Notes on Reading the Administrative Judge's Ruling Regarding the Suspensions of Two Ted Stevens Prosecutors

Anchorage--

Reading the administrative judge's ruling allows me to elaborate on two points and give news on another.

The first point to elaborate is that the procedural defect identified by the administrative judge leading to reversal of the suspensions was a violation of the Justice Department's procedures in deciding internal discipline for prosecutors.   The administrative judge ruled that the procedures called for a Justice Department attorney not in management to take the first crack at deciding discipline and that the procedures were violated by what actually happened in the handling of two of the Ted Stevens prosecutors.  

What actually happened with Assistant U.S. Attorneys Joe Bottini and James Goeke is that the Justice Department first gave the decision to a line attorney in the Professional Misconduct Review Unit and then took away that decision from him when that line attorney concluded that the prosecutors did not commit professional misconduct as the Justice Department defined it.   The line attorney's supervisor then decided that both prosecutors should serve suspensions for their roles in not turning over evidence that should have been disclosed to the defense.   The Justice Department ultimately issued a 40-day suspension for Bottini and a 15-day suspension for Goeke. 

The second point to elaborate is that although the administrative judge did not decide on the merits of the suspensions, he stated that there is "considerable question" as to whether the suspension could be upheld given that they appeared to be more severe than those imposed in the past for similar conduct. 

The news is that Bottini has not served any portion of the suspension and that Goeke has only served one day.

The Department of Justice can appeal the administrative judge's decision, but has so far apparently offered no comment.

Administrative Judge Reverses on Procedural Grounds the Suspensions of Two Ted Stevens Prosecutors

Anchorage--

An administrative judge has reversed on procedural grounds the suspensions of two Ted Stevens prosecutors sanctioned for misconduct.   Charlie Savage of the New York Times has the story here, and the ruling is here (PDF).

House Ethics Committee to Investigate Rep. Don Young

Anchorage--

The House Ethics Committee has voted to create a special panel to probe activities of Rep. Don Young (R.-Alaska).   The Associated Press reports that that the investigation will concentrate on "his expenses and travel costs for trips that were already the subject of an ethics investigation."   According to the news organization, the probe arises after a referral from the Justice Department, which had previously investigated allegations that the Congressman "accepted gifts in exchange for political patronage."

The announcement on the House Ethics Committee website is:

In accordance with House Rule XI, clause 3 and Committee Rules 10(a)(2) and 18, the Committee on Ethics (Committee) unanimously voted on February 26, 2013, to establish an Investigative Subcommittee. Pursuant to the Committee’s action, the Investigative Subcommittee shall have jurisdiction to determine whether Representative Don Young violated the Code of Official Conduct or any law, rule, regulation, or other applicable standard of conduct in the performance of his duties or the discharge of his responsibilities, with respect to allegations that he, or persons acting on his behalf, improperly obtained, received, or accepted gifts, improperly used official resources or campaign funds for personal purposes, failed to report certain gifts on his annual Financial Disclosure Statements, and made false statements to federal officials.

Politico Corrects Inaccurate Story about Ted Stevens Case

Anchorage--

Congratulations to Politico for correcting a major error about the Ted Stevens case.   The insidery Capitol Hill publication wrote yesterday in a story that:

Sen. Ted Stevens (R-Alaska) lost his seat amid a campaign finance scandal, and has since passed away.


This is wrong.   Brendan Sullivan, the chief defense counsel for Ted Stevens, asserted in his closing argument that it was potential charges involving campaign finance violations that the Senator was worried about in FBI-monitored telephone calls with cooperating witness Bill Allen. The actual indictment, however, charged seven counts of failure to disclose gifts and/or liabilities under the Ethics in Government Act.


I was happy to see that today the article has been corrected to simply say that Ted Stevens was defeated in 2008.

The Substance and Thinking Involved in the Ted Stevens Indictment

Anchorage--

Here is the latest installment of my column for the Alaska Bar Rag, the official publication of the Last Frontier's lawyers.    It is one of a series of pieces on the Ted Stevens case.

The Substance and Thinking

Involved in the Ted Stevens Indictment

by Cliff Groh

The last Bar Rag column described how the Department of Justice ended up not charging U.S. Sen. Ted Stevens with the offenses of bribery, honest-services fraud, receipt of illegal gratuities, and conversion of government services prosecutors considered during a probe that ran at least 33 months.

