24 ELR 10074 -- Congressional Oversight of Federal Environmental Prosecutions: The Trashing of Environmental Crimes

24 ELR 10074 | Environmental Law Reporter | copyright © 1994 | All rights reserved

Congressional Oversight of Federal Environmental Prosecutions: The Trashing of Environmental Crimes

William T. Hassler

Editors' Summary: Since late 1992, two congressional committees and an academic group working for a member of a third committee have issued reports severely criticizing the Environmental Crimes Section (ECS) of the U.S. Department of Justice (DOJ). The reports focus on alleged deep divisions among the three units of the federal government responsible for the prosecution of environmental crimes: the ECS, local U.S. Attorneys' Offices, and EPA's Office of Criminal Enforcement. They claim that the ECS lacks prosecutorial zeal and suffers from morale, management, and competency problems.

The author, a former attorney with the ECS and a former Associate Counsel on the staff of Independent Counsel Lawrence Walsh, argues that the reports are methodologically flawed and replete with factual errors. He charges that the congressional investigators conducted unbalanced factual inquiries, adopted unrealistic and inconsistent standards for evaluating prosecutorial decisions, and ignored protections traditionally afforded subjects of criminal investigations and indictments. The author notes that despite the reports' conclusions, DOJ prosecutions of environmental crimes increased dramatically during the 1980s and that DOJ efforts resulted in multimillion dollar criminal fines. He concludes that the reports fail to provide a meaningful basis for addressing important questions about how the government's criminal enforcement powers can best promote environmental protection.

William T. Hassler is an attorney in private practice in Washington, D.C. He worked at the U.S. Department of Justice's (DOJ's) Environmental Crimes Section (ECS) (which is at least in part the subject of this Dialogue), on the Rocky Flats investigation from 1990 to 1991. See infra note 19. Prior to working at the ECS, Mr. Hassler worked as an Associate Counsel on the staff of Independent Counsel Lawrence E. Walsh, investigating the Iran/Contra matter.

Although a number of individuals provided information as part of the preparation of this Dialogue, the views stated are solely Mr. Hassler's, and in no way are intended to represent the opinions of current or former officials of the DOJ, or of any private individuals interviewed.

[24 ELR 10074]

The Environmental Crimes Section (ECS) of the U.S. Department of Justice (DOJ) is a relatively small part of the DOJ's Environment and Natural Resources (ENR) Division,1 with a modest professional staff of approximately 30 attorneys. Since late 1992, however, the ECS has received a degree of scrutiny disproportionate to its size. Since then, two congressional committees have focused independent investigations on the ECS, and an academic group has prepared a report for a member of still a third congressional committee. No other component of the ENR Division has received such exposure in recent years.

The congressional investigators2 have reached startlingly negative conclusions. They describe the ECS as suffering from "extreme conservatism and lack of aggressiveness,"3 a "failure to pursue aggressively a number of significant environmental cases,"4 and "chronic case mismanagement."5 By early 1993, Time magazine characterized the "cleanup" of the ECS as a "high priority" for the Clinton transition team.6

In fact, the ECS' record has been systematically mischaracterized. [24 ELR 10075] The congressional investigators, in their zeal to pressure the DOJ to increase the number of environmental prosecutions across the board, have failed to treat the subjects of their inquiries with the fairness to which any subject of investigation (whether criminal or congressional) is entitled.7

This Dialogue is not intended to suggest that the ECS or its attorneys should be above criticism or congressional review. They are, and should be, subject to both. But oversight of the ECS' work should encourage fair and predictable enforcement of the nation's environmental laws, consistent with the standards of prosecution recently announced by Attorney General Janet Reno.8 Achievement of this goal requires a balanced examination of available evidence, realistic standards for evaluating prosecutorial decisions, and respect for traditional protections afforded individuals subject to criminal investigation or indictment. This Dialogue demonstrates that ECS' critics, to date, have fallen woefully short of this standard.

The Critics and Their Charges

The Dingell Report

As the 1992 presidential race heated up, the House Committee on Energy and Commerce's Subcommittee on Oversight and Investigations (the Dingell Committee), chaired by Rep. John Dingell (D-MI), focused its investigative resources on the ECS and DOJ headquarters. Press reports at the time focused on alleged "sweetheart plea agreements," "secret meetings with defense counsel," and "political favoritism."9 The report which the Committee ultimately issued in September 1992 (the Dingell Report) does not, however, allege improper political influence.10 Instead, the Report explores allegedly deep rifts among the three principal bureaucracies charged with enforcing environmental criminal statutes: "local" prosecutors in various U.S. Attorneys' Offices, "main" DOJ prosecutors employed by the ECS (and supervised by political appointees at DOJ headquarters), and the U.S. Environmental Protection Agency's (EPA's) Office of Criminal Enforcement.11

The Committee's staff conducted extensive interviews with EPA investigators, and presented selected agents in public hearings. These hearings and the Committee's subsequent Report generated a full-blown controversy over the handling of six cases.12 Notably, the Committee did not allow testimony at the hearings by witnesses offered by the DOJ.13

[24 ELR 10076]

The GW Report

At roughly the same time that the Dingell Committee conducted its hearings, the Environmental Crimes Project of the National Law Center at George Washington University (the GW Law Center) prepared a separate report (the GW Report) for Rep. Charles Schumer (D-NY),14 who released a "preliminary" version15 on October 29, 1992, only days before the national presidential election. The GW Report reaches largely the same conclusions as the Dingell Report.16 This similarity, however, is not surprising, because the analysis in the GW Report covers largely the same ground as the Dingell Report.17

The Wolpe Report

While Reps. Dingell and Schumer were considering the ECS' overall record, another House subcommittee (the Wolpe Committee),18 chaired by Rep. Howard Wolpe (D-MI), began proceedings focused solely on the recently concluded prosecution of Rockwell International Corporation (Rockwell) for its conduct of operations at the U.S. Department of Energy's (DOE's) Rocky Flats nuclear weapons facility near Denver, Colorado (Rocky Flats).19 The Committee's investigation was apparently fueled in part by statements from members of a grand jury that heard evidence during the government's investigation of Rocky Flats. Members of the grand jury charged that the government had reached a "sweetheart" deal with Rockwell, and that individuals suspected of serious wrongdoing had gone free.20 The Committee issued a report21 (the [24 ELR 10077] Wolpe Report) containing scathing criticism of the ECS based on the Committee's review of this high-profile case. The Report highlights apparent "cultural"deficiencies at the ECS, which, according to the Committee, led to a lack of aggressiveness.22

Dingell II and the GAO Report

Notwithstanding the election of a Democratic President in November 1992, the Dingell Committee remained interested in the controversy over the ECS. In 1993, it renewed its request, previously denied by the Bush Administration, to interview line attorneys about specific prosecutions. In June, the Clinton Administration granted the request,23 and in November 1993, the Dingell Committee reopened its hearings.

The 1993 hearings continued the attack on the ECS and its top managers, but no longer focused solely on anecdotal evidence relating to the six cases scrutinized in 1992. Instead, the Committee presented a statistical analysis prepared by the General Accounting Office (GAO) comparing the ECS prosecutions to prosecutions by U.S. Attorneys' Offices.24 As an added twist, three former U.S. Attorneys (all Republican appointees) testified to criticize what they view as a trend toward excessive headquarters (i.e., ECS) oversight of U.S. Attorneys' Offices. The issue of headquarters authority centers largely on an administrative rule issued by Attorney General William Barr in the final days of the Bush Administration, under which the ECS retains an effective veto over certain types of prosecutions.25 On November 4, 1993, the Clinton Administration announced that it did not intend to repeal the rule in question.26

Summary of the Charges

The collective criticisms of the various congressional investigators can be summarized generally as concluding, to use a borrowed phrase, that the ECS was a hotbed of cold feet. More specifically, the congressional investigators concluded that ECS attorneys showed a lack of proper prosecutorial zeal, revealed by:

1. an alleged hostility to wetlands prosecutions developed by EPA and local U.S. Attorneys' Offices;

2. an alleged weakness for "corporate only" pleas, in which (allegedly guilty) corporate employees and managers escaped indictment;

3. a clear tendency to undervalue and "underprosecute" environmental violations relative to prosecutors in U.S. Attorneys' Offices; and

4. serious problems of morale, management, and overall competency.27

Evaluating the Critics' Methods

The Dingell, GW, and Wolpe Reports are neither fair nor accurate.28 Regrettably, the investigations that produced them took on the worst aspects of partisan politics, unmitigated by adversarial balance and replete with simplistic characterizations of complex issues.

Failure to Interview the Reports' Subjects

In the case of the Dingell and GW Reports, the congressional investigators generally did not speak with the attorneys criticized.29 Instead, these investigators relied almost exclusively on information gathered from law enforcement agents, and, in some cases, other prosecutors.30 In the case of the GW Report, the witnesses remain entirely anonymous, but clearly did not include the main subjects of the Report's criticisms.31 In addition, before publishing their [24 ELR 10078] results,32 none of the congressional investigators contacted defense counsel about substantive matters in any of the cases studied.33 There does not appear to be any good reason for this failure.34 For example, counsel for the Wolpe Committee failed to take advantage of an offer by counsel for Rockwell in the Rocky Flats case to discuss the case with the Wolpe Committee staff.35

With respect to the GW Report, the Project Director stated in an interview for this Dialogue that the initial Report was not designed to include interviews with defense counsel in an effort to provide the Report to then Attorney General Barr as quickly as possible.36 The 1992 "preliminary" GW Report, however, contains no such qualification in its statement of methodology. (As of December 23, 1993, the GW Law Center has not released a "final" report.37) The Report itself states that "staff investigators were instructed to gather information from every possible avenue and to interview every critical party in federal prosecutions."38 According to the Project Director, the quoted description of the Report's scope was a mistake that should not have been included in the preliminary Report.39 In any event, interviews with individuals criticized and representatives of the defendants in cases under study should have been among the highest priorities in any balanced inquiry.

In researching this Dialogue, the author called counsel for the defendants (or subjects of investigation) in five of the six cases considered by the Dingell and GW Reports, as well as lead counsel for the defendant in the Rocky Flats investigation.40 The author reached counsel for at least some defendants in all the cases within one week.41 Many counsel reported what they considered to be serious factual errors in the Dingell and GW Reports. One reported supplying DOJ attorneys with an affidavit contradicting the charges made in a case studied by the Dingell Committee.42

Perhaps because of the GW Law Center's failure to interview defense counsel, the GW Report largely ignores the possibility that the accused might defend themselves in the cases studied. Although the GW Report sets forth in great detail charges for which (in some cases) no defendant had been indicted, it does not analyze any of the corresponding defenses that might be raised.43 The defense counsel contacted in connection with this Dialogue generally presented coherent theories of potential defenses.44 The fact [24 ELR 10079] that defense counsel allege that defenses exist does not mean, of course, that the defenses are sustainable (just as the fact that an agent alleges that sufficient evidence exists to convict a potential defendant does not mean that the potential defendant is guilty or will be convicted). But attempting to assess any case without a careful review of the concerns of the prosecutors involved, or of potential defenses, is no more valid than trying to pick the winner of the Super Bowl by reviewing one team's highlight films.

