On July 29, 2008, Senator Ted Stevens was indicted by a federal grand jury on seven counts of failing to properly report gifts, a felony, and found guilty at trial three months later (October 27, 2008). The charges relate to renovations to his home and alleged gifts from VECO Corporation, claimed to be worth more than $250,000. The indictment followed a lengthy investigation by the Federal Bureau of Investigation (FBI) and the Internal Revenue Service (IRS) for possible corruption by Alaskan politicians and was based in part on Stevens’s extensive relationship with Bill Allen. Allen owned racehorses, including a partnership in the stud horse So Long Birdie, which included Stevens and eight others, and which was managed by Bob Persons.
On December 2, 2008, FBI Special Agent Chad Joy filed a whistleblower complaint stating that prosecutors tried to hide a witness and intentionally withheld evidence from defense lawyers. Joy further accused a fellow FBI agent of having an inappropriate relationship with Allen.
The case was prosecuted by Principal Deputy Chief Brenda K. Morris, Trial Attorneys Nicholas A. Marsh and Edward P. Sullivan of the Criminal Division’s Public Integrity Section, headed by Chief William M. Welch II; and Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke from the District of Alaska.
Stevens was voted Alaskan of the Century in 2000 by the Alaskan of the Year Committee. In the same year, the Alaska Legislature renamed the Anchorage airport, the largest in the state, to the Ted Stevens Anchorage International Airport. Stevens died on August 9, 2010, when a de Havilland Canada DHC-3 Otter he and several others were flying in crashed en route to a private fishing lodge.
Contrary to what many Alaskans believe, a search of the record does not show a malevolent plot to prosecute Ted Stevens so as to remove him from the U.S. Senate for partisan reasons or to retaliate against him for some old personal slight. The Justice Department’s handling of the case can be legitimately faulted on a number of levels—the timing was ill-advised, the organization was chaotic, the management was dysfunctional, and the discovery violations were deeply disturbing. There does not appear, however, to have been an evil mastermind behind the charges against Ted Stevens. My reporting and analysis backs up the reporting of the Wall Street Journal and the Washington Post in pieces published at the time of the collapse of the Ted Stevens prosecution in April of 2009 regarding the absence of what the latter newspaper called “base political motivations.”
The Ted Stevens Case Grows Out of Operation Polar Pen, and Operation Polar Pen Starts with Private Prisons
Let’s walk through the process that brought the charges. The investigation that brought down Alaska’s most important public official began not with an examination of a U.S. Senator’s home renovations and his mandatory annual disclosure forms. Instead, the probe that led to the prosecution of Ted Stevens started five years before his indictment as an investigation into private prisons. In the dry words of the OPR report, the U.S. Attorney’s Office in Anchorage opened that corrections-focused investigation in July of 2003 “after the FBI developed information that an Alaska private prison company and a lobbyist were corruptly influencing state legislators.” In a nod to the Last Frontier correctional origins of the investigation, the probe was dubbed “Operation Polar Pen.”
The investigation began with the work of an FBI agent named Mary Beth Kepner. Her blond hair and trim physique made her look a lot more like a soccer mom than one of the grim-faced feds famous from the days of J. Edgar Hoover. (Indeed, her achievements as a college soccer goalie still live on the Internet.) Starting in Philadelphia—where she investigated complex white-collar and organized crime cases—Kepner had been with “the Bureau” for more than 10 years when she opened Polar Pen while working in the FBI’s small Juneau office.
The investigation grew in depth and scope after the federal government got Frank Prewitt—a former Alaska Commissioner of Corrections turned private prison lobbyist and consultant for Texas-based Cornell Companies—to become a cooperating witness. Prewitt started recording (“wiring up”) on various Alaskans and provided information that allowed federal investigators to get wiretaps on telephones. (Setting aside whatever immunity Prewitt’s cooperation got him for his own potential exposure as a defendant, it is striking that Prewitt received $200,000 from the federal government for his work; it is indeed odd that Prewitt couldn’t find room to mention that payment in a 167–page book he wrote about his experiences as an informant.)
The Justice Department’s Top Corruption Fighters Get on the Case
As Polar Pen ballooned, the lawyers working on the probe changed. The Anchorage-based U.S. Attorney’s Office started receiving assistance in June of 2004 from the Justice Department’s Public Integrity Section. Given that the Public Integrity Section soon came to direct all the prosecutions growing out of the Polar Pen probe—including the Ted Stevens case—a little examination of that unit is in order.
The Public Integrity Section was founded in 1976 on a wave of reforms following the Watergate scandals. By its official mission, it “oversees the federal effort to combat corruption through the prosecution of elected and appointed public officials at all levels of government.” Staffed with about 30 attorneys, the Public Integrity Section has had some high-profile successes. Notable achievements included the Abscam investigation in the late 1970s and early 1980s (which led to the convictions of six Members of Congress) and the more recent probe into super-lobbyist Jack Abramoff (which has led to the conviction of more than a dozen people, including a Member of Congress and several executive branch officials and Congressional staff members).
The Public Integrity Section had traditionally been known as an elite outfit and a breeding ground for stars like Attorney General Eric Holder and Reid Weingarten, one of a number of the unit’s lawyers who went on to a well-compensated career as a criminal defense attorney for the rich and famous.
By 2004, however, the Public Integrity Section was in the midst of some turmoil. Heavy turnover dogged the section during most of the 2000s, with the New York Times finding that only a quarter of the prosecutors who had been with the unit at the beginning of President George W. Bush’s tenure remained there at the end.
The comings and goings were particularly frequent at the unit’s top. The Washington Post reported in April of 2009 that the Public Integrity Section had had five heads in the past six years.
