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It may be that this is a nonproblem that we are discussing. I do not think we can discuss it very well until we write it out. We have not written it out yet. It may be that, once we have written it out, I will agree with you.
Senator METZENBAUM. I think you ought to reconsider the statement saying that if you had to have this you would not want the bill at all.
I do not come forward with any preconceived idea. I walked into this hearing not even thinking about this subject, but as we talked about it and it developed, it does give me some concern. I think we ought to be talking further about it.
General BELL. I think we are trying to accomplish the same thing. Oftentimes you gain when you articulate things in writing.
Senator METZENBAUM. Let me ask you this. Suppose an individual who files a complaint before a disciplinary proceedings needs a lawyer and has some court costs, or some deposition costs, whatever the case may be. It is contemplated that those costs will be covered if he or she prevails or she did not prevail? Has any thought been given to the subject?
Mr. JAFFE. In the administrative proceeding?
Senator METZENBAUM. Yes.
Mr. JAFFE. I do not recall that that was discussed. We could consider it.
General BELL. It was not discussed yesterday.
Senator METZENBAUM. I suggest that at least it be brought on the table and thought about and discussed, hopefully with my staff.
Mr. JAFFE. Very well. But that would introduce a factor which would have some bearing on whether you could have both simultaneously and other considerations.
Senator METZENBAUM. The question does not mean that I am presupposing the answer.
Mr. JAFFE. I understand.
General BELL. I think it would not be a bad thing to put a lawyer in the matter. You can discipline a lawyer. You can make him sign a rule 11 certificate, and you eliminate frivolous cases; whereas the pro se type matter gets to be a problem.
So, I think, other than giving a person a lawyer-which we like to do in our country-there could be another advantage to it. So, we will look at that.1
Senator METZENBAUM. I think at least part of the reason for our preliminary hearing is to open these concerns and raise the issues. Mr. JAFFE. Senator, I would like to correct a statement I made before in case it was misunderstood.
I said, in outlining an administrative procedure that we had been considering I indicated that judicial review from the Civil Service Commission to the courts by the person who was aggrieved was under consideration.
The Attorney General has already expressed the view that he would favor judicial review.
Senator METZENBAUM. Judicial review by
1 The Department disciplinary proceeding amendment at p. 49 does not provide for attorney's fees.
Mr. JAFFE. At the person's instigation. The employee has that right.
Senator METZENBAUM. One of the questions my staff has raised is what kind of sanctions or procedures could be used with respect to presidential appointees and ex-employees, since no administrative proceeding is possible against them? Then, what is your view with respect to the question of whether the individual would have the right to sue either the Government or the individual?
General BELL. That is the same category of people who have retired. You have a substantial number of people that you could not reach with an administrative proceeding: retired people, somebody who resigned, Presidential appointees. We never resolved that yesterday.
At one point, Irving Jaffe had the idea that we would make public findings. It would be like a public censure. That would be one thing you could do. You could go ahead with some commission and just make public what happened. That could include a reprimand.1
But you could not do something like discharging people or docking their pay unless you wanted to dock their pension, and I expect that would get too complicated to pass. We did not say anything about that. We have not thought, really, of a good answer to that.
Senator METZENBAUM. I think it is a problem. Public censure or reprimand would be significant, as I see it, if you were talking about a high-level, high-profile individual. In most of the cases, you are talking about low level, low profile people, and the very best you might get is a 1-inch item in some newspaper somewhere which would not be very significant.
General BELL. Right.
Senator METZENBAUM. I think one question I would like to propose to you in those cases where the person had left the Government is whether or not in those instances there ought to be an election of remedies that the person would have a right to sue the Government or the individual.
General BELL. That is what we are thinking about.2
I know that in one investigation that we just released, most everyone in that matter has already left the Government.
Senator METZENBAUM. How many criminal prosecutions have been brought for violations of constitutional rights such as Cointel, wiretapping, et cetera, done by the Government? We know of the Kearney matter, but we do not know of any others.
General BELL. None that I know of. There might be some I do not know about. The only one I have brought since I have been Attorney General is the Kearney matter.
