While many were glued to the television, watching the happenings in Indiana and North Carolina, a most unusual investigation occurred in Washington, D.C.  It seems that the FBI searched the Office of Special Counsel, and the home of its director. (See Washington Post here and WSJ here).

"The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency."  It’s authority comes from "three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act."  (see here) And yes, it is the same agency that looks at improper politicization in key government offices. Because of the supposed non-political role of the head of this office, he or she is protected from removal by an appointment for a term of five years (in this case Scott Bloch was appointed by President Bush in 2004 – see here)

This recent raid appears to surround the possible destruction of computer materials.  The problem with destroying computer material during the pendency of an investigation is that it opens one up to a possible obstruction of justice charge.  Yes, this was the very charge that was used against Arthur Andersen, Martha Stewart, Scooter Libby, and so many others.   Whether items were destroyed here, or whether an outside company was merely called to fix a computer virus may be a question of the future.  But it does appear that computer and other information were taken by authorities in this recent search.

Searches are not the usual method to secure evidence in a white collar case, although it is becoming more common in recent years.  Normally subpoenas are issued and the person is requested to produce documents for a grand jury.  Searches are used when there is a need for surprise and when there is a fear of destruction of materials.  Unlike subpoenas, searches require a showing of probable cause to a neutral and detached magistrate.

An interesting question here may be who should have authority to investigate and prosecute, that is of course if evidence demonstrates criminal violations.  If the Office of Special Counsel were investigating matters in the Department of Justice, can the DOJ turn around and now investigate their investigators?  Would it be more appropriate here for a court to appoint a neutral party to hold and peruse the items obtained in the search to make certain that there is no disclosure of information that might compromise a pending matter. 

With politics entering branches of the government that should be immune from such activity, there have been some recent questions about whether the Office of Special Counsel was acting sufficiently to handle these matters.  But who should have authority to investigate this issue presents some problems – especially when the focus of the investigation may have criminal overtones.

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