Why Is William Welch, Whose Team Is Accused of Intentional Prosecutorial Misconduct, Still at DOJ?

As Nedra Pickler first reported, Judge Emmett Sullivan has submitted a scathing order describing the results of an investigation into the Ted Stevens prosecution.

Based on their exhaustive investigation, Mr. Schuelke and Mr. Shields concluded that the investigation and prosecution of Senator Stevens were “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”


Mr. Schuelke and Mr. Shields found that at least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial. Further, Mr. Schuelke and Mr. Shields found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed – at least to the Court and to the public – but for their exhaustive investigation.

Sullivan’s investigator, Henry Schuelke, found the lawyers involved could not be charged with criminal contempt because they had not been explicitly ordered to follow the law.

Mr. Schuelke bases his conclusion not to recommend contempt proceedings on the requirement that, in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. § 401(3), the contemnor must disobey an order that is sufficiently “clear and unequivocal at the time it is issued.” See, e.g., Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Upon review of the docket and proceedings in the Stevens case, Mr. Schuelke concludes no such Order existed in this case.

But he did hint that at least some of the six attorneys might be charged with Obstruction of Justice (which DOJ would have to do).

Mr. Schuelke “offer[s] no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. § 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.”

One of the attorneys investigated here, of course, is William Welch (the others are Brenda Morris, Edward Sullivan, Joseph Bottini, and James Goeke, as well as Nicholas Marsh, who committed suicide last year), who has overseen the Jeffrey Sterling and Thomas Drake cases.

Now, Sullivan made it clear that at least some of the lawyers involved might be well served for Schuelke’s report to be made public.

in fact, under these circumstances, some or all of the subjects may be prejudiced by withholding the results of Mr. Schuelke’s Report from the public;

So we can’t be sure whether Welch was directly implicated in the misconduct, or whether just those lawyers who reported to him were.

But Welch’s prosecutions since have been beset by the same kind of prosecutorial problems as the Stevens one. For example, in the Drake case, the government didn’t tell the defense that one of the documents they charged Drake with leaking was unclassified until 10 months after the indictment. Then, when they tried to apply CIPA to unclassified documents, they did so after the opportunity to object had passed. The judge in that case, Richard Bennett, called the prosecution “unconscionable.”

And in the Sterling case, it appears that Welch postponed telling Sterling that one of the key witnesses against him had herself leaked classified information until after the opportunity for discovery on that leak had passed–the same kind of derogatory information on a key witness the Stevens prosecutors withheld.

In other words, we can not be sure that Welch committed the misconduct at the heart of the Stevens case. But his ongoing cases do seem to be subject to the same kind of misconduct.

So why is he still at DOJ, prosecuting cases, when an independent investigator has determined this his past prosecution teams didn’t follow the law because they had not been specifically ordered to, and such behavior might amount to Obstruction of Justice?

Updated: Added Bennett’s comments.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

26 replies
  1. Jim White says:

    But he did hint that at least some of the six attorneys might be charged with Obstruction of Justice (which DOJ would have to do).

    Breaking: Oddsmakers in Las Vegas just took this bet off the board, saying even they don’t have the heart to take the money of anyone stupid enough to think the Department Formerly Known as Justice would prosecute one of their own.

  2. emptywheel says:

    @Jim White: You’re right.

    But Senators pretty much care first and foremost about Senators.

    So it wouldn’t surprise me to see Chuck Grassley and Dianne Feinstein demand that DOJ appoint an independent prosecutor on this.

  3. Jim White says:

    @emptywheel: Well, yes, but as you know, DOJ will appoint a prosecutor who magically will decide their behavior falls just short of being worthy of charges. Even if it takes a “review” of the prosecutor’s work by David Margolis to get there…

  4. posaune says:

    OT, and then there’s Louie Freeh, just named federal investigator of the Penn State crimes. Yeah, right — an Opus Dei groupie of Josemaria Escriva to investigate pedophilia.

