Two longtime U.S. Justice Department lawyers who examined the botched case against Ted Stevens disagreed sharply over whether the trial prosecutors engaged in misconduct, an internal report revealed.
The department’s Office of Professional Responsibility concluded in its 672-page report that two assistant U.S. attorneys “recklessly disregarded” their obligations to turn over favorable information to the lawyers for Stevens, charged in Washington in 2008 with filing false U.S. Senate financial disclosure reports.
DOJ’s much anticipated assessment of the Stevens case publicly illuminated a rare and often secret review of prosecutorial ethics, exposing a rift over where to draw the line between misconduct and poor judgment.
One career DOJ prosecutor, Terrence Berg, assigned to assess discipline, disagreed substantively with the ethics finding against assistant U.S. attorneys Joseph Bottini and James Goeke. But the chief of the department’s professional-misconduct review unit, Kevin Ohlson, didn’t support Berg’s conclusion. Ohlson successfully replaced Berg as the official in charge of proposing discipline.
An associate deputy attorney general, Scott Schools, upheld Ohlson’s analysis that Bottini and Goeke violated ethics rules and should be suspended for 40 and 15 days, respectively, without pay. The prosecutors have a month to decide whether to appeal the decision to the Merit Systems Protection Board.
“I appreciate and respect your long career in the Department, but I also find that the non-disclosure of exculpatory evidence is among the most serious transgressions that a department attorney can commit,” Schools said in a letter to Bottini on May 23. The recommended suspension for Bottini, a prosecutor for more than 25 years, is “fully warranted,” Schools said.
The public corruption case against Stevens, the first against a sitting U.S. senator in more than two decades, collapsed in April 2009 amid allegations that prosecutors skirted obligations to turn over information that would have aided Stevens’ defense. Stevens claimed he’d properly reported gifts and other items on U.S. Senate financial disclosure forms.
DOJ’s Office of Professional Responsibility (OPR) investigated the Stevens prosecutors at the same time a criminal probe that the trial judge initiated was taking place. U.S. District Judge Emmet Sullivan appointed Washington attorney Henry “Hank” Schuelke III, now a partner at Blank Rome, to find out whether any of the Stevens prosecutors should be charged with criminal contempt for violating court orders.
Schuelke’s report, in contrast with the OPR investigation, concluded that Bottini and Goeke committed intentional misconduct in concealing witness information from Stevens’ attorneys at Williams & Connolly. Still, Schuelke did not recommend charges against any of the Stevens prosecutors, who also included William Welch II, Brenda Morris and Edward Sullivan.
Lawyers for Goeke and Bottini argued unsuccessfully there was never any wrongdoing in the first place.
Berg, a longtime assistant U.S. attorney in Detroit, determined that, although the material Goeke didn’t turn over could be considered exculpatory information, Goeke wasn’t “objectively unreasonable” in deciding that the information wasn’t covered. Goeke exercised poor judgment, Berg wrote, but did not act in disregard of his professional responsibilities. “Conduct by the supervisors was of equal or comparatively greater consequence in causing the disclosure violations and created a unique and extremely difficult set of circumstances under which the line attorneys were required to function,” Berg said in a memo.
The errors in the Stevens case, he said, were “team lapses rather than individual misdeeds.” Berg blamed “inept organizational and management decisions.”
Goeke urged the office to adopt Berg’s 82-page report, writing to Deputy Attorney General James Cole in January that his office should consider Berg’s opinion “binding.” Goeke, represented by the Brownell Law Firm in Washington, argued that Ohlson’s decision to overrule Berg was outside his authority.
Goeke also claimed Ohlson had a conflict of interest because he was a nominee for a federal judgeship on the U.S. Court of Appeals for the Armed Forces and could use a finding of misconduct to please senators who were critical of the department’s handling of the Stevens case. (Berg’s nomination for a judgeship on the U.S. District Court for the Eastern District of Michigan is also pending.)
Bottini’s lawyer, Kenneth Wainstein, a Cadwalader, Wickersham & Taft partner in Washington, said Ohlson made no attempt to explain why Berg’s findings were purportedly wrong, calling it “an inexplicably weak basis for overriding the comprehensive and well-reasoned findings of an unbiased and highly regarded senior career prosecutor.”
Wainstein’s letter addressing the OPR report noted that the hype around the Stevens case was high and that members of Congress were calling for retribution against the Stevens prosecutors before the results of any investigation were complete. “Those dynamics may help explain OPR’s results-oriented approach to this investigation, but they do not and cannot justify a decision by the Department to ignore explanatory and mitigating circumstance[s],” Wainstein wrote. “OPR’s findings must be rejected.”
Wainstein said in an interview that Bottini acknowledged making mistakes in the Stevens prosecution. “He understands that,” Wainstein said. “But we feel strongly you have to look at those mistakes in the context in which they were made.” Bottini will appeal the 40-day reprimand, he said.
Stevens’ defense lawyers, including Williams & Connolly partners Brendan Sullivan Jr. and Robert Cary, said in a statement they were displeased with the punishment DOJ meted out against Goeke and Bottini. The defense team, which described the suspensions as “laughable” and “pathetic,” said DOJ “demonstrated conclusively that it is not capable of disciplining its prosecutors.
“No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report,” Stevens’ lawyers said.
Staff writers Todd Ruger and Zoe Tillman contributed to this report. Mike Scarcella can be contacted at firstname.lastname@example.org.