The GW Report's "Experience" Test

The GW Report typically describes as "veteran,"45 "seasoned,"46 "experienced,"47 or possessing a "reputation for zealous prosecution"48 prosecutors who apparently share the GW Law Center's view regarding the ECS' record. In contrast, the GW Report disparagingly refers to the prosecutors it criticizes as "new … to the Section,"49 "disinclin[ed] to prosecute environmental cases,"50 having "less environmental criminal experience,"51 or having "limited or controversial records."52 Such ad hominem attacks do nothing to promote an objective evaluation of the cases that the GW Law Center considered. In fact, the GW Law Center's "experience" test systematically disregards prosecutorial experience in nonenvironmental cases.53

Consider just one example of the GW Report's characterizations -- the Van Leuzen case.54 Floyd Clardy, who supervised Van Leuzen for the ECS, is characterized by the GW Law Center simply as a supervisor "new" to the ECS in 1989,55 as "never having tried an environmental case," and as having exhibited a "noted disinclination" to prosecute environmental crimes.56 Clardy was not interviewed by the GW Law Center, despite the highly personal nature of these charges.57

Clardy's actual experience is much greater than suggested by the GW Law Center. Clardy has been a federal prosecutor for over 15 years, and has tried dozens of cases. He has won awards for his prosecutions. His background includes politically unpopular prosecutions of police officers and prison guards on charges of violating suspects' or inmates' rights, including cases involving racial violence.58

Before the GW Law Center released its report, Clardy (now an Assistant U.S. Attorney in Dallas, Texas) and Bonnie LePard of the ECS (dismissed by the GW Law Center as a "less experienced" prosecutor)59 had obtained an indictment against Robert Brittingham, arguably the most prominent individual ever indicted for an environmental felony.60 Clardy subsequently received an award for his work in the Brittingham case.61 The GW Law Center's "investigation" omits any mention of these facts, notwithstanding its reported concern about a claimed lack of indictments of individuals rather than corporations.62

Whatever one thinks of the GW Report's "experience" test for evaluating a prosecutor's worth, the Report itself does not apply the test uniformly. At least a partial source for the GW Law Center's criticism of Clardy appears to be EPA agents and supervisors unhappy with a decision (originally made by the Houston, Texas, U.S. Attorney's Office) to decline to prosecute the Van Leuzen matter.63 The Report does not, however, document the number of criminal (or criminal environmental) cases previously taken to trial by EPA agents or EPA attorneys who supported prosecution. Nor does it consider the criminal experience of the members of the prosecution review committee in the Houston U.S. Attorney's Office who, as noted below, unanimously recommended against prosecution of Van Leuzen.64

Based on the recommendations of agents with unspecified criminal experience, supported by EPA supervisors with unspecified criminal experience,65 the GW Law Center [24 ELR 10080] concludes that a "new" ECS attorney who had "never" tried an environmental case (but who in fact was a decorated 15-year prosecutor) rejected an "airtight"66 case for reasons that the GW Law Center cannot fathom, other than his "noted disinclination"67 to prosecute environmental cases (notwithstanding the Brittingham matter and notwithstanding the unanimous recommendation of local prosecutors to decline the case for reasons set forth in the Dingell Report). This example does not promote confidence in the objectivity of the GW Report's other examples of environmental "underprosecution."68

Evaluating the Critics' Conclusions

Perhaps as a consequence of their methodology, including the GW Report's extensive reliance on anonymous sources, the three reports contain numerous factual errors.

Wetlands

As regulatory protections for wetlands increased during the 1980s, prosecutions for violations of wetlands regulations increased. The GW Report finds, however, that "internal policies of the Department of Justice … severely hamper prosecution in the wetlands area,"69 and refers to a reported ECS "policy" not to prosecute wetlands cases.70 Similarly, the Dingell Report states that "[w]etlands enforcement seems to be emerging as an area in which the ECS believes that the best enforcement is no enforcement."71

The Dingell and GW Reports support this charge by analyzing two wetlands cases considered for prosecution during the Bush Administration. In the first case, (commonly known as Tudor Farms),72 the local U.S. Attorney's Office in Baltimore, Maryland, supported prosecution (and an eventual plea bargain), and the DOJ concurred. According to the GW Report, however, the Assistant Attorney General for the DOJ's ENR Division, Barry Hartman, "opposed criminal prosecution generally and felony indictments specifically."73 Hartman, whom the GW Law Center did not interview, states that he in fact approved the prosecution.74 The former U.S. Attorney for the district in question, whom the GW Law Center did not interview, generally supports this account.75 According to the U.S. Attorney, all prosecutors involved in the case recommended acceptance of a plea agreement in which the company in questionagreed to preserve permanently thousands of acres of wetlands.76

In a second wetlands case, Van Leuzen, the local U.S. Attorney's Office in Houston, Texas, opposed prosecution, and the DOJ again concurred (although EPA objected). The Dingell and GW Reports, however, claim that the local Assistant U.S. Attorney's "attitude" regarding the Van Leuzen prosecution changed after a particular ECS attorney (Floyd Clardy) took responsibility for the case. This suggestion, which the Dingell Committee neatly places in the mouths of EPA agents testifying before it,77 is contradicted by a letter written by the U.S. Attorney to EPA in 1990. In his letter, the U.S. Attorney stated that after an "exhaustive" review, local prosecutors had "unanimously" recommended declining prosecution.78 According to the U.S. Attorney whose office rejected the case, experienced prosecutors in that office cited four "infirmities and problems" that led to rejection of the case:

(1) the availability of alternative civil remedies to accomplish restoration, (2) a lack of jury appeal, (3) the anticipated inadmissibility of certain evidence, and (4) [24 ELR 10081] problems with sufficiency of proof relating to criminal intent.79

What the Dingell and GW Reports uncover in this case is an event commonplace in prosecutors' offices -- a prosecutor's rejection of a case referred for prosecution by enthusiastic investigating agents. What is out of the ordinary is not the ultimate disposition of the case, but that congressional investigators would fault DOJ headquarters for concurring in the rejection of a case that a review committee convened by the local U.S. Attorney's Office had previously rejected unanimously.80

The fact that the U.S. Attorney's Office believed that the case had problems does not, of course, necessarily mean that EPA's more bullish views on the case, expressed at the September 1992 Dingell hearing, were wrong.81 Clearly, however, facts do not support the congressional investigators' claims that the ECS, rather than the U.S. Attorney's Office, was the source of the case's rejection, or that this case illustrates a schism between main DOJ and a U.S. Attorney's Office.

ChemWaste

The Dingell and GW Reports express concern over the handling of an investigation involving Chemical Waste Management in Louisiana and Alabama (ChemWaste). In that matter, prosecutions were successfully pursued in Louisiana but declined in Alabama.

The Dingell Report criticized the decision, allegedly made by the ECS Section Chief, to decline prosecution of the Alabama case.82 But the ECS' Section Chief was not alone in opposing prosecution. According to the testimony of the EPA attorney who supervised the case (and who favored prosecution), the local U.S. Attorney independently concluded that the case was unwinnable.83 Although line attorneys from both the ECS and the U.S. Attorney's Office reportedly disagreed, the senior attorneys from both the ECS and the U.S. Attorney's Office appear to have agreed to decline the case.84

In the GW Report, however, the GW Law Center claims to have "discovered" activity relevant to the ECS' decision not to prosecute. The GW Report stated:

The [GW Law Center] project discovered that Mr. Cartusciello [chief of the ECS] met with Joan Z. (Jodie) [Bernstein,]85 a Waste Management Inc. Vice President and former General Counsel for EPA who was accompanied by Judson W. Starr, the first chief of the Environmental Crimes Unit [ECS' forerunner]. After a long meeting, Mr. Cartusciello decided the case should be re-examined. Shortly thereafter, Mr. Cartusciello told the U.S. Attorney that ChemWaste was a meritless case.…86

It is unclear what, if anything, would be improper about a senior prosecutor meeting with defense counsel as part of a decision whether to prosecute a case. In any event, according to Mr. Starr (whom the GW Law Center did not interview prior to the GW Report's publication)87 and a spokesperson for Ms. Bernstein (whom the GW Law Center also did not interview) no such meeting ever took place.88 (The GW Law Center also did not interview Cartusciello, who was one of the principal targets of the Report's criticism.)

[24 ELR 10082]

Rocky Flats

* The Rocky Flats Fine. The Wolpe Committee closely analyzed the plea negotiations in the Rocky Flats case, in part through analysis of memoranda written by prosecutors. From the materials released by the Committee, it is clear that the prosecutors in question disagreed frequently over a variety of issues, including the strength of the charges and merits of the case. Prosecution, of course, is a subjective art, and such disagreements normally would not excite much comment. The Committee, however, makes the disagreements into the subject of one of its central findings: that main DOJ and ECS prosecutors, who placed "little value on environmental crimes," undercut attempts by attorneys from the Office of the U.S. Attorney for the District of Colorado (based in Denver) to gain an even larger fine from Rockwell.89 The Committee states, for example:

Main Justice attorneys were willing to settle for $ 1 - $ 6 million. One actually said that the government should pay Rockwell.… [T]he lead attorney in Denver [was] pushing for a larger settlement -- on the order of $ 20 million to $ 30 million.…90

Although this account of the "facts" suggests that ECS attorneys valued the case less than the Denver-based attorneys did, it is based on what is either a critical distortion or a sloppy error: the Committee misidentifies a Denver-based Assistant U.S. Attorney as an ECS employee.91 Once this misstatement is corrected, the Committee's conclusion collapses.

For a significant part of the investigation, the Rocky Flats case was assigned to four line prosecutors, two each from the ECS and the U.S. Attorney's Office. Although each individual attorney's opinions of the case's strength varied from time to time, the Committee was fair in stating that one of the Denver-based attorneys was consistently the most optimistic about the case. What the Committee overlooks is that the other Denver-based attorney was generally the most pessimistic about the case. The Committee's conclusion that ECS attorneys were most bearish about the case is simply wrong: the opinions of ECS attorneys (who frequently disagreed with each other) generally fell between those of the two Denver-based attorneys.

