Thank you, Judge Cole, for that kind introduction. It’s good to see you again and to be back here in Columbus. And thank you, Judge Sutton, for co-hosting this terrific conference and for inviting me to join you today. It is a true honor to appear before so many distinguished judges, academics and practitioners.
Some of you may know that I have more than a simply institutional interest in the Sixth Circuit. Indeed, it is fair to say that your court may, in fact, enjoy undue influence within the Department of Justice – and especially within my office.
With me here today are my counselor and deputy chief of staff, Jim Garland, a Columbus native who clerked for Judge Cole, and Aaron McCree Lewis, another counsel in my office who is the grandson of Judge (and former Solicitor General) Wade McCree, the “poet laureate of the Sixth Circuit.” Aaron is also a proud graduate of “That School Up North,” although he warned me to be careful about mentioning that fact in this town. I am also joined by Trisha Anderson, a star attorney in our Office of Legal Counsel who clerked for Judge Sutton and who won the Attorney General’s Award last year in recognition for her outstanding service to the department. So with a staff like mine, you can imagine that my appearance here today was not altogether optional.
I understand that, yesterday, I missed an excellent presentation – “Here Stood Lincoln” – about the famous speech that the future 16th President delivered at the Ohio Statehouse in 1859. This afternoon, I submit to you the same pledge, and warning, that Lincoln offered his audience: “If you will give me your attention,” he said, “I shall be able to interest you to a moderate degree…. [But] you should not raise your expectations.”
I’m grateful for your attention. And I’d like to speak with you about several topics that I know are of interest, and concern, to each of you and to all those who serve as stewards of our nation’s justice system. In addition to providing an update on some of the Justice Department’s top priorities, I’d also like to discuss the work we’re doing – and the historic commitment we’ve made – to ensure that justice is done in each and every criminal case our federal prosecutors pursue.
First, our priorities. I'm proud to report that, over the past year, we’ve made meaningful progress in reinvigorating the Department’s traditional missions while at the same time focusing steadfastly on protecting our national security. Without ever relaxing our guard in the fight against global terrorism, we have redoubled our efforts to fight crime, to protect civil rights, to preserve the environment, to defend the public fisc and to ensure fairness in the marketplace. In sum, we have worked hard to address the issues that the American people care most about, and we have done so guided always by the facts and the law, and the facts and law alone.
A significant example is our effort to confront the wrongdoing that’s come to light in the wake of the historic financial crisis that we have endured these last few years. I am, of course, talking about fraud: corporate, securities and commodities fraud; mortgage fraud; health care fraud; foreign bribery; tax fraud; and fraud in connection with the efforts to rescue and rebuild our economy.
In each of these areas, the department has committed record resources, and has established new partnerships, to fight crimes that too often are thought of as victimless. In reality, as you’ve seen in your courtrooms, fraud ravages neighborhoods. It destroys families. It robs workers of their pensions and families of their dreams. It discourages investor and consumer confidence. On a very real level, fraud threatens our nation’s economic future.
But we are fighting back. The cornerstone of this work is the interagency Financial Fraud Enforcement Task Force that President Obama established last fall. The Justice Department is leading this initiative. And our mission, while critical, is quite simple. With our federal, state and local partners, we’re focused on strengthening our government’s ability to combat financial crime and to prevent such practices from contributing to a future financial meltdown.
Our approach is working. Our U.S. Attorneys have successfully prosecuted billion-dollar frauds of breathtaking scope and sophistication – including one such case right here in the Southern District of Ohio. Through our Criminal Division, we are aggressively seizing ill-gotten gains from fraudsters around the world, and are making every effort to return these stolen funds to their rightful owners.
Our investigative techniques are becoming more sophisticated, and more effective. No longer do we rely chiefly on self-reporting or tips before acting. We are proactive. We are innovative. And we are using every tool at our disposal to prosecute both corporations and individuals who would betray the public’s trust and steal from the public’s purse.
Through our partnership with the Department of Health and Human Services, for example, we’ve brought the full resources of the federal government to bear against those who illegally divert taxpayer resources from government-funded healthcare programs. Last year, the Justice Department filed more than 800 indictments, and achieved nearly 600 convictions, for health care fraud-related charges. Just last week, this work resulted in a $520 million settlement – the largest amount ever paid by a company in a civil settlement of off-label pharmaceutical marketing claims. And, over the past 15 months, the Justice Department has recouped close to $3 billion in health care fraud cases through use of the False Claims Act.
We are also prioritizing our efforts to combat mortgage fraud, a problem that in recent years has reached crisis proportions. And working with our colleagues in the Department of Housing and Urban Development and other federal, state and local agencies, we are making measurable strides in seeking justice for mortgage fraud victims and preventing future mortgage fraud schemes.
