Stevens Misconduct Report Targets Mid-Level DOJ Officials

Ted StevensFederal authorities hid vital evidence that could have helped then-Alaskan Sen. Ted Stevens exonerate himself from corruption charges, according to a 500-page report released last week. The report largely vindicated top supervisors, however. So the questions continue: Was the report a whitewash? What can be done?

Meanwhile, allegations of Justice Department misconduct escalated in New Jersey and Alabama following collapse of major federal corruption cases. And in Maryland and Virginia, new controversies are arising also after heightened Justice Department crackdowns against whistleblowers and reporters. All these matters are intertwined because federal prosecutors William Welch II and Brenda Morris led the effort against Stevens -- and were prominent in several of the other prosecutions. Welch directed the DOJ's Public Integrity Section running the Stevens prosecution and the early stages of a major New Jersey case, Bid Rig III, initiated under New Jersey U.S. Attorney Chris Christie. Currently, Welch leads DOJ's crackdown on suspected leakers and their outlets. Morris helped prosecute a major corruption case in Alabama that ended in a humiliating defeat for prosecutors this month when they failed to win a single conviction on a single count after two trials of regional political powerbroker Milton McGregor and other advocates of legalized gambling who were accused of a conspiracy to bribe state legislators.

Update: Harper's columnist and longtime human rights advocate Scott Horton published an expert, provocative column on the case March 19. Also, Alabama legal commentator Roger Shuler published an important follow-up, Misconduct in Ted Stevens Case Shines a Glaring Light on Siegelman Prosecution. Details are below on their reform proposals, which the Justice Integrity Project fully supports.

As background, U.S. District Judge Emmet Sullivan, who presided over the Stevens trial in Washington, DC, forced the Justice Department to reexamine its misconduct in securing corruption convictions against the longtime Republican senator in September 2008. “In nearly 25 years on the bench,” Sullivan said in April, 2009, “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”

Under such pressure, the Justice Department launched an investigation of the Stevens prosecutors and vacated the convictions. But those actions were too late, of course, to save the Senate seat that Alaska Republican narrowly lost after serving 40 years in the Senate. Stevens died in an airplane crash in August, 2010.

Henry ShuelkeThe DOJ reassigned Welch and Morris, and cooperated with judge-appointed outside investigator Henry "Hank" Schuelke III, left, an attorney respected for independence and capability, to probe the matter. Schuelke's 525-page report, released publicly last week over DOJ objections, described serious misconduct by several federal prosecutors and investigative agents who failed to advise Stevens, as required by law, of evidence helpful to his defense. Perhaps most important, Schuelke described how authorities failed to share with Stevens that a contractor recalled Stevens as asking for a bill for home renovations and as saying he wanted to pay what was required. Schuelke described the Welch and Morris role as primarily administrative, and not as culpable as others.One Alaska-based prosecuted committed suicide during the investigation.

Undermining a theory of simple partisan political motivations is the Bush Justice Department’s aggressive push against the Republican Stevens, who was convicted of seven counts of violating federal ethics laws by failing to report gifts from friends. In 2009, we reported on this for Nieman Watchdog in, "Covering Prosecutors Calls For Tough-Minded Reporters." Prosecutors repeatedly violated legal requirements to provide the defense evidence that might exonerate the defendant. ”It strikes me that this was probably intentional,” said the presiding judge, as quoted in A Cautionary Tale, a cover story in Washington Lawyer Magazine published by the DC Bar. The story by Anna Stolley Persky was a thorough and valuable contribution to public understanding of the case. Yet some questions remain unresolved.

Ideally, the public could simply accept such a long report as Shuelke's and move on. But the DOJ's previous actions have shown that it's worth keeping an open mind to additional possibilities. The main one, of course, is that higher-level officials are being shielded from responsibility. The Justice Integrity Project reported in 2010, for example, that DOJ named to investigate two major national internal scandals two Connecticut prosecutors who had themselves been found to have illegally suppressed evidence. Not surprisingly, their reports found no basis for criminal action in the 2006 DOJ purge of federal prosecutors for political reasons and on the DOJ's failure to prosecute CIA destruction of evidence in a torture case. Additionally, the heinous prosecution of former Alabama Gov. Don Siegelman and new controversies continue to percolate, as Scott Horton noted in an outstanding column published March 19 entitled,  What the Stevens Case Tells Us. Horton, a well-known human rights and commercial attorney and adjunct law professor, admirably draws on his long experience and high-level contacts to summarize both the Stevens and Siegelman cases, and make the argument for reform:

The [Schuelke] report shows, as conservative columnist George Will aptly suggested, that if the Stevens case did genuinely involve corruption, then much of it was lodged deep inside the Justice Department itself. DOJ spokesmen are laboring to minimize the damage from this report. They will stress that this was a single incident. But in fact, hardly a week passes without reports of scandalous misconduct by prosecutors involving the suppression of exculpatory evidence....

Predictably (and dishonorably), blame has been laid on the most junior lawyers on the team, including a young man who committed suicide, fearing he would be scapegoated. Yet the most serious and consequential failure in these cases was inescapably a lack of oversight and good judgment at the top.

Horton put these developments into perspective in his call for hearing. Our Project joins in advocating such a hearing. Horton wrote:

A Congressional inquiry into the systematic misconduct inside the Criminal Division is necessary, as is legislation, (such as the bill recently proposed by Senator Lisa Murkowski (R-Alaska), that would sanction prosecutors who withhold exculpatory evidence. The Department must be challenged on its persistent whitewashing of ethics violations, and on its obstinate refusal to punish prosecutors who engage in acts that might well be prosecuted if they were done by defense counsel. The Justice Department says constantly that it “takes its disclosure duties seriously,” but its conduct plainly establishes the opposite. The Department’s credibility and integrity are now plainly on the line.

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Ted Stevens

Update: Legal Times, Senate Judiciary Committee To Hold Hearing On Ted Stevens Report, Mike Scarcella, March 21, 2012. The Washington attorney who investigated allegations of prosecutorial misconduct in the Ted Stevens case is expected to testify next week on Capitol Hill about his investigation. Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, said Henry "Hank" Schuelke III will address the 525-page report he put together about government abuses in the Stevens public corruption prosecution in Washington. The hearing on the Stevens report is scheduled for March 28 at 10 a.m., Leahy said. Leahy’s office did not indicate whether any of the defense lawyers who represented the Stevens prosecutors have been invited to speak at the hearing.
Schuelke, of Washington’s Janis, Schuelke & Wechsler, was appointed to investigate whether five Justice Department trial attorneys should be charged with criminal contempt for violating court orders.
Schuelke’s report did not recommend criminal charges against any of the Stevens prosecutors.

National Law Journal, A lack of leadership dooms case, Report: DOJ's management of Stevens trial led to lapses, Mike Scarcella and Zoe Tillman, March 19, 2012. Days before an indictment was issued against Alaska Sen. Ted Stevens in July 2008, the prosecution was in turmoil. Longtime Department of Justice prosecutor Brenda Morris had just accepted the lead role on the trial team, a position she had turned down three times before. The personnel shift rankled other career prosecutors who had spent years in Alaska building corruption cases there. One trial attorney described the move as a "slap in the face." A scathing report released last week on government missteps in the Stevens case revealed discord among prosecutors as they prepared to charge a sitting U.S. senator — for the first time in more than two decades — with public corruption crimes. DOJ is preparing to publish a separate but related internal investigation of the collapse of the Stevens case.

Attorney General Eric Holder Jr. said on Capitol Hill this month that the report will recommend sanctions against certain Stevens trial prosecutors. Holder described Schuelke's findings as "disturbing." Stevens' attorneys, including Williams & Connolly partners Brendan Sullivan Jr. and Robert Cary, said last week there should be consequences — personally and professionally — for any prosecutor who violated ethics rules. "The Stevens case demonstrates that, although the great majority of prosecutors and law enforcement officials are honest and serve with distinction, some will do anything in order to win," they said in a joint statement. "Senator Stevens did not deserve the treatment he received at the hands of powerful but corrupt prosecutors." Schuelke's report pinned the bulk of the alleged misconduct on two assistant U.S. attorneys in Alaska, Joseph Bottini and James Goeke. The two were accused of withholding information that would have gone to the credibility of the government's main witness. The evidence, Schuelke said, did not point to intentional concealment of information by other members of the Stevens team, which included William Welch II, the former chief of public integrity, and DOJ trial attorney Edward Sullivan. Schuelke did not take a position on the conduct of prosecutor Nicholas Marsh, who committed suicide in September 2010. The prosecutors all cooperated in the Schuelke investigation.