A corrected version of the facts would have stated that the line attorneys from the ECS sought fines in the range of $ 4-6 million,92 while the line attorneys from the Denver office split sharply, one favoring a settlement (as of January 1991) of $ 20 million, and one favoring a settlement (as of January 1991) of $ 1 million.93 Moreover, the latter attorney, from the U.S. Attorney's Office in Denver, is specifically identified (by, among others, the U.S. Attorney for the District of Colorado)94 as the attorney whom the Wolpe Committee reports as remarking that a fairer settlement would pay Rockwell money.95

Even aside from the error noted above, the Wolpe Committee greatly overestimates the significance of a disagreement between prosecutors over the appropriate size of a fine. Selection of fines is not a science, and reasonable prosecutors may differ reasonably over a case's strengths and weaknesses. Moreover, for all of the Committee time spent on the genesis of the $ 18.5 million fine,96 the Wolpe Report never even attempts to evaluate the fine according to standards of fairness.

The congressional investigators suggest that the success of a prosecution is directly proportional to the size of the fine obtained, regardless of the underlying case's merits. Under this theory of prosecution, government attorneys should act as advocates without any broader sense of fairness. According to the logic of the Wolpe Committee, if the government had the leverage to force Rockwell to pay a larger settlement, no lesser settlement was adequate.97

The Committee's view differs markedly from traditional views of the principles that should guide a prosecutor, under which a prosecutor remains an advocate, but is guided by [24 ELR 10083] a sense of fairness that would not necessarily bind a private attorney. As the U.S. Supreme Court has long held,

[s]ociety wins not only when the guilty are convicted but when criminal trials arefair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts."98

It is beyond the scope of this Dialogue to address whether the amount prosecutors obtained in this case was in fact fair to the government, to the public, or to Rockwell. But it is worth remembering that in addition to the size of any fine, the "success" of a prosecution should also be judged by its overall fairness in light of the charges in question. The Wolpe Committee, however, fails to acknowledge that fairness is a goal that may legitimately influence prosecutors' recommendations.

The Committee magnifies and distorts the disagreements among line prosecutors over particular issues. In fact, Denver-based attorneys in the U.S. Attorney's Office did not report the alleged ECS interference in their investigation that the Committee claimed to find.99 There was no testimony, for example, that any senior ECS or main DOJ official attempted to discourage the U.S. Attorney's Office from seeking a fine it considered appropriate.100 The U.S. Attorney for the District of Colorado, whose office directed the case, testified as follows:

Q: Did you ever have any differences of opinion or disagree with anyone in main Justice regarding positions on major issues in this case?

A: Not that I recall.… [A]s to litigative direction, I can't recall any major disagreements where we didn't prevail. And I can't even recall any major disagreements.101

The wide range of opinions among different prosecutors might suggest that the case was controversial and legitimately difficult to value.102 While such a conclusion does not lend itself to spectacular committee reports, it may be closer to the truth than the Committee's actual conclusions.103

* Accomplishments at Rocky Flats. The Wolpe Committee's evaluation of the prosecutors' performance in the Rocky Flats case overlooks many accomplishments achieved by the Denver-based U.S. Attorney's Office and the ECS jointly. The execution of a federal search warrant in June 1989, which both the Denver-based U.S. Attorney and the ECS approved, was one of the most aggressive acts in the entire prosecution. The Wolpe Committee, however, ignores the ECS' cooperative role in preparation of the warrant and the approvals received from all levels of of the DOJ prior to its execution. Similarly, the Wolpe Committee hardly notes the significant prosecutorial and investigative resources that both the ECS and the Denver-based U.S. Attorney's Office expended on the case for over three years. At the most basic level, such expenditures seem to evidence an intent to prosecute the investigation aggressively, not to block it.

The Wolpe Report also ignores the relative lack of prior enforcement history at the Rocky Flats plant in particular, and DOE facilities in general. The Rocky Flats plant, for example, had not previously been the focus of any significant civil enforcement action by state or federal environmental regulators.104 Similarly, no other U.S. Attorney's Office has ever initiated comparable enforcement activity against another DOE facility that engaged in conduct similar to the conduct that allegedly occurred at Rocky Flats. As one prosecutor told the Wolpe Committee,

There are 16 other DOE facilities around this country, at least two of which in my personal opinion are worse than Rocky Flats.… And there are attorneys in those districts -- and I don't want to get into trouble for criticizing a colleague in the Department, but all I know is that Mike Norton [the Denver-based U.S. Attorney who supported the Rocky Flats prosecution] is the only one who had the intestinal fortitude to stand up and say, "We'll take this on."105

Even if prosecutors had settled for one of the allegedly low-ball DOJ fines (of approximately $ 5 million), they would have exceeded any previous fine at Rocky Flats or [24 ELR 10084] any other DOE facility by $ 4.9 million. It is difficult to understand logically how the criminal prosecutors, two of whom devoted more than three years to the investigation, are the subjects of such severe criticism, when other regulators, who had responsibility for this and other DOE facilities long before execution of the search warrant, largely escape comment.

* Midnight Burning at Rocky Flats. In the Rocky Flats investigation, one of the more spectacular allegations of misconduct investigated by the government related to charges of so-called midnight burning: incineration of mixed hazardous and nuclear wastes that was allegedly concealed from the public. If these charges had been true, such actions would have constituted knowing violations of DOE policy with potentially serious effects on nearby urban and suburban populations. After years of investigation, however, the prosecution team reported: "the UNITED STATES has concluded that the Building 771 incinerator was not operated contrary to the DOE ordered shutdown."106

Congressional investigators publicly disagreed with the prosecutions' conclusions that no incineration occurred after the DOE ordered the incinerators shutdown in December 1988.107 According to the Wolpe Committee, there was evidence that secret midnight burning had occurred as part of a phased shutdown. One would expect a congressional committee to document such a serious charge carefully. The Committee's Report, however, cites no significant supporting evidence.

The Committee bolsters its allegations by citing testimony of the lead FBI agent in the case.108 The basis for the agent's opinion, however, is not supplied.109 Moreover, if the Committee had attempted to confirm the agent's uncorroborated charges, it would have reported that none of the other principal members of the prosecution team in the case (including the lead Denver-based prosecutor, whom the Committee generally praised for his aggressiveness, the lead ECS attorney, and the lead EPA agent) agree with the lead FBI agent's conclusion that the secret incineration had occurred.110 Thus, the Committee's conclusion about midnight burning flies in the face of the available evidence.

"Political" Interference

Within the context of the congressional oversight investigations, concern over "political" interference has generally taken the form of inquiries into possible attempts by political appointees at the DOJ to influence investigations of the Bush Administration's political allies. The Dingell and Wolpe Reports do not find that any fixing of cases occurred. Indeed, one of their criticisms of the ECS generally is that career ECS prosecutors (and in some cases, assistant U.S. Attorneys) concurred with decisions not to prosecute, or to accepts pleas, that the congressional investigators believed to be too lenient.111 The GW Report, consistent with its general methodology, repeats rumors of "possible" political influence voiced by the Report's (anonymous) sources, but itself actually makes no "finding" of political influence.112

"Political" pressure, however, takes many forms. Congressional oversight of prosecutors is inherently political. Poorly or unfairly conducted oversight itself can become a threat to the orderly administration of justice. Rather than evaluating each case on its merits, prosecutors may be tempted to seek what they believe will be politically acceptable results. Counsel for an individual against whom charges were dismissed in the PureGro matter113 described [24 ELR 10085] the issue this way in a letter to the GW Project Director:

Although your article suggests you think the government decisions made in PureGro were political ones, the opposite is true. It would have been politically expedient to maintain the charges in the case as they were originally filed. EPA headquarters and local investigating staff, including those who testified before [Rep.] Dingell last fall, would have been happier. The Washington State Attorney General's Office would have been happier. The government would have been seen as aggressively prosecuting environmental crime. Instead, the Department of Justice did what it is supposed to do, decide cases based on the facts and the interests of justice.114

Based on the record to date, the congressional investigators have made no attempt to limit the "political" impact of their own investigations to legitimate areas of policy. They have instead personalized the debate, going so far as to characterize exercises of prosecutorial discretion as actions taken by political "hack[s]."115

Environmental Criminal Prosecution During the 1980s

Whatever one believes about former President Bush's claim to be the "environmental President," environmental criminal prosecution flourished under the Reagan and Bush Administrations. The ECS was established in 1983.116 Since then, it has grown from 5 to approximately 30 attorneys. Its total budget increased dramatically over the same period. Prosecutions have increased from 40 in fiscal year 1983, to 125 in fiscal year 1991.117 Multimillion dollar criminal fines like those assessed in recent years against large companies such as Exxon, Rockwell, and United Technologies Corporation do not in themselves evidence a cozy attitude toward industry. Even if, as the GAO's latest statistics show, the majority of prosecutions have been led by local U.S. Attorneys' Offices,118 those offices were generally headed by political appointees.

In the face of these statistics, the Dingell and GW Reports make the bald assertion that however much federal prosecutions increased during the 1980s, they should have increased more.119 According to the GW Report, the DOJ's average of 100-120 environmental prosecutions per year "is surprisingly low."120

Although the Reports' assertion is an arguable hypothesis, neither Report offers any objective evidence to support this theory in the face of the apparent pattern of enforcement noted above. Both Reports ignore or avoid any of a number of benchmarks they might have used. Did, for example, the relative number of state criminal prosecutions dramatically outstrip federal prosecutions over the relevant time period? How did federal and state prosecutions from the same states compare? What was the trend in federal civil enforcement statistics over this period?121 Are civil and administrative cases ahead or behind of the criminal trend? Do differences in cases brought in different geographical regions overshadow differences between the ECS and certain U.S. Attorneys' Offices?

The only objective benchmark suggested by the GW Report to support its claims appear to be an expected level of prosecutions "given the size of industrial production in this country."122 It is unclear, however, how one can estimate the likely number of environmental crimes (and the desired number of environmental prosecutions) based solely on the nation's gross domestic product. Reliance on the size of the nation's economy alone to estimate optimal levels of criminal enforcement ignores numerous other relevant sources of data. For example, American companies spend billions every year for pollution control.123 Partly as a result of these expenditures, air and water pollutants from industrial sources like those targeted by the GW Report have generally decreased since 1970 (not increased as the Report's theory would suggest).124 Ambient concentrations have similarly shown a general decrease.125 Moreover, although the U.S. economy generates enormous amounts of pollutants, much of this pollution is generated quite legally, and should not affect the optimal level of environmental prosecution.

