Attorney General Eric Holder on Thursday defended the work of Justice Department lawyers after a stinging USA Today investigation into prosecutorial misconduct.

Holder said an “overwhelming majority” of DOJ lawyers handle themselves appropriately. The newspaper reported that the DOJ frequently categorizes misconduct that brought overturned convictions as mistakes.

The newspaper’s investigation found that the DOJ Office of Professional Responsibility probed 756 misconduct complaints between 2000 and 2009, unearthing wrongdoing in 196 cases. OPR recommended DOJ officials fire five prosecutors for misconduct during the last decade. Four of the prosecutors retired or resigned. One was terminated.

“You can find a few instances where mistakes have occurred and people have been disciplined,” Holder said at an unrelated news conference following a meeting with European officials. “But the people who represent the United States on behalf of the United States Department of Justice do so honorably and do so within the rules.”

Nonetheless, many federal judges complain privately – and sometimes publicly - that the DOJ’s internal ethics office is a black hole where embarrassing misconduct allegations against prosecutors are sent to be covered up, not punished. Last year, U.S. District Judge Emmet Sullivan cited mistrust of the OPR process in his decision to appoint his own investigator, Washington attorney Henry Schuelke III, to probe the prosecution errors that led to the dismissal of the public corruption case against then-Sen. Ted Stevens (R-Alaska).

Sullivan at the time said the prosecution errors were  ”too numerous to be left to an internal investigation that has no accountability.”

Earlier this year, OPR was again in the headlines when long-serving Associate Deputy Attorney General David Margolis, who oversees that office, downgraded its findings in an investigation of John Yoo and Jay Bybee, the George W. Bush administration DOJ lawyers who authored the legal memos that justified waterboarding and other harsh interrogation techniques against terrorism suspects. Margolis softened the OPR findings to rule that Yoo and Bybee had been guilty of “poor judgment” and not misconduct in authorizing techniques that Attorney General Eric Holder and others have called torture.

In the Stevens matter, a preliminary draft of an OPR report on the allegations that prosecutors withheld exculpatory evidence from the Stevens defense concluded Assistant U.S. Attorneys Joseph Bottini and James Goeke engaged in misconduct. But the draft report cleared several other lawyers — including lead prosecutor Brenda K. Morris and former Public Integrity Section chief William Welch — of misconduct allegations.

The DOJ has taken steps this year to bolster its prosecutors’ knowledge of Brady v. Maryland, the 1963 Supreme Court case that mandates prosecutors turn over exculpatory information to the defense.

DOJ lawyers now have regular Brady training, written office policies on Brady to review and discovery coordinators at their disposal. The DOJ is also creating a book for its prosecutors that will address discovery issues that may arise while handling a case.

Mary Jacoby contributed to this report.

The U.S. Attorney for Maryland on Thursday defended Justice Department efforts to ensure prosecutors divulge exculpatory evidence to defense lawyers, pushing back against concerns that the federal government doesn’t always adhere to its disclosure obligations.

U.S. Attorney Rod Rosenstein told defense lawyers at an American Bar Association town hall meeting that the DOJ has taken steps over the last year to bolster its prosecutors’ knowledge of Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to turn over exculpatory information to the defense. The DOJ came under fire last year after Brady issues led to the dismissal of the case against the late Sen. Ted Stevens (R-Alaska).

Rosenstein said the DOJ takes its lawyers’ discovery obligations seriously. He said prosecutors now have regular Brady training, discovery coordinators at their disposal and written office policies on Brady to review. The U.S. Attorney also said the DOJ is developing a book for its lawyers that will address discovery issues that may come up while working on a case.

“There is a change in the culture of the department,” Rosenstein said. “I think you’ll see this if you talk to the newer [Assistant U.S. Attorneys] about what they’re being taught about disclosure.”

Robert Cary, who represented Stevens, applauded DOJ efforts to address Brady concerns, but said the department needs to do more.

He said the DOJ still gives its lawyers broad discretion that may allow a prosecutor to disregard some of its guidance. Cary said there should be “an unambiguous rule” that would mandate the procurement of all exculpatory evidence.

“I think a rule that removes that ambiguity, that removes that ability to rationalize nondisclosure to the defense would go a long way towards restoring confidence and trust in the system,” said Cary, a partner at Williams & Connolly LLP in D.C.

Rosenstein said such a rule isn’t needed.

