A showdown between a D.C. federal judge and Attorney General Michael Mukasey is brewing.
Justice Department prosecutors are urging U.S. District Judge Emmet Sullivan to rescind his demand that Mukasey sign a declaration about how the government received and responded to the whistleblower complaint in the Ted Stevens case.
A government appellate lawyer this evening filed a motion saying Public Integrity Section prosecutor Brenda Morris misspoke in court Wednesday when she said the whistleblower, FBI Special Agent Chad Joy, was not entitled to whistleblower protection.
Judge Sullivan was furious when he learned that bit of information yesterday. He ordered Mukasey to prepare a memo by noon Friday detailing the Justice Department’s handling of the whistleblower complaint, which alleges prosecutorial misconduct during the Stevens trial. Sullivan did not immediately respond to the government's motion.
In arguing for the judge to reconsider his demand of Mukasey, Patty Stemler, chief of the Criminal Division’s Appellate Section, wrote that Morris was mistaken when she said Joy is not entitled to whistleblower protection. The Office of Professional Responsibility has not determined Joy’s status, Stemler noted, nor has Joy alleged retaliation. Sullivan’s order yesterday is “premised on a misunderstanding,” she wrote.
About Mukasey, Stemler wrote that there’s a strong presumption against compelling executive branch officials to provide testimony absent exceptional circumstances. Mukasey has no first-hand knowledge of the information Sullivan is demanding, the prosecutor argued.
“Agency heads are charged with sweeping statutory responsibilities in furtherance of the public interest. At the same time, their agencies are generally involved in litigation in courts across the country,” Stemler wrote. “If agency heads could routinely be ordered to provide sworn testimony in civil and criminal proceedings, their ability to execute the duties of their offices and thus serve the public interest would be severely impaired.”
Stemler cited several cases, including a 2000 case out of the U.S. Court of Appeals for the 8th Circuit. Then-Attorney General Janet Reno and then-Deputy Attorney General Eric Holder Jr. could not be compelled to testify about procedures used in deciding not to withdraw a death notice in a criminal case, the court ruled.