The last thing an AUSA wants to find in the in-box is a “request for additional information” from the Office of Professional Responsibility. While most AUSAs are all too habituated to the allegations of misconduct so blithely tossed around these days by defense attorneys, defendants and their family members, prisoners, and the occasional internet troll, a letter from OPR is different. More so than most attorney jobs, being an AUSA can seep into your identity. You become used to wearing the white hat, and you rightly define yourself as one of the good guys, speaking for the United States of America literally on the side of justice. So, a letter from OPR is more than just an unwelcome distraction from your important work. The news that your employer is actually taking a misconduct allegation at least potentially seriously and requiring a formal response from you can be uniquely unsettling. This article is my attempt to demystify OPR, based on my 10-year tenure in that office following a longtime career as a criminal AUSA, and to provide some practical information about what to expect if you ever receive that letter.
What is OPR?
Most AUSAs’ careers pass by happily OPR-free, so here’s some basic background. Founded in 1975 following Watergate-era abuse revelations, OPR was established by Attorney General order (now codified at 28 C.F.R. § 0.39) to “receive and review any information concerning conduct by a Department employee that may be in violation of law, regulations or orders, or applicable standards of conduct,” although, as discussed below, its actual mission is narrower. It is a unique entity in multiple respects. First, it is solely an internal, DOJ office, reporting ultimately to the Attorney General through the Office of the Deputy AG. In that respect, it’s different from agencies’ Offices of Inspector General. Most OIGs, including the DOJ OIG, are created by statute, run by an “Honorable,” presidentially appointed and senate confirmed IG, and they report both to the agency head and to Congress. OPR is headed by an Attorney General-appointed, career DOJ Senior Executive Service (SES) official, who does not report to Congress.
OPR’s separation and independence from DOJ OIG is controversial. DOJ’s current IG, Michael Horowitz, has long sought to have OPR placed under his authority. As recently as October 2021, he testified before Congress that “there is no principled basis for authorizing OIG oversight of DOJ law enforcement personnel, such as agents of the Federal Bureau of Investigation, while excluding DOJ lawyers from that same OIG oversight.” However, the official DOJ position has always been that OPR’s unique mission requires specific expertise and is better served by OPR remaining within DOJ and reporting to the Attorney General, and that placing OPR under OIG would “add an additional layer of bureaucracy, require duplicative resources, and undermine the current efficient system for investigating attorney professional misconduct.” Over the years, legislation has been proposed to move OPR under DOJ OIG, including most recently the “Inspector General Independence and Empowerment Act of 2021,” but to date it has never passed.
Second, OPR is unique in that its mission (with a minor exception not relevant here involving FBI whistleblowers) focuses solely on DOJ attorneys’ misconduct pertaining to the performance of their duties as DOJ attorneys, i.e., misconduct relating to a DOJ attorney’s “responsibility to investigate, litigate, or provide legal advice.” Jurisdiction for misconduct involving the practice of law goes to OPR, and everything else goes to OIG. So, an alleged Brady violation would be investigated by OPR; theft of the office printer would be investigated by OIG. Still, in rare cases, both offices might have a legitimate claim to the investigation, such as when an attorney’s actions violate the law while simultaneously threatening his or her bar license and ability to practice law (e.g., illegal drug abuse).
For obvious independence reasons, OPR is its own island within DOJ, not part of any of the Divisions or the Executive Office for U.S. Attorneys. It consists of a couple dozen attorneys and a handful of support staff, and it occupies one hallway and part of a second on the third floor of the Main Justice RFK building in Washington, D.C., although I understand that, as of this writing, many of the attorneys are still regularly working from home pursuant to DOJ Covid policies. The current head of OPR, appointed by former Attorney General William Barr, is Jeff Ragsdale, a highly experienced former prosecutor who used to be the Chief of Homicide in the D.C. U.S. Attorney’s Office.
OPR line attorneys tend to come to that office following significant previous careers in some other component of DOJ. There are veteran DOJ attorneys from most of the DOJ litigating components, including the Tax, Civil Rights, Civil, Environmental, and Criminal Divisions. OPR’s line attorneys include some with significant past tenures as criminal AUSAs, with extensive federal criminal trial experience, and a few attorneys with criminal defense backgrounds. Notably, however, although most OPR matters involve allegations arising from criminal cases, which is by far the bulk of the DOJ’s litigation, a subset of OPR attorneys has never prosecuted or defended a federal criminal trial.