Nick Marsh Comes to Probe Alaska Corruption
The lead attorney on the ground for the Public Integrity Section—Nicholas “Nick” Marsh—was new to his job as well, and his part in this story is important enough that it’s worth sketching out his background. A slender and intense man in his early 30s when he began work on the Polar Pen probe in 2004, Marsh had only become a prosecutor about a year before he started traveling back and forth between the “Main Justice” headquarters in D.C. and Alaska.
The boyish-looking Marsh had been a high-flyer in his relatively short life. After clerking for Fairbanks-based Judge Andrew Kleinfeld of the Ninth Circuit Court of Appeals, the native Kentuckian had worked for two old-line law firms in New York City, rising to junior partner at the second.
Marsh wanted to be a prosecutor, however, reflecting a passion for public service and a strong impulse to mix it up. That last quality showed up in his lettering in lacrosse in college, a fact at odds with the wonky vibe he displayed in court. He joined the Justice Department in 2003 and was assigned to the Public Integrity Section in the fall of that year. After he completed a six-month detail in the Washington, D.C. U.S. Attorney’s Office, Marsh’s supervisors in the Public Integrity Section put him on Polar Pen.
Marsh’s assignment on the Last Frontier was definitely not full-time, as the young attorney juggled a variety of cases around the country. The new hire impressed his bosses by handling three appellate cases his first year, according to the National Law Journal. Marsh also worked in 2004 on the Mississippi-based prosecutions flowing out of fraud in lawsuits involving the drug fen-phen, and he was on the government’s courtroom team at a 2005 trial in New Hampshire over a Republican campaign official’s involvement in jamming the phones on a Democratic Party get-out-the-vote drive.
The Justice Department approved a partial recusal of the Anchorage-based U.S. Attorney’s Office in September of 2004 that gave Marsh a particularly big role in the Polar Pen probe. While giving four lawyers from that office the job to “monitor, manage, and direct the day to day operation” of Polar Pen, the Deputy Attorney General simultaneously assigned the Public Integrity Section “overall responsibility” for the probe, including “investigative and prosecutorial decisions.”
Bolstered by more than 17,000 intercepted conversations caught on wiretaps, the Polar Pen probe into Alaska public corruption expanded to cover allegations that VECO executives corruptly influenced state legislators over the construction of a natural gas pipeline and related petroleum tax legislation. Polar Pen progressed to the point that federal officials investigated at least 19 people, according to a filing submitted by one of the prosecutors involved in the investigation, while Alaska journalist Bill McAllister reported in 2007 after news broke of the probe that multiple sources had told him that it would result in the indictment of 26 people.
Polar Pen Zeroes in on Senator Ted Stevens
Back when Polar Pen was still covert, the probe started focusing on its most prominent target, U.S. Sen. Ted Stevens, an Alaska icon and Capitol Hill powerhouse who had held his Senate seat for more than three decades.
The record isn’t clear about when the investigation began that focus on Ted Stevens. Some observers thought that the Los Angeles Times started that ball rolling with two articles in 2003. The first focused on the links between the lobbying and consulting clients of Ted Stevens’ son Ben and legislative assistance provided by Ted Stevens to those clients, including VECO. Another LA Times story published that year headlined “Senator’s Way to Wealth Was Paved with Favors” laid out how Ted Stevens became a millionaire “thanks to investments with businessmen who received government contracts or other benefits with his help.”
At Ted Stevens’ trial, prosecutors introduced evidence of assistance that the Senator had provided to VECO on a Pakistani pipeline project referenced in one of those newspaper articles; on the other hand, federal investigators never interviewed Chuck Neubauer, the journalist who did most of the reporting and research on the two Times stories.
Another straw in the wind comes from a statement in a Wall Street Journal article by reporter Evan Perez in 2009 that the Ted Stevens case “was investigated for more than four years.” Given that the indictment and trial both occurred in 2008, that would put the start of the federal probe into Ted Stevens at no later than 2004.
The Department of Justice’s official history—the OPR report—says that it was a monitored telephone conversation between VECO executives Bill Allen and Rick Smith on October 19, 2005 that shifted the spotlight of the federal probe onto Ted Stevens. In that call, Allen and Smith discussed benefits VECO had provided to Ted Stevens in the form of renovations at Stevens’ Girdwood residence. The OPR report then states: “Thereafter, the government obtained additional information about the Girdwood renovations, noting that Stevens had not reported the benefits on his United States Senate Public Financial Disclosure Reports for the corresponding years.”
Whatever the precise date federal investigators started looking hard at Ted Stevens, it is clear that very shortly after that telephone call the leadership of the Anchorage-based U.S. Attorney’s Office wanted no part of the probe.
On November 5, 2005, the Justice Department approved what the OPR report describes as an “office wide” recusal of that office based on the office’s concern “[g]iven the high degree of sensitivity of such an investigation and the controversy likely to be engendered by investigating such individuals in the close knit Alaskan community.”
This recusal left the Public Integrity Section in charge of the federal probe into Alaska public corruption. Despite that “office wide” recusal, the investigation also proceeded with the assistance of two Anchorage-based Assistant U.S. Attorneys, Joseph Bottini and James Goeke.
In practice, this recusal made Marsh Polar Pen’s “top dog,” as veteran Anchorage attorney Jeff Feldman told New Yorker writer Jeffrey Toobin. This development meant that Bottini—who had been a prosecutor for approximately 20 years—was effectively supervised on POLAR PEN by a lawyer with about 10 percent of his experience as a prosecutor.
