After the Ted Stevens debacle, the last thing the Department of Justice needs is another dismissal of a highly politicized indictment under allegations of prosecutorial misconduct.

And so the stakes have been raised in a little-noticed, but fiercely fought, battle in the Eastern District of Virginia over a criminal contempt of court indictment against Sami Al-Arian, a confessed supporter of a Palestinian terror group. Judge Leonie Brinkema has scheduled a hearing on April 24 in Alexandria where she’ll likely decide whether to throw the contempt case out or let it proceed to trial. Each side is accusing the other of undermining the “integrity” of the U.S. justice system.

For background, see my previous posts here and here. The issue is whether prosecutors in the Middle District of Florida and the Counter-Terrorism Section at Main Justice used “winks and nods,” as Brinkema put it, to persuade the former University of South Florida professor to plead guilty in 2006 to one count of assisting Palestinian Islamic Jihad, then violated a verbal promise that Al-Arian wouldn’t have to testify before a grand jury in Virginia investigating terrorism financing networks. Islamic Jihad is a smaller rival to Hamas that has conducted numerous suicide bombings in Israel.

Through his attorney, celebrity George Washington University law professor Jonathan Turley, Al-Arian claims the terms of his 2006 plea agreement allowed him to ignore two later grand jury subpoenas in Virginia. The government disputes this. The agreement itself is silent on the issue of cooperation – neither ruling it in or out. But two district judges and two panels of appellate judges have already ruled against Al-Arian, who was previously charged with civil contempt.

Brinkema, however, has appeared skeptical of the criminal case, in part because prosecutors did not comply with her request to submit sworn affidavits about their understanding of the disputed agreement.

But in a government motion filed April 6, Assistant U.S. Attorney Gordon Kromberg leans heavily on a key part of the public record he’d apparently overlooked in making his previous arguments: a transcript of Al-Arian’s 2006 plea hearing.

Under federal rules of criminal procedure, a judge must hold a hearing to examine whether a defendant is of sound mind and voluntarily pleading guilty. The judge must also explore thoroughly whether any “inducements” were offered to the defendant to plead guilty.

Federal Magistrate Judge Thomas McCoun III did so in Tampa. In the 2006 hearing, he repeatedly asked Al-Arian to state for the record if there were any side deals offered. Other than a promise from the government to deport him swiftly after time served, Al-Arian said: “I don’t recall anything else.” He made no mention of any deal to exempt him from testifying in other cases.

In its April 6 motion, the government argues courts must rely on the written terms of the plea agreement in such cases. The Al-Arian case was especially complicated, with “four defense attorneys engaged in negotiations with at least five government officials over a two month period in two different cities” (Tampa and Washington), the motion said.

Al-Arian’s lead defense attorney in Florida, William Moffitt, withdrew from the case before the plea agreement was finalized. But Al-Arian’s defense has based its defense on an affidavit Moffitt submitted saying he negotiated the deal in Florida and at Main Justice with then-Criminal Division chief Alice Fisher. Moffitt said it was his clear understanding that the agreement would “conclude all business” between Al-Arian and the government.

The government motion answers:

“It is unfortunate if a misunderstanding actually occurred in this case, and the defendant actually was advised by his attorneys that – in spite of the written terms of his agreement and the statements made to Judge McCoun in open court – his plea agreement barred this district from compelling his testimony.” It adds: “[E]nabling him now to avoid punishment for his criminal contempt would undermine the integrity of the Court.”

The public flogging of the Ted Stevens prosecution team has reached such a frenzy that you have to wonder what else is driving it now.

Without a doubt, “mistakes were made,” as U.S. Attorney General Eric Holder said in his interview with CBS’s Katie Couric. Indeed.

The Senate’s longest serving Republican narrowly lost his re-election after his (now overturned) conviction last October, ending his career and putting Democrats within spitting distance of a filibuster-proof majority. The failure to turn over exculpatory evidence was inexcusable, and put the 84-year-old Stevens through a horrible and costly ordeal.

