The showdown between U.S. District Judge Emmet Sullivan and the Department of Justice that unfolded in recent days—amid the buzz of the inauguration—fell apart in an 18-page opinion written by the judge who started it all.
Judge Sullivan (pictured above) on Jan. 16 ordered then-Attorney General Michael Mukasey—or Deputy Attorney General Mark Filip—to provide the court a history of how the Justice Department handled the whistle-blower complaint in the Ted Stevens case. The complaint alleges prosecution and FBI misconduct. Stevens’ lawyers are making a big fuss about it in a motion for a new trial.
Sullivan’s order caused a stir, and Justice lawyers scrambled to respond to it. High executive officials should not be compelled to provide testimony in law enforcement proceedings unless there are extraordinary circumstances, a Justice appellate lawyer argued. The Department won a temporary stay on appeal.
Late yesterday, Sullivan reversed course and vacated his Jan. 16 order—a move that likely makes the appeals court case moot. A briefing deadline was in place but no argument date had been set.
In ditching his demands of Mukasey (pictured at left), Sullivan noted the change of administration and the “potential for further delay due to anticipated multiple changes at the Department of Justice.” Mukasey has left Justice. Filip is the acting attorney general.
Sullivan, however, has ordered the Justice Department to file under seal any and all communication about the whistle-blower complaint. Stevens’ lawyers at Williams & Connolly will be provided copies. The order relieves Mukasey and Filip, the acting attorney general now, from having to file a declaration with the court.
In yesterday’s order, Sullivan takes shots at the prosecution team, which came under fire several times during the trial in October. Sullivan singled out Brenda Morris, principal deputy chief of the Public Integrity Section who was the lead prosecutors in the Stevens case.
Sullivan criticizes Morris for her alleged refusal to answer direct questions from the judge about the apparent importance of the whistle-blower complaint. At a sealed court hearing Dec. 19, where lawyers and the judge debated whether to let the public see the whistle-blower complaint, Sullivan asked Morris whether she would find the complaint relevant and argue to review it if she were a defense lawyer.
Morris said she is “biased” and a witness in the investigation of the allegations detailed in the complaint.
“So I can’t get a direct answer from you as to whether you’d want that information if you were a defense attorney?” Sullivan asked. Morris responded: “Again, judge, it’s very difficult for me to say because I was there. I saw what happened, and is there a grain of truth in some things? Yes, there is a grain of truth, but it’s not telling you the whole thing of what was happening and I don’t want to put the cart before the horse.”