This installment in a multi-part series on the Ted Stevens case looks at the counts of failure to disclose gifts and/or liabilities that did appear in the indictment handed down on July 29, 2008.   This piece also includes an examination of some of the other factors involved in the indictment.      

Charges:  Items, Dollars, and Years

Recall that the indictment charged seven felony counts of failing to report gifts and/or liabilities on disclosure forms required annually from each U.S. Senator.   The prosecution alleged that Ted Stevens failed to report such colorful gifts as a massage chair from Girdwood restaurant owner Bob Persons, a blue-eyed puppy and a stained-glass window from Alaska real estate developer Bob Penney, and a bronze salmon statue from the Kenai River Sportfishing Association.   That first gift—a vibrating lounger that stayed in Stevens’ home in Washington, D.C. for seven years while Stevens said he thought it was a loan—left a lasting image that hurt the defendant at trial.  

Yet the great bulk of the unreported gifts and/or liabilities contained in the government’s case came from the oil-services giant VECO and its long-time CEO Bill Allen in the form of renovation work, repair, and improvements at the Senator’s Girdwood home.   The indictment alleged that over a period of more than six years Stevens failed to report more than $250,000 in free labor, materials, and other things of value provided by VECO and/or Allen at the Girdwood residence.   Items on the government’s  list of “freebies” included hardwood floors, work on one deck and all the work on another deck, a roof over the second deck, a professional gas grill, a Jacuzzi, and other furniture.   The indictment included one more benefit going from Allen to Ted Stevens that was unrelated to the Girdwood residence, a car trade in which one of the Senator’s children allegedly ended up with a vehicle substantially more valuable than the vehicle the Senator put up as his part of the trade.

The benefits from VECO and/or Allen were loaded into the early years of the period covered by the indictment handed down on July 29, 2008.   The charging document stated that approximately $200,000 of those things of value came in the period between the summer of 2000 and the end of 2001 and that another approximately $55,000 worth of benefits came in 2002.    

Six counts in the indictment covered the annual reports filed for the six calendar years 2001 through 2006, and alleged that Stevens had violated a federal statute (18 U.S.C. Subsec. 1001(a)(2)) criminalizing the making of “any materially false, fictitious, or fraudulent statement or representation.”   A seventh count alleged a scheme by Stevens running from calendar year 1999 through calendar year 2006 to conceal his receipt of things of value from Allen and VECO.   That seventh count alleged that the Senator had violated 18 U.S.C. Subsec. 1001(a)(1), which targets one “who falsifies, conceals, or covers up by any trick, scheme, or device a material fact.”   

Limiting Elements of the Offenses Charged

This statute has two critical limiting features:   a required mental state and a restriction on the statements covered.  

The mental state on the counts differed.  In the six counts for individual years it was “knowingly and willfully,” and the mental state in the count for the alleged multi-year scheme was “knowingly and intentionally.”  

Except for listed exceptions, the statute covers statements “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”   Importantly for lawyers, one of those exceptions is that the statute does not apply to a party to a judicial proceeding or that party’s counsel “for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.”   More importantly for this case, as to any matter within the jurisdiction of the legislative branch, the statute applies only in a limited set of circumstances, including “a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch.”

The Source of the Requirement to Disclose:  The Ethics in Government Act

The indictment alleged that the relevant false statements by Ted Stevens appeared in annual disclosure forms required by the Ethics in Government Act of 1978 (5 U.S.C. App. 4 Secs. 101-111).  That Act requires various federal officials, including Members of Congress, to file annual disclosure statements detailing, with certain exceptions, their income, gifts, assets, financial liabilities, and securities and commercial real estate transactions. This statute was a child of the reforms adopted after the Watergate scandals (as was the Public Integrity Section that spearheaded the prosecution of Ted Stevens).  Particularly because of its restrictions on outside income for Members of Congress, the legislation was highly controversial on Capitol Hill when adopted—one Member of the House told the New Yorker that the bill was so unpopular that the legislation would have failed 2-1 if put to a secret ballot.   