This is not to say that environmental progress has been made independent of environmental enforcement -- the two obviously go hand-in-hand. Nor is this argument intended to suggest that the current system of enforcement could not be improved. Nevertheless, the strong upward trend in [24 ELR 10086] criminal prosecutions during the 1980s, appears to support a conclusion other than that suggested by the GW and Dingell Reports.

Proposed Rules of Principled Congressional Oversight

From the foregoing discussion, it is apparent the Dingell, GW, and Wolpe Reports all are seriously flawed. How, though, should congressional investigations be conducted? This Dialogue proposes certain basic principles, as set forth below.

The first rule of principled oversight (or of journalism or scholarship) involving criminal matters should be the recognition of the adversarial balance that lies at the base of our criminal justice system. Investigators should examine, equally and fairly, opposing positions on a particular issue. This does not meanthat every congressional hearing or report must be a full-blown criminal trial. But where evidence of the guilt or innocence of individuals is the subject of a congressional hearing, congressional investigators should recognize the misleading and unfair effect that any oversight may have if it is limited solely to one side or the other.

The second rule of principled oversight should be fair standards of judgment regarding prosecutorial conduct. Prosecution is not a science, and reasonable prosecutors and agents may disagree reasonably over the merits of a particular case. Sophisticated congressional oversight should recognize this fact, rather than harp on everyday differences in evaluating particular cases. Similarly, a prosecutor should be able to conclude that the proof in a particular case may not be adequate to sustain a conviction of a particular crime without being subject to charges that he or she is sympathetic to the type of crime in question. It is unfair to label a specific prosecutor "soft" on crime based on his or her evaluation of a single case.

As corollary to this second rule, congressional oversight should also have the sophistication to distinguish between advocacy positions taken for purposes of bargaining, and positions resulting from the practical difficulties in proving even the strongest criminal cases. While it may always be possible to argue that a compromise may have resulted in less than the maximum possible penalty, Congress should not routinely criticize criminal pleas unless it is prepared to live with losses by the government in marginal or risky cases.

Third, congressional investigators should be mindful of the inherent difficulties of staging a "balanced" congressional hearing where key factual issues are hotly disputed. Recent history offers classic examples of how normal partisan politics can hamper balanced proceedings where Congress itself attempts to act as a neutral fact finder and weigh guilt or innocence in individual cases.126

Certain types of oversight are inherently difficult to perform fairly in the naturally political forum of a congressional hearing. As a practical matter, which political party is genuinely likely to provide balance by speaking on behalf of those accused of crimes against society, whether environmental or other? The temptations of demagoguery in this area must be consciously anticipated and avoided. As a result, congressional investigators should be especially sensitive to the particular difficulty, and in some cases the improbability, of attaining a fair balance in overseeing individual criminal investigations.127

Fourth, investigators should respect the elaborate system of protections that the U.S. Constitution,128 courts, and legislature have established for protecting the rights of those under criminal investigation or indictment. Congressional hearings should not, for example, be an excuse for allowing government agents (or members of Congress) to avoid the burden of proof that the government would normally bear in asserting that unindicted suspects are guilty of criminal activity. Nor should congressional investigations be a back door for waiving protections of unindicted individuals normally provided by rules of grand jury secrecy. If a prosecutor or other government agent engaged in such conduct directly, he or she would probably be subject to disciplinary action. Congressional investigators should not effectively negate such standards in the name of oversight without a clear and convincing reason for waiving the normal rules.

Conclusion

As a result of their flawed methodology, the Dingell, GW, and Wolpe Reports paint an erroneous and misleading picture. In the world of the congressional critics, prosecutors walk away from "airtight" cases without explanation, and attorneys who have chosen environmental prosecution as their specialty exhibit an irrational and possibly subversive hostility to their work. In this world, certain cases cannot be lost, even though seemingly strong cases are lost in the real world every day:129 to be accused is to be convicted, and for a prosecutor to fail to seek an indictment in any case presented by an investigating agent evidences a lack of environmental purpose.

The Dingell, GW, and Wolpe Reports ignore the essential [24 ELR 10087] role of the prosecutor as a seeker of justice. It is in all citizens' interest that a prosecutor be able, in good faith, to decline a case against a particular suspect without being accused of endorsing the underlying crime.130 The congressional attacks on career attorneys who have declined to prosecute cases that the attorneys believed to be unsupported by the evidence, if allowed to stand unchallenged, will have the opposite effect.

Notwithstanding the enormous resources devoted to them, the Dingell, GW, and Wolpe Reports fail to provide a meaningful basis for addressing important questions about the future of the ECS. For example, would environmental prosecution be more effectively handled by main DOJ or by local U.S. Attorneys? Bureaucratic struggles between main DOJ attorneys and U.S. Attorneys' Offices have existed for many years. Some types of cases (such as tax and antitrust prosecutions) have been effectively handled by centralized prosecution, while most others have been delegated to local U.S. Attorneys. Are environmental criminal violations, like tax violations, so different from typical white-collar matters that they would benefit from a specialized office to prosecute them? Even if the answer to this question is "yes," is the benefit of such specialization lost when the appointed central authority must try to manage criminal cases from a long distance (as ECS attorneys typically do)? Would the ECS be more effective if joined to the DOJ's Criminal Division? Would the benefits of specialization remain without the concomitant difficulties if the typical ECS attorney were a legal specialist or advisor, rather than a trial attorney as is now in theory the case? What is the likelihood that local U.S. Attorneys in some regions of the country would tend to minimize environmental prosecutions against local companies?131

Rep. Dingell's GAO study is a step in the right direction. Its careful statistical approach is far more important than the superficial inquiries about organizational "cultures" that have dominated the congressional studies to date. We should look forward to the day when congressional committees devote less effort to shallow sermonizing, and more to serious study of the difficulties of environmental criminal prosecution, and how the government's criminal enforcement powers can best promote a sound system for regulating industrial pollution.

1. The ENR Division's responsibilities include a wide variety of civil and criminal environmental litigation.

2. For purposes of simplicity, the term "congressional investigators" is used in this Dialogue to refer to the members of the Environmental Crimes Project of the National Law Center at George Washington University (whose work was conducted at the request of Rep. Schumer), as well as to investigators for the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, chaired by Rep. John Dingell (D-MI) and the Subcommittee on Oversight and Investigations of the House Committee on Science, Space, and Technology, chaired by Rep. Howard Wolpe (D-MI).

3. SUBCOMM. ON INVESTIGATIONS AND OVERSIGHT OF THE HOUSE COMM. ON SCIENCE, SPACE, AND TECHNOLOGY, REPORT ON THE PROSECUTION OF ENVIRONMENTAL CRIMES AT THE DEPARTMENT OF ENERGY'S ROCKY FLATS FACILITY, 102d Cong., 2d Sess. 12 (1993) [hereinafter WOLPE REPORT].

4. Memorandum from Rep. John Dingell to Members of the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, SUMMARY REPORT ON THE DEPARTMENT OF JUSTICE UNDERCUTTING THE ENVIRONMENTAL PROTECTION AGENCY'S CRIMINAL ENFORCEMENT PROGRAM, 102d Cong., 2d Sess. (Sept. 9, 1992), [hereinafter DINGELL REPORT], reprinted in EPA'S CRIMINAL ENFORCEMENT PROGRAM: HEARING BEFORE THE SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE HOUSE COMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE HOUSE COMMITTEE ON ENERGY AND COMMERCE, 102d Cong., 2d Sess. 9-55 (Sept. 10, 1992) [hereinafter DINGELL HEARING].

5. Letter from Rep. Charles E. Schumer to William P. Barr, U.S. Attorney General (Oct. 29, 1993).

6. Michael S. Serrill, Law and Disorder: Clinton Urgently Needs a New Attorney General to Handle the Monumental Task of Revamping the Government's Most Troubled Department, TIME, Feb. 15, 1993, at 31.

7. Government prosecutors have not been the only victims of the congressional inquiries' fundamental unfairness. The congressional investigators have generally portrayed the subjects of the underlying criminal investigations as plainly guilty of criminal acts, regardless of whether they have been convicted or, in some cases, even formally charged. As discussed below, these subjects, many of whom are private citizens, have been provided no opportunity to defend their reputations or to present any defenses that they may have. See infra notes 20, 128 and accompanying text.

8. See Jim McGee, Justice Department Sets Changes on Discipline: Prosecutors' Conduct Had Led to Complaints, WASH. POST, Dec. 14, 1993, at A1. See also A Reno Reform, WASH. POST, Dec. 20, 1993, at A24; Jim McGee, War on Crime Expands U.S. Prosecutors' Powers: Aggressive Tactics Put Fairness at Issue, WASH. POST, Jan. 10, 1993, at A1 (first of six part series).

9. See Linda Himmelstein, DOJ's Environmental Mess, LEGAL TIMES, July 20, 1992, at 1, 22-23.

10. See DINGELL REPORT, supra note 4, at 1-3.

11. Primary responsibility for federal criminal prosecution lies with the 94 U.S. Attorneys' Offices nationwide. The U.S. Attorney that heads each office is a presidential appointee. The ECS, which is located in Washington, D.C., has authority to litigate specified criminal offenses generally relating to violations of environmental statutes. The ECS is headed by a Section Chief, who reports to the Assistant Attorney General for the Environment and Natural Resources Division (also a presidential appointee). The U.S. Attorneys' Offices as a whole employ approximately 3,900 attorneys (most of whom work on matters other than environmental criminal matters). The ECS employed 31 attorneys as of 1993. See ENVIRONMENTAL CRIME: ISSUES RELATED TO JUSTICE'S CRIMINAL PROSECUTION OF ENVIRONMENTAL OFFENSES; HEARING BEFORE THE SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS OF THE HOUSE COMM. ON ENERGY AND COMMERCE, 102d Cong., 2d Sess. 7 (1993) (statement of L. Nye Stevens, Director, Planning and Reporting General Government Division) [hereinafter GAO STUDY]. The ECS and the U.S. Attorneys' Offices generally share authority to prosecute criminal environmental matters, and frequently prosecute cases jointly. See id. at 1, 8-12.

EPA's Office of Criminal Enforcement employs approximately 70 criminal investigators to investigate suspected violations of environmental statutes, and is headed by a Director, who reports to EPA's Assistant Administrator for Enforcement and Compliance Assurance. EPA is currently in the midst of reorganizing its enforcement programs. See Memorandum from Steven A. Herman, Ass't Administrator for Enforcement, to Assistant Administrators et al. (Nov. 30, 1993), reprinted in DAILY ENV'T REP. (BNA), Dec. 1, 1993, at E-1.

12. These cases or investigations have generally been labeled using the names of the entities that were the subject of investigation, even though in several cases the subjects themselves have not ever formally been charged with wrongdoing. To avoid ambiguity, this Dialogue will refer to the investigations using the terminology found in the congressional reports. This usage should not be construed to suggest that the subjects of investigation were in fact guilty of the allegations discussed.

