The Ted Stevens OPR Report: The Return of the DOJ Roach Motel

The long awaited, and much anticipated, DOJ Office of Professional Responsibility (OPR) Report on the misconduct in the Ted Stevens Prosecution has just been delivered to Congress, and thereafter immediately released to the public by the Senate Judiciary Committee. I know this will shock one and all but, at least as to real results, it is fairly weak tea.

Legal Times reports:

A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.

DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either prosecutor acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation. Bottini and Goeke have the option to appeal the misconduct finding to the Merit System Protection Board.
Department officials said Bottini and Goeke failed to disclose information a chief government witness, Bill Allen, provided to investigators and prosecutors at a meeting in 2008, before Stevens was charged. Allen’s credibility was central to the prosecution case that Stevens concealed gifts and other items on U.S. Senate financial disclosure forms.

OPR did not make any professional misconduct findings against any of the other Stevens prosecutors, including William Welch II, Brenda Morris and Edward Sullivan. OPR, however, concluded that Morris, then a supervisor in the Public Integrity Section, exercised poor judgment by failing to supervise “certain aspects of the disclosure process.”

A special counsel who conducted a parallel probe of the Stevens team, after the case was dismissed in April 2009, did not recommend criminal charges against any of the Stevens prosecution team.

However, the lawyer, Henry “Hank” Schuelke III, concluded that Goeke and Bottini committed intentional misconduct in concealing exculpatory information. The two prosecutors dispute that finding.

Yeah, that about sums it up.

Cover letter to the Senate Judiciary Committee

Here are all the relevant documents (note: the pdf on the report itself is huge – 672 pages):

Office of Professional Responsibility Report

Bottini Decision

Bottini Disciplinary Proposal

Bottini Response

Goeke Decision

Goeke Disciplinary Proposal

Goeke Response

Goeke Response Appendix

A little more than two years ago I wrote about the inherent worthlessness of the OPR at DOJ:

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Go back and read that post again, I am too tired to write it again and nothing has changed. What a load of bunk the Stevens OPR Report is. Some harsh words for sure, but, as to actual accountability – a rap on the knuckles with a foam ruler.

Ted Stevens lost his Senate seat these twits get an unpaid vacation.

The OPR is STILL The Roach Motel.

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.
7 replies
  1. bmaz says:

    Oh, forgot to add this:

    The Senate Committee on the Judiciary has scheduled a hearing on “Ensuring that Federal Prosecutors Meet Discovery Obligations” for Wednesday, June 6, 2012 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

  2. thatvisionthing says:

    That name again:

    The pardons process in the United States is broken. President Bush issued fewer pardons and commutations than any two-term president since Thomas Jefferson, and the process has crept to a virtual standstill under Barack Obama. The ProPublica investigation has done a superb job of charting exactly where the blockage occurs: with Rodgers and his supervisor, David Margolis. The pair has shut down the pardons process by improvising a prosecutorial right of veto onto the system.

    From Scott Horton’s recent article “Blocking Pardons at Justice,” which focuses on DOJ’s pardon attorney Ronald Rodgers, who screens crucial info out from being seen, ensuring unjust sentences will not be commuted. Fits.

  3. Peterr says:

    Apparently the regular Friday Trash Day in DC gets moved up a day when we’re leading into the big Memorial Day holiday weekend.

    That’s quite a dumpster-load in that OPR report.

  4. Peterr says:

    From the Bottini Disciplinary Proposal:

    One final point needs to be made. The Merit Systems Protection Board requires proposing officials to consider the “consistency of the penalty with those imposed on other employees for the same or similar offenses.” It is this single factor that weighs most heavily in your favor because I very seriously contemplated proposing that you be terminated from your position for your egregious misconduct. However, I am unaware of a single case within the Department of Justice where an employee with a record similar to yours was terminated after OPR failed to find that the employee engaged in intentional misconduct. Accordingly, I am compelled to ultimately conclude that a proposal that you be terminated would not be consistent with the penalty “imposed on other employees for the same or similar offenses.”

    Shorter Ohlson: Since we’ve never done it before, we won’t start now.

    My questions:
    How many non-terminations for similar offenses have there been?
    How many such offenses are acceptable to the DOJ?
    How many years does a DOJ attorney have to work to earn a mulligan like this?

    The response by his lawyer is quite something as well. I thought this was rather well put:

    OPR faults AUSA Bottini for team failures caused in large part by dysfunctional management. The government’s disclosure violations were rooted largely in two failures of management: the absence of supervision by PIN leadership and the disruptive effect of management decisions that were made as the Criminal Division Front Office attempted to fill that leadership void. OPR does not meaningfully account for the impact of that poor management on AUSA Bottini, even though recklessness is a context-dependent state of mind. Analytical Framework ¶ B.4; cf. Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). Worse, it applies a double standard of professional responsibility to fault AUSA Bottini for the government’s collective failure while absolving his superiors, even though it was their mismanagement that set the prosecution’s problems in motion.

    This doesn’t absolve Bottini, but it sure reinforces the notion that whether we’re talking about Wall Street or government, when it comes to corporate misconduct, minions pay the price and executives walk away clean.

  5. bmaz says:

    @Peterr: By the way Peter, you might be interested to know about Kevin Ohlson. He is literally attached to the hip of Eric Holder, and has been for 20 years, going back to when he was Holders PIO at the DC US Attorney’s Office. Ohlson is NOT independent, this was what was ordered to be done from the AG himself.

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