Two federal prosecutors in Washington who were held in contempt in the Ted Stevens public corruption case are urging an appeals court to vacate the judge's finding.
The prosecutors, William Welch II, the former head of the Justice Department's Public Integrity Section, and Brenda Morris, a former top trial attorney in the section, said in a brief (.pdf) filed Monday in the U.S. Court of Appeals for the D.C. Circuit that the trial judge’s finding was in error.
Judge Emmet Sullivan of U.S. District Court for the District of Columbia declared Morris and Welch in contempt during a post-trial hearing in the Stevens case in February 2009. Sullivan chided the prosecution for not following court orders to turn over a set of documents to the former Alaska senator’s attorneys at Williams & Connolly.
At the hearing, Sullivan said he’d address sanctions later. More than a year after the contempt ruling, the judge issued an opinion that lifted Welch and Morris from contempt. Sullivan did not sentence either prosecutor to jail or require the payment of a fine. Sullivan, however, refused to vacate his initial contempt finding. The judge said his order was civil, not criminal. Sullivan's ruling is here.
The D.C. Circuit, which said it will hear the case Oct. 17, must decide whether Welch and Morris were held under civil or criminal contempt.
Lawyers for Welch and Morris said in the brief that Sullivan’s contempt order “had all the objective attributes of a criminal contempt finding” despite the judge’s assertion last October that the prosecutors were in civil contempt.
For one, the defense attorneys said, the prosecutors complied with the judge’s court order to turn over documents hours after Morris and Welch were held in contempt. (Morris is represented by Hogan Lovells partners Chuck Rosenberg and Catherine Stetson, and Covington & Burling partner Mark Lynch represents Welch.)
The attorneys for the prosecutors said Sullivan’s order was designed to punish Morris and Welch. Under a punishment scenario, Sullivan should have given Morris and Welch the rights of criminal defendants, including a trial, according to the prosecutors’ lawyers.
For Morris and Welch, the distinction between civil and criminal is important. The prosecutors want the appeals court to find that the contempt was criminal to vacate it and remove it from their record. Morris and Welch contend if the contempt order remains in place it will harm their careers, impeding their ability to practice in federal district courts around the country.
The filing of the brief late Monday was in response to the position taken by the Georgetown University Law Center professor who was court-appointed to represent the interests of Sullivan in the dispute in the appeals court.
Professor Steven Goldblatt said in a brief this summer that Sullivan’s order was civil, not criminal, because it was designed to coerce the Stevens prosecutors to turn over documents. Goldblatt noted that the judge did not punish either of the prosecutor with sanctions.
Goldblatt said the D.C. Circuit should send the case back to the trial court for further proceedings if it decides Sullivan’s order was criminal in nature.
The attorneys for Morris and Welch said “it is far too late in the day to accord the necessary process to a 2009 criminal contempt order that was unaccompanied by any such process.”