Types of Allegations, Sources, and Screening
AUSAs, especially criminal AUSAs, practice under a host of professional obligations from a number of different sources — constitutional (e.g., Brady) or statutory (e.g. Jencks Act) obligations, case law, Department policies (e.g., Justice Manual, AG policies set forth in official memos), federal rules (evidence, criminal procedure, local rules) and regulations; and state bar rules of attorney professional conduct. The subject matter of the allegations can involve such diverse areas as discovery, grand jury practice (with or without a witness present), witness coercion or intimidation, improper personal relations with law enforcement agents or witnesses, failure to keep supervisors informed, improper questioning, opening statements or closing arguments, lack of candor to a court or opposing counsel, and even general lapses in an attorney’s duty of competence or diligence. The alleged violation can be a sin of commission (something the AUSA did) or omission (failed to do).
OPR’s public website contains a breakdown of the sorts of allegations received. By far, the largest category is discovery violations, including Brady, Giglio, Rule 16, etc. Another big category is lack of candor, or misrepresentation, to the court or to opposing counsel. Surprisingly (to me, anyway), one of the biggest categories every year is “failure to maintain an active bar membership,” although these allegations went down in number a few years ago after the DOJ instituted the requirement to attach a bar website printout showing active membership to DOJ attorneys’ annual certifications.
These sources of professional obligation are not always consistent. For example, DOJ discovery policies usually do not track the same formulation as state bar rules. Others can be relatively obscure. For instance, some DOJ policies are set forth in memos that were disseminated years ago and now exist on the DOJ intranet, but they may not be recently distributed or widely known in the USAOs. Still other policies may have changed multiple times over the years, such as the so-called “Ashcroft memo” that set forth the official policy to charge the most serious, readily provable offense. That policy was basically incrementally revoked under AG Holder, largely reinstated by AG Sessions, and then relaxed again most recently by AG Garland.
Misconduct allegations come to OPR from a variety of sources. The main one – over 50 percent of OPR’s caseload – is reporting by the U.S. Attorney’s Office itself or the AUSA. Under Justice Manual § 1-4.300, a DOJ attorney has an affirmative obligation to report to a supervisory attorney “any evidence or non-frivolous allegation” of professional misconduct. The supervisory attorney then must evaluate whether the allegation is non-frivolous and also is “of a serious nature” and, if so, must report the allegations to OPR. The DOJ attorney is also permitted to self-report misconduct allegations directly to OPR.
Judicial referrals are the second biggest source of misconduct allegations to OPR. Most of the time, judicial criticism (such as an adverse Brady finding) will be in the form of a bench finding, written order, or appellate opinion, which is then properly reported by the USAO or the AUSA. However, occasionally judges will communicate directly with OPR when sufficiently motivated (irritated, offended . . .) by perceived AUSA misconduct.
Notably, OPR sometimes initiates inquiries stemming from judicial criticism even when the USAO or the AUSA fails to bring the matter to OPR’s attention. Each week, OPR runs a preprogrammed Westlaw search that mines federal judicial orders and opinions for keywords commonly associated with misconduct findings and judicial criticism. The results of the Westlaw search are then screened by an OPR attorney to separate hits of actual concern from false positives. Typically, the false positives far outnumber the potentially viable misconduct matters discovered this way, but every year a handful of unreported non-frivolous misconduct findings are discovered through these Westlaw searches. When that happens, the DOJ attorney’s failure to comply with the reporting obligations JM § 1-4.300 can get added to the list of issues to be investigated. You don’t want OPR to learn of something for the first time via Westlaw.
Other sources of allegations can include defense attorney complaints and press accounts. Although these less frequently result in a matter being opened, sometimes defense attorney complaints appear at least facially well-supported by credible chronologies and supporting documents, and they do sometimes result in OPR investigations.
Whatever the source, when an allegation reaches OPR, a screening process ensues. All screening is done by a single, veteran OPR attorney, who reviews the allegation and any initial supporting documentation, and then writes a short memo to the OPR Counsel and his deputy either recommending that the matter be opened and assigned to a line attorney, or, alternately, closed on the grounds that further investigation is unlikely to result in a misconduct finding.