The Polar Pen prosecution team increased to four in 2006 with the addition of Edward Sullivan, who was immediately assigned to the probe upon his joining Public Integrity. (Confusingly, three unrelated Sullivans played significant roles in the Ted Stevens case—there was Edward Sullivan the prosecutor, Emmet Sullivan the trial judge, and Brendan Sullivan the chief defense counsel.) Edward Sullivan had been a lawyer for 10 years when he started on Polar Pen, and he—like Marsh and Goeke—had clerked for a federal judge. (It is a telling social commentary that the OPR report details federal clerking experience of these three lawyers while omitting Bottini’s experience clerking for a state court judge.) Despite Edward Sullivan’s impressive resume, his prosecutorial experience was zero.
The Grand Juries Hear Evidence, While a Logical Source of Help Goes Largely Untapped
The Polar Pen team presented evidence regarding Ted Stevens to grand juries between November of 2006 and June of 2008. One grand jury sat in Anchorage, and the other sat in Washington, D.C. Despite the use of the grand jury in the nation’s capital, the Washington, D.C. U.S. Attorney’s Office had no significant involvement in the Ted Stevens case.
This was too bad for the prosecution, particularly since the Justice Department was aiming for a possible trial in Washington. As Washington Post reporter Carrie Johnson pointed out after the government’s case collapsed in 2009, the government’s path could have been smoother if the Washington U.S. Attorney’s Office had been part of the case, thereby adding “players who were familiar with the courthouse and the personality of the trial judge.” Such a role for that office would have not been at all unprecedented in a major public corruption case. The Washington U.S. Attorney’s Office ran the prosecution of U.S. Rep. Dan Rostenkowski (D.-Illinois), the long-time chairman of the tax-writing House Ways and Means Committee, that produced his guilty plea in 1996 and a sentence that put him in federal custody for 17 months.
There are varying explanations for the lack of significant participation by the Washington U.S. Attorney’s Office in the prosecution of Ted Stevens. That 2009 Washington Post story reported that prosecutors in that office “were consulted about the Stevens case starting in 2006 but declined to participate, thinking that the charges were shaky, according to sources familiar with the discussions.” That article also stated that sources said “The assistant U.S. attorneys also considered overly aggressive the prosecutors’ early plan, later abandoned, to get a warrant to search the lawmaker’s D.C. area home….”
On the other hand, the OPR report suggests that it was the competition for glory that blocked the participation of the Washington U.S. Attorney’s Office, not that office’s perception that the Polar Pen team was on the wrong track with Ted Stevens.
Glen Donath, an Assistant U.S. Attorney from the Fraud and Public Corruption Section of the Washington U.S. Attorney’s Office, did attend at least one grand jury session in Washington in April of 2007 regarding Ted Stevens. The Public Integrity Section ran him off the case quickly, however. Donath—who had previously served on the team defending President Clinton at the impeachment trial—ended his slight participation in the Ted Stevens case after Public Integrity officials communicated to him that he was not needed and that any role he would play would be minor and merely an accommodation to his superiors. Edward Sullivan told OPR that Public Integrity Section Chief William Welch spelled it out more bluntly, conveying the message that Donath was “coming in late” and would be viewed as a “fifth wheel.”
Charges the Justice Department Considered
Contemporaneous media reports in the Anchorage Daily News, the Associated Press, and Roll Call showed that the federal government conducted a wide-ranging investigation of Ted Stevens and his close associates. As detailed in that coverage and in interviews, this probe included an examination of legislative assistance Ted Stevens had provided that had benefitted his son Ben (who was by 2006 President of the Alaska State Senate), Ted Stevens’ former long-time legislative aide Trevor McCabe, and Anchorage businessmen who had engaged in real estate deals with Ted Stevens that the Senator bragged about publicly. As part of this investigation, the FBI Interviewed former state legislator and activist Ray Metcalfe, who had accumulated evidence to support allegations regarding real estate transactions and fisheries legislation. The Justice Department also perceived early on in the investigation that tax charges could be brought against Ted Stevens, and the OPR report says that IRS agents remained part of the prosecution team through the Ted Stevens trial.
In the end, however, the prosecution’s charges did not relate to real estate transactions, fisheries legislation, or income taxes, and the word “earmark” appeared nowhere in the 28-page indictment issued on July 29, 2008.
Instead, the prosecution focused during the three-month period before the issuance of the indictment on five charges:
- Bribery under 18 U.S. Code Subsec. 201(b)(2);
- Illegal gratuities under 18 U.S. Code Subsec. 201(c)(1)(B);
- Honest-services fraud under 18 U.S. Code Secs. 1341-1351;
- -Conversion of services of government employees for personal use under 18 U.S. Code Sec. 641; and
- False statements, by concealment under 18 U.S. Code Subsec. 1001(a)(1) and by omission under 18 U.S. Code Subsec. 1001(a)(2).
Except for the potential conversion charge—which concerned Ted Stevens’ alleged use of Senate staff members to pay the personal bills of himself and his family—all these potential charges would have related to things of value received by Ted Stevens and not reported on mandatory annual Senate disclosure forms. Most of those things of value involved renovations to the Senator’s Girdwood home provided by Bill Allen and/or VECO.
There’s a common problem with the three charges listed above regarding Ted Stevens. Conviction under the bribery or illegal gratuities statutes requires “official acts” in connection with the crimes. Honest-services fraud—a favorite arrow in the federal prosecutor’s quiver before the U.S. Supreme Court sharply restricted the reach of the statute in 2010—does not explicitly require a quid pro quo between the receipt of a specific thing of value and a specific official act. With honest services fraud, prosecutors have tended to look to prove the defendant received a stream of things of value in exchange for a series of official acts.
