Kenneth L. Wainstein (O'Melveny & Myers LLP)

Hiring Kenneth Wainstein appears to be the best decision made by Washington Wizards guard Gilbert Arenas.

On Friday, Superior Court Judge Robert Morin sentenced Arenas to 30 days in a halfway house and two years of probation, a lighter sentence than the plea agreement negotiated with the U.S. Attorney’s office in the District of Columbia.

Arenas was charged with carrying a pistol without a license stemming from a well-publicized Dec. 21, 2009, incident in which he brought weapons into the locker room of the professional basketball team.

In January, the Wizards star struck a deal with the U.S. Attorney’s office that Wainstein once headed. Wainstein spent 19 years at the Justice Department in a number of key roles, including U.S. Attorney for the District of Columbia from 2004 to 2006. Wainstein is now a partner at O’Melveny & Myers LLP.

Under the plea agreement, Arenas pleaded guilty to the charge, which carries a maximum sentence of five years in prison. The plea deal called for a jail sentence of six to 24 months, with probation, a split sentence or incarceration possible, although the government has agreed to seek a sentence at the low end of that range.

“I’d like to say, I’m really sorry this happened, and I wake up every day wishing it didn’t,” Arenas told the court, according to The Washington City Paper.

UPDATE: Wainstein released the following statement:

“We are very gratified with the outcome of today’s sentencing proceeding. Judge Morin’s decision was fair and measured; it reflected a deep understanding of the relevant facts and equities; and it carefully took into account both the facts relating to Mr. Arenas’ offense and the evidence of Mr. Arenas’ good character.  The result was a sentence that serves justice very well.

Mr. Arenas is grateful to the Court, and looks forward to serving the community and once again being a force for good in the District of Columbia.”

This article has been corrected.

Attorneys for Blackwater Worldwide security guards accused in a fatal 2007 shooting incident in Iraq asserted last year that prosecutors had belatedly turned over an exculpatory e-mail to the defense, according to previously sealed courtroom transcripts.

The e-mail, which defense attorneys called “a smoking gun,” was revealed Tuesday when transcripts of the closed Oct. 26 hearing were released in response to a Freedom of Information Act request by the Associated Press and The Washington Post.

Blackwater prosecutors Kenneth Kohl (left) and Jonathan Malis met in Baghdad in December 2008 with families of victims of the shooting. (Getty Images)

But Justice Department lawyers took issue with the “smoking gun” characterization, the transcript shows. They added that a member of the prosecution team had flagged the e-mail after noticing it hadn’t been included in material previously identified for release to defense counsel.

In the hearing in before U.S. District Judge Ricardo Urbina in Washington, D.C., David Schertler, the attorney for defendant Dustin Laurent Heard, raised the issue of the e-mail.

According to Schertler, Assistant U.S. Attorney Jonathan Malis asserted in the e-mail that even though the government’s evidence against defendant Nicholas Slatten was tainted, prosecutors should use it anyway.

“In this email Mr. Malis is essentially saying, look, I’m going to make the decision that we’re going to violate this defendant’s Fifth Amendment rights, we’re going to introduce the tainted information to the second grand jury and in his words, quote, unquote, it is a calculated risk,” Schertler said, according to the transcript.

Justice Department spokesman Dean Boyd disputed this account in a statement issued Thursday. “Far from failing to disclose the e-mail, Mr. Malis conscientiously caused the e-mail to be produced in discovery,” Boyd said.

The hearing last October was held to determine whether prosecutors had violated the defendants’ constitutional rights by relying on tainted, compelled testimony, in violation of the Supreme Court’s 1972 Kastigar decision. The guards had given statements to the State Department under a grant of immunity immediately after the Sept. 16, 2007 shooting in Baghdad’s Nisur Square, a major thoroughfare. The shooting left 17 Iraqis dead.

Urbina ultimately ruled that prosecutors improperly relied on tainted evidence. He dismissed the case on Dec. 31 in a strongly worded ruling that rebuked the prosecutors, but stopped short of a formal misconduct finding. The dismissal sparked outrage in Iraq, and the Justice Department has said it will appeal.

