DOJ's handling of foreign corporate bribery cases under fire

by: Matthew Koehler

Wed Dec 01, 2010 at 08:46:44 AM MST

"The FCPA is a fundamentally sound statute that was passed by Congress in 1977 for a very specific and valid reason and my prepared statement provides a brief overview of the legislative history on that issue. That the FCPA is a fundamentally sound statute does not mean that FCPA enforcement is fundamentally sound. The recent article I wrote in the Georgetown Journal of International Law, 'The Facade of FCPA Enforcement' details several pillars which constitute this current facade environment which exists. One pillar that I would like to talk about today is the pillar, which is very frequent, and that is where seemingly clear-cut cases of corporate bribery - per the DOJ's own allegations - are not resolved with FCPA anti-bribery charged....This facade pillar undermines the rhetoric that DOJ uses when it describes it's FCPA enforcement program and and undermines the deterrence that proper FCPA enforcement can achieve.

So despite numerous public statements during this era of the FCPA's resurgence that the DOJ will vigorously pursue violators and that paying bribes to get foreign contracts will not be tolerated, the undeniable fact is that in the most egregious cases of corporate bribery the DOJ does not charge FCPA anti-bribery violations.

And the Siemens and BAE enforcement actions that have already been alluded here today are perfect examples of those.

Not only is it that these companies were not charged with FCPA anti-bribery violations, but the deterrence message is also undermined when one analyzes the extent of US government business these companies have done in the immediate aftermath of the bribery scandals.

Using recovery.gov one will find that Siemens alone has been awarded numerous federal government contracts with U.S. stimulus dollars in the immediate 12 months after the bribery scandal.  And one will also find that BAE, this month alone, not only was BAE not charged with FCPA anti-bribery violations, but this month alone, BAE, according to its website, has secured $50 million in U.S. Government contract.  Including in September 2010 securing a $40 million contract from the FBI, the same exact government agency that investigated BAE for its improper conduct.

So deterrence is not achieved when a company that bribes is not charged with FCPA anti-bribery violations.  Deterrence is not achieved when a company settles a matter for an amount less than the business that was gained through bribery. Nor is deterrence achieved when the U.S. government continues to award multi-million contacts to the same companies that are engaged in these bribery schemes."

Bush lawyers nervous about DoJ investigation into torture policy

by: Jay Stevens

Sun Feb 15, 2009 at 07:50:11 AM MST

This is what he said about LiTW kicking-boy, John Yoo:

His legal opinions are truly appalling. There's no one I know -- and respect -- who supports them. It appears he was essentially used to rubberstamp a predetermined policy. And that, I think, takes him across a line. It's not just bad lawyering, it's not just unprofessional legal advice, it takes you into the realm of complicity.

And I think if evidence emerges from further investigation that abusive techniques of interregation had already been embarked upon without appropriate legal authorization, and they needed to find someone to sign off on it, and he was the person to sign off on it, then I think it becomes particularly certain.

It turns out the Mukasey DoJ started an internal investigation into Bush lawyers' role in approving torture -- and rumor has it that the findings are grim...for Bushies.

OPR investigators focused on whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would "consider" releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.

Naturally ex-administration officials are apopelectic. ("'OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars,' said [a] former Bush lawyer." Sounds suspiciously like David Addington, doesn't it? Of course, what does he know about the Constitution?)

In any case, just the fact this story appeared in print may mean we'll see the results of the report...and might create more public pressure to investigate and prosecute Bush officials for their role in the illegal government activities of the last eight years.

DoJ scandal links

by: Jay Stevens

Tue Jul 29, 2008 at 15:29:26 PM MST

Goodling intervened and blocked the extension. The report said that several witnesses told investigators that her opposition was based on the "alleged sexual orientation."

One official told investigators about a conversation in which he told Goodling that he had heard the rumors that the women were lesbians. He said Goodling responded to that news "by putting her head in her hands and asking why no one had told her about this information before."

Monday's report also said that Goodling used an Internet search that included the words "gay" and "homosexual" to screen candidates and their backgrounds.