The Dingell Report focused on:

1. United States v. PureGro et al., CR90-228AAM to -323AAM (E.D. Wash.), in which a corporate defendant (PureGro) and several individual employees were originally indicted for alleged felony violations related to the application of pesticides in Washington State. PureGro eventually pleaded guilty to a misdemeanor, and reportedly paid a fine of $ 15,000. Charges against individuals were dismissed.

2. United States v. Weyerhauser, in which EPA investigated Weyerhauser for violations of the Clean Water Act. Weyerhauser eventually pleaded guilty to five misdemeanor counts, and paid a fine of $ 125,000.

3. Thermex Energy Corporation (Thermex), in which EPA investigated a company operating in Wyoming concerning alleged mishandling of hazardous waste. No indictment resulted. The company under investigation (Thermex) is now bankrupt.

4. Chemical Waste Management, in which the corporation was investigated for alleged mishandling of hazardous wastes in Alabama. A separate case in Louisiana resulted in convictions of individuals. The Dingell Report focused on the Alabama case, which resulted in no indictments.

5. Hawaiian Western Steel, in which EPA investigated a corporation for alleged Clean Air Act violations. No indictments resulted. The company under investigation (Hawaiian Western Steel) is now in Chapter 11 bankruptcy proceedings.

6. Van Leuzen, in which EPA investigated alleged illegal filling of wetlands by Marius Van Leuzen, an individual. No indictment resulted.

13. According to former DOJ officials, the DOJ offered to allow senior managers, including career prosecutors within ECS management, to address the charges made by EPA agents. The Dingell Committee declined this offer for its September 1992 hearings. See DINGELL HEARING, supra note 4, at 3 (statement of Rep. Dingell) (stating that the DOJ "is now requesting to be heard and has submitted testimony," that testimony will not be received at September 10, 1992, hearing, but that future opportunity to testify will be provided). The Committee also refused to make part of the hearing record a written statement prepared by the DOJ responding to the Committee's inquiries, and removed the written statement from the hearing room when DOJ officials placed it in an area with written statements provided by witnesses at the hearing. Interview with Roger Clegg (Dec. 23, 1993).

In connection with this Dialogue, the author attempted to contact staff counsel for the Dingell Committee to obtain the Committee's position on its choice of witnesses and the restrictions on DOJ participation in its 1992 hearing. The counsel in question did not respond either to repeated telephone calls or a written request for an interview.

14. Rep. Schumer was, at the time the Report was released, Chairman of the Subcommittee on Crime and Criminal Justice of the House Committee on the Judiciary. The letter from Rep. Schumer to Attorney General Barr forwarding the Report does not appear to have been written on behalf of the subcommittee.

15. ENVIRONMENTAL CRIMES PROJECT, NATIONAL LAW CENTER OF GEORGE WASHINGTON UNIVERSITY, PRELIMINARY REPORT ON CRIMINAL ENVIRONMENTAL PROSECUTION BY THE U.S. DEPARTMENT OF JUSTICE (1992) [hereinafter GW REPORT].

The Project Director for the GW Report, Prof. Jonathan Turley, stressed in an interview for this Dialogue that the GW Report is, as its title indicates, "preliminary." Interview with Prof. Jonathan Turley, George Washington University, GW Law Center, Washington, D.C. (Nov. 23, 1993). Although Prof. Turley stated that it is his consistent practice to note the preliminary nature of the GW Report in interviews with reporters, a search of the NEXIS library of the LEXIS database failed to locate any articles in which reporters quoted him as having qualified his criticisms of the ECS or of named ECS attorneys based on the "preliminary" nature of the report. Search of LEXIS-NEXIS Library (Dec. 21, 1993). (In one article, out of dozens quoting or citing Prof. Turley, the Report itself is described as "preliminary"; Prof. Turley himself describes the Report as preliminary in a letter to the editor in a second publication.)

As of November 1993, Prof. Turley stated that the Project's "final" Report remained unfinished, and that it might, but would not necessarily, be released by the end of 1993. Id.

16. Both reports found a failure to prosecute environmental crimes aggressively, poor relations between the ECS and U.S. Attorneys' Offices and EPA, mismanagement of the ECS, and barriers to wetlands prosecutions. See GW REPORT, supra note 15, at 5-6; DINGELL REPORT, supra note 4, at 2-3, 38-39.

17. The GW Report itself states that students involved in writing the Report conducted interviews, in addition to "evaluat[ing] [c]ritical testimony given before various congressional committees [presumably during the hearings conducted by the Dingell Committee]." GW REPORT, supra note 15, at 4. The amount of independent investigation done in compiling the GW Report is difficult to determine, because the Report does not reveal the identities of its sources. (As discussed below, the GW Report bases its criticism of the ECS on anonymous sources. See notes 31 and 65 infra, and accompanying text.) The Report's principal author was unwilling, in response to inquiries made in connection with this Dialogue, to disclose any specific information about other sources that the Report may have relied on. He stated that the Report, as released in 1992, included substantial investigation independent of that found in the Dingell Report, although a substantial portion of the GW Report (approximately 130 out of the Report's 162 pages) was intentionally devoted to detailed analyses of the six case studies that were the focus of the Dingell Report. See GW REPORT, supra note 15, at 34-161. The initial 32 pages of the GW Report criticize, at least in passing, the handling of five additional cases that generally were not the focus of the Dingell Report.

In general, the Dingell Report appears to have been based heavily on testimony by EPA agents and their supervisors. Statements in the GW Report concerning internal ECS personnel matters suggest that its preparers had access to Assistant U.S. Attorneys and ECS attorneys as well. This Dialogue ahs made no attempt to identify any individual sources who supplied information used in the GW Report.

18. The Subcommittee on Investigations and Oversight of the House Committee on Science, Space, and Technology.

19. The Rocky Flats facility had long been the center of local environmental controversies, as have many other U.S. Department of Energy (DOE) nuclear weapons plants. The Rocky Flats investigation gained national prominence when in June 1989, EPA and FBI agents "raided" the plant to search for evidence of criminal wrongdoing. The investigation of the plant concluded in March 1992, when Rockwell agreed to plead guilty and to pay a fine of $ 18.5 million for admitted violations.

The DOJ hailed the Rockwell plea agreement as a record fine under the Resource Conservation and Recovery Act (RCRA) (in fact, the fine exceeded any other criminal penalty assessed under any environmental statute with the exception of the fine paid by Exxon Corporation in connection with the Exxon Valdez spill in Prince William Sound, Alaska).

Readers should be aware that the author of this Dialogue worked on the Rocky Flats investigation during 1990 and 1991. The discussion of Rocky Flats in this Dialogue is limited to publicly available materials and interviews conducted since the author left the DOJ.

20. See, e.g., Bryan Abbas, The Secret Story of the Rocky Flats Grand Jury, DENV. WESTWORD, Sept. 30 - Oct. 6, 1992. The grand jury's unusual public disclosures remain a topic of controversy, and the DOJ's handling of the grand jury received an entire section in the Wolpe Report. WOLPE REPORT, supra note 3, at 121-40. As of December 1993, there were no public reports that the grand jurors had provided information to any of the congressional subcommittees at issue.

On January 26, 1993, the U.S. District Court for the District of Colorado released the grand jury report in redacted form, together with a lengthy 124-page response of prosecutors addressing the charges contained in the grand jury report. In Re Grand Jury Proceedings, Special Grand Jury 89-2 (Rocky Flats Grand Jury), Order Regarding Release of Grand Jury Documents (Civ. Action No. 92-Y-180, Jan. 26 1993). The Court reaffirmed prior decisions not to release the report in its entirety because the report

accused individuals identifiable by name or position …; dealt in rumor and conjecture; engaged in social and even legal argument; dealt with political and social issues outside the province of the special grand jury's duty of investigating crime; contained charges not based upon a preponderance of the evidence; and followed a serious breach of grand jury secrecy.

Id. at 2.

21. See note 3, supra. The timing of the Wolpe Report, which was issued in January 1993, is a tribute to the Committee staff's persevance: by the time the Report was issued Bill Clinton was President-elect, and Rep. Wolpe was preparing to leave Congress.

22. See, e.g., WOLPE REPORT, supra note 3, at 12, 21-33.

23. See Michael Isikoff, Reno Probes Environmental Crimes Unit, WASH. POST, June 16, 1993, at A12. The Dingell Committee's request generated its own controversy, in which former Attorney General Benjamin Civiletti emerged as a leading critic of efforts to question line prosecutors. See Benjamin R. Civiletti, Justice Unbalanced: Congress and Prosecutorial Discretion (address to Heritage Foundation, Washington, DC) (Aug. 19, 1993) (on file with author). The new Clinton DOJ eventually elected to make prosecutors available.

24. See GAO STUDY, supra note 11.

25. U.S. Attorneys' Manual § 5-11.302-303 (revised Jan. 12, 1993), reprinted in DAILY ENV'T REP. (BNA), Jan. 19, 1993, at E-1.

26. Statement of Webster L. Hubbell (Associate Attorney General) Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce 14-16 (Nov. 3, 1993) (on file with author).

27. See GW REPORT, supra note 15, at 5-6; DINGELL REPORT, supra note 4, at 1-2; WOLPE REPORT, supra note 3, at 12.

28. The same cannot be said, however, of the Dingell Committee's decision to commission the 1993 GAO study cited in note 11 above. There, for the first time, one of the congressional committees sought a serious, objective review of possible differences between the ECS and U.S. Attorneys' Offices prosecutions, without resort to the ad hominem and misleading anecdotal evidence relied on in the 1992 congressional studies.

In general, the GAO study showed that the ECS and U.S. Attorneys' Offices prosecutions tended to be statistically indistinguishable in terms of conviction rate, likelihood of indictment, type of disposition (declination, plea, etc.), and type of sentence (fine, probation, imprisonment, etc.). See GAO STUDY, supra note 11, at 31-34. In fact, 35 percent of all federal criminal environmental cases opened during the period 1988-92 were handled by the ECS and U.S. Attorney's Offices jointly. Id. at 15. The GAO reported that U.S. Attorneys' Offices opened 50 percent of all environmental cases in the same time period, and the ECS 14 percent. Performance by various U.S. Attorneys' Offices reportedly varied widely. According to testimony given at the 1993 Hearing (attended by the author), 17 of the 94 U.S. Attorneys' Offices accounted for over 50 percent of prosecutions opened by U.S. Attorneys' Offices.

29. The Wolpe Committee, in contrast to the other investigations, interviewed prosecutors (including prosecutors with whom it disagreed) as well as investigators. The author of this Dialogue was interviewed by the Wolpe staff.