  5. lysias says:

    Well, if Welch’s political superiors wanted him to go after Stevens and Drake, then I can understand why he still has his job.

  6. Peregwyn says:

    Sullivan’s investigator, Henry Schuelke, found the lawyers involved could not be charged with criminal contempt because they had not been explicitly ordered to follow the law.

    I am pretty much speechless that they have to be specifically told to follow the law.

  7. earlofhuntingdon says:

    The description of Welch’s behavior amply justifies investigations by state bar authorities for fraud and deceit, reckless conduct, incompetent or intentional mismanagement unjustified by legitimate claims of zealous representation, and abuse of prosecutorial discretion. It’s not just his employment at the once vaunted DoJ that should be addressed. It is his license to practice law that should be questioned.

  8. Freda Miller says:

    @rkilowatt: The link to the Colby information is the same as the first link. Could you please repost the Colby link? Inquiring minds want to know.

  9. rugger9 says:

    The thing is that Welch has been blowing up prosecutions, many of them of Bu$hies and GOP operatives in addition to the occasional Sterling or Drake. The excuse created by Schuelke is one any one of us would love to use in traffic court. However, when it comes to those who aren’t protected for political reasons such an excuse wold not fly because ignorance of the law is no excuse.

    One wonders if these geniuses are still-burrowed Bu$hies from Regent that apparently slept through their ethics classes. The fact that Holder and Obama accepted this while telling the rest of us riffraff to eat our peas is insulting.

  10. Gitcheegumee says:


    A few interesting tidbits,courtesy Wikipedia:

    From Wikipedia, the free encyclopedia

    Early life and career

    Born January 6, 1950 in Jersey City, New Jersey, Louis Freeh was educated by the Christian Brothers and graduated Phi Beta Kappa from Rutgers University in 1971. He received a J.D. degree from Rutgers School of Law-Newark in 1974 and an LL.M. degree in criminal law from New York University School of Law in 1984.

    Freeh was an FBI Special Agent from 1975 to 1981 in the New York City field office and at F.B.I. Headquarters in Washington, D.C. In 1981, he joined the U.S. Attorney’s Office for the Southern District of New York as an assistant U.S. attorney. Subsequently, he held positions there as Chief of the Organized Crime Unit, Deputy U.S. Attorney, and Associate U.S. Attorney. He was also a first lieutenant in the U.S. Army Reserve.

    [2] In 1991, President George H. W. Bush appointed Freeh a judge for the United States District Court for the Southern District of New York, a position he held until he was appointed FBI director by President Bill Clinton in 1993.

    Freeh and his wife, Marilyn, have 6 sons. He is a devout Roman Catholic, although is not a member of the Opus Dei prelature (as rumors have stated).[5][6] According to The Bureau and the Mole, a book by David A. Vise, Freeh’s son was enrolled at the private The Heights School in Potomac, Maryland, which Vise describes as “an Opus Dei academy”.[7]

  11. Gitcheegumee says:

    My first thought when I read that Mr. Freeh had been anointed to oversee this PSU investigation,was the 2009 Frontline interview (by Lowell Bergman) of Freeh entitled “The Business of Bribes.”

    Freeh represents Saudi Prince Bandar in reference to the BAE/Saudi arms deal entitled Al Yamamah…(The Dove).

    EW did an excellent thread,to wit,an excerpt. (Oh,and FWIW,the 2009 Frontline interview was the same year Freeh obtained Italian citizenship.)

    Louis Freeh Defending Iran-Contra Type Arms Deals Along with Bandar

    Posted on April 13, 2009 by emptywheel

    There’s an aspect of the Louis Freeh interview on Frontline I find fascinating.

    In defense of his client, Saudi Prince Bandar, on allegations that Bandar received billions in bribes associated with a huge BAE defense contract, Freeh mostly tries to pretend there’s a meaningful distinction between the Saudi family and high government officials in it. Thus, the plane and estate that Bandar got in connection with the BAE deal are actually government-owned facilities he has use of.