Investigators found that Goodling used the same search parameters as Jan Williams, who served as White House liaison before Goodling. The report said that Williams had used the string in late 2005 and early 2006 to research candidates for positions on a national advisory commission on violence against women.

Dan Froomkin, on the DoJers named in the department's Inspector General report for illegal hiring practices:

Who asked them to behave this way? Or, barring an explicit request, how did they come to conclude that this was what their superiors expected of them? Who twisted the Justice Department, designed to operate with a large degree of independence, into a political adjunct of the White House?  

And is it really just a coincidence that Monica Goodling, the central culprit of this latest report, held the title of White House liaison?

Patrick Leahy thinks he knows:

"The policies and attitudes of this administration encouraged politicization of the department and permitted these excesses," charged Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee. "It is now clear that these politically rooted actions were widespread, and could not have been done without at least the tacit approval of senior department officials."

The New York Times opines that current Attorney General, Michael Mukasey, "needs to get serious about punishing this sort of wrongdoing," if "he hopes to leave office with any sort of reputation for integrity..." Fat chance. Mukasey was installed to put the DoJ back together while simultaneously thwarting any investigation of its activities. That was the apparent deal with Congressional Democrats, who seem unwilling to hold anybody from the Bush administration accountable for their actions, lest Fox News say something nasty about them.

Dallas News' Rod Dreher explains why conservatives should be up in arms about this DoJ scandal:

We conservatives are big on insisting that racial and gender quotas in hiring are bad, because they substitute a false and politically correct standard for hiring, a standard that marginalizes people who are actually more capable of doing the job. I believe that. What the Bush crowd did at Justice, though, makes a mockery of conservative arguments for meritocracy in hiring. The damage this administration has done to conservatism is going to take a long time to overcome. Heck of a job, Alberto. Heck of a job.

Honestly, I haven't encountered many conservatives - especially actual, living, breathing members of the Republican party - who seem to feel that they should be subservient to any ideal that interferes with what they want to do. Blame it on Ayn Rand or whatever, but there it is.

Serving George, not the country or rule of law

by: Jay Stevens

Mon Jul 28, 2008 at 21:31:00 PM MST

Monica Goodling and Kyle Sampson were the main culprits. "What is it about George W. Bush  that makes you want to serve him?" asked Goodling, regularly, to candidates for career jobs.

As Steve Benen points out, this is the second of four reports being prepared by the DoJ's Inspector General, and that the first report "documented six years of illegal hiring practices" in the department, so it's hardly anything new. Still, it contains some egregious behavior.

Torture, pre-emptive pardons, and DoJ lawyers

by: Jay Stevens

Thu Jul 24, 2008 at 19:19:35 PM MST

The Justice Department in 2002 told the CIA that its interrogators would be safe from prosecution for violations of anti-torture laws if they believed `in good faith' that harsh techniques used to break the will of prisoners, including waterboarding, would not cause "prolonged mental harm."

Our possible pre-emptive pardons?

As the TPM report notes, this means that administration officials knew they were crossing a legal line, even as DoJers were penning the infamous Torture Memo. Of course, the very existence of the Torture Memo belies that -- why else would you need to write it, if you didn't think torture was illegal? Heck, the Nation's Stephen Gillers posited that the very shoddiness of the legal work found in the Torture Memo shows that its authors "knew what the President wanted and delivered: torture is OK if you call it something else."

You do know that lawyers can be prosecuted for writing opinions in which they give legal justification for actions they know to be illegal, right?

Does this DoJ scandal name "ring" a bell?

by: Jay Stevens

Wed Apr 23, 2008 at 06:19:06 AM MST

A former Justice Department official pled guilty to charges of accepting goodies from an Abramoff associate in exchange for department info that helped Abramoff clients.

The Abramoff associate? Kevin Ring! Geez...that name sounds so familiar...

Incidentally, you've got to think Ring's relationship with Coughlin may hint at why the Abramoff scandal has been so slow to move through Justice. It was bad enough to think US attorneys were fired for looking too closely at Abramoff's GOP connections. Now it appears Abramoff had folks in his debt inside the department itself...