30. The Dingell Committee's task was complicated by the DOJ's refusal in 1992, to allow interviews of line attorneys. Nevertheless, the Committee apparently refused the DOJ's offer to provide testimony by career ECS managers, including those criticized directly by the Committee. See DINGELL HEARING, supra note 4, at 3 (Sept. 10, 1993). Similarly, the Committee print in which the September 10 proceedings are published does not contain a copy of written comments submitted by the DOJ. (Due to the Committee's refusal to respond to inquiries, it is not possible to determine the reason for this omission.) With the cooperation of the Clinton DOJ, the Committee is now interviewing line attorneys who were publicly criticized 14 months earlier. The DOJ is also reportedly preparing its own study of its attorneys' conduct. Isikoff, supra note 23.

31. The GW Project Director explained the failure to provide these subjects an opportunity to defend themselves by noting that some (but not all) victims of the Report's criticism were in (mostly career) management positions. According to the Project Director, he feared that the managers in question would retaliate against his sources if they were allowed to respond to the sources' (anonymous) criticisms. Accordingly, he did not confront these career employees with the charges made against them prior to publication of the Report. Interview with Prof. Jonathan Turley (Nov. 23, 1993); see also DOJ Disputes Report Alleging Failure to Prosecute Environmental Crimes, DAILY REP. FOR EXEC. (BNA), Nov. 2, 1992, at 212 (quoting Prof. Turley as stating that "[a]ny effort to notify upper level DOJ officials about interviews [of sources] would have jeopardized the jobs of staff members … interviewed").

This explanation seems inadequate. First, several of the career employees criticized are not ECS or DOJ "managers," but were nevertheless not interviewed. Second, the charges made in the Report were obviously not kept secret from the public at large regardless of whether sources would be jeopardized. See John H. Cushman Jr., Justice Department Is Criticized Over Environmental Cases, N.Y. TIMES, Oct. 30, 1992, at A16; Sharon LaFraniere, Report Criticizes Justice Department's Pursuit of Environmental Crimes, WASH. POST, Oct. 30, 1992, at A3. Allowing the subjects of the Report's criticisms -- whether or not they worked in "managerial" positions -- to address charges that Rep. Schumer was about to make public would not have exposed the Report's sources to a higher risk of retaliation than the direct release of the Report itself.

32. Some counsel contacted or spoke with the GW Project Director after publication of the GW Report. See, e.g., Letter from David V. Marshall, counsel for individual defendant, to Prof. Jonathan Turley (Apr. 11, 1993) (on file with author). In addition, since the release of the Report, the GW Project Director has contacted counsel in some of the six cases studied by the Dingell Committee, although the utility of such interviews seems questionable in light of the fact that the Project has already reported its "preliminary" results.

33. Rep. Wolpe sought documents from Rockwell attorneys. See infra note 35.

34. The failure of the congressional investigators to contact defense counsel cannot be explained by any deficiencies in the backgrounds of the defense counsel themselves. Not only were all counsel experienced criminal lawyers, but several had strong backgrounds in environmental criminal defense. One defense counsel, for example, was a former chief of the ECS; a second served as Regional Counsel to an EPA regional office; a third had been part of an environmental enforcement unit in a U.S. Attorney's Office; and still another had experience in successfully defending against federal environmental prosecutions in the past and is now a state judge.

35. Interview with Bryan Morgan, Rockwell defense counsel (Haddon, Morgan & Foreman) (Nov. 1993). The former Staff Counsel of the Wolpe Committee acknowledges that the offer was made after the Committee contacted Rockwell's counsel to obtain documents, but provided several reasons for not accepting. Interview with Edith Holleman (Nov. 11, 1993).

First, the Counsel stated that the Committee did not wish to litigate with Rockwell over attorney-client issues. Id. It is unclear why litigation would have been necessary, however, given the company's offer of voluntary cooperation.

Second, the Counsel stated that because the Committee had focused on the conduct of a DOJ investigation, there was no need to obtain information from non-DOJ witnesses such as Rockwell. The Director admitted, however, that the Committee did seek information from other third parties, including the Sierra Club, the Environmental Defense Fund, local environmental activists living near the Rocky Flats plant, the Colorado Department of Health (CDH), and EPA civil agents. Id. Rockwell appears to have been one of the few third parties with knowledge of the case that the Committee chose not to interview.

Finally, the Counsel stated that Rockwell had not been interviewed at least in part because it was unlikely to offer information critical of the DOJ's settlement. Id.

36. Interview with Prof. Jonathan Turley (Nov. 23, 1993). Prof. Turley also expressed a concern that interviews of defense counsel would have compromised the GW Law Center's on-going interviews. As discussed in note 31, supra, it is unclear how interviews with counsel would have compromised the investigation of claims made in a publicly released Report.

37. See note 15, supra.

38. See GW REPORT, supra note 15, at 4 (emphasis added).

39. Interview with Prof. Jonathan Turley (Nov. 23, 1993).

40. No attempt was made to contact Mr. Van Leuzen, who did not have counsel.

41. In cases with multiple defendants, contacts were generally limited to counsel for the lead defendant or defendants.

42. Interview with Michael Rosenthal, counsel for Thermex (Dec. 20, 1993). In Thermex, EPA agents alleged that an ECS attorney stated that the defendant had offered to plead guilty to charges of improper handling of hazardous waste. According to the agents, the ECS' attorney nevertheless declined to prosecute the case. See DINGELL HEARING, supra note 4, at 79 (EPA Report of Investigation). Rosenthal states that he provided DOJ attorneys with an affidavit stating that he had never offered any plea on behalf of his client.

43. The Dingell and Wolpe Reports, to their credit, devote some analysis to discussing possible defenses, although the dismissive presentation of the defenses is hardly neutral. See, e.g., DINGELL REPORT, supra note 4, at 36-37 (in the Hawaiian Steel matter, possible defenses mentioned by prosecutors were "weak at best" or in some cases "absurd[]"); and at 45 (stating that in the Van Leuzen case, unspecified prosecutors asked "numerous questions," many of which "made little sense").

44. See, e.g., Letter from James R. Moore, counsel for Weyerhauser, to Helen Brunner, Asst. U.S. Attorney, Western Dist. of Washington, (Aug. 31, 1990) (on file with author); letter from David V. Marshall, counsel for individual PureGro employee, to Prof. Jonathan Turley, GW Project Director (Apr. 11, 1993) (on file with author); Statement on Plea, United States v. PureGro et al., CR-90-228-AAM to 232 (E.D. Wash. Sept. 16, 1991) (on file with author).

Several cases at issue involved conduct about which defendants had sought advice of counsel, or had retained independent consultants in an effort to comply with applicable regulations. In one case, defense counsel stated that EPA was specifically informed of, and endorsed, conduct that criminal agents and prosecutors later alleged to be criminal.

45. GW REPORT, supra note 15, at 5.

46. Id. at 18 ("seasoned prosecutors were overlooked or demoted").

47. See id. at 15.

48. Id. at 16.

49. Id.

50. Id.

51. Id.

52. Id. at 18.

53. One of the tenets of the GW Report, as well as of other congressional investigations, is that environmental crimes should be treated no differently from any other federal crimes. See id. at 6-13 (criticizing "sharp differences in the methods and standards applied in environmental criminal cases as compared to those applied in conventional criminal cases"). Id. at 6. Given this tenet, it is ironic that the congressional investigators seem to disregard completely prosecutorial experience of ECS prosecutors fighting "other" federal crimes.

54. See note 12 (describing generally the Van Leuzen case), supra; see also notes 77-80 (describing Van Leuzen case), infra and accompanying text.

55. GW REPORT, supra note 15, at 16.

56. Id.

57. When asked to describe what measures the GW Project had used to confirm the allegations of its anonymous sources, which characterized Clardy as hostile to environmental prosecution, the Project Director stated that "independent" methods of confirmation had been employed, but declined to elaborate further in order not to "jeopardize" the Report's sources. Interview with Prof. Jonathan Turley (Nov. 23, 1993). Without commenting on the use of such secret methodology, it is apparent that the "independent" means failed to reveal relevant information regarding Clardy's background that would have been readily available if the GW Law Center had simply spoken with Clardy.

At the time the GW Report was released, Clardy was an Assistant U.S. Attorney in Dallas, Texas, and no longer had supervisory authority over any of the GW Project's confidential ECS sources. See GW REPORT, supra note 15, at 16.

58. Interview with Floyd Clardy, Ass't U.S. Attorney for the Northern District of Texas (Dec. 1993).

59. GW REPORT, supra note 15, at 16.

60. United States v. Brittingham, No. 3-92-032-R (N.D. Tex.). Brittingham's net worth has been reported to be in excess of $ 350 million. R. R. Hunt et al., The Texas 100, TEX. MONTHLY, Sept. 1993, at 129-30 (reporting Brittingham to be one of the 100 richest men in Texas).

Clardy, working with Peter Murtha (another ECS attorney mentioned by the GW Report in an unfavorable context), convicted Brittingham in March 1993 (following the release of the GW Report), after overcoming a well-funded defense team.

Brittingham was fined $ 4 million and sentenced to community service. His co-defendant (another individual) was fined $ 2 million and also sentenced to community service. The two individuals were ordered to pay an additional $ 6 million to fund a lead abatement trust. $ 12 Million Penalty for Two in Environmental Case, MEALEY'S LITIG. REPS./D&O LIABILITY 8-9 (June 2, 1993).

61. Interview with Floyd Clardy (Dec. 1993).

62. See GW REPORT, supra note 15, at 10 ("[t]here has been a notable paucity of individual indictments in past cases").

63. See notes 78-79, infra and accompanying text.

64. Id.

65. The GW Report also cites unnamed ECS attorneys ("some ECS members") who reportedly "supported prosecution." GW REPORT, supra note 15, at 9. Absent further identifying information, it is impossible to evaluate the position taken by the anonymous attorneys with no known official role in the case.

66. Id. at 7, 30.

67. Id. at 16.

68. The Dingell Report resorts to similar distortions. See, e.g., DINGELL REPORT, supra note 4, at 45 (describing Clardy as a recent arrival from the Civil Rights Section who had never tried an environmental case).

69. GW REPORT, supra note 15, at 6.

70. Id. at 22.

71. DINGELL REPORT, supra note 4, at 39.

72. See United States v. Ellen, 961 F.2d 462, 22 ELR 21282 (4th Cir. 1991) (affirming conviction of individual defendant).

