A federal appeals court in Washington has been asked to review a judge's decision to publish a 500-page report documenting allegations of prosecutorial misconduct that doomed the corruption case against the late Alaska Sen. Ted Stevens.
One of the prosecutors in the Stevens case, Edward Sullivan, filed a notice indicating he wants the U.S. Court of Appeals for the D.C. Circuit to examine whether the report should be released to the public.
So far it appears only Sullivan has asked the appeals court to review the dispute. Other prosecutors in the case, however, had earlier urged the presiding trial judge to either seal the report or to not release it.
U.S. District Judge Emmet Sullivan of Washington’s federal trial court this week refused to stay the pending appeal of the planned March 15 publication of the investigative report. (Emmet Sullivan and Edward Sullivan are not related.)
The judge ordered the investigation of the Stevens prosecutors in April 2009 after the U.S. Justice Department abandoned the high-profile case amid allegations prosecutors unfairly kept to themselves information that was beneficial to Stevens.
Judge Sullivan appointed a special prosecutor, Henry “Hank” Schuelke III, to determine whether any federal prosecutor on the Stevens case should be charged for criminal contempt.
Schuelke last November did not recommend the filing of criminal charges against any prosecutor. Still, Schuelke said he found evidence of concealment and serious misconduct.
Judge Sullivan today unsealed documents that identified Edward Sullivan as asking for the appeal in the D.C. Circuit. The substance of Edward Sullivan’s appellate challenge, however, remains sealed in the trial court.
Edward Sullivan’s attorney, Steptoe & Johnson partner Brian Heberlig, declined to comment on the appeal.
In November, Heberlig, who heads the firm’s white-collar criminal defense practice, said in a statement that “there is no basis to conclude that Mr. Sullivan concealed exculpatory information” from Stevens’ defense lawyers. Sullivan, Heberlig said then, “acted honorably in his limited, supporting role.”
Six lawyers were subject to the criminal contempt investigation. One of the attorneys, Nicholas Marsh, committed suicide during the pendency of Schuelke’s probe.
Two prosecutors, court papers show, said they either agree or do not object to the public release of Schuelke’s report.
The other four lawyers, including counsel for Marsh, either asked that the report be sealed or not released. The identities of the prosecutors and their respective positions were not published in court papers.
Lawyers for the prosecutors who objected to the release of the report tried unsuccessfully to convince Judge Sullivan that Schuelke’s criminal investigation was akin to a grand jury proceeding and therefore should remain secret.
Judge Sullivan concluded that keeping the report confidential “would be a disservice and an injustice.” The judge had said from the outset that he would make the report public.