The Full Text of the Schuelke Report on DOJ Misconduct

Earlier this morning, we posted A Primer On Why Schuelke Report Of DOJ Misconduct Is Important that laid out all the legal and procedural background underlying the Schuelke Report into prosecutorial misconduct in the Ted Stevens criminal case.

The full 500 page report has now been released, and is titled:

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009

I wanted to get the post framework and document link up so everybody could read along and digest the report together. Consider this a working thread to put thoughts, key quotes – whatever – into as we chew on the report. Then after having been through it, Marcy and I will; later do smaller stories on specific angles raised.

We know the irreducible minimum found:

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness

You would think the involved attorneys would be ducking and apologizing for their ethical lapses that terminated the career of the powerful chairman of the Appropriations Committee on the US Senate. You would, of course, be wrong.

The mouthpiece for Brenda Morris, Chuck Rosenburg, is already clucking:

Brenda is a woman of tremendous integrity and an exceptionally talented prosecutor—she was fully honest with the investigators and always hoped that one day this report would be made public so that the facts of her individual role would be known.

Um, no, Ms. Morris does not smell like a rose here Chuck. Edward Sullivan, one of the AUSAs had this statement by his lawyer already this morning:

Mr. Sullivan is a diligent attorney, with strong character and integrity, whose conduct comports with the Department’s highest ethical standards. Mr. Sullivan was rightfully exonerated by Mr. Schuelke and the Department’s Office of Professional Responsibility, and his vindication is evidenced by the fact that he continues to prosecute cases in the Criminal Division’s Public Integrity Section

Well, yeah, sure, you betcha Ed Sullivan. I guess that is why as late as yesterday you were personally in the DC Circuit Court of Appeals trying to have the whole matter both stayed and sealed and were arguing you would be harmed if it wasn’t. Today, Edward Sullivan is suddenly a spring flower of purity.

So, yes, all these spring flowers in bloom must be operating off some pretty fertilizer, and the manure is indeed rather deep. So, let us dive in and see what we find. Put your thought, comments and opinions in comment as we work. See you there!

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
23 replies
  1. Peterr says:

    From the conclusion, pdf pp. 524-525 (and yes, I skipped to the end):

    We have found evidence of willful nondisclosure of Brady and Giglio material on three occasions . . . [summaries omitted here]

    Were there a clear, specific and unequivocal order of the Court which commanded the disclosure of this information, we are satisfied that a criminal contempt prosecution would lie. We conclude, however, that the record demonstrates that Judge Sullivan admonished the Government to “follow the law” and did not issue a clear, specific and unequivocal order such that it would support a finding by a District Court, beyond a reasonable doubt, that 18 U.S.C. §401(3) had been violated.

    It should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation.

    In the circumstances here described and measured against the standard established by the Principles of Federal Prosecution, USAM 9-27.220, we do not believe that a criminal contempt prosecution under 18 U.S.C. §401(3) should be initiated against any of the subject government attorneys.

    “It should go without saying . . .” but apparently it doesn’t. And because it doesn’t, these folks get a free pass? Unbelievable.

    Is Schuelke seriously saying that these folks away with this because Sullivan said “follow the law” and not “I order you to follow the law”?

  2. JTM says:

    If I get a speeding ticket for, say, going 42 mph past a sign that says “Speed Limit 35” can I argue that the ticket should be dismissed because the sign didn’t say “I Order You to Go 35 MPH or Less”?

  3. Peterr says:

    pdf p. 514:

    The Brady disclosure in Stevens was not just incomplete. Mr. Bottini, Mr. Goeke and Mr. Marsh falsely represented that there was “no evidence” that Mr. Allen asked Ms. Tyree to lie.

    And yet, after writing these words, Schuelke says these folks do not meet the standards for criminal prosecution?

    pdf pp. 517-518:

    As is understandable and sensible, the Office of the Assistant Attorney General for the Criminal Division of the Department of Justice took a keen interest in the prospective indictment and subsequent prosecution of a senior United States Senator. Paradoxically, however, the role of the “front office” in the management of the prosecution contributed to the failures of effective supervision of the trial team by the leadership of the Public Integrity Section.