At least one line prosecutor pushed hard for the inclusion of one or more of these counts in the Ted Stevens indictment. Higher-ups at the Department of Justice, however, seemed to perceive that Stevens had delivered so much for so many Alaskans over four decades that it was difficult to say that the Senator was motivated by gifts to do official acts. Those supervisors appeared to understand that it was difficult to throw a rock in any populated place on the Last Frontier and not hit somebody who had benefitted from an official act of “Uncle Ted”—whether it was a local appropriation or intervention with the federal bureaucracy—and that the great majority of those who had received help from the Senator had never given him a penny in campaign contributions, much less gifts (and had certainly never given his son Ben a lobbying or consulting contract).
It would have probably fortified the Justice Department brass in their rejection of bribery/illegal gratuities charges/honest services fraud charges against Ted Stevens if they had been aware of a conversation the lead FBI agent on Polar Pen had with a journalist in May of 2008. Mary Beth Kepner met with reporter Tony Hopfinger at a coffee shop in midtown Anchorage. This meeting occurred more than nine months after the FBI had executed a search warrant on the Senator’s Girdwood home and in the final throes of the Justice Department’s decision on the indictment. In the conversation—later recounted in Crude Awakening, a book by Hopfinger and Amanda Coyne, and in a recent interview with Hopfinger—Kepner speculated that Allen had bribed Ted Stevens by renovating the Senator’s house. The FBI agent then asked the reporter: “What do you think the quid pro quo was?”
Given that this conversation occurred after the FBI had been investigating Ted Stevens for at least 2.5 years and in the last 90 days before the Justice Department announced the indictment, it was surprising that the lead FBI agent on the Ted Stevens investigation would at that point ask a reporter in a coffee shop for that reporter’s opinion on a critical element of a case against Ted Stevens. (Then again, Kepner was known for her ability to get people to tell her things, and playing dumb is one well-known way to do that.)
The prosecutors also considered a charge of conversion. This charge would have been based on evidence that the Senator had for years arranged for Senate staff members to work on the Congressional clock to pay from his personal account his family’s personal bills—including his wife’s credit card bills, the family’s regular household bills, and the bills for the Senator’s participation in a horse racing partnership. The 1994 indictment against another Congressional titan—Rep. Rostenkowski—had included a charge of conversion of federal funds based on the Congressman’s alleged use of Congressional staff members working on federal time to perform personal services for Rostenkowski. As laid out in a 2007 article by John Stanton in Roll Call, Ted Stevens’ alleged use of a Senate staff member making more than $150,000 annually to serve as his “personal bookkeeper” substantially exceeded the occasional de minimis personal tasks some Senators asked of their own Senate staff.
Although Polar Pen’s line prosecutors expressed to their superiors in the spring of 2008 their belief that the evidence and the law supported a conversion charge against Ted Stevens, those lower-level lawyers advised against pursuing such a charge because it would significantly distract from a prosecution based on the Senator’s alleged falsehoods in his annual disclosure forms. (The prosecution did use evidence that the above-described Senate staff member routinely paid Catherine Stevens’ department store credit card bills while cross-examining the Senator’s wife at his trial.)
On April 7, 2009, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia unleashed his fury before a packed courtroom. For 14 minutes, he scolded. He chastised. He fumed. “In nearly 25 years on the bench,” he said, “I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”
It was the culmination of a disastrous prosecution: the public corruption case against former U.S. Senator Ted Stevens (R-AK).
Stevens was convicted in October 2008 of violating federal ethics laws by failing to report thousands of dollars in gifts he received from friends. But a team of prosecutors from the U.S. Department of Justice is accused of failing to hand over key exculpatory evidence and knowingly presenting false evidence to the jury.
The Stevens case is a cautionary tale. It reminds lawyers and nonlawyers alike of the power and failures of our legal system and those who have sworn to uphold the rule of law. At the center of the story are real people: an old and powerful politician, a crack defense team, determined prosecutors, and their supervisors.
“This is a fascinating case study for all lawyers,” says criminal defense lawyer Stanley M. Brand, a partner at Brand Law Group, P.C. “In these high-stakes cases, both sides can get pretty aggressive and push the envelope. It’s great to be aggressive—it’s great to push, but this case reminds people that they have to observe the limits and the rules.”
For months Judge Sullivan had warned U.S. prosecutors about their repeated failure to turn over evidence. Then, after the jury convicted Stevens, the Justice Department discovered previously unrevealed evidence. Meanwhile, a prosecution witness and an agent from the Federal Bureau of Investigation (FBI) came forward alleging prosecutorial misconduct. Finally, newly appointed U.S. Attorney General Eric H. Holder Jr. announced that he had had enough and recommended that the seven-count conviction against the former Alaska senator be dismissed.
On April 7, Judge Sullivan did just that. But he was far from done.
In an extraordinarily rare move, he ordered an inquiry into the prosecutors’ handling of the case. Judge Sullivan insisted that the misconduct allegations were “too serious and too numerous” to be left to an internal Justice Department investigation. He appointed Washington lawyer Henry F. Schuelke III of Janis, Schuelke & Wechsler to investigate whether members of the trial team should be prosecuted for criminal contempt.
“It’s obviously a serious and not-everyday occurrence for a judge to sic an independent counsel on prosecutors,” Brand says. “It’s an auger for the Justice Department. This judge’s tolerance was pushed to the limit, and prosecutors are not going to just go on their merry way. When judges do things like this, it tends to rattle the system a bit.”
With two investigations pending—one court-appointed, the other conducted by the Justice Department’s Office of Professional Responsibility—Justice Department officials say they are reviewing current discovery practices and retraining lawyers on their discovery obligations. It remains to be seen what consequences, if any, the prosecutors in this case will face.
