At Justice, the grunts seem to be the fall guys in Stevens case

Joe Davidson
Columnist June 12, 2012

Were a couple of lower level federal lawyers in a bungled high-profile corruption case punished for sins committed at the top?

Yes, says a group of federal prosecutors — the very people paid to hold the guilty accountable.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

The National Association of Assistant United States Attorneys is upset: Of all the Justice Department people involved in the prosecution of Ted Stevens, it points out, the only folks disciplined by the agency were assistant U.S. attorneys, near the bottom of the food chain.

Scapegoats.

First, a little background.


In this Nov. 29, 2008, file photo, then-Sen. Ted Stevens, R-Alaska, leaves the Senate chamber after making his last formal speech on the Senate floor. (Lauren Victoria Burke/AP)

Stevens was a Republican senator from Alaska and, by the way, a good friend of federal employees. Being a supporter of federal workers might seem like a crime to some folks these days, but that’s not what brought Stevens to trial in 2008.

He was charged with making false statements to conceal $250,000 worth of work on his home, a massive project that included installing a whirlpool and wraparound decks. But problems with the prosecution were revealed after he was convicted — a verdict delivered not long before he lost a reelection bid.

Fortunately, Stevens lived long enough to see the verdict thrown out. He died in a 2010 plane crash. That was too late, however, for him to regain his seat and his reputation.

The verdict was tossed on the recommendation of the Justice Department, to its credit, because its staff had engaged in prosecutorial misconduct by withholding information from the defense.

U.S. District Judge Emmet G. Sullivan ordered an investigation, conducted by two defense lawyers, Henry F. Schuelke III and William Shields, into the department’s handling of the case. The result was a damning report that showed Justice officials subverting justice. In the process, they also undermined the electoral process, because Stevens might have won reelection with a not-guilty victory.

Although a number of people were involved in the prosecution, only Joseph W. Bottini and James Goeke were disciplined. The department proposed suspending Bottini for 40 days without pay and Goeke for 15 days.

That’s not fair, says a statement submitted to a Senate Judiciary Committee hearing last week, Robert Gay Guthrie, the attorneys association president. He cited a report by Terrence Berg, a lawyer with the department’s Professional Misconduct Review Unit. The association’s statement pointed to a section of the report that said “the failures that led to the collapse of the Stevens prosecution were caused by team lapses rather than individual misdeeds, with their origins in inept organizational and management decisions that led to a hyper pressurized environment in which poor judgments, mistakes and errors compounded one another and made it almost inevitable that disclosure violations would occur.”

“Surprisingly,” the association added, “these mistakes by officials in the Public Integrity Section did not trigger the slightest punishment.”

Berg’s findings, however, were overruled by a higher-up and only Bottini and Goeke were punished.

Although his findings were overruled in the agency, they were not ignored by Congress.

“Berg’s findings deserve particular attention,” said Sen. Charles E. Grassley (Iowa), the ranking Republican on the Judiciary Committee. He cited Berg’s nomination as a federal judge and his experience with a similar case involving terrorism charges that were dismissed.

“So his judgment on this shouldn’t have been lightly overturned,” Grassley said.

Grassley began a series of questions by telling Deputy Attorney General James Cole: “Obviously, you know we’re upset about the misconduct of the prosecutors in the Stevens case.”

The senator asked about “evidence of a double standard of discipline for managers and line employees?”

Cole acknowledged that “the prosecutors in the case didn’t follow the rules,” but made a distinction between “two different sets of conduct.”

“We had misconduct by the line prosecutors by not fulfilling their discovery obligations, and I think we had poor supervision and mismanagement by the supervisors in not making sure that the trial attorneys were in fact paying attention to those rules,” Cole said.

Even though the supervisors were guilty of “micromanaging the trial teams, as opposed to letting them do their jobs,” Cole said the supervisors’ improper actions “don’t rise to the level of misconduct. So we deal with them as a management issue, as opposed to a misconduct issue, because they don’t violate rules.”

But if the supervisors were micromanaging the trial teams, why aren’t the supervisors culpable of misconduct?

Apparently in the Justice Department, rank has its privileges.

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson. Follow the Federal Diary on Twitter: @JoeDavidsonWP.

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