William Welch Probably NOT One of the Attorneys Who Engaged in Gross Prosecutorial Misconduct in Stevens Case

As Ryan Reilly reported, Judge Emmet Sullivan is moving forward with his plan to release the scathing report on the Ted Stevens prosecution showing the prosecution was “permeated by the systematic concealment of significant exculpatory evidence.”

Back when descriptions of this report first surfaced, I asked, “Why Is William Welch, Whose Team Is Accused of Intentional Prosecutorial Misconduct, Still at DOJ?

Given Sullivan’s latest order, I think the answer must be that Welch is not one of the four DOJ lawyers most badly implicated in the report. That’s because DOJ, which after all still employs Welch to prosecute whistleblowers, had no objection to the report being released on March 15.

The Department of Justice’s Notice advised the Court that it “does not intend to file a motion regarding Mr. Schuelke’s report” and that “[t]he government does not contend that there is any legal prohibition on the disclosure of any references in Mr. Schuelke’s report to grand jury material, court authorized interceptions of wire communications, or any sealed pleadings or transcripts that have now been unsealed.” Notice of Dep’t of Justice Regarding Materials Referenced in Mr. Schuelke’s Report, at 1-2 (“DOJ Notice”). In addition, the Department of Justice informed the Court that it was not asserting any deliberative process or attorney-work product privilege with respect to the information contained in Mr. Schuelke’s Report.

Criminal Division head Lanny Breuer has already proven himself more than willing to hide the misconduct of his prosecutors; I have no doubt he’d do so here if it badly implicated any of his current attorneys.

So I’m guessing–though that is a guess–that Welch is not one of the four fighting to prevent this release.

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.

9 replies
  1. emptywheel says:

    That said, redaction analysis may say I’m wrong.

    There were six subject attorneys:

    Brenda Morris (6 character last name)
    William Welch (5 character)
    Nicholas Marsh (5 character, he passed away and his estate submitted filing)
    Joseph Bottini (7 character)
    James Goeke (5 character)

    Two of the attorneys agreed with the release (see page 7): one with a 5 or 6-character last name and one with a 5-character last name. That second one could be Welch, but given the initial redact, which spans two lines but has more than 5 characters on the second line, I’m guessing that refers to Marsh’s estate).

    Two attorneys petitioned to permanently seal the report: one with an 8? character last name, and one with a 5 character last name.

    Two attorneys who filed memos opposing release: one with a 5 or 6 character last name, and one with a 5 character last name.

    So the question is, which longer redaction is Morris’ submission, the one agreeing to release or the one filing a memo opposing?

  2. emptywheel says:

    Incidentally, I’m wondering if the entity that submitted a petition asking them to release is the Senate?

  3. emptywheel says:

    From the ruling:

    On the day of the verdict, Mr. Friedrich stood with the trial team outside the courthouse and pronounced to the television cameras that “[t]he Department is proud of this team, not only for this trial, but for the investigation that led to it.”

  4. Arbusto says:

    Since the DoJ seems to be an ethics free zone, inside The Beltway ethics free zone, the naming of badly behaving prosecutors is a guaranty of career advancement.

  5. Peterr says:

    I don’t think the DOJ’s decision not to oppose release of this report can be read as saying Welch isn’t one of the four most implicated lawyers. He may have been, and may not have been, but the bigger issue in play is that the argument in favor of withholding the report is damned weak.

    As Sullivan put it in his order (pdf pp. 2-4, with emphasis in the original]:

    To deny the public access to Mr. Schuelke’s Report under the circumstances of this case would be an affront to the First Amendment and a blow to the fair administration of justice. In July 2008, attorneys in the Public Integrity Section of the Department of Justice indicted a public official for allegedly failing to report gifts on his public disclosure forms. The attorneys then tried the defendant in the most public manner possible, and when they obtained a guilty verdict, they held a press conference to proclaim victory to the public. As a result of that verdict, the public official lost his bid for reelection, which tipped the balance of power in the United States Senate.

    Meanwhile, in the face of serious and mounting allegations of prosecutorial misconduct throughout the trial and post-trial proceedings, the attorneys repeatedly represented to the Court and to the public that there was no wrongdoing and no cause to question the integrity of either the indictment or the verdict. Only when faced with uncontroverted evidence that the attorneys had committed Brady violations 3 did the government come before the Court and publicly move to dismiss the indictment and vacate the verdict. And only at that point did the government seek to turn this public proceeding into a private one, assuring the Court that it would investigate the prosecutors internally through its confidential Office of Professional Responsibility process.

    [snip]

    It is not an overstatement to say that the dramatic events during and after the Stevens trial, and particularly the government’s decision to reverse course and move to vacate the verdict, led to a continuing national public discourse on prosecutorial misconduct and whether and what steps should be taken to prevent it. Withholding the Report from the public and leaving the public with only the information from the trial and immediate post-trial proceedings would be the equivalent of giving a reader only every other chapter of a complicated book, distorting the story and making it impossible for the reader to put in context the information provided. The First Amendment, the public, and our system of justice demand more.

    There was no way that Sullivan was going to meekly stand aside and let the DOJ quietly pull this back and try to hide it. Whoever the four most badly implicated attorneys are, someone at the DOJ decided that the DOJ wasn’t going to oppose the release of the report (see pp. 6-7) — likely because they’ve already come across looking like fools in public on numerous occasions, and don’t want to give Sullivan yet another public opportunity to point out their foolishness.

  6. Peterr says:

    @emptywheel:

    Two important nits to pick: You left Edward Sullivan (8 character last name) off your list, and you make no mention of middle initials, which in some cases might have been used. Per wiki, the full names and middle initials of the six are:

    The case was prosecuted by Principal Deputy Chief Brenda K. Morris, Trial Attorneys Nicholas A. Marsh and Edward P. Sullivan of the Criminal Division’s Public Integrity Section, headed by Chief William M. Welch II, and Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke from the District of Alaska.

    Back to Judge Sullivan’s order . . .

    The first attorney referenced has two redactions — one in the title of the submission, and the other in the shortened version for later references. The first redaction is longer, and it appears that “Brenda Morris” fits it perfectly. Similarly, “Morris” fits the second redaction exactly.

    The second looks as if it might be “William” on the first line and “M. Welch II” on the second line, with “Welch” in the second redaction for later reference.

    The third attorney looks like “Edward P. Sullivan” and “Sullivan”.

    The fourth would be “James A. Goeke” and “Goeke”.

    The fifth would be “Joseph W. Bottini” and “Bottini”.

    The sixth would be “Nicolas A. Marsh” and “Marsh”.

    The only unexplained difficulty with what I’ve laid out here is that the longer redaction for the fifth attorney appears to be 17 19 characters at the end of a line, while “Joseph W. Bottini” is only 15 17 characters long.

    [edited]

  7. emptywheel says:

    @Peterr: Not a nit at all–a pretty big oversight. Thanks.

    I don’t necessarily buy your William M Welch II argument–since Sullivan has to introduce the estate of Marsh. But otherwise I think you’re probably right.

  8. earlofhuntingdon says:

    “Whitewash” has several synonyms in the UK, royal commission, government investigation, and parliamentary inquiry among them.

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