“I think it’s unnecessary because we already have Brady and when there are violations of Brady, the consequences can be pretty severe for prosecutors who violate it, and the proposed rule, which would fundamentally change the regime, does a lot more than solve the problem of the occasional violation,” Rosenstein said.

Cary also called on DOJ investigators to record their interviews with cooperating witnesses. The DOJ has been reviewing whether to change the FBI policy of not recording interviews.

Rosenstein said the amount of material produced by recorded interviews could be “overwhelming” and dramatically increase the amount of time necessary to prepare for a case.

“In the world that we live in, I think we do to some extent have to depend upon the good faith and the discretion of agents and prosecutors and train them to be attuned to the facts that matter and make a note in a record,” Rosenstein said.

The Supreme Court on Wednesday appeared to doubt the reason for a $14 million judgment awarded to a death row inmate who claimed that New Orleans prosecutors withheld exculpatory evidence in his murder case, The Associated Press reported.

Lawyers for John Thompson, who was convicted of a murder he did not commit, successfully argued in a U.S. district court that the state prosecutors assigned to his case were not adequately trained of their obligations under Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to turn over exculpatory information to the defense.

Justices questioned the amount of training that would be adequate under Brady. The court has not required prosecutors to undertake a certain amount of Brady instruction.

“I mean, is an hour a year enough? Is an hour a month enough?” Justice Elena Kagan asked, according to the AP.

The justices also discussed what would be covered in Brady training.

Chief Justice John Roberts said prosecutors need to know what they can and cannot say in closing arguments. Justice Anthony Kennedy said prosecutors should also learn about Miranda and search warrants.

Justice Ruth Bader Ginsburg said there is the potential for a lengthy training program if Brady instruction is mandated.

The concern is “that you don’t want to have to give the prosecutors a clinical law school course before you let them do their job,” Ginsburg said.

The Justice Department has already taken steps to beef up its prosecutors’ knowledge of Brady after government errors in the prosecution against the late Sen. Ted Stevens (R-Alaska). The case was thrown out last year after it was discovered that prosecutors improperly withheld evidence from Stevens’ defense lawyers.

The DOJ now requires Brady training for its prosecutors and has an official who oversees efforts to ensure compliance with the 1963 Supreme Court ruling.

A high-profile appeal of an Army First Lieutenant convicted last year of killing an unarmed detainee in Iraq could turn in part on whether military prosecutors withheld exculpatory evidence.

Michael Behenna’s case underscores how the government is being forced to explain, in the military courts as well as the civilian justice system, its compliance with Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to turn over exculpatory information to the defense.

Michael Behenna (in uniform, second from right in the rear) with his family. Left to right: his father, Scott; his brothers Brett and Curtis, and his mother, Vicki, in the front. (Photo by the Behenna family)

Behenna’s mother is a veteran federal prosecutor in the Western District of Oklahoma who has set up a website asking for donations to help defend her son, who has said he killed the detainee in self-defense.

On Wednesday, Vicki Behenna learned of a delay before the Army Criminal Court of Appeals, after appellate lawyers with the military asked for more time to file a brief. “To say the least I am sickened at how slow the ‘wheels of justice’ turn in the military ‘justice’ system,” Behenna wrote in an e-mail to Main Justice.

A major issue in the appeal is whether Michael Behenna was unfairly denied access to potentially exculpatory evidence from a blood splatter expert during his trial.

Just as civilian prosecutors must do, military prosecutors must turn over any evidence to the defense that could bolster a defendant’s case at trial. For military prosecutors, that means complying with Rule 701 for Courts Martial. The Behenna case shows how military prosecutors are not immune from Brady problems, which could also arise in the trials of detainees being held in Guantanamo Bay, Cuba, if they are tried in a military tribunal system.

Vicki Behenna has handled federal cases in Oklahoma City for 21 years. She was a member of the team that successfully prosecuted Timothy McVeigh for his role in the bombing Alfred P. Murrah Federal Building in 1995. Brady issues arose briefly in that case, after the belated discovery of documents in FBI files that were not turned over to defense. The discovery temporarily delayed McVeigh’s execution. McVeigh was put to death in 2001.

This week, the government received a second three-month extension for filing its brief on Michael Behenna’s appeal. Col. Norman Allen, chief of the military’s Government Appellate Division, said his office’s work on the case is carrying on under “normal operating procedures.” Jack Zimmermann, Michael Behenna’s lawyer from Zimmermann, Lavine, Zimmermann, & Sampson, had also sought more time.

