A Washington judge unsealed on Wednesday pages from a U.S. Justice Department criminal discovery guide for prosecutors that was put together in the aftermath of the botched public corruption case against the late U.S. Sen. Ted Stevens.
The National Association of Criminal Defense Lawyers, represented by Jones Day, sued for a copy of the manual, known at the Justice Department as the “Blue Book.” The Justice Department resisted disclosure of the manual, saying the strategy and practice tips for prosecutors are shielded from disclosure by attorney work-product privileges.
A federal appeals court largely upheld the secrecy of the manual but ordered a Washington trial judge to look at whether any part of the book—more than 250 pages long—could be released to the public. U.S. District Judge Colleen Kollar-Kotelly last year concluded portions of the manual could be disclosed. Those passages were unsealed Wednesday.
The unsealed pages—posted in full below—are “broad statements of the government’s public criminal discovery policies,” Kollar-Kotelly said in her unsealing order.
Much of what was unsealed Wednesday had been pulled from other already-public memos and guides. An introductory paragraph, for instance, says: “As previously noted, the Department of Justice encourages broad and comprehensive disclosures in criminal cases.” This introduction points to a memo prepared in January 2010 by David Ogden, then the second-in-command at the Justice Department. Other parts of the newly disclosed documents pointed to policy guidelines from the U.S. Attorneys’ Manual.
“The portion of the Blue Book that the Court found was not work product was a tiny fraction—what amounts to not much more than a handful of pages—out of a manual that contains at least 265 pages,” the National Association of Criminal Defense Lawyers said in a statement Wednesday. The group said it would “redouble its efforts to seek a permanent legislative solution” addressing prosecutorial discovery obligations.
The Justice Department’s criminal discovery manual was openly discussed and displayed in 2014 in Oregon federal court in a case there, but the document itself was sealed. A federal trial had ordered the Justice Department to provide the defense in that case a copy of the manual. The defense lawyers, according to a court order, were not permitted to copy or otherwise distribute the manual. Regional U.S. attorney manuals were provided to USA Today through a public records request.
Stevens, the Alaska Republican, was found guilty at trial in 2008 in Washington on charges that he filed a false financial disclosure in the U.S. Senate that concealed the source of various gifts and hundreds of thousands of dollars in repairs to his home in Alaska.
Federal prosecutors later asked a judge to dismiss the charges amid claims of government misconduct. Stevens’ lawyers at Williams & Connolly, including Brendan Sullivan Jr. and Robert Cary, had argued the government unfairly withheld favorable evidence from the defense team. A court-appointed special prosecutor in 2012 published a report that concluded that members of the prosecution team did intentionally conceal evidence.
The Justice Department under then-U.S. Attorney General Eric Holder Jr. instituted new discovery training and put together the criminal manual in the wake of the collapse of the case against Stevens.
The U.S. Court of Appeals for the D.C. Circuit in 2016 ruled that the discovery manual—loaded with “strategic advice” for prosecutors—was protected from public disclosure as “unquestionably work product.”