But here are five other factors to consider: 

1) Emmet Sullivan’s ego. The mercurial federal judge has seemed to enjoy the spotlight. “I have not by any means pre-judged these attorneys for their culpability,” he said at last Tuesday’s hearing, in which he granted the DOJ’s motion to dismiss the indictment. But his repeated public scoldings of the prosecutors suggest otherwise. Marc Ambinder agrees.

Emmet Sullivan

2) Distrust of the Bush administration. The politicization of the Justice Department has cast a shadow over all its work.

3) Politics. Republicans can deflect attention from the abuses of the Bush administration by portraying the career prosecutors as Democrats out to get a Republican. Even though the Alaska Republican was indicted during a Republican administration, people are now primed to suspect a widespread lack of integrity in the justice system.

4) Race. Why was lead prosecutor Brenda Morris brought in only two months before trial? Thrown in at the last minute as the government rushed to prepare for a quicker-than-expected trial, it’s entirely plausible that she didn’t have a good handle on the material. Was a well respected prosecutor like Morris put in this position because she is black? Did her supervisors (Matt Friedrich and Rita Glavin) want an African-American face before a District of Columbia jury? If so, isn’t it perhaps time to get beyond such blunt racial considerations, especially given that the judge who was so critical of the government’s case is also African-American, as is the Attorney General who ultimately asked for its dismissal?

5) It’s great PR for the defense lawyers. No longer a potted plant, lead defense attorney Brendan Sullivan had a field day at last Tuesday’s court hearing, filleting the government in a 45-minute speech in which he denounced the prosecutors as “corrupt” and “devious.”

Paul O’Brien, chief of the Narcotic and Dangerous Drug Section, emerged as the sober face of the Justice Department at today’s humiliating hearing in which U.S. District Judge Emmet Sullivan voided the high-profile conviction of now-ex-Sen. Ted Stevens on corruption charges.

“I hope the court will appreciate, speaking on behalf of the Justice Department, we deeply, deeply regret this occured,” O’Brien told the judge, referring to the prosecution errors that are now under criminal contempt investigation by the court.

O’Brien was the lead in a three-member team appointed by the DOJ in February to review the allegations of prosecutorial misconduct in the case against the Alaska Republican, who lost his Senate re-election bid in November after his conviction in October on seven counts relating to his alleged failure to report home renovations and other gifts on his financial disclosure forms.

David Jaffe, the deputy chief of the Domestic Security Section; and William Stuckwisch, senior trial attorney in the Fraud Section, joined O’Brien in reviewing the case. Their findings led U.S. Attorney General Eric Holder to ask the court to dismiss the indictment with prejudice. Jaffe and Stuckwish didn’t speak at Tuesday’s hearing.

Sullivan complimented O’Brien and his team. “This court has no doubt that you … worked around the clock over the last seven weeks,” Sullivan said. “It could not have been an easy task, and the court thanks you for your effort.”

O’Brien described how the new team found prosecutors’ notes from an April 15, 2008 interview with lead witness Bill Allen, owner of an Alaska oil services company, that undercut his credibility. The notes said Allen did not recall a key conversation with another witness, and that Allen estimated the work done on Stevens’ home as worth about $80,000 – not the $250,000 claimed by the government.

“The government was obligated to produce the information from the April 15, 2008 interview,” O’Brien said. “”They did not do this.” Judge Sullivan interjected: “So what you did [in turning the notes over to the defense] was what should have been done months ago.”

Lead defense attorney Brendan Sullivan Jr. of Williams & Connolly described how O’Brien in March hand-delivered to his office potentially exculpatory material that the review team had turned up. The materials led Sullivan to schedule a 10 a.m. meeting with the DOJ on April 1 to ask for dismissal of the case.