Michael Behenna was sentenced to 25 years in prison in March 2009 for the murder of Iraqi detainee Ali Mansur Mohamed. Prosecutors said Behenna shot Mansur, who was naked and unarmed, twice during a May 2008 interrogation in the Iraqi desert. Behenna has testified that he believed the Iraqi had played a role in an attack on his platoon, in which two soldiers were killed and two were injured.

Zimmermann argued that the Army officer shot Mansur in self-defense. Behenna said during his military trial that Mansur had reached for Behenna’s weapon.

The potentially exculpatory evidence at issue surfaced hours after Behenna was convicted. Capt. Meghan Poirier, the lead military prosecutor in the case, sent Zimmermann an e-mail she received from a government witness who never took the stand. Herbert MacDonell, a bloodstain pattern analyst, wrote that he would have testified that Behenna’s version of events was plausible.

Michael Behenna (Defendmichael.wordpress.com)

“This, of course, would not have been helpful to the prosecution case,” MacDonell wrote in an e-mail to the military prosecutor. “However, I feel that it is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings. It certainly appears like Brady material to me.”

In forwarding MacDonell’s email to the defense counsel, Poirier commented: “I am not sure that I believe that Mr. MacDonell’s new opinion is exculpatory, but I wanted to send it to you in an abundance of caution.” Poirier declined to comment to Main Justice on potential Brady issues in the case.

Zimmermann, who regularly speaks about Brady at events across the country, immediately requested a mistrial after he received the e-mail.

Col. Theodore Dixon, the trial judge, wrote in a court filing that MacDonell’s claims were personal opinion “in the guise of an ‘expert opinion’ ” and weren’t exculpatory since the bloodstain pattern analyst revised his initial findings about the killing only after hearing Michael Behenna’s testimony. Dixon denied the defense’s request for a mistrial. Defendants in the military court system receive automatic appeals if they are sentenced for murder.

Recently, Brady issues have created serious problems in the civilian court system. Federal prosecutors came under fire last year after the public corruption case against former Sen. Ted Stevens (R-Alaska) was thrown out. Stevens was convicted, but Attorney General Eric Holder moved to dismiss the charges against Stevens in April 2009, after an internal Justice Department review revealed prosecutors had failed to give the defense material favorable to Stevens’ case.

Since then, the DOJ has launched a major initiative to address concerns about prosecutorial misconduct, including sloppy compliance with Brady requirements. Earlier this year, the DOJ named a new national coordinator for its criminal discovery programs.

Military prosecutors ultimately report to Secretary of Defense Robert Gates. Michelle Lindo McCluer, director of the National Institute of Military Justice, told Main Justice that trial participants in military courts – especially prosecutors – are drilled in their Brady obligations.

“It’s fairly rare to have Brady issues,” said Lindo McCluer, a former judge advocate in the Air Force.

Lindo McCluer and Zimmermann both expressed confidence in the ability of a military court to rule fairly on Michael Behenna’s appeal. Zimmermann noted that the Army has already reduced Michael Behenna’s prison sentence to 15 years without even hearing the soldier’s appeal.

“I believe, as a general rule, military appellate courts are more likely to protect the rights of an appellant than many civilian courts,” said Zimmermann, who has practiced law in the military justice system since 1975. “[Michael Behenna’s] case should receive more scrutiny by the military appellate courts.”

Zimmermann said he anticipates that the Army Court of Criminal Appeals will rule on Michael Behenna’s appeal this fall. For Vicki Behenna, the ruling will not come soon enough.

“We just want Michael to have a fair trial where all the evidence is heard,” she said.

A U.S. District Judge in Brooklyn, N.Y., scolded prosecutors from the Eastern District of New York on Thursday for withholding information from the defense in a case that led to the convictions of six former Wall Street traders and brokers, The Wall Street Journal reported Friday (subscription required).

John Gleeson (Gov)

U.S. District Judge John Gleeson told the senior prosecutors — including Assistant U.S. Attorney James McMahon — that he was “mystified” by the prosecutors’ failure to turn over potentially exculpatory evidence in the case, which dealt with alleged mishandling of brokerage-firm “squawk” boxes, according to the newspaper. So-called “squawk boxes” are used by brokerage firms to announce when customers place large orders. Prosecutors said the alleged scheme brought in as much as $1 million as the traders secretly listened in on large institutional orders and then traded before those orders could be completed.

Defense lawyers have requested that Gleeson dismiss the grand jury indictment or order a new trial. Under Brady v. Maryland, prosecutors are required to turn over any evidence that could help the defense or risk dismissal of the case.