Legal Schnauzer, Misconduct in Ted Stevens Case Shines a Glaring Light on Siegelman Prosecution, Roger Shuler, March 20, 2012.  A special counsel late last week released a scathing, 525-page report about Department of Justice misconduct in the prosecution of Ted Stevens, the late U.S. senator from Alaska. News of the release received scant notice in the mainstream Alabama press, so you would never know the story has profound implications for one of the most high-profile criminal prosecutions in our state's history. Thankfully, Harper's legal-affairs contributor Scott Horton is up to the task of explaining what misconduct in the Stevens case means for the prosecution of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy. We might sum up Horton's take with these two key points: (1) If special counsel Henry F. Schuelke III thinks DOJ personnel behaved abhorrently in the Stevens case, he truly would be blown away by their behavior in the Siegelman case; and (2) If prosecutorial misconduct caused the DOJ to come to an agreement that vacated convictions in the Stevens case, justice demands similar action in the Siegelman case.

Washington Post, Federal prosecutors need to play fair with evidence, Editorial Board, March 18, 2012. A report released last week lays out in shocking detail the government’s badly marred prosecution of the late senator Ted Stevens (R-Alaska). Unforgivably, prosecutors failed to turn over evidence that could have helped the former senator refute corruption charges. The lengthy report underlines the need to revamp rules governing the government’s handover of exculpatory evidence. Sen. Lisa Murkowski, a Republican from Mr. Stevens’s state of Alaska, has introduced a reform bill that should serve as a starting point for such discussion.Ms. Murkowski’s bill would mandate that prosecutors turn over all evidence in their possession that may “reasonably appear to be favorable to the defendant,” whether or not it is deemed material to the case. The bill allows prosecutors to seek judicial approval to withhold information that may harm national security or endanger victims or witnesses. Three federal court districts — two in Alabama and one in Florida — already require prosecutors in their jurisdictions to abide by such rules. The proposal is supported by a diverse coalition that includes the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the U.S. Chamber of Commerce and the American Bar Association. While taking up Ms. Murkowski’s proposal, lawmakers should consider going further.

Harper's / No Comment, What the Stevens Case Tells Us, Scott Horton, March 19, 2012. Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct....

The report, though it is focused on the conduct of prosecutors and not the guilt or innocence of Senator Stevens, leaves the clear impression that had the DOJ accorded fundamental notions of fairness any role in the case—as opposed to careerism and political bloodsport—it might never have gone to trial. This information would have remained hidden forever but for Judge Sullivan’s appointment of a special prosecutor—a highly unusual move. The report shows, as conservative columnist George Will aptly suggested, that if the Stevens case did genuinely involve corruption, then much of it was lodged deep inside the Justice Department itself.

DOJ spokesmen are laboring to minimize the damage from this report. They will stress that this was a single incident. But in fact, hardly a week passes without reports of scandalous misconduct by prosecutors involving the suppression of exculpatory evidence. And for every case that surfaces, probably ten do not, because a cloud of prosecutorial privilege envelops their conduct, shielding it from view. The Stevens case isn’t even the worst example of prosecutorial misconduct in corruption cases involving public officials, though it is typical in terms of the complaints that it raised.

Legal Times, Stevens Report Details Botched Prosecution, 'Systematic' Concealment of Evidence, Zoe Tillman and Mike Scarcella, March 15, 2012. In a 525-page report (PDF) released this morning, a special prosecutor detailed the mismanagement and, in some cases, misconduct that he believed characterized the Justice Department's handling of the prosecution against late Alaska Senator Ted Stevens. Reactions were swift. Prosecutors cleared of misconduct expressed support for the report's findings, while those found responsible for wrongdoing claimed they were unfairly targeted. Stevens' defense lawyers called the report proof of "the worst misconduct we've seen in a generation by prosecutors."