Sullivan said in his lengthy remarks to the court that he’d come to his office at 4 a.m. on April 1 to prepare for the meeting, expecting he’d have to “tell them everything,” because “this new team” had “been on it such a short time.”  But at 9 a.m., an hour before the scheduled meeting, O’Brien phoned to say the Attorney General had already decided to ask for dismissal, Sullivan said. “They knew, when they saw the information, how important it was, even though they’d been in the case for four, five or six weeks,” Sullivan said – a clear slap at the original prosecution team, whom Sullivan blasted as “corrupt” and “devious.”

U.S. District Judge Emmet Sullivan dropped a bombshell at the end of today’s long hearing in which he granted the Department of Justice request to dismiss the incitment against former Sen. Ted Stevens (R-Alaska) and void his conviction last October on seven corruption counts. Sullivan revealed his court has hired a special investigator, Henry F. Schuelke III, to probe whether the prosecution team broke federal rules of criminal procedure in withholding exculpatory evidence.

Sullivan said the prosecution errors were “too numerous to be left to an internal investigation that has no accountability.” He was referring to the DOJ’s Office of Professional Reponsibility investigation, already underway. DOJ lawyer Paul O’Brien, appointed in February to review the allegations of prosecutorial misconduct, told Sullivan in today’s hearing that the department would share the OPR report with the court when it was completed. But O’Brien said he could not promise the DOJ would agree to release the findings publicly.

The attorneys now facing possible criminal charges include lead prosecutor Public Integrity Section chief William Welch; his deputy and the lead prosecutor, Brenda Morris; and Nicholas Marsh and Edward Sullivan, trial attorneys in Public Integrity. Also under investigation are two Assistant U.S. Attorneys in Alaska, Joseph Bottini and James Goeke. You can read short bios of the prosecutors here.

 Schuelke is a former Judge Advocate General and military judge in the U.S. Army. He served seven years as an Assistant United States Attorney for the District of Columbia, and was special counsel to the Senate Foreign Relations Committee (1980-81) and Special Counsel to the U.S. Senate Select Committee on Ethics (1989-1991). He is now in private practice at Janis, Schuelke & Wechsler in Washington. In a profile, the Anchorage Daily News describes Schuelke as “low-key.”

Former Alaska Sen. Ted Stevens’ defense attorney, Brendan Sullivan, delivered a stinging rebuke to the prosecution team at today’s hearing before U.S. District Judge Emmet Sullivan. “We were no match for corrupt prosecutors,” he said, turning the government’s allegations of corruption against Stevens back on the government.

Some highlights:

Matt Friedrich with Stevens prosecution team outside the D.C. federal courthouse on Oct. 27, 2008

• Sullivan criticized the former Acting Associate Attorney General for the Criminal Division (a reference to Matt Friedrich). “One of the most remarkable things” was that Friedrich after the October verdicts “goes out to the steps [of the courthouse], gathers the prosecutors in a family photo and says to the world, ‘The Department of Justice is proud of its team,’” Sullivan said. “How could the leading attorney of the Department of Justice over the Criminal Division make such a statement?” It is “how corruption can flourish,” Sullivan said.

• Sullivan acknowledged that the “lead prosecutor” (a reference to Brenda Morris, who joined the prosecution team two months before the October trial) didn’t participate in the key April 15, 2008 interview of lead government witness Bill Allen. Allen owned an oil services company that the government alleged provided home renovations services to Stevens that the senator didn’t report on his financial disclosure filings. But notes taken by two unidentified prosecutors, unearthed by a later DOJ review team, found that Allen in April 2008 gave an account of the disputed project that contradicted his later testimony at trial. The notes should have been turned over to the defense under Brady, the government said in a motion to dismiss the indictment.

• Sullivan said it was “interesting” that five prosecutors participated in the Allen interview, but only two sets of notes surfaced.

• He accused the prosecutors of allowing their professional ambition to override their obligation to provide exculpatory material to the defense. “A loss in such circumstances blights a career, and maybe even ruins it. So they abandoned all decency to win a conviction,” Sullivan said.