The judge said he will assess the defense request, according to the newspaper, but Gleeson seemed doubtful about whether the withheld evidence would have changed the result of the trial.

McMahon said his prosecutors improperly “assumed that the first trial team had complied” with Brady. “It’s embarrassing,” he added.

A federal judge in Alaska this week rejected another motion for a new trial or dismissal of charges for a former state lawmaker convicted of corruption in a 2007 case that included errors by federal prosecutors.

Pete Kott (AKRepublicans.org)

U.S. District Court Judge John Sedwick denied a motion filed late last month by a lawyer for former Alaska House Speaker Pete Kott (R) to dismiss the charges against him or have a new trial for him since the lawyer received new documents pertaining to the case. Late last month, his lawyer received handwritten notes made during Justice Department and FBI meetings with the attorney who represented a key government witness who admitted bribing Kott.

Earlier last month, Kott’s lawyer filed another motion for dismissal statement filed last month, citing new DOJ guidelines that encourage prosecutors to list all witness interviews and keep their rough notes. Sedwick also rejected this motion.

U.S. District Court Judge John Sedwick wrote in a court order on Monday that Kott’s most recent motion and the handwritten notes “do not compel a different result” from the earlier rulings.

“Much of Kott’s briefing attacks the previous ruling, but in a manner not squarely based on the new documents,” the judge wrote.

Sheryl McCloud, a lawyer for Kott, told Main Justice she was disappointed with Sedwick’s ruling this week and said she will continue to appeal her client’s conviction.

“We really wanted to get to the bottom of the matter and figure out who stopped the flow of information about the moral, ethical, and perjury problems with their principal witness,” McCloud said.

Prosecutors in Alaska have admitted evidence was inappropriately withheld, but have said their actions didn’t cause any harm.

Kott previously asked Sedwick in November to toss his corruption conviction, arguing the same prosecutors withheld evidence in both his case and the unrelated prosecution of former Sen. Ted Stevens (R-Alaska). Stevens conviction was later thrown out by a federal judge in Washington, D.C., at the request of Attorney General Eric Holder.

Assistant U.S. Attorneys Joseph Bottini and James Goeke, as well as former Public Integrity Section lawyers Nicholas Marsh and Edward Sullivan prosecuted Kott. A court-appointed counsel and the department’s Office of Professional Responsibility are probing the prosecutors’ handling of evidence in the Stevens case.

The former state lawmaker was released from prison in June, after prosecutors said they did not hand over exculpatory evidence to the defense.

The story was first reported by The Anchorage Daily News.

This post has been updated from an earlier version.

As part of its initiative to address concerns about prosecutorial misconduct, the Justice Department today announced that an assistant chief in the Environment and Natural Resources Division will be its new national coordinator for its criminal discovery programs.

Andrew Goldsmith, First Assistant Chief of the ENRD’s Environmental Crimes Section, will direct the department’s efforts to educate prosecutors about their obligations to turn over potentially exculpatory or other information to defendants. His appointment comes a week after the department released new guidelines for federal prosecutors in applying discovery rules, part of an effort by the DOJ to head off judicial rules changes pushed by U.S. District Judge Emmet Sullivan that would restrict prosecutors’ discretion to decide what information in their possession is relevant to a defense team under Brady.

“Andrew brings a wealth of knowledge and experience in this field, and I am pleased he is taking on this crucial role,” Deputy Attorney General David Ogden said in a news release. “He will be instrumental in overseeing our efforts to ensure all of our prosecutors and law enforcement agents have the necessary training and tools to achieve fair and just results in the nation’s courts.”

Goldsmith’s job description includes, according to the news release:

• Creating an online directory of resources on discovery issues available to all prosecutors at their desktop

• Producing a handbook on discovery and case management similar to the Grand Jury Manual so that prosecutors will have an accessible and comprehensive resource on discovery obligations

• Implementing a training curriculum and a mandatory training program for paralegals and law enforcement agents

• Revitalizing the Computer Forensics Working Group to ensure the proper cataloguing of electronically stored information recovered as part of federal investigations

• Creating a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.

Justice Department Inspector General Glenn Fine said in a report to Congress last year that restoring confidence in the department is a major challenge after the high-profile public corruption case against former Sen. Ted Stevens (R-Alaska) case was thrown out because of prosecutor mistakes.

