Senators from both sides of the aisle demanded that Attorney General Eric Holder release the Justice Department’s internal investigation into alleged misconduct by prosecutors in the botched public corruption case against the late Sen. Ted Stevens.
Appearing before the Senate Appropriations subcommittee on Commerce, Justice, science and related agencies, Holder also heard questions about the employment status of the Stevens prosecutors and the amount of taxpayer money being used to pay lawyers to defend them.
“[It's] a tragedy that Ted Stevens died before he knew this was a faulty prosecution — that, to me, elevates this to a new height,” Sen. Dianne Feinstein (D-Calif.) said during the hearing.
Holder said the investigation of the prosecutors’ conduct by the department’s internal watchdog, the Office of Professional Responsibility, is complete but not final. Hundreds of pages long, it recommends what, if any, sanctions ought to be leveled, he said.
The Attorney General also said he would like to make most, if not all, of the report publicly available.
A separate investigative report ordered by the Stevens trial judge, Emmet Sullivan of the District of Columbia, is slated for public release on March 15. One prosecutor has appealed Sullivan’s decision to make the 500-page report public. The report was written by an outside lawyer hired by the court, Henry Schuelke.
Stevens was convicted in federal court in Washington, D.C., in 2008 of failing to disclose gifts on his public financial forms. At the time the longest-serving member of the Senate, the Alaska Republican lost his Senate seat shortly after his conviction. In 2009, Holder asked the court to dismiss the charges after an internal Justice Department investigation found that prosecutors had withheld exculpatory evidence from the defense in violation of Steven’s constitutional rights.
Sen. Kay Bailey Hutchison (R-Texas) pressed Holder on the employment status of those prosecutors, asking: “Are you going to make a decision regarding people who have clearly exhibited they do not have integrity to prosecute in this area?” The ranking member said it’s unfortunate “a great friend to many of us and a great patriot for our country” was “very badly abused by the Department of Justice.”
Holder told the subcommittee he believed all of the prosecutors are still working at the department, adding he will make employment decisions once both the OPR and Schuelke reports are released.
Subcomittee Chairman Barbara Mikulski (D-Md.) said her colleagues on the panel are “deeply troubled” by the episode. “We must have public integrity and an independent judiciary,” she said. “Regardless of the party in the White House, we must have Justice Department we believe in and the American people believe in.”
Sen. Lisa Murkowski (R-Alaska) added, “As a fellow Alaskan, I was shocked.” She reminded the committee that Stevens lost re-election after he conviction, which helped tip the balance of power in the Senate at the time.
She asked why the Justice Department is paying the legal fees for the prosecutors’ defense, which has cost taxpayers about $1.8 million. Holder explained that as a matter of course, the department either defends its own prosecutors in legal matters or reimburses them for legal fees from outside firms. Because DOJ leadership decided it would be a conflict of interest to represent the prosecutors, it is paying for the fees, which, Holder said, has happened in the past.
Holder said he has reviewed the summary and portions of the Schuelke report, but said he is under orders by the judge not to discuss specifics. ”The findings made there are disturbing,” he said. “I’ve spoken to members of the judiciary to make sure what happened in the case of Senator Stevens is not replicated.”
The prosecutors investigated were William Welch, then the head of the Public Integrity Section; Criminal Division trial attorneys Brenda Morris and Edward P. Sullivan and Alaska Assistant U.S. Attorneys Joseph Bottini and James Goeke. Justice Deparmtent lawyer Nick Marsh, who was also under investigation, committed suicide in 2010.
Sen. Lamar Alexander (R-Tenn.) also grilled Holder on the constitutionality of President Barack Obama’s controversial January recess appointments. Congressional Republicans say Obama’s appointments, including Richard Cordray to head the Consumer Financial Protection Bureau, don’t pass constitutional muster because they were made while the Senate was in pro-forma session.
The Justice Department’s Office of Legal Counsel approved the appointments, arguing that the Senate was for all intents and purposes in a recess when Obama made the appointments. Holder said he agrees with the findings of the OLC report, but that the matter will likely be decided in the courts.
Alexander argued that if President George W. Bush could respect the Senate’s pro forma sessions during his tenure, then Obama should be held to the same standard. The appointments were a “blatant disregard of checks and balances.”
President Barack Obama said Wednesday he will install James Cole as Deputy Attorney General through a recess appointment.
The appointment will allow Cole to serve a year in the department’s No. 2 job. A friend of Attorney General Eric Holder, Cole was nominated in May and was approved by the Senate Judiciary Committee in July along a party-line vote.
A parter at Bryan Cave LLP, Cole spent 13 years at the Department of Justice, including three years as deputy chief of the Public Integrity Section in the Criminal Division. Senate Republicans objected to a
For background on why his nomination became controversial, read our previous report here.
Here is a statement from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.):
“Despite repeated requests, for more than five months, Senate Republicans refused to debate the nomination of Jim Cole to be the Deputy Attorney General. I have no question that Jim Cole is highly qualified to fill this vital law enforcement post. His nomination received bipartisan support from public officials and from high-ranking veterans of the Justice Department, and I believe that he would have been confirmed by the Senate had his nomination been given an up-or-down vote. The delays in considering his nomination were unnecessary and wrong. I am glad that he will now finally begin this important work to protect the American people.”
President Barack Obama will give recess appointments to 15 nominees who have been awaiting a confirmation vote in the Senate, the White House announced Saturday. But no Justice Department nominees are among them.
Emboldened perhaps by his victory on health care reform, Obama is making use of his recess appointment power for the first time in the face of what a White House blog post called an “obstruction-at-all-costs mentality” of Senate Republicans.
A total of 217 nominees have been pending before the Senate for an average of 101 days, the White House said. The 15 nominees Obama intends to appoint during the congressional recess have been pending for an average of 214 days, the White House said.
Among the recess appointments will be Jeffrey Goldstein, nominee for Under Secretary for Domestic Finance at the Treasury Department.
But Dawn Johnsen isn’t on the list. The Indiana University law professor’s nomination to head the Justice Department’s Office of Legal Counsel has been awaiting a vote in the Senate for more than a year. Republicans have objected to Johnsen’s prior work for an abortion rights group and her opposition to Bush-era national security legal policies.
In addition, Tax Division nominee Mary Smith and Office of Legal Policy nominee Chris Schroeder were not given recess appointments. Smith took a position in the Civil Division as she awaits confirmation. Schroeder’s nomination first went to the Senate in June 2009.
“The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis,” Obama said in a statement.
“Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate. I simply cannot allow partisan politics to stand in the way of the basic functioning of government,” Obama said.
A recess appointment lasts until the end of the next congressional session. Recess appointments are done infrequently, because they usurp the Senate’s constitutional role, angering many senators. During his tenure President George W. Bush made a number of recess appointments, spawning objections from Democrats.
Obama threatened in February to make recess appointments but relented after Senate Republicans lifted holds on some nominees, allowing 27 new administration officials to be confirmed.
Other nominees who are slated to receive recess appointments include David Lopez, Obama’s nominee for general counsel of the Equal Opportunity Commission, who previously worked in the Civil Rights Division of the Justice Department; and Eric L. Hirschhorn, a partner in the Washington, D.C., office of Winston & Strawn LLP, who will be appointed to head the Bureau of Industry and Security at the Department of Commerce.