On Conrad Burns' "exoneration"

by: Jay Stevens

Thu Jan 03, 2008 at 09:30:50 AM MST

I'm sure a lot of folks on the right are going to be crying foul and blaming the "liberal" media and bloggers for "smearing" Burns' character, but the truth of the matter is that Burns' activities look, smell, and feel grossly corrupt. Did the DoJ find evidence to pursue charges against Burns? Maybe not. But is there enough circumstandial evidence out there to make the electorate wonder if Burns was fit for his Senate office? Absolutely.

(For those of you with spotty memories, please puruse the facts surrounding Burns' vote on the Marianas Islands labor bill.)

Burns and his pal Leo Giocometto are hardly choir boys. In fact, I'd welcome any attempt by the state GOP or rightie bloggers to argue otherwise. I'd get in that debate any day of the week.

The truth is simple. Burns was in deep with the corrupt DC system, and his ouster from his Senate seat was a good thing, both for Montana and the country. Good riddance.

One more time, with feeling: the myth of voter fraud!

by: Jay Stevens

Thu Aug 30, 2007 at 11:55:24 AM MST

In it, Tova Andrea Wang recounts her experience working for the Congressionally created Election Assistance Committee (EAC), formed in the aftermath of the 2000 election. Wang and her bipartisan group were appointed by the EAC to conduct a preliminary investigation into voter fraud and intimidation.

After the report was submitted to the EAC, that body later released the "results" of the study:

We said that our preliminary research found widespread agreement among administrators, academics and election experts from all points on the political spectrum that allegations of fraud through voter impersonation at polling places were greatly exaggerated. We noted that this position was supported by existing research and an analysis of several years of news articles. The commission chose instead to state that the issue was a matter of considerable debate. And while we found that problems of voter intimidation were still prevalent in a variety of forms, the commission excluded much of the discussion of voter intimidation.

We also raised questions about the way the Justice Department was handling complaints of fraud and intimidation. The commission excised all references to the department that might be construed as critical -- or that Justice officials later took issue with. And all of the suggestions we received from political scientists and other scholars regarding methodologies for a more scientifically rigorous look at these problems were omitted.

So?what happened between the time that Wang's group submitted its findings, and the EAC released the report?

It's still unclear, but it is worth noting that during the time the commission was holding our draft, claims about voter fraud and efforts to advance the cause of strict voter identification laws were at a fever pitch in Congress and the states. And it has been reported that some U.S. attorneys were being fired because they failed to pursue weakly supported voter fraud cases with sufficient zeal.

We have learned that several Republican officials, including a state official, a former political appointee at the Justice Department and current Federal Election Commission member (Hans Von Spakovsky), and a Capitol Hill staffer complained about our project, particularly about my role in it. Officials at Justice were actively involved in the report throughout the process and even exerted some degree of editorial control over the new report. And it is evident from the commission's "document dump" that its Republican general counsel assumed primary control over the rewriting of the report.

(Hans Von Spakovsky, wouldn't you know, was a controversial member of Alberto Gonzalez' Department of Justice. As a member of the DoJ's Civil Rights' division, he was an advocate of anti-voter-fraud policies, including the unconstitutional Georgia voter ID bill, that helped suppress minority voting.)

Not that is should come as a surprise to anyone who's been following current events, but the Bush administration has politicized the federal government and made it a vehicle of partisanship.

Now I'm all for partisanship - in blogs, in debate, in how we select our representatives. And I agree that government should be run based on our elected representatives' philosophies, instituting programs and legislation that, in their view, best benefits the country. That's how the system should work.

However, the Bush administration has instead made the government work not for any philosophical or ideological ideals, but to act solely in the interests of the Republican party. In this case, political officials suppressed an investigative report that contradicted political rhetoric and government programs of voter intimidation that helps the Republican party win elections.

So what's worse? Larry Craig seeking blow jobs in public bathrooms, or officials abusing the power of government to intimidate U.S. citizens from exercising their basic right to vote?

Something to Toast at the GOP Convention

by: Matt Singer

Fri Jun 22, 2007 at 14:32:11 PM MST

Strangely, the Justice Department had been agitating for such a hearing for some time. One gets scheduled and Mercer runs away.