Most of the allegations that come to OPR never make it past the first screen. A 2020 article published in the DOJ’s Journal of Federal Law and Practice said that, over the previous five years, OPR received an average of 732 complaints annually but opened an average of only 23 of those as investigations each year. Based on the initial assessment, the OPR screening attorney and management conclude that investigation is not warranted, generally because the complaint is outside OPR’s jurisdiction, frivolous on its face, or vague and unsupported. Also, even when an allegation seems well-supported and clearly pertains to an AUSA’s conduct as an attorney for the United States, the initial screen could determine that conduct is really more fitting for USAO management to address as a performance matter, rather than for OPR to investigate as potential misconduct. Complaints regarding an AUSA’s courtroom demeanor, or overly contentious or rude manner with opposing counsel, are examples of the sorts of allegations that might fall into the performance matter category.
OPR’s “Analytical Framework”
OPR employs an “analytical framework,” which was developed entirely internally with only minor tweaks over the years, and with no changes in recent years. The analytical framework is set out on OPR’s public website, but it’s summarized here. It consists of two threshold questions, both of which have to be answered in the affirmative before OPR will find misconduct, and then, basically, a mens rea analysis.
The first threshold question in OPR’s analytical framework is whether there is a “clear and unambiguous legal obligation or professional standard” implicated in the allegation. If the answer to that question is “no,” then OPR will not return a misconduct finding, period, although it still ultimately may be critical of an AUSA’s conduct. A good illustration of this threshold issue in action can be found in OPR’s report on the conduct of Eastern District of Louisiana AUSA Salvador Perricone, which can be found in redacted form on OPR’s public website. Perricone’s misconduct consisted of posting approximately 2,600 anonymous comments on the local newspaper’s website “on a wide variety of subjects, including comments on cases to which he personally was assigned to prosecute or that were being prosecuted by his colleagues, many of which “disparaged federal and state judges, people under indictment, personnel in the USAO, defense attorneys, and numerous other public and private individuals.” OPR found that Perricone’s conduct certainly violated clear and unambiguous legal obligations and professional standards. However, the report exonerated other AUSAs who had suspected that Perricone was the anonymous internet troll but had not reported their suspicious to USAO management. With respect to these AUSAs, OPR concluded that, although “it certainly would have been preferable” had they reported their suspicions, the factual record “did not establish by a preponderance of the evidence that any USAO employee was sufficiently aware of Perricone’s online posting activity to trigger a clear and unambiguous duty to report their suspicions to supervisors, OPR, or the OIG.”
The second threshold question is whether the AUSA actually violated that clear and unambiguous legal obligation or standard. A major part of an OPR investigation is developing the factual record on which to base this determination. In the process, there is often a massive asymmetry in the conduct at issue versus the resulting misconduct investigation. The conduct may have taken mere seconds, for instance, an ill-advised, unscripted, offhand comment in a rebuttal argument that rubbed the judge the wrong way and resulted in a mistrial. As discussed in more detail below, however, the misconduct investigation will be slow, methodical, deliberative, exhaustingly comprehensive, well-researched, and honed by multiple rounds of internal OPR review. Although the OPR line attorneys and especially management are well- aware of this asymmetry, it’s a point worth documenting and emphasizing in the AUSA’s written response and interview.
If the answer to both threshold questions is yes – yes, here’s a clear and unambiguous standard, and yes, the AUSA’s conduct violated it – then then the rest of the framework boils down essentially to a mens rea analysis, in descending level of seriousness. If OPR finds that the factual record establishes by a preponderance of the evidence that the AUSA acted intentionally or recklessly, the report will officially find that the AUSA engaged in professional misconduct. If, on the other hand, OPR determines as a factual matter that the AUSA merely exercised poor judgment or just made a mistake, there will be no misconduct finding, although these are obviously negative findings that might be addressed by USAO management as a performance matter. Finally, OPR reports can and sometimes do conclude that an AUSA acted completely appropriately, and that the conduct at issue did not even amount to a mistake.
For purposes of OPR’s analytical framework, these descending levels of seriousness are terms of art, the definitions of which are set out on OPR’s public website as follows:
Intentional misconduct. This is the most serious of possible OPR outcomes, and the one which results in the most significant possible disciplinary repercussions. Notably, for OPR’s purposes, “intentional” includes either “purposeful” or “knowing”:
An attorney’s violation is intentional when the attorney engages in conduct that is either purposeful or knowing. Conduct is purposeful when the attorney takes or fails to take an action in order to obtain a result that is unambiguously prohibited by the applicable obligation or standard. By contrast, conduct is knowing when the attorney takes or fails to take an action with knowledge of the natural or probable consequences of the conduct, and those consequences are unambiguously prohibited by the applicable obligation or standard.
