Note:The main body of material below was largely written prior to the Attorney General Eric Holder’s October 2009 announcement of the creation of a Claudia J. Flynn Professional Responsibility Award. That matter is addressed in the October 24, 2009 Addendum. It is also addressed in a June 4, 2011 Truth in Justice item styled “Willful Ignorance at the Department of Justice, and its Consequences.” The material below continues to read as if the page is password protected.But the password protection was eliminated in 2010.
The materials on this page relate to Claudia J. Flynn, a Department of Justice attorney who passed away in 2006.There are some references to Ms. Flynn in materials that are made available to the public (as in the December 23, 1997 letter to Michael R. Bromwich, the March 2, 1998 letter to Attorney General Janet Reno, the August 3, 1998 letter to Lee J. Radek, November 9, 1998, and January 22, 2000 letters to H. Marshall Jarrett, my December 17, 1999 letter to Robert J. Meyer, and the December 26, 1999 letter to Janet Reno (as well as Deputy Attorney General Eric Holder)).There was no mention of Ms. Flynn on the narrative materials on the publicly available prosecutorial misconduct pages and the items of correspondence that principally involve Ms. Flynn were available only with a password.The materials are maintained this way because Ms. Flynn is deceased and because she played a very small or negligible role in the matters addressed in the prosecutorial misconduct pages.But, for reasons discussed below, it may not be possible to adequately address all important issues raised on these pages without reference to Ms. Flynn.
Among other items, Section B.1 of the main Prosecutorial Misconduct page (PMP), as well as the profile pages on Bruce C. Swartz and Robert E. O’Neill, give great attention to the Independent Counsel actions regarding the testimony of Supervisory Special Agent Alvin R. Cain, Jr. (It is also the subject of an August 2008 treatment on powerlineblog.com –and, following Robert E. O’Neill’s nomination for the position of United States Attorney for the Middle District of Florida a July 4, 2010 item on powerlineblog.com and a July 11, 2010 item on truthinjustice.org.)In broad summary, Bruce C. Swartz and Robert E. O’Neill pressured Agent Cain into providing testimony that was intended to be literally true and that would seem to directly contradict the testimony of the defendant Deborah Gore Dean about her calling Agent Cain at the end of April 1989 to complain about the treatment of John Mitchell in the HUD Inspector General’s Report.In closing argument, O’Neill would heavily rely on Agent Cain’s testimony and its apparent contradiction of Dean in provocatively asserting that Dean had lied about calling Cain.In fact, Agent Cain remembered the call.But Cain’s testimony was crafted, albeit imperfectly, to mean only that Cain did not remember Dean’s calling him on a particular date and hence to be literally true.
When in post trial proceedings, the defendant presented evidence to demonstrate that she had made the call, Independent Counsel attorneys did not advance their literal truth rationale to the court.Had they done so, the court might well have dismissed the indictment and suggested that Independent Counsel attorneys be sanctioned for the suborning of perjury.Independent Counsel attorneys instead endeavored to cover up their actions by maintaining that the agent’s testimony proved that the defendant’s testimony was false.
By written communications to the probation office (and probably oral ones as well), Independent Counsel attorneys also sought to have Dean’s sentencing level increased such that she would serve an additional six months in prison for lying about the call to Agent Cain – even though those attorneys knew with absolute certainty that Dean had not lied about the call.This effort may have been partly or entirely an aspect of an aggressive strategy in covering up the way Agent Cain had been coached to enable Independent Counsel attorneys to lead the jury to believe things they knew to be false.In any case, there is reason to believe that in deceiving the probation officer and the court in an effort to conceal the nature of Independent Counsel actions regarding the eliciting of Cain’s testimony, Independent Counsel attorneys engaged in a conspiracy to obstruct justice.And regardless of whether such actions constituted a crime, the effort to increase Dean’s defendant’s sentence for lying about the call when Independent Counsel attorneys knew she had not lied was a heinous act. The effort was initially successful and the probations officer did recommend an upward adjustment to Dean’s sentencing level for lying about the call.
