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Eric Holder to Federal Prosecutors: Don't Play Politics with the Law

Holder has placed all federal prosecutors on notice that his Justice Department will play by the rules.

In a striking and decisive move, Attorney General Eric Holder has dismissed the indictment that had resulted in the conviction of former Republican U.S. Senator Ted Stevens of Alaska. As Holder explained, he made the surprising announcement of the dismissal after he discovered further evidence of prosecutorial misconduct, and determined that in the interests of justice, he must seek to have the indictment voided and the case dismissed.

If the situation was indeed as bad as Holder has suggested, it seems that he did the right thing. Yet it is the judge in the case, Judge Emmett Sullivan of the U.S. District Court for the District of Columbia, who deserves credit for first bringing what appears to have been serious prosecutorial misconduct to light.

Judge Sullivan's Rulings in the Stevens Case Must Have Been the Flare that Caught Holder's Attention

Senator Stevens was tried and convicted by a jury in Judge Sullivan's courtroom. Sullivan had earlier reprimanded the federal prosecutors for their handling of the case, and at a later point, had even held them in contempt of court for ignoring his order. Thus, when Holder arrived as Attorney General at the Obama Department of Justice, he found that several of his senior prosecutors in the Public Integrity Section of the Criminal Division had outstanding contempt citations pending against them.

Clearly, Eric Holder, who had started his own career as a prosecutor in the Public Integrity Section, did not take this situation lightly. Holder had once served on the District of Columbia trial court bench with Emmett Sullivan, and he knew that Judge Sullivan was a solid, if not model, judge. Holder understood that it was extraordinary that Judge Sullivan had taken the virtually-unheard-of action of holding top Justice Department attorneys in contempt for their behavior. Uncharacteristically, too, Judge Sullivan had found it necessary to repeatedly lambaste the government for misconduct.

For example, Judge Sullivan had called the prosecutors' failure to disclose essential information about evidence that they had already presented to the jury "disturbing." Indeed, he found the nondisclosure serious enough that he struck the evidence and told the members of the jury that they should not consider it. Moreover, outside the jury's presence, Judge Sullivan struck other evidence, and accused the government of presenting that evidence despite knowing that it consisted of lies.

An FBI Agent's Complaint Also Drew Attention to Problems with the Stevens Conviction

Following Stevens's October conviction, in late December 2008, one of the Alaska-based FBI agents who had been involved in the case filed a formal complaint with the Justice Department (a procedure he followed to give himself whistleblower status and job protection). In his complaint, he charged that a fellow FBI agent along with the  prosecutors contrived to improperly conceal evidence from the court and the defense.

The allegations included claims that a female agent on the case had had an improper relationship with the government's star witness, and that the prosecutors had, in essence, lied to Judge Sullivan in explaining some of their actions during the trial. Judge Sullivan has published  a redacted version of the complaint, which sets forth "serious violations of policy, rules, and procedures as well as possible criminal violations." This complaint resulted in Stevens's attorneys' filing another motion for a mistrial. That motion was pending when Attorney General Holder announced his actions.

But it got even worse.

A Further Contempt Holding From Judge Sullivan Ensued

At another post-conviction hearing, on February 13, 2009, Judge Sullivan held four Justice Department attorneys in contempt for defying his order and failing to provide thirty-three documents related to post-trial motions. The contempt holding was directed at the head of the Public Integrity Section, William Welch; his deputy and the lead prosecutor in the case against Stevens, Brenda Morris; the head of the Criminal Division's Appellate Section, Patricia Steler; and a trial attorney who had just joined the team (and because he had no true responsibility was quickly excused from the contempt citation), Kevin Driscoll.

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