I looked at the Cointel, and the statute of limitations had run. Some of those Cointel matters are not crimes. Whether you would agree with Cointel or not is a different question, but you have to find a crime. The last I saw, there were 291 Cointel people that were being notified that they may have lost a right. But the people who did that were not necessarily committing crimes. The Cointel thing had been wound up by the time I got to Washington.
1 See Department amendment § 7803 at n. 50.
2 See Department answers to subcommittee questions at p. 119 in the appendix.
I have a sufficient number of problems without going back opening up some that have been closed.
The FBI break-in, I brought one.
Senator METZENBAUM. Mr. Jaffe, do you know of any?
Mr. JAFFE. No; 1 cannot recali any; but that would not normally come within the province of my activities since we handle no criminal
When I consulted with the Criminal Division and the Civil Rights Division, it is possible that they can retrieve this information. But they have it indexed only under the statute that they may have proceeded under.
Senator METZENBAUM. I cannot believe that there
Mr. JAFFE. We did have the Collinsville case in which indictments were returned against either six or eight defendants-I am not surewho were Federal drug enforcement agents. They were indicted, tried, and acquitted.
Senator METZENBAUM. In that case they brought civil, administrative proceedings at the same time they brought criminal proceedings. Mr. JAFFE. Prior to the criminal proceedings.
Senator METZENBAUM. Prior.
Mr. Jaffe, will you have them figure out their own retrieval processes and advise the subcommittee in writing what other cases, if any, have been brought with respect to prosecutions other than the Kearney and the Collinsville cases, either under Cointel, wiretapping, or any other similar kinds of procedure? I think the record ought to show whether there were any more than these two instances. It is somewhat indefinite at this point. I think it probably ought to be searched out.
Mr. JAFFE. I will try. The difficulty is that even the retrieval system that I understand is in place does not separately identify Federal employees, for example; so that, even if we were to determine what statutes might be applicable, and we drew all the files on that, we would have to go through every one to see if they were, at the time of the indictment, either current or former Federal employees. General BELL. We will do our best to get that. Senator METZENBAUM. I appreciate that. [The information referred to follows:]
STATISTICS ON FEDERAL CIVIL RIGHTS PROSECUTIONS OF FEDERAL EMPLOYEES AS OF FEBRUARY 1978
The following is a list of criminal prosecutions undertaken by the Civil Rights Division and the Criminal Division of the Department of Justice over the past ten years against federal employees for criminal conduct amounting to violations of another's civil rights.
United States v. Bloemker, et al. (5-CR-73-80, S.D. Ill. August 24, 1973), a case involving 10 narcotics agents assigned to the St. Louis office of the Office of Drug Abuse Law Enforcement, resulted from a series of entries into private homes which became known as the Collinsville Raids. The agents were searching, without warrants, for members of a suspected drug ring when they broke into a number of wrong houses. All agents were acquitted after trial. The statutes involved were Title 18 U.S.C. §§ 242, 371 and 2236.
United States v. Goldston (CR. No. 77-138, W.D.N.Y. July 28, 1977), involved an agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department in Buffalo, New York who was accused of assaulting and beating a hand-cuffed teenager in the head with his service revolver. The defendant pled nolo contendere and was sentenced to an $800 fine and 1 year of probation. Goldston was also dismissed by the Alcohol, Tobacco and Firearms Division.
United States v. Kearney (CR. No. 77-245, S.D.N.Y. April 7, 1977), involves a former FBI supervisor in the Bureau's New York office for violation of statutes proscribing mail interception (18 U.S.C. § 1702) and wiretapping without proper authorization (18 U.S.C. § 2511) as well as conspiracy to engage in both types of conduct. This case is pending. United States v. Bartell (Cr. No. D.N.J. June 14, 1974), involved an Alcohol, Tobacco and Firearms agent who was attempting to purchase illegal guns from an individual who was proving reluctant to sell them. Accordingly, the agent had two informants beat the victim to convince him to make the gun sales. The victim then made the sales and the agent arrested him. The agent plead guilty to violating 18 U.S.C. § 241 and was sentenced to a five year suspended term with four years of probation.