Maybe he'll come back to Montana and do his other full-time job now -- serving as U.S. Attorney for this state.

It's S.O.P. to Hold Two Permanent Jobs in DOJ?

by: Matt Singer

Thu May 03, 2007 at 10:59:06 AM MST

Here's what a DOJ flack has to say:

"Assistant U.S. Attorneys and U.S. Attorneys have been asked to assume significant roles in Iraq, DOJ headquarters, and elsewhere away from their official duty stations. This amendment clarifies that the statutory residency requirement does not preclude department personnel from working in two places if authorized by an order from the attorney general."

Patrick Fitzgerald ended up acting as a special prosecutor, a temporary position overseeing a certain investigation and prosecution.

Bill Mercer is theoretically doing two full-time jobs, overseeing Montana federal law enforcement and serving as number 3 for the entire U.S. law enforcement. Meanwhile, he's in Montana three days a month.

Is this really historically a standard operating procedure? And, if so, why would Mercer leave the U.S. Attorney position if he got Senate confirmation for the D.C. position? Is it because it would be better to have two people handling these jobs?

Paul Kiel at TPMMuckraker also tracked down some interesting insight from a reader:

Of course they're not getting two salaries -- they're each working a single full-time job, just with a wide array of distinct responsibilities that regularly require travel. The question is whether they're getting their housing and other expenses subsidized. DOJ has two different set-ups for employees on "detail" from one position to another: some have their housing, etc., paid for in the secondary location on the condition that they continue to maintain a primary residence ( i.e., they pay for a house/apartment as usual in their home city, and the government pays for housing in Washington, along with a generous per diem allowance for food that assumes the person is eating every meal in a restaurant); others don't get that treatment, on the assumption that they spend such a large majority of time in one city or the other that they don't need to maintain two residences. The first is a much sweeter deal, for obvious reasons -- it would be interesting to know which kind Mercer and the others are getting. Saying that they're not getting double salary may be a dodge to hide the fact that their total compensation is in fact much higher than it would be if they were staying at home and attending to their duties as US Attorneys on a full-time basis.

Tester Calls for Mercer's Resignation

by: Matt Singer

Wed May 02, 2007 at 13:28:07 PM MST

Fresh in my inbox:

This morning, the Washington Post reported that William Mercer was violating federal law by serving both as Montana's U.S. Attorney and as a high-ranking official at the Department of Justice. Instead of abiding by federal law, Mercer had the law changed. 

Today, Sen. Jon Tester issued the following statement:

"For months, I gave Bill Mercer the benefit of the doubt that he was shooting straight with me and with the people of Montana.  Mr. Mercer has been given every opportunity to do right by the people he represents; he has passed on that chance too many times.  Mr. Mercer was operating outside federal law, so he had the law changed.  That might work in Alberto Gonzales' Justice Department, but it's not how we do business in Montana.  He should resign his post as Montana's U.S. Attorney immediately."

How Could Gonzales Be So Sure Mercer's Double Dipping Was Legal?

by: Matt Singer

Wed May 02, 2007 at 11:39:08 AM MST

They made it legal after the fact. See, you don't have to be a resident of Montana to be U.S. Attorney of Montana if the AG wants to put you on another assignment as well.

Theoretically, then, Bill Mercer could be U.S. Attorney for every district in the country -- that might solve the Bush Justice Department's loyalty problems. We'll just have three prosecutors focusing solely on BS vote fraud cases.

By the way, I think it's damn impressive that Bill Mercer actually shepherded legislation to retroactively legalize his own activities while working as the acting number 3 in a Department whose entire mission is to enforce the law of the United States of America.

Nice work, Billy.

Bill Mercer Makes the Big Paper

by: Matt Singer

Tue Apr 10, 2007 at 10:50:42 AM MST

Nothing to see here folks.

