Updated: 5:25 p.m.
A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.
DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either assistant U.S. attorney acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation. Bottini and Goeke, who were Alaska-based prosecutors at the time of the Stevens trial, have the option to appeal the misconduct finding to the Merit System Protection Board.
OPR concluded in a 672-page report the government violated its obligations under department policy and constitutional principles to disclose certain information to Stevens’s lawyers, Assistant Attorney General Ronald Weich said in a seven-page letter to Senate Judiciary Chairman Patrick Leahy (D-Vt.) and House Judiciary Chairman Lamar Smith (R-Texas.)
“Our prosecutors and agents work hard to keep our country and communities safe and to ensure that defendants are brought to justice honorably and ethically,” Weich said in the letter, which accompanied the OPR report. “Nonetheless, when there is even a single lapse, we must, and we do, take it seriously.”
Leahy this afternoon released the full OPR report on the Senate Judiciary Committee's web site. The committee also posted responses from Bottini and Goeke to the proposed suspension. Leahy announced the committee will hold a hearing on June 6 to explore the discovery obligations of federal prosecutors. He said in a statement that "prosecutors must adhere without fail to the directive to seek justice for all parties, not just convictions."
Bottini's attorney, Kenneth Wainstein, a partner at Cadwalader, Wickersham & Taft, said in a letter in response to the OPR report that Bottini “acknowledges that he played a role in the resulting discovery violations, and he will always live with a profound sense of personal regret for the effect those violations had on the integrity of the Stevens trial and on the Department he loves and has spent his entire career serving."
The collapse of the Stevens case in April 2009 was a major blow to the Justice Department. Stevens, one of the longest-serving U.S. Senators, had been charged with concealing information on financial disclosure reports.
Attorney General Eric Holder Jr. asked U.S. District Judge Emmett Sullivan to throw out the Stevens case in April 2009 after a review of the case revealed prosecutors did not follow rules in disclosing information to Stevens’s lawyers.
Department officials said Bottini and Goeke failed to disclose information a chief government witness, Bill Allen, provided to investigators and prosecutors at a meeting in 2008, before Stevens was charged. Allen’s credibility was central to the prosecution case that Stevens concealed gifts and other items on U.S. Senate financial disclosure forms.
OPR did not make any professional misconduct findings against any of the other Stevens prosecutors, including William Welch II, Brenda Morris and Edward Sullivan. OPR, however, concluded that Morris, then a supervisor in the Public Integrity Section, exercised poor judgment by failing to supervise “certain aspects of the disclosure process.”
A special counsel who conducted a parallel probe of the Stevens team, after the case was dismissed in April 2009, did not recommend criminal charges against any of the Stevens prosecution team.
However, the lawyer, Henry “Hank” Schuelke III, concluded that Goeke and Bottini committed intentional misconduct in concealing exculpatory information. The two prosecutors dispute that finding.
Bottini has been in public service for more than 25 years, and Goeke for about eight years. Neither prosecutor has a prior disciplinary record.
The chief of the department’s Professional Misconduct Review Unit, Kevin Ohlson, determined the preliminary OPR findings were supported by the evidence and the law. A lawyer in that unit, Terrence Berg, who was assigned to issue a disciplinary proposal, “disagreed substantively” with the professional misconduct finding.
Ohlson, however, after reviewing Berg’s draft memorandum, “determined that it would be inappropriate” to allow Berg to reject OPR’s findings. Scott Schools, an associate deputy attorney general, later sustained Ohlson’s misconduct conclusion.
Weich, the assistant attorney general in charge of the DOJ legislative affairs office, said in the letter to Congress that the violations in the Stevens case were atypical considering more than 800,000 cases filed in the past decade.
That's sure to be a topic at the June hearing in the Senate Judiciary Committee.
"This was a high profile case that impacted the outcome of an election," Sen. Chuck Grassley (R-Iowa), the ranking committee, Republican said in a statement. "If the Justice Department isn’t getting a big case such as this right, it begs the question of what is happening in courts across the country every day.”
Staff writer Todd Ruger contributed to this report.