[Senate Hearing 112-943]
[From the U.S. Government Publishing Office]
S. Hrg. 112-943
HEARING ON THE SPECIAL COUNSEL'S REPORT
ON THE PROSECUTION OF SENATOR TED STEVENS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MARCH 28, 2012
__________
Serial No. J-112-69
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
CHUCK SCHUMER, New York ORRIN G. HATCH, Utah
DICK DURBIN, Illinois JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
MARCH 28, 2012, 10:13 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement........................................... 27
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 25
WITNESS
Witness List..................................................... 23
Schuelke, III, Henry F., of Janis, Schuelke and Wechsler,
Washington, DC................................................. 6
Prepared report not printed due to voluminous nature,
previously printed by an agency of the Federal Government,
or other criteria determined by the Committee: http://
legaltimes.typepad.com/files/stevens_report .pdf........... 24
QUESTIONS
Questions submitted to Henry F. Schuelke, III, by:
Senator Grassley............................................. 30
Senator Hatch................................................ 36
Senator Lee.................................................. 37
ANSWERS
Responses of Henry F. Schuelke, III, to questions submitted by:
Senator Grassley............................................. 38
Senator Hatch................................................ 61
Senator Lee.................................................. 62
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska,
statement...................................................... 65
National Association of Assistant United States Attorneys
(NAAUSA), John E Nordin, II, President, statement.............. 117
National Association of Criminal Defense Lawyers (NACDL), Lisa
Monet Wayne, President, letter to Chairman Patrick J. Leahy, a
U.S. Senator from the State of Vermont, and Ranking Member
Chuck Grassley, a U.S. Senator from the State of Iowa, March
27, 2012....................................................... 120
Schuelke, III, Henry F., of Janis, Schuelke and Wechsler, letter
to Chairman Patrick J. Leahy, a U.S. Senator from the State of
Vermont, March 29, 2012........................................ 68
Wainstein, Kenneth L., O'Melveny and Myers LLP, letter to Hon.
Eric H. Holder, Jr., U.S. Attorney General, March 15, 2012..... 69
United States Department of Justice, Washington, DC, statement... 109
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria determined by the Committee, list............... 124
Bottini, Joseph W.:
http://lawprofessors.typepad.com/files/submission-of-joseph-w.-
bottini .pdf................................................... 124
Goeke, James A.:
http://lawprofessors.typepad.com/files/submission-of-james-a.-
goeke.pdf...................................................... 124
Marsh, Nicholas A.:
http://lawprofessors.typepad.com/files/submission-on-behalf-of-
nicholas-a.-
marsh.pdf.................................................... 124
Morris, Brenda K.:
http://lawprofessors.typepad.com/files/submission-of-brenda-k.-
morris.pdf..................................................... 124
Sullivan, Edward P.:
http://lawprofessors.typepad.com/files/submission-of-edward-p.-
sullivan.pdf................................................. 124
Welch, III, William M.:
http://lawprofessors.typepad.com/files/submission-of-william-
m.-welch-
iii.pdf...................................................... 124
HEARING ON THE SPECIAL COUNSEL'S REPORT ON THE PROSECUTION OF SENATOR
TED STEVENS
----------
WEDNESDAY, MARCH 28, 2012,
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:13 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Durbin, Whitehouse,
Klobuchar, Franken, Grassley, and Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Good morning. I am glad to see Senator
Feinstein here and Senator Cornyn, as well as Senator Grassley
and myself. As you probably know, we have a number of hearings
going on around the Capitol involving Members of this
Committee, but this is an area, Mr. Schuelke, that we have had
a great deal of interest in, as you can imagine. Senators of
both parties have talked to me about this.
I have said many times and in a lot of different contexts
that our criminal justice system is the envy of the world. Our
constitutional framework provides that all individuals are
guaranteed the right to fair treatment and a fair trial. But in
order for our criminal justice system to work, the courts must
ensure adherence to the rule of law. Defendants have to be
afforded vigorous and competent counsel. But I feel--and I
think Senator Cornyn, who is a former prosecutor, also would
agree--prosecutors bear a very special responsibility in the
system. They wield so much power when it comes to charging
decisions--that is, not only to bring a charge but also
determining when to withhold a charge--plea bargaining, and
trial. Prosecutors have to uphold the law. They have to adhere
to the highest ethical standards. They have to seek justice.
The integrity of our criminal justice system relies heavily on
prosecutors, and the fact that they want to make sure all
parties--the State, the defendant, the witnesses, victims,
whatever else--have to be treated fairly.
Now, much of the country is focused on the killing last
month of Trayvon Martin in Florida. This is a matter in which
the police decided not to bring charges. The local prosecutor
has since recused himself while a special State prosecutor
reevaluates the case. Last week, the Civil Rights Division of
the U.S. Department of Justice announced that it had begun an
investigation into this matter. I share the President's
heartfelt feelings and sense that there needs to be a thorough
investigation that gets to the truth, which is what the
American people want--the truth.
Last week, I chaired a Judiciary Committee hearing that
focused on one pivotal component that supports the integrity of
our criminal justice system--the importance of collecting and
retaining critical evidence like DNA that can be used both to
convict the guilty but exonerate the innocent. One of the
witnesses at that hearing was the outstanding District Attorney
in Dallas, Craig Watkins, who has established a team of
prosecutors dedicated to reevaluating prior cases to make sure
they were handled fairly. We heard about the extraordinary work
that he and his Criminal Justice Integrity Unit are doing and
the works of the judges in Dallas. It is an example and model
of how prosecutors, judges, and defense attorneys can work
together to ensure that all criminal defendants receive fair
trials.
[The prepared statement of Chairman Patrick J. Leahy
appears as a submission for the record.]
Now, what is going to happen today, we are going to talk
about what went wrong--and I emphasize ``what went wrong''--in
the trial of the late Senator Ted Stevens. We are going to hear
testimony from Henry Schuelke--I understand you usually go by
``Hank.'' Is that correct?
Mr. Schuelke. Yes.
Chairman Leahy. He is the Special Counsel appointed by
Judge Emmett Sullivan to investigate allegations that the
Federal prosecutors in the Stevens case engaged in intentional
prosecutorial misconduct by not sharing critical exculpatory
evidence with the defense. Now, in fairness, I would note that
Mr. Schuelke's report is accompanied by lengthy rebuttal
submissions on behalf of those he investigated, which
challenge, in particular, the evidence of intentional
misconduct.
Now, this is a prosecution that took place before the
election of President Obama and before his appointment of
Attorney General Holder. In fact, it was Attorney General
Holder who decided, based upon his own review of the matter, to
seek to dismiss the indictment and withdrew the case after the
jury's guilty verdict. The Justice Department has also taken
recent steps to improve its training of prosecutors and has a
senior official dedicated to this purpose. The Attorney General
has sought a thorough internal investigation of what happened
in the Stevens case started by the Office of Professional
Responsibility. I have talked to the Attorney General about
that report. He hopes to make the report public. I intend to
have this Committee review that report.
This hearing today is part of our important oversight
responsibility. Prosecutorial misconduct cannot be tolerated. I
would not tolerate it when I was a prosecutor. It should not be
tolerated within our Federal system under any circumstances at
all. What happened in the Stevens case should not happen again,
and that should be whether the defendant is prominent or an
indigent defendant. They should all be treated the same.
Significant evidence was not disclosed to the defense. Critical
mistakes were made throughout the course of the trial that
denied Senator Stevens a fair opportunity to defend himself.
The sloppiness, mistakes, and poor decisions in connection with
the Stevens case disturbed the judge hearing the case. They
also disturb me. And I might say that it disturbs an awful lot
of the Senators on both sides of the aisle. This is not a
partisan issue. The Justice Department needs to ensure that
such a situation is never repeated.
Day in and day out, prosecutors across the Nation work
tirelessly to seek justice and protect our communities. They do
it at the highest standards possible. I speak often of my time
as a prosecutor in Vermont because I am proud of the dedicated
public servants--the prosecutors and law enforcement officers--
with whom I had the privilege to work. But in order for our
justice system to work, good prosecutors know they have to
adhere without fail to the directive to seek justice for all
parties, the Government and the defendants, not just
convictions.
Senator Grassley, did you want to say something? And then
we will start with our witness.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Yes. Well, obviously, you deserve a big
thank you for holding today's hearing because this is a very
troubling matter that warrants more attention than it has
gotten.
In his famous speech entitled, ``The Federal Prosecutor,''
then Attorney General and later Justice Jackson said, ``The
prosecutor has more control over life, liberty, and reputation
than any other person in America. While the prosecutor at his
best is one of the most beneficent forces in our society, when
he acts from malice or other base motives, he is one of the
worst.'' Obviously fitting words for today's hearing as we
examine the conduct of the Justice Department prosecutors in an
effort to understand what went wrong in the prosecution of Ted
Stevens.
The Government's prosecution of Senator Stevens was
arguably the highest profile case ever brought by the Justice
Department's Washington, D.C.-based Public Integrity Section.
It had consequences far beyond the jury's guilty verdict and
impacted the Senate election in 2008.
While all criminal cases should be handled with the utmost
professionalism, cases of this level of importance and
publicity--where elections can be swayed--should be shining
examples of the best of the Justice Department. They should
have the best prosecutors and the best agents and should be the
centerpiece of America's criminal justice system.
Unfortunately, this case appears to be the opposite of the
ideal.
According to our witness today, the prosecution of Senator
Ted Stevens was ``permeated by the systemic concealment of
significant exculpatory evidence which would have independently
corroborated [his] defense and his testimony, and seriously
damaged the testimony and credibility of the Government's key
witness.'' These are shocking statements that call into
question the conduct of those involved in this prosecution and
threaten to resonate further throughout Justice.
Like so many times before, we owe much of our insight into
the Department's failures to a whistleblower. FBI Agent Chad
Joy came forward in January 2009 with allegations of misconduct
in the investigation of Senator Stevens. While there were
indicators of failures to turn over exculpatory material
before, it was Agent Joy's disclosures to the court that
instigated the investigation.
According to media reports, Agent Joy is no longer with the
FBI. And, of course, I hope it is not because he was run out of
the FBI for blowing the whistle on this prosecution gone wrong.
He deserves our thanks for having the courage to speak up.
To its credit, the Justice Department ultimately moved to
dismiss with prejudice the case against Senator Stevens. To
Judge Sullivan's credit, he did not ignore the whistleblower.
He held the prosecutors in contempt of court for the failures
to turn over exculpatory evidence. He then appointed an
independent Special Counsel to investigate and prosecute
criminal contempt proceedings, if appropriate, against the
Justice Department lawyers involved.
Mr. Schuelke's report was recently released, on March 15th,
and Attorney General Holder has publicly stated the report has
``disturbing'' findings. I think that is an understatement.
Reading through this report is like reading though a case study
in poor management. The case was riddled with problems right
from the start when DOJ sought an expedited trial date. This
decision, which is not fully explained and something I want to
know more about, helped put the case on a collision course with
failure.
Why would the Department ask for an expedited trial date
when the review for Brady material had just started and was far
from complete? From the report details, the Brady disclosure
problems appear to stem from an expedited timeline, inadequate
staffing, a lack of a defined chain of command for making
decisions, and poor supervision.
Two major disclosure problems were not revealed until after
the conclusion of the trial: exculpatory information from one
of the prosecution's witnesses and the withholding of
impeachment material of the prosecution's star witness, Bill
Allen. The impeachment evidence is particularly troubling
because it involves the witness' effort to cover up a
relationship with a 15-year-old prostitute. It also raises
questions because the Justice Department later advised State
and local prosecutors not to pursue child sexual exploitation
charges against Allen and then dropped any Federal charges.
This has led to a second investigation at the Department's
Office of Professional responsibility as to why that
prosecution was declined.
In addition to the failures to disclose exculpatory
material, the case also suffered from a series of questionable
decisions from the management at Main Justice. For example,
prosecutors claim that conflicting involvement between the
Public Integrity Section and the leadership of the Criminal
Division created an unclear chain of command. They also claim
that conflicts in personalities developed as a result of
staffing decisions, decided by senior leadership in D.C.
Despite these supervisory failures, there is no
recommendation in the report related to the management of the
case. I am particularly interested in this aspect because
management failures such as this are sanctionable conduct by
OPR.
It will be interesting to see how this report compares to
the final product issued by OPR. OPR's report should include
some review of the management of this case in addition to the
disclosure failures. The Attorney General should ensure that a
full, unredacted version of that OPR report is provided to
Congress.
At an oversight hearing in November last year, when Senator
Hatch asked for a copy of the final OPE report, Holder stated,
``That is up to the people at OPR. What I have indicated was
that I want to share as much of that as we possibly can, given
the very public nature of that matter, and the very public
decision that I made to dismiss the case.''
Despite the Attorney General's purported desire to make
this information public, his statement that it is ``up to the
people at OPR'' leads me to believe we are not likely to ever
see that report.
The Justice Department has routinely blocked the release of
OPR investigations, citing privacy laws and employee rights of
the attorneys and agents guilty of misconduct. The Attorney
General ultimately oversees OPR, and if he truly wants that
information made public, he should order it released upon the
conclusion of the investigation.
In the event he does not, the Privacy Act has an exemption
for Congress, and so, Mr. Chairman, even under the Department's
tortured reading of the plain text of that statute, I hope as
Chairman you will be able to obtain the OPR report in an
unredacted form, and I will be happy to work with you on that
issue.
A lot of things went wrong in the prosecution of Senator
Stevens, and despite this strongly worded report that we are
discussing here today, it seems nobody has been held
accountable at the Justice Department. A criminal defendant's
constitutional right to a fair trial, regardless of who he is,
is fundamental to our criminal justice system. Yet when those
rights were intentionally violated by attorneys at the Justice
Department, it seems no one was held accountable. I find this
fact even more disturbing than the findings of this report, and
we have an obligation to hold the Justice Department
accountable for what went wrong here and prevent it from
happening again in the future.
Thank you.
Chairman Leahy. Well, thank you. And as I noted, we will
take it one step at a time. The Attorney General deserves
credit for having the prosecution dismissed, and he deserves
credit for having the OPR report, and he has told me that we
will be seeing it. So let us take it one step at a time.
Today we have Hank Schuelke, who was appointed in April
2009 by U.S. District Judge Emmett Sullivan as Special Counsel
to investigate allegations of prosecutorial misconduct in the
prosecution of U.S. Senator Ted Stevens. Mr. Schuelke filed his
report with the court November 14, 2011. By court order, it was
made publicly available 2 weeks ago, on March 15th, accompanied
by the submission of the six prosecutors who were the subjects
of his investigation.
Mr. Schuelke has worked in private practice in Washington,
D.C., since 1979 when he started his own law firm. Before that
he served for 4 years in the Army's Judge Advocate General's
Corps, 3 years as a military judge, 7 years as Assistant U.S.
Attorney for the District of Columbia, 3 years as Executive
Assistant U.S. Attorney.
Mr. Schuelke, please go ahead, sir.
STATEMENT OF HENRY F. SCHUELKE, III, OF JANIS, SCHUELKE AND
WECHSLER, WASHINGTON, DC
Mr. Schuelke. Thank you, sir. Chairman Leahy, Senator
Grassley, Senator Feinstein, Senator Cornyn, good morning.
I appear this morning at your invitation to address
whatever questions you might have concerning our report to
Judge Sullivan on the subject of our investigation conducted
pursuant to Judge Sullivan's order of April 7, 2009.
We were ordered to investigate and to prosecute such
criminal contempt proceedings as may be appropriate against
William Welch, Brenda Morris, Nicholas Marsh, Edward Sullivan,
Joseph Bottini, and James Goeke, the Department of Justice
attorneys responsible for the prosecution of United States v.
Senator Theodore F. Stevens in the United States District Court
for the District of Columbia.
I come before you this morning not as an advocate for any
position but, rather, to respond to your questions. I have
submitted to the Committee a copy of our report, which, as
Senator Leahy has indicated, was filed on the public docket in
the U.S. District Court on March 15th.
I should like to note that I was assisted throughout our
investigation by my colleague William B. Shields and note as
well that our work would not have been possible without the
complete cooperation of the Department of Justice at the
highest levels of the Department and by the Department's Office
of Professional Responsibility.
With that, I will be pleased to answer your questions.
[The prepared report of Henry F. Schuelke, III, is listed
as a website link in the submissions for the record.]
Chairman Leahy. Well, thank you very much, Mr. Schuelke. We
have been joined by another former prosecutor, Senator
Klobuchar.
The Supreme Court--I mentioned Brady earlier, and that
case, Brady v. Maryland, something every prosecutor learns that
they have a clear constitutional duty to disclose exculpatory
evidence to a defendant prior to trial. It is a constitutional
duty. It is also common sense. If prosecutors fail to disclose
exculpatory evidence, whether intentionally or not, the
integrity of the whole criminal justice system in my belief is
diminished. You also end up convicting or have the risk of
convicting innocent people.
I mention this because in your report you found that
information withheld from the defense was, and I quote you,
``quintessential Brady information.'' Now, tell us what you
mean by that, and especially how would the trial have been
different if the prosecutors had disclosed this information?
Mr. Schuelke. I think, Senator Leahy, that I first should
describe, at least briefly, the allegations made in the
indictment against Senator Stevens and the essence of his
defense. Senator Stevens and his wife, Catherine, in addition
to their home here in Washington, owned a small cabin in the
community of Girdwood, Alaska. It was a rustic cabin, which was
quite agreeable to Senator Stevens, who liked to go fishing
outside of Girdwood, sit on the porch of an evening, put his
feet up, and perhaps smoke a cigar. Not so Mrs. Stevens or
their children or their grandchildren, who found the cabin to
be in need of improvement.
And so in 1999, Senator Stevens resolved that he would do
some kind of a renovation to the cabin, which he jokingly
called ``The Chalet.'' He was a friend of a gentleman whose
name is Bill Allen, a self-made entrepreneur who, by 1999, had
become quite wealthy, and he was the CEO of an oil field
services and construction company. He was a fishing buddy from
time to time of Senator Stevens as well. He was conversant with
the construction industry to some degree, and he certainly knew
what was available in and about Anchorage, Alaska, in terms of
contractors.
Senator Stevens and he met in 1999 in the company of a
gentleman whose name was Rocky Williams, who was a VECO
employee. VECO was the name of Bill Allen's corporation.
Senator Stevens told him that he wanted to do a renovation to
the so-called chalet. He wanted Allen's assistance in
identifying a remodeling contractor who might do the bulk of
the work, and he was interested in having Bill Allen, through a
couple of his employees, assist as might be appropriate in the
renovation of the chalet.
Chairman Leahy. Mr. Schuelke, I do not want to cut in, but
I am trying to keep each of the Senators to a certain amount of
time, and I do want you to get to the point of my basic
question: How would the trial have been different if the
exculpatory information had been released?
Mr. Schuelke. All right. One principal example, Senator, I
told you who Rocky Williams was. Rocky Williams, in effect,
served as the onsite foreman of the job. The job was performed
for the most part by a firm called Christianson Builders. The
Stevenses mortgaged their home in Washington for $100,000,
liquidated a trust for another $10,000, and spent--for another
$50,000, rather, and spent an additional $10,000 from savings.
So they paid Christianson Builders and a couple of its
subcontractors $160,000 for the cabin which was appraised to be
worth, after the renovations, $152,000.
Senator Stevens and his wife, Catherine Stevens, testified
during Senator Stevens' trial that it was their understanding
that whatever work Allen's company had provided on the house
had been included in the Christianson Builders' invoices, which
they paid in full. That testimony of both Senator Stevens and
Mrs. Stevens was ridiculed by the prosecutors both in cross-
examination of each of them and in their summations.
Rocky Williams was interviewed by two of the prosecutors,
Messrs. Bottini and Goeke, in the company of FBI Agent Chad
Joy, 1 month before the trial commenced here in Washington. On
the morning that he was interviewed, another of the
prosecutors, Edward Sullivan, sent an e-mail to the group of
prosecutors which said, ``We got some additional documents from
Senator Stevens' defense counsel. It is apparent from those
documents that Senator Stevens and Mrs. Stevens will testify
that they thought that all of the VECO charges were included in
the Christianson Builders' bills, and if Catherine Stevens does
not testify, they will try to squeeze that out of Rocky on
cross-examination.''
The very day that that e-mail was circulated, Messrs.
Bottini and Goeke interviewed Rocky. They did not have to
squeeze that out of Rocky. Rocky told them that, ``Well, back
in 1999 I met with Senator Stevens and with Bill Allen. Senator
Stevens wanted us to arrange to find a contractor. He wanted to
pay for everything, and he wanted to make sure that this was
done right. And so it was my understanding as the foreman on
the job that my time as a VECO employee, Dave Anderson's time
as another VECO employee, and anybody else who worked on the
job from VECO would be included in the Christianson Builders'
invoices. And so every month,'' he told them, ``I went and got
the Christianson Builders' invoice. I checked it to make sure
it was accurate based on my observations of what their people
did. Then I took it to the front office at VECO to give to Bill
Allen, or his secretary if he was not there, so that my time,
that of Dave Anderson, and other VECO employees could be added
to the Christianson Builders' bills before they were sent to
the Stevenses for payment.''
That was Rocky Williams' account. That was his
understanding. His understanding was altogether consistent with
that of Senator and Mrs. Stevens.
Had Rocky Williams testified as a Government witness, as
the plan was originally, that is what he would have testified
to.
Chairman Leahy. And do you believe that would have made a
difference in the trial?
Mr. Schuelke. First of all, I believe that that anticipated
testimony from Rocky Williams directly corroborated Senator
Stevens' defense. I believe that it may well have affected the
outcome of the trial.
Chairman Leahy. And so this is a fairly serious--well, it
is a serious allegation. Did you provide the report to the
subjects of your investigation before it was finalized in order
to allow them to do any rebuttal on that?
Mr. Schuelke. Judge Sullivan in November of last year
ordered that our report be made available to the subjects of
our investigation, and it was.
Chairman Leahy. And did----
Mr. Schuelke. In his order--I beg your pardon, Senator.
Chairman Leahy. Go ahead.
Mr. Schuelke. In his order in November of last year, he
expressly provided the opportunity for each of them to submit
comments and objections.
Chairman Leahy. And did they?
Mr. Schuelke. A couple did. A couple did not.
Subsequently----
Chairman Leahy. Did that in any way change your comments,
in any way change your report?
Mr. Schuelke. It did not.
Chairman Leahy. Thank you.
Mr. Schuelke. But I should add, subsequently, in February
of this year, when Judge Sullivan ordered that the report be
made public on March 15th, he provided the subjects yet another
opportunity to submit comments and objections, which each of
them did, and he ordered that I append those comments to our
report, which I did.
Chairman Leahy. Okay. It was not given to them, though,
before your report first went to the judge.
Mr. Schuelke. That is correct.
Chairman Leahy. And I understand that the attorneys for Mr.
Bottini, the Assistant U.S. Attorney handling the case in
Alaska, said that he pressed his supervisor on seven separate
occasions to voluntarily disclose impeachment information
regarding the possible subordination of perjury by Bill Allen,
who was a key Government witness, you said, and the other line
prosecutor in Alaska, Mr. Goeke, he claims they moved to
disclosed that. But your report says that Mr. Bottini and Mr.
Goeke intentionally withheld this information and did not try
to get it disclosed. So which is it? Did they attempt to get
their supervisors to disclose information by Bill Allen? Or are
they not being truthful when they say that on these numerous
occasions they asked to have it?
Mr. Schuelke. As our report indicates in great, some would
say excruciating, detail, Messrs. Bottini and Goeke on a number
of occasions proposed, indeed urged, the rest of the
prosecution team that some disclosure be made about evidence
which was in their possession indicating that their star
witness, Bill Allen, had suborned a false statement from a
young woman who was a crack-addicted prostitute with whom she
claimed to have had sex when she was 15 years old.
Chairman Leahy. And this exculpatory information was not
made available?
Mr. Schuelke. It was not.
Chairman Leahy. Thank you.
Senator Grassley.
Senator Grassley. Your report states, ``Were there a clear,
specific, and unequivocal order of the court which commanded
the disclosure of this information, we are satisfied that a
criminal contempt prosecution would lie.'' Ultimately your
report concluded that no such order existed for Brady or Giglio
obligations. However, your report states that at a September
10, 2008, motion hearing, the court ``admonished'' the
Government to follow the law, meaning Brady, but that no order
was issued that day. As a result, despite the intentional and
willful efforts to conceal this material, the prosecutors could
not be criminally prosecuted.
Question: The fact that Judge Sullivan did not issue an
order on September the 10th is arguably the seminal point of
this matter because it prevents the prosecutors from meeting
the elements of a prosecution for criminal intent. Had the
court issued a formal order on September the 10th instructing
DOJ prosecutors to comply with Brady and Giglio, would you have
recommended criminal contempt against the prosecutors?
Mr. Schuelke. I would.
Senator Grassley. Notwithstanding this technical violation,
do you believe they should face criminal penalties, including
jail time?
Mr. Schuelke. That is not a judgment, Senator Grassley, for
me to make.
Senator Grassley. In the course of your investigation, were
you able to determine what the intent of the prosecutors was
during the September 10th motion hearing? Did they--well, that
is the question, but let me continue. Let me start over again.
In the course of your investigation, were you able to
determine what the intent of the prosecutors was during the
September 10th motion hearing? Did they intend to keep Judge
Sullivan from issuing an order so that they would not be
subject to possible criminal contempt charges later?
Mr. Schuelke. They did not. As a matter of fact, at one
point during that colloquy on September the 10th, Judge
Sullivan said, ``Well, so what should I do, Madam
Prosecutor?''--addressing Brenda Morris. ``Should I issue an
order that you produce any and all Brady and Giglio material?''
And the response was: ``If that is what the court wishes to do,
the court may do so.''
The court, however, concluded that colloquy on September
the 10th by saying, ``I am not going to issue an order. I will
accept the professions of good faith on the part of the
Government. We all know the law. They tell me they know the
law. There is no need for me to issue an order compelling them
to comply with the law. Hints to the wise should be
sufficient.''
Senator Grassley. As a result of this case and going
forward, should all district judges issue formal orders to DOJ
prosecutors instructing them to comply with Brady and Giglio in
an effort to ensure compliance and secure the possibility of
criminal contempt?
Mr. Schuelke. Well, Senator Grassley, that is one way to
address the issue. I am not satisfied it is the best way to
address the issue. You know, I say in the report, during the
discussion of whether or not Judge Sullivan had issued an
order, that no district judge ought to be required to order
prosecutors to comply with their constitutional obligations,
let alone be required to issue an order so specific that it
might support a criminal contempt prosecution in anticipation
of its willful violation. That does not make any sense to me.
It is true that around the country, at last count of which
I am aware, some 38 of the 94 districts have standing local
rules which order the production of Brady and Giglio material
pre-trial as a part of the overall discovery regimen. That is
one way to address it. There are judges individually who have
standing orders in every criminal case to the same effect. And,
indeed----
Senator Grassley. I think you have answered my question.
Let me go on to another question.
Mr. Schuelke. Yes, sir.
Senator Grassley. The Stevens case was prosecuted by two
attorneys--U.S. Attorney's Office Alaska as well as two
attorneys Public Integrity Section, Main Justice. In fact, the
U.S. Attorney Office was recused from the case because of
conflicts of interest. Thus, the Public Integrity Unit in Main
Justice was in charge of the case with the chief of the section
and his Principal Deputy significantly involved. They were
involved in the drafting of the indictment. They prepared memos
for the leadership of the Criminal Division, and they briefed
the Division's leadership on the progress of the case. Numerous
e-mails reinforce the fact that Public Integrity viewed
themselves as the final authorities. Indeed, shortly before the
case was to be indicted, the front office of Criminal Division
at Main Justice made the Principal Deputy, Public Integrity,
the lead trial attorney. Nevertheless, the report seems to
minimize the responsibility of Public Integrity for the failure
of the case. The section chief claims, and the report seems to
accept, that he was cut out of the supervisory chain of
command, and the deputy chief claims that she withdrew from
supervision over the prosecution team because she did not want
to cause dissension among the team.
Question: Doesn't the chief of the section that was in
charge of the case bear responsibility for failures? This was
perhaps one of the most important cases Public Integrity has
ever prosecuted, that of a sitting Senator. Why does the report
seem to avoid a finding of fault against the section chief of
Public Integrity ultimately responsible for all cases in the
section? Shouldn't the buck stop with the boss at the top? If
not, why not?
Mr. Schuelke. First of all, Senator Grassley, it is not so
that the report fails to address this issue. The report
catalogs in great detail the history of the management or
mismanagement of the case. The report chronicles the fact that
both Mr. Welch, then the chief of the Public Integrity Section,
and Brenda Morris, his deputy chief, abdicated supervisory
responsibility for assorted reasons, some of which you,
Senator, just recited. So the report did not shirk from
addressing the failures of management.
Recall, Senator, that the object of our investigation, as
chronicled in our report, was to determine whether or not
criminal contempt proceedings were appropriate with respect to
any of the named prosecutors. We found no evidence, apart from
this failure of management, that either Mr. Welch or Ms. Morris
willfully engaged in any misconduct in the nature of concealing
Brady or Giglio information from the defense.
Senator Grassley. This will be my last question because I
want to keep my colleagues going. The report makes the deputy
chief of Public Integrity seem hapless and overwhelmed. At
times she seemed more interested in not ruffling feathers with
the trial team than aggressively supervising the case.
As an experienced prosecutor assigned to run the case,
shouldn't she have risen above the concerns about ruffling
feathers and done the job she was tasked with? And if she was
failing, wasn't it the job of her supervisor to fix that?
Mr. Schuelke. No question.
Senator Grassley. Okay. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Feinstein.
Senator Feinstein. Well, thank you very much, Mr. Schuelke,
for your----
Mr. Schuelke. Good morning, Senator Feinstein.
Senator Feinstein [continuing]. Work in this area. Both
Senator Leahy and I have served on the Appropriations Committee
with Senator Stevens, Senator Leahy far longer than I, but I
almost 20 years. So in the course of so doing, you learn a
little bit about a person that sits on that Committee. So it is
with a kind of particular shock that we view what happened to
him, made all the more worse by his premature demise,
obviously, and the fact that he never knew the result of your
report, which is a great tragedy.
But as I understand the Department's policies regarding
Assistant United States Attorney, a DOJ attorney engages in
professional misconduct when he or she--and this is a quote--
``intentionally violates or acts in reckless disregard of an
obligation or standard imposed by law, applicable rule of
professional conduct, or Department regulation or policy.''
Do you make that finding in your report?
Mr. Schuelke. I do not address the disciplinary rule, nor
do I address the standards that the Department of Justice
applies. What I did conclude is that in several instances, two
of the surviving prosecutors engaged in intentional misconduct.
Therefore, if the Department were to come to the same
conclusion, or if they concluded that the conduct was reckless,
they would per force conclude that the lawyers engaged in
professional misconduct.
Senator Feinstein. Your report finds that the prosecution
was troubled by significant mismanagement, specifically the
lack of supervision, which you point to, of the attorneys
prosecuting the case and the compressed schedule the
prosecution was under.
Did you in any way, shape, or form consider whether the
failures to disclose evidence were due, at least in part, to
lack of time or to a misinterpretation or misunderstanding of
what these disclosure duties entailed?
Mr. Schuelke. I did, and I found and concluded that there
were a number of failures to disclose impeachment information
owing to the compressed schedule, the absence of effective
supervision, and the fact that a decision was taken to permit
FBI agents who were not schooled in Brady and Giglio to do the
Brady-Giglio review. All of those occasions, which in my
judgment were the product of the failure of management, came to
light during the trial. They caused Judge Sullivan to have
grave concerns about the credibility of the prosecution team,
but they did come to light, and the defense was able to use
that information.
Not so with respect to the three episodes about which we
concluded that there was intentional concealment of exculpatory
or impeachment information. None of those three, in my
judgment, was a product of the compressed time schedule or the
management and supervision failures.
Senator Feinstein. So what was the motivation?
Mr. Schuelke. Prosecutors, plaintiffs' attorneys, defense
attorneys for that matter--I happen to have served as all three
in the course of my career--like to win. It is what we call
``contest living.'' We go into a case believing that our case
is meritorious. We believe that our witnesses are telling us
the truth. We do not want to have to undermine our case if it
can possibly be avoided. I think that motive to win the case--
--
Senator Feinstein. No matter what.
Mr. Schuelke [continuing]. Was the principal operative
motive. I do not believe that any of the prosecutors, including
Mr. Bottini and Mr. Goeke from Alaska, harbored a personal
animus toward Senator Stevens. I do not believe that either of
them sought fame and glory and that is the reason they wanted
to win the case. That is just not in their personalities, in my
judgment. They did, however, want to win the case.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. I would just remind everybody listening
that no matter how much a prosecutor might want to win, we
still have the Brady case, and we have their responsibility to
disclose exculpatory information. A prosecutor--and I can say
this as one who was. A prosecutor has a unique position in the
system. They are not just there to win.
I understand what you are saying about wanting to win, but
they are not just there to win. They are there to make sure
that justice is done.
Senator Cornyn, speaking of prosecutors, a former Attorney
General and Justice.
Senator Cornyn. Mr. Schuelke, the Constitution, the
integrity of our adversarial system of justice, and the rules
of professional responsibility that bind members of the bar, as
these prosecutors were, all depend upon prosecutors observing
some goal above and more fundamental than just a desire to win.
Wouldn't you agree?
Mr. Schuelke. Absolutely.
Senator Cornyn. Mr. Chairman, I would ask on behalf of
Senator Murkowski--she has a statement that she would ask
unanimous consent to be put in the record, and I have one as
well that I would like to have put in the record.
Chairman Leahy. Absolutely. And I told Senator Murkowski of
course we would include anything she wanted.
[The prepared statement of Senator Murkowski appears as a
submission for the record.]
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Senator Cornyn. Mr. Schuelke, you have performed a profound
public service. Thank you for that. And I know it continues
here today. The thing that disturbs me so greatly is not that
this prosecution involved a United States Senator, because I
doubt we would be having this hearing if it involved a citizen
who was not a United States Senator. And that disturbs me
greatly because I know the resources that you and the court
have put into this investigation, and I doubt those sorts of
resources, that time and that effort, would be put into an
investigation involving similar abuses involving the
constitutional rights of other citizens accused of crimes but
whose rights were violated by the prosecutors by prosecutorial
misconduct.
Do you share those concerns?
Mr. Schuelke. To a degree. The Judge Sullivan whom I know
would have done the same thing no matter who the defendant was.
Senator Cornyn. And I appreciate that and appreciate what
Judge Sullivan has done here, particularly allowing the release
of this report unredacted. And I hope the Office of
Professional Responsibility report will be released to us in
full in unredacted form so we can get to the bottom of this.
Of course, one of the prosecutors in this case did not have
an opportunity to respond to your report. Nicholas Marsh
committed suicide, did he not?
Mr. Schuelke. He did, although his counsel was invited to
submit a response and did so as a representative of Mr. Marsh's
estate.
Senator Cornyn. The Justice Department has told us that the
Stevens case does not suggest a systemic problem with regard to
prosecutors abusing their responsibilities to divulge
exculpatory and other information required under Brady and
Giglio. How can we possibly be satisfied with that
representation? And how do we know? How does any citizen know
that the Department of Justice will not abide similar
prosecutorial misconduct in the future?
Mr. Schuelke. First of all, I do not believe on the basis
of our investigation that what happened in the Stevens case is
representative of what happens in cases brought by the
thousands across this country by the Department of Justice.
Second, as Senator Leahy indicated at the outset, it was,
of course, the Attorney General, Eric Holder, who moved that
the Stevens case be dismissed with prejudice when he learned of
a portion--a portion--of the nondisclosure which had occurred
in the case.
Eric Holder did not shirk from that responsibility. I know
Eric Holder both personally and professionally and have for
years, likewise his deputy Jim Cole; likewise the Assistant
Attorney General of the Criminal Division Lanny Breuer. They
are men of probity and integrity. And I do not believe, the
Stevens case notwithstanding, that the public should labor
under the notion that what happened in the Stevens case happens
as a matter of course.
Senator Cornyn. Well, Mr. Schuelke, I agree with you that
the Attorney General is entitled to credit for after the fact
raising this issue with the court and seeking the dismissal of
the charges. Unfortunately, the damage to Senator Stevens and
to the adversarial system of justice had already been done, and
there is nothing the Attorney General or anyone else can do to
undo it. And so I know you--well, let me just ask you, in
conclusion, since time is short here. In those instances where
the character and integrity and professional responsibility of
a prosecutor do not seem to overcome their desire to win at any
cost, is there anything that Congress can or should do or is
there any further action that you would recommend that we take
in order to make sure that abuses like this do not occur?
Because I worry that when they do sometimes occur--and I agree
with you that in the main, prosecutors are honorable people who
perform their responsibilities with integrity. But in those
instances where they do not and where they intentionally
withhold this kind of information, as you said these
prosecutors have, how do we protect the integrity of our system
of justice? How do we protect the reputation of people who are
wrongfully convicted when this information is withheld? How do
we protect our Constitution?
Mr. Schuelke. I do have a view on this subject, Senator
Cornyn. As you know, the Supreme Court of the United States as
well as the circuit courts around the country have long
articulated an appellate standard of review of Brady
violations. By that standard, the Court will not reverse a
conviction even in the presence of the concealment of
exculpatory information unless the Court is able to conclude
that that concealment was outcome determinative; that is to
say, that it was material to the conviction and was so material
to the conviction that it would leave one without confidence in
the guilty verdict.
So we have this appellate materiality standard, which makes
perfect sense to me, from the post hoc perspective of an
appellate court. Because that standard has been articulated
over the years, prosecutors take the view pre-trial that they
are only required to disclose what they believe to be material,
that is, which might ultimately have an adverse effect on the
outcome.
Judge Paul Friedman of the district court here in
Washington, in a recent, fairly publicized case called
Safavian, addressed this issue and said, no, it is not the
prerogative of the prosecutor--one of the adversaries, of
course, in this proceeding--to decide before a single witness
has been called to testify, before a jury has been empaneled,
before the judge has ruled on the admissibility of any piece of
evidence, that some exculpatory or impeachment information will
not be material. That is looking, Judge Friedman said, at the
subject through the wrong end of the telescope. He is
absolutely right about that, in my judgment. That makes perfect
sense.
So I believe the question for the Congress may be squarely
presented. Need we do something about eliminating this
materiality requirement so that prosecutors understand that in
the pre-trial setting they are required to disclose any
information which is favorable to the accused or which would
serve to impeach anticipated Government witnesses?
I know that the Department of Justice has a strong contrary
view, namely, that there should not be legislation to achieve
this objective. Rather, the Department, through the U.S.
Attorney's Manual and through guidance issued by then Deputy
Attorney General David Ogden in December 2010, largely inspired
by the Stevens case, issued guidance which directs the
prosecutors to disclose information that is impeachment or that
is exculpatory regardless of the materiality standard in most
cases, recognizing and specifically stating that what we are
saying in this policy statement is we are going to have
prosecutors go beyond the requirement of the law.
Chairman Leahy. Thank you.
I am going to include the following submissions of the
Committee in the hearing record: written testimony of the
Department of Justice; a letter from the National Association
of Criminal Defense Lawyers on Discovery Reform; a letter from
Attorney Ken Wainstein to Attorney General Holder raising
process and substantive concerns about the report of the
Special Counsel. Without objection, they will be in the record.
[The information referred to appears as submissions for the
record.]
Chairman Leahy. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
This is a pretty awful hearing, frankly. I mean, it is of
high quality and thank you for holding it and thank you for
your work, but this is some pretty awful conduct by the
prosecutors, I think, just appalling.
I just want to ask a couple questions about--and you have
just been talking about this--how to get at fixing these kinds
of problems. One thing I would like to know, first of all, do
you think that what the prosecutors did is--you know, is it
illegal? Or do you think that we need to change the law? Or do
you think what they did was already illegal?
Mr. Schuelke. I think what occurred in this case in a
number of instances was in violation of an obligation imposed
by the courts.
Senator Franken. Right, thus?
Mr. Schuelke. Interpreting the Constitution. And so using
your term broadly, I would have to say it was illegal.
Senator Franken. Okay. Let us talk about what you were
talking about in terms of Brady violations and what to do about
this.
Mr. Schuelke. Yes, sir.
Senator Franken. You are talking about maybe taking out the
``material'' part and just say anything that is exculpatory a
prosecutor would have to reveal. Is there any kind of
possibility--and I understand that the Justice Department does
not want to do that because they are afraid that it will scare
of witnesses who think that anything that they have ever done
will have to be--you know, a witness against a defendant, that
anything negative about them will be exposed in court and make
people much more reluctant to testify in court. That is one of
the fears of the Justice Department, is it not?
Mr. Schuelke. It is, and that is a legitimate concern.
Senator Franken. Okay. So instead of rewriting the law so
that the prosecutor has to reveal all exculpatory, anything
that could possibly be exculpatory, even if in their opinion it
is not material, is there any kind of process that could be set
up as a reform for this system where a prosecutor could get an
advisory opinion about--an independent advisory opinion about
evidence that presents a close call under Brady?
Mr. Schuelke. When you say ``independent,'' you mean
outside of the Department of Justice?
Senator Franken. Either outside----
Mr. Schuelke. The Department of Justice has an office, the
Professional Responsibility Advisory Office, known as PRAO,
which is there to entertain questions about the application of
the disciplinary rules of the bar to the conduct of
prosecutors. As a matter of fact----
Senator Franken. I mean, in other words, if a prosecutor
had a question about a Brady matter, is there either that board
or--I guess you cannot go to the judge?
Mr. Schuelke. You can.
Senator Franken. Can you go to the judge?
Mr. Schuelke. You can. If I had, were I again a Federal
prosecutor, and I said to myself, ``Hmm, I have got this piece
of evidence here. I am not so sure whether I have to disclose
this.'' Well, first of all, I was taught when I was a young
Assistant U.S. Attorney, if I had to think about that for more
than 10 seconds, turn it over. But if I did not, I could go to
the trial judge ex parte----
Senator Franken. You can do an ex parte meeting with----
Mr. Schuelke. Make a submission to the judge in camera,
say, ``This is what I have. I do not know whether I am
obligated to turn this over or not. There are reasons, in my
view, why perhaps I should, but there are reasons why I should
not. You, Your Honor, decide. You are the neutral magistrate.''
Senator Franken. Well, that is kind of what I meant. You
can go to the judge.
Mr. Schuelke. Yes, that is available, although, as you
might well imagine----
Senator Franken. Because, pardon me, I am not a lawyer. I
just played one in a sketch on TV.
[Laughter.]
Mr. Schuelke. And I think you did a pretty good job.
Senator Franken. Thank you. Thank you. So that kind of ex
parte meeting with a judge is cool, is fine, it is okay, it is
kosher?
Mr. Schuelke. It is.
Senator Franken. Thank you.
[Laughter.]
Mr. Schuelke. All of the above.
Senator Franken. Okay. So maybe in the law, if we are
changing the law here, there could be--and the Justice
Department has a legitimate, meaningful objection to all
exculpatory evidence, even if it does not seem material, having
to be disclosed to the defense, then perhaps there could be
some process written into the law saying if you have any
question, you have got to go to the judge, and if you did not
go to the judge on something, you have got a big problem.
Mr. Schuelke. Yes. Yes, that could be done.
Senator Franken. Okay. Thank you. I am done with my time.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman.
Mr. Schuelke, thank you.
Mr. Schuelke. Good morning, Senator.
Senator Durbin. Thank you for your testimony. Judge
Sullivan stated, and I quote, ``The prosecutorial misconduct
that permeated the proceedings in this case'' were to a degree
and extent that he had not seen in 25 years on the bench. I
assume that is why Attorney General Holder took the commendable
but rare step of seeking dismissal of the case and not
attempting to retry it. But there are some exceptional reasons
why we are meeting today.
This was a high-profile case involving a United States
Senator, one of our colleagues. That Senator had some of the
best legal talent on his defense team, experienced attorneys
from a prominent Washington firm. An extremely conscientious
judge presided over this case and took the rare step of
appointing an independent investigator, yourself, who issued a
500-page report. And there was an FBI agent in the case who
allegedly spoke out as a whistleblower and raised allegations
of misconduct by the Government's prosecutorial team.
In short, this was the furthest thing from the everyday
criminal trial world that is going on even as we meet. What is
at stake, though, the principle of law, the constitutional
principle, applies equally to cases of celebrity and notoriety
as it does to those that are commonplace by comparable
standards.
When I heard about your report and came to understand what
your conclusions were, I challenged the Department of Justice
and said, ``Now what? Now that you know this has taken place,
what can you do, what will you do to make certain that it is
less likely in the future?'' And the answer was, ``We have
learned our lesson.''
Pardon my skepticism, but I am not sure, because of what
you referred to earlier as contest living, that we will ever
avoid that inclination of attorneys in court--and I was one
many years ago--to do their darnedest to proceed to the outcome
they are looking for.
So my question to you--I have two. One relates to what
Senator Franken asked. If what happened in this case by the
prosecutors was, in fact, illegal, was it the commission of a
crime, failing to disclose what should have been disclosed in
evidence under the Brady rule?
Second, if we are really serious about avoiding this in the
future, don't we have to go further than to trust the instincts
of the Department of Justice and prosecutors across America?
Don't we have to enshrine in the law some basic protection of
the criminal defendant when it comes to this disclosure?
A bill has been introduced by one of our colleagues. I am
not sure if you are aware of it.
Mr. Schuelke. I am.
Senator Durbin. She talks about exceptions when it comes to
this disclosure relating to witness safety and national
security and the like, but really puts a standard that goes to
the case you cited--Safavian, I believe?
Mr. Schuelke. Yes, sir.
Senator Durbin. And says that we are going to basically
assume everything is material until proven otherwise or the
court notes otherwise.
So if you would address those two issues: One, if illegal,
what specific crime did these prosecutors commit? And, second,
if there is a lesson to be learned here, should this lesson be
written into the law so that the faceless criminal defendant
who may not get a Senate Judiciary Committee hearing has the
same protection?
Mr. Schuelke. First, Senator, as my report describes, had
Judge Sullivan issued a clear and unequivocal order that the
prosecutors produce all Brady and Giglio material, there would
have been a crime committed, criminal contempt with respect to
those episodes described in our report as to which we concluded
the conduct was intentional. Beyond that, there is a footnote
in our report which says that we offer no opinion as to whether
or not a prosecution for obstruction of justice might lie
because that is not within my prerogative.
As a matter of fact, the separation of powers doctrine
would preclude a lawyer investigator appointed by the court
from bringing such a charge.
Senator Durbin. I am sorry to interrupt you, but what you
are saying is, unless there is an express violation of a court
order, that you do not believe a prosecution for obstruction of
justice would lie----
Mr. Schuelke. No, that is not what I am saying, Senator.
Senator Durbin. Please clarify it.
Mr. Schuelke. In the absence of an express order, a
prosecution for criminal contempt will not lie. Whether or not
the self-same conduct violates the obstruction of justice
statutes and whether under the U.S. Attorney's Manual a
prosecution for that offense on this conduct would be
appropriate is not a decision for me to make.
Senator Durbin. I have gone beyond my time, but if you
could address the second part, whether we should seriously
consider creating a statute which specifies the protection
which you have articulated was denied Senator Stevens and
should be given to all criminal defendants under Brady.
Mr. Schuelke. I believe you should consider legislation
which eliminates, as I explained earlier, the so-called
materiality requirement. I know that Senator Murkowski's bill
does that. It does a lot of other things as well about which I
am not prepared to express a view at this moment.
The Department--I know, because I saw their statement
yesterday--has submitted to the Committee a lengthy statement
describing what they have done in the wake of the Stevens case,
which is quite impressive, in my view. They explain as well, as
I said earlier, that as a matter of policy their prosecutors
are instructed not to make distinctions based on the
materiality issue.
That policy, however, has an express disclaimer. This does
not have the force of law. It vests no rights in anyone. I
understand why that is so with respect to the policy.
My question is: If the Department believes that there
should be no pre-trial materiality standard--because that is
what they are telling their prosecutors now to do--what is the
principled reason for opposing legislation that does just that?
Chairman Leahy. Thank you very much.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
I, having been both United States Attorney and the Attorney
General for my State, tend to lean toward an open file rule. I
think that there are obvious exceptions to the open file rule,
witness safety being preeminent. Very often these are
particularly dangerous individuals who would like nothing more
than to murder witnesses. National security would be another
important consideration. Not disclosing or disrupting or
impeding an ongoing investigation would be another. And a
general protection against unwarranted invasions of
individuals' privacy would all seem to make sense and would all
seem to be subject to a reason check and balance if there were
a proceeding with the judge, ex parte where it was appropriate
in a national security/witness safety matter. And it would sort
of put the prosecution through its paces.
I think that with those protections, less is likely to go
wrong than in prosecutions that are based on a hide-the-ball
strategy, which I think is the wrong way to go about making
cases.
So I am speaking in part to you, Mr. Schuelke, but I am
speaking really through you to the Department to urge them to
take a serious look at this, not just to push back because it
is new or different, but to see what systemically can be done
about this. And there are two messages that I have. As somebody
who was in the Department and I consider myself a friend of it,
there is, I do not think, a place in the Government that I
admire more than the Department of Justice. But that does not
mean that there is not occasional room for improvement. And I
worry sometimes that, in addition not necessarily having the
rule be right, when something does go wrong, it appears that
there are times when there can be a bit of a lean, shall we
say--L-E-A-N--in favor of the Department attorneys who
violated--assuming that they did--the provision.
I just want to raise something that I have raised over and
over again with the Department and take this opportunity to
flag it yet again. This goes back to the Office of Legal
Counsel opinions on torture in which the Office of Legal
Counsel failed to cite a circuit court decision, Circuit Court
of Appeals of the United States, that looked exactly at the
type of conduct that was involved--waterboarding; described it
very clearly, and described it--I do not remember my count
right now, but 10 or 11 times in the decision--as torture. And
the OLC opinions never mention the case. They go on for pages,
they go on for dozens of pages. They never mention the case.
What concerns me about that is that when the Department
went back to look at it, the investigation concluded with a
memorandum by--I think he is retired from the Department now--
David Margolis, the Margolis memo, which said that the lawyers
at the Office of Legal Counsel were not to be held to the
standard that a regular, ordinary ham-and-egg lawyers hauling
the files under his arm into the district court is in terms of
the standard required for candor to the tribunal.
So, again, I am speaking through you, Mr. Schuelke, to the
Department, but that continues to leave a sour taste with me.
It does not make sense to me that the Department lawyers at the
Office of Legal Counsel, which is probably the highest and most
talented part of the legal profession in Government, outside of
the Supreme Court itself, should not have to meet the standard
of the day-to-day workaday trial lawyer appearing before a
judge, particularly where the process for the candor to the
tribunal standard is a pretty open one. There are checks on it.
There is the other counsel who can say, ``Your Honor, he forgot
to tell you the case on point,'' or the judge and his clerk who
look it up and come back to the lawyer and say, ``Counselor,
how could you not have told me about the case on point that
comes out of the circuit court of appeals.''
The OLC does not operate that way. It is much more
secretive, particularly when it is a classified hearing. So I
think, if anything, the standard for OLC lawyers should be
higher than the standard for a regular, workaday lawyer going
before a tribunal, not lower. And I am going to continue to
press on that Margolis memo because I think it is wrong to hold
those Department lawyers to a lower standard than workaday
lawyers outside of the Department. And I flag that because I
think it is very important that the Department make clear not
only that it gets the rules right and follows the rules, but
also that when there are violations it is clear that there is
no hesitancy to come down on people who have violated those
very important rules.
So, Mr. Chairman, that is more in the nature of a statement
than a question for Mr. Schuelke, but I wanted to make sure
that those points were clear to the Department of Justice and
my concerns about them were clear to the Department of Justice,
which I will conclude by saying again is perhaps the
organization in the U.S. Government that I am proudest of. I
think it is a wonderful organization, and I do not want to
gainsay that with these two very specific concerns.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, and we will wrap up rather
quickly here.
You concluded that line prosecutors intentionally withheld
the information. Did you give consideration to the evidence
that they sought approval to disclose impeachment evidence but
were told not to by leadership of the Public Integrity Section
of the Department of Justice?
Mr. Schuelke. I did.
Chairman Leahy. Thank you. And does the leadership of the
Public Integrity Section bear some responsibility for what
happened in the Stevens case?
Mr. Schuelke. It bears responsibility for failing its
supervisory responsibility to know all of the operative facts
before they pass on a decision.
Chairman Leahy. Okay. And what did you conclude about the
role of the Criminal Division and its then Acting Assistant
Attorney General Matthew Friedrich in terms of managing the
case, including what you suggest was the Department's failure
in your judgment to satisfy discovery obligations?
Mr. Schuelke. I think Matthew Friedrich--and I say so in
the report--quite sensibly and understandably took an interest
in this high-visibility prosecution of a senior sitting United
States Senator. It would, in my judgment, be----
Chairman Leahy. And a member of the same party as----
Mr. Schuelke. The administration.
Chairman Leahy [continuing]. The administration that was
prosecuting him.
Mr. Schuelke. Indeed. So, in my view, it would be
completely counterintuitive if the Assistant Attorney General
for the Criminal Division had not taken a serious interest in
the matter. I think, however, as we also say, that
paradoxically that sensible interest to supervise and make sure
things were done right put in place a prosecutor to serve as
lead counsel whom he thought was better equipped than the
existing team of prosecutors, contributed to the morale
problems, contributed to Brenda Morris having decided,
``Because they put me in here and created all these morale
problems, I do not want to make anybody any more unhappy, so I
am going to make myself as little as possible,'' as she put it,
``and I am just going to my job, I am going to cross-examine
witnesses, I am going to make closing arguments, and I am going
to trust what the rest of them tell me about what the state of
discovery is.''
Chairman Leahy. Well, I have great concerns about this
case, as you can probably gather. I am trying to be as
objective as I can in getting information. We will have the OPR
report, and we will go into that when it comes. I agree with
Senator Whitehouse. Some of the finest men and women that we
have in this country are those who work in the Department of
Justice and are prosecutors and others there. But this one
bothers me greatly, not the least of which I knew Ted Stevens.
In my more than 30 years of knowing him, I never knew him to
break his word. I never knew him to tell me something that was
not accurate and true. And for full disclosure, I had that kind
of a personal relationship with him. I thought the world of him
and assumed that, for whatever time I would be in the Senate, I
would be serving with him. We traveled together. In fact, I had
told his attorney that I would be willing to testify. While I
could not testify to the facts of the case, I could testify to
the fact that he was always totally honest with me.
As Chairman of this Committee, though, and one with
oversight of the Department of Justice, and while I realize
this happened with the last Department of Justice, not the
current one--and I do agree with your assessment and your
statement of approval of Attorney General Holder in dismissing
this case. We have both known him for a lot of years before he
was Attorney General, and I have a great deal of respect for
his ability. I am concerned about what happened. It happened
here.
I also want to make sure, as others have suggested, that
this not happen if it was Ted Smith who nobody would know, and
that is why I have had my Innocence Protection hearings and
others. I think the prosecutor is in many ways the most
important person in the whole criminal justice system, even
more so than the judge in many ways, because the prosecutor can
determine not to bring a case as well as to bring one. That is
enormous power. If it is exercised appropriately, the whole
population is protected; improperly, the whole system is
damaged. So that is why I am holding these hearings and why I
have stayed through the whole hearing.
Mr. Schuelke, I thank you very much for----
Mr. Schuelke. If I may, just as----
Chairman Leahy. Of course.
Mr. Schuelke [continuing]. A point of personal privilege, I
should like to say that, like Senator Whitehouse, I am a proud
alumnus of the Department of Justice. This is a sad story. I
take no joy in having had to come to these conclusions. I hope
I never have to do it again.
Chairman Leahy. Well, I will concur in that. I am proud to
be a lawyer. When people ask me what my occupation is, I say
lawyer before I do U.S. Senator. I am very proud of that. I was
proud of being in private practice. I was proud of being
State's attorney, district attorney, and I was proud to be
picked as one of the three outstanding prosecutors in the
country 1 year. Whether deserved or not, I will not judge, but
that is probably the early thing that will be on my biography
someday.
Thank you very much.
Mr. Schuelke. Thank you, Mr. Chairman.
[Whereupon, at 11:40 a.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Report of Henry F. Schuelke, III
Prepared report not printed due to voluminous nature, previously
printed by an agency of the Federal Government, or other criteria
determined by the Committee:
http://legaltimes.typepad.com/files/stevens_report.pdf
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Additional Submissions for the Record
A list of material and links can be found below for Submissions for the
Record not printed due to voluminous nature, previously printed by an
agency of the Federal Government, or other criteria determined by the
Committee:
Bottini, Joseph W.:
http://lawprofessors.typepad.com/files/submission-of-joseph-w.-
bottini.pdf
Goeke, James A.:
http://lawprofessors.typepad.com/files/submission-of-james-a.-
goeke.pdf
Marsh, Nicholas A.:
http://lawprofessors.typepad.com/files/submission-on-behalf-of-
nicholas-a.-
marsh.pdf
Morris, Brenda K.:
http://lawprofessors.typepad.com/files/submission-of-brenda-k.-
morris.pdf
Sullivan, Edward P.:
http://lawprofessors.typepad.com/files/submission-of-edward-p.-
sullivan .pdf
Welch, III, William M.:
http://lawprofessors.typepad.com/files/submission-of-william-
m.-welch-
iii.pdf
[all]