AG Holder: Ted Stevens Report Has "Disturbing" Findings

Updated 4:03 p.m.

Attorney General Eric Holder Jr. said today in testimony on Capitol Hill that the Ted Stevens report on prosecutorial misconduct contains "disturbing" findings against Justice Department lawyers.

Holder, who said he has reviewed the summary and portions of the report, provided remarks about the Stevens case during a Senate subcommittee hearing on the department's $27.1 billion budget proposal.

The investigative report, which found misconduct pervaded the Stevens prosecution in Washington, is tentatively scheduled for publication March 15. One of the Stevens prosecutors has asked the U.S. Court of Appeals for the D.C. Circuit to stay the publication.

“Some of the findings that are made there are disturbing,” Holder said. “They were disturbing when I made the decision to dismiss the case.”

The attorney general also said the DOJ's internal review of the Stevens case, a separate report, has wrapped up and that it does recommend sanctions.

Responding to questions about the botched prosecution of Stevens, the late Alaska senator, Holder said today the department’s Office of Professional Responsibility internal review of the case recommends sanctions.

Holder, however, did not specify the nature of the recommendations and he didn’t identify any prosecutor by name. The other investigative report, conducted by Henry “Hank” Schuelke III, did not recommend criminal contempt charges against any of the Stevens trial attorneys.

Schuelke concluded that none of the Stevens prosecutors violated a “clear and unequivocal” order from U.S. District Judge Emmet Sullivan regarding the government’s obligation to turn over favorable information to Stevens' defense attorneys.

One prosecutor, Edward Sullivan, represented by Steptoe & Johnson’s Brian Heberlig, has asked the D.C. Circuit to stay the publication of the report. Two other prosecutors, Brenda Morris and William Welch II, the former chief of the DOJ Public Integrity Section, filed court papers today in opposition to the requested stay.

“Does it concern you that the only reason these prosecutors escaped criminal charges is that the judge in the Stevens case didn’t file an order specifically telling the prosecutors that they should follow the law?” Sen. Kay Bailey Hutchison (R-Texas) asked Holder today.

Holder said that when he was made aware of the issues in the Stevens case he soon after dismissed the case. At the time, in April 2009, Holder cited prosecutorial errors.

He said today he hopes DOJ will release the internal OPR report—to the extent that the department can, he remarked. Holder described the report as an “exhaustive study” that is hundreds of pages long.

“There are privacy interests that we have to deal with,” Holder said. “But my hope is to get as much of that report made public that we possibly can.”

Holder trumpeted the steps DOJ took in response to the collapse of the Stevens case, saying that the department ramped up training for prosecutors. “This Justice Department, this attorney general, when we made that determination that mistakes occurred, took the extraordinary step of dismissing that case,” Holder said.

Alaska Sen. Lisa Murkowski (R) questioned the Justice Department policy that allows the government to pay the legal fees for the retention of outside counsel. Murkowski pressed Holder whether DOJ will try to recoup that cost, which she said is more than $1.8 million.

“It seems to me that in an instance like this, where it has been made clear that the conduct was intentional, that it was substantial and it was widespread, that we should not be defending and paying for the attorneys fees,” Murkowski said.

Holder said DOJ could not represent the Stevens trial attorneys, who had their own views about what happened in the case. “We acted, with regard to them, as we have done in the past with regard to the retention of outside counsel,” Holder said.

During questioning today, Hutchison asked Holder about appropriate sanctions against any Stevens prosecutor who was found to have committed intentional misconduct.

“Are you going to make a decision regarding people who have clearly exhibited that they do not have the integrity to prosecute in this sensitive area?” she asked. “Will you tell the committee what your actions are when you have made that determination?”

Holder said any decision on sanctions will take into account the extent to which an ethics violation was isolated and how serious the violation was.

There is no privacy interest that blocks sharing with the public the sanctions the department takes against any prosecutor who was found culpable, Holder said.

Sen. Dianne Feinstein (D-Calif.) said today the “tragedy” of the Stevens case is that the Alaska senator died “before he knew this was a faulty prosecution. That to me elevates this to a new height. I think that actions have to be taken.”

Comments

[S. Powell]

Hiding exculpatory evidence is pervasive in the DOJ, and Holder has repeatedly turned a blind eye toward it. Look at the recently filed Cert. Petition in US v. Brown, http://lawprofessors.typepad.com/files/2011-cert-petition-filed.pdf . Prosecutors actually yellow highlighted evidence as Brady before trial, still concealed it from the defense, and tried the entire case on a theory the concealed evidence directly contradicted. One prosecutor is now CHief White House counsel; the supervising prosecutor is now General Counsel to the FBI. The government has refused to acknowledge ANY wrongdoing on its part. Holder chose to ignore it.

[Eric Rasmusen]

Two more questions should be:

Why haven't you yet made the decision on who to punish, 3+ years after the misconduct?

If you fire the culprits, do they have to give up the pay they earned while you were procrastinating?

Have you ever fired *any* prosecutor for misconduct?

[Mark Davis]

Prosecutorial misconduct is widespread in the Justice Department. Reference Demons of Democracy chapter on this subject delves deeply into cases that were profoundly frivolous. You are describing just the surface of this subject in this article.

[Jack Andreotti]

Kudos to Sen. Feinstein, a liberal democrat, for her strong and empathetic concern for Sen. Stevens as a person.

simple question: were a defense attorney to engage in similar misconduct in the course of his duties.....what would happen?

Have bar disiplinary authorities (apart from the Justice Dep't. itself) been notified? What have they done/are they doing?

finally, this is not an isolated problem. Until extremely harsh, punitive and very public sanctions imposed on prosecutors at all levels of gov't and across the country, these abuses will continue. The occur daily. Most go undetected/unpunished. Very few judges have the courage and tenacity of Judge Sullivan.