Claudia J. Flynn had no known role in the prosecution until after the trial.But subsequent to the trial she was involved in representing the Office of Independent Counsel regarding sentencing issues.Under the supervision of Bruce C. Swartz, Flynn signed the Independent Counsel’s sentencing memorandum of February 16, 1994, referencing (at 15) the probations officer’s recommendation of a 2-point upward adjustment for perjury during the trial.And she appeared with Swartz at the February 23, 1994 hearing to address sentencing issues, evidently intending to argue that Dean should have her sentence increased for lying about the call to Agent Cain.Ultimately, Flynn did not make such argument.The court did not wish to hear argument on the issue indicating that it believed Dean may have made the call.As discussed in the various places (including the May 31, 2008 document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge,” other aspects of the court’s ruling indicated that it in fact believed that Dean had made the call.
Assuming that Cain had told Independent Counsel attorneys that he remembered the call, it is impossible to believe that a reasonably intelligent person in Flynn’s position would not be aware of such fact – and this would be so whether or not Flynn was present when Independent Counsel attorneys rejoiced in the office over the fact that the coaching of Cain had not been revealed on cross-examination.Thus, assuming Independent Counsel attorneys did engage in a conspiracy to obstruct justice in responding to Dean’s allegations concerning Cain’s testimony, Flynn was presumably involved in such conspiracy.In any event, as discussed, she appears to have been involved in what was certainly heinous conduct.Flynn failed to avail herself of the opportunity to correct me on my interpretation of the matter in response to my letters of June 10, 1997, July 6, 1997, and August 8, 1997, which letters are made available below.
Also available below is my letter of October 10, 1997 to Acting Assistant Secretary for the Criminal Division John C. Keeney, in which I brought to Mr. Keeney’s attention the facts related to Ms. Flynn’s involvement in the Dean case and suggested that her conduct in such matter indicated that she was not fit to serve in her position as Chief of Staff to the Assistant Attorney General.Neither Keeney, nor any other Department of Justice official responded to that letter. And no Department of Justice official made reference to Flynn in correspondence to me regarding any of the items mentioned in the first paragraph above.
The above facts raise a question as to whether it is possible to adequately address the conduct in the Dean case, and the Department of Justice’s actions regarding such conduct, without discussion of Flynn’s role.But there exists an additional fact that increases the difficulty of doing so.
Section B.8 of the Prosecutorial Misconduct page, and the profile page on Jo Ann Harris, address the Professional Responsibility Advisory Board, which was supposed to be an important feature of Attorney General Janet Reno’s effort to address prosecutorial abuses that received such attention in the Legal Times article discussed in those places.So far as I could determine by FOIA requests, as of approximately 1999, almost nothing had been done regarding that board.
According to the Washington Post October 25, 2006 report of Ms. Flynn’s death, however, in 2000, Flynn was appointed as the first permanent director of the Professional Responsibility Advisory Office.Presumably, in accordance with DOJ regulations, the appointment was made by Deputy Attorney General Eric Holder.Thus, the question arises how an attorney who appears to have been involved in prosecutorial misconduct of a nature that would shock the conscience of most observers could be appointed to such position, especially when the nature of the conduct, and the attorney’s involvement with it were repeatedly brought to the attention of Department of Justice officials in a position to raise an issues with such appointment.
The answer presumably is that no one paid much attention to the allegations in the correspondence referenced above.But the very failure to pay much attention to well-document allegations is an important part of the story of what Section B.8 of PMP suggests have been the Department’s general deficiencies in addressing prosecutorial abuse issues.Hence, it is not clear whether that story can be told without attention to the Flynn appointment.
For the present, however, the attention to Ms. Flynn will be kept password protected with the password distributed only where warranted.