Must-Read on Bill Mercer

by: Matt Singer

Wed Mar 28, 2007 at 13:52:19 PM MST

Mercer Subpoenad, Told to Drop One Job by Senators

by: Matt Singer

Wed Mar 21, 2007 at 10:21:14 AM MST

Both DOJ and Rep. Rehberg, predictably, are saying that it isn't Mercer's fault that he hasn't been confirmed by the Senate for his role as the #3 at Justice. Strangely, though, that's what happens when you're in the leadership of a Department coming under Congressional scrutiny for abusing discretion.

The easiest way out of this is for Bill Mercer to withdraw his name for the #3 role at Justice. My guess is that the Senate won't confirm anyone tainted by this scandal -- especially since AG Gonazales' replacement (since I do think he will be replaced) will probably want a new team. With less than two years until a new U.S. Attorney gets appointed for Montana anyways, this route promises the fewest headaches and the most work actually getting accomplished.

Of course, that hasn't exactly been DOJ's goal as of late, has it?

The Bill Mercer Cameos

by: Matt Singer

Tue Mar 20, 2007 at 15:17:40 PM MST

Talking Points Memo is enlisting grassroots support to comb through 1000s of pages of DOJ material.

What are they finding about our U.S. Attorney?

From: Sampson, Kyle
Sent: Thursday, June 01, 2006 5:25 PM
To: Mercer, Bill (ODAG)
Cc: Elston, Michael (ODAG)
Subject: San Diego Immigration Enforcement

Importance: High

Bill, this relates (certainly in the AG's mind) to the email I just sent to Elston (cc to you) re our pressing need to, in the very short-term, generate some deliverables on immigration enforcement, and in the long-term, insulate the Department from criticism by improving our numbers. AG has given additional thoughts to the SD situation and now believes that we should adopt a plan -- something like the following:

- Have a heart-to-heart with Lam about the urgent need to improve immigration enforcement in SD;
- Work with her to develop a plan for addressing the problem -- to include alteration of prosecution thresholds; additional DOJ prosecutors; additional DHS SAUSA resources; etc.
- Put her on a very short leash;
- If she balks on any of the foregoing or otherwise does not perform in a measurable way by July 15 [my date], remove her.
- AG then appoints new USA from outside the office.

[...]

Also, on page 48 there is a mail from Mercer to Sampson about the replacement of USA's, mentioning a plan pushed by "WHCO" in 2004.

[...]

E-mail from Paul Charlton to Bill Mercer:

"Bill - media now asking if I was asked to resign over leak in Congressman Renzi investigation. -Paul"

[...]

Internal emails from Paul Charlton to Bill Mercer (from 12/13-20/2007 about what to say to media and the "way forward." (No discussion, just references to talking by phone.) Dan Bogden instructed to call Bill Mercer at Las Vegas office on 12/19/2006. (Lots of duplicate messages.)

[...]

Two internal emails asking Bill Mercer to call Dan Bogden (January 3 & 5 2007)

[...]

Internal email from Regina Schofield to Bill Mercer asking for advice on how to keep Margaret Chiara from calling. Item 2 is redatcted. (January 9, 2007)

[...]

Bill Mercer asks Linda E. Long to print out David Iglesias's extremely gracious good-bye letter. Iglesias's letter gives his new email address DCIGLESIAS@earthlink.com (internal email)

Page 19
Bill Mercer's appt. book for June 5, 2006, showing only a meeting between Mercer, Kyle Sampson, and Jeff Taylor with the title (Immigration Enforcement/San Diego USAO

Page 20
Totally unidentified printed notes
Goals for Mercer's firing calls to Bogden and Charlton (basically, be nice to them but let them know it's now someone else's turn), critique of the effect of the calls (basically, we were too nice).

[...]

1-1

Page 41, in an email (June 8, 2006) from Bill Mercer to Michael Elston, Mercer seems to be making a joke about firing Lam for incompetence: "What that Carol Lam can't meet a deadline or that you'll need to interact with her in the coming weeks or that she won't just say, "O.K. You got me. You're right. I've ignored national priorities and obvious local needs." Etc. Mercer says something about "these humorous missives."

[...]