In the hearing last year, Schertler expressed frustration that defense counsel had received the e-mail evidence on a Saturday evening and questioned whether there was more evidence yet to come.

“[The email's] been around for almost a year,” he said. “[I]t’s something that we think should have been produced, and it causes us to be concerned about … the integrity of the process that they have to rely upon to get information that’s critical to the issues in this case.”

Justice Department trial attorneys Joseph Kaster and Michael Dittoe of the National Security Division represented the government in the hearing. In the transcripts, Kaster and Dittoe highlighted the difficulty of sorting through a large number of e-mails, some of them over two years old. They also said that Malis proactively brought the e-mail to their attention.

“What we have been doing to specifically address Mr. Schertler’s concern with respect to our witnesses, we have had them going back through their e-mails and doing a physical looking again at the e-mail,” Dittoe said at the hearing. “[T]his one did not appear in the binder of materials that I was personally reviewing, and Mr. Malis pointed that out to me and said, ‘Mr. Dittoes, here’s an e-mail I think is very relevant,’ and then we disclosed it.”

The DOJ lawyers also disagreed with the defense’s characterization of the e-mail as a “smoking gun” proving the government knowingly violated the defendants’ constitutional rights. “It does nothing of the sort,” Kaster said. Instead, the prosecutor was referring to the “risk” of using witnesses who would be required to testify only about what they personally observed, not what they had read, Kaster said in the transcript.

Kaster’s reference appears to have been to witnesses who had been exposed to the off-limits immunized statements from the guards through leaks to the media. Department spokesman Boyd declined to comment about the context of the disputed e-mail, which hasn’t been released publicly.

The unsealed transcripts also provide details about the contentious relationships between the government prosecutors and a so-called “taint” lawyer put in place to determine what evidence could be used in the case.

The central characters were Assistant U.S. Attorney Kenneth Kohl, the case’s lead prosecutor, and Raymond Hulser, a deputy chief in the Public Integrity Section of the Criminal Division who had been tapped to filter out potentially tainted evidence.

The transcripts paint a picture of a prosecution team that disagreed with the advice provided by the taint team lawyer and bypassed protocols he put in place to keep tainted evidence out of their hands. Kohl obtained search warrants without Hulser’s consent and openly complained about Hulser’s role in the case to his superiors.

Initially, Hulser’s advice was passed to Kohl through Counterterrorism Section Chief Mike Mullaney, who acted as a liaison between the taint attorney and prosecution team.  ”It seems to me, looking at the e-mails, that they didn’t actually get the exact advice I had given them,” Hulser testified at one point. Later, in April 2008, Kohl and Hulser began communicating directly about the case, the testimony showed.

When the Justice Department inherited the Blackwater case from the State Department, it was under enormous public pressure to take action. But DOJ lawyers quickly realized that the immunized testimony of the five former Blackwater Security guards charged in the shooting presented enormous hurdles to prosecution.

Specifically, the defendants gave compelled statements to the State Department under a grant of immunity immediately after the 2007 shooting incident.

The Blackwater guards, who were contracted to provide security for U.S. government employees in Iraq, claimed they had fired in self defense after an attack by insurgents. But the government said the guards fired without provocation.

The defendants were Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten. North Carolina-based Blackwater Worldwide has since changed its name to Xe Services LLC.

Hulser, who had worked in the Public Integrity Section since joining the department in 1990, had extensive experience dealing with compelled testimony of government employees and public officials. In October 2007 he was assigned to head a DOJ “taint team” set up to prevent impermissible evidence from being used.

While Hulser’s advice wasn’t legally binding, he had the weight of the Criminal Division behind him. According to his testimony, Hulser was brought in by Benton Campbell, who was acting chief of staff for Assistant Attorney General for the Criminal Division Alice Fisher. (Campbell later was named interim U.S. Attorney for the Eastern District of New York). Hulser said he also was approached by Sigal Mandelker, a Deputy Assistant Attorney General in the Criminal Division.