    Shortly before the indictment was returned, AAG Friedrich appointed Ms. Morris, the Principal Deputy Chief of Public Integrity, to serve as lead trial counsel in the Stevens case, causing discontent and poor morale among the balance of the team. As a consequence both of the need for Ms. Morris to devote her time and energy to the prodigious task of mastering the facts assembled over two years, preparing witnesses and arguing motions in a tightly compressed period of time and avoiding second-guessing of the decisions of the balance of the trial team in an effort to avoid further demoralizing them, Ms. Morris abdicated any meaningful supervisory role with respect to the matters which gave rise to this investigation. Rather, she deferred to the judgment of Messrs. Bottini, Goeke and Marsh and accepted on faith their representations concerning matters about which she had little or no personal knowledge. We uncovered no evidence, however, that Ms. Morris knowingly and willfully withheld Brady or Giglio information from Senator Stevens and his attorneys.

    Since the Office of the AAG also actively managed the conduct of the prosecution in matters ranging from review and approval of pleadings, opening statements and closing arguments and witness examination assignments to the seating of government counsel in the courtroom, Mr. Welch perceived himself effectively to have been eliminated from the “chain of command.” Moreover, since his principal deputy was now fully otherwise occupied, the supervision of the balance of the Public Integrity Section’s docket fell to him. The net result was that Mr. Welch directly supervised the conduct of the prosecution only when discrete matters were brought to his attention after controversies arose. To his credit, on each occasion that Brady/Giglio disclosure issues were brought to him for decision, he directed that disclosure be made.

    Apparently, the “front office” being asleep at the switch is sufficient from them to avoid sanction.

    Nice to know.

  4. bmaz says:

    Turley had some contempt for the no criminal contempt finding:

    Henry F. Schuelke III believes that it is necessary for Justice officials to be formally ordered to act in a lawful and ethical matter for there to be a basis for criminal contempt. He basically blames Sullivan for never explicitly demanding that the government comply with legal and ethical rules in turning over exculpatory evidence in the political corruption case. Judge Sullivan offered a rather obvious, and one would think sufficient, reason for not issuing such an order: “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.” I have been laboring under the same illusion that we were all subject to legal and ethical rule without a formal order from the court. While there is certainly room to debate whether criminal sanctions should apply, this is a rather shocking reason.
    …..
    However, the premise of the report is an outrage and should shock the conscience of every lawyer. It would suggest that Justice Department lawyers can act in flagrant violation of ethical and legal rules absent an order directed at them by the court and that courts must now issue such orders to every attorney if they want to enforce basic rules of practice and ethics.

    So, these lawyers will not be held in contempt despite the finding (as detailed in the order below) that the investigation showed a case “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.”

  5. Peterr says:

    pdf pp. 520-521:

    As a matter of long-standing practice, federal prosecutors respond to defense requests for Brady and Giglio information as well as to inquiries by our District Judges concerning the status of pre-trial discovery with assurances that they are aware of their obligation and have complied or are in the process of doing so. Until quite recently, District Judges understandably relied on such assurances and did not find it necessary to issue Brady orders unless and until it became apparent in a given case that reliance on the assurances of the prosecutor had been misplaced. So it was here.

    Given Schuelke’s report, I suspect that there will be a non-trivial increase in the number of Brady orders from judges who do not like being lied to and who view the obstruction of justice as something worth punishing.

    Like, for instance, Judge Emmet Sullivan.

    As has been said here many times in the past, I’d hate to be the next AUSA to come before Judge Sullivan.

  6. Peterr says:

    @bmaz: I’m wondering how much it will shock the conscience of Judge Sullivan.

    From your prior post:

    So, we know the Schuelke Report will skewer DOJ prosecutors working on the Stevens criminal case. That is a given. The question left is which prosecutors, and how hard. And therein lies one of the rubs, because there is fair reason to believe the Schuelke Report will lay the primary blame on Assistant US Attorneys (AUSAs) from the Alaska US Attorney’s Office (Alaska USAO), and shift culpability from their supervisors from DOJ Main, leaders of the DOJ Public Integrity Section (PIN), William Welch and Brenda Morris.

