained, in response:
The … Department of Justice … has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements… These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed. [Texas v. United States, 2016 U.S. Dist. LEXIS 79546, at *9-10.]
If Judge Hanen really had thought lying by DOJ attorneys was a serious matter, surely he would have taken strong action. But he didn’t. In fact, Judge Hanen did not report the DOJ lawyers for ethics violations to the bar, or to those at the DOJ who are supposed to monitor lawyer ethics. Judge Hansen only ordered the lawyers to take ethics classes. Not surprisingly, the DOJ resisted even this minimal rebuke.
In 2020, DOJ lawyers admitted in emails “Yeah, we lied“ in refusing to disclose exculpatory evidence in a money-laundering prosecution against Ali Sadr Hashemi Nejad. One DOJ attorney suggested hiding the exculpatory evidence. “I’m wondering if we should wait until tomorrow [to turn it over to the defense] and bury it in some other documents,” the lawyer suggested. Having witnessed this malfeasance, District Court Judge Allison Nathan verbally castigated the DOJ attorneys. “The trial team’s failure to promptly investigate the origins of [the key document] and to communicate about discovery with other governmental agencies reflects a systematic disregard of their disclosure obligations,” she stated. “Prosecutors then compounded these missteps through a sustained pattern of refusing to fess up.” Even though they had already obtained a conviction, federal prosecutors dropped the case rather than being required to retry it in the wake of revelations of prosecutorial misconduct.
Justice Department attorneys rarely receive the severe discipline private attorneys would expect if caught committing similar misconduct. One review of DOJ lawyers has concluded:
[M]any federal prosecutors handling cases ranging from drug trafficking to white-collar crime walk away largely unscathed from misconduct charges, even after judges determine and describe in published opinions how they committed serious offenses, such as intentionally hiding evidence and allowing witnesses to lie to juries. But in their rulings, judges almost always omit the name of the prosecutor. And even if the prosecutor’s alleged misconduct is so grave that the [Justice Department Office of Professional Responsibility] ends up investigating, the agency goes to great lengths to conceal anything that could possibly identify them.
For decades, the DOJ’s Office of Professional Responsibility (OPR) has been accused of covering up — or at least failing to address — misconduct by DOJ attorneys. As far back as 1995, a report by the U.S. General Accounting Office (GAO) found numerous failures in OPR investigations, The GAO report “found several OPR monitored cases with instructions from OPR management to simply “open, count and close.”
Two decades later the problem had not improved. A December 2014 GAO report concluded: “DOJ has not implemented its plan to … ensure that discipline for professional misconduct is applied consistently and in a timely manner for all department attorneys. Aside from the Executive Office for United States Attorneys, “no other DOJ component has similar procedures or mechanisms in place to ensure that discipline for professional misconduct is implemented.”
Doubtless the most infamous case of the DOJ lying to courts is the saga of falsified affidavits submitted by DOJ attorneys to the FISA (Foreign Intelligence Surveillance Act) Court to obtain permission to spy on President Donald Trump’s 2016 campaign staffer Carter Page, despite the DOJ’s knowledge that the affidavits lacked probable cause. The FISA statute requires that “the Attorney General certif[y] in writing under oath that … the electronic surveillance is solely directed at … the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers….” 50 U.S. Code § 1802(a).
FISA Court Judge James Boasberg found that the affidavits contained “material misstatements and omissions.” Fellow FISA Court Judge Rosemary Collyer wrote in a scathing order that “[t]he FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor” required in ex parte surveillance applications. But the falsified affidavits were also signed off on by then-acting Attorney General Dana Boente and then-Deputy Attorney General Rod Rosenstein. The corruption at DOJ goes to the highest levels.
Nothing destroys the faith of the American people in their government more quickly than the realization that government officials are not our servants, but our rulers. All too many DOJ attorneys have shown again and again that they do not uphold the rule of law, but have contempt for the law. They operate based on the rule: “Perjury for thee, but not for me.”