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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. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded that there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”
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. Among the more noteworthy conclusions were these:
Prosecutors secured and introduced testimony that they had clear reason to believe was perjured. Indeed, this testimony was the key evidence in their case. They also hid from the defense evidence that would have demonstrated the perjury.
Prosecutors also concealed from the defense the fact that their star witness had perjured himself in an earlier case, when they knew this evidence would have demolished his credibility.
FBI agents working with prosecutors failed to follow standard FBI procedure while making written notes of their witness interviews—apparently, they did so only when it was clear that the interviews would on balance help the defense.
Prosecutors touted from the outset claims that Stevens had accepted free renovations to his home in Alaska, planting stories to that effect in several publications. The prosecutors knew these claims were untrue because they had in their possession written evidence that Stevens had repeatedly demanded a bill and insisted on paying for the work. The prosecutors also introduced bogus evidence designed to inflate the costs of the renovations, in order to make the scope of the work seem greater than it actually was.
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.
The case involving former Alabama governor Don Siegelman, for instance, features both more serious and better documented instances of wrongdoing by prosecutors. The conviction is still pending in that case, with the Justice Department steadfastly arguing, in the face of mounting evidence, that it did nothing wrong. A member of the prosecution team has openly admitted that prosecutors cajoled, coached, and pressured two key prosecution witnesses to give false or misleading evidence—in one case conducting more than seventy intimidating interviews. She also acknowledged the existence of a binder filled with notes recording some of these sessions, which would have furnished powerful exculpatory evidence, and which might well have led a judge to bar the testimony entirely, but was withheld from the defense. Prosecutors initially misled the court about the existence of the binder, then conceded that they had it but wouldn’t turn it over. The prosecutor who arranged and oversaw the entire matter was in fact the wife of the man managing the campaign of Siegelman’s opponent—a hair-raising violation of prosecutorial ethics, which could have justified her removal from office and even her prosecution. When her role was exposed, she made a pretense of recusing herself from the case, though one of her own staffers acknowledged that she continued to run it. Senior figures in the Justice Department, notably David Margolis, dismissed concerns about this reprehensible conduct—apparently feeling that any acknowledgement of wrongdoing would tarnish the department as a whole. They then stonewalled the House Judiciary Committee’s efforts to investigate the matter and blocked production of materials sought under the Freedom of Information Act.
The major difference between the Siegelman and Stevens cases is simple: the Stevens case was presided over by Emmet Sullivan, one of the nation’s most respected federal judges. When he sensed that something was wrong with the prosecution’s handling of the case, he pressed them on it, and when it was clear that prosecutors had lied to or misled him, he appointed a special prosecutor to investigate their misconduct. In the Siegelman case, by contrast, the judge attempted to press the same sort of questions that Emmet Sullivan did, but prosecutors responded by maneuvering, through bizarre sleight of hand, to bring their case to a different district before a judge who they fully knew had a grudge against Siegelman—a highly unethical maneuver that paid off handsomely.
These facts help explain why, as the Wall Street Journal reports, more than 100 former state attorneys general from both political parties have joined in a brief asking the Supreme Court to overturn the Siegelman conviction—a historically unprecedented campaign. George Will recently backed the initiative.
Throughout America’s history, U.S. attorneys with deep ties to local political interests have attempted to leverage their prosecutorial powers to gain political advantage. There is really nothing surprising about that. The Department of Justice in Washington has generally worked hard to ferret out cases of abuse and bad judgment. The truly alarming thing about the Stevens and Siegelman cases is that senior prosecutors in Washington pressed the cases forward, excited at the prospect of a high-profile conviction.
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. As the report puts it, “[T]he role of the [head of the Criminal Division] in the management of the prosecution contributed to the failures of effective supervision of the trial team by the leadership of the Public Integrity Section.” Lanny Breuer took charge of the Criminal Division in 2009 with an excellent opportunity to address these problems systematically, in a way that would restore confidence in the DOJ. At this point, we have no evidence to suggest that he took this problem very seriously, and indeed he delivered speeches attacking the defense bar for claiming that there was a problem. Under his stewardship, the Criminal Division continues to play the same sordid games of denial and cover-up that it did under his predecessors.
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.
More from Scott Horton:
No Comment — April 12, 2013, 11:11 am
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