Attorney General Eric Holder moved to dismiss the charges against Stevens in April, after an internal DOJ review revealed prosecutors had failed to give the defense material favorable to Stevens’ defense. A court-appointed counsel is investigating whether they did so intentionally. Fine said in the report that the Stevens fiasco “created concern about the prosecutors’ adherence to professional standards of conduct.”

On Dec. 31, U.S. District Judge Ricardo Urbina rebuked prosecutors in the District of Columbia for their handling of a manslaughter case against five former Blackwater Worldwide guards accused in a shooting incident in Iraq that left 17 people dead.

In ordering dismissal of the indictment, Urbina said prosecutors had violated the defendants’ constitutional rights by making use of compelled statements the guards had given about the incident under threat of losing their jobs.

A former Alaska lawmaker is citing new Justice Department guidance for prosecutors on discovery procedures in his effort to have his 2007 conviction on public corruption charges repealed, The Associated Press reported today.

Pete Kott (AKRepublicans.org)

In a motion for dismissal statement filed this week, a lawyer for former Alaska House Speaker Pete Kott cited new DOJ guidelines that encourage prosecutors to list all witness interviews and keep their rough notes. The lawyer, Sheryl Gordon McCloud, said the Alaska U.S. Attorney’s Office has yet to hand over items from a 2006 interview with ex-VECO Corp. chief Bill Allen, the AP said.

Allen was a key witness against Kott as well as ex-Sen. Ted Stevens (R-Alaska), whose conviction on public corruption charges was overturned last year after the Justice Department said it had mishandled potentially exculpatory evidence.

“[T]hat memo is based on existing law, and sets forth materials that government attorneys must seek out, review, and disclose,” McCloud wrote in the court filing. “It includes not just material from the U.S. Attorney’s files but from all those associated with the prosecution team, and it includes not just information memorialized in written statements but also evidence favorable to the accused that is transmitted in a ‘conversation.’ ”

Prosecutors in Alaska have admitted evidence was inappropriately withheld, but have said their actions didn’t cause any harm.

Kott previously asked Judge John Sedwick in November to toss his corruption conviction, arguing the same prosecutors withheld evidence in both his case and the Stevens trial.

Kott was prosecuted by Assistant U.S. Attorneys Joseph Bottini and James Goeke, as well as former Public Integrity Section lawyers Nicholas Marsh and Edward Sullivan. A court-appointed counsel and the department’s Office of Professional Responsibility are probing the prosecutors’ handling of evidence in the Stevens case, which was thrown at the request of Attorney General Eric Holder.

The judge has several options. He could let the Kott conviction stand, dismiss it and order a new trial, or dismiss it with prejudice. He has not said when he will rule.

Kott was released from prison in June, after prosecutors said they did not hand over exculpatory evidence to the defense.

Justice Department lawyers last week chose not to withdraw corruption charges against two former Alaska lawmakers who argue that their convictions were the result of Brady violations, The Associated Press reported.

Prosecutors and attorneys for ex-state representatives Pete Kott and Victor Kohring couldn’t reach an agreement on how to move forward on the cases, according to court documents here and here. Now, it’s up to U.S. District Judge John Sedwick to decide in the next year whether they should get new trials.

DOJ lawyers told the court in June that they had discovered documents that should have been disclosed to defense counsel prior to trial. The former lawmakers are not serving prison time as they wait for the judge to rule in their cases.

Former DOJ Public Integrity Section prosecutors Nicholas Marsh and Edward Sullivan and Alaska-based assistant U.S. attorneys Joseph Bottini and James Goeke prosecuted the cases. The four lawyers, along with Public Integrity Section chief William Welch II and his Principal Deputy Chief Brenda Morris, are under criminal investigation for their roles in the bungled prosecution of former Alaska Sen. Ted Stevens.

Marsh and Sullivan were moved out of the Public Integrity Section to the Office of International Affairs earlier this summer. The other four prosecutors remain in their posts.

It would have been hard to add more drama to the April 7 hearing in the Ted Stevens case, which began with a humiliating admission from the government of prosecution errors and ended with dismissal of all charges against the former senator from Alaska.

But Judge Emmet Sullivan managed to pull one last rabbit out of the hat. As the hearing ended, he announced a criminal contempt investigation of the Stevens prosecutors. And a lawyer named Henry F. Schuelke III would lead it, Sullivan said.

