Tuesday, May 21, 2013

DOJ IG: Report on Justice Lawyer's Leak of Confidential Information re `Fast and Furious'

Every Department of the federal government has an internal audit office called the Inspector General. (OIG)  The Department of Justice IG has issued a report that sharply criticises Dennis Burke, former United States Attorney for the District of Arizona, and referred the matter to the DOJ's Office of Professional Responsibility for leaking a memorandum to Fox News and the New York Times.  The memo related to James Dodson - an ATF agent and witness in the investigation of the ATF gun-buying scheme known as `Fast and Furious'.
Burke - who resigned early in the investigation - was already under investigation for another leak.  Yet, according to the OIG he not only leaked material without permission, he misled investigators who asked him about it.
The DOJ maintains its own `private' disciplinary office (OPR) which in practices preempts action by the state licensing authorities who are the source of the law license of every lawyer in the country.  [The OPR process has been criticised in the Yale Law Journal online by Professor Green for excessive secrecy.] The OIG's report here asks OPR to investigate Burke's conduct and to determine if the former prosecutor violated the rules of professional conduct of "any state bar of which he is a member".

Did he? RPC 3.3 - Candor to the tribunal comes to mind - but the OIG is not a tribunal.  The former "appearance of impropriety standard" served as a catch-all, but it is gone.  How about RPC 3.8 special responsibilities of a prosecutor?

from the OIG report's conclusions:
In sum, we found that Burke violated Department policy when he provided the Dodson memorandum to Fox News reporter Levine without Department approval, and that his explanations for why he did not believe his actions were improper were not credible. We believe this misconduct to be particularly egregious because of Burke’s apparent effort to undermine the credibility of Dodson’s significant public disclosures about the failures in Operation Fast and Furious. We further believe that the seriousness of Burke’s actions are aggravated by the fact that they were taken within days after he told Deputy Attorney General Cole that he took responsibility for his office’s earlier unauthorized disclosure of a document to The New York Times, and after Cole put him on notice that such disclosures should not occur. Burke also knew at the time of his disclosure of the Dodson memorandum that he was under investigation by OPR for his conduct in connection with the earlier disclosure to The New York Times.
As a high-level Department official, Burke knew his obligations to abide by Department policies and his duty to follow the instructions of the Deputy Attorney General, who was Burke’s immediate supervisor.We found Burke’s conduct in disclosing the Dodson memorandum to be inappropriate for a Department employee and wholly unbefitting a U.S. Attorney. We are referring to OPR our finding that Burke violated Department policy in disclosing the Dodson memorandum to a member of the media for a determination of whether Burke’s conduct violated the Rules of Professional Conduct for the state bars in which Burke is a member.

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