    DOJ, even in the District Court trial level, did not oppose release of the Schuelke Report, and neither DOJ, nor Welch nor Morris, joined in the appeal to the DC Circuit and attempted stay of the release of the Schuelke Report. The only credible takeaway from those facts is that somehow the DOJ, Welch and Morris managed to snooker Schuelke into buying they had no culpability, and that the gross misconduct was all perpetrated by the Alaska AUSA servants, and not the masters, Welch and Morris, from DOJ Main and PIN. Pretty neat trick, in spite of the fact it would belie all credulity to excuse the hands on trial court supervisors for continuing fraud upon the defendant and court that occurred over an extended period of time and was repeatedly questioned all the way through by Stevens and his attorneys from Williams & Connolly (led by Brendan Sullivan and Simon Latcovich).

    To be frank and succinct, there is not a chance in hell Welch and Morris bear no sanctionable responsibility for the heinous misconduct in the Stevens prosecution. No. Chance. Whatsoever.

    Care to revise your earlier remarks, counselor?

    Not only did Welch and Morris pull off that pretty neat trick, but they did it so well that the whole team got off without being held responsible for their heinous misconduct.

  7. FrankProbst says:

    I don’t recall the specific charges against Stevens at the time, but I do remember thinking that the testimony of Ted Stevens in and of itself was enough to convince me beyond a reasonable doubt that he was a dirty politician. His testimony was so eye-rollingly ridiculous that I thought he should go to jail just for wasting everyone’s time with it. Note that this does not excuse prosecutorial misconduct. But I think that if we threw out all of the convictions against Stevens and retried him today, all the prosecution would need to do it play his testimony from the previous trial to convince me to convict him.

  8. bmaz says:

    @Peterr: Nope, I think Welch and Morris’ conduct is far below ethical standards in the field and, further, they failed to oversee others under their command. The should both be terminated by the DOJ and, if that is not going to occur, be transferred to the pencil sharpening division at the El Centro desert way station.

  9. bmaz says:

    @FrankProbst: Stevens was tried on seven counts of false statements in relation to a Senate ethics investigation on the nature and source of gifts given to him by friends and associates. The evidence withheld was direct Brady, Jencks and/or Giglio material that either exonerated Stevens or destroyed the credibility of the witnesses against him. Unlikely the jury ever convicts him if he had been in possession of the concealed evidence.

  10. rugger9 says:

    Ted Stevens is a dirtbag. No doubt. There was a phrase in the USN that dirtbags always give you another shot. So I have no doubt a retrial would be a problem, except…

    This merry band of DOJ idiots has sown enough reasonable doubt in their game playing to give any reasonably competent defense attorney a target rich environment, not least because of the now proven misconduct. It was noted above, but realize that the prosecutions of the future will always have this cloud over them. And note also that nothing is being done about the Siegelman, et al. convictions. IOKIYAR.

  11. orionATL says:

    when can we have another report in this vein; focusing this time on lies by doj attorneys making “state’s secrets” claims to the court and by doj prosecuters persuing doj’s whistleblower cases?

  12. earlofhuntingdon says:

    Systemic frauds on the court system in the United States are only bad when peons commit them, not when the royal princes of banking, bidness and government commit them. When you think about it, the peons are incapable of perpetrating systemic fraud, which leaves the courts either clueless or so knobbled they can no longer defend themselves. A more perfect habitat for the expansion and dominance of fraudsters would be hard even for Darwin to describe.

  13. Peterr says:

    @bmaz: I was referring to the “not a chance in hell” part of your comments.

    The conduct may have been sanctionable, as you say, but Schuelke found a way not to seek sanctions.

  14. Bob Schacht says:

    One of the things that keeps me here at the Wheel House is the coverage of legal issues here, ever since the Scooter Libby thing. Thanks again.

    Bob in AZ

  15. bmaz says:

    @Bob Schacht: Thanks Bob, the better analysis is probably in the leadin primer post just before this to be honest. Have had a long busy morning, but have been trying to read Schuelke’s report.

    I think both Marcy and I will come back to it, but having known for so long the real tenor of it, almost seems not that earth shattering now that it is here. Which is kind of sad, because it is really damning. And, yet, there is little buzz on Twitter or the internets. Strange…..

  16. Bob Schacht says:

    @bmaz: I know you have (had?) some issues with the “Spotlight” function, but I liked it and found it useful. If not Spotlight, is there a similar “app” we can use?

    Bob in AZ

  17. tjallen says:

    So will it become a standard part of every government trial in the future, that we hear:

    Judge X gave the government prosecutors their Schuelke Warning today, explicitly reminding them that they must adhere to the law. Like the Miranda warning in criminal arrests, the Schuelke Warning against unethical conduct by government lawyers alerts them that they, too, are subject to prosecution if they break the law after being so warned.