Henry F. Schuelke III (photo by Susana Raab)

Well-known and broadly admired among Washington’s fraternity of top-tier lawyers, “Hank,” as Schuelke prefers to be called, has cultivated a reputation for discretion. It’s a trait that has served the white collar criminal defense and investigations lawyer well over the years, in matters involving U.S. senators, judges, law firms, and lawyers.

In making the Schuelke appointment, Sullivan essentially signaled an end to the phase of public flagellation of the Stevens prosecutors. Schuelke would take on the delicate task of figuring out how the case went so wrong – and whether anyone had intentionally misled the defense.

Schuelke is the ultimate behind-the-scenes Washington counselor, and much of his work stops where the public record begins. In the course of a 41-year career, he has represented scores of high-profile clients, from President Jimmy Carter’s budget director, Bert Lance, to former Enron Corp. Treasurer Ben Glisan Jr.

After the April 7 hearing, Sullivan told me he received “countless calls, emails and comments” from D.C. judges and lawyers. They used words like “outstanding,” “perfect choice,” and “a home run,” to describe Schuelke’s appointment.

The federal judiciary is paying Schuelke $200 an hour to investigate the Stevens prosecutors, a fraction of the rate he would charge a private client. (His friends put him in the $750 to $1,000 range.) The lawyers representing the six prosecutors under investigation are also receiving $200 an hour. The Justice Department is footing their fees as well.

So for the lawyers involved, the case obviously isn’t about money. But it gives them something more valuable: the ability to tell clients they were in the thick of a sensitive investigation that could have consequences far beyond the Stevens case.

Broader Review Possible

A criminal prosecution would likely gut the DOJ’s Public Integrity Section of its top officials and add fuel to a broader review of PIN’s recent work.

William Welch II, the section’s chief, and his deputy, Brenda Morris, are both subjects of Sullivan’s criminal contempt investigation. They remain in supervisory roles, according to the Justice Department.

PIN chief Bill Welch (© 2009 The Republican Company)

But two other prosecutors on the Stevens team, Nicholas Marsh and Edward Sullivan, were recently transferred out of the section to the Office of International Affairs, a department redoubt that offers scant opportunity for court appearances. Alaska-based Assistant U.S. Attorneys Joseph Bottini and James Goeke, who are also under investigation, have continued in their current positions.

The Justice Department’s Office of Professional Responsiblity is conducting a parallel investigation, and the Criminal Divison is reviewing other Alaska-related corruption prosecutions, after Justice lawyers exhumed additional documents that were withheld from two convicted Alaska state representatives.

People familiar with the criminal contempt investigation say Schuelke is moving at a steady pace, culling thousands of documents from the Justice Department, though he’s had little contact with the prosecutors’  lawyers — an enviable clutch that includes Hogan & Hartson’s Chuck Rosenberg, the former U.S. attorney for the Eastern District of Virginia; O’Melveny & Myers partner Ken Wainstein, a former U.S. attorney for the District of Columbia; and Patton Boggs partner Robert Luskin, former special counsel to DOJ’s Organized Crime and Racketeering Section.

Schuelke’s progress is difficult to track. His friends and colleagues told me he never discusses cases with them, unless they’re involved, and he rarely talks to reporters on the record. (He declined to be interviewed for this story.) His law partner of 30 years, N. Richard Janis, recalled his time working with Schuelke as counsel to the Senate ethics committee. Beginning in the late 1980s, the two lawyers spent 20 months investigating influence-peddling accusations against then-New York Sen. Alfonso D’Amato (R).

“There was never a leak of anything we did. We handled it in a very quiet and discreet manner,” Janis said. “If I were to draw a parallel, Hank’s view of his current assignment is very much the same.”

Throughout his career, Schuelke has seasoned his private practice with work for various bodies that police professional standards and ethics: the Senate ethics committee, the Judicial Tenure and Disabilities Commission, the Committee on Grievances for U.S. District Court for the District of Columbia.

Morgan Lewis & Bockius partner Biz Van Gelder, who has known Schuelke for 20 years, called his ethics work “the functional equivalent of his pro bono.” She said, “He’s very well-versed in matters of professional responsibility and very well-versed in Brady and Giglio. He’s been doing this stuff for years” — all of it behind closed doors.

Van Gelder went on, “There are trial attorneys and there are counselors, and I think he’s always had more of an  interest in being a counselor.”

