By Dana Milbank
Wednesday, April 8, 2009
It was Ted Stevens's moment to savor sweet vindication yesterday, but, in courtroom 24A, bitterness prevailed.
"You'd think there would be jubilation, that we'd be high-fiving each other around the office," Brendan Sullivan, attorney for the fallen senator, said of the moment two weeks ago when he learned of the prosecutorial misconduct that would lead the government to drop the case against his client. "My reaction was sick; I was sick in my stomach," he said. "It was revulsion, revulsion turned to anger. . . . I was in a silent rage."
Sullivan dropped the silent part yesterday, but kept the rage. For an hour, he railed in court about "corrupt prosecutors," "false evidence," "intentional misconduct," and "devious and willful" deceit. The judge was already set to throw out the case, so Sullivan's tirade was less a legal argument than a blowing off of steam. "Nothing can be done to give the citizens of Alaska the senator they surely would have elected," he said as the 85-year-old Stevens, defeated for reelection a week after his guilty verdict last year, stared at the ceiling. "The government cannot do much except to say they're sorry . . . sorry prosecutors were unethical and dishonest and caused you to lose an election."
Judge Emmet Sullivan joined the assault, announcing that he was opening criminal proceedings to investigate Brenda Morris, William Welch and the other prosecutors in the case for withholding exculpatory evidence from the defense. "This is indeed a dramatic day in a case that has had many dramatic and unfortunately shocking and disturbing moments," he announced, spitting out his words with disgust. "In nearly 25 years on the bench, I've never seen anything approaching the misconduct and mishandling that I've seen in this case."
Recalling the Supreme Court description of a prosecution's proper role -- "not that it shall win a case, but that justice shall be done" -- he drew a link between the Stevens debacle and the Justice Department's most prominent recent abuse of power. The government's obligations to the accused, he said, apply whether it's "a public official, a private citizen or a Guantanamo Bay detainee." When the judge heard that Stevens's attorneys sent three letters about prosecutorial misconduct to former attorney general Michael Mukasey but received no response, he called it "shocking -- but not surprising."
The judge's references to Mukasey and Gitmo pointed to the central irony in the botched prosecution of Stevens: The longest-serving Senate Republican had become an unlikely victim of the overreach of George W. Bush's Justice Department.
Stevens found that when the government starts down a path of disregard for the rule of law -- at Abu Ghraib, in the torture memos, in the mass firings of U.S. attorneys and at Gitmo -- ultimately even a powerful lawmaker is not immune. Stevens, rescued by a Democratic attorney general and new prosecutors who "deeply, deeply regret" what happened, pledged to push for legislation to reform prosecutions "when the dust settles."
It was enough to give even a hardened conservative a bleeding-heart sympathy for the accused. "Imagine what it's like for people who don't have any money," Andrew Lundquist, a former aide to Stevens and to Vice President Dick Cheney, said as he left the courtroom.
Stevens's public celebration was subdued. He shook hands with the new prosecutors (appointed to clean up the mess left by the old prosecutors) and gave the courtroom audience a thumbs-up. He sat at the table, sucked on a piece of candy and indulged in a rare smile. During a recess, he told reporters about the "hoot owl" pattern on his tie, and after the judge finally announced the order withdrawing the indictment, he accepted hugs and kisses from friends and family and pumped his left fist into the air.
"My faith has been restored," Stevens told the judge. Still, he added, the "consequences . . . can never be reversed."
Indeed, dismissing the case because prosecutors were bad is not the same thing as saying Stevens is good. Some of the most damning accusations during the trial -- his acceptance of furniture, a puppy, a stained-glass window, a statue of migrating salmon and a Shiatsu massage lounger -- were largely unrelated to the prosecutorial misdeeds. Also, Stevens did at least as much to hurt his cause as prosecutors did, including his combative appearance on the stand and his request for an expedited trial, without which he almost certainly would have been reelected.
In the end, a form of rough justice triumphed in the case. It was a marginal prosecution to start with -- accusations of penny-ante corruption and ethics violations -- and it ended with a political, rather than a legal, punishment: Stevens keeps a clean criminal record, but loses his Senate seat. The judge has dismissed the case, but the court of public opinion is unlikely to be as generous.
That could explain Brendan Sullivan's bitterness. "The whole world has convicted Senator Stevens," the attorney complained in court. "If I had one wish," he continued, it would be "that I never see again anybody report that Ted Stevens was convicted, because he was not."
But first, he'll have to stop reporting it himself. Not a minute later, the attorney bemoaned the sad fact that his powerful client was "convicted wrongly."