Why the Justice Department won’t investigate prosecutors over the David Hearn case — and who will review the allegations instead

The US Justice Department will not investigate allegations of misconduct against prosecutors involved in the case against Olympic athlete David Hearn, whose felony charge over damage to Washington’s Lincoln Memorial Reflecting Pool was later dismissed. Instead, the department’s inspector general has referred the matter to an internal office responsible for reviewing attorney conduct, prompting Hearn’s lawyers to question whether a meaningful investigation will take place.

In an October 21 letter to CBS News obtained by CBS News, Hearn’s attorneys stated that Inspector General Don Berthiaume had found that the allegations did not fall within his jurisdiction. They were referred to the Office of Professional Responsibility (OPR) of the Justice Department for investigation of certain allegations regarding departmental lawyers.

This is not evidence that prosecutors acted wrongly.


Nevertheless, the attorneys representing Hearn contend that the allegations go further than just questionable judgment, and that they should be investigated for any criminal acts.

The dispute now hinges upon two issues: what occurred in the prosecution of Hearn, and whether the referring office has the ability and impartiality to investigate the allegations.

Why the inspector general declined to investigate the prosecutors

The Justice Department has different methods of oversight for various instances of wrongdoing.

Whereas the inspector general has oversight over all aspects of the department, the Office of Professional Responsibility is responsible only for the conduct of department attorneys when they are representing any case, conducting an investigation or giving any legal advice.

According to CBS News, the inspector general’s decision reflects that division of responsibility. Rather than opening an investigation into the prosecutors, Berthiaume referred the matter to OPR.

Hearn’s legal team has found fault with the agreement. This team includes former Justice Department Inspector General Michael Bromwich. In his letter, they stated that their objections are related to possible criminal acts, such as witness tampering, obstruction of justice, subornation of perjury, and civil rights violations.

It should be mentioned that these allegations relate more to the investigation duties of the inspector general than issues related to attorney conduct.

The reason for this is the difference in the way these two agencies function. The former one is an office appointed by the president, and the latter one is appointed by the attorney general.

Hearn’s attorneys contend that the referral leaves serious allegations without the kind of independent scrutiny they believe is necessary.

But the inspector general’s decision should not be interpreted as a finding that the allegations are unfounded or that misconduct occurred. It is a decision about which office has authority to examine the matter.

The disputed testimony at the centre of Hearn’s case

Hearn’s legal team first asked the Justice Department and the Interior Department inspectors general to investigate on October 6. Their request followed the dismissal of the felony charge accusing him of damaging the Reflecting Pool.

The indictment had been announced on July 2 at a press conference led by Jeanine Pirro, the US attorney for the District of Columbia. She accused Hearn of tearing part of the pool’s liner with his hands.

The case was later dismissed after Pirro said new information indicated that the damage had resulted from a contractor’s botched installation rather than vandalism, CBS News reported.

Hearn’s lawyers have focused particular attention on testimony given by a key witness before the grand jury.

According to their account, the witness initially said the pool already needed repairs, could not estimate the cost of the damage and did not know whether Hearn had caused it.

After a 21-minute break, the witness returned and said the damage was “definitely” worth at least $1,000, the threshold the lawyers identified as necessary for the felony property-destruction charge.

The attorneys argue that the change in testimony deserves investigation. They have raised concerns about whether the circumstances surrounding the testimony could indicate improper conduct.

Those claims remain allegations. The information described in CBS News’ reporting does not establish why the witness changed the testimony or prove that prosecutors improperly influenced it. An independent investigation, if one is opened, would be needed to assess the circumstances and determine whether any rules or laws were violated.

Can the internal watchdog provide independent oversight?

The referral has rekindled discussions on the efficiency of the Justice Department's internal oversight mechanism as well.

The Office of Professional Responsibility came into existence as a result of the Watergate Scandal, and its function is to investigate claims of misconduct against attorneys within the department. The Office is a separate entity from the Inspector General's Office, although there has been some dispute over the Office's resources and personnel.

Hearn’s lawyers said OPR had lost roughly half its staff since the beginning of the Trump administration. They also argued that the removal of the career official previously in charge of the office raised concerns about its ability to hold politically appointed officials accountable.

In their letter, they warned that the inspector general’s refusal to investigate could mean the allegations would not receive a rigorous review.

No separate criminal investigation has been launched by the Justice Department, according to the CBS News report.

Referral to the Office of Professional Responsibility means that the case has been referred to the office that has jurisdiction to review attorney practices, although referral alone is not sufficient to launch a full-scale investigation.

There is some precedent for investigations conducted by inspectors general regarding allegations against senior prosecutors.

As CBS News reported, the inspector general of the Justice Department launched an investigation of former Massachusetts US Attorney Rachael Rollins in 2023. He found her guilty of having abused her power to influence a district attorney election and recommended her for prosecution.

In the Hearn case, another question of which inspector has jurisdiction to conduct the investigation arises.

As of now, the allegations against the prosecutors remain unaddressed. The next step will be whether the Office of Professional Responsibility launches an investigation and, if it does, what it finds out.