United States v. Wade, et al. (Cr. No. W.D. Tex. March, 1976), involved counts against two Customs patrol officers on conspiracy and endeavoring to intercept communications of the targets of a Custom's investigation. Charges against one officer were dismissed on procedural grounds after jeopardy had attached; the second officer was convicted on both counts and given concurrent sentences of two years with execution suspended in lieu of five years unsupervised probation. The statutes involved were 18 U.S.C. §§ 371 and 2511.
General BELL. We have a number of cases we brought against State police officers, for example, in civil rights cases. I have brought some of those indictments since I have been here and have had some convictions.
Mr. JAFFE. And you understand, Senator, that, in exercising a prosecutive judgment as to whether to institute a criminal proceeding, if for example, the agent acted under a warrant which was later declared to be invalid, under existing criminal law-even in title 18 now that reliance would be a complete defense; that is, the fact that he had one. So, even if we thought he had acted improperly or had used poor judgment, it would not be sufficient as a proper exercise of prosecutive judgment to have indicted him. He has so many defenses.
Senator METZENBAUM. One of the concerns we understandably would have is whether or not there has been a reluctance to move forward on a criminal basis.
Senator THURMOND. Mr. Chairman, I regret that I cannot stay for this hearing. I am on this Criminal Code matter as a ranking member of Judiciary. I just wanted to explain that to you and to the Attorney General.
Senator METZENBAUM. Thank you for stopping by, Senator.
Mr. JAFFE. We will try, Mr. Chairman, to get all the information we can. I doubt that we could get it, but I would like to get to you any information where we considered seriously prosecution and then did not take it.
Senator METZENBAUM. Mr. Jaffe, these are such unusual cases where the Government is prosecuting its own people that I cannot believe we cannot find it, whether it is in the retrieval system or in John Smith's head-how many John Smiths there are, I do not know.
One of the thrusts of my question comes back to my original inquiry concerning the matter of the agency judging its own people. What I am concerned about, the thrust of my question, has to do with whether or not there have been a host of instances in which there may or may not have been basis for prosecution, but that somebody leaned over backwards because he did not want to prose
cute a part of the team. It is the kind of thing, frankly, that the Attorney General has had the courage to go forward in the prosecution of the Kearney case, but certainly has been subjected to unbelieveable pressure as to what a terrible thing he is doing because he is prosecuting somebody in the FBI.
What I am asking about is, how many other cases have there been where it was questionable as to whether somebody did not have the courage of their convictions as does the Attorney General to move forward in that area?
Mr. JAFFE. Senator, I would merely like to say this, since you mention the reluctance to prosecute a member of the team. My own experience that deals with civil fraud, for example, frequently involves bribery, antikickback, or anything which involves a Government employee who is acting in concert, say, with a Government contractor or with someone else in those cases, invariably we will give immunity to the person who extended the bribe or to the contractor because we think it more important to get after the Government employee than it is to retrieve the money from the person who extended the bribe.
Our thinking at least-and I have observed it in Government in all the years I have been there is that, when it is a Government employee who is involved in wrongdoing, it is more important to reach him for the integrity of the Government than it is to reach his coconspirator who is outside the Government.
I merely offer you that for the way we have traditionally acted in those limited areas in which I have participated.
Senator METZENBAUM. Then I am certain that your investigation of the records will provide some supporting indication
Mr. JAFFE. Those would not be the constitutional wrongs, which I understood your question was addressed to.
Senator METZENBAUM. That is correct.
General BELL. We had plenty of prosecutions of Government employees, but not for constitutional wrongs.
Senator METZENBAUM. There are various organizations that represent Federal employees. Have any of them asked for or been consulted about this legislation?
General BELL. There has been some talk about them.
Mr. JAFFE. I think there has been some talk, but I did not participate in any conversation with representatives of the employee unions. General BELL. Let me ask Patricia Wald about that. Would you answer that, Ms. Wald?
MS. WALD. They are certainly aware of the legislation, Mr. Chairman; we have had some phone conversations with them. I do not think they have been asked at this point to come down on one side or the other or to express themselves. They have not come to us and expressed any particular views with regard to the legislation.
Senator METZENBAUM. But all of the unions or labor organizations representing Federal employees are quite aware that this legislation is pending?
MS. WALD. Certainly the major ones are, Mr. Chairman; that is right.
Senator METZENBAUM. Is there any hard evidence that Federal employees have been inhibited in their proper activities by suits?