• “It is clear from the evidence that the government engaged in intentional” misconduct, he said. “While there could have been some mistakes in there, most of it was clear, intentional, devious and willful.”

Careers are over.

The Justice Department filed a motion on Wednesday to throw out the guilty verdict against former Sen. Ted Stevens and dismiss his indictment on corruption charges, citing prosecutorial mistakes that deprived the Alaska Republican of a fair trial.

The dramatic move comes after several public scoldings of prosecutors by an angry U.S. District Judge Emmet Sullivan, a whistleblowing complaint by an FBI agent assigned to the case, and an internal DOJ investigation that found new evidence of prosecutorial misconduct. Specifically, prosecutors failed to provide their notes to the defense about statements made by a key witness that were “inconsistent” with his testimony at trial, Wednesday’s motion said.

Brenda Morris, the lead prosecutor in the case and deputy in the Public Integrity Section, seemed to fear this was coming. In a Dec. 19 hearing, she desperately tried to convince Sullivan that any information the government hadn’t turned over was a “mistake” and didn’t “trigger any constitutional right of the defendant.” She added:

“[I]t changes the evidence in no way. What it does, though, Judge, is have an effect on many individuals professionally, administratively, privately, publicly, potentially …”

Sullivan said:

“I totally agree there are other people’s interest, maybe livelihoods, reputations [at stake].”

Morris answered:

“That’s absolutely right. That’s absolutely right.”

Click here and here to read our previous posts about Public Integrity’s travails. In February, Sullivan had found Morris, Public Integrity Chief William Welch, and Criminal Division Appellate Section Chief Patty Stemler in contempt of court. (Trial attorney Kevin Driscoll was later removed from the contempt finding.)

The new evidence disclosed by the government on Wednesday were notes of an April 15, 2008 witness interview with Bill Allen, owner an Alaska oil services company who was alleged to have provided $250,000 in home renovation services to Stevens that the government said weren’t reported on the senator’s financial disclosure reports. The notes were taken by two prosecutors — the motion did not identify them — and reflected Allen’s estimate that his company performed about $80,000 worth of work on Stevens’ chalet.

Stevens maintained his innocence, and his lawyers said at trial he had paid every bill sent to him. The discrepancy in Allen’s statements was material to Stevens’ defense, the motion said. “This information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury,” the motion said.

Wednesday’s motion was written by Paul M. O’Brien, chief of the Criminal Division’s Narcotic and Dangerous Drug Section; David L. Jaffe, deputy chief of the Domestic Security Section; and William J. Stuckwisch, a senior trial atttorney in the Fraud Section. The three had been brought in by the government to handle post-trial defense motions of prosecutorial misconduct. The new information was referred to the Office of Professional Responsiblity in its ongoing investigation of the matter, the motion said. The OPR report will be shared with the Court upon completion, the motion said.

Attorney General Eric Holder said in a statement:

“After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.”

A former top official of a Palestinian terror group asked U.S. District Judge Leonie Brinkema on Monday to dismiss criminal contempt of court charges against him, arguing prosecutors have put the “integrity of the Court and legal process” at stake in trying to compel his testimony before a Virginia grand jury.

The defendant is Sami Al-Arian, a former University of South Florida professor who pleaded guilty to one count of assisting members of the Palestinian Islamic Jihad in 2006 after years of denying he had anything to do with the suicide-bombing group. Al-Arian claims the government violated his plea agreement in seeking his testimony about an Islamic think tank in Virginia under investigation for terrorism financing.

The contempt case pits celebrity George Washington University law professor Jonathan Turley, Al-Arian’s lawyer and an MSNBC legal commentator, against an aggressive Assistant U.S. Attorney in the Eastern District of Virginia, Gordon Kromberg, who has been criticized for making inflammatory statements about Muslims.

