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