“If all of our lives and careers were defined by our mistakes, nobody would have a job, so you hate to think that one mistake—even if it happens to be a highly publicized one—would damage someone’s career,” says Michael E. O’Neill, an associate professor who specializes in criminal law, criminal procedure, and constitutional law at George Mason University School of Law. “That said, prosecutors have to be absolutely fair and above board to ensure that justice is done.”
Brendan V. Sullivan Jr., Stevens’ defense lawyer and a senior partner at Williams & Connolly LLP, described the misconduct of prosecutors as “stunning.” He says the case is a sad story and a warning to everyone that any citizen can be convicted “if prosecutors are hell-bent on ignoring the Constitution and willing to present false evidence.”
But Assistant U.S. Attorney General Lanny A. Breuer, head of the Justice Department’s Criminal Division, says in a statement, “As we move forward in the continuing fight against public corruption, it is essential that the Criminal Division learns from the Stevens prosecution and its aftermath.”
Balance of Power
It is a common occurrence, especially in criminal cases: Lawyers who are battling it out in court push for every procedural advantage; they overstep their bounds and must be reined back in by the judge. There often are accusations that one side or the other is failing to produce evidence. But in the Stevens case, transcripts of multiple hearings show Judge Sullivan continuously reprimanding prosecutors for withholding discovery evidence.
Over the past few years, a series of high-profile scandals have rocked the Justice Department. For example, the department faced public outrage over its hiring process for U.S. attorneys under former Attorney General Alberto Gonzales, the revelation of the Justice Department’s role in the so-called “torture memos,” and ongoing questions about aggressive prosecutorial tactics. For some, the Stevens case represents a government entity that had developed a “total indifference to ethics.”
“This has built up over the years—the people at [the Justice Department] have come to believe that they are immune, that nobody can touch them, and that judges will ignore their prosecutorial misconduct,” says Joseph E. diGenova, former U.S. Attorney for the District of Columbia and a founding partner and criminal defense attorney at diGenova & Toensing, LLP.
Concerns also have been expressed about the timing of the Stevens case, with the indictment coming just months before Stevens was up for reelection in his home state. The jury verdict against Stevens came eight days before Election Day. Subsequently, he lost to Democrat Mark Begich in an extraordinarily close contest, the effects of which benefit the Democrats. There are 60 members in the Senate’s Democratic Caucus, giving the party a firewall against bill-derailing filibusters. Had Stevens been able to keep his seat, Democrats would have 59 members, one short of the key 60-member vote.
DiGenova says that the “consequences of what the prosecutors did are remarkable” and the harm incalculable. “Had things been different, Stevens would have been elected. Prosecutors actually determined the outcome of the balance of power in the U.S. Senate by their misconduct. They affected politics in the United States,” he adds.
The Justice Department probe into Stevens and other Alaskan officials, known as Operation Polar Pen, lasted several years. Lawyers from Washington fought with lawyers from Alaska over how to handle the case and whether to bring charges in Alaska or the District of Columbia.
Some observers blame the subsequent problems in part on the lawyers’ personal conflicts and poor management. Others suggest that the Justice Department lawyers were no match for the stars that formed the defense team—they knew it and felt pressure to find any advantage they could.
But in actuality, some of the Justice Department’s finest lawyers handled the case. The trial team was part of an elite group of prosecutors in the Public Integrity (PIN) Section, with experience pursuing high-profile and complex cases.
The PIN Section, which comprises about 30 lawyers, investigates and prosecutes corruption in all levels of government. Between 2001 and 2007, it brought public corruption charges against 416 individuals, winning 371 convictions. And just recently, the section was praised for its investigation of Washington lobbyist and convicted felon Jack Abramoff.
Seasoned litigator Brenda K. Morris, principal deputy chief of the PIN Section, was not assigned to the prosecution team until late into the investigation. A native Washingtonian, Morris received her juris doctor from Howard University and trained as a prosecutor in the New York County District Attorney’s Office. She moved back to Washington, D.C., and joined the PIN Section in 1991. Promoted in 2004, Morris supervised high-profile cases, including the Abramoff probe and a series of cases involving the theft of funds meant for the Iraqi reconstruction. She is also an adjunct law professor at the Georgetown University Law Center.
Brand, who has opposed her in cases, describes Morris as “fair, forthright, and sensitive to the facts.”
Chuck Rosenberg, Morris’ lawyer and a partner at Hogan & Hartson LLP, declined comment.
The rest of the prosecution team included Nicholas A. Marsh and Edward P. Sullivan, Washington, D.C.-based trial lawyers. And then there were the Alaska-based lawyers, Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke.
Overseeing the case as supervisory attorney was William M. Welch II, chief of the PIN Section. Welch grew up in Massachusetts, the son of a local judge. He received his law degree from Northwestern University School of Law and worked in several parts of the Justice Department, including the U.S. Attorney’s Office in Springfield, Massachusetts. There, Welch made his name prosecuting a serial killer nurse and Springfield City administrators for corruption. In 2006 Welch was recruited to Washington, D.C., and has been the head of the section since 2007. Prior to the Stevens meltdown, Welch allegedly was angling to be the U.S. Attorney in Massachusetts.
“Bill is the hardest working prosecutor I’ve ever worked with,” says Kevin J. Cloherty, a former supervisory attorney at the U.S. Attorney’s Office in Massachusetts. “He is of the highest ethical standards and is dedicated to public service and doing the right thing.”
