The relevant parts of Federal law applicable to a U.S. Attorney, Michael G. Bailey, who takes the position under false pretenses; and keeps his heavy hand of prosecutorial discretion over the court’s mouth; to keep adjudication of what he was responsible for while serving as the chief deputy of the Arizona Attorney General, from ever seeing light of day. Such acts could only have been for the purpose of withholding a court opinion that would have exposed Bailey’s and Attorney General Mark Brnovich’s supervision of illegal activities against the United States 9th Circuit of Appeals.
While the complaint filed against Michael G. Bailey is reviewed by the office of Inspector General of the United States Department of Justice; EVERY SINGLE CASE MANAGED BY MR. BAILEY IS NOW SUSPECT AS FRUIT OF A ROTTEN TREE!
This list is by no means complete.
An employee is prohibited from participating in any matter in which he has a financial interest. In addition to an employee’s own financial interest, certain interests are considered his (“imputed” to him), such as those of his spouse, minor children and business partners. However, an employee may participate in such a matter if he has a waiver.
18 U.S.C. § 208 and 5 C.F.R. § 2635.401-403 (see Subpart D – Conflicting Financial Interest).
An employee may be covered by a general waiver, called a regulatory exemption, for holdings in a diversified mutual fund, certain employee benefit plans and interests in securities up to $15,000 in a matter with parties and $25,000 in matters without specific parties. 5 C.F.R. § 2640.101-206. In addition, an employee may be granted an individual waiver by his Component Head when it is determined that his interest is not so substantial as to affect the integrity of his services to the Government. 5 C.F.R. § 2640.301-304. Here are sample individual waivers.
In addition to an exemption or an individual waiver, other remedies for a financial conflict include disqualification and divestiture of the interest. If an employee is directed to divest his interest, he may be eligible for a Certificate of Divestiture from the Office of Government Ethics. Here is a sample request for a Certificate of Divestiture.
5 C.F.R. § 2634.1001-1004 (see Subpart J – Certificates of Divestiture)
Generally, an employee should seek advice from an ethics official before participating in any matter in which her impartiality could be questioned. An employee may not participate, without authorization, in a particular matter having specific parties that could affect the financial interests of members of her household or where one of the following is a party or represents a party:
Someone with whom an employee has or is seeking employment, or a business, contractual or other financial relationship;
A relative with whom an employee has a close relationship;
A present or prospective employer of a spouse, parent or child; or
An organization which an employee now serves or has served, as an employee or in another capacity, within the past year.
If a conflict of interest exists, in order for the employee to participate in the matter the head of the employee’s component, with the concurrence of an ethics official, must make a determination that the interest of the government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the Department’s programs and operations. The determination must be made in writing. Here are samples of 502 determinations.
5 C.F. R. § 2635.501 – 503 (Subpart E – Impartiality in Performing Official Duties)
In addition to the impartiality regulation, 28 C.F.R. § 45.2 prohibits a DOJ employee, without written authorization, from participating in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution, or any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.
5 CFR § 2635.702 – Use of public office for private gain.
An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.
(a)Inducement or coercion of benefits. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.
Offering to pursue a relative’s consumer complaint over a household appliance, an employee of the Securities and Exchange Commission called the general counsel of the manufacturer and, in the course of discussing the problem, stated that he worked at the SEC and was responsible for reviewing the company’s filings. The employee violated the prohibition against use of public office for private gain by invoking his official authority in an attempt to influence action to benefit his relative.
An employee of the Department of Commerce was asked by a friend to determine why his firm’s export license had not yet been granted by another office within the Department of Commerce. At a department-level staff meeting, the employee raised as a matter for official inquiry the delay in approval of the particular license and asked that the particular license be expedited. The official used her public office in an attempt to benefit her friend and, in acting as her friend’s agent for the purpose of pursuing the export license with the Department of Commerce, may also have violated 18 U.S.C. 205.
(b)Appearance of governmental sanction. Except as otherwise provided in this part, an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another. When teaching, speaking, or writing in a personal capacity, he may refer to his official title or position only as permitted by § 2635.807(b). He may sign a letter of recommendation using his official title only in response to a request for an employment recommendation or character reference based upon personal knowledge of the ability or character of an individual with whom he has dealt in the course of Federal employment or whom he is recommending for Federal employment.
An employee of the Department of the Treasury who is asked to provide a letter of recommendation for a former subordinate on his staff may provide the recommendation using official stationery and may sign the letter using his official title. If, however, the request is for the recommendation of a personal friend with whom he has not dealt in the Government, the employee should not use official stationery or sign the letter of recommendation using his official title, unless the recommendation is for Federal employment. In writing the letter of recommendation for his personal friend, it may be appropriate for the employee to refer to his official position in the body of the letter.
(c)Endorsements. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office to endorse any product, service or enterprise except:
(1) In furtherance of statutory authority to promote products, services or enterprises; or
(2) As a result of documentation of compliance with agency requirements or standards or as the result of recognition for achievement given under an agency program of recognition for accomplishment in support of the agency’s mission.
A Commissioner of the Consumer Product Safety Commission may not appear in a television commercial in which she endorses an electrical appliance produced by her former employer, stating that it has been found by the CPSC to be safe for residential use.
A Foreign Commercial Service officer from the Department of Commerce is asked by a United States telecommunications company to meet with representatives of the Government of Spain, which is in the process of procuring telecommunications services and equipment. The company is bidding against five European companies and the statutory mission of the Department of Commerce includes assisting the export activities of U.S. companies. As part of his official duties, the Foreign Commercial Service officer may meet with Spanish officials and explain the advantages of procurement from the United States company.
The Administrator of the Environmental Protection Agency may sign a letter to an oil company indicating that its refining operations are in compliance with Federal air quality standards even though he knows that the company has routinely displayed letters of this type in television commercials portraying it as a “trustee of the environment for future generations.”
An Assistant Attorney General may not use his official title or refer to his Government position in a book jacket endorsement of a novel about organized crime written by an author whose work he admires. Nor may he do so in a book review published in a newspaper.
(d)Performance of official duties affecting a private interest. To ensure that the performance of his official duties does not give rise to an appearance of use of public office for private gain or of giving preferential treatment, an employee whose duties would affect the financial interests of a friend, relative or person with whom he is affiliated in a nongovernmental capacity shall comply with any applicable requirements of § 2635.502.
(e)Use of terms of address and ranks. Nothing in this section prohibits an employee who is ordinarily addressed using a general term of address, such as “The Honorable”, or a rank, such as a military or ambassadorial rank, from using that term of address or rank in connection with a personal activity.
Misuse of Position
An employee may not use his public office for his own private gain or for that of persons or organizations with which he is associated personally. An employee’s position or title should not be used to coerce; to endorse any product, service or enterprise; or to give the appearance of governmental sanction. An employee may use his official title and stationery only in response to a request for a reference or recommendation for someone he has dealt with in Federal employment or someone he is recommending for Federal employment.
5 C.F.R. § 2635.702 (see Subpart G – Misuse of Position; Use of Public Office for Private Gain)
18 U.S. Code §242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Obstruction of justice
18 U.S.C. § 1503 defines “obstruction of justice” as an act that “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
Someone obstructs justice when that person has a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, that person must not only have the specific intent to obstruct the proceeding, but that person must know (1) that a proceeding was actually pending at the time; and (2) there must be a connection between the endeavor to obstruct justice and the proceeding, and the person must have knowledge of this connection.
§ 1503 applies only to federal judicial proceedings. Under 18 U.S.C. § 1505, however, a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal administrative agency. A pending proceeding could include an informal investigation by an executive agency.