A top U.S. Justice Department official today defended an internal ethics investigation that punished two attorneys in the Ted Stevens case for misconduct but did not hold accountable senior lawyers for their roles in the botched prosecution.
James Cole, the second in command at the Justice Department, said on Capitol Hill today that the mismanagement of the public corruption case against Stevens did not amount to misconduct. (Cole's remarks are here.)
The department’s Office of Professional Responsibility concluded that two prosecutors, Joseph Bottini and James Goeke, assistant U.S. attorneys in Alaska, committed reckless professional misconduct by failing to follow rules that control the disclosure of evidence to defense lawyers. Cole today called the misconduct "an aberration."
The OPR report did not find that senior lawyers—including William Welch II and Brenda Morris, top attorneys in the department’s Public Integrity Section—violated any ethical guidelines. The report, however, did criticize Morris for poor judgment for neglecting the supervision of the release of favorable information to Stevens’s lawyers at Williams & Connolly.
Testifying at a Senate Judiciary Committee hearing about prosecutorial ethics, Cole said Morris and Welch were not personally aware of information that was not being turned over to the defense lawyers representing Stevens. That’s poor judgment, Cole insisted, but not misconduct.
The OPR report did not find that Bottini and Goeke committed intentional misconduct, a different conclusion from the outcome of a simultaneous criminal investigation.
That probe, conducted by a court-appointed special prosecutor, said Goeke and Bottini intentionally withheld information that would have helped Stevens fight allegations that he filed false financial disclosure reports in the U.S. Senate.
The criminal investigation did not recommend criminal charges against any of the Stevens lawyers. The special prosecutor, Henry “Hank” Schuelke III, said there wasn’t a clear order from the trial judge, Emmet Sullivan, to disclose exculpatory information. A criminal contempt case, Schuelke determined, could not be sustained without a clear order from the trial judge.
Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, today brought up discussion about the divide in the Justice Department’s professional responsibility office over whether it was appropriate to pin most of the blame on two line attorneys.
A senior federal prosecutor, Terrence Berg, who was tasked with reviewing the Stevens prosecution to impose discipline, rejected in large part the OPR findings against Bottini and Goeke. Lawyers for Bottini and Goeke maintain that both prosecutors made mistakes. But the prosecutors reject the notion that either intentionally shirked their ethical responsibility.
The failure of the Stevens prosecution, Berg concluded, was collective. Kevin Ohlson, the chief of the department’s professional misconduct review unit, took control of the disciplinary assessment away from Berg and rejected his finding. Ultimately, a front-office lawyer, Scott Schools, adopting Ohlson’s finding, said Bottini should be suspended for 40 days and Goeke for 15 days.
“His judgment on this shouldn’t have been lightly overturned,” Grassley said today about Berg’s review.
Much of the discussion today in the committee centered on legislation that would put a greater burden on prosecutors to disclose more information to defense lawyers. Sen. Lisa Murkowski (R-Alaska) testified today about the necessity of the reform. The Justice Department has long fought against legislative tinkering with discovery rules.
“A criminal defendant’s rights should not depend on whether or not Mr. Holder or someone else is the attorney general,” Murkowski said. “The obligations and the rights should be uniform, predictable and they should be consistent.”
Cole today rejected the substance of the legislative effort. The Stevens case, he said, did not prove that the rules concerning prosecutorial ethics are broken. Rather, Cole said, the rules were not followed. Cole urged the committee members not to support any effort to “legislate judgment.” The existing rules, he said, are good.
Grassley said he was concerned the legislation could, if ultimately adopted, lead to the disclosure of classified information in national security cases.
“Further, these changes could impact witness safety as it could require Justice Department attorneys to provide evidence that could be used to harm or intimidate witnesses—a sad but true reality of high profile criminal prosecutions,” Grassley said in a prepared statement.