Stevens was represented by Brendan Sullivan and Robert M. Cary, along with a team of nine other lawyers, two paralegals, and an information technology professional. Well known for his legal finesse and trial skills, Brendan Sullivan is at ease in the public spotlight. His legal career includes defending Lieutenant Colonel Oliver North and former U.S. Housing and Urban Development Secretary Henry Cisneros. Sullivan is famous for uttering the lines, “I’m not a potted plant. I’m here as the lawyer. That’s my job,” during a congressional hearing in the Iran-Contra Affair.
Brendan Sullivan has “a sort of quiet presence, but he has strength in his voice and can modulate—raise it for a very important point,” says Michael Madigan, a litigation partner at Orrick, Herrington & Sutcliffe LLP and a former federal prosecutor. “He’s one of the best lawyers in the country.”
The younger Cary, also a partner at Williams & Connolly, has represented his share of prominent clients and teaches a trial advocacy class at Georgetown University Law Center. Cary previously had worked with Brendan Sullivan on several cases, including the defense of former Cendant Corporation chair Walter Forbes in a fraud case.
In negotiations before trial, Stevens and his defense team refused a plea agreement. Instead, they opted for their right to a speedy trial in the hopes Stevens’ name could be cleared in time for him to return to Alaska and win reelection. There were only 56 days between indictment and trial.
“For us, it was simple,” Cary says. “We thought we owed it to him to try to resolve the case before the election. It may be the only time we’ve ever asked for a speedy trial.”
That made preparing for trial a relentless project. The trial team worked on the case day and night, meeting twice a day over lunch and dinner.
Stevens, 84 when indicted, had been in Alaska politics since before its statehood. As the longest-serving Republican in Congress, Stevens wielded extraordinary power. A World War II veteran, Stevens earned his law degree at Harvard Law School. He served as U.S. Attorney in Fairbanks, Alaska, before moving on first to the Alaska House of Representatives in 1964 and then the U.S. Senate in 1968.
Stevens’ clout in the Senate came from his longevity and his position as chair of the Appropriations Committee until 2005. His home sits at the base of Girdwood, Alaska, a ski resort. Once modest, the chalet had been expanded and remodeled to encompass 10 rooms and three bathrooms.
A Friendly Letter
The crux of the prosecution case was that Stevens had failed to list on Senate disclosure forms about $250,000 in goods and services he had received, mostly in the remodeling of his home, from oil services company VECO Corporation. For years VECO executives have been known to be top contributors to Alaska politicians. Ultimately, the case hinged on the testimony of Bill Allen, the senator’s personal friend pal—and cofounder and former chief executive officer of VECO—who spearheaded the remodeling project by hiring workers and providing the materials. Allen testified at trial that he never billed his friend for work on his house, and that Stevens knew he was getting special treatment.
Stevens was on the witness stand for three days. He said his wife paid their bills, and that, living in Washington, he could not possibly monitor the project.
Both sides fought over the meaning of an October 2002 letter from Stevens to Allen asking for a bill.
The letter read:
When I think of the many ways in which you make my life easier and more enjoyable, I lose count! Thanks for all the work on the Chalet. You owe me a bill—remember Torricelli, my friend. Friendship is one thing—compliance with the ethics rules entirely different. I asked Bob P to talk to you about this, so don’t get PO’d at him–it’s [sic] just has to be done right.
Torricelli was a reference to Robert Torricelli, the former Democratic U.S. congressman and senator from New Jersey who was accused of receiving illicit gifts from a campaign donor.
Allen testified at trial that the note was Stevens’ effort of “covering his ass.” Allen said on the stand that he had been told by Stevens’ friend Bob Persons to ignore the letter because the senator had written it to provide a false record to protect himself.
“That was a devastating piece of testimony delivered right before a break, as skillful lawyers do,” Cary says. “As bad luck would have it, a juror got sick that afternoon, which meant that that testimony was left to resonate with the jury for several days.”
As any law student knows, prosecutors must disclose any potentially exculpatory evidence to the defendant in a case. The so-called Brady Rule stems from the U.S. Supreme Court’s 1963 decision in Brady v. Maryland.
Throughout the trial, government and defense lawyers battled over the Justice Department’s production of evidence. Judge Sullivan considered declaring a mistrial, but he decided against it. On several occasions, the judge admonished the prosecution and even struck the use of certain evidence.
Prosecutors, Cary says, purposely produced discovery information late, “in the middle of trial, when we had little time to incorporate it into our strategy and use it effectively.”
Cary says the defense team was “incredibly distracted by the demands of briefing all of the issues that came up due to the prosecutors’ failure to provide information to which we were entitled.”
According to court documents, prosecutors told defense counsel before trial that Allen had said he believed Stevens would not pay the invoice. However, two FBI reports, known as 302 Forms, contained contradictory statements from Allen, in which he said he believed Stevens would have paid the invoice. The defense did not initially receive the FBI reports, even after court orders to turn over all Brady evidence. In fact, one of Allen’s statements was actually redacted from a report by an FBI agent before it was given to defense lawyers.
Finally, October 1, 2008, on the eve of Allen’s cross-examination at around 11 p.m., prosecutors produced the 302s showing that Allen had twice told the FBI he believed Stevens would have paid the invoice, which was in direct conflict with his testimony at trial.
During a hearing the next day, Judge Sullivan scolded prosecutors for failing to produce the evidence prior to trial and then stalling, despite court orders to hand it over. Judge Sullivan said, “It strikes me that this was probably intentional. I find it unbelievable that this was just an error.”
Then came evidence that the government knowingly submitted false VECO accounting records to establish the proposition that employee David Anderson and others billed $188,000 for the renovations. The records had been used by the prosecution to show the amount of time and money spent on renovations to Stevens’ chalet—an important part of proving that Stevens had received a benefit.