As a statute, the Ethics in Government Act was not a favorite of prosecutors, either.  In conjunction with the statute criminalizing some false statements, the adoption of the Ethics in Government Act made it possible to prosecute public officials for false statements on their disclosure forms, but such prosecutions were not common.  According to James B. Stewart’s 1987 book The Prosecutors, the Justice Department had adopted an informal policy that disfavored prosecution for disclosure violations “except in the most egregious cases.”   

The subjective state of mind required by the statute was the practical problem prosecutors often found with charging public officials with the crime of failing to disclose gifts, loans, and income.   Prosecutors were worried that juries would be sympathetic to a defendant claiming he or she just forgot the matters that did not appear on the disclosure forms.  As Stewart reported in 1987, prosecutors evaluating charges against a number of federal officials—including Attorney General nominee Edwin Meese—ended up declining to prosecute on disclosure violations based on fears of inability to approve the required criminal intent to conceal.    And it was of course the mental element that turned out to be where all the action was in the Ted Stevens case.

Shorn of any charges of bribery or honest-services fraud, the 

indictment against Ted Stevens seemed to many observers to contain only technical violations.   Alaska historian John Strohmeyer branded them “pussycat charges,” and Fairbanks newspaper columnist Dermot Cole suggested after the trial that all the government had proved was that Stevens “may have failed to fill out the paperwork correctly to report such gifts as a gas grill, massage chair, sled dog and ugly artwork.”

With Bill Allen pleading guilty to bribing Ted Stevens’ son Ben—and given the very close personal relationship between Bill Allen and Ted Stevens over a number of years—the federal investigators and prosecutors on the Polar Pen probe would disagree.  Although they would never say it this way publicly, it seemed like some of those prosecutors and investigators pursuing Ted Stevens saw the charges of failure to disclose as equivalent to the charges of income tax evasion that brought down notorious mobster Al Capone.

The indictment had some distinctive touches, including a number of official acts that Ted Stevens took to benefit VECO.   Prosecutors could have inserted the list to offer a motive for why Stevens wanted to hide his receipt of benefits.   The list also seemed to be a residue of the years the Justice Department spent investigating Stevens for crimes with a quid pro quo element, almost like spots left on a dish after a hasty handwashing.   

One of those listed official acts reads particularly odd to Alaska eyes.  The indictment’s statement that Ted Stevens “received and accepted solicitations…from Allen and other VECO employees” for “assistance on both federal and state issues in connection with the effort to construct a natural gas pipeline from Alaska’s North Slope Region” betrayed a certain cluelessness about political realities in the Great Land.   Everybody with the slightest understanding of how things work on the Last Frontier knows that Ted Stevens would have strongly supported the gasline if Bill Allen had never been born and VECO had never existed.

Some Additional Factors in the Indictment

The Justice Department’s motivations for bringing the charges against Ted Stevens triggered much discussion in Alaska and on Capitol Hill, both because of the big political impacts of the case and because decisions on white-collar crime cases involve more prosecutorial discretion than do blue-collar crime cases.      

It was the Justice Department in the administration of President George W. Bush that brought the charges against the longest-serving Republican Senator ever.   When the case melted down due to revelations of prosecutorial misconduct, however, some commentators pointed to the Democratic leanings of some of the government’s attorneys to account for the Justice Department’s handling of the case.    The evidence suggests that any accusation of Democratic partisanship is a bum rap as an explanation for either the indictment or the discovery violations.    Two of the biggest players—Public Integrity Section Trial Attorney Nicholas Marsh and Public Integrity Section Chief William Welch—were Democrats, but this shouldn’t matter and did not seem to matter in this case.  

A more relevant factor in the decision to indict Ted Stevens was a lack of focus and management by the Justice Department throughout the process.   As one experienced Alaska lawyer observed, the Public Integrity Section and the higher-ups in Washington never seemed to understand what they had in the “Polar Pen” prosecution, treating Alaska as a backwater even after a Congressional powerhouse became a target.    The best way to see this is to contrast the Justice Department’s handling of the Ted Stevens case with how federal prosecutors dealt in the 1990s with another powerful politician, U.S. Rep. Dan Rostenkowski, D.-Ill.

