The debacle of the Ted Stevens case signals a “double standard” in discipline at the Justice Department, Sen. Charles Grassley said Wednesday at a congressional hearing that produced severe criticism of the DOJ from senators of both parties.
The Justice Department’s recently released ethics report on the failed case laid blame with two Alaska Assistant U.S. Attorneys, but “the failures in the Stevens case were not simply just a couple of line attorneys making bad decisions,” the Iowa Republican said.
The department’s Office of Professional Responsibility cited the two AUSAs with “reckless misconduct” in failing to hand over exculpatory evidence during trial, and has decided to suspend the line attorneys without pay. OPR did not find, however, any of the Washington-based Public Integrity Section prosecutors at fault (aside from one manager, Brenda Morris, who was found to have exercised “poor judgment” in the case).
“[The OPR report] raises new questions about the longstanding problem of a double standard between discipline applied to line agents and attorneys compared to managers and supervisors at the department,” Grassley said. ”It is easy to see with the OPR report in the Stevens case how this perception continues.”
The Senate Judiciary Committee hearing Wednesday was the latest public airing of the issues at play in the Stevens case, which fell apart in dramatic fashion in 2009. The late Alaska Republican had his public corruption conviction thrown out after Justice officials learned certain exculpatory evidence was not handed over at trial. It has lead to a number of congressional hearings on the matter, two misconduct reports and suspensions for two members of the prosecution team.
Grassley, the panel’s ranking Republican, questioned Deputy Attorney General James Cole about a perceived double standard, highlighting a memo written by a department attorney who rejected many of OPR’s findings. Professional Misconduct Review Unit lawyer Terrence Berg examined OPR’s findings but did not recommend any punishment for the cited AUSAs because he said their actions did not rise to the level of misconduct. The ultimate decision to overturn Berg’s opinion paints a troubling picture, Grassley said.
Cole said he does not believe that the differences among the OPR report, Berg’s memo and the court-appointed investigator’s report shows a “double standard.” He said there were two sets of conduct: misconduct by the line prosecutors and poor supervision and management by supervisors. The supervisors made mistakes that are not proper for department prosecutors, but they do not rise to the level of misconduct, he said.
Cole told the committee that OPR’s report is a careful examination of the factors that were at play in the Stevens case. Special investigator Henry F. Schuelke III found that the two AUSAs, Joseph Bottini and James Goeke, “willfully concealed” evidence at trial. Both have disputed the assertion they purposefully concealed evidence.
Sen. Sheldon Whitehouse, (D-R.I.), a former federal prosecutor, also pointed to the infamous “Torture Memos” episode, in which Associate Deputy Attorney General David Margolis effectively exonerated two department attorneys flagged for misconduct from further punishment.
This need to protect the department as an institution leads to problems, as evidenced in the fallout from the Stevens case, the Senators said. That’s where Sen. Lisa Murkowski’s new legislation comes in.
The Alaska Republican, who is a family friend of the late Stevens, gave testimony to the committee on Wednesday, advocating for codifying evidence disclosure rules through legislation. The “Fairness in Disclosure of Evidence Act,” which currently has four co-sponsors, would more closely regulate discovery rules for federal prosecutors. The Justice Department has gone on record opposing legislating such discovery rules.
Murkowski, who did not take any questions from the committee, said the department’s unwillingness to take her efforts seriously suggests a “somewhat arrogant or dismissive approach.”
“I respectfully submit that Justice is in no position to be arrogant,” Murkowski said.
She said discovery obligations and rules should be predictable, and that’s what her bill aims to do. She said the department sometimes characterizes her bill as a mechanism to “open the jail house doors and… have the terrorists run free.” That’s not the case, she said.
The Stevens case, while a dark mark on the Justice Department, is also one to remember for ages because fewer prosecutions “cut as close to the relationship of the American people to the government as this one did.”
The committee’s chairman, Sen. Patrick Leahy (D-Vt.), a former prosecutor, said whatever steps needed to ensure this never happens again, “whether it’s a Ted Smith or a Ted Stevens,” need to be taken.
After the hearing, Murkowski told Main Justice she will continue to press the Justice Department.
“The people of Alaska are still stung by what happened,” she said. “This is a man who served them not only 40 years in the Senate but before that within our state government. They see a system that worked against a good man.”
She continued: “I can remember a conversation with Senator Stevens when he was going through this process and he said, ‘Don’t worry, the DOJ will do their job. They will find that there’s nothing there. They will find me innocent,’ ” she said. “And the DOJ didn’t mete out justice. Alaskans are still waiting for some real answers and we haven’t gotten them yet.”
Cole defended the Justice Department, saying the Stevens case, while regrettable, does not represent a “systemic problem.” He told the committee he did not believe the Stevens trial would have had a different outcome had Murkowski’s bill been in place. The problem was not that the rules were not in place, the problem is that the prosecutors did not follow the rules, he said.
He highlighted the steps the department has taken since the Stevens case to ensure federal prosecutors are well aware of their discovery obligations, including mandatory training and creating of discovery coordinators nationally and in U.S. Attorney’s offices. He also told the committee that there are a number of reporting procedures in place to notify OPR of potential discovery violations. In fact, the number of cases with discovery issues at trial is “infinitesimal,” he said.
A main concern, and major reason to oppose Murkowski’s legislation, is the potential harm it could bring to witnesses, Cole said. If witness names are handed over the the defense before trial, there are scores of instances in the past that show that the witnesses may be retaliated against — some even killed. He also said the implications for national security cases could be “devastating.”
Murkowski’s bill would “disturb a careful balance” already in place within the criminal justice system, Cole said.
– Main Justice reporter Matthew Volkov contributed to this report.