The Department of Justice Office of Public Affairs Is Not Doing Its Job

April 2, 2024

By Sara Kropf

Note: A similar version of this article was also published in Law360.

When the Department of Justice indicts a defendant or prevails at trial, the Office of Public Affairs issues a press release. Those press releases tout the seriousness of the charged conduct and often describes it in considerable detail. Some U.S. Attorneys would hold high-profile press conferences to dramatically announce updates in particularly high-profile cases, generating considerable media interest and public accolades.

On the DOJ website, OPA describes its role as “ensuring that the public is informed about the Department’s activities” and that “information provided to the news media by the Department is current, complete and accurate.”

OPA, however, only takes this role seriously when it comes to describing the Department’s wins. When it comes to DOJ losses, OPA is nowhere to be seen. It does not issue press releases when a defendant is acquitted at trial, when a verdict is reversed on appeal, or when the court finds prosecutorial misconduct requiring dismissal of the charges. It also does not update existing press releases about indictments to include that information. This should change.

Office of Public Affairs

Department of Justice lawyers spend considerable effort drafting press releases about their cases. The statement is written and edited by the prosecutors substantively involved in the case. Either OPA or the individual U.S. Attorney’s Office press office will vet and issue the statement.

These statements happen in real time. As soon as the indictment is returned, or a jury finds a defendant guilty, or a judge imposes a sentence, the Department’s press function springs into action to issue a public statement. To be fair, DOJ does include standard language in a press release about an indictment:

An indictment contains allegations that a defendant has committed a crime. Every defendant is presumed innocent until and unless proven guilty beyond a reasonable doubt.

These press releases serve an important function. They alert the public and the media to important criminal cases and provide information about the Department of Justice’s strategic priorities.

The Jeff Fortenberry Case

In October 2021, then-Congressmember Jeffrey Fortenberry was indicted in California for making false statements to federal officials during an investigation into illegal campaign contributions. DOJ issued a press release about it, titled “U.S. Rep. Jeff Fortenberry Charged with Scheme to Deceive Federal Investigators Probing Illegal Campaign Contributions in 2016.” Mr. Fortenberry was convicted at trial in March 2022. DOJ issued a second press release, titled “Congressman Jeff Fortenberry Found Guilty of Concealing Facts and Lying to Investigators Probing Illegal Campaign Contributions.”

Mr. Fortenberry appealed his convictions, arguing that there was no venue in California. The Ninth Circuit reversed the convictions in December 2023. DOJ did not issue a press release about the reversal. It also did not update either of the first two press releases to reflect the fact that the convictions had been reversed. Someone who reads only the first two press releases has no idea what happened in the case.

If OPA’s role is to make sure that the public and the media have “current, accurate and complete” information” about Department cases, then it is baffling why OPA does not update the press releases to include the ultimate outcome of the case. The press releases about Mr. Fortenberry’s indictment and conviction are, at best, incomplete, and, at worst, inaccurate. They mislead the reader about the case’s status.

Mr. Fortenberry’s case is far from the only high-profile defendant to face this situation. Senator Robert Menendez was indicted in 2015 for bribery, conspiracy, and honest services fraud. As expected, DOJ issued a lengthy press release about it. But then in 2017, the case ended in a mistrial when the jury could not reach a unanimous verdict, and the judge acquitted him of seven of the eighteen charges. DOJ decided not to retry the case. Effectively, it gave up. The media reported that the jurors had voted 10-2 for acquittal.

But the 2015 press release about the charges against Senator Menendez remains on DOJ’s website and says nothing about the fact that DOJ was unable to obtain a conviction at trial for those charges. Given the new charges against Senator Menendez, one can imagine that the media and the public may look into these previous charges. DOJ’s 2015 press release is the only official one. There is no follow-up press release announcing the hung jury, the partial acquittal by the judge, and DOJ’s decision that it would not pursue the charges any longer.

Perhaps most disturbing is that OPA remains silent when convictions are reversed for prosecutorial misconduct. When a person is charged or convicted of a crime, DOJ is quick to make the defendant’s name public and to mention the prosecutors and key law enforcement agents by name—giving them credit. But when DOJ lawyers commit misconduct that results in a conviction’s reversal, DOJ does not correct the press release or issue a press release about the reversal that names the prosecutors who committed the misconduct.

For example, one can read the original press release about Senator Ted Stevens’ 2008 indictment and have no idea that the convictions were reversed a year later because they were obtained by prosecutorial misconduct when the government failed to disclose key exculpatory evidence.

The Harm from Incomplete Press Releases

DOJ press releases rank high in search results, meaning that if you search for a defendant’s name, even years later, it is very likely that DOJ’s press release will be the first hit. For well-known individuals, like Mr. Fortenberry, those search results will likely return media articles about the acquittal or dismissal. But for those individuals who are not well known, media coverage may be non-existent. The DOJ press release is the only easily located information.

These inaccurate and incomplete press releases can have negative real-world effects. Imagine an individual who was charged with a federal crime but later acquitted. A prospective employer’s due diligence process may reveal the press release about the indictment and decide not to interview the person. The reputational harm of having an inaccurate DOJ press release is immense.

Changing OPA practice would not be a heavy lift. According to the Pew Research Center, only .4% of defendants in 2022 went to trial and were acquitted. About 8.2% of defendants had the charges dropped at some point. About 90% of charged defendants pleaded guilty. Making the press releases accurate would involve insertion of a single paragraph at the beginning of the statement to state that the charges had been dismissed or the defendant was acquitted at trial, or the convictions were reversed on appeal.

If DOJ lawyers and OPA have enough time to draft press release about their victories, they should find the time to ensure those press releases are accurate when the case is concluded, even if the result is a loss for the agency.

Update: Since Law360 published this article, I’ve heard from several lawyers that they were able to convince DOJ to update a press release to include acquittals or dismissal of charges. So, defense lawyers, if you win at trial to DOJ dismisses some charges, push the line attorney to update the press release prominently.

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