The U.S. Justice Department violated internal procedure in disciplining two federal prosecutors accused of ethical misconduct in the corruption case against Ted Stevens, a judge concluded in a ruling that voids the suspensions imposed on the two attorneys.
Benjamin Gutman, an administrative judge who hears Merit Systems Protection Board disputes, said the department shirked procedure when a senior management attorney was allowed to take over for the rank-and-file lawyer who was assigned to make a recommendation about whether the prosecutors committed misconduct.
The ruling vacating the suspensions marked the latest chapter in the saga of the Stevens case, which collapsed in Washington federal district court in 2009 amid allegations of prosecutorial misconduct. A court-appointed attorney who investigated the failures in the case did not recommend criminal charges against any of the Stevens prosecutors.
The department's Office of Professional Responsibility concluded that two Stevens prosecutors, Joseph Bottini and James Goeke, showed reckless professional misconduct in their dealings with Stevens's defense lawyers at Williams & Connolly. The allegations were rooted in the failure to disclose potentially beneficial information to the defense team. OPR determined that Goeke and Bottini, assistant U.S. attorneys in Alaska, didn't intentionally conceal information.
The department's Professional Misconduct Review Unit was tasked with assessing the merits of the OPR findings and, if they were correct, proposing any discipline. The chief of the unit, Kevin Ohlson, assigned the investigation to Terrence Berg. Berg disagreed with the misconduct finding, concluding instead that Bottini and Goeke showed poor judgment, a lesser violation.
Ohlson, however, overruled Berg. Ohlson took over as the "proposing official" to determine whether the misconduct charge would stick and to determine the punishment. A senior lawyer in Attorney General Eric Holder Jr.'s front office, Scott Schools, upheld a 40-day suspension for Bottini and 15-day suspension for Goeke.
Bottini and Goeke challenged the finding, taking the dispute to the Merit System Protection Board, where federal employees air employment grievances. Gutman issued a 28-page ruling on April 5. (Bottini hasn't served any of his suspension; Goeke served one day.)
Gutman, the administrative judge, said in his ruling that the Justice Department was wrong to allow Ohlson to overturn Berg. DOJ said in its defense that Ohlson, as the chief of the misconduct unit, had "the authority to issue or propose disciplinary action" in any matter within the section's jurisdiction.
"Whether an official has the legal authority to take a particular kind of action is not the same question as whether his action complies with the applicable procedures," Gutman wrote.
The Justice Department said that disallowing the ability of higher management to review the decision of a career lawyer would make bad policy, Gutman noted in his ruling. The judge called the concern "legitimate." But, he said, the "agency could have easily written" its procedures to avoid the problem.
Gutman said the Justice Department's procedures were intentionally set up to have a career lawyer in a position to make an assessment of any professional misconduct finding.
"The agency was concerned about the rank-and-file attorneys' perceptions of the fairness of the disciplinary process, and it believed that these attorneys would take some comfort knowing that a PMRU attorney—someone who himself or herself had come out of the ranks—would be 'taking the first crack at the OPR findings and determination of punishment,'" Gutman wrote.
Gutman didn't make any conclusion on whether Berg was correct that Bottini and Goeke showed poor judgment, not professional misconduct. "I note only that the agency could have had enough confidence in his judgment and integrity to leave the initial disciplinary decision to him even though his decision would set the maximum punishment the agency could impose."
Bottini's lawyer, Kenneth Wainstein, heralded Gutman's decision. (DOJ could still decide to challenge the ruling.)
Berg "was dead right when he concluded that Joe had made honest mistakes that were not professional misconduct, and MSPB Judge Gutnam was equally right to find a procedural violation when the Justice Department ignored that conclusion," Wainstein, a Cadwalader, Wickersham & Taft white-collar defense partner, said in an email today.
"After a long and difficult four years, Joe and his friends are very grateful that Judges Berg and Gutman heard his side of the story and that he can now move forward with his honorable service to the nation and to the department he loves," Wainstein said.
Goeke's lawyer, Bonnie Brownell, of Washington's The Brownell Law Firm, wasn’t immediately reached for comment this afternoon.
In December, the U.S. Senate confirmed Berg to a slot on the U.S. District Court for the Eastern District of Michigan. Schools left the Justice Department earlier this year.
President Barack Obama in March re-nominated Ohlson to be a judge on the United States Court of Appeals for the Armed Forces.