  18. DWBartoo says:

    @bmaz:

    ” … the premise of the report is an outrage and should shock the conscience of every lawyer.”

    Turley is absolutely correct.

    One wonders, given the “fatal flaw” of the American legal system, perhaps a flaw of all legal systems, the apparent inability of those within the “profession” to examine themselves, to examine the manner in which the law itself is “used” (or abused), whether a canvas of lawyers, and judges as well, let us say simply, “officers of the court”, would reveal shocked consciences or something else?

    At some point it would seem that the shocks to the legal system, to the Rule of Law, OUGHT to result in SOME sort of response from the individual members of the legal profession …

    Otherwise, how might ordinary folks, those human beings outside the profession come to begin to understand the implications, the bloody consequences, that everyone, not merely lawyers, with or without conscience, compunction, or moral compass … faces, when neither competence nor even the most basic evidence of concern for actual justice or truth appear to matter in the slightest?

    When there is no accounting, no finding of contempt, despite what was done, as so many things are, in the name of “the people”… is that not the greatest and most contemptible “act” of all?

    As I have wondered, bmaz, in the past on these threads, where is the evidence that the vast majority of lawyers in this nation CARE to know the truth, let alone find their conscience slightly pricked or severely stricken?

    And every lawyer in this nation has responsibility, inherent in their position and knowledge, far greater than to their pocketbook and toward their sense of pride in what they do, and even in the comfortable “belief” that the system they serve is working as it should. For in fact, the state and the condition of the law … depends upon individuals … the law being only as good as those who “practice” it.

    At some point, which must be approaching quite swiftly, now, “deference” becomes dereliction … and silence becomes assent.

    DW

  19. R Mankoff says:

    Bottom line: when Senator Stevens was appointed to his position in the late sixties, he was solidly middle-class; when he died he was a multi-millionaire. The question is how do you become a multi-millionaire as a government employee, a ‘servant of the people’?

    Ted Stevens was a thief and a crook. The prosecution may be thieves and crooks as well, but good old “Uncle Ted’ had no business being a senator.

  20. Eric Rasmusen says:

    Take a look at the report by Stevens’s attorneys:

    http://lawprofessors.typepad.com/files/williams-connolly-analysis.pdf

    I don’t know how accurate it is, but if its facts are correct, Stevens was innocent, and the government attorneys even worse than the Schuelke Report says.

    It looks to me as if Mr. Schuelke interpreted his orders very narrowly— to find out if the prosecutors disobeyed the judge’s orders. And he found, correctly, that they didn’t. The problem is, that’s not all there is to bad behavior. As he says at the end of his report, he isn’t commenting on whether they should be found guilty of obstruction of justice.

    I should think that lying to a judge, or sitting silently in Court as your witness tells what you know is a crucial lie— should also make a lawyer subject to contempt charges. Williams and Connally is probably still interested because they may be pursuing civil damages. Disbarment is another sanction. The D. of Justice has an investigation too, but of course that won’t end with any punishment.

    If the FBI were running this as a regular investigation, they’d get one of the prosecutors to crack and we’d learn the whole story…

  21. bmaz says:

    @Eric Rasmusen: Eric, I think that is pretty much exactly right. I also still do not understand why there is not more responsibility assigned to DOJ Main supervisors WElch and Morris. The facts are fairly unequivocal that they were completely immersed in the prosecution, especially Morris.

    From a trial perspective, it is simply not credible that the lead trial attorney, Morris, and the PIN chief, Welch, would not be fully up to speed on, consulted and had to sign off on key knowledge points and conduct such as that concerning Rocky Williams status, testimony and supposed medical status. It is simply unfathomable that a prosecutor would deign to release a witness under a DEFENSE subpoena. It is flat unethical under the circumstances. You could go to the court and seek release, but you DO NOT just decide he can go and pay to ship him away with a defense subpoena outstanding. It is just stunning. Again, there is not a chance in hell both Morris and Welch did not participate in this process.

    My point is simply that not only is what you wrote and opined correct, the meaning of it goes far deeper as well. All of the original prosecutors should be sanctioned hard for what occurred, including their supervisors.

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