The two prosecutors cited for alleged misconduct in the botched case against Ted Stevens are appealing the disciplinary sanctions brought against them.
Assistant U.S. Attorneys Joseph Bottini and James Goeke have asked the U.S. Merit System Protection Board to review a dispute with the Justice Department rooted in a lengthy attorney misconduct report.
The DOJ internal review concluded Bottini should be suspended without pay for 40 days and that Goeke be suspended for 15 days for their alleged failure to turn over beneficial information to the defense lawyers representing Stevens, the late U.S. senator from Alaska.
Lawyers for Bottini and Goeke dispute the findings in the department's Office of Professional Responsibility report, which said the two prosecutors committed "reckless professional misconduct" during the Stevens public corruption case in Washington.
An official with the MSPB today confirmed the appeals, filed last week, are pending in a San Francisco field office. Neither prosecutor has filed a substantive pleading outlining the basis of the appeal. Goeke is an AUSA in Washington state; Bottini works in Alaska as a federal prosecutor there.
A lawyer who has represented Goeke declined to comment today. Bottini's counsel, Kenneth Wainstein of Cadwalader, Wickersham & Taft, said Bottini didn't deserve to be singled out for the collapse of the high-profile case.
Wainstein and other critics of the OPR report blame a collective failure of the prosecution team, led by William Welch II and Brenda Morris, former senior attorneys in the DOJ Public Integrity Section. Welch has since retired from government service.
Wainstein says he wants the merit systems protection board to "look at the highly irregular process" in which one Justice Department official took over the disciplinary analysis from the lawyer who had been assigned it.
Kevin Ohlson, the chief of DOJ's Professional Misconduct Review Unit, initially determined the evidence and the law supported the professional responsibility office conclusion that Bottini and Goeke engaged in misconduct.
A longtime assistant U.S. attorney, Terrence Berg, was tasked with assessing any discipline against the two prosecutors.
Berg disagreed with the misconduct finding. Ohlson, however, determined it was "inappropriate" to allow Berg to reject OPR's findings. An associate deputy attorney general, Scott Schools, upheld the disciplinary action against Bottini and Goeke.
Wainstein said the disciplinary process was "designed to rely on Berg's opinion" and that it was "basically dropped from the process."
The MSPB appeal process is expected to take at least several months to resolve.