1/16. The U.S. District Court (DC),
Judge Sullivan presiding, issued an
Opinion and Order [PDF] in US v. Stevens. There have been many
pleadings, orders, and hearings since the trial. However, this order reflects
that the Judge is angry with the Department of Justice (DOJ) attorneys, and lost
confidence in their integrity.
Background. The Department of Justice's
(DOJ) Office of Public Integrity obtained a conviction of former Sen. Ted
Stevens (R-AK) on October 27, 2008, on charges of violation of
18 U.S.C. § 1001 in connection with his alleged failure to disclose receipt
of things of value on his annual Senate Financial Disclosure Forms (SFDF) for
the years 1999 through 2006. The DOJ did not charge Sen. Stevens with receiving
bribes. See, story titled "DOJ Obtains Indictment of Sen. Stevens in DC" in TLJ
Daily E-Mail Alert No. 1,802, July 29, 2008.
As a result of the prosecution and jury verdict, Sen. Stevens narrowly lost
his bid for re-election to the Senate. He had been the ranking Republican on the
Senate Commerce Committee, which has
jurisdiction over most communications, internet regulation, and e-commerce
issues. Nothing that the District Court or Court of Appeals might do can return
Stevens to the Senate.
Prior to, and during trial, the DOJ employed many aggressive, even
outlandish, prosecutorial tactics, to which Stevens' counsel objected. However,
Judge Emmet Sullivan
ruled almost uniformly for the DOJ on all key motions.
First, there was the matter of venue. The DOJ brought this case in Washington
DC, rather than Alaska, in order to obtain a more favorable judge and jury. In
arguing against moving the case to Alaska, the prosecution argued that the case
involved only non-disclosure on financial forms, which were filed in Washington
DC. Judge Sullivan allowed the case to proceed in Washington DC. Then, the
prosecution built its case largely on Alaska evidence and witnesses. It also
introduced irrelevant, but prejudicial, evidence related to non-existent bribery
charges. Judge Sullivan allowed all this. The DOJ brought charges that were
based on transactions that exceeded the statute of limitations. Judge Sullivan
denied a motion to dismiss the oldest charge. At trial, Judge Sullivan learned
that the DOJ withheld from Sen. Stevens discoverable evidence. He allowed the
case to proceed. See also,
titled "Judge Sullivan Denies Several of Sen. Stevens' Pre-Trial Motions" in
TLJ Daily E-Mail
Alert No. 1,832, September 9, 2008.
The latest round of orders demonstrate that Judge Sullivan has now lost
confidence in the integrity of the DOJ lawyers who have been working on this
Judge Sullivan is now using language that judges almost never use to characterize
federal prosecutors -- "appearance that several attorneys ... may have
intentionally withheld important information from the Court", DOJ "attorneys have
not been able to provide a cohesive or credible answer", there is a DOJ "pattern of belated
revelations followed by unsatisfactory, and possibly false, explanations", and
"wholly incredible" explanations by DOJ attorneys.
Judge Sullivan is now engaging in the rare judicial practice of quoting at length from
criminal defense lawyers' briefs.
Judge Sullivan, in this just released order, has taken the unusual and offensive action of ordering
the Attorney General, and other of the highest DOJ officials, to sign
declarations, under penalty of perjury, explaining DOJ's misconduct. The incoming
officials have no personal knowledge of this matter. Judge Sullivan has already
informed these incoming officials that the DOJ lawyers who have personal knowledge lack credibility.
Yet, Judge Sullivan is putting these incoming officials in a very uncomfortable
and hazardous position.
No judge would do all of these things if he were not angry and outraged by
prosecutorial conduct. This also suggests that the judge may now be favorably
disposed to granting defense motions for embarrassing discovery, to dismiss
charges, and/or for a new trial.
Post trial proceedings are not going well for the DOJ.
Prosecutorial Misconduct. This just released opinion and order, and
recent pleadings, disclose and discuss a
complaint [10 pages in PDF, redacted] submitted to the DOJ by FBI Special
Agent Chad Joy. It accuses the DOJ and its FBI of misconduct in the investigation and
prosecution of Sen. Stevens.
It focuses on the FBI's primary case agent, Mary Beth Kepner, with whom he
worked, and the DOJ prosecutors in the Criminal Division's Public Integrity Section,
who prosecuted Sen. Stevens. He states that
he was in charge of electronic surveillance, and co-managed the case.
He alleges that the government intentionally withheld discoverable materials.
For example, it improperly redacted material from discovery items, and refused
to produce a key witness's bank records, but then introduced one of his checks at
Joy states that Kepner had improper relationships with government witnesses
and sources, including exchanging of things of value. This is ironic because the
DOJ only charged Stevens with failure to report on Senate disclosure forms the
receipt of things of value by himself or relatives.
He also alleges that Kepner met with a government source at a private residence, and in
a hotel room.
