TESTIMONY OF THE SCHILLER INSTITUTE SUBMITTED TO THE COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE
JULY 13, 1998


by The Schiller Institute


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On June 15, 1998, Attorney General Janet Reno sent a letter to Rep. Henry Hyde, chairman of the House Judiciary Committee, presenting the views of the Department of Justice regarding H.R. 3396, the "Citizens Protection Act of 1998" now pending in the House. As of this date, H.R. 3396 now has over 200 co-sponsors.

Attorney General Reno emphasized to Chairman Hyde that "the Department is committed to ensuring that Department attorneys and other employees maintain the highest ethical standards." The Attorney General explained: "The Department has in place a formal disciplinary system administered by the Office of Professional Responsibility (OPR)," and she described how the Department has more than doubled the number of attorneys in OPR since 1993, as well as outlining various other measures taken by the Department.

From this flowed the Attorney General's conclusion: "Additional, duplicative disciplinary authority over the public servants of the Department of Justice who devote their efforts to the rule of law is unwarranted and unnecessary."

At her weekly press availability on June 18, the Attorney General was asked about the Citizens Protection Act of 1998, and she responded: "I think the sponsors of this bill are trying to solve a problem that really doesn't exist."

We will limit our response here to citing three of the most egregious cases of gross prosecutorial misconduct -- which remain unredressed to this day. These three cases, without more, absolutely belie the Attorney General's claims that additional oversight over the Department is "unwarranted and unnecessary," and that H.R. 3396 addresses "a problem that really doesn't exist."

These are:

(1) the Lyndon LaRouche case;

(2) the targetting of African-American elected officials, known as "Operation Fruehmenschen;" and

(3) the John Demjanjuk case.

These three cases were the subject of two days of public hearings held in Tysons Corner, Virginia Aug. 31-Sept. 1, 1995, by an independent commission initated by a group of current and former elected officials and prominent civil rights leaders. The proceedings of these "Independent Hearings to Investigate Misconduct by the Department of Justice" have been made available to all Members of the United States Senate and House of Representatives. Following are brief summaries of these three cases.


- The LaRouche Case -

Former Attorney General Ramsey Clark has stated that the case of Lyndon LaRouche and his associates ``represented a broader range of deliberate cunning and systematic misconduct, over a longer period of time, utilizing the power of the federal government, than any other prosecution by the U.S. government, in my time or to my knowledge.''

In 1988, U.S. District Judge Robert Keeton of the District of Massachusetts found ``institutional and systemic prosecutorial misconduct'' during the federal trial of LaRouche and others in Boston. That prosecution ended in a mistrial in May 1988 after almost four years of proceedings -- after which the Justice Department moved the LaRouche prosecution to a venue considered much more favorable for government prosecutors: the federal court for the Eastern District of Virginia, sitting in Alexandria.

Indictments and prosecutions were rushed through in Alexandria in two months, with the government's case relying heavily on the failure of publishing companies operated by associates of LaRouche to repay loans given by political supporters. The inability to repay lenders and other crediters was the consequence of an unprecedented involuntary bankruptcy proceeding initiated by the Justice Department against those companies in 1987, initiated in an ex parte, in camera proceeding.

Two and one-half years later, after the convictions and imprisonment of Lyndon LaRouche and several associates, U.S. Bankruptcy Judge Martin V.B. Bostetter dismissed the government's bankruptcy petitions. Judge Bostetter found that federal officials had acted in ``objective bad faith'' and that they had perpetrated a ``constructive fraud on the court,'' when they illegally put the three publishing companies into involuntary bankruptcy.

This is but one example of numerous categories of prosecutorial misconduct in the LaRouche cases. There are six volumes of evidence, on file with the Fourth Circuit U.S. Court of Appeals in Richmond, Virginia, cataloguing the massive criminality by the Department of Justice, in its 1983-1989 drive to destroy the political movement founded by Mr. LaRouche. This includes withholding of exculpatory evidence, suborning perjury and witness tampering, collusion with private parties, and illegal leaks from prosecutors to the news media.

On July 20, 1993, Mr. LaRouche's attorneys made the first of a serious of requests to Attorney General Reno, asking for an internal Justice Department review of the misconduct in the LaRouche case. Such a review has never been conducted -- and inquiries about the LaRouche case are generally referred to the same units in the Department's Criminal Division which were responsible for this travesty in the first place.

If existing Department of Justice internal oversight procedures are sufficient and adequate, why has there been no action taken against those responsible for the misconduct which pervaded the LaRouche prosecutions?


- African-American Elected Officials -

"Operation Fruehmenschen" was the FBI's own designation for the Justice Department/FBI campaign to frame-up, jail, and drive from office, hundreds of African-American elected officials, because, in the words of one FBI agent, high ranking officials at the Bureau believed that ``black officials were intellectually and socially incapable of governing major governmental organizations and situations.''

Operation Fruehmenschen was launched by no later than 1977. Detailed testimony, including the sworn statement of the FBI official, from which the above quote is taken, was presented to the House of Representatives in Jan. 1988, at the behest of Rep. Mervyn Dymally (D-CA.). Yet, ten years after that testimony, and more than twenty years after the racially-motivated campaign was instigated, there is, today, mounting evidence that Operation Fruehmenschen is alive and well, despite even occasional efforts by the courts to curb this particularly vile pattern of abuse. Recent Justice Department indictments and probes of high-ranking African-American state legislators in Arkansas, Ohio, Maryland, and Massachusetts are but a few of the most glaring recent indications of the continuing pattern of politically-targeted, and racially-motivated, actions by the Criminal Division, in hideous violation of both the letter and the spirit of the U.S. Constitution.