At yet another hearing, Judge Sullivan said, “It’s very troubling that the government would utilize records that the government knows were false.”
According to court hearings, the judge also was angry over evidence that the prosecution sent a witness back to Alaska without informing the judge or the defense.
Conviction and Fallout
The case took a strange turn when a juror disappeared, delaying deliberations after weeks of trial testimony. The juror had said she needed to fly to California because her father died, but Judge Sullivan was unable to reach her to determine when she would return. An alternate juror took her place. (In later proceedings, the juror admitted she had lied about her father’s death and instead disappeared to go to the horse races.)
On October 27, 2008, the jury found Stevens guilty of seven felonies. Stevens did not talk to reporters, but he issued a defiant news release accusing prosecutors of misconduct while declaring, “I will fight this unjust verdict with every ounce of energy I have.”
The jurors left the courtroom without commenting to the media.
A day later, Brendan Sullivan wrote to then-U.S. Attorney General Michael Mukasey, asking the Justice Department to “commence a formal investigation into the repeated misconduct by federal prosecutors in connection with this case.”
In November, Judge Sullivan received a letter from prosecution witness Anderson, who had worked on Stevens’ chalet. Anderson wrote that he falsely denied on the stand that he had an immunity deal with prosecutors in exchange for his testimony. He also claimed prosecutors left him in a room filled with confidential documents in an effort to coach him. Anderson also claimed Allen had a contract to have him murdered.
The Justice Department has vehemently opposed Anderson’s allegations.
Then came the kicker. On December 2, 2008, FBI Special Agent Chad Joy filed a whistleblower complaint stating that prosecutors tried to hide a witness and intentionally withheld evidence from defense lawyers. Joy further accused a fellow FBI agent of having an inappropriate relationship with Allen.
“The week or so before Christmas, we had round-the-clock litigation over whether Joy’s complaint would be made public or not,” Cary says. “We took the position that it should all be made public.”
According to a transcript of a previously sealed court hearing, Morris of the PIN Section argued that Joy’s name should not be revealed nor should the complaint be made public. Judge Sullivan ultimately released the complaint to the public with Joy’s name redacted. Subsequently, the judge grew increasingly irate when the Justice Department changed its position and said that since the complaint was made public, Joy’s name should be revealed. After portions of the complaint were made public, the Justice Department then argued that it would be easier to respond in court filings if all the names were revealed. The Justice Department also said Joy had no whistleblower status, but then it changed its mind on that. In January 2009 Judge Sullivan made public the details, along with Joy’s name. But Judge Sullivan was angry and wanted Mukasey to submit a declaration.
The week before President Barack Obama’s inauguration, Judge Sullivan demanded that Mukasey submit a declaration addressing who knew what and when about Joy’s status as a whistleblower. The postconviction scuffle continued, going as far as the U.S. Court of Appeals for the District of Columbia Circuit, which issued a temporary stay.
Judge Sullivan ordered full discovery on Joy’s whistleblower status. The Justice Department then made yet another error—prosecutors only handed the discovery to the judge, not the defense.
“That was a court order. That wasn’t a request,” Judge Sullivan said at a February 13 hearing. “I didn’t ask for them out of the kindness of your hearts….Isn’t the Department of Justice taking court orders seriously these days?”
Judge Sullivan then held Morris, Welch, and Patricia Stemler, chief of the Criminal Division’s Appellate Section, in contempt of court for failing to follow the court order to turn over documents.
At this point, the Justice Department removed its prosecutors from the case and assigned a new team, which found additional evidence that had never been handed to the defense.
On April Fools’ Day, U.S. Attorney General Holder announced that the Justice Department would move to dismiss the indictment “in the interest of justice.”
“After careful review, I have concluded that certain information should have been provided to the defense for use at trial,” Holder said in a statement.
On April 7, Judge Sullivan dismissed Stevens’ conviction and ordered the Schuelke investigation. Schuelke, a partner at Janis, Schuelke & Wechsler, served seven years as an Assistant U.S. Attorney in the District of Columbia before turning to private practice in 1979. He declined comment for this story.
“Judge Sullivan is one of the most liked judges on the bench,” says Jonathan Turley, a nationally recognized legal scholar and constitutional law professor at the George Washington University Law School. “He is smart and courteous and even-keeled. To get Judge Sullivan that irate, it takes monumental misconduct.”
The dismissal was announced, Stevens’ family sobbed, and Stevens gave a raised-fist salute. The hearing ended with applause in the courtroom. Outside the courthouse, Stevens posed for pictures with his family, declaring, “I’m going to enjoy this wonderful day.”
Brady and Its Progeny
In Brady, a jury convicted the defendant of murder after the state withheld a confession by a codefendant who admitted being the killer. The Supreme Court held that withholding evidence violates due process when the evidence is material either to guilt or punishment.
Subsequent cases have clarified the prosecutor’s duty to disclose. In Giglio v. United States, the Supreme Court extended the obligations of prosecutors to include impeachment evidence. Additionally, the Jencks Act governs the production of statements of government witnesses.
However, defense attorneys and criminal procedure experts say that prosecutors routinely provide information late and reluctantly. But it is rare, they say, that a case is so riddled with apparent violations, especially one that goes to the core of the case.
“Many cases have small Brady violations, but this is something that is pretty extraordinary—an interview that directly contradicts the testimony of the leading witness would have obviously been used,” Turley says. “There’s no question it would have undermined the credibility of the witness.”
Not surprisingly, Stevens’ lawyers are convinced that the failure to disclose led to the conviction. “It’s our belief that they never would have elicited that testimony from Bill Allen if they knew we had this evidence at the time,” Cary says. “It was the heart of the government’s case that there was a so-called scheme to conceal information, and the letter went to the heart of our defense that Senator Stevens was acting in good faith.