Colorful Hobbies

His discretion in his professional life contrasts starkly with the flamboyant playthings of his personal life. He owns five motorcycles (two Harley-Davidsons, one of which his wife rides; a 1970 Norton Commando; a 1977 BMW R100s; and a Ducati Sport 1000). He drives a 1998 Porche 911 to his Dupont Circle office. And he keeps a 40-foot Bertram Sportfisherman and a Boston-Whaler Runabout at his home on the Chesapeake Bay.

The collection is at least a partial measure of his success, and the success of his seven-lawyer firm, Janis, Schuelke & Wechsler. The firm’s Web site is proudly unglamorous, a relic of 1990s-era design. There are no numbers for any media-relations specialists, no interactive graphics, no photos of the lawyers. The offices are located in an historic, brownstone row house on a leafy stretch of Massachusetts Avenue. The quaintness belies a steady flow of high-profile clients and ironclad relationships with larger firms around the city.

When I asked Janis to talk about some of the Schuelke’s triumphs, he paused. “One of the problems is that some of our best achievements nobody knows about.”

We All Respect Mr. Schuelke

Boards of directors, law firms and lawyers have relied on Schuelke and his colleagues. When the Jack Abramoff scandal exploded in 2004, Greenberg Traurig, the disgraced lobbyist’s firm, hired Schuelke to conduct the internal investigation.  The work was highlighted recently in the case of one of Abramoff’s former associates, Kevin Ring, who is accused of lavishing lawmakers with free gifts, trips and meals, in return for helping his clients. The Public Integrity Section is handling the case, and Schuelke is a government witness. Welch, who has supervised the section since 2006, partially recused himself from the case after Ring’s defense lawyers raised questions about a potential conflict.

The incident underscored the close-knit nature of Washington’s legal community. Ring’s lawyer, Miller & Chevalier partner Richard Hibey, is one of Schuelke’s close friends.

“We’re proceeding on good faith on this, I hope you understand, especially given the relationships outside the courtroom you and I both enjoy,” Hibey told U.S. District Judge Ellen Huvelle, at an April 20 hearing in Washington.

“Right,” Huvelle said. “We all respect Mr. Schuelke.”

Grand Christmas Parties

Schuelke’s firm is known for its grand Christmas parties. For a few hours each year, the row house is thronged with the District’s top lawyers, judges and prosecutors. (“Everybody goes. It’s like peace on earth and goodwill to all men,” Van Gelder said.) This is not an idle fact, but a reflection of the firm’s business model: Schuelke and his partners are fed much of their work from other lawyers.

Law offices of Janis, Schuelke & Wechsler (courtesy of the firm)

Skadden, Arps, Slate, Meagher & Flom partner Robert Bennett said he regularly refers clients to Schuelke. The two have known each other for more than 20 years, and it was Bennett who recommended Schuelke for the special counsel position on the Commission for Judicial Disabilities and Tenure. (Bennett held the job before Shuelke.)

“When I have a need, I certainly recommend him,” Bennett said.

Crowell & Moring partner Rick Beizer, who has known Schuelke for nearly 40 years, said he often looked to Schuelke when he was representing a corporate client and needed counsel for a high-level executive.

“My first choice was always Hank. Sooner or later, he demonstrated his talents to my partners who work on these types of cases, and he became their go-to guy,” Beizer said.

Sparring with Edward Bennett Williams

Schuelke grew up in Maplewood, N.J., the second-oldest among three sisters. His father, Henry Schuelke Jr., was an underwriter for Metropolitan Life Insurance in New York. His mother, Eleanor Carton Schuelke, was a dietician, and later taught home economics and family living at a high school in West Orange, N.J. Shuelke’s older sister, Margie Schuelke, who still lives in Maplewood, said her brother was an easy-going  kid — the kind who made friends easily, brought home stray dogs and generally stayed out of trouble.

His sister described Schuelke as a devoted husband and father of two who dotes on his four grandchildren, one of whom was born earlier this month. He’s a hard worker, Margie Schuelke said, “but he knows how to enjoy himself, and he enjoys nothing more than his family.”

Schuelke attended St. Peter’s College in Jersey City, where he majored in English and was editor of the yearbook. He was a strong student, and the family was proud, but not surprised, when he was accepted into Villanova University School of Law.

After he graduated in 1967, Schuelke joined the Army’s Judge Advocate General’s Corps. He spent nearly four years as a JAG officer, including three as a military judge, before joining the U.S. attorney’s office in 1972. Beizer, who is also a former assistant U.S. attorney, said Schuelke established himself early on as one of the office’s top prosecutors.

