Editor’s Note: On Wednesday, April 1, the Justice Department moved to drop all charges against former Senator Ted Stevens of Alaska, who was convicted on seven felony counts of ethics
violations, and who lost his Senate seat just days later. Justice Department lawyers told a federal court that they had discovered a new instance of prosecutorial misconduct, on top of earlier disclosures that had raised questions about the way the case was handled. The attorney general, Eric Holder Jr., said he would not seek a new trial.
The U.S. Department of Justice’s public integrity section was once something of a showcase operation. Its purpose was to go after corrupt politicians and judges and to help ensure the integrity of the electoral process. It stood for the highest ethical standards in government, and it was supposed to put teeth in those standards.
Today, however, the public integrity section is reeling. Federal judges in Washington, D.C., and Maine have questioned the section’s ethics and motivations. A special prosecutor is investigating whether cases brought by the section were politically motivated. The section is stonewalling a House Judiciary Committee investigation into its handling of a series of politically charged cases. And U.S. Supreme Court justice Antonin Scalia recently ridiculed “honest services fraud”-the legal theory that has emerged as the hallmark of public integrity corruption prosecutions.
The public integrity section’s worst failing was also its best publicized. Former Alaska senator Ted Stevens, 85, was charged in July 2008 with seven felony counts of failure to properly report about $250,000 worth of gifts. Later that year, a team of public integrity prosecutors secured convictions on all counts. But their success may shortly be undone. A Federal Bureau of Investigation whistle-blower alleged that prosecutors withheld evidence, that one of his colleagues had an “inappropriate relationship” with the prosecution’s star witness, and that another prosecutor had accepted improper gratuities. An angry Judge Emmet Sullivan held the entire prosecution team in contempt.
What went wrong at this institution? The problems are too systematic to be laid simply at the foot of partisan politics. In fact, the section has usually been led by a career prosecutor, such as the current incumbent, William Welch II.
The whistle-blower’s accusations in the Stevens case suggest a victory-at-all-costs attitude, which is difficult to reconcile with the section’s ostensible purpose of upholding ethics. That attitude was also apparent in the case of former Alabama governor Don Siegelman, where the public integrity section suppressed another whistle-blower’s claims of jury tampering and political manipulation. That information only became public in a House Judiciary Committee investigation in 2008.
Equally troublesome are charges that public integrity cases were politically manipulated. Statistics show that, during the George W. Bush presidency, roughly six cases were opened involving Democrats for every one involving a Republican. A Justice Department probe into the 2006 sacking of nine U.S. attorneys, which was led by Inspector General Glenn Fine, concluded that there was substantial evidence of such manipulation, but because Karl Rove, Harriet Miers, and other Bush White House figures refused to cooperate, Fine could not conclude his investigation. A special prosecutor, Nora Dannehy, was appointed to pursue the matter.
But in the end, Justice Scalia may have raised the most far-reaching questions about the section. Following criticism voiced by legal scholars, he questioned the heavy use of the honest services fraud statute. Honest services fraud involves a scheme that deprives a citizen of the “intangible right to honest services” of a person who holds a position of public trust. Almost anything that a prosecutor sees as corrupt can qualify. Scalia offers his own example: Suppose a public employee skips work and goes to a ball game. Is that person depriving the country of his honest services?
If Scalia’s criticism is accepted by courts, a number of convictions of prominent figures-Siegelman, Democratic attorney Paul Minor, and Mississippi state judges Wes Teel and John Whitfield, for example-would likely be overturned. Each was convicted of a federal campaign finance violation that was perfectly legal under state law.
How will Attorney General Eric Holder, who previously held a position in the public integrity section ["Making History," June 2008], deal with this dilemma? He has given no public indication so far, but in the confirmation process a number of congressional leaders expressed their concern about the charges surrounding the handling of public integrity cases. The public integrity section has had five heads in the last six years, and Holder is said to be considering a sixth. As it stands now, however, the question Judge Sullivan asked in the Stevens case is still ringing in Washington, D.C.: “How does the court have confidence that the public integrity section has public integrity?”
Scott Horton teaches at Hofstra Law School and is on the board of the National Institute of Military Justice.