The now-disputed 2006 plea agreement was negotiated at the highest levels of Main Justice, roping in then-Criminal Division chief Alice Fisher. The chief negotiator was Cherie Krigsman, then a trial attorney with the Counter-Terrorism section in Washington and now an AUSA in Tampa.

Brinkema in recent court hearings in Alexandria has repeatedly questioned why prosecutors haven’t complied with her request to submit affidavits clarifying their understanding of the 2006 plea agreement. She has called the lack of affidavits a “hole in the case” and suggested prosecutors may have violated Al-Arian’s rights under Santobello v. New York, a 1971 Supreme Court decision that says the government is bound to honor even even unwritten promises made during plea negotiations.

As a journalist who covered the Al-Arian saga for the St. Petersburg Times in Florida, I will cut to the chase for you: No, prosecutors probably did not violate his 2006 plea agreement. But the government’s case is so muddled at this point it will still probably lose.

Al-Arian knows Americans well. He’s taken advantage of the fact we’re bred to recoil at abuse of power by  government. And well we should. But Americans also have an obligation not to be dumb. Have Al-Arian’s defenders actually read the public record? If they have, are they saying it’s okay to raise money from Iran for a group that advanced its political goals by blowing people up at bus stops?

Jihad in America

In 1994, a controversial former CNN journalist named Steve Emerson produced a documentary for PBS called “Jihad in America.” (Full disclosure: I have written for Emerson’s Investigative Project on Terrorism Web site). Using public source material, the documentary linked Al-Arian to Islamic Jihad, a smaller rival to Hamas. Islamic Jihad waged a deadly campaign of suicide bombings in an attempt to derail the 1994 Oslo peace accords between Israel and the Palestinians. In 1995 President Clinton issued an executive order banning assistance to the group.

The documentary produced a bitter split in the Tampa Bay community. Emerson had a reputation as a pro-Israel advocate. His journalism was solid, but Al-Arian deftly denounced his documentary as “a deliberate attempt to defame and distort the cause of Muslim organizations in the United States.” Al-Arian’s supporters, including many faculty at the University of South Florida, saw the Palestinian as the victim of a McCarthyist witch hunt for his political and religious views.

Others couldn’t believe anyone was so naïve. The documentary and subsequent news reports showed that an Islamic think tank Al-Arian ran in Tampa had employed the founder of Islamic Jihad, Fathi Shikaki. Al-Arian had published a magazine for Islamic Jihad. He’d been host in Tampa in the early 1990s to Islamist icons like the “blind sheik” Omar Abdel Rahman, who at the time was running a pre-cursor organization to Al-Qaeda; and Hassan al-Turabi, the leader of Sudan who was then harboring Osama bin Laden.

In October 1995, Shikaki was assassinated in Malta. Another employee of Al-Arian’s think tank, Ramadan Shallah, suddenly turned up in Syria as the new leader of Islamic Jihad. Questioned by local reporters, Al-Arian said he’d had no idea that Shallah was connected to Islamic Jihad. In November 1995, the FBI raided Al-Arian’s home and think tank.

The criminal case bumbled along without charges for years.  Al-Arian’s supporters said the lack of charges showed the case was weak. And the emotional debate over his guilt or innocence split along predictable liberal-conservative ideological lines, muddling the truth. But unknown to everyone — even the FBI’s own criminal investigators — the national security side of the Bureau had been secretly wiretapping Al-Arian’s phones for years, under FISA warrants.

The “wall” between intelligence gathering and criminal investigations, however, kept that key wiretap evidence out of the public debate and the courts.

A “Master Manipulator”

Then came 9/11. Congress quickly passed the Patriot Act, and the “wall” came down. The wiretaps were now admissible as evidence. In 2005 the government brought Al-Arian to trial on charges of material support for terrorism.

At trial, video tapes seized in the 1995 raid showed Al-Arian at Islamic conferences raising money for Islamic Jihad. “God damn America!” Al-Arian said in Arabic, at one of the conferences, and“Death to Israel!” He called Jews the “sons of monkeys and pigs.”

