Justice Department lawyers over the weekend won a small victory convincing an appeals court to temporarily stay a federal judge’s order directing then-Attorney General Michael Mukasey, or his deputy, to respond to an inquiry in the Ted Stevens case.
U.S. District Judge Emmet Sullivan ordered Mukasey, or a top-level designee, to provide the court a declaration explaining how the Justice Department received and responded to an FBI agent’s whistleblower complaint alleging prosecution misconduct in the Stevens trial. Government lawyers urged the judge to reconsider. Sullivan set a deadline of 5 p.m. Saturday. Government lawyers did not respond with the declaration. A copy of Sullivan's order is here.
Instead, Justice lawyers went to the U.S. Court of Appeals for the D.C. Circuit on Friday. Two appellate judges late Saturday issued a temporary stay, letting Mukasey and Deputy Attorney General Mark Filip (pictured at left) off the hook. Judges Merrick Garland and Judith Rogers included standard language in the one-page per curiam order, saying that the stay “should not be construed in any way as a ruling on the merits” of the appeal.
Justice lawyer Patty Stemler, chief of the Criminal Division’s Appellate Section, filed a petition for a writ of mandamus Friday, arguing that a two-week stay is necessary for the appeals court to consider the petition and for the government to gather the information Sullivan is demanding. The information in the whistleblower complaint is part of Stevens’ argument for a new trial.
Mukasey and Filip, Stemler argued in the petition, faced three “untenable” positions: Defy Sullivan’s order and face a contempt charge; sign a declaration when neither could personally attest to the accuracy of the information, or divert attention from security and administrative responsibilities rooted in the inauguration and the Justice transition. Last week, Sullivan called his order the most important thing on Mukasey’s desk.
Stemler noted that the Justice Department intends to provide the information to the court. But that information should not be presented in a declaration signed by either Mukasey or Filip, Stemler argued. Only a Justice lawyer with firsthand knowledge should respond to Sullivan’s request, Stemler said. High executive branch officials should not be required to provide testimony in law enforcement proceedings, Stemler argued, unless there are extraordinary circumstances.
Stevens’ criminal defense lawyers at Williams & Connolly urged the appellate judges to reject a temporary stay of Sullivan’s order. The lawyers recounted allegations of prosecution misconduct that were raised during the Stevens trial. Sullivan rebuked the prosecution team several times. Government prosecutors, time and again, said trial blunders were accidental.
“The district court reasonably responded to the government’s repeated and flagrant misstatements by insisting on a declaration from superiors in the Department of Justice,” Williams & Connolly associate Simon Latcovich, argued in an appellate brief. “The government’s motion for a stay is procedurally improper and meritless."
Williams & Connolly lawyers have until Friday at noon to respond to the Justice petition for a writ of mandamus, according to the appeals court order. Garland and Rogers gave the government until Monday afternoon to file a reply brief. No argument date has been set.