This most recent outbreak of racially-targeted prosecutions by the Justice Department is all the more damning, because the courts have taken an unambiguous stand against the Fruehmenschen abuses. On Feb. 28, 1997, U.S. District Judge Falcon Hawkins of South Carolina issued a stinging 86-page Order, dismissing a series of frame-up convictions of some of South Carolina's most important African-American elected officials, conducted under the code-name ``Operation Lost Trust.'' In all, 28 predominantly African- American state legislators, lobbyists and other political figures were indicted under Lost Trust.

Judge Hawkins dismissed several of the convictions with prejudice, and, in his opinion, singled out the Justice Department's Office of Professional Responsibility (OPR) -- the very agency which is supposed to be the internal "watchdog" within the Justice Department! During 1994, the United States Attorney had asked OPR to investigate allegations of prosecutorial misconduct; Judge Hawkins in his 1997 order severely criticized OPR's investigation, as well as the conduct of FBI Director Louis Freeh in giving a press conference at the courthouse in Columbia, S.C. claiming that OPR had cleared the government of charges of misconduct. Judge Hawkins called this "appalling," and he found that OPR's investgation was incomplete and inadequate.

Judge Hawkins further stated his disagreement with OPR's finding that the failure to provide discovery and other prosecutorial actions were only "incremental mistakes and misjudgments." Judge Hawkins wrote: "The court cannot agree with this [DOJ/OPR] finding because the failings of the government to provide meaningful discovery were so numerous that it would be disingenuous to say that these mistakes were incremental failings rather than intentional or wrongful decisions." And: "The withholding of such a voluminous array of discovery which the government had to know was exculpatory and relevant to the defenses of these defendants is unprecedented before this court. The court finds that these violations are too numerous and too specific to certain issues to be considered simply unintentional or the result of neglect."

Overriding OPR's findings, Judge Hawkins declared that "the misconduct here is repetitious, flagrant and longstanding." Former Attorney General Ramsey Clark's experience with Janet Reno in the LaRouche case, was mirrored in the Attorney General's handling of the Lost Trust cases. Sen. Ernest Hollings (D-S.C.) went personally to the Attorney General, to seek an independent review of the DOJ and FBI handling of Lost Trust. The Attorney General assured Senator Hollings that she would personally review the matter; but she then turned around and handed the review over to those who bore the blame for the misconduct in the first place.

If existing Department of Justice internal oversight procedures are sufficient and adequate, why has there been no action taken against those responsible for the misconduct found by the court in the "Lost Trust" cases?


- The John Demjanjuk Case -

John Demjanjuk is a Ukrainian-American who was unjustly stripped of his U.S. citizenship, and deported to Israel, by the Justice Department's Office of Special Investigations (OSI) for allegedly concealing his involvement in war crimes at the Treblinka death camp in order to immigrate to the United States. John Demjanjuk's ordeal began in 1978. It led him to death row in Israel. Demjanjuk's citizenship was only recently restored last month, and it is posible that OSI will once again attempt to expel him from the United States.

All the while, the OSI had evidence, which it withheld from Demjanjuk's attorneys, demonstrating that they were knowingly targeting the wrong man with forged and falsified evidence. One OSI prosecutor resigned from the Department, when his repeated written warnings that Demjanjuk was not ``Ivan the Terrible of Treblinka,'' were ignored.

When the Chief Judge of the Sixth Circuit U.S. Court of Appeals learned, through reading an article in the New York Times, of the prosecutorial abuses in the Demjanjuk case, he initiated a review of the case, after Robert Mueller, then the head of the Department's Criminal Division, refused to even reply to the Judge's letters and telephone calls, asking for corroboration of the New York Times allegations. The Sixth Circuit took the unusual step of appointing a Special Master to probe the conduct of the Justice Department, and, eventually, the Circuit ruled in November 1993 that OSI had "acted with reckless disregard of the truth," and had carried out "prosecutorial misconduct that constituted a fraud on the court.''

Neither Attorney General Reno nor the Department has ever taken responsibility for -- or even acknowledged -- the prosecutorial misconduct which almost resulted in the wrongful execution of John Demjanjuk.

If existing Department of Justice internal oversight procedures are sufficient and adequate, why has there been no action taken against those responsible for the misconduct and fraud found by the court in the Demjanjuk case?


- Conclusion -

These three cases are the most egregious examples of gross prosecutorial misconduct which the Justice Department's internal oversight mechanism has completely failed to address or remedy. There are many others. But in these instances, even where courts have found a pattern of systemic misconduct and fraud on the courts, the Justice Department "circles the wagons" to protect its own: the career officials and prosecutors who make up the Department's permanent bureacracy.

It is this permanent apparatus that Time magazine described, in the first weeks of the Clnton administration in early 1993, as ``the most thoroughly politicized and ethically compromised department in the government." Time magazine reported: "Politics have invaded the Justice Department in many administrations.... What is different about the Justice Department that Clinton is inheriting is the depth to which politicization has seeped into the bureaucracy, which includes 92,300 people.''

It should be obvious that this bureaucracy cannot police itself. Despite the Attorney General's assurance, we insist that vigorous and permanent oversight, and outside review -- such as that contemplated by H.R. 3396, the Citizens Protection Act of 1998 -- is absolutely essential.


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