DOJ watchdog declines investigation in Reflecting Pool case

The Justice Department's inspector general has declined to investigate allegations of misconduct against the prosecutors who brought an indictment against Olympian David Hearn that falsely accused him of vandalizing the Reflecting Pool.

In an Oct. 21 letter seen by CBS News, lawyers for Hearn revealed that DOJ's Inspector General Don Berthiaume determined the allegations fell outside of his purview, and referred the matter to the Office of Professional Responsibility.

Established in the wake of the Watergate scandal, the Office of Professional Responsibility is charged with investigating certain categories of attorney misconduct. 

Unlike the inspector general, who is presidentially-appointed and Senate confirmed, however, the head of the Office of Professional Responsibility is appointed by the Attorney General and is generally viewed as less independent than an inspector general's office.

Last year, Justice Department leadership removed the career official in charge of the office, a maneuver that raised concerns among longtime department veterans about whether the office would be willing to hold Trump-appointed officials accountable.

In their response to the inspector general's declination, Hearn's attorneys noted that the office has been depleted by roughly 50% since the start of the Trump administration. 

"The plain fact is that OPR is no longer a fully functioning entity capable of conducting rigorous oversight," they wrote. 

The attorneys added  that the declination from the inspector general's office means that an investigation "will simply not take place." 

On Oct. 6, Hearn's lawyers asked both the DOJ inspector general and the inspector general at the Interior Department to investigate the circumstances surrounding Hearn's arrest, indictment and the dismissal of the felony charge of destruction of property.

The indictment was announced in a fiery press conference on July 2 with Jeanine Pirro, the U.S. Attorney for the District of Columbia, who accused him of ripping up a piece of the Reflecting Pool liner with his hands.

She later dismissed the case, after she said new information had come to light showing the damage had been caused by a contractor's "botched installation," not vandalism. 

In their follow-up letter to the Justice Department's internal watchdog office, Hearn's lawyers said an investigation was warranted because the handling of the case by the Justice and Interior departments points to "numerous potential crimes, including witness tampering, subornation of perjury, obstruction of justice, and criminal civil rights violations."

"The question presented here is not whether prosecutors exercised poor judgment in the course of litigation. Rather, the allegations concern potential criminal conduct, including witness tampering, subornation of perjury, obstruction of justice, and conspiracies against civil rights," said his lawyers, which include former DOJ Inspector General Michael Bromwich.

"Such allegations fall squarely within the OIG's traditional investigative function," they said. 

One such example of a possible crime, they said, was the fact that a key witness in the case abruptly changed the content of the testimony before the grand jury.

At first, the witness told the grand jury that the Reflecting Pool was already in need of repairs. The witness also was unable to estimate the cost of the damage and did not know whether Hearn had caused it.

After a 21-minute break, however, the witness returned and testified that the damage was "definitely" $1,000 or more, his lawyers wrote —  a key figure that is necessary in order to indict someone on a destruction of property felony.

Prior Justice Department inspectors general have long complained about the limitations to their authority to investigate certain types of attorney misconduct.

The OPR is tasked with exclusive jurisdiction to investigate department lawyers in connection with their actions when they are litigating, investigating, or providing legal advice.

Federal agents who are accused of misconduct in connection with conducting investigations, however, are subject to the jurisdiction of the inspector general.

Despite those delineations, the DOJ inspector general's office has in the past conducted a number of high-profile investigations into conduct by department lawyers.

For instance, in 2023, it investigated the former U.S. Attorney Rachael Rollins for the District of Massachusetts and referred her for possible prosecution, after concluding she had improperly used her position to meddle in a local district attorney election by leaking to newspapers dirt about a political rival.

The Justice Department declined to pursue criminal charges in that case.

DOJ drops case against former Olympian accused of damaging Reflecting Pool