The U.S. Justice Department is preparing to release to Congress this week the government's internal investigation of the collapse of the Ted Stevens case, two people with knowledge of the report said.
The department's Office of Professional Responsibility investigation unfolded simultaneously with a criminal probe of the Stevens prosecution team. The OPR report, which could be submitted to Congress as early as this afternoon, examines whether any Stevens prosecutor crossed ethical boundaries in the handling of the case against the former Alaska senator, which collapsed in April 2009 amid allegations of government misconduct.
Attorney General Eric Holder Jr. said in congressional testimony in March he wants to make as much of the report public, to the extent the government can. DOJ is subject to Privacy Act guidelines, he said. Holder, who said then that the internal Stevens investigation had concluded, described the report as an “exhaustive study” of the failed prosecution.
The Stevens case has garnered significant attention on Capitol Hill in recent months as some members of Congress examine whether legislation is needed to put a greater burden on prosecutors to disclose more evidence to defense lawyers. DOJ is opposed to any legislative tinkering. Also, members of Congress have peppered Holder with questions about whether the department will sanction any Stevens prosecutor who was found to have run afoul of professional conduct rules.
It was not immediately known whether U.S. District Judge Emmet Sullivan, who presided over the Stevens trial, will receive a copy of the OPR report at the same time it is disclosed to Congress. Sullivan appointed a special prosecutor to investigate the Stevens trial team due in part to his concern that OPR would not swiftly assess and reveal any ethical violations in the Stevens case.
Attorneys for Stevens prosecutors declined to comment on the OPR report's findings, citing a confidentiality agreement.
The parallel criminal investigation of the Stevens prosecution team did not recommend contempt charges against any of the prosecutors—William Welch II, Brenda Morris, Edward Sullivan, James Goeke, Joseph Bottini and Nicholas Marsh. (Marsh committed suicide in Sept. 2010.)
The Washington attorney who led the criminal inquiry, Henry “Hank” Schuelke III, determined Goeke and Bottini, assistant U.S. attorneys in Alaska, committed misconduct by intentionally withholding favorable information from Stevens's attorneys. Bottini and Goeke both dispute Schuelke’s findings.
The investigation and prosecution of Stevens, Schuelke said in his report, was "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense."
Stevens was charged in Washington federal district court with lying on U.S. Senate financial disclosure forms, concealing the source of hundreds of thousands of dollars in gifts and home repairs. His lawyers at Williams & Connolly in Washington, including Brendan Sullivan Jr., said Stevens believed he had paid for repairs to his home in Alaska and that he appropriately reported the receipt of gifts and other items.
After a jury found Stevens guilty, Holder asked Judge Sullivan to dismiss the case. A team of prosecutors, Holder said, discovered the Stevens trial team had withheld information beneficial to Stevens.
Bottini’s lawyer, Kenneth Wainstein, a partner at Cadwalader, Wickersham & Taft, said in April at a House Judiciary Committee hearing on the Stevens case that Bottini did not commit intentional misconduct.
“Like every prosecutor—myself included—he has made his share of mistakes, especially in the hectic and unpredictable environment of criminal trials,” Wainstein said in a statement to the committee. “He acknowledges that he made mistakes—serious mistakes—in the Senator Stevens case, and he will always regret the effect they had on the integrity of that prosecution and on the public perception of the Justice Department.”
Lawyers for Welch, Morris and Sullivan said in court papers filed in connection with the criminal investigation that the OPR report did not find misconduct against the three prosecutors.
A Justice Department lawyer, Raymond Hurley, said in a letter to Welch in August that “we concluded that Mr. Welch did not commit professional misconduct or exercise poor judgment in this matter.” Welch, the former head of the Criminal Division’s Public Integrity Section, recently retired from the Justice Department.
Morris said in a letter to Schuelke in March she was “satisfied” with his overall conclusion regarding her involvement in the Stevens trial.
“I approached the post trial investigations of the prosecution openly and honestly,” Morris said. “This has been an extremely long and difficult process,” Morris wrote. “While my integrity was publicly questioned, I know that I have maintained my integrity throughout.”
Schuelke said in his report, released publicly on March 15, that OPR provided him “transcripts of its interviews and exhibits, documents and other information obtained during its concurrent investigation of the conduct of the prosecutors and FBI agents during the investigation and prosecution of Senator Stevens.”
Schuelke said he turned over to OPR copies of deposition transcripts and other information. He said he allowed DOJ to review documents to determine whether they contained information that the Stevens prosecutors were required to disclose to Stevens’s defense lawyers.