Back in February, we filed a disciplinary complaint against Gordon Kromberg, the assistant U.S. attorney who signed the warrant application authorizing the FBI’s raid on the home of Washington Post reporter Hannah Natanson.
Our complaint was straightforward: Kromberg’s application never mentioned the Privacy Protection Act of 1980, a federal law that limits searches of journalists’ files and devices. Omitting adverse authority violates a prosecutor’s duty of candor, especially in warrant application proceedings with no one present to speak up for the rights of the warrant’s subject.
The Virginia State Bar, however, declined to investigate. It reasoned that it was up to the judge, not the bar, to decide whether Kromberg misled the court by omitting the PPA from his warrant application. That struck us as a strange conclusion — why do the rules the bar is charged with enforcing include a duty of candor, then?
But we don’t have to argue the point in the abstract anymore, because the judiciary has since spoken clearly and repeatedly, scolding Kromberg for the omission. But that hasn’t caused the Virginia Bar to revisit the case — or if it has, it won’t tell us.
We resubmitted the complaint and explained to the Virginia Bar that its justification for declining to investigate no longer holds water, and asked it to reopen the investigation. But first it ignored our calls and emails for months, then told us it is sworn to secrecy about disciplinary complaints to such an extent it can’t even tell us — the people who filed the complaint — whether it received it, or inform us of whether our new complaint has also been dismissed. Odd, because it did the first time.
At least the Virginia Bar’s consistent — it shouldn’t be surprising that an entity so nontransparent would be hesitant to discipline attorneys for lack of candor. But if it wants to build trust in the legal profession — its supposed raison d’être — it needs to explain itself, and if it’s run out of excuses, then it needs to actually investigate. Otherwise, it functions more as a protection racket than a disciplinary office.
Soon after our initial complaint was rejected, Magistrate Judge William Porter asked Kromberg and his fellow prosecutors, “Did you not tell me intentionally or did you not know,” in reference to their failure to alert him to a highly relevant federal law like the PPA. Then, in a 22-page opinion, Porter went further, writing that the government’s omission “has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding.”
He also made clear that had the government disclosed the law, he might well have rejected the warrant application outright, or at least asked harder questions before signing off. That might have stopped the government from seizing terabytes of data from Natanson — which it has since characterized as “contraband” to retain — and stopping her reporting in its tracks.
Then in May, U.S. District Judge Anthony J. Trenga seconded Porter’s assessment, noting “the harassing and chilling effects such a seizure could have on a reporter,” and scolding prosecutors for their failure to mention the PPA in the warrant application.
This is precisely the judicial confirmation the bar said it was waiting for. There’s no longer any plausible argument that the bar needs to defer to a judicial process that hasn’t run its course.
And yet … crickets, in response to our supplemental complaint, our follow-up emails, and our numerous phone calls and voicemails to Clerk of the Disciplinary System Joanne Fronfelter and Bar Counsel Renu Brennan.
We finally got a response on Tuesday from Acting Executive Director Janet Van Cuyk, who told us she can’t tell us anything, per the Rules of the Supreme Court of Virginia. We’ll only know if the resubmitted complaint ever hit the bar association’s inbox if it decides to initiate a public hearing.
Van Cuyk suggested we email the general intake email address to which we submitted the complaint. It’s unclear why — if she’s bound to silence, so are they — but we’ve done that repeatedly since February, and we’ve heard nothing.
The whole justification for self-regulation is that the bar will hold its own accountable to build public trust. A disciplinary system that manufactures reasons not to look at uncomfortable cases — and then ghosts complainants when it runs out of excuses — isn’t protecting the public. Instead, it’s protecting the lawyers it’s supposed to protect the public from.
Particularly when it comes to complaints against attorneys who are public officials at the center of national news, if you think the rules don’t allow for transparency, then change the damn rules.
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