Updated 6:01 p.m.
Two federal prosecutors who were held in contempt for allegedly flouting court orders in the Ted Stevens public corruption case in Washington today asked an appeals court to vacate the finding, calling the trial judge's ruling defective.
The prosecutors, William Welch II and Brenda Morris, former supervisors in the U.S. Justice Department's Public Integrity Section, are challenging the contempt finding issued in February 2009 during post-trial litigation in the Stevens case.
Last October, Judge Emmet Sullivan of U.S. District Court for the District of Columbia removed Morris and Welch from under contempt. But Sullivan refused to vacate his initial contempt order. The judge did not impose sanctions against the prosecutors.
“It is no solace to Ms. Morris and Mr. Welch that the court did not follow through with its stated intent to impose further sanctions or that it later characterized the contempt as civil, for they remain adjudicated contemnors,” attorneys for Morris and Welch said today in a filing in the U.S. Court of Appeals for the D.C. Circuit. “Without review by this court, the personal and professional records of Ms. Morris and Mr. Welch will forever include a conviction of criminal contempt.”
Hogan Lovells partners Catherine Stetson and Chuck Rosenberg, who represent Morris, declined to comment this afternoon. Welch’s lawyers—Covington & Burling’s Mark Lynch and William Taylor III, a Zuckerman Spaeder partner—also declined to comment. The joint submission in the D.C. Circuit is here.
Welch and Morris remain under criminal investigation stemming from the botched prosecution of Stevens, who was charged in Washington federal district court with making false statements on Senate financial disclosure reports.
The prosecution was thrown out in the post-conviction stages after the Justice Department determined the trial attorneys did not turn over certain documents to the defense that would have undermined the testimony of a key witness.
One big question is whether Sullivan’s finding was criminal or civil. The judge characterized it as civil in his October 2010 ruling. But lawyers for Welch and Morris said today it was a criminal contempt finding. The prosecutors would not be able to challenge a civil contempt finding on appeal.
Sullivan said he intended to impose sanctions at the time he held the attorneys in contempt, the defense lawyers noted in the filing today in the D.C. Circuit. Morris’ and Welch’s lawyers argue that Sullivan’s strong remarks from the bench are the “hallmarks of a punitive contempt order.”
Lawyers for Welch and Morris said Sullivan held the prosecutors in criminal contempt for their “inadvertent failure” to produce 34 documents tied to the filing of an FBI agent’s whistleblower allegations.
At a hearing in February 2009, where a prosecutor, Kevin Driscoll, said there was “no reason” the documents in question had not been turned over, Sullivan held Morris and Welch in contempt. (Sullivan held Driscoll in contempt, too, but the judge lifted the order against him within a day.)
“I’ll deal with the sanctions associated with the [contempt] at a later date, but that’s outrageous for the Department of Justice, the largest law firm on the planet, to come before a federal judge and say, 'yeah, Judge, you know, we recognized your order, we realized it and we just haven’t gotten around to complying with it, and we really don’t have a good faith reason or any reason for not having complied with it,'” Sullivan said in court. “That is not acceptable in this court and that’s the reason why I’m adjudicating those attorneys in contempt.”
Sullivan, according to Morris and Welch, did not provide the prosecutors a hearing or an opportunity to defend themselves before the contempt finding. The Stevens prosecutors turned over the documents the afternoon of the February hearing. If the contempt finding were civil, then it should have been lifted then, the attorneys for Morris and Welch said.
Morris and Welch face “potential collateral consequences” if the D.C. Circuit does not throw out the contempt finding, according to their lawyers.
Those consequences, attorneys for the prosecutors said, could affect their career advancement, reputations as public servants and disciplinary records in the jurisdictions where they are admitted to practice. Applicants seeking admission to federal district courts are often asked whether they have ever been held in contempt.
The appeals court appointed Georgetown Law Center professor Steven Goldblatt to represent the interests of the court. Goldblatt is expected to respond to the prosecutors in late July.