(October 24, 2009)
1.Claudia J. Flynn’s actions in the Dean case were taken under the immediate supervision of Deputy Independent Counsel Bruce C. Swartz, nowDeputy Assistant Attorney General, and Mr. Swartz is presumably the persons most knowledgeable concerning the facts surrounding Ms. Flynn’s actions (or intended actions).By letter dated August 14, 2009, a redacted copy of which is posted below and which is available by means of this link, I advised Mr. Swartz of this password protected page, providing him a user name and password with which to secure access.In the letter, I explained the circumstances that caused me at that point to have given limited attention to Ms. Flynn in the publicly available prosecutorial misconduct materials, but that also caused me to reconsider that course.I explained that it did not seem possible to believe that in February 1994 (at the time Ms. Flynn appeared in court to argue that Deborah Gore Dean should have her sentenced level increased for lying about the call to Agent Cain), Ms. Flynn was unaware that Dean had in fact called Agent Cain.I added:“But if you believe you have a sound basis for persuading me that the subject was unaware of such fact, I urge you to explain that basis to me.”As of the July 13, 2010, Mr. Swartz has not responded to my letter.
2.On October 22, 2009, Attorney General Eric Holder announced the creation of the Claudia J. Flynn Award for Professional Responsibility.The creation of the award provides additional reason why materials related to Ms. Flynn’s conduct in the Dean case should eventually be made public.A related matter involves the temporary appointment on the same day of Raymond N. Hulser to be acting chief of the Public Integrity Section.As explained in Section B.8 of the Main Prosecutorial Misconduct page, Raymond N. Hulser is the attorney who assumed responsibility for the Dean case after the departure of Robert J. Meyer.That section also indicates that Mr. Hulser apparently took affirmative steps to cause the Court not to treat the pending misconduct allegations raised by Dean, which included allegations that Independent Counsel attorneys undertook to deceive the courts in responding to the earlier allegations of misconduct.As discussed in many places (and as somewhat exemplified in the Bruce C. Swartz profile) it does not seem possible for a reasonable person to believe that Independent Counsel attorneys did not attempt to deceive the courts in responding to Dean’s earlier allegations.And it is very difficult to believe, if not in fact impossible to believe, that Hulser was not aware of such efforts to deceive the courts when he sought to cause Dean’s allegations to go unaddressed.Assuming Hulser was aware of the earlier efforts to deceive the courts by Swartz (and it is important to keep in mind that certain other those efforts may have involved criminal conduct), rather than attempting to cause issues raised by Dean to go unaddressed, Hulser should have recognized an independent responsibility to bring such matters to the attention of the court whether or not the matters had been raised by Dean.Thus, his appointment as acting chief of the Public Integrity Section raise incongruities akin to those raised by Flynn’s appointment as head of the Professional Responsibility Advisory Board and naming a professional responsibility award after her.
3.I or others may eventually give some attention to the incongruity of a Department of Justice award for professional responsibility irrespective of its association with Ms. Flynn.It is rather akin to an award to a government official simply for being honest.In everyday life, among many persons regarded as honest, some might be deemed more honest than others.But in the case of federal prosecutors, for example, there are certain rules that they are expected to obey and if they fail to do so they should be disciplined or prosecuted.But there is no evident scale by which one prosecutor might be more honest or more professionally responsible than another.The Department of Justice’s job is to ensure that all attorneys behave in the correct manner in every instance, not to single out for awards individuals who behave correctly in circumstance where his or her colleagues would not.
4.Although I endeavored to keep the materials on this page password protected from the time of their creation, for a period that included June 16, 2009, I had inadvertently failed to implement the password protection.And during the period while the page was not password protected, one or more search engines created copies of it to be maintained as “cached” pages.Thus certain search terms could lead on this version of the page, which was then termed “Password Protected 3.”For example, a July 14, 2010 Yahoo search for “’Claudia J. Flynn’” yielded the cached version of Password Protected 3 as the eight result.The fact that the key material on the page is available whether the page is password protected militated against continuing to keep the material somewhat confidential.