The previously secret national security wiretaps revealed that Al-Arian had been an intermediary between Palestinian Islamic Jihad and Iran, the group’s main funder. Evidence showed he’d been the secretary of Islamic Jihad and on its “shura” council of leaders.

But his Florida attorneys, William Moffitt and Linda Moreno, argued he was being targeted for his political views in violation of his constitutional free speech rights. In a major blow to the government, the jury acquitted him on eight of 17 counts and did not agree on the others.

In 2006, rather than face the possibility of a re-trial, Al-Arian agreed to plead guilty in the Middle District of Florida to one count of helping Islamic Jihad members secure U.S. visas. Moffitt went to Washington to finalize the plea agreement, meeting with Fisher in the Criminal Division, according to an affidavit Moffitt submitted.

Moffitt said he insisted that prosecutors not include any language in the plea agreement requiring Al-Arian’s cooperation with the government in the future. The final agreement ended up silent on the issue – ruling cooperation neither in or nor out. This created the ambiguity that is now at issue before Judge Brinkema.

Not in dispute is that the government promised to help expedite Al-Arian’s deportation to the Middle East in exchange for the guilty plea. Prosecutors expected the Florida trial judge, U.S. District Judge James S. Moody, to sentence the legal U.S. resident to essentially time served, allowing Al-Arian’s swift deportation.

But an angry Judge Moody upended those plans. The Clinton-appointed judge slammed Al-Arian as a “master manipulator” at his sentencing hearing, and unexpectedly gave him maximum prison time, delaying his deportation. “The evidence was clear in this case that you were a leader of the Palestinian Islamic Jihad,” Moody told him at sentencing. He called Al-Arian a liar, a hypocrite, immoral, callous to human suffering and basically an all around despicable character. I’m not exaggerating. Read the transcript yourself, starting at page 14.

While Al-Arian sat in prison, an acting deputy assistant attorney general at Main Justice, Barry Sabin, approved a subpoena from Kromberg in the Eastern District of Virginia seeking his testimony before a grand jury investigating terrorism financing. Al-Arian refused to testify, despite a grant of immunity from prosecution. He said the plea agreement exempted him from cooperation.

The government disagreed. U.S. District Judge Gerald Lee in the Eastern District of Virginia found Al-Arian in civil contempt in 2007. Then last year, Al-Arian was charged with criminal contempt.

They Can Kill Each Other During Ramadan

But there were credibility problems looming for the government. An Al-Arian defense attorney, Jack Fernandez of Zuckerman

Gordon Kromberg

Spaeder in Tampa, had filed a 2006 affidavit accusing Kromberg of bias against Muslims.

Fernandez said that in denying a request that Al-Arian’s transfer to custody in Virginia be delayed because of the Islamic holiday Ramadan, Kromberg told him: “They can kill each other during Ramadan, they can appear before the grand jury. All they can’t do is eat before sunset.” Fernandez said in the affidavit he took “they” to mean Muslims. (See paragraph 7).

Then, the criminal contempt case came before Judge Brinkema. In an August 2008 hearing, she admonished Kromberg for saying a court-ordered release of Al-Arian into the custody of his daughter was risky, because “in this particular culture” a woman could not prevent her father from fleeing. She also questioned whether Kromberg had violated Al-Arian’s constitutional rights by changing standard immunity order language.

But in January of this year, Brinkema ruled that the criminal contempt trial could proceed, dealing a blow to the defense. Click here to read our report about that decision.

The tide again turned against the government in a series of hearings in February and March. Turley said it was Al-Arian’s clear understanding in his plea negotiations that he would not be required to provide any further cooperation with the government. Even if that promise wasn’t written into the agreement, the government still had to honor it under the Santobello decision, Turley argued.