Reckless misconduct. The other OPR category of misconduct is “recklessness,” which OPR defines as “reckless disregard of the applicable obligation or standard,” in other words, conduct that “amounted to a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation.” To determine recklessness, OPR applies a three-part test:
First, OPR considers whether the attorney knew, or should have known, of the obligation or standard based on the attorney’s experience and the unambiguous nature of the obligation or standard. Second, OPR considers whether the attorney knew, or should have known, that the attorney’s conduct was substantially likely to violate or cause a violation of an obligation or standard based on the attorney’s experience and the unambiguous applicability of the obligation or standard. Third, OPR considers whether the attorney nonetheless engaged in the conduct, which was objectively unreasonable under all the circumstances.
Poor Judgment. The next category down in terms of seriousness is a poor judgment finding. Again, “poor judgment” is not a misconduct finding in OPR’s world. It does not trigger the official DOJ disciplinary process, although the USAO is free (and often expressly encouraged) to address the matter as a performance issue. OPR defines poor judgment as follows:
To determine whether an attorney exercised poor judgment, OPR considers whether the attorney had appropriate alternatives available, but the attorney chose an action or course of action that was in marked contrast to that which the Department would reasonably expect of an attorney exercising good judgment. For example, an attorney exercises poor judgment when the attorney takes an action in a situation involving obviously problematic circumstances without first seeking supervisory advice or guidance, because the Department would reasonably expect that an attorney exercising good judgment would consult with a supervisor before proceeding in such circumstances.
Mistake. Finally, the lowest critical finding that OPR ever makes is “mistake.” This is short of even “poor judgment,” and again not a misconduct finding, although the USAO is again free to address the conduct internally as a performance matter. OPR defines mistake as follows:
A mistake finding is based on OPR’s determination that the attorney’s conduct resulted from excusable human error despite the attorney’s exercise of reasonable care under the circumstances. OPR considers various factors when examining whether an attorney’s error was excusable. Those factors include, for example, the attorney’s opportunity to plan and reflect on the possible and foreseeable consequences of the conduct; the significance of the conduct compared with the breadth and magnitude of the attorney’s overall responsibilities and actions; and the extent to which the error was consistent with the attorney’s usual conduct.
Stages of an OPR Investigation
If you’ve received that unwelcome letter from OPR, that means an allegation has made it through the initial screening process and has been assigned to a line attorney, not as an investigation, but as what OPR initially terms an “inquiry.” This doesn’t mean that OPR considers the allegation likely to be sustained, however. In some cases, OPR initiates an inquiry simply because additional information is needed to make the call. Nevertheless, the letter is a sign that OPR made a threshold determination that the allegation (1) falls within OPR’s jurisdiction; (2) seems at least potentially credible and supportable by evidence; and (3) might be sufficiently serious to result in a misconduct finding.
Once an inquiry or investigation is opened, there is very little about it that is optional from a current (as opposed to former) AUSA’s perspective. As a formal matter, cooperation is mandatory under both DOJ policy and federal regulations (28 C.F.R. § 45.13). Under Justice Manual § 1-4.200, all DOJ employees have an application to cooperate with OPR (and OIG, for that matter) misconduct investigations, and they “and must respond truthfully to questions posed during the course of an investigation upon being informed that their statements will not be used to incriminate them in a criminal proceeding.” Failure to do so can result in additional misconduct findings, formal discipline, and even termination. And this is not hypothetical. In my own OPR career, I handled one matter that was, but needn’t have been, career-ending for an AUSA who withheld information in connection with a written submission to OPR and then made multiple related false statements during the subsequent interview.
In my experience, this cooperation mandate can be a difficult transition for AUSAs. You are trial lawyers and advocates, and so you are accustomed to an adversarial posture. However, the system mandated by the Justice Manual and C.F.R. is more akin to an inquisitorial system like you might find in continental Europe, where ideally an impartial tribunal conducts an objective inquiry, assisted by the parties and their attorneys. As discussed throughout this article, there is still a lot room for legitimate, effective, and subtle advocacy in response to an OPR investigation, but adopting too adversarial a stance can be both inconsistent with the duty to cooperate, and just unwise as a strategic matter.