In these efforts and all others, I am committed to ensuring integrity, transparency and accountability at every level, and across every component, of the Department of Justice. And in this regard, as I have made clear from the very outset of my tenure as Attorney General, there can be nothing more important than for our prosecutors to adhere to the highest standards of ethical conduct in criminal cases. Justice Stevens, from whom you heard earlier today, described this duty so well in his opinion in U.S. v. Agurs, when he wrote: “Though the attorney for the sovereign must prosecute the accused with earnestness and vigor, he must always be faithful to his client’s overriding interest that ‘justice be done’. He is the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”
Justice Stevens was referring to the responsibilities of prosecutors to act ethically and fairly – no matter what the case and no matter what the pressures to win.
It is a commitment that guided one of the most challenging decisions I’ve had to make during my tenure as Attorney General. Last April, I made the difficult but appropriate choice to drop charges against Senator Ted Stevens in a case that also raised questions of prosecutorial conduct. Upon reaching that decision, I immediately directed the Justice Department to undertake a thorough review of all policies, practices and training related to criminal case management and discovery – and to suggest areas for improvement.
Now let me be clear about one thing. In discussing this work, we must acknowledge a basic and indisputable fact: Incidents of discovery failure by federal prosecutors are extraordinarily rare. The overwhelming majority of federal prosecutors meet their obligations day in and day out, in case after case, and in motion after motion. And when rare lapses do occur, they are almost always the result of inadvertent error or oversight, and not because of willful misconduct.
Now, that said, we must take seriously each and every lapse, no matter the cause. Fair and proper discovery and disclosure is critical to ensuring fairness in our courtrooms. In addition to damaging, and in some cases derailing, important prosecutions, lapses can undermine public confidence – and, frankly, your confidence – in federal prosecutors and in the entire criminal justice system. At the proverbial end of the day, the lawyers who serve the department are not here to win cases but, as Justice Stevens put it, to see that justice is done. If we focus on that, I believe we will win the cases we should.
So what are we doing, exactly, to “get to zero” – zero violations, zero ambiguity, zero trials that are decided on the basis of the prosecutor’s conduct rather than the defendant’s guilt or innocence?
First, at my direction, the Department has reviewed, and now is taking steps to strengthen, criminal discovery and case management policies and procedures across the country and within every U.S. Attorneys’ Office. The goal is not, and should not be, a uniform policy. As you know well, every district has unique circumstances, resources and rules. But we are working toward a more consistent national approach, while establishing a clear baseline to make certain that a discovery policy of “anything goes” is never the policy of any federal prosecutor.
Second, the Department is enhancing training so that prosecutors learn not only to meet the prosecutorial obligations established in Brady, Giglio, and their progeny, but to exceed them when there is doubt. To date, more than 5,000 prosecutors, including all new AUSAs, have received criminal discovery training. And we are currently working to establish and codify in the U.S. Attorneys’ Manual an innovative and aggressive training regimen for new prosecutors – as well as a refresher course for all – that would complement the regional training that long has been a staple for both new and experienced federal prosecutors.
Third, the Department is dramatically increasing the availability of discovery resources for prosecutors, paralegals and law enforcement agents – including a discovery practice manual (or “Blue Book”), due out this summer. And, by revitalizing the Computer Forensics Working Group and working with the Federal Public Defender and Sedona Conference, we are exploring new ways to advance our technology and improve our electronic discovery practices.
Leading this historic commitment is the head of the Department’s Criminal Division, Lanny Breuer, and our first National Criminal Discovery Coordinator, Andrew Goldsmith, a senior prosecutor with two decades of experience. Judge Emmet Sullivan, whose ruling in the Stevens case prompted the work that Lanny and Andrew are now spearheading, has dubbed the two of them, and their colleagues in this effort, “the dream team.” But let me assure you all: This is anything but a top-down initiative. Prosecutors, paralegals and law enforcement agents at all levels are engaged – and eager to be a part of – this work. And they are dedicated to ensuring its broadest possible impact.
Now, I understand that some in the defense bar and elsewhere have latched onto my decision in the Stevens case as evidence that the questions of prosecutorial conduct it raised are somehow representative of a larger trend. Such rhetoric is not only misleading and overblown; it can also be disruptive, particularly when it inspires frivolous motions filed under the pretense that federal prosecutors are regularly derelict in meeting their duties.
Of course, they are not. They are as committed to doing justice as is everyone in this room. And I am determined to provide them with the tools, the resources, and the training needed to help them fulfill their obligations in every case. This work – not a rule change or, as some have suggested, a modification of Rule 16 – is how we will turn the page on the Stevens prosecution. And it is how we will achieve the vision that Justice Stevens set forth in Agurs more than thirty years ago.
Once again, let me thank you for this opportunity to discuss the Justice Department’s ongoing commitment to its most fundamental responsibility: ensuring justice for all. With your continued support – and, of course, your judicious oversight – I’m certain that we can, and that we will, deliver on this promise.
Thank you very much.