That is what Joe Palazollo says here at Main Justice. Court-appointed special prosecutor Hank Schuelke has apparently completed interviewing all relevant players. According to Palazollo, Schuelke has been sharing information with DOJ’s OPR, which is conducting its own separate investigation into the allegations of prosecutorial misconduct. There is no question that serious Brady violations occurred. The issue for the investigators is whether it was intentional or inadvertent.
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Judge Cormac Carney has just dismissed the criminal stock option backdating cases, against former Broadcom CFO William Ruehle and former CEO Henry T. Nicholas III, based on government misconduct. The Orange County Register story is here. Nicholas had not yet gone to trial. In Ruehle’s case, the prosecution and defense had closed, and jury arguments were set for Thursday. Needless to say, dismissals based on prosecutorial misconduct are exceedingly rare. AUSA Andrew Stolper was at the center of the misconduct allegations and findings.
Here is more legal analysis on Judge Cormac Carney’s stunning and unprecedented dismissal of the felony charge against Broadcom co-founder Henry Samueli in the middle of William Ruehle’s trial. The Orange County Register story is by Andrew Galvin and Rachanee Srisavasdi.
So far, all of the articles I have seen on Judge Carney’s dismissal order fail to discuss whether it can be appealed. It can. It is one thing to throw out a guilty plea for an insufficient factual basis. It is quite another to throw out a felony charge brought by the government, particularly when the order of dismissal is based on evidence developed in a separate trial. On the other hand, the felony charge here was contained in a felony information. Felony informations are only valid when the defendant waives indictment. Defendants typically waive indictment when they enter a guilty plea, and that is what Samueli did when he originally entered his guilty plea. If the factual basis for the plea is insufficient, the felony information would have to be dismissed, absent a new waiver by Samueli. But Samueli no longer has any motivation to waive the information.
It isn’t at all clear to me what the Ninth Circuit will do if the government appeals. Generally, district courts are given broad discretion to decide whether to let defendants withdraw guilty pleas, and that is essentially what happened here.
Perhaps the more interesting question is what the courts will do if the government now indicts Samueli for lying to the SEC or for engaging in securities fraud. Before even thinking about the double jeopardy implications of indicting Samueli for lying to the SEC, the government would have to analyze the likelihood of meeting its Kastigar obligations in the wake of Samueli’s immunized testimony in the Ruehle trial. Not a pretty picture. I’m guessing that the Samueli prosecution is totally over.
Here, from today’s LATimes, is more context on Judge Cormac Carney’s apparently unprecedented dismissal of the felony charge against Broadcom co-founder Henry Samueli during the middle of the William Ruehle trial.
Samueli originally pled guilty to a one-count felony information charging a violation of Title 18, U.S. Code, Section 1001, for lying to the SEC. The guilty plea was made pursuant to a plea agreement with the government, represented by the U.S. Attorney’s Office for the Central District of California. Judge Carney rejected the plea agreement in September 2008, because, among other things, it called for Samueli to receive a probationary sentence. Unlike most plea agreements, Samueli’s was binding if the Court accepted it. By rejecting the plea agreement, Carney left Samueli free to withdraw his guilty plea. Samueli declined to do so, presumably in order to avoid a lengthy and expensive trial which would have included additional charges. Samueli’s sentencing date had been continued until 2010.
Fast forward to last week, when Judge Carney, who is presiding over the related criminal trial of forner Broadcom CFO William Ruehle, granted Samueli derivative use immuntiy so that Ruehle could call Samueli to the stand as a defense witness. (Since Samueli did not have the protection of a plea agreement, and was designated as a Ruehle co-conspirator by the government, his attorneys had quite properly told the Court that Samueli would invoke his Fifth Amendment privilege against self-incrimination if called to testify.)
Samueli testified on Tuesday and Wednesday of this week. After Samueli stepped down from the stand, Judge Carney told him to face the bench. And then Judge Carney did something that, as far as I know, is unprecedented in the annals of the federal criminal justice system. He threw out Samueli’s guilty plea and dismissed the charges against Samueli, based on his assessment of Samueli’s (post-guilty plea) testimony. Samueli’s testimony convinced Judge Carney that Samueli’s misstatements under oath to the SEC had been unintentional in nature.
Every finding of guilt in a federal criminal case, even one based on a guilty plea, must be supported by a sufficient factual basis. In effect, Judge Carney ruled that there was no factual basis for a finding of guilt as to Samueli.
Perhaps most remarkably, none of this occurred during proceedings in Samueli’s case. It happened in the middle of Ruehle’s criminal trial. But it all took place in the context of AUSA Andrew Stolper’s rather massive misconduct in the Ruehle and Samueli cases. And this misconduct has only recently come to light–right in front of Judge Carney.
Carrie Johnson of the Washington Post reports here that Washington criminal defense attorney Hank Schuelke, hired by U.S. District Judge Emmet Sullivan to investigate possible obstruction of justice by the DOJ in the Ted Stevens case, is set to interview the six DOJ attorneys at the center of the scandal. Schuelke is purportedly near the end of his work and has already sifted through thousands of documents.
I was struck by the last two paragraphs, and particularly the last sentence, of Johnson’s story:
“In naming a special prosecutor, U.S. District Judge Emmet G. Sullivan identified six people to be scrutinized — members of the prosecution team and the chief of the public integrity unit. Other leaders at the department’s criminal division weighed in on the case from time to time, especially after the judge began to complain in the course of last year’s trial about evidentiary problems, according to sources familiar with the investigation.
New officials at the Justice Department this year sifted through files and provided documents and e-mail about the case to Schuelke and the subjects of his investigation. But the criteria they used for sharing electronic messages may not have captured all the communications involving people in the criminal division or other areas of the department’s front office about the Stevens case, the sources said. Officials turned over only e-mail in which at least two of the six Stevens prosecutors were included as addressees, they said.”
Such a limitation on the DOJ’s disclosure of documents to Schuelke is quite remarkable and alarming. If Schuelke knew about it, he certainly should not have put up with it. The DOJ pledged full co-operation with Judge Sullivan’s probe. If DOJ higher-ups, past or present, had a hand in any of the conduct causing Judge Sullivan to hold the six Stevens-connected prosecutors in contempt, the truth must come out.
Andrew Ramonas of Main Justice reports here that the DOJ has decided not to withdraw corruption charges against convicted Alaskan lawmakers Pete Kott and Victor Kohring. The two have been free in the wake of DOJ’s discovery that prosecutors failed to disclose exculpatory material before or during trial. The district court will now decide whether there was a Brady violation and, if so, whether a new trial or dismissal is warranted.
Todays WSJ carries this column by Karl Rove, defending himself against allegations of impropriety in the U.S. Attorney firings scandal.
Carrie Johnson of the Washington Post has written another remarkable piece on the current travails of DOJ’s Public Integrity Unit in the wake of the Ted Stevens debacle. Her article details personnel shifts, the current roles of Chief William Welch and Deputy Chief Brenda Morris, continuing discovery drops and re-examined verdicts in the Alaskan corruption probe, and understandable morale problems. Apparently, the newly produced documents in two of the Alaskan cases are extensive in nature. Most intriguing, however, is this item from Johnson’s story:
“Sources said that among the questions investigators are pursuing is how closely the work of the Stevens trial team was supervised by officials in the Criminal Division. Senior political and career lawyers there may have offered input and monitored decisions about the kinds of material to turn over to Stevens’s defense team at Williams & Connolly, the sources added.”
Senior political and career lawyers in the Criminal Division were monitoring and offering input on the trial team’s discovery obligations? If true, this is extraordinarily unusual, even for a high-profile corruption case, absent a specific complaint or request by the defense team. And if these senior officials really were micro-managing the trial team’s Brady productions, they seem to have screwed up in spectacular fashion.
DOJ has uncovered Brady violations in the cases of two convicted Alaska politicians, Pete Kott and Vic Kohring, whose appeals are pending in the 9th Circuit. Both of these prosecutions were part of DOJ’s longstanding probe of Alaska public corruption, which also included the Ted Stevens case. The charges against Stevens have already been dismissed with prejudice due to Brady violations. In the cases involving Kott and Kohring, DOJ has moved for a remand to the district court so that the trial judge can sort out the Brady issues. In the meantime, DOJ has agreed that Kott and Kohring should be immediately released from prison on their own recognizance.
The Anchorage Daily News story is here. DOJ’s press release announcing the move is here. The Government’s Motion in Kott’s case is here.
Attorney General Eric Holder stated as follows: “After a careful review of these cases, I have determined that it appears that the Department did not provide information that should have been disclosed to the defense….Department of Justice prosecutors work hard every day and perform a great service for the American people. But the Department’s mission is to do justice, not just win cases, and when we make mistakes, it is our duty to admit and correct those mistakes. We are committed to
doing that.”
Assistant AG Lanny Breuer added: “The Criminal Division must ensure that defendants receive all appropriate discovery materials, and today’s action demonstrates that commitment to this responsibility….We will continue regular discovery training for all Criminal Division prosecutors to make certain that they perform their duties in adherence to the highest ethical standards. Every day, hundreds of career prosecutors work to uphold this Division’s proud tradition of being vigilant, ethical and stellar in the
execution of their work. This action is faithful to that tradition.”
Kudos are in order for Holder and Breuer. Their statements strike just the right balance. The overwhelming majority of DOJ prosecutors perform their work in an entirely ethical manner. The production of exculpatory material to defense counsel remains the chief area in which some fall short of the mark. Of course, the jury is still out on who fell short and why in the Stevens and other Alaska prosecutions.
Kohring is an arch-conservative Republican. According to his attorney, DOJ’s action “is enough to make Vic Kohring become a Democrat.”
Reminds me of the old joke: A conservative is a liberal who got mugged. A liberal is a conservative who got arrested.
In Friday’s New York Times, Charlie Savage here attempts to analyze what went wrong in DOJ’s Public Integrity Unit, whose leadership is now in hot water with Judge Emmet Sullivan for its handling of the Ted Stevens case. Savage’s article seems to posit a former golden age in Public Integrity, when the unit was “elite.” This all began to fade, the story goes, when Michael Chertoff took over as Criminal Division Chief early in the Bush Administration and replaced Public Integrity Chief Lee Radek with “outsiders.” Savage’s piece, although informative, overrates Public Integrity’s glory years and ignores/underrates the long-term, solid work of most of the unit’s line attorneys.
Here is New York Times Columnist Frank Rich’s latest take on the Bush Administration’s authorization of torture or extremely harsh interrogation methods, depending upon your point of view. Rich (echoing Senator Carl Levin) thinks that “it’s time for the Justice Department to enlist a panel of two or three apolitical outsiders, perhaps retired federal judges, ‘to review the mass of material’ we already have.” He wisely eschews the idea of a truth commission: “We don’t need another commission. We don’t need any Capitol Hill witch hunts.” But then Rich goes too far too fast: “What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.”
Aren’t you jumping the gun there a little bit, Frank? Don’t we need to first ascertain whether there was even a crime cognizable under federal law, and, if so, who committed it? And then, don’t the prosecutors need to determine, in their professional judgment, if the case is winnable? And finally, doesn’t Attorney General Holder (or a Special Counsel, if President Obama and AG Holder have deemed that one is appropriate) need to exercise his prosecutorial discretion as to whether prosecution is appropriate under all of the circumstances? That’s the way it is usually done and the way it should be done here. We don’t need no stinking Truth Commissions and we don’t need any left-wing screechers trying to bully DOJ. We have already had too much political pressure on DOJ in recent years.
As for “a panel of two or three apolitical outsiders, perhaps retired federal judges,” I don’t know of many: 1) successful prosecutions run by a panel; 2) apolitical retired federal judges; or, 3) retired judges who are qualified to lead an investigation at the operational level. How about picking a current well-respected career prosecutor? There are plenty of those around.
According to this Karl Vick piece in today’s Washington Post, former DOJ Office of Legal Counsel chief Jay Bybee, now a judge on the Ninth Circuit, regrets his role in signing the infamous “torture memos.” Since he is a sitting judge, Bybee is not commenting directly, but the article could not have been written without input from his friends. Vick’s story is balanced but short on substantive analysis of the memos in question, and notes that Bybee is friendly and admired by ideological friend and foe alike. I can attest to Bybee’s friendliness. We worked together in DOJ’s Office of Legal Policy in the 1980s and he was a consummate professional who did not appear to have a mean bone in his body. Calls for Bybee’s impeachment, based on conduct occurring before he became a judge, appear premature to me.
On the other hand, if DOJ professionals can make a reasoned argument that certain Bush-era legal memos sought merely to cover obviously illegal activities, let the investigations begin. After all, we investigate (and sometimes even prosecute) lawyers for fraudulently legitimizing tax fraud schemes with dubious letters of legal advice. I don’t see why dubious torture memos warrant different treatment. Just keep the politicians away. We don’t need any of Senator Leahy’s Truth Commissions.
We have been away for a few days, and apologize to our millions of readers worldwide who have expressed concern. Okay–so there were only ten of you, and nine of those wanted to sell me something. It is still nice to know that we were missed.
Today’s Washington Post has a piece here by Del Quentin Wilber on Senator Stevens’ rejection of a no-jail plea deal and his strategy of demanding a speedy trial.
Sunday’s Post had this very good story by Carrie Johnson on some of the things that went wrong, including the short time between indictment and trial and the last-minute cobbling together of the final trial team.
Hey, talk to the prosecutors and defense attorneys in the Eastern District of Virginia about going to trial 60 days after indictment. It happens a lot over the river.
And here in the Sunday New York Times, Neil Lewis opines that Ted Stevens is not really innocent, even with Judge Sullivan’s setting aside of the verdict and dismissal of the charges with prejudice, because the trial showed the former Senator to be less than candid about his reporting of gifts. Dana Milbank said something similar last week in this Washington Sketch.
I think these guys miss the point. Plenty of public figures and public servants are exposed all the time as having alleged ethical or moral blind spots. But most of them don’t get indicted and tried in federal court. Indictment for a federal crime is really a defining life event–a whole different ball game. So the trial’s revelation that Stevens is less than perfect is irrelevant to me.
Here is a SunSentinel.com story on Judge Alan Gold’s Hyde Amendment ruling in U.S. v. Shaygan. Here is Judge Gold’s Order. Shaygan was acquitted on all counts in a health care-related prosecution. It was discovered during trial that two witnesses secretly taped their conversations with the defense team and that Government prosecutors and case agents approved the taping.
So much for my theory that Judge Sullivan might wait to rule on the Motion Of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice in order to “better exert the Court’s own disciplinary authority.” What was I thinking? He is a federal judge. He don’t need no stinking pending indictment! He can exert control irrespective of whether the jury verdict stands or an indictment is pending. In fact, he has appointed veteran DC criminal attorney Hank Schuelke to investigate the conduct of six Stevens prosecution team members on behalf of the Court. According to the Washington Post story here Judge Sullivan publicly criticized DOJ’s Office of Professional Responsibility at yesterday’s hearing for its silence to date with respect to its investigation of the Stevens prosecution.
From the L.A. Times, here it is.
Law.com here carries a Legal Times piece by Mike Scarcella and Joe Palazollo on the series of errors that dogged the Stevens prosecution team. According to the story, Public Integrity’s Deputy Chief Brenda Morris wasn’t assigned to the case until days before the indictment. Though the article fails to mention it, this presumably means that Morris did not participate in the April 15, 2008, interview with Bill Allen and may not have ever known about it.
Most commentators are assuming that Judge Sullivan will quickly grant the Government’s Motion to Set Aside and Dismiss, but Sullivan could wait awhile in order to fully satisfy himself concerning the Government’s conduct in the case and to better exert the Court’s own disciplinary authority. It may be harder for him to do this as a practical matter if he immediately grants the Motion to Set Aside and Dismiss.
Hat Tip to Professor Ellen Podgor, over at White Collar Crime Prof Blog, who reports here that Judge Sullivan issued two new Orders this evening in U.S. v. Theodore F. Stevens.
The first Order states as follows:
“MINUTE ORDER as to THEODORE F. STEVENS. The Court, sua sponte, directs that by no later than 10:00 a.m. on April 6, 2009, the government shall provide to the Court copies of all material gathered post-trial and produced to the defendant. The government shall also provide to the Court all exculpatory evidence, witness interviews, 302s, and affidavits gathered, created and/or reviewed as part of the investigation into the Joy Complaint, and the attorneys notes regarding the April 15, 2008 interview with Bill Allen, whether or not that material has been produced to the defendant. Signed by Judge Emmet G. Sullivan on April 5, 2009.”
The second Order states as follows:
“MINUTE ORDER as to THEODORE F. STEVENS. The Court, sua sponte, ORDERS that the Department of Justice, the Federal Bureau of Investigation, the Internal Revenue Service, and any and all other government agencies involved in the investigation and/or prosecution of Senator Stevens immediately preserve any and all documents related to this matter, including but not limited to emails, notes, memoranda, investigative files, audio recordings, and any and all electronically stored information, until further Order of this Court. Signed by Judge Emmet G. Sullivan on April 5, 2009.”
My guess is that Judge Sullivan wants to keep control of the process and certainly doesn’t want DOJ’s Office of Professional Responsibility (”OPR”) to have sole responsibility for ferreting out any wrongdoing.
The most interesting thing to me about the MOTION OF THE UNITED STATES TO SET ASIDE THE VERDICT AND DISMISS THE INDICTMENT WITH PREJUDICE (”Motion to Set Aside”) in U.S. v. Theodore F. Stevens is the revelation that no FBI-302 was ever prepared of star Government witness Bill Allen’s April 15, 2008 interview. This was a pre-indictment interview attended by four Government attorneys and one FBI agent. Not to prepare a 302 “Memorandum of Interview” of this session was a clear departure from standard FBI practice. (Two of the prosecutors took notes, however, which is presumably how the review team learned about the April 15 interview.) In fact, post-indictment interviews of witnesses and potential witnesses should also generate 302s, the only exception being testimony preparation sessions. (But even exculpatory statements made in pre-trial testimony prep sessions must be reported to the defense by the prosecution, whether or not notes of the session are produced.)
It is hard for me to believe than an agent would have taken it on himself or herself not to prepare a 302 of the April 15 interview. The OPR investigation may ultimately provide the answer, but my guess is that the lone agent in attendance was ordered by somebody not to prepare a 302. The Stevens defense team had produced the October 6, 2002 “Torricelli Letter” to the Government in early 2008, prior to the April 15 interview. That letter, in which Senator Stevens specifically asked Allen to bill him for construction work, was obviously a potential problem for the Government. By the time of trial Allen recalled a conversation with Stevens’ friend Bob Persons in which Persons told Allen not to worry about the Torricelli Letter because “Ted is just covering his ass.” But Allen recalled no conversation, with Persons or anyone else, about the letter during the April 15 interview. Allen first told the prosecutors about the “covering his ass” conversation with Persons shortly before trial in a testimony prep session. As soon as they heard the story and anticipated using it at trial, prosecutors were duty bound to reveal the contradictory content of the April 15, 2008 interview to the defense team. But the original prosecution team never revealed the existence of the April 15 interview to the Court or to Stevens’ attorneys.
Did the original prosecutors forget about the April 15 interview during pre-trial, trial, and immediate post-trial? I suppose it is possible. We will await the OPR report to find out. The interview was in April 2008. Stevens was indicted in July 2008 and went to trial in late September 2008. By demanding an immediate trial, which was his right, Stevens forced the Government to get ready for trial in a hurry. Of course, it is easier to forget about an exculpatory interview when no 302 is prepared in the first place.
The prosecution team also prepared the GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR NEW TRIAL, filed in January 2009. In that Opposition, in discussing Allen’s testimony about the Torricelli Letter, the Government stated:
“In claiming that Allen’s testimony was false, defendant relies first on the fact that Persons’s comment was not recorded in the government’s memoranda of its interviews with Allen. This fact proves nothing, however, because the government was not even aware of the October 6, 2002 note until defendant produced it in early 2008, long after most of the memoranda were prepared. Moreover, it was not until shortly before trial that the government questioned Allen about defendant’s statement that he had asked Persons to speak to Allen about a bill, and thereby learned about Persons’s remark. Allen’s recollection on this point was not recorded in an FBI 302 because it was disclosed during a trial preparation session.” (Emphasis added).
In its recent Motion to Set Aside, the Government rightfully informed Judge Sullivan that this statement was inaccurate in light of the review team’s recent discovery of the April 15, 2008 interview.
The defense team correctly noted that many judges routinely accept the Government’s boilerplate pronouncement that all Brady material has been provided to the defense. Judge Sullivan, to his credit, did not do so here. The defense also admirably commended the new review team and AG Holder and stressed that some prosecutors who came to the case late may not have known about all of the Brady problems.
We are left for now with the sobering comments of the Stevens’ defense team:
“[I]t is crucial that this matter be fully investigated to determine the complete facts and assess responsibility.”
Here, courtesy of the Washington Post, is the statement issued today by Williams & Connolly’s Brendan V. Sullivan, Jr. and Robert M. Cary, Senator Stevens’ attorneys. The statement excoriates the original prosecution team and praises the new DOJ review team, Judge Sullivan, and AG Holder. Here is the Motion of the United States to Set Aside the Verdict and Dismiss the Indictment With Prejudice.
Taken together these documents reveal that the results of an April 15, 2008 government interview with star witness Bill Allen were improperly withheld from the defense. The Motion states that two prosecutors took notes of the interview. The defense statement reveals that four prosecutors and one agent were present for the interview. The government’s opposition to Stevens’ new trial motion was also inaccurate, according to the government’s Motion to Set Aside.
The Washington Post reports here that Attorney General Eric Holder has filed a motion seeking to dismiss all charges (with prejudice) against former Senator Ted Stevens. This action is being taken after DOJ review of the case by a new set of attorneys not involved in the original prosecution. Holder’s decision was apparently bottomed on the discovery of new Brady violations and “in consideration of the totality of the circumstances of this particular case.” Stevens’ age and electoral defeat undoubtedly played a part. Needless to say, dismissal of charges against a high-profile defendant already found guilty by a jury doesn’t happen every day–or even every decade.
Murray Waas reports here in TPMMuckraker that Karl Rove, while still refusing to testify before Congress concerning U.S. Attorney firings, will cooperate with the DOJ criminal probe into the same topic and has cooperated with the internal DOJ probe into the Don Siegelman prosecution.
Many of our citizens want to see federal investigations and prosecutions of criminal violations which were allegedly carried out during the Bush-Cheney years. You know the litany–warrantless wiretapping and data mining; torture and rendition; perjury before Congress and obstruction of justice.
But Barack Obama has said that he wants to look forward; he doesn’t want to “criminalize policy differences.” This is an interesting choice of words–first enunciated by Oliver North during the Iran-Contra Scandal, if I’m not mistaken. By using that phrase, Obama clearly wishes to send a signal of reconciliation and non-retaliation to official Washington.
So, pretend you are Eric Holder. You have been confirmed as Attorney General of the United States. Assume that you were outraged by the waterboarding and warrantless wiretappings and believe that they violated U.S. criminal law. During your first two months as Attorney General you quietly authorize, or allow to go forward, multiple criminal investigations of these activities. Then one day you get a call from President Obama, summoning you to the Oval Office. His message is clear: “Eric, I want these investigations to end. It’s time to move forward.” “But Mr. President,” you protest, “these are almost certainly violations of U.S. criminal law. It is DOJ’s job to enforce the criminal law. If we shut these investigations down we are telling Americans that Presidents and Vice-Presidents are above the law.” President Obama’s response is curt: “Shut them down. That’s an order. I’ve made my position clear.”
Is this political interference with the DOJ? Clearly. Is it improper as a matter of law or policy? Clearly not. The Department of Justice is part of the Executive Branch. As of tomorrow, President Obama will be the Chief Executive Officer of the Executive Branch. The decision whether to open or close any criminal investigation is at bottom a policy decision and the President gets to make that decision is he so desires.
But take another example. Say that a U.S. Attorney’s Office obtains credible evidence that a sitting Democratic Governor, close to President Obama, has committed a crime. An investigation of Governor X begins and the evidence gets stronger. One day Attorney General Holder is summoned to the White House by President Obama, who says: “Eric, I want you to shut down the investigation of Governor X. That’s an order.” “But why?” you protest. “Never mind why,” Obama responds. “I give the orders here. Find someone else to prosecute. There are plenty of criminals around.”
Is this political interference with the DOJ? Clearly. Is it improper as a matter of law or policy? There is nothing illegal about this order. Again, as Chief Executive, Obama has the authority to shut down any criminal investigation. But it is clearly improper, absent some compelling justification.
Why do I say this? What is my criterion for distinguishing proper from improper political interference? Just a gut feeling, reinforced by the traditions and practices of the Department of Justice and the American political tradition during the post-Watergate era. The Department generally aggressively investigates and prosecutes public corruption. That is a policy of longstanding. In our hypothetical, I assume that President Obama does not want DOJ to stop investigating all public corruption cases. So, I have to assume, unless otherwise informed, that Obama wants this case closed because Governor X is a friend and a Democrat. To me, that is not a proper reason, even if it is a policy and even if President Obama has the power to impose it.
There are a whole host of hypotheticals in between the two examples that I have given above, and they can happen at different levels within DOJ. It should not be assumed that all attempts at political interference based on policy choices are legal. If the President orders the Attorney General not to investigate or prosecute crimes against gays, that is presumably a policy choice, albeit an improper and illegal one. On the other hand, President Reagan was entirely within his rights to change DOJ policies and positions on the use of quotas in DOJ civil rights litigation when he became President, although in doing so he infuriated career DOJ civil-rights attorneys. Reagan ran on an anti-quota platform and he was entitled to run DOJ in accordance with this policy choice.
Policy choices and politics are an inevitable part of the DOJ. Determining when politics crosses the line is not always as easy as it seems. What should the Attorney General do when the President persists in ordering him to follow a policy that the Attorney General wholeheartedly disagrees with? If it is important enough to the AG, he should have the guts to quit.
Attorney General Michael Mukasey on Monday announced the appointment of Nora Dannehy, US Attorney for Connecticut, as special prosecutor to investigate the firings of nine US Attorneys in 2006. The announcement came as the DOJ’s Inspector General and its Office of Professional Responsibility released its report on its investigation into the firings. The report called the firing process “fundamentally flawed” and was highly critical of former AG Alberto Gonzales and former Deputy AG Paul McNulty for allegedly abdicating their responsibilities and allowing Gonzales’ former chief of staff Kyle Sampson to oversee the process. Gonzales was also faulted for his “extraordinary lack of recollection about the entire removal process.” The investigators were unable to determine if any indictments were warranted because of the refusal of Karl Rove, Harriet Miers, former DOJ official Monica Goodling and others to cooperate and the White House’s refusal to turn over requested documents.
Unlike the IG and OPR, Dannehy has prosecutorial powers and can compel witnesses from outside the DOJ to appear. Will she empanel a grand jury? It remains to be seen, but she appears to have the confidence of Mukasey, who said “the Justice Department has an obligation to the American people to pursue this case wherever the facts and the law require.” (NYT, WaPo)
Scott Horton at Harper’s interviews former USA David Iglesias about the DOJ scandal and what happened in New Mexico when he was pressured to bring voter fraud prosecutions he believed he couldn’t win. It’s worth noting that Iglesias does not include the case of Paul Minor when discussing possible politically motivated prosecutions. He brings up the cases of Don Siegelman, Cyril Wecht and Wisconsin employee Georgia Thompson, but says, “I am not aware of even the allegation of a ‘Faustian bargain’ with the remaining 81 US Attorneys.”
NPR reports that Deputy Special Counsel James Byrne, the number two man in the US Office of Special Counsel behind controversial Special Counsel Scott Bloch, announced his resignation on Thursday. The resignation was said to be “in protest over the way the office has been run” under Bloch, who is currently under federal investigation. Our earlier Bloch coverage: 1 2 3.
CNN.com reports here on Karl Rove’s refusal to appear before the House Judiciary Committee in response to a subpoena. The subpoena was issued in connection with the Committee’s investigation of alleged political firings and prosecutions in the Department of Justice. The striking thing about this latest episode of Bush Administration arrogance is not that Rove is claiming executive privilege; it is that Rove refused to even appear before the House Juiciary Committee. Under law, when a witness claims a privilege not to testify before a judicial or legislative body he still, unless excused by the entity issuing the subpoena or a court of law, must appear and invoke whatever privilege he is claiming on a question by question basis. Rove and his attorney Robert Luskin have rejected this approach. The only question left is whether Judiciary Committee Chairman John Conyers and the Democratic majority will have the guts to hold Rove in contempt. Don’t hold your breath.
A subpoena issued last Friday by the House Judiciary Committee to AG Michael Mukasey for a number of previously requested documents includes a demand for “complete and unredacted versions” of all documents relating to the prosecutions of former Allegheny County Coroner Cyril Wecht and former Alabama Governor Don Siegelman. See paragraphs 13-21 of the subpoena. The deadline is July 7; don’t hold your breath.
Former DOJ civil rights division head Bradley Schlozman is apparently the subject of the first grand jury referral in the investigation arising from the 2006 US Attorneys scandal. The referral of Schlozman, who also served for a year as interim USA for the Western District of Missouri after the firing of Todd Graves, is said to involve possible perjury, and that may stem from his 2007 testimony before the Senate Judiciary Committee which sparked some outrage over his admittedly partisan tactics. The ongoing investigation of the scandal is being handled by the OPR and the OIG (WSJ, WaPo). Scott Horton at Harper’s offers perspective here.
In a letter sent on Monday to Karl Rove’s attorney, US Rep. John Conyers (D-Mich.) made it clear that Rove’s anticipated July 10 testimony before the House Judiciary Committee cannot be limited to questions about the prosecution of former Alabama Governor Don Siegelman. Conyers’ letter states that “the Siegelman matter, other selective prosecution matters, and the U.S. Attorney firings are clearly related as part of the concerns regarding politicization of the Justice Department under this Administration that the Committee has been investigating.” The letter was also signed by Rep. Linda Sanchez (D-Calif.), chair of the administrative law subcommittee (h/t White Collar Crime Prof Blog).
US Office of Special Counsel head Scott Bloch, whose office and home were raided on Tuesday by the FBI, ordered his agency’s own task force to stop an investigation it had begun into the prosecution of former Alabama Governor Don Siegelman. The task force was formed at the agency last year to pursue political investigations in Washington, including whether the White House played politics in firing nine US Attorneys and whether the White House improperly sponsored political briefings at federal agencies. The previously undisclosed investigation came to light in a memo (.pdf) written in January by the four task force attorneys and their three senior advsors and obtained last week by the nonprofit Project on Government Oversight. The memo states that in September and into October 2007, the task force worked to obtain publicly available evidence about the allegations, including the sworn statement and testimony before Congress of former Alabama Republican Party operative Jill Simpson, and had created an investigation plan to include information to be requested from the DOJ. But on October 11, Bloch ordered the investigation closed immediately because he did not authorize it. On October 15, “after concerns are expressed that OSC simply cannot close a file without conducting an investigation,” the task force was directed “to not further investigate this case and to wait for further instructions from the Special Counsel.” As of the January 18 memo, the task force was still requesting authorization to continue.
The AP/Birmingham News story quotes Siegelman: “The question is who told them to shut it down. Why would you start an investigation and let it proceed and then shut it down? The logical conclusion is that somebody intervened and told them to shut down the investigation.” The WaPo story here also discusses other investigations covered in the memo.
FBI agents today executed search warrants at the Office of Special Counsel in Washington, shutting down the office’s email service and seizing computers and documents. Scott Bloch, who heads the Office, is apparently the target of the raid. Bloch’s suburban Virginia home was also raided.
The independent agency has the responsibility of enforcing protection of federal civil service employees from politicization. Bloch has been under investigation since 2005 in connection with employees’ claims that he retaliated against them after it was leaked that he refused to investigate whistleblower cases which claimed sexual orientation-based discrimination. He is also under investigation for obstruction of justice in connection with hiring of an outside contractor to scrub his computer in December 2006. At the same time, his office has been investigating the firings of eight US Attorneys and he has complained to AG Michael Mukasey that the DOJ is impeding his office’s investigation. WSJ, AP, NPR.
John Torkelsen of Princeton, New Jersey, a former expert witness in numerous class action securities cases for Milberg Weiss and other firms, has agreed to plead guilty to a one count criminal information charging him with perjury, according to a plea agreement filed on Thursday in US District Court in Philadelphia. Torkelsen offered expert witness testimony on plaintiff class damages and the value of settlements. According to the DOJ press release and the criminal information, the firms who hired Torkelsen, including one identified as “the New York Law Firm”, represented to various federal courts that he was an independent expert, which should have precluded them from paying him on a contingency basis; however, the firms allegedly entered into secret arrangements to pay him contingency fees. According to DOJ, the law firms submitted reimbursement requests to courts for contingent fees that Torkelsen had already been paid, and when he had to write off expenses for cases they lost, he submitted fraudulent bills on other cases for work he did not perform, which were then submitted to the courts by the firms. The one perjury count referenced in the guilty plea involved a 1999 case in San Jose, California, in which Torkelsen allegedly attested to a “non-contingent engagement by plaintiff’s counsel” when he was actually paid, according to the criminal information, by “the New York Law firm” on a contingent basis. Lawfuel has the DOJ press release here. No sentencing date has been announced. The DOJ press release was posted on the site of the U.S. Attorney’s Office for the Central District of California, which is prosecuting the Milberg Weiss case. Milberg Weiss’ principal office was in New York during the time periods covered in the information. In the press release, the U.S. Attorney for the Central District of California thanked the U.S. Attorney for the Eastern District of Pennsylvania for his assistance. The plea also disposed of tax-related issues in the Eastern District of Pennsylvania.
Torkelsen is currently serving a 70 month prison sentence for stealing SBA funds in an unrelated case. His ex-wife Pamela was also indicted in that case and became a cooperating witness, not only against her ex-husband but against Milberg Weiss. A 2006 Law.com story here provides some interesting background.
US Office of Special Counsel head Scott Bloch last week sent a letter to Attorney General Michael Mukasey complaining that the DOJ is impeding his office’s investigation into the firings of eight US Attorneys. The independent agency headed by Bloch has the responsibility of enforcing protection of federal civil service employees from politicization. Bloch claims that he has repeatedly been refused access to documents and other evidence and that DOJ officials want him to delay his investigation until their own internal investigation is finished — which Bloch said could push his time frame to the end of the administration “when there is little hope of any corrective measures or discipline possible.” Richard Schmitt and Tom Hamburger’s LA Times story is here; AP here.