The official letter to the AUSA is not the first step in the inquiry. Before the letter ever leaves the Main RFK building, the OPR line attorney will have done significant background research regarding the allegation and will have obtained and reviewed as much available material as possible, including all relevant pleadings and transcripts. When relevant, the line attorney will also have been in touch with the Executive Office for U.S. Attorney’s IT staff to request the AUSA’s e-mails for the relevant period, although the e-mails will likely not have been received, let alone thoroughly reviewed, by the time the letter is sent to the AUSA.
Let me digress with a note of caution about e-mails. OPR line attorneys do not rely on EOUSA IT staff to conduct keyword searches for relevant communications. Instead, the OPR line attorney will generally identify the period relevant to the misconduct allegation (erring on the side of over-inclusiveness) and obtain from EOUSA a mirror image of the contents of the AUSA’s entire Outlook PST file for that period, including all subfolders and all received, sent, archived, and deleted communications. The AUSA’s e-mail folders appear in the OPR line attorney’s desktop Outlook program as comprehensively as on the AUSA’s, every bit as readable and searchable. The AUSA has no reasonable expectation of privacy in any of it, and the OPR line attorney will get all of it. So, if an AUSA fails to produce a relevant e-mail, there’s an excellent probability that the OPR line attorney will separately find it, and then the AUSA’s apparent lack of cooperation with the OPR investigation may well become a whole separate topic of potential misconduct, as it was in the matter mentioned above. In light of all that, it probably goes without saying that you want to develop a meticulous practice of keeping personal e-mails (and subscriptions, e-commerce, etc.) associated with a personal e-mail account, and not with your @doj.gov account. And even with your legitimately work-related communications with colleagues, agents, and defense attorneys, keep in mind that they could be read by OPR one day and draft them for both content and tone accordingly.
The OPR letter itself is a very carefully drafted document and will probably have gone through at least of few iterations of drafts and managerial review before being sent. It will follow this general pattern. First, the allegations will be summarized, usually with some specificity, to fairly inform the AUSA of the nature of the allegations so that he or she can provide a meaningful and focused account and explanation of the conduct at issue. Second, the letter will ask the AUSA to produce all relevant documents and information, including things such as pleadings, transcripts, and electronic communications that the OPR line attorney may well have already obtained or be in the process of obtaining. Third, the AUSA will be asked to identify any relevant potential witnesses and sources of information, as well as his or her supervisory attorney(s) for the matter at issue. The AUSA will be admonished, however, that potential witnesses should not be spoken to about the pending allegation. The letter asks the AUSA to identify his or her bar memberships, which is relevant to identify applicable standards of conduct, as well as for the potential bar referrals discussed below. Finally, there will be some boilerplate information about how to contact the assigned OPR line attorney and how to supply the requested information (electronically is preferred), and a deadline for the response. Note that, although the letter will not say so, the deadlines are almost always flexible, and reasonable extensions are freely granted in my experience. The letter closes by inviting the AUSA to share his or her written submission with the U.S. Attorney, but explicitly says this is not required.
In an OPR inquiry, your written response to the OPR letter is a huge opportunity, your last, best chance to stop things there and keep the inquiry from becoming an investigation. You have to comply with your duty to cooperate of course, but it is also an opportunity to carefully and strategically include a wealth of information as context or in explanation or mitigation, information that could well tip the balance and lead OPR to conclude that “further investigation is not likely to result in a finding of misconduct.” Some factors may weigh quite heavily or even dispositively in OPR’s resolution of an inquiry, for instance, supervisory awareness and/or approval of the conduct at issue. If you pre-vetted your conduct with your USAO’s professional responsibility officer (PRO), and/or the DOJ’s Professional Responsibility Advisory Office (PRAO), that could also be dispositive, depending on the facts. Even if you previously discussed your conduct and obtained advice from a more experienced and respected colleague, whether in the case at issue or in a comparable earlier case, that might carry considerable weight. The bottom line is that you have to provide the information that OPR asks for, but there is no page limit and no cap on the additional information and context you can supply. Your response should be thorough, comprehensive, strategic, and very well thought out. Many OPR matters are closed based on an AUSA’s written response, and they never become investigations. You want yours to be one of them.