Jonathan Turley

Turley submitted affidavits from Al-Arian’s original defense attorneys, Moffitt and Moreno. Moffitt said non-cooperation had been “the most significant issue” for Al-Arian in the negotiations, and he agreed to plead guilty only because prosecutors agreed to remove standard cooperation language from the agreement.

Because this was now an essentially he-said/she-said argument, Brinkema asked Kromberg to provide affidavits from the Middle District of Florida prosecutors about their understanding of the deal. “I have evidence under the penalty of perjury from defense counsel, and I have no evidence, I have only representations from the United States,” Brinkema said in a Feb. 20 hearing.

She said there was a “significant cloud over this criminal prosecution” because the Counter-Terrorism section at Main Justice had been involved in both the plea negotiations and the approval of the immunity order to compel testimony in Virgnia.

“I think the integrity of the Justice Department and the integrity of the criminal justice plea bargaining process is too significant to just let it die on the vine, given the nature of the record before this Court,” Brinkema answered.

Kromberg argued in subsequent filings that prosecutor affidavits weren’t necessary because Assistant U.S. Attorney Terry Zitek in Tampa had already said in a previous court hearing the agreement didn’t exempt Al-Arian from compelled testimony. But Kromberg also revealed that the Middle District prosecutors had objected to his attempt to subpoena Al-Arian.

Kromberg explained the objections as stemming from the Middle District prosecutors’ desire that nothing interfere with their promise to deport Al-Arian swiftly. Once Judge Moody hit him with the longer-than-expected sentence, Kromberg said, the situation changed, because Al-Arian was suddenly stuck in prison – and thus available to testify.

But Turley pounced. He called the revelation “new evidence” that changed the game. The government’s conduct “doesn’t just shock the conscience. It makes it impossible for prosecutors and defense attorneys to work,” Turley said in a March 9 hearing.

The government now has until April 6 to answer Al-Arian’s motion to dismiss.

No Mention of Any Deal

So, why don’t I believe Al-Arian had an implied promise of exemption from any future grand jury testimony? The defendant’s long record of dissembling aside, I know that the prosecutors in 2006 were just anxious to get the plea deal done after their embarrassing failure to win a conviction at trial. I haven’t talked to any of them about it, but I suspect they saw removal of any cooperation clause as simply a way to get the deal signed. If they had truly intended to exempt Al-Arian from any future testimony, wouldn’t they have expressly written that into the deal?

And the other reason I tend to believe the government, despite all the problems with its case, is that Al-Arian himself, when he had a chance to put this alleged side deal on the public record, didn’t mention it at all.

In 2006, a federal Magistrate Judge in Tampa, Thomas B. McCoun III, repeatedly questioned Al-Arian about any “inducements” or side deals he had with prosecutors outside the written agreement that convinced him to plead guilty. Al-Arian raised only one: The government had agreed to expedite his deportation.

Here’s just one of several such exchanges from the transcript:

McCoun: “Beyond the discussions and the efforts that are apparently ongoing with regards to deportation, have there been any other promises made to you that are an inducement in your mind to entering a guilty plea? If so, we need to put them on the record.”

Al-Arian: “I don’t recall anything else.”

U.S. District Judge Emmet Sullivan today held four Justice Department attorneys in contempt for failing to turn over 33 documents requested by defense lawyers for ex-Sen. Ted Stevens (R-Alaska).

The contempt findings were directed against Public Integrity Section Chief William Welch II; his deputy, Brenda Morris, lead prosecutor in the Stevens case; trial attorney Kevin Driscoll and Patricia Stemler, chief of the Criminal Division’s Appellate Section. “Is the Department of Justice taking court orders seriously these days?” the judge asked, reports BLT: The Blog of Legal Times. Sullivan said he would wait until the case is over to issue sanctions.

Stevens has asked the judge to order a new trial, or set aside his conviction last October for failing to report gifts from a political supporter on his Senate financial disclosure forms. The case was rocked by a whistleblower complaint from FBI Agent Chad Joy, who accused the lead agent on the case, Mary Beth Kepner, of having an improper relationship with the government’s star witness, Bill Allen. See our previous posts here and here.

