A federal appeals court should not disturb a trial judge's finding that two prosecutors in the Ted Stevens case were in civil contempt for failing to timely disclose documents, the Georgetown University Law Center professor who is defending the judge said today.
Steven Goldblatt, appointed by the U.S. Court of Appeals for the D.C. Circuit to represent the interests of U.S. District Judge Emmet Sullivan, said the judge did nothing wrong in holding the two prosecutors in civil contempt during a post-trial hearing in Washington federal district court.
Goldblatt, director of Georgetown's appellate litigation program, filed court papers (PDF) urging the appeals court not to vacate the finding.
Sullivan declared William Welch II, then the supervisor of the Justice Department’s Public Integrity Section, and Brenda Morris in contempt in February 2009 for failing to timely turn over documents to Stevens’ lawyers. The prosecutors disclosed the information hours after the judge held the lawyers in contempt.
More than a year later, after the Stevens case was thrown out amid claims of prosecutorial misconduct, Sullivan purged Morris and Welch from the contempt finding.
But the judge did not invalidate or otherwise erase the fact the lawyers had been held in contempt in the first place. Sullivan said his finding was civil, not criminal. Neither prosecutor was sanctioned by way of a fine or jail time.
Morris and Welch contend in the appeals court that Sullivan held the prosecutors in criminal contempt based on his language and his threat of sanctions. Sullivan, the prosecutors argue, failed to provide procedural protections afforded to criminal defendants.
The contempt citation, if it is not overturned, will damage reputations and make it more difficult to practice in courts around the country, lawyers for Morris and Welch said in court papers.
Goldblatt said the brief filed today that Sullivan’s finding of civil contempt was correct. That the contempt was purged as soon as the prosecutors complied with court orders is “the classic identifying aspect of civil contempt,” Goldblatt said.
Goldblatt dismissed the notion that Sullivan’s harsh language from the bench—he excoriated prosecutors for what he called “outrageous” conduct—transformed civil into criminal contempt.
“The court below was obviously unhappy with DOJ’s conduct, and immediately expressed its frustration from the bench—something that regularly happens in courtrooms everyday across the country,” Goldblatt said.
A ruling in the D.C. Circuit that Sullivan’s oral reprimand transformed civil into criminal contempt “would inject even more uncertainty into this area of the law,” the professor said. Ever more lawyers, Goldblatt said, would appeal contempt citations out of fear the attorney had been convicted of a crime.
“While [Welch and Morris] have strategical reasons to argue that this contempt is a criminal conviction, such a holding would ill serve attorneys in the future who will be better off not being convicted of a crime whenever a judge scolds them,” Goldblatt said.
Goldblatt urged the D.C. Circuit not to “psychoanalyze a district court’s intent” as the appeals court reviews the nature of the contempt finding in the Stevens prosecution.
Neither prosecutor, Goldblatt said, has given the D.C. Circuit any reason to “extend the law such that verbal criticism of a government agency offered in conjunction with a finding of contempt against government attorneys makes the contempt criminal.”
Such a rule, he said, “would leave this Court in the unenviable position of playing the role of word police, patrolling the word choice of district courts to determine what they may and may not say in conjunction with a contempt finding.”
Lawyers for Morris and Welch are expected to file additional court papers next month in response to Goldblatt. A three-judge panel—Merrick Garland, Judith Rogers and Harry Edwards—said it will hear the dispute in October.