Part 11-5 page 5 in an e-mail between Bill Mercer and Kyle Sampson. Responding to Sampson's suggestion that somebody "woodshed" Carol Lamb, or that the AG order 20 attorneys dedicated to only immigration cases, Mercer says, "There are good reasons not to provide extensive resources to SD Ca."

Does the whole performance hand-waving tie into them trying to strangle C.Lam's corruption investigation?

An Interesting Form of Sympathy

by: Matt Singer

Sun Mar 18, 2007 at 09:50:29 AM MST

Mercer does not oversee U.S. attorney matters and was in Montana while some decisions were being made, Roehrkasse said. As for Mercer's conversations with the attorneys, Roehrkasse said, he was just being supportive.

"Because he did not supervise the U.S. attorneys, he had no basis to discuss with them their specific reasons for their dismissal, and he focused on being sympathetic," Roehrkasse said.

Now, I suppose it is possible that these U.S. Attorneys committed a felony and lied to Congress, but I have a tough time buying that, absent any real evidence.

Fortunately, all three of our members of Congress are keeping their eyes open for law-breaking.

Here's my guess -- if Gonzales fall, as seems likely, the odds of Mercer being confirmed as #3 at Justice become very slim. Even if Gonzales doesn't leave the AG office, Mercer remains another potential fall guy for having "inappropriate" conversations.

And if he is refused Senate appointment to the #3 spot, how likely is he to stay in his current role?

A Senate denial over a hiring scandal is probably going to be a pretty big black mark over Mercer's career. If it happens, he might as well cash in and head to the private sector.

Will Bill Mercer Fall Over Prosecutors Scandal?

by: Matt Singer

Tue Mar 13, 2007 at 10:59:16 AM MST

I'm following the story as much as I can at TPM, which has done great work on the issue. As they are making clear, heads are going to roll over this one.

At least in some way, one of those heads is Bill Mercer, I would think. He's #3 at Justice, but he hasn't been confirmed for that position by the Senate yet. Prosecutors are on record saying that he fired them in order to pad the resumes of political appointees. The public justifications being used to fire other U.S. Attorneys have actually been leveled at Mercer by none other than a federal judge in his jurisdiction, who has called for Mercer to resign (a rather unusual step, I might add).

Here's the thing, if the Senate confirms him to the more senior Justice position, I think he has to leave his current (second) job as U.S. Attorney for the District of Montana. Call me crazy, but with the Senate up in arms over the DOJ's handling of this, I don't see him getting confirmed. So that's probably not his way out of being U.S. Attorney here in Montana. More seriously, though, as the digging goes deeper, Mercer might be an easy person for the Bush Administration to cut loose in an effort to protect Gonzales and Miers. He might also end up getting ousted as part of a larger purging at the top of DOJ to finally get past this.

Or, if Gonzales resigns or is (imagine this) impeached, a new A.G. may clean out the department and ask others involved in this escapade to tender their resignations.

Predicting the Bush Administration is never easy. They may simply lock up again. Unfortunately for them, Dems have Congress now and locking up will be tougher than it was before.

Being a U.S. Attorney Really is a Lot Like an Internship -- Just Resume Padding

by: Matt Singer

Fri Mar 09, 2007 at 14:22:33 PM MST

Two of the fired U.S. attorneys, Daniel Bogden of Las Vegas and Paul K. Charlton of Phoenix, testified before a subcommittee of the House Judiciary Committee on Tuesday that Mercer told them they were dismissed to make room for others and not because of performance problems.

Bogden testified that Mercer told him the administration had a "very short, two-year window of opportunity concerning the United States attorney positions" and that "this would be an opportunity to put others into those positions so they could build their résumés and get experience as a United States attorney so that for future possibilities of being federal judges or other political type positions, they could better enhanced to do so."

Mercer, Charlton testified, told him he was being asked to resign so other individuals would have the opportunity to "touch base" as U.S. attorney before the end of the president's term.

Not so much for the Bush Administration, though. See, they've got two years, so now the Department of Justice's job is resume padding for the Young Republicans.

Sen. Arlen Specter is saying that it may be time for a new Attorney General. I think it is time for Bill Mercer's jobs performance (yeah, that's supposed to be jobs plural) to be reviewed.