73. GW REPORT, supra note 15, at 23.

74. Interview with Barry Hartman, former Ass't Attorney General, ENR Division, Dep't of Justice (Nov. 1993).

75. Interview with Breckenridge Wilcox (Attorney, Arent, Fox, Kintner, Plotkin & Kahn) (Nov. 12, 1993). The former U.S. Attorney stated that prior to acceptance of the plea, Mr. Hartman expressed reservations about the sufficiency of the evidence to sustain felony charges against one individual in the case. These reservations became moot when the plea agreement (which was reportedly supported by the U.S. Attorney and the Assistant U.S. Attorney principally responsible for the case) was reached. The U.S. Attorney agreed that the case against the individual in question was the weakest of the three cases at issue, although the U.S. Attorney himself believed that evidence sufficient to convict was available. Id. The individual in question pleaded guilty to a misdemeanor charge as part of the overall settlement.

It should be noted that the U.S. Attorney in question (Breckinridge Wilcox) has not shied away from criticizing the ECS in other instances. For example, Mr. Wilcox testified against greater involvement by main DOJ in environmental cases at the 1993 hearings held by the Dingell Committee. See Statement of Breckinridge Wilcox (Arent, Fox, Kintner, Plotkin & Kahn) Before the Subcomm. on Oversight and Investigations, House of Representatives, Comm. on Energy and Commerce (Nov. 3, 1993) (on file with author).

76. Interview with Breckinridge Wilcox (Nov. 12, 1993).

77. Q: Did [the Assistant U.S. Attorney] prepare a draft prosecution memo supporting your case?

A: Yes, she did.

Q: Did [the Assistant U.S. Attorney] seem initially interested or enthusiastic even on pursuit of this case?

A: Yes.

Q: And did that change?

A: Yes, it did.

Q: Now, was there any coincidence on this change in [the Assistant U.S. Attorney's] belief that occurred around the same time when the Environmental Crimes Section at the main Justice Department became involved?

A: Yes, that was general same time [sic].

Q: It is a remarkable coincidence.

DINGELL HEARING, supra note 4, at 187 (testimony of Thomas Kohl, Special Agent-in-Charge, EPA, Dallas, Texas).

78. The letter from the U.S. Attorney states in relevant part:

I am advised by the Chief of the Criminal Division, [of the U.S. Attorney's Office] … that the case review committee, after a rather exhaustive review of the Van Leuzen matter, is unanimously recommending a declination for criminal prosecution. Accordingly, and with the benefit of a comprehensive briefing by [the Chief of the Houston Criminal Division], I regretfully inform you that this office will not pursue the Van Leuzen referral criminally.

Letter from Henry K. Oncken, U.S. Attorney, to Katherine Savers McGovern, Deputy Regional Counsel, EPA, Region VI (June 1, 1990), reprinted in DINGELL HEARING, supra note 4, at 192.

79. Id.

Notwithstanding the quoted letter, the GW Report repeatedly characterizes the case against Mr. Van Leuzen as "airtight." GW REPORT at 7, 30. According to the GW Report, "the Project … attempted to find some basis for the decision not to prosecute Van Leuzen." Id. at 8. The Report does not, however, even mention the letter quoted or local prosecutors' concerns about the adequacy of the case presented by investigators.

80. Cf. GW REPORT, supra note 15, at 15 ("The tension between the Environmental Crimes Section and the AUSAs [Assistant U.S. Attorneys] is most apparent in cases like … Van Leuzen").

The Dingell Report concluded that Van Leuzen provided an example of

the inappropriate centralization and micromanagement in Washington of even fairly minor environmental cases, with the prosecutorial decision on a small and straightforward one-defendant case being made at the Assistant Attorney General level.

DINGELL REPORT, supra note 4, at 38. The involvement of the Assistant Attorney General (Barry Hartman) appears, however, to have resulted from EPA's request that the ECS reconsider the Houston prosecutors' decision to decline the case, rather than an attempt by the DOJ to interfere in a small, local matter. The record from the Committee hearings lacks any statement regarding who requested the meeting with Hartman. See DINGELL HEARING, supra note 4, at 188-89, 193-95.

81. See DINGELL HEARING, supra note 4, at 183-91 (testimony of Kathleen A. Hughes, Fred L. Burnside, and Thomas Kohl).

82. DINGELL REPORT, supra note 4, at 5-6, 24-31.

83. The EPA attorney testified as follows:

Mr. Dingell: In the meetings or discussions which occurred, the only fellow that you are aware of that wanted the case dismissed was again [the ECS Section Chief]; is that right?

Ms. Hughes: In the final prosecution meeting in Alabama, the U.S. Attorney reacted to [the Section Chief's] statement that he didn't think that it ought to be prosecuted by saying that he didn't think that we could win it in front of a jury, but that he didn't agree with [the Section Chief]'s statement that all these people were innocent.

Mr. Dingell: He said that you could win it before a jury?

Ms. Hughes: No. The U.S. Attorney said he didn't think we could win it before a jury. That was his position after listening to everything.

DINGELL HEARING, supra note 4, at 167 (testimony of Kathleen A. Hughes, emphasis added).

84. Id. at 167.

85. The GW Report, apparently as the result of a typographical error, omitted Ms. Bernstein's last name. Given the other particulars provided (Jodie Bernstein, for example, is a former General Counsel of EPA and current officer of Chemical Waste Management's parent company), there can be no question that the reference is to her.

86. GW REPORT, supra note 15, at 114 (emphasis added).

87. In an interview conducted in connection with this Dialogue, Mr. Starr stated that he was interviewed by a representative of the GW Project following the public release of the GW Report.

88. According to witnesses who testified before the Dingell Committee, a meeting took place that was attended by Mr. Cartusciello, three other ECS attorneys (including at least one who favored prosecution of the case), an attorney from the Birmingham U.S. Attorney's Office, and EPA attorney, and an EPA agent. Mr. Starr and two other lawyers for Chemical Waste Management (not including Ms. Bernstein) were reportedly present at this meeting. See DINGELL HEARING, supra note 4, at 162 (testimony of Thomas Kohl, Special Agent-in-Charge, Environmental Protection Agency, Dallas, Texas EPA).

There is nothing in the record to suggest that this meeting was anything other than routine. It is unclear whether the GW Report's "discovery" inaccurately identifies the participants in this meeting, or refers to some other meeting that did not take place.

89. See WOLPE REPORT at 12, 102-07.

90. Id. at 22. See also id. at 105 (identifying specific attorneys and amounts proposed by each at the settlement conference).

91. In its table of key participants, the Report contradictorily lists the attorney in question as an employee of "Justice Department (Headquarters)" while giving his title as "Assistant U.S. Attorney, Colorado." WOLPE REPORT, supra note 3, at 6. The text of the Report, however, clearly assumes that the attorney in question was an ECS, rather that U.S. Attorney's Office, attorney. See id. at 21-22, 103.

The Denver-based U.S. Attorney clearly identified the prosecutor in question as being a member of the U.S. Attorney's Office. See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility, STAFF INTERVIEWS CONDUCTED BY THE SUBCOMM. ON INVESTIGATIONS AND OVERSIGHT, Transmitted to the Comm. on Science, Space, and Technology, 103d Cong., 1st Sess., Serial F at 320 (Sept. 1993) [hereinafter WOLPE TESTIMONY] ("[the attorney in question] … -- an assistant in my office -- … had an extremely low value of the case").

The Staff Counsel of the Wolpe Committee stated in an interview conducted in connection with this Dialogue that she had not written the section of the Report in question and had no knowledge of the source of the mistake. Interview with Edith Holleman (Nov. 11, 1993). The Wolpe Committee staff member responsible for writing the section of the Wolpe Report in which the misidentification occurs declined to comment regarding the error.

92. Their boss, the Section Chief of the ECS, reportedly sought a higher fine. See WOLPE REPORT, supra note 3, at 103.

93. The following table summarizes settlement positions of various attorneys involved, as reported by the Wolpe Committee ("AUSA" stands for Assistant U.S. Attorney):

Attorney Proposed Final Settlement Goal
Denver-based AUSA 1 $ 21 - $ 28 million
ECS Line Attorney 1 $ 6 million
ECS Line Attorney 2 $ 4 million
Denver-based AUSA 2 $ 1 million
See WOLPE REPORT, supra note 3, at 102-07.

The Denver-based U.S. Attorney and the Section Chief of the ECS in 1990-91 are generally reported to have taken negotiating positions between Denver-based AUSA 1 and ECS Line Attorney 1. Id. at 103. As the Report notes, the Denver-based U.S. Attorney (and not the ECS) initially agreed to settle the matter for $ 15.5 million, which would have roughly split the difference between the proposals of Denver-based AUSA 1 and ECS Line Attorney 1. The final settlement of $ 18.5 million provided $ 16.5 million to the federal government and an additional $ 2 million to the state of Colorado. Plaintiff's Sentencing Memorandum at 112, United States v. Rockwell (No. 92-CR-107) (D. Colo., filed Mar. 26, 1992).

94. See WOLPE TESTIMONY, supra note 91, at 320.

95. WOLPE TESTIMONY, supra note 91, at 206. The Wolpe Report also omits to note that the statement in question, in the words of the prosecutor who reported it, was probably made "somewhat jokingly."

96. See WOLPE REPORT, supra note 3, at 12-13, 20-27, and 102-07.

97. See, e.g., id. at 35 ("millions of dollars in potential additional criminal and civil penalties on the listed -- and easily provable -- violations were given away"); and at 107 ("we may never know how much more the government could have won if they had pushed Rockwell harder").

98. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Berger v. United States, 295 U.S. 78, 88 (1935) ("The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.")

99. See WOLPE REPORT, supra note 3, at 12.

100. The lead Denver-based prosecutor stated:

[M]y sense is … that Mr. Hartman [Assistant Attorney General, DOJ] largely gave Mr. Norton [the Denver-based U.S. Attorney] a free rein. And in terms of these numbers … he kind of said what his bottom line was and pretty much gave Mr. Norton free rein to do better than that if he could.

WOLPE TESTIMONY, supra note 91, at 212.

101. Id. at 320.

102. The Denver-based head of the prosecution team (who generally was the most bullish member of the team) testified as follows:

From our perspective, one of the problems I have personally with some of the judgments that have been made about the case -- and I'm not just talking about the subcommittee -- you know, the media and the press, the other constituents -- is that there seems to be an impression that this was absolutely a hands-down killer case, and why would we give up such a great case that ultimately, clearly a lot of people would have been convicted and a lot of people would have gone to jail. How could you give that up? This is just a fundamental misconception. This was an extremely difficult, very problematic case.

Id. at 196. Compare WOLPE REPORT, supra note 3, at 36 (violations were "easily provable").