Ultimately the case was transferred to the National Security Division because members of the Criminal Division had been exposed to potentially compelled testimony. Hulser’s points of contact in the National Security Division were then-Assistant Attorney General Ken Wainstein and Counterterrorism Section Chief Mullaney, who was head of the case’s investigation team and would come to serve as middle-man between Hulser and Kohl.

Almost from the start, Hulser’s advice was either ignored or contravened, according to Hulser’s testimony in the transcripts.

Hulser said that shortly after he was brought on to the “taint team” he created a series of protocols for how the FBI and Department of State agents involved with the case should proceed. Both the FBI and State Department agents never received the protocols.

Hulser also instructed the prosecution team to prevent FBI agents from obtaining copies of notes about the guards’ immunized Sept. 16, 2007 statements. Despite his warnings, the agents obtained them.

In April 2008, Hulser said he discovered that Kohl had obtained copies of the notes from the compelled interviews. Hulser said he had explicitly sent instructions, through Mullaney, to avoid obtaining that material.

“What I recall happened was, in April I found through this exchange… that Mr. Kohl had already gotten access to some notes of one of the agents who did interviews on September 16,” Hulser testified on Oct. 23, 2009. “It came as a surprise to me that they had those. And he expressed the view in e-mails that he thought I had already approved that. I had not.”

As Hulser continued to guide the prosecution, Kohl became frustrated, the transcripts show. On April 14, 2008, Kohl sent out an e-mail to discuss “Ray Hulser’s role in the investigation.” In the e-mail, which was not sent to Hulser, Kohl expresses his displeasure that Hulser has “injected himself into our pending document request at state.”

But Kohl wasn’t the only one who questioned Hulser’s advice. In his testimony, Mullaney said that Hulser’s view of the evidence was untested.

“I thought his advice was very conservative,” said Mullaney. “I mean, I hadn’t tested it yet, frankly. I thought there was going to come a point probably where we were going to have to sit down and discuss what was really protected … what wasn’t, whether it all was or not, whether his position was correct or whether the trial team’s developing position was correct.”

On April 18, 2008, Kohl, Hulser, and Mullaney gathered to discuss the case. During the meeting, Hulser and Kohl’s different views on whether or not to use the compelled evidence became apparent.

“My view was that the risk was such that they shouldn’t take it,” Hulser said in his testimony. “His view was that they had a good chance of arguing the other way.”

Read copies of the transcripts here, here, here and here.

CORRECTION: The initial version of this story failed to seek comment from the Department of Justice. It also did not reflect the department lawyers’ arguments before the court. And it inaccurately said that taint team attorney Ray Hulser testified that prosecutor Ken Kohl “went behind Hulser’s back” to obtain tainted evidence.

While Kohl did obtain evidence that Hulser had advised should not be available to the prosecution, the story also should have noted that Hulser testified he believed miscommunication — not deliberate misconduct — had occurred.

The story also inaccurately said Kohl “failed to distribute Hulser’s evidentiary protocols to FBI agents investigating the case.” In fact, the protocols were distributed to Michael Mullaney, chief of the Counterterrorism Section of the National Security Division, who testified that he passed the protocols to the FBI. Kohl did not receive the protocols.

Main Justice regrets the omissions and errors.

Kenneth L. Wainstein (O'Melveny & Myers LLP)

Washington Wizards guard Gilbert Arenas has made some pretty poor decisions in the past month, but selecting Ken Wainstein as his attorney is not one of them, according to Marisa M. Kashino at Washingtonian magazine.

Among the list of items that “Arenas isn’t scoring many points for good judgment” for are bringing handguns into the Wizards locker room and inappropriate Tweets, according to Kashino. Despite these less-than-stellar decisions, hiring Wainstein might help keep Arenas out of future trouble and help him avoid jail time. Wainstein spent 19 years at the Justice Department in a number of key roles, including U.S. Attorney for the District of Columbia from 2004-2006.

Although the U.S. Attorney’s office in the District of Columbia charged Arenas with with one count of carrying a pistol without a license, the Wizards star struck a deal with the office that Wainstein once headed. Under the plea agreement, Arenas pleaded guilty to the charge, which carries a maximum sentence of five years imprisonment. However, the plea deal calls for a jail sentence of six to 24 months, with probation, a split sentence or incarceration possible, although the government has agreed to seek a sentence at the low end of that range. Sentencing is set for March 26.