Now that Michael Mukasey is no longer the Attorney General, he (or his high-level designee) doesn’t have to answer for what US District Judge Emmet Sullivan clearly sees as major shenanigans by the Public Integrity Section leading up to  the October conviction of ex-Sen. Ted Stevens (R-Alaska) for lying on his financial disclosure forms.

On Wednesday, Sullivan vacated his Jan. 16 order that Mukasey file a statement with the court explaining who knew what when about whether FBI Agent Chad Joy had been granted protected whistleblower status. Joy made an explosive complaint of prosecutorial misconduct. Stevens has asked the court to throw out his conviction or order a new trial.

Instead of having the now-departed Mukasey answer for the prosecutors, Sullivan ordered the Department of Justice to file under seal all communications to, from, or between anyone in Public Integrity, the FBI, DOJ Office of Inspector General, DOJ Office of Professional Responsibility, and the US Attorney’s Office in Alaska about the matter.

Sullivan’s order revealed a partial transcript of what was said in a sealed Dec. 19, 2008 hearing. Sullivan grilled Public Integrity deputy chief Brenda Morris, the lead prosecutor on the case, about whether DOJ lawyers intentially mislead the court about the need to keep Agent Joy’s complaint sealed — over defense objections. The government lawyers initially argued that Joy’s privacy rights as a protected “whistleblower” mandated keeping his complaint secret. They later abruptly reversed course, saying the FBI agent actually didn’t have official whistleblower “status.”

SULLIVAN: “If you were a defense attorney, you’d be raising a storm about that information [in Joy's complaint] and you know it, don’t you? You can look me in the eye and tell me.”

MORRIS: “It’s not about looking in your eye and telling you or not, Judge … I’m biased in the situation.”

Agent Joy alleged in his complaint that prosecutors had concealed exculpatory information in an FBI Form 302 witness interview summary from the defense. He described a meeting in which Public Integrity attorney Nick Marsh was “absolutely against turning over” the new information to the defense. Morris in the Dec. 19 hearing gave a different version of that meeting. She said it was Marsh, in fact, who’d discovered the improper redactions and alerted his colleagues. Morris, Marsh, Public Integrity Section Chief William Welch and other government officials then held a meeting to discuss what to do, Morris told Sullivan.

“It was at least ten of us in the room going back and forth as to what is it and how best to deal with it,” Morris said. “So, I mean, Judge, just like that maybe his, Agent Joy’s recollection or his belief of what may have happened – I was present. I’m going to be a witness, too. Bill Welch, he’ll be a witness.” The government must turn over the material requested by Sullivan by Jan. 29.

President Bush’s commutation of the sentences of two Texas Border Patrol agents who shot a fleeing Mexican drug smuggler in the buttocks and then tried to cover the incident up came after the agents’ congressional supporters tried to take the heat off  former Bush aide Johnny Sutton, the US Attorney in San Antonio, World Net Daily reports. The 2005 prosecution outraged conservative commentators and even many Democrats, most prominently Sen. Dianne Feinstein of California.

Tara Setmeyer, communications director to Rep. Dana Rohrabacher (R-Calif.), told Glenn Beck in a recent  interview that the congressional supporters had abandoned their quest for pardons for the agents, urging the White House instead to commute their 12- and 11-year sentences. “[G]iven the politics of the situation, given the relationship between Sutton and the President, we know that a full pardon would be a full rebuke of Johnny Sutton … So we’ve abandoned the pardon effort,” Setmeyer said.

Sutton was then-Texas Gov. Bush’s criminal policy director from 1995 to 2000. Bush appointed Sutton the US Attorney for the Western District of Texas in 2001. The Border Patrol agents, Ignacio Ramos and Jose Compean, have already served about two years in prison and will soon be free to go.