Joy further alleges that "Kepner lied", Kepner had inappropriate media
contacts, and that she is a generally bad agent who fails to keep records,
breaks rules, and discloses too much confidential information to people outside
of the FBI.
Joy alleges that the DOJ/PIS sent a witness away from Washington, even though
he was a defense witness, so that he would be unavailable to testify. He also
states that the PIS withheld discoverable material from defense counsel.
However, the just released opinion and order pertains, not to the substance
of Special Agent Joy's misconduct allegations, but rather to misconduct by the
DOJ in attempting to suppress and redact Special Agent Joy's complaint.
In this order, the Judge Sullivan states that the DOJ attorneys who have been
arguing before the Court lack credibility. The Court therefore ordered the
Attorney General, or other senior DOJ officials, to submit declarations to the
District Court explaining the misconduct of the DOJ.
The Court wrote that the complaint from Joy, received by the DOJ on December
2, 2008, "raised allegations of misconduct by certain government employees
involved with the investigation and prosecution of the defendant".
The DOJ promptly moved Court to seal Joy's complaint. The DOJ
represented to the Court that it was investigating "a request for whistleblower
protection". Protecting whistleblower confidentiality is a grounds for sealing a
complaint. However, the DOJ informed Joy by letter on December 4 that it would
not "initiate an investigation pursuant to 28 C.F.R. §27.3 into whether you are
entitled to relief as an aggrieved whistleblower".
Thus, the Court concluded (at page 2) that there exists the "appearance that
several attorneys in this matter -- in multiple departments within the
Department of Justice -- may have intentionally withheld important information
from the Court".
The Court also found that explanations tendered by the DOJ regarding its
whistleblower statements are "wholly incredible" (page 8) or "strains credulity"
The Court also pointed out that there is more than misleading the court
regarding whistleblower protection. It wrote that there has been "a pattern of
belated revelations followed by unsatisfactory, and possibly false, explanations
from the government in this case".
The Court concluded that "This case, and this most recent incident, involves
numerous attorneys and offices throughout the Department of Justice. Those
attorneys have not been able to provide a cohesive or credible answer to this
Court's questions regarding the determination of whistleblower status.
Therefore, the Court believes it appropriate and necessary to get an answer from
with direct oversight over all of the various offices, individuals and divisions
The Court ordered that the Attorney General himself, or a high ranking DOJ
official or officials who "have oversight responsibility for the OIG, OPR, OPI
and the FBI", must submit a declaration or declarations to the Court.
Michael Mukasey was until recently the Attorney General, but will likely be
replaced soon by President Obama's nominee, Eric Holder. Mark Filip, another
outgoing Republican, is a caretaker acting Attorney General, waiting for
The Court did not elaborate, but there is only one office, other than the
Attorney General, with all of this responsibility. It is the Deputy Attorney
David Ogden is Obama's pick for DAG. See, story titled "Obama Names David
Ogden to be Deputy Attorney General" in TLJ Daily E-Mail Alert No. 1,878,
January 6, 2009.
The DAG oversees the Office of the Inspector General (OIG), Office of
Professional Responsibility (OPR), and Criminal Division, of which the Public
Integrity Section (PIS), or Office of Public Integrity (OPI), is a part. See,
DOJ organizational chart.
All of these recent disclosures suggest that whether or not Sen. Stevens' conviction
stands or is vacated or reversed, and whether or not the DOJ drops this case,
DOJ employees involved in this matter have executed their offices with lower
ethics than Sen. Stevens executed his office.
In other recent pleadings, Stevens' defense team seeks a new trial on
numerous legal theories. And, the DOJ maintains that the conviction should
Stevens' defense team also seeks very broad post trial discovery from the
prosecution, included information regarding FBI agent Kepner's personal
relationships. In almost all cases the breadth of this post-trial discovery would be
unthinkable. But, not in this case.
Sen. Murkowski Requests Pardon. Sen. Lisa Murkowski (R-AK), writing
before the latest round of pleadings and orders in the District Court, sent a
letter to President Bush
on January 7, 2009, asking that he pardon former Stevens.
She wrote that "Senator Stevens' motion to be tried in his home state before
a jury of his peers was denied. His trial in the US District Court for the
District of Columbia was riddled with irregularities that were fully documented
in the transcript of the proceedings and by the media. In the face of a strong
reprimand from Judge Sullivan the prosecution team was required to report
irregularities in the disclosure of potentially exculpatory evidence to the
Office of Professional Responsibility of the US Department of Justice. It seems
that every week since the District Court proceedings concluded the newspapers
identify a new irregularity in the trial or the conduct of the prosecution."
President Bush did not grant a pardon to Stevens before he left office.
Disclosure. David Carney, author of this story, is an ex-Alaskan
who voted for Sen. Stevens in the 1984 Senate election.