Kashino praises Arenas’ decision to hire Wainstein, as he “certainly knows his way around the U.S. Attorney’s office.” In addition, Wainstein, who is now a partner at O’Melveny & Myers LLP, “has been building a practice as a leader in the emerging subject of national-security law,” according to Kashino.

While Wainstein has never represented an athlete before, according to Kashino, he appears to be handling his first athlete-client well.

Gilbert Arenas gestures in the huddle with teammates before the game against the Philadelphia 76ers on Jan. 5 at the Wachovia Center in Philadelphia (Photo by Jesse D. Garrabrant/NBAE via Getty Images)

Last week we asked the question, ” Can Ken Wainstein keep Gilbert Arenas under control?” Today, the answer appears to be, “Yes.”

The Washington Wizards guard has reached a plea agreement with the U.S. Attorney’s office in the District of Columbia, which Wainstein once headed, The Washington Post reports.

The agreement will keep Arenas out of jail following a well publicized incident in which he brought weapons into the locker room of the professional basketball team. Arenas was charged with one county of carrying a gun without a license.

Wainstein is a partner at O’Melveny & Myers LLP and a former head of the National Security Division at DOJ.

After taking on Arenas as a client a couple of weeks ago, Wainstein had to conduct damage control, after a photo appeared of the guard pretending to shoot at his team mates with his fingers, and other incidetns.

Arenas this afternoon will plead guilty before D.C. Superior Court Judge Robert E. Morin, who will decide on Arenas’s sentence, The Post reports.

The NBA has suspended Arenas indefinitely without pay until its own investigation is complete. He has four years left on his six-year, $111 million contract with the Wizards, according to The Post.

UPDATE: Arenas had pleaded guilty to a felony charge of carrying a pistol without a license. Although the charge carries a maximum sentence of five years imprisonment, the plea deal calls for a jail sentence of six to 24 months, with probation, a split sentence or incarceration permissible, according to a news release from the U.S. Attorney’s office.

Arenas will be sentenced March 6 at 2:30 p.m., according to the release.

Kenneth L. Wainstein (O'Melveny & Myers LLP)

Former Justice Department heavyweight Kenneth L. Wainstein, a partner at O’Melveny & Myers LLP, is representing Washington Wizards guard Gilbert Arenas as the basketball star struggles to explain to prosecutors and the public why he brought four unloaded guns into the team’s locker room at the Verizon Center — then continued to joke about it.

Wainstein, a former U.S. Attorney for the District of Columbia and ex-head of the National Security Division at DOJ, told the Blog of Legal Times that Arenas hired him within the past week or two. Arenas had left the weapons for teammate Javaris Crittenton as a challenge after Crittenton had threatened to shoot Arenas in his previously wounded knee, prompting Crittenton to load a bullet into the chamber of his own gun, according to news reports.

But since then, Arenas was photographed pretending to shoot at his teammates with his fingers and sending out a flippant Twitter post. (Arenas’s Twitter account is no longer available online).

“At some point, a lawyer needs to ask himself whether he is the right person to handle a client’s case if the client isn’t listening to the advice he is giving him,” an unidentified former D.C. prosecutor told the Blog of Legal Times.

Gilbert Arenas gestures in the huddle with teammates before the game against the Philadelphia 76ers on Jan. 5 at the Wachovia Center in Philadelphia (Photo by Jesse D. Garrabrant/NBAE via Getty Images)

“In any relationship you have to have mutual respect if it’s going to work, and we’ve had that from the beginning,” Wainstein said in an interview with the BLT of Arenas. “We have a strong mutual understanding about how to move forward.”

The NBA on Wednesday suspended Arenas indefinitely without pay until its investigation is complete. The U.S. Attorney’s office is also investigating the matter. The weapons were a violation of NBA rules and D.C. ordinances.