There were a number of similarities between the cases of the two Capitol Hill titans.    Each served in Congress for more than 35 years and ended up as legends at home.   Both were long-time chairmen of critical Congressional committees—Rostenkowski helmed the tax-writing House Ways and Ways Committee, while Stevens had served for years at the top of Senate Appropriations.   Each had their lengthy careers ended by charges arising out of investigations that initially did not target them (the probe of Rostenkowski was an outgrowth of an examination of irregularities in the House post office system, and he ultimately pleaded guilty to two counts of mail fraud and served 15 months in custody).    Each faced charges brought by the executive branch under the control of the same party as that of the defendant (Rostenkowski was indicted in May of 1994 during the Clinton administration).

There were key differences as well between the Rostenkowski and Stevens cases.   The Rostenkowski case was brought by the Washington, D.C. U.S. Attorney's Office, while that office was excluded from the Stevens case.   Rostenkowski was charged with an unexpectedly wide-ranging 17-count indictment that covered fraud and embezzlement, conversion of public funds to private use, witness-tampering, concealing a material fact from Congress, wire fraud, and aiding and abetting a crime.   Prosecutors charged Stevens, on the other hand, with an unexpectedly narrow set of counts alleging failure to disclose his receipt of gifts and/or his liability for debts.   

Most importantly, prosecutors substantially experienced in high-profile public corruption cases seemed to pay more attention to the Rostenkowski case for a longer period of time than the Stevens case.   As detailed in the New York Times, Eric Holder took over as U.S. Attorney for Washington, D.C. after the investigation into Rostenkowski had run on for a number of months.  Holder had previously prosecuted a Congressman in an Abscam public corruption case.  The new U.S. Attorney quickly instructed the chief of the office’s public corruption section—a prosecutor who had successfully brought cases against a governor and a federal judge—to drop or re-assign other matters and work full-time on the Rostenkowski case, and the indictment came approximately seven months later. 

Contrast that intensive focus of attorneys with extensive experience in high-level public corruption cases with that of the lawyers most actively involved in the Ted Stevens case before the indictment.   The smart and hard-working Marsh had only been a prosecutor for about a year when he started working on the Polar Pen probe, and he had no previous experience being in charge day-to-day of a high-profile public corruption case.    Assistant U.S. Attorney Joseph Bottini was a highly experienced federal prosecutor with a strong reputation for straight shooting, but had no experience in a case like the one against Ted Stevens.

Next installment:   The indictment’s curious timing and the false choice it represented

Did Payoffs Grease the Way for the U.S.'s Purchase of Alaska?

Anchorage--

Tom Kizzia has a front-page story in today's Anchorage Daily News discussing evidence that questionable payments--perhaps bribes--went to key Members of Congress to secure passage of legislation to buy Alaska from Russia in 1867.   This evidence comes from a new biography of Secretary of State William H. Seward. 

Norms were different back then, as shown in the historically accurate portrayal of political maneuvering in the new movie Lincoln.   The film shows lobbyists associated with Seward--and President Abraham Lincoln--dangle jobs in front of Members of Congress to get them to vote for the 13th Amendment to prohibit slavery.   It is even more clear that laws--and the enforcement of the laws--also were substantially different in the 19th century than they are today.   The magisterial book Bribes by John T. Noonan, Jr. points out that it was not until 1853 that it was against the law to bribe a Member of Congress, and there were no convictions before 1905.   Noonan cites the English observer James Brice's estimate in 1889 that about one-quarter of Congress took cash, stocks, land, or other property for their votes or committee actions. 

Why Were So Many Experts Surprised by Obama's Victory?--UPDATED

Anchorage--

A number of people have asked why so many presumably well-informed people--apparently including high-ranking people in the Mitt Romney campaign itself--were so surprised when President Barack Obama won re-election, particularly by the margin he did.    One of those asking was my sister, so I wrote this analysis for her.    I am taking my wife's suggestion to post a slightly edited version of that analysis on this blog.    

Despite a number of public polls showing the likelihood of an Obama victory, some analysts gave wildly incorrect predictions of a strong win for former Gov. Mitt Romney, the Republican nominee.   One example of such a terrifically inaccurate prognostication was that by the long-time political analyst Michael Barone.   This veteran columnist and co-founder of the seminal Almanac of American Politics wrote on Nov. 2 that Romney would win 315 electoral votes.   Barone gave a backup prediction in the same piece that subtracted Pennsylvania and Wisconsin from Romney's column and thus still had Romney winning the presidency with 285 electoral votes, 15 more than the 270 needed to gain victory in the Electoral College.   (Barone eats his crow here in the face of the President's victory, which now with the Florida recount showing Obama the winner in that state  makes his Electoral College total stand at 332.)  

