An Open Letter from the Community of Whistleblowers to Attorney General Eric Holder

Dear Attorney General Holder:

We, the undersigned, wish to bring to your attention an important issue: the effective and ethical prosecution by the Department of Justice of Scott J. Bloch, a man who has gravely damaged the federal civil service.

As you undoubtedly know, Mr. Bloch began his tenure as head of the U.S. Office of Special Counsel, in 2003.  The Office of Special Counsel’s primary purpose is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.  However, until his abrupt resignation in 2008, Mr. Bloch eroded workplace discrimination protection on the basis of sexual orientation, conducted a political purge of his own employees, attempted to intimidate subordinates from cooperating with outside investigators, deleted computer files and destroyed whistleblower cases, and made false and misleading statements under oath to Congress.  After arrest by the Federal Bureau of Investigation and arraignment by the Department of Justice (DOJ) in 2008, Mr. Bloch pled guilty to criminal contempt of Congress in exchange for probation in sentencing.  The prosecuting attorney, Glenn S. Leon, Assistant U.S. Attorney for the District of Columbia, supported the defendant’s request in United States v. Scott J. Bloch through several court hearings and pleadings.  Recently, however, the presiding federal magistrate judge, Deborah A. Robinson, raised legal concerns with the sentencing provision, and determined that a mandatory minimum jail sentence is in order.  The defendant shortly thereafter revoked his guilty plea.  DOJ has not mentioned whether it will retain Mr. Leon for any trial.

We are concerned, however, that Mr. Leon’s official conduct up to now has rendered him unfit to prosecute the defendant.  Rule 1.3 of the Model Rules of Professional Responsibility, Comment 1, states that “[a] lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  (Emphasis supplied).  In the instant case, Mr. Leon would have to contradict almost a year’s worth of arguments in support of the defendant, and state the exact opposite in front of a judge or jury.  This would erode his credibility and impartiality in the public light, as one would not reasonably expect that he would be able to zealously advocate the government’s position given his track record.  The government runs the risk of getting something less than his full effort, which warrants recusal.

Nor is mere substitution of one U.S. Attorney or Department of Justice prosecutor for another proper.  Rule 1.13(a) of the Model Rules of Professional Conduct states that ”[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”  Mr. Leon is an employee of the U.S. Attorney for the District of Columbia, which is currently occupied by Ronald C. Machen, Jr.  Both Mr. Leon and Mr. Machen represent the DOJ, which you lead.  Both of these subordinates must abide by any prosecutorial decisions made by your office.  Further, United States v. Scott J. Bloch is a high-profile, politically charged case.  The Office of Special Counsel deals with some of the most politically sensitive issues in government. It is therefore unlikely that any prosecutorial decision in this case, such as advocating for probation, would notcome directly from your office.  Thus, Mr. Leon’s conduct and conflicts of interest are imputed to the entire Department of Justice.  Consequently, Mr. Leon’s urging for probation is imputed to the entire Department of Justice.

In addition, given the significant harm the defendant has caused to countless whistleblowers, the U.S. government, and the American people, the public interest requires that a credible, impartial, non-partisan prosecutor be tasked to lead this prosecution.  . . .