Washington Post, Prosecutors concealed evidence in Ted Stevens case, judicial investigators find, Del Quentin Wilber and Sari Horwitz, March 15, 2012. Federal prosecutors and agents concealed key evidence, suffered a collective memory lapse that strains credulity and were hampered by internal politics, poor supervision and a crushing deadline, judicial investigators concluded in a blistering 514-page report examining the bungled high-profile corruption trial of the late senator Ted Stevens (R-Alaska). The report is a detailed accounting of what went wrong in what once seemed like a promising prosecution of the long-serving senator on corruption charges. It provides new details about what it called the “systematic concealment of significant” evidence from Stevens’s attorneys.

Wayne Madsen Report, Justice Dept. prosecutor targeting whistle blowers and journalists, Wayne Madsen, March 8, 2012 (Subscription required). William Welch II was the chief of the Justice Department’s Public Integrity Section. While the title of his former office -- public integrity -- implies that Welch is dedicated to fighting corruption in the government, in President Obama's and Attorney General Eric Holder's Orwellian world of "Newspeak," Welch is the chief inquisitor of government whistle blowers and journalists who have communicated with them.

Washingtonian, William Welch: Obama Administration’s Point Man to Stop Leaks, Shane Harris, July 20, 2011. The prosecutor has been called a tenacious and tough-as-nails lawyer, but also overzealous. On June 10, one of the biggest cases in the Obama administration’s campaign to stanch leaks of sensitive government information to the press collapsed when the Justice Department dropped espionage charges against Thomas Drake, a former senior official at the National Security Agency. But just three days before the trial was scheduled to begin, the lead federal prosecutor, William M. Welch II, told the judge that he couldn’t proceed without revealing details in court about classified systems that NSA uses to eavesdrop on global communications. Welch is now the administration’s point man in its historic anti-leaks campaign. He is prosecuting a former CIA officer, Jeffrey Sterling, and he has subpoenaed James Risen, a Pulitzer Prize–winning New York Times reporter, to testify about whether Sterling was the source for the journalist’s book State of War, which revealed that the CIA may have botched classified operations against Iran.

Other Justice Department Internal Investigations and Oversight

Huffington Post / New York Sun, The Big Story About Crime and Punishment That James Q. Wilson Missed, Conrad Black (left), March 17, 2012. It is with trepidation and regret that I demur in any degree from the widespread praise accorded political scientist James Q. Wilson, who died a couple of weeks ago from leukemia, aged 80. He was a brilliant and a delightful man, and one of the greatest and most amiable Conrad Blackfigures in the neoconservative movement. Unfortunately, Jim Wilson’s influence in areas of custodial policy and the technical operation of criminal justice were a good deal less benign and effective than his suggestions for deterring crime at point of incidence. Also unfortunately, my own legal travails did not become a subject of discussion between us, other than a typically gracious note of solidarity from him early on. I was looking forward to constructively engaging him on the subject when this ghastly persecution I have endured finally ends in a few weeks.

I don’t think Jim Wilson ever remotely grasped how thoroughly corrupt and intrinsically unjust the U.S. justice system is, as only someone who has been through it from the wrong end can. When I asked him if he had no misgivings about the plea bargain system, in 2002, before I had any direct experience of what a bazaar of extortion, perjury, and intimidation it is, he did not go beyond acknowledgement that improvements would be desirable. He generally approved high incarceration rates, oblivious to the implications of the United States having six to 12 times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom.

Justice Integrity Project, CIA Torture Investigator Plays Powerful But Mysterious Role, July 2, 2011. John Durham is the career federal prosecutor who made news June 30 when the Justice Department acted on his recommendation to narrow a probe of CIA mistreatment of detainees from 101 to two cases. Our Justice Integrity Project revealed last July that a federal appeals court found in 2008 serious misconduct by a team of federal prosecutors supervised by Durham. Thus, the 2008 Bush and then Obama administration appointments of Durham and his prominent Connecticut colleague, Nora Dannehy, to lead major national investigations of misconduct by other federal officials smacks of politics and whitewash.

Justice Integrity Project, Complaints About Justice Department Go Nowhere, May 27, 2011. Justice Department complaint procedures are needlessly complicated, which discourages complaints.