If the AUSA’s written submission is not sufficient to resolve OPR’s concerns about the allegation (again, to allow OPR to conclude on the paper that “further investigation is unlikely to result in a finding of misconduct”), then OPR will schedule interviews. When OPR decides that interviews are necessary, the matter moves from the internal “inquiry” category to an “investigation.” All interviews are done in pairs, with the assigned OPR line attorney leading and a second OPR attorney added to assist. OPR will seek to interview anyone reasonably knowledgeable about the facts underlying the allegation, which can include local, state, or federal law enforcement agents, civilian fact witnesses, the judge involved, and even the defense attorneys. OPR will also almost always interview the AUSA’s supervisor for the matter at issue, and usually will interview the U.S. Attorney. (The U.S. Attorney interview is generally non-substantive and done more as a courtesy, unless he or she was personally involved in the underlying matter.) Pre-COVID, the interviews were always conducted in person, with the OPR line attorneys usually traveling to the AUSA’s district for the convenience of the witnesses and subject. After COVID, OPR switched to conducting interviews via video conference, and I understand that as of this writing things have not yet gone back to normal and that most interviews are still done via video.
The final interview scheduled and conducted is almost always the interview of the subject AUSA. The reason is straightforward. OPR wants to have as complete a picture of the matter as possible in order to make the AUSA’s interview as thorough and as comprehensive as possible. Except for rare exceptions, the AUSA interview is a one-time event, and depending on the interviewer and the nature of the issues and facts, it can be a marathon, lasting an entire day and even carrying over into the next day. The interviews themselves resemble broad civil discovery depositions and are done under oath and in the presence of a certified court reporter.
As noted above, the fact that OPR is conducting interviews means that what it previously considered an “inquiry” is now an “investigation,” which makes the interview an event that the AUSA should take very seriously and carefully prepare for. Recall that Fall 2020 article in the DOJ Journal of Federal Law and Practice that reported that, of the annual average 732 complaints received, only 23 became investigations. That same article said that about half of those 23 annual investigations resulted in misconduct findings. The AUSA and his or her attorney (if one is retained) should create a detailed chronology of the facts underlying the allegation and should review all documents and communications in detail. Especially in this era of video interviews, it’s completely reasonable to ask the assigned OPR line attorney for a list or even a duplicate set of all the materials that will be covered during the interview, and in my experience most of those requests are granted without pushback, unless there is some tangible reason for concern about the AUSA’s good-faith cooperation in the investigation. Furthermore, if the OPR line attorney’s questions during the interview miss areas that might provide helpful context, explanation, or mitigation for the conduct at issue, the AUSA should feel free to put all of that onto the record in testimony and supporting documents. There really is no reason or practical way for the OPR line attorney to prevent the subject AUSA from doing so, and indeed the OPR line attorney always invites the interviewee to add whatever he or she wishes at the end of the interview. In my experience, this is a valuable opportunity for the subject AUSA, but it’s often missed because the AUSA will be so eager for the interview to end that he or she will fail to take advantage of it.
The Report of Investigation
After the investigation is complete, the lead assigned OPR line attorney writes a draft Report of Investigation. The process is extraordinarily comprehensive and can take months, especially in complicated matters with multiple subjects and allegations of misconduct. In my tenure at OPR, even my simplest, most straightforward report ran almost 20 pages. The longest one I personally drafted was over 130 pages. A handful of “reports of significant public interest” can be read on OPR’s public website. The longest report included there is nearly 400 pages. From the OPR line attorney’s perspective, the drafting process is painfully iterative, with three layers of management review and, routinely, many, many rounds of meetings, edits, and redrafts.
If the investigation determines that the AUSA did not engage in misconduct for purposes of the analytical framework discussed above, the AUSA never sees a draft report of investigation. Instead, the report is sent to the AUSA and the U.S. Attorney as “final,” with no opportunity for comment, under a cover letter that thanks the AUSA for his or her cooperation and explicitly says that OPR considers the matter to be closed. When there’s no misconduct finding and only a final report, there is no explicit opportunity offered for the AUSA or USAO management to take issue with any of the facts found or conclusions reached, although I suppose any reasonable or legitimate feedback supplied would be considered. To the extent that a report not resulting in a misconduct finding still is nevertheless critical of the AUSA’s conduct, USAO management would then have to address that criticism as a management matter, if at all. Indeed, the transmittal letter may suggest that USAO management do so, but that suggestion is merely advisory and not binding on the U.S. Attorney. In any event, the exhaustive OPR process will have afforded the AUSA a lot of time to reflect upon and correct the problem in future cases.
If OPR does propose to make a misconduct finding, i.e., that there was intentional or reckless misconduct on the AUSA’s part for purposes of the analytical framework, then the report of investigation goes to both the AUSA and to the U.S. Attorney in draft form. The transmittal letter explains that the factual findings and misconduct conclusion are preliminary, and it affords the AUSA and the office a period of time to comment and respond to or dispute anything in the draft. Again, this deadline is usually flexible, and reasonable extensions are readily available. In my experience, this comment period is another meaningful opportunity for the AUSA, and it should not be squandered. During my tenure with OPR, I sometimes saw misconduct findings reversed based on an AUSA’s or USAO’s well-taken comments, resulting in, for example, a “reckless” misconduct finding softened down to “poor judgment,” which of course is not a misconduct finding. It is not frequent, but, depending on the circumstances, sometimes a USAO also will go to bat for an AUSA and strongly dispute a draft OPR misconduct finding. More often, however, the USAO will choose not to weigh in.
Upon receipt of the AUSA and USAO’s comments on the draft report of investigation, OPR will consider the comments, revise the draft accordingly, and issue a final report. If OPR elects not to change the draft in response to comments, it will usually explain why in the final report, either in the text or in footnotes. The final report will attach a number of exhibits, including: (1) the AUSA’s written submission; (2) the transcripts of the AUSA’s interview and possibly other key witness interviews; (3) the AUSA’s and USAO’s comments on the draft report of investigation; and (4) often, selected key documents. If, based on the comments, received, there is no misconduct finding in the final report, the matter ends there, and OPR considers it closed. If, on the other hand, one or more misconduct findings remain, then the official DOJ disciplinary process commences, which transitions to the Professional Misconduct Review Unit, or PMRU. The PMRU process is discussed briefly below.
Professional Misconduct Review Unit
After it makes a misconduct finding, OPR is not involved in what (if any) official Departmental disciplinary repercussions follow; that determination is made (for AUSAs, anyway) by the PRMU, which is in the Office of the Deputy Attorney General. Although I have no inside experience with the PMRU, here’s an overview. Created by AG Holder in 2011 and now codified in Justice Manual § 1-4.320, the PMRU’s job is to “evaluate any findings of professional misconduct by OPR and, where appropriate, issue fair, timely, and consistent disciplinary decisions.” When it sustains OPR misconduct findings that implicate state bar rules, the PMRU also authorizes referrals to the relevant state bar disciplinary authority. The current chief of PMRU is Mark Masling, a veteran DOJ (including DOJ OIG) attorney and former longtime and highly respected OPR line attorney. He has no personal criminal trial experience, but PMRU always has a few current criminal AUSAs available on detail.
The PMRU conducts what is essentially a de novo appellate review of any OPR final report that includes one or more misconduct findings against an AUSA. Unlike an appellate court, however, the record below is not set in stone. The Chief or his AUSA detailees can request additional information as deemed helpful or necessary from either OPR or the subject AUSA. And PMRU review is not a rubber stamp. There have been many instances where OPR findings and conclusions were not sustained by PMRU or were significantly softened. Conversely, I have seen instances, including one of my own investigations, in which the PMRU’s summary of an AUSA’s conduct used significantly harsher and more critical language than mine in the underlying OPR report. In any event, the PMRU stage is yet another opportunity for an AUSA or counsel to engage in some advocacy.