    And conveniently, Freeh hasn’t looked at the Swiss Bank Accounts or the Yamamah contract, so he can’t comment on their legality.

    He explains away that structure of the al Yamamah contract to Congressional intransigence during the Reagan Administration. Congress wouldn’t let the Administration sell planes to Saudi Arabia, so what was Reagan to do except encourage Margaret Thatcher to set up a big corrupt contract to bypass this restriction?

    Freeh: In other words, the United States, was not able to sell the Saudis F15s, and I think you understand the origin to this contract. The King sent Prince Bandar, my client, to President Reagan with very specific instructions, “Buy F15s.” And of course the United States had armed the Saudi armed forces for the last 20 years before that.

    President Reagan said to my client, “Congress will never approve the sale of F15s.” My client then went up to the hill, spoke to senior leadership on both sides of the aisle, and they said, “We can’t authorize the purchase of F15s by the King of Saudi Arabia.” He went back to President Reagan who said, “Go talk to Maggie Thatcher,” which my client did. That’s how Tornados and the treaty, not the contract but the treaty between the two countries, was originated.

    He wanted to buy the planes in the United States.


    So there was only one bidder here by default and that was the British Aerospace Systems and the Toranado, at least as the contract began. So the way the treaty was set up, if the Ministry of Defense and Aviation wanted to purchase U.S. arms, U.S. arms could be purchased through BAE and DESO, which was the U.K. Ministry that did the purchasing, and that was sort of a way to purchase arms, transparent way to purchase arms, but in a way that did not deal with the objection of the U.S. Congress to the selling of American equipment to the Saudis.

    While we knew that was the purpose of the contract, I still find it galling that Freeh dismisses Reagan’s effort to bypass Congressional restrictions so easily.

  12. rugger9 says:

    So, what could Freeh possibly fix for PSU? The list of victims keeps growing.

    And, did anyone else notice that the Syracuse campus police stiffed the Onondaga county DA on records for their scandal?

    That’s what happens when there is nobility in this country [yes, I know that titles are forbidden here, but that’s how the elite see themselves, as “betters”] that have a different set of rules from us who are deemed riffraff.

  13. fiver says:

    Maybe they’re still at DOJ because a fighter who takes a dive is seldom fired by the bookie.

    They had Stevens taking a new story on his house as a bribe among other things. This was a strong case. Heck, why not turn over all the Brady material, and the non-Brady material, and their own personal notes? Why not buy even buy defense counsel lunch and let him quiz you on trial strategy while you’re at it?

    They still couldn’t lose this case . . . unless they wanted to.

  14. shekissesfrogs says:

    Also assumes they don’t know what the law is.

    Sullivan’s investigator, Henry Schuelke, found the lawyers involved could not be charged with criminal contempt because they had not been explicitly ordered to follow the law.

    Mr. Schuelke bases his conclusion not to recommend contempt proceedings on the requirement that, in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. § 401(3), the contemnor must disobey an order that is sufficiently “clear and unequivocal at the time it is issued.”

    Who gets to decide?


    But Schuelke did not recommend criminal contempt charges because the judge never issued a direct order spelling out the rules of evidence.

    “Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law,” Sullivan wrote.

    This reminds me of another lawyer who couldn’t read or understand the most basic concepts, and where the DOJ became his attorney:Scott Bloch:

    Defendant Bloch cites and argues Federal Rules of Criminal Procedure (FRCrP) Rule 11(b)(1)(I) for the proposition he should be allowed to withdraw from his plea because the court did not explain, and he did not understand, there was a minimum mandatory sentence of one month in jail.

    IANAL.. but aren’t the rules of evidence for a prosecutor, and following the law the most basic understanding of the purpose of the law?

    They are “proceeding in good faith” seems to be a selective get out of jail free card, based on some ethereal quality or belief in a personality.

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