Congress says "Enough!" to Overzealous Prosecutors

On October 21, 1998, Congress passed HR 3396, the "Citizen's Protection Act," as Section 801 of the Omnibus Appropriations bill. Although somewhat watered down from it's original language, due to intense lobbying by the US Department of Justice, the strong intent remains. This legislation curtails blatant attempts by the US Department of Justice to hold its attorneys above the laws of ethical conduct which apply to all lawyers.

This provision reaffirms basic principles, which in recent years have been virtually ignored by the government. Department of Justice lawyers, like all other attorneys, are and historically have been answerable to the high court of the state or states by which they have been granted a license to practice law.

With the majority (345-82) House vote in August, Congress has put a stop to Justice Department attempts to evade the rules by which all lawyers are supposed to abide, as required by the State Supreme Courts granting those lawyers their licenses. The measure also covers independent counsels. It affords the Attorney General 180 days from the date of enactment to make and amend DOJ rules to assure compliance with the section.

"No one, not even a federal prosecutor, is above the law," said NACDL President Larry S. Pozner of Denver. "Congress has set the record straight and put an end to the Department's arbitrary policy of deciding which ethical rules it will obey or disobey - a policy that has squandered scarce tax dollars and abused citizens' rights."

The US Constitution and the rule of law form the foundation of our democracy. The chief sponsor of this important measure, Representative Joseph McDade, and all of Congress are to be commended for re-establishing this fundamental protection of the citizenry against excessive conduct by federal prosecutors and regulatory lawyers.

The following are pertinent excerpts from the body text of the 1999 Appropriations Bill, passed into law in October:

Sec. 801. This title may be cited as the 'Citizens Protection Act of 1998'.

Ethical standards for attorneys for the government

Sec. 530B. (a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.

Punishable conduct

Sec. 821. (a) Violations- The Attorney General shall establish, by plain rule, that it shall be punishable conduct for any Department of Justice employee to-

(1) in the absence of probable cause seek the indictment of any person;
(2) fail promptly to release information that would exonerate a person under indictment;
(3) intentionally mislead a court as to the guilt of any person;
(4) intentionally or knowingly misstate evidence;
(5) intentionally or knowingly alter evidence;
(6) attempt to influence or color a witness' testimony;
(7) act to frustrate or impede a defendant's right to discovery;
(8) offer or provide sexual activities to any government witness or potential witness;
(9) leak or otherwise improperly disseminate information to any person during an investigation; or
(10) engage in conduct that discredits the Department.

(b) penalties- The Attorney General shall establish penalties for engaging in conduct described in subsection (a) that shall include-

(1) probation;
(2) demotion;
(3) dismissal;
(4) referral of ethical charges to the bar;
(5) loss of pension or other retirement benefits;
(6) suspension from employment; and
(7) referral of the allegations, if appropriate, to a grand jury for possible criminal prosecution.


Sec. 822. (a) Written Statement- A person who believes that an employee of the Department of Justice has engaged in conduct described in section 821(a) may submit a written statement, in such form as the Attorney General may require, describing the alleged conduct.

(b) Preliminary Investigation- Not later than 30 days after receipt of a written statement submitted under subsection (a) the Attorney General shall conduct a preliminary investigation and determine whether the allegations contained in such written statement warrant further investigation. (c) Investigation And Penalty- If the Attorney General determines after conducting a preliminary investigation under subsection (a) that further investigation is warranted, the Attorney General shall within 90 days further investigate the allegations and, if the Attorney General determines that a preponderance of the evidence supports the allegations, impose an appropriate penalty.

Misconduct Review Board

Sec. 823. (a) Establishment- There is established as an independent establishment a board to be known as the 'Misconduct Review Board' (hereinafter in this title referred to as the 'Board').

(b) MEMBERSHIP- The Board shall consist of-

(1) three voting members appointed by the President, one of whom the President shall designate as Chairperson;
(2) two non-voting members appointed by the Speaker of the House of Representatives, one of whom shall be a Republican and one of whom shall be a Democrat; and
(3) two non-voting members appointed by the Majority Leader of the Senate, one of whom shall be a Republican and one of whom shall be a Democrat.