“It was our position that the ‘covering his ass’ testimony was a fabrication, and the notes that were produced months after the trial proved that this was a fabrication. ”
One still-unanswered question is, Was there a deliberate intention to withhold evidence, a series of mistakes, or some combination of motives? George Mason University’s O’Neill describes intentional Brady violations as relatively rare, but says that inadvertent failure to turn over evidence is far more common “especially when you have a lot of attorneys working on something, like a complicated fraud case.”
“It’s always possible that something could slip through the cracks,” O’Neill says.
Some outside observers question whether the prosecutors’ zeal got out of hand, and Welch looked the other way or even encouraged tactics that may have crossed the line.
“It is fundamentally unfair to criticize Bill Welch for supervision failures in connection with the Stevens discovery,” says his lawyer Bill Taylor, a partner at Zuckerman Spaeder LLP. “The head of the Public Integrity Section, even in high-profile cases, does not get involved in the management of discovery. The trial team consisted of extremely experienced prosecutors who had been involved in the Polar Pen cases from the beginning. He had no reason to believe they were not complying with their constitutional obligations to turn over material favorable to the accused.”
Matthew W. Friedrich, former head of the Justice Department’s Criminal Division, approved Morris’ addition to the team around the time of the indictment. Persons familiar with the trial team say that Morris’ late arrival on the team—and questions over who was to be in charge of the case—created tension. The other four main lawyers previously had worked on other Polar Pen cases. Morris, with more trial experience and a higher position at the Justice Department, ended up taking on a larger role in the Stevens prosecution than some involved in the case had initially anticipated.
“A smooth, almost seamless trial team is critical to the success of any prosecution or defense,” Orrick’s Madigan says. “When internal bickering or whatever causes the wheels to come off, disaster is usually not far behind.”
Friedrich, now a partner at Boies, Schiller & Flexner LLP, declined comment on the internal decision making, but says, “I have always believed that Brenda Morris … is an outstanding attorney, with enormous experience and integrity.”
Justice Out of Control?
As criminal defense attorneys are quick to point out, the Justice Department has in the past decade been sullied by a series of high-profile case implosions and accusations of misconduct across the board, from failing to disclose evidence to using politics to choose what cases to pursue.
In the wake of the September 11 attacks, the Justice Department aggressively pursued terrorism cases, and some of them have since been entangled in accusations of improper tactics. The PIN Section even ended up trying to prosecute one of its own former terrorism prosecutors, Richard G. Convertino, for withholding evidence in a trial.
In 2007 U.S. District Judge Lewis A. Kaplan in New York described as “outrageous and shocking” threats by the Justice Department to indict KPMG LLP if the accounting firm paid the legal bills of its employees. The Justice Department’s conduct pushed Kaplan to dismiss criminal tax charges against former KPMG executives accused of participating in an illegal tax shelter.
And in January 2009, U.S. District Judge Mark L. Wolf in Boston said that Justice Department prosecutors in Boston had a “dismal history” of failing to produce exculpatory evidence.
“The Justice Department has a certain culture,” Turley says. “It is commonplace for federal prosecutors to argue that they couldn’t imagine why something is exculpatory when it is obvious that it is.”
Some defense counsel say that part of the problem is that in recent years the Justice Department’s Office of Professional Responsibility has not provided an adequate check on conduct within the department. H. Marshall Jarrett, a longtime Holder colleague, ran the Office of Professional Responsibility for 10 years. In April, however, Jarrett was reassigned to the Executive Office for U.S. Attorneys, and Mary Patrice Brown has taken the helm.
“[The Office of Professional Responsibility] has become known as the Bermuda Triangle of complaints against prosecutors. They go in, and they never go out,” diGenova says. “As a result, it’s made a mockery of the accountability process, and every seasoned lawyer knows it’s a mockery.”
There are new concerns about the propriety of the PIN Section. In June the Justice Department requested the release from prison of two former Alaska legislators after it was revealed the lawyers from the Stevens team, excluding Morris, also failed to hand over evidence in their cases. The Criminal Division is reviewing the prosecutors’ conduct.
“There is a special obligation that the Public Integrity Section has to act according to the highest ethical standards because they are policing government conduct,” says Brand of the Brand Law Group.
In the months since Judge Sullivan dismissed the charges, Cary and Brendan Sullivan have continued with their thriving legal practices. Stevens is considering writing a book about his six terms in office.
The Justice Department awaits reports from both the Office of Professional Responsibility and Schuelke’s investigation. In July Judge Sullivan signed an order giving Schuelke the power to issue subpoenas.
As of this writing, Morris and Welch remain in their same roles. Prosecutors Marsh and Edward Sullivan were transferred out of the PIN Section to the Office of International Affairs. Bottini remains at the U.S. Attorney’s Office in Alaska.
Some criminal defense lawyers say the case will have a lingering effect on the justice system. “Our system of justice is built upon having confidence that prosecutors are doing an honest and fair job,” Madigan says. “If you start to lose confidence in them, it just erodes the entire system of justice. It’s of enormous magnitude.”
But even the staunchest critics of the Justice Department admit that it is still known for being home to skillful lawyers who take to heart their job as trusted public servants.
In a July speech before the National Black Prosecutors Association, Holder said the Justice Department is reviewing how it complies with discovery obligations. “We will correct any errors and we will see to it, once again, that justice is our primary goal,” he said. “When we are wrong, we will admit our errors. When we see an affront to justice, we will rectify the problem.”
- Brady v. Maryland, 373 U.S. 83.
- Giglio v. United States, 405 U.S. 150 (1972).