Alaska’s Senator Ted Stevens suffered the humiliation of being convicted on all counts in a public corruption trial on the eve of the 2008 elections, causing the voters to retire him from public life after a career of more than 40 years. But on Wednesday, Attorney General Eric Holder stunned observers by announcing that the Justice Department would abandon the Stevens conviction due to gross misconduct on the part of the prosecutors.
By walking away from its highest profile public-integrity prosecution of the last several years and directing a probe into the dealings of his own prosecutors, Holder set a new tone in the Justice Department. He also sent a strong signal of what the future may hold for more than a dozen other prosecutions of political figures during the Bush years. The Justice Department is now bracing for a makeover.
Holder’s Stevens decision presents a ray of hope for a number of politicians who were Public Integrity’s targets.
From the opening of the Stevens trial, there were fireworks over the prosecution’s management of the case. Defense counsel Brendan Sullivan argued that prosecutors had connived to keep a key witness out of the courtroom, an accusation that the judge ultimately validated. After the jury delivered a verdict of guilty on all counts, an FBI agent who worked with the prosecutors turned whistleblower, filing a complaint that detailed allegations of suppressed exculpatory evidence, of an improper relationship between a member of the prosecution team and the prosecution’s star witness, and even the acceptance by a prosecutor of illicit gifts—in a case that turned on identical allegations against Stevens.
The judge directed the prosecutors to turn over withheld evidence, but the prosecutors inexplicably failed to comply with his order—prompting a contempt citation against the senior-most lawyers in the department’s Public Integrity Section. “Does the Public Integrity Section have any integrity?” Judge Emmet Sullivan thundered.
While the judge took the contempt citations under study for possible punishment, Holder, himself both an alumnus of the Public Integrity Section and a former colleague of the judge handling the case, took a careful look at the file. Judge Sullivan had specifically asked Attorney General Michael Mukasey to do so, but he declined to get involved. As Holder worked his way through the file, he was reportedly “horrified” at what he found about the management of the case. Most likely his reaction had to do with the suppression of evidence, about which no public details are yet available.
Defense counsel Sullivan gave a clue in a statement after Holder’s announcement. He claimed that the Holder decision turned on “extraordinary evidence of government corruption,” saying the prosecutors actually “created false testimony that they gave us and actually presented false testimony in the courtroom.”
Taking into account the gravity of the prosecutorial misconduct involved, Stevens’ age (85), and the fact that he no longer held public office, Holder decided that the case and conviction already secured should be abandoned. He also directed that the Office of Professional Responsibility, the department’s ethics watchdog, take a look at the allegations of prosecutorial misconduct and recommend disciplinary action.
The Public Integrity Section is now under siege. It has had five heads in the last six years, and it now appears in line for a sixth. Only days after the contempt citation in the Stevens case, a federal judge in Maine concluded that a case Public Integrity prosecutors had brought coming out of a New Hampshire phone-jamming incident during the 2002 U.S. Senate race there was a politically motivated act of retaliation. A House Judiciary Committee report completed in 2008 also found substantial evidence that a large number of Public Integrity prosecutions were politically motivated and may have been directed out of the White House. An internal Justice Department probe looking into the firing of eight U.S. attorneys found evidence of just such White House interference in at least one political prosecution, which has now been turned over to a special prosecution for further investigation. The misconduct by the Public Integrity prosecutors was itself potentially criminal in nature.
Holder’s Stevens decision presents a ray of hope for a number of politicians who were Public Integrity’s targets. Gov. Don Siegelman, Democrat of Alabama, was convicted in a case in which a prosecution whistleblower raised misconduct allegations of evidence suppression and improper jury tampering even more serious than those in the Stevens case. The Bush Justice Department, led by the lawyers who are now being disciplined, swept the allegations under the carpet. The conviction of Mississippi lawyer Paul Minor and judges Walter Teel and John Whitfield also raise the same issues. If Holder reacts to these cases the same way, then we can expect an internal review and the possibility that the Justice Department will simply abandon the convictions obtained.
Such an outcome has a historical precedent. In 1801, Thomas Jefferson reversed and abandoned a number of convictions secured by the Federalist Justice Department under the Alien and Sedition Acts during a period he called “the reign of witches.” The recent reign of witches is slowly coming to an end.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and American Lawyer, among other publications.