This question of "Why were people surprised when Obama won?" is separate but related to the question of why Obama won, which would include factors such as the nation's changing demographics, the Obama campaign's superior get-out-the vote efforts (as conceded by Romney campaign staff), and the apparently more effective use of advertising by the Obama campaign and its affiliated groups.    Influenced by the commentators Josh Marshall and James Fallows, I offer this list of reasons for why there was so much surprise Tuesday night in the world of Fox News:

1.   As my son's Campaigns and Elections professor pointed out to that class, the economic fundamentals were not as negative for Obama as a number of commentators thought, particularly because the economy is improving and many voters blame George W. Bush for the disappointing economy.

2.   Some commentators predicting a Romney victory focused on a perceived momentum and an intensity gap favoring Romney in the last month of the campaign.   The problem was that at least in some cases this perception of momentum, enthusiasm, and intensity seemed to be sharply influenced by the facts that (a) those commentators themselves strongly disapproved of Obama's policies and (b) those commentators spent a lot of time talking with other people who strongly disapproved of Obama's policies and projected the feelings of their friends to the electorate as a whole.   (This last sentiment is sometimes known as "the living in a bubble and not knowing it" problem, (unfairly) associated with the former New Yorker film critic Pauline Kael's alleged reaction to Richard Nixon's sweeping victory in 1972.)

3.   More technically, some commentators thought that most of the polls showing a lead for Obama were skewed by assuming that the voting public would consist of more Democrats than Republicans.   Those commentators thought that was unlikely.  A good example of that "Most polls are skewed" view was the John Podhoretz column just before the election in the New York Post which relies on the Rasmussen and Gallup national polls, two organizations that consistently reported better results for Romney that many other polling outfits.   As Podhoretz notes, Rasmussen predicted in October 39 percent R and 33 percent D, and Gallup predicted in October 36 percent R and 35 percent D.

The exit polls showed that most of the polls conducted by organizations other than Rasmussen and Gallup were right--in fact, 38 percent of the voters identified as Democrats and 32 percent identified as Republicans.   

How did Rasmussen and Gallup get this so wrong?

I have heard four explanations.    The first is a huge racial mistake by Gallup, which assumed that 78 percent of the voters would be white.   Instead, the exit polls showed that only 72 percent of the voters were white.   Nonwhite voters were obviously much more likely to vote for Obama than white voters.

A second factor is that Rasmussen and Gallup missed how much self-identification as Republican has dropped in recent years, with possible explanations being unhappiness with George W. Bush's presidency or displeasure with perceived obstructionism by Congressional Republicans during Obama's presidency.

The other two explanations for why Rasmussen and Gallup thought the voters would be so much more Republican and/or white than actually occurred are rooted in technical deficiencies in the methodologies of some polls.   Rasmussen runs robo-polls through automated pre-recorded telephone calls, and federal law prohibits a computer from calling a cell phone.    People who have only cell phones and not land lines tend to be younger and more likely to be minorities than people who have only land lines.    It also appears that some polling organizations do not use Spanish-language interviewers, and that might produce a small but significant bias in critical states such as Florida and Colorado.

4.   Some commentators predicting a Romney victory pointed to the traditional rule in politics that undecided voters break late against the incumbent.   That traditional rule did not apply in 2012.   In fact, exit polls showed that most of the 9 percent of the voters deciding in the last few days went for Obama.       

5.   Romney led in many of the polls (and in the exit polls) among independents, and some commentators predicting a Romney triumph cited the traditional rule in politics that the candidate who wins independents wins the election.   Independents did go for Romney--the exit polls showed that Romney won independents by only 5 points, although that was a smaller margin than the Romney campaign was counting on.   But that 5-point advantage was also insufficient for Romney because of another problem with the traditional rule this year alluded to in Point 3 above--it is not true that independents are a group sitting equidistant between the two parties.   A number of self-identified independents are former Republicans who had stopped using that label.  As Josh Marshall has pointed out, a number of those newly self-identified independents were still likely to hