"Hearing on the Special Counsel's Report on the Prosecution of Senator Ted Stevens"

Wednesday, March 28, 2012

Mr. Chairman, thank you for holding today's hearing on a troubling matter that warrants our attention.  In his famous speech titled 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."  These are fitting words for today's hearing as we examine the conduct of Justice Department prosecutors in an effort to understand what went wrong in the prosecution of former Senator 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 Alaska 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 a centerpiece of the American 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 threatens to resonate further throughout the Justice Department.

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.  I hope it's 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 this 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 in the case.

Mr. Schuelke's report was recently released, on March 15, 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 the Department of Justice 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's 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 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 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 the Office of Professional Responsibility.

It will be interesting to see how this report compares to the final product issued by the Office of Professional Responsibility.  The 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 Office of Professional Responsibility report is provided to Congress.

At an oversight hearing in November, 2011, when Senator Hatch asked for a copy of the final Office of Professional Responsibility report, Attorney General 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 aren't likely to ever see that report.

The Justice Department has routinely blocked the release of Office of Professional Responsibility investigations, citing privacy laws and employee rights of the attorneys and agents guilty of misconduct.  The Attorney General ultimately oversees the Office of Professional Responsibility and if he truly wants that information made public, he should order it released upon the conclusion of the investigation.

In the event he doesn't, the Privacy Act has an exemption for Congress, and Mr. Chairman, even under the department's tortured reading of the plain text of that statute, you should be able to obtain that Office of Professional Responsibility report in an unredacted form.  I will be happy to work with you on this issue.

A lot went wrong in the prosecution of Senator Stevens, and despite this strongly worded report 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 the American 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 in 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.