Wow. This Jan. 16 order from US District Judge Emmet G. Sullivan demanding an explanation about possible misconduct by Public Integrity Section Chief William Welch and other DOJ lawyers in the Sen. Ted Stevens case is so scathing, I don’t know where to begin.The immediate issue here is whether the government misrepresented the whistleblower status of FBI Agent Chad Joy in order to keep his allegations of prosecutorial misconduct under seal. The larger issue is what Sullivan called a “pattern of belated revelations and followed by unsatisfactory, and possibly false, explanations from the government” in the high-profile prosecution of the Alaska Republican. Sullivan ordered AG Michael Mukasey or a high-level “designee” to file a “declaration” explaining the discrepancies by 5 p.m Saturday. (The government missed that deadline, and Roll Call says that the government “apparently filed an appeal” for more time.)
Stevens, the Senate’s longest-serving Republican who lost his seat in November, was convicted in October on seven counts of lying on his financial disclosure reports about gifts. Stevens lawyer Brendan Sullivan has asked the judge to throw out the conviction or order a new trial.
The background: On Dec. 11, the government notifed the court it had received the FBI agent’s complaint nine days earlier, on Dec. 2. In a Dec. 19 hearing, prosecutors asked that it be sealed because of statutory protections due whistleblowers. Stevens objected to the secrecy. Sullivan ordered a redacted complaint filed.
Then on Wednesday, Public Integrity SectionChief Welch initiated a call to the judge, with defense counsel on the line, to say prosecutors had changed their mind and would support lifting many of the redactions from Agent Joy’s complaint. In the call, Welch said “several times and with seeming certainty” that Agent Joy had at some point in fact been denied official whistleblower protection, though Welch couldn’t say when exactly, Sullivan wrote in his order.
Sullivan immediately held a hearing in open court. According to Legal Times, Sullivan “appeared furious, angrily pointing his finger and raising his voice” at Welch and Brenda Morris, the lead attorney from Public Integrity on the case. A day later, on Thursday, Patty Stemler, chief of the Appellate Section, wrote that prosecutors had “miscontrued” a Dec. 4 letter from the Office of Professional Responsibility to Agent Joy. In the letter, OPR said it wasn’t investigating whether the FBI agent had been subject to any impermissable reprisals for his whistleblowing — because Agent Joy hadn’t made any such claim. Sullivan wrote that it was “wholly incredible” that the Public Integrity attorneys had interpreted that letter to mean Agent Joy’s allegations had to be kept under wraps.
Sullivan issued his order on Friday demanding that Mukasey or a designee with “sufficient responsibility and stature” explain who knew what and when. Sullivan noted that Welch, Public Integrity attorney Mark Levin and Stemler had all been present at the Dec. 19 hearing in which the government said Agent Chad’s complaint had to be filed under seal for confidentiality reasons – an explanation the judge now finds suspicious.
“Based on the record in this case, and the appearance that several attorneys in this matter — in multiple departments in the Department of Justice — may have intentially withheld important information from the Court, it is the Court’s view that a declaration from an official at the highest levels of the Department of Justice is appropriate and warranted in this instance,” Sullivan wrote. “It simply strains credulity to think that an entire team of very successful attorneys” made such a mistake, he added.
The Anchorage Daily News has this story summarizing the issues.
In his complaint, Agent Joy accused the lead FBI agent in the Stevens investigation, Mary Beth Kepner, of becoming too close to witnesses, and said Nicholas Marsh, another attorney with the Public Integrity Section, had kept important evidence from Stevens’ lawyers.