Updated 4:57 p.m.
A federal trial judge in Washington did not hold two prosecutors in the Ted Stevens case in criminal contempt when he blasted the government for failing to promptly turn over documents, an appeals court said today.
U.S. District Judge Emmet Sullivan declared the prosecutors, William Welch II and Brenda Morris, in contempt at a hearing in February 2009 amid a dispute about the U.S. Justice Department’s failure to provide documents to Stevens’ defense lawyers.
At the hearing, Sullivan told Welch and Morris, then supervisors in the DOJ Public Integrity Section, he would address sanctions at a later date. Sullivan in October 2010 declined to impose sanctions against either prosecutor.
Morris and Welch challenged the contempt finding, saying that it was criminal, not civil, in nature, based on the judge’s language and the threat of sanctions. The prosecutors said the judge’s finding marred their professional careers and could impede their ability to practice in federal trial courts around the country.
But the U.S. Court of Appeals for the D.C. Circuit said today that Sullivan’s contempt order was civil, not criminal. The purpose of the judge’s order, a three-judge panel said, was to compel the prosecutors to turn over information pursuant to an earlier court order.
“Because they were not sanctioned, and because the contempt was purged, Welch and Morris were held in civil contempt,” Judge Judith Rogers said in the ruling, joined by Judge Merrick Garland and Senior Judge Harry Edwards.
Covington & Burling partner Mark Lynch argued for Welch and Catherine Stetson, a partner at Hogan Lovells, represented Morris at the hearing in October.
"The DC Circuit now has confirmed that Brenda committed no criminal contempt, and the DOJ Office of Professional Responsibility has confirmed that Brenda committed no misconduct," Stetson said in an e-mail.
Lynch said Welch was gratified the appeals court clarified Sullivan's order.
"We thought it was a close question, and it’s good to have it resolved this way," Lynch said in an e-mail. "Combined with OPR’s conclusion that Mr. Welch did not engage in any contumacious conduct, the court’s opinion brings this matter to a satisfactory conclusion."
Morris and Welch argued that if the contempt were civil, then it would have been purged as soon as the government complied with Sullivan’s order to produce documents. Sullivan did not formally lift the contempt finding until more than a year after the February 2009 hearing.
The appeals court said today that “the reliance on the timing of the district court’s decisions to life the contempt is misplaced.”
Morris and Welch, the D.C. Circuit judges said, are “experienced attorneys at the department” and could have asked Sullivan to clarify his contempt ruling soon after he made it.
At the hearing, Sullivan called the prosecutors’ action “outrageous” and “not acceptable in this court.” Morris and Welch said in the appeal that Sullivan’s public reprimand met the hallmark of criminal contempt.
The appeals court rejected the argument about the nature of Sullivan’s language.
Sullivan’s words, the D.C. Circuit said, were “significantly less harsh” than the language another judge in Washington used to criticize the U.S. Department of the Interior in an unrelated class action. The appeals court in that case ruled the contempt order was criminal in nature because of the judge’s “exceedingly strong words.”
“For better or for worse, commenting that a party’s conduct is ‘unacceptable’ or even ‘outrageous’ is neither unprecedented nor exceptional in the course of trial litigation,” Rogers wrote.
Edwards agreed with the majority opinion. He wrote separately, however, to say that he does not agree with the argument from Welch and Morris that Sullivan’s contempt order carries a stigma.
Edwards said Morris and Welch will not have to identify themselves as criminal contemnors on state bar reports, job applications or any other papers.
“Such a disclosure would be a fabrication,” Edwards wrote. “Our decision in this case confirms, once and for all, that appellants’ conduct in this case did not result in a finding of criminal contempt. Therefore, appellants can never face the opprobrium that might have come had they been held in criminal contempt.”
The contempt issue the appeals court decided today is separate from the Justice Department internal investigation about whether any member of the Stevens prosecution team violated ethics obligations. OPR has not issued its report yet. Stetson said Morris was cleared in that probe.
Sullivan in April 2009 appointed a special prosecutor, Henry Schuelke III, to investigate whether any Stevens prosecutor should be charged with criminal contempt for violating court orders.
Schuelke last month submitted his report to Sullivan, and the judge issued an order that said the prosecutor is not recommending criminal charges. Sullivan has not publicly released the report. A decision on disclosure is expected in January.