Wainstein was an Assistant U.S. Attorney from 1989 to 2001, in both the Southern District of New York and the District of Columbia. In 2001, he was appointed director of the Executive Office for U.S. Attorneys.

The following year he joined the Federal Bureau of Investigation as general counsel to FBI Director Robert S. Mueller, whom he later served as  chief of staff. In 2004 he became the U.S. Attorney for the District of Columbia and in 2006 was confirmed by the Senate to head the newly created National Security Division at DOJ.

Arenas on Monday met with D.C. authorities regarding the incident and released the following statement:

“I appreciated the opportunity to meet with law enforcement officials today. As the person who caused this trouble in the first place, I thought it was my duty to be the first witness to come forward and meet with the prosecutors and detectives. I told my attorney I wanted to get in for an interview as soon as we could arrange it, and that was today.

I told the detectives and prosecutors the whole story about my storing the unloaded guns at the Verizon Center and what I was intending to do when I took them out of my locker on December 21st.

As I have said before, I had kept the four unloaded handguns in my house in Virginia, but then moved them over to my locker at the Verizon Center to keep them away from my young kids. I brought them without any ammunition into the District of Columbia, mistakenly believing that the recent change in the DC gun laws allowed a person to store unloaded guns in the District.

On Monday, December 21st, I took the unloaded guns out in a misguided effort to play a joke on a teammate. Contrary to some press accounts, I never threatened or assaulted anyone with the guns and never pointed them at anyone.

Joke or not, I now recognize that what I did was a mistake and was wrong. I should not have brought the guns to DC in the first place, and I now realize that there’s no such thing as joking around when it comes to guns — even if unloaded.

I am very sorry for the effect that my serious lapse in judgment has had on my team, my teammates, the National Basketball Association and its fans. I want to apologize to everybody for letting them down with my conduct, and I promise to do better in the future.

I also want to thank the detectives and prosecutors on the case for the professionalism and courtesy they showed me during the interview today. I stand ready to continue to give my full cooperation to them and to the League as they investigate this incident.”

Wainstein also released a statement following the meeting.

“This afternoon, Gilbert Arenas voluntarily met with federal prosecutors at the United States Attorney’s Office for the District of Columbia and detectives of the Metropolitan Police Department to explain the circumstances surrounding the presence of his unloaded firearms at the Verizon Center last month.

From the outset of this incident, Mr. Arenas has been fully cooperative with the investigation. He acknowledged his possession of the guns when questioned by Washington Wizards team officials; he immediately offered and relinquished the guns to Wizards security personnel; and he had me proactively reach out to the U.S. Attorney’s Office and make an immediate self-disclosure about the guns.

Consistent with that cooperative approach, Mr. Arenas felt it important that we meet with law enforcement at the first possible opportunity so that he could tell the full story. Over the course of a two-hour interview this afternoon, Mr. Arenas answered every question asked of him.

Mr. Arenas has been constrained in his public comment about these circumstances out of concern that he not do anything to interfere with the ongoing law enforcement investigation. Please understand that his public comments will continue to be limited as long as the investigation continues. Nevertheless, now that he has completed his interview, Mr. Arenas wishes to make the following statement about last month’s events and today’s interview.”

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.

Participating in a panel discussion at O’Melveny & Myers, former Assistant Attorney General of the Criminal Division Alice Fisher and other former Bush DOJ officials expressed concern about the new enforcement environment, reports the BLT.

Fisher, now a partner at Latham & Watkins, likened the Obama administration’s stepped up enforcement to Dr. Octopus, a villian from the Spiderman movies, “His arms just keep going and going and going,” she said.

Dr. Octopus

The rhetoric sounded like talk you hear during campaign season.

Former U.S. Attorney for the Eastern District of Virginia Chuck Rosenberg said that businesses feel like they are taking “a walk in the woods with a very hungry grizzly bear. …The bear’s going to get you if you’re a lagger.”

Former Secretary of Homeland Security Michael Chertoff simply stated, “It’s going to be rough, is the bottom line.”  Chertoff is now senior of counsel at Covington & Burling.

The panel was moderated by former Bush Homeland Security adviser to Ken Wainstein, who is a partner at O’Melveny.