American Oversight today submitted a complaint to the Department of Justice’s Office of Professional Responsibility (OPR) regarding Timothy Shea, the Interim United States Attorney for the District of Columbia. The complaint asks OPR to investigate whether Shea violated bar rules and DOJ policy by filing a motion seeking leave to dismiss all charges against former National Security Adviser Michael Flynn, who previously had pleaded guilty to two counts of making false statements to the FBI.

Statement from Melanie Sloan, Senior Adviser at American Oversight:

“Shea’s motion makes arguments completely contrary to previous DOJ positions, mischaracterizes the statements of former DOJ officials, and was not supported by a single career prosecutor. OPR should investigate whether Shea effectively sold out the citizens of the United States, who he is duty bound to represent, to curry favor with the president.”

Earlier this week, American Oversight sued the Justice Department for failing to respond to FOIA requests seeking communications of Attorney General William Barr and others, including communications with the White House, regarding the Flynn prosecution and the virtually unprecedented decision to drop the charges.

The full OPR complaint can be found below.

 

The Office of Professional Responsibility was created in 1975 following revelations of ethical abuses and serious misconduct by senior Justice Department officials during the Watergate scandal. The office is directed 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.”

D.C. Rule of Professional Conduct § 1.3 provides that a lawyer “shall represent a client zealously and diligently within the bounds of the law.” As a lawyer representing the United States, Shea is required to zealously represent the interests of all Americans, not simply the individual interests of the president. While there is no public information as to whether Shea or his superiors at the department discussed the Flynn case with the president, President Donald Trump had made it abundantly clear he wanted Flynn cleared.

The Justice Department publishes the Justice Manual, which guides investigative, charging and sentencing decisions of all department employees. The manual prohibits a lawyer from basing prosecutorial decisions against anyone based on their political associations, activities or beliefs, or based on the lawyer’s own personal feelings, or the potential impact on the lawyer’s career. In this case, it appears Shea may have abused his position by taking an action based on any or all of: (1) Flynn’s political association with Trump; (2) Shea’s own personal feelings concerning Flynn, or at least those of his associate, Trump; and (3) the possible effect failing to withdraw the case against Flynn could have on Shea’s professional career.

The Justice Manual also emphasizes the need for prosecutorial decisions to be impartial and free from political influence and that the department’s “investigatory and prosecutorial powers be exercised free from partisan consideration.” It further states, “It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department’s legal endeavors.” By taking the unprecedented action of dropping the charges against Flynn — whether directly at the president’s behest or merely to curry favor with him — Shea appears to have violated these directives.

Sloan continued: “By dropping the very serious charges against Flynn after he pleaded guilty to them in front of two federal two judges — and in apparent contravention of the elements of the false statements statute, the Rules of Professional Responsibility governing the conduct of attorneys, and DOJ’s own principles and guidelines, and against the advice of career prosecutors — Shea has brought discredit to the department and undermined the rule of law. OPR should investigate Shea’s conduct and hold him accountable for any violations of department policy and forward its findings to the D.C. Bar if appropriate.”

Update: A supplement to our initial complaint was filed on May 14, 2020