When it sustains OPR findings of AUSA misconduct, the PMRU makes its disciplinary determination based on the facts and circumstances of the misconduct, and information it requests from the subject AUSA and the USAO pertaining to what are known as the Douglas factors, so named after a seminal 1981 Merit Systems Protection Board case. Subject AUSAs have a right to review all materials relied on by the PMRU, including the Douglas factor information supplied by the USAO. The Douglas factors are as follows:
- The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
- the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
- the employee’s past disciplinary record;
- the employee’s past work record, including length of service, performance on the job,ability to get along with fellow workers, and dependability;
- the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
- consistency of the penalty with those imposed upon other employees for the same or similar offenses;
- consistency of the penalty with any applicable agency table of penalties; the notoriety of the offense or its impact upon the reputation of the agency;
- the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
- the potential for the employee’s rehabilitation;
- mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
- the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
With respect to these Douglas factors, let me emphasize a few points. First and most importantly, there is obviously a lot of room for advocacy within many of them. Second, some of them can loom quite large for an AUSA (e.g., “prominence of the position”); others are flatly inapplicable (e.g., there is no “agency table of penalties”). Third, think carefully about “the potential for the employee’s rehabilitation” factor and its potential to be in tension with your approach to the underlying OPR investigation. For instance, you don’t want to argue strenuously that you did not violate Brady, lose that argument, and then leave PMRU with the impression that you just don’t get Brady and are congenitally incapable of recognizing exculpatory information in future cases. In other words, your approach to an OPR investigation should be big picture and strategic, encompassing both the OPR stage and, potentially, the PMRU stage.
The PMRU’s disciplinary options are broad, ranging from a letter of reprimand that expires at some point and is removed from the AUSA’s personnel file and destroyed, all the way to termination. Moreover, for violations that implicate bar rules (commonly discovery or candor violations), the PMRU will instruct OPR to make bar referrals. In my experience, AUSAs facing the most significant, career-threatening discipline will often choose to leave the DOJ, often retiring if eligible. Although that terminates the internal DOJ disciplinary process, PMRU could still direct OPR to make a bar referral for a former AUSA.
Even after the PMRU stage, there can still be further review if the AUSA wants to pursue it. If the PMRU imposes more than a 14-day suspension, the AUSA has the right to appeal the decision to the Merit Systems Protection Board, an independent federal agency. If the PMRU imposes anything less than a 15-day suspension, including even a letter of reprimand, the AUSA has the right to “grieve” the decision, usually to a career Associate Deputy Attorney General designated as a “grievance official.”
When the PMRU sustains a misconduct finding that implicates a state bar rule, it directs OPR to make a bar referral to the state bars of which the AUSA is a member. OPR will then send each bar’s disciplinary office a substantive letter describing the allegation, summarizing OPR’s findings and conclusions, and indicating that the findings have been sustained (in whole or in part) by the PMRU. The OPR letter then offers to send the bar’s disciplinary authority a copy of the OPR report of investigation and PMRU’s memorandum sustaining (again, in whole or in part) the misconduct findings.
Note that the bar referral process is a massive exception to the Privacy Act protections which normally prevent AUSA personnel information from public disclosure. Normally, OPR investigations and reports are confidential, and OPR only publicly discloses carefully vague summaries in its annual report, sanitized to preclude any identification of the subject AUSA’s name, district, and even sex. (Some reports already largely in the public record and with significant public or congressional interest do appear in redacted form on the OPR public website, such as the Perricone matter discussed above.) Bar referrals, however, are considered to fall under the “routine use” exception to the Privacy Act, 5 U.S.C. § 552a(b)(3). Accordingly, state bars can get very complete copies of OPR reports and attachments, with only limited redactions for things such as grand jury information.
State bars’ reactions to the OPR referral letter vary extensively in my experience. Some state bars do not even take OPR up on its offer for a copy of its report of investigation, especially when the misconduct at issue occurred in a different state. Other bars request and receive the OPR report and PMRU memo, but then seem to do nothing with them. However, some bars do take some OPR reports quite seriously and initiate their own disciplinary proceedings, which can result in discipline entirely separate from the internal DOJ discipline, up to and including license suspension or even disbarment. And after the state bar receives the report, OPR has no ability to prevent further public disclosure by the bar during its proceedings. However, the subject lawyer may still be able to negotiate a resolution with the state bar that avoids public embarrassment. For instance, in one of my investigations, an AUSA who retired from the DOJ after very serious misconduct findings was able to avoid public state bar disciplinary proceedings by privately agreeing to retire from the practice of law altogether.
A letter from OPR can be a uniquely unsettling thing to find in your in-box. It can cut to the heart of your professional identity, and in a small minority of instances it could turn out to be the start of a long, exhaustive, mandatory process that will be an unwelcome and ongoing distraction for months to come. Nevertheless, it is a process that is essentially fair in its thoroughness, affording many repeated opportunities at multiple stages for effective advocacy on your behalf. I hope this article has been helpful in taking some of the anxiety out of it.