“He got it right away. He has an uncanny sense for getting to the heart of any matter,” Beizer said. “I’m one of those guys who has to read every document and mull it around six ways to Sunday. I’m not sure how the hell he does it, but if he could patent it, I’d buy it.”

Schuelke was eventually elevated to executive assistant U.S. attorney, the third-in-command, in the late 1970s. From that perch, he was involved in every major case the office handled.

In 1978, Schuelke and Beizer famously squared off against Edward Bennett Williams, the founder of Williams & Connolly, and two of his proteges, Gregory Craig (now President Obama’s White House Counsel) and David Kendall (President Bill Clinton’s personal lawyer during impeachment). Williams and his colleagues were defending developer Dominic Antonelli Jr., the chairman of Parking Management Inc. (PMI), against charges that he bribed a D.C. public official in exchange for building leases.

The young prosecutors won at trial in Washington, but the verdict was ultimately thrown out on the grounds of juror bias. The case was re-tried in Philadelphia, and Williams won. Schuelke’s family drove down from North Jersey to watch the show. They were impressed with Schuelke’s pluck, as was Williams, an icon then as now.

The scene after the verdict is recounted in Evan Thomas‘ biography of Williams, The Man to See. When congratulated after the trial, Williams gave a desultory answer. “Victory?” he said. “All we did was split a double-header.”

That was the last case Schuelke tried as a federal prosecutor before founding his firm, in 1979, with Janis and Lawrence Wechsler, another veteran of the District’s U.S. attorney’s office. Schuelke’s first client as a private lawyer was Carter’s budget director, Lance, who was accused of misusing bank funds. Lance was acquitted of most of the counts and the jury deadlocked on the balance. The Justice Department elected to drop the case.

He has since represented several other high-profile clients, including White House Secretary Carolyn Huber, who found Hillary Clinton’s Rose Law firm billing records during the Whitewater investigation; Tyson Foods lobbyist Jack Williams; and former Time reporter Viveca Novak, in connection with the CIA leak case.

And then there are the ones we’ll never know about.

Sullivan’s Deliberations

Now, Schuelke is again at the invisible center of another high-profile probe.

Hank Schuelke in his Dupont Circle law offices. (photo by Susana Raab for Main Justice)

During the six-day gap between the Justice Department’s April 1 motion to dismiss the Stevens case and the April 7 hearing at which Sullivan granted it, the judge made two decisions. The first was hard. The second was easy.

Sullivan, of the U.S. District Court for the District of Columbia, pored over the record, and after “much consideration,” resolved to appoint an outside counsel to investigate the six prosecutors for criminal contempt, according to an e-mail from his chambers in response to a list of questions. The government’s numerous failures to turn over potentially exculpatory documents to Stevens’ lawyers had driven the case off a cliff. But the wreckage deserved further inspection, the judge determined.

After the hard decision was made, Sullivan moved on to the easy choice: Hiring Schuelke to lead the probe.

Sullivan knew Schuelke from their days serving together on the D.C. Commission on Judicial Disabilities and Tenure. The judge was a member of the commission from 1996 to 2001. Since 1982, Schuelke has been the commission’s special counsel, a low-profile but powerful position, the duties of which include investigating hundreds of  allegations of judicial misconduct each year and gauging judges’ fitness to serve on the local bench. (Attorney General Eric Holder was also a member of the commission while a partner at Covington & Burling.)

Sullivan said he was swayed by Schuelke’s ability to handle sensitive matters with “great skill, intelligence, discretion, honesty, and fairness.” The judge also sought someone with prosecutorial experience — Schuelke’s seven years as an assistant U.S. attorney in the District fit the bill. Sullivan also cited Schuelke’s service as a military judge and as special counsel to the Senate Select Committee on Ethics.

Sullivan told me in an interview in his courtroom last month that he has received calls from judges around the country, bemoaning the government’s discovery practices and supporting his efforts to reform them. Some, such as Chief Judge Mark Wolf of the U.S. District Court for the District of Massachusetts, have joined Sullivan in publicly scolding the department for violating discovery obligations.

Sullivan has petitioned the federal judiciary’s policy-making body to stiffen rules governing discovery practices. Failing that, he said he would push his court to adopt local rules, and as a last resort, he said he is considering issuing standing orders in each of his cases to ensure timely production.

Holder, Sullivan added, deserves much praise for dropping the Stevens case and requiring additional evidence training for Justice Department lawyers.

No doubt Hank Schuelke will have some advice to offer at some point – but he’ll do it with total discretion, of course.