November 24, 2011

By Mark Wachtler

November 24, 2011. Washington. When six Justice Department lawyers brought down the powerful Alaska Sen. Ted Stevens, they did so by withholding evidence, evidence that may have cleared the late Senator’s name. Instead, Stevens was convicted in 2008 of lieing on Senate disclosure forms to conceal $250,000 in gifts and bribes. In 2009, the conviction was overturned when it was learned the DOJ had withheld evidence. This week, the same Federal judge announced he would not bring any charges against the DOJ lawyers accused of what he termed, “significant, widespread and at times intentional misconduct”.

The news in the Judge’s announcement isn’t that there was serious misconduct by DOJ lawyers. That was known immediately after the original trial ended in the Senator’s conviction. Nor is it particularly newsworthy that a Federal judge would protect fellow Federal lawyers working for the Department of Justice. One government bureaucrat protecting another to keep themselves out of prison is too common of an occurrence these days.

The eyebrow-raising statement in this case is the reason the judge gives for not bringing contempt of court charges against the various DOJ prosecutors – prosecutors that have already admitted to the charge of withholding evidence.

On page 4 of the judges ruling, the reason is given why the court feels no laws were broken by the Justice Department lawyers:

“in order to prove criminal contempt beyond a reasonable doubt, the contemnor must disobey an order that is sufficiently clear and unequivocal at the time it is issued.”

The ruling goes on to explain:

“no such order existed in this case. Rather, the court accepted the repeated representations of the subject prosecutors that they were familiar with their discovery obligations, were complying with those obligations and were proceeding in good faith.”

In other words, because the judge didn’t specifically order the government’s prosecutors to share all evidence with the defense, and refrain from a laundry list of other illegal activity and misconduct, they couldn’t be held accountable.

In 2009, the judge that overturned the conviction of Senator Stevens for violating Senate disclosure laws ordered a special prosecutor to investigate DOJ lawyers for their admitted misconduct. Judge Emmet Sullivan appointed attorney Henry Schuelke, partner of the Washington DC law firm Janis, Schuelke and Wechsler, to head the investigation. The results manifested in a 500 page summary given to judge Sullivan this week.

The judge’s 12 page ruling merely echoes the special investigator’s recommendation – that charges should not be filed against DOJ prosecutors because at no time before or during the proceedings did the judge specifically order the attorneys to not break the law. And even if he had, the report suggests, the guilty DOJ lawyers still wouldn’t be liable unless the judge specifically ordered them not to break each law individually.

Among the items judge Sullivan is not bringing contempt of court charges against Justice Dept prosecutors are, in his own words:

• “Admission that they committed Brady violations and made misrepresentations to the court during the prosecution of Senator Stevens.”

• “Prosecutorial misconduct that permeated the proceedings before this court to a degree and extent that this court had not seen in twenty-five years on the bench.”

• “At least some of the concealment was willful and intentional.”

• “Evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed – at least not to the court and to the public.”

• “Significant, widespread and at times intentional misconduct.”

• “The prosecution team may have committed additional constitutional and procedural violations…yet to be discovered.”

And the judge’s most condemning conclusion of them all is the one that suggests the late Senator Stevens would never have been convicted and the longest-serving Republican US Senator in American history wouldn’t have been ripped from office amid scandal and shame. In fact, the judge suggests the late Senator would have been found innocent:

• “Permeated by the systemic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony.”

In other words, the Department of Justice knowingly withheld evidence that would have proven Senator Stevens’ innocence. Instead, they persecuted, prosecuted and convicted a man they knew was innocent, a man that would die in a plane crash the following year. One wonders what’s worse – that or the judge’s act of protecting those guilty DOJ officials from prosecution themselves.