103. For an excellent discussion on the general difficulties in applying EPA regulations to criminal cases, see Judson W. Starr et al., Prosecuting Pollution, LEGAL TIMES (SUPP.), May 31, 1993.

104. Prior to execution of the 1989 federal warrant, Rockwell reportedly paid EPA $ 47,500 in civil penalties in 1987, for improper handling of transformers containing PCBs. See Rockwell Agrees to Pay EPA, ASSOCIATED PRESS, Dec. 21, 1988; see also Plaintiff's Sentencing Memorandum at 118, United States v. Rockwell (No. 92-CR-107) (D. Colo., filed Mar. 26, 1992); Plaintiff's Supplemental Sentencing Memorandum at 18, United States v. Rockwell (No. 92-CR-107) (D. Colo., filed May 28, 1992).

In addition, Rockwell paid the state of Coloradoapproximately $ 100,000 in 1989, in response to civil charges brought by the state after execution of the federal search warrant. See Plaintiff's Sentencing Memorandum at 118, supra note 104. Two citizen enforcement actions, brought by the Sierra Club, were underway at the time the search warrant was executed. See Sierra Club v. U.S. Dept. of Energy [DOE], 770 F. Supp. 578, 22 ELR 20072 (D. Colo. 1991) Sierra Club v. DOE, 22 ELR 20076 (D. Colo. 1991); Sierra Club v. DOE, 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990).

105. WOLPE TESTIMONY, supra note 91, at 216.

106. Plaintiff's Sentencing Memorandum at 106-16, United States v. Rockwell (No. 92-CR-107) (D. Colo., filed Mar. 26, 1992) (footnote omitted). The omitted footnote states that prior to the shutdown (and presumably outside the relevant statute of limitation), the DOE had authorized use of this incinerator for incineration of hazardous waste, even though the incinerator lacked a permit. The DOE had previously acknowledged these prior uses of the incinerator, which were not part of the "midnight burning" controversy.

Prosecutors also concluded that an incinerator in another building (number 776) "was not used to treat or dispose of hazardous or mixed waste." Id. at 107.

107. See WOLPE REPORT, supra note 3, at 91 and notes 108-09, infra.

108. The Committee also cites the existence of certain documents whose significance is unclear. WOLPE REPORT, supra note 3, at 93-94.

109. The Committee largely bases its charge on the following exchange, as reported by the Committee:

Ms. Holleman: Did you have any evidence that DOE had specifically ordered the incinerator to run during this time [after December 1988]?

Mr. Lipsky [The lead FBI agent in the case]: The answer to that question would require me to provide grand jury information protected by Rule 6(e) of the Federal Rules of Criminal Procedure.

Ms. Holleman: Do you know who in DOE, let's say, modified the shutdown order and told Rockwell, yes, you can shut down in this orderly fashion?

Mr. Lipsky: The answer to that question would require me to provide grand jury information protected by Rule 6(e) of the Federal Rules of Criminal Procedure.

WOLPE REPORT, supra note 3, at 93. Fed. R. Crim. P. 6(e) prohibits a government agent from publicly disclosing matters occurring before a grand jury.

110. The views of the members of the prosecution team were obtained during interviews with the author of this Dialogue in November 1993.

111. In addition, the Dingell and Wolpe Reports were highly critical of individual decisions made by political appointees, but did not generally attribute the mistakes alleged to overtly "political" causes.

112. According to the Report:

While this Report makes no direct findings of political interference in individual ECS cases, federal prosecutors and investigators have given the Project detailed allegations of such conduct.

GW REPORT, supra note 15, at 31.

The GW Report declines to repeat these unproven allegations in more detail, reportedly so that the specific officials accused could be given an opportunity to respond. Id. at 31. In June 1993, the GW Project Director nevertheless stated in an article for the Washington Post:

Environmental crimes is the most visible example of a section compromised by political operatives. People were promoted within the environmental crimes section because of their willingness to carry the water for the Bush White House and political appointees.

Isikoff, supra note 23.

Similarly, in September 1993 the GW Director charged that "[n]ever before [have] line prosecutors faced such political interference in handling individual cases," and that "career prosecutors … were forced to drop charges against criminals due to political interference from Reagan and Bush administration officials." Civiletti Speech to Heritage Foundation Raises a Ruckus," CORP. CRIME REP., Sept. 6, 1993, at 1.

113. United States v. PureGro et al., CR90-228AAM to -323AAM (E.D. Wash.). In PureGro, the corporation and four employees were initially indicted for alleged felonies relating to the handling of pesticides. The government subsequently dismissed charges against all individuals.

114. Letter from David V. Marshall, counsel for individual defendant, to Jonathan Turley 5-6 (Apr. 11, 1993) (on file with author). The letter was written in the context of an article published by the Project Director in the Wall Street Journal discussing, among other matters, the PureGro case.

115. See GW REPORT, supra note 25, at 29 (description of former Assistant Attorney General Hartman as "political hack" is, according to the GW Project's sources, "understated"). The GW Law Center did not interview Mr. Hartman before publication of this charge.

116. For a concise history of the ECS, see Judson W. Starr, Turbulent Times at Justice and EPA: The Origins of Environmental Criminal Prosecutions and the Work That Remains, 59 GEO. WASH. L. REV. 900-15 (1991).

117. See Department of Justice Press Release (May 8, 1992) (as measured by annual number of indictments). The same statistics on the increase in indictments can be found in the GW Report itself. See GW REPORT, supra note 15, at 7. Since fiscal year 1987, the annual number of indictments has generally been between 100 and 135.

The cited DOJ Release is relatively imprecise in defining the data upon which it is based. The GAO STUDY, supra note 11, provides a more detailed statistical analysis of federal environmental prosecutions generally for the fiscal years 1988 to 1993.

118. See GAO STUDY, supra note 11, at 27.

119. See DINGELL REPORT, supra note 4, at 2 (DOJ enforcement figures "do not indicate how much more could have been achieved but for the actions of the ECS"); GW REPORT, supra note 15, at 13.

120. GW REPORT, supra note 15, at 13.

121. Although the GW Report vaguely refers to the absolute number of civil cases, it cites no statistics. Id. at 13.

122. Id. at 13.

123. The U.S. Department of Commerce estimates that private businesses in the United States spent between $ 30 and $ 50 billion a year each year between 1972 and 1990 (in 1987 dollars). See COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: 23RD ANNUAL REPORT 283 (1993).

124. See, e.g., id. at 8, 326 (reporting decreased emissions of air pollutants, including particulates, sulfur oxides, nitrogen oxides, volatile organic compounds, carbon monoxide, and lead since 1970).

125. See id. at 321 (modest decline in ambient concentrations of selected water pollutants), id. at 329 (general decline in concentration of air pollutants including particulates, sulfur oxides, nitrogen dioxide, ozone, carbon monoxide, and lead). Water statistics should be used with some caution due to the relatively small percentage of pollutant loadings attributable to industrial sources that are the typical targets of environmental prosecutions.

126. Relevant examples range from the Iran/Contra matter to the nomination of Justice Clarence Thomas.

127. In this context, it is notable that neither the House nor Senate Judiciary Committees as such have played any role in the current dispute. (Rep. Schumer serves on the Judiciary Committee, but appears to have been acting in his capacity as an individual representative with respect to the GW Report.) The most active committee to date, Rep. Dingell's, generally has responsibility for EPA, and not the DOJ.

128. Former Attorney General Benjamin Civiletti has taken the position that Congress' recent threat to issue subpoenas to career prosecutors to obtain testimony regarding specific prosecutions undermines the executive branch's constitutional authority and exceeds Congress' legitimate oversight authority. See Civiletti, supra note 23. Congressional representatives have contested Civiletti's claims. See, e.g., Reid P. F. Stuntz, Remarks at the American Law Institute-American Bar Association Course of Study: Criminal Enforcement of Environmental Law (Oct. 7, 1993) (on file with author) (current congressional efforts at oversight are necessary for Congress to fulfill its legislative functions).

From a more academic point of view, Prof. Kenneth Culp Davis has long advocated increased scrutiny of prosecutorial discretion. See, e.g., KENNETH CULP DAVIS, DISCRETIONARY JUSTICE 188-90, 224-25 (1971).

129. At least one member of the Dingell Committee exhibited a more realistic view of the inherently tenuous nature of even seemingly straightforward prosecutions. See DINGELL HEARING, supra note 4, at 198 (statement of Rep. Eckart regarding his own humbling experiences as a prosecutor):

I lost my first seven trials that I prosecuted. I lost -- a guy had had his driving license suspended but for work privileges. He left work at 2:30 in the afternoon and was found inebriated, relieving himself in a beer joint parking lot at 1:30 in the morning, totally inebriated, and I tried to prosecute him because he [obviously] was not … driving home from work. I lost that one.

130. In several well-known recent cases, overly aggressive prosecutions have led to undesirable results. In Demjanjuk v. Petrovsky, 1993 U.S. App. LEXIS 29694 (Nov. 17, 1993), the Circuit of Appeals for the Sixth Circuit held that DOJ attorneys engaged in misconduct by failing to disclose exculpatory evidence in litigation that led to the extradition of a subject of investigation (an alleged Nazi concentration camp guard) and the subject's trial on capital charges in the State of Israel. Id. at 3. In Jacobson v. United States, __ U.S. __, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992), the Supreme Court held that government investigators had entrapped a defendant convicted of receiving child pornography. In a third, widely publicized case, the DOJ voluntarily dismissed charges originally brought against James Beggs in connection with a fraud investigation in the defense industry. See U.S. Admits Error in Fraud Case, CHICAGO TRIBUNE, June 23, 1987, at A13 ("The government is standing up and saying we were wrong."). Prior to dismissal of the case, Beggs was forced to resign from his position as administrator of the National Aeronautics and Space Administration.

In light of the ultimate disposition of these cases, a decision to decline prosecution in any of the cases should not have been interpreted to mean that the prosecutors in question generally opposed prosecution of crimes related to the Holocaust (in the case of Demjanjuk), or child pornography (in the case of Jacobson), or defense fraud (in the case of Beggs). The congressional investigations that form the subject of this Dialogue, however, uniformly attribute such improper motives to the prosecutors they investigated. See, e.g., GW REPORT, supra note 15, at 16 (characterizing named prosecutors as exhibiting "a noted disinclination to prosecute environmental cases"); DINGELL REPORT, supra note 4, at 36-37, 45 (characterizing prosecutors' concerns about the validity of contemplated charges as "weak," "absurd," and "ma[king] little sense"); WOLPE REPORT, supra note 3, at 12 (DOJ officials "appeared to place little value on environmental crimes").

131. The tendency of environmental cases to result in Balkanized decisionmaking has long been noted. See generally BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR (1981).

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