Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, discusses a recent whistleblower complaint and the Office of Professional Responsibility’s opinion in JustSecurity.

Following is an excerpt:

On Wednesday, the House Judiciary Committee heard from a whistleblower inside the Department of Justice’s Antitrust Division alleging serious abuses committed by Attorney General William Barr. To blunt the force of the whistleblower’s complaint, Rep. Doug Collins (R-Ga) entered into the record a letter from the Office of Professional Responsibility (OPR), which investigates allegations of misconduct by employees and which, in this case, rejected the whistleblower’s complaint. The letter had been circulated just the evening before, according to the testimony by the whistleblower, John Elias. …

I asked some of the most highly respected antitrust law [professionals] across the country for their views on Mr. Elias’s allegations compared to the OPR letter. Here’s what they said. …

Stuart M. Gerson, a former Acting Attorney General of the United States, Assistant Attorney General, and Assistant United States Attorney:

“These legal issues involve a segment of my current professional activities; I am part of a team in a merger case that is attempting to fend off a second request. So, I am particularly sympathetic to the gravity of the whistleblowers’ allegations and the cost and complexity of compliance. As an ethical and substantive matter, it certainly is unacceptable to pursue a second request without reason to believe that the underlying transaction might violate the antitrust laws, for example, if the Herfindahl-Hirschman Index exceeds normative levels. And that certainly is the general practice of the two antitrust enforcement agencies. The OPR letter opines that this isn’t a requirement, and that a fake investigation for political purposes doesn’t violate any law or departmental regulation. If it doesn’t, it should.

There certainly are times when governmental artifice can be justified, for example, in the area of counterintelligence. However, conducting actual fraudulent investigations against citizens to whom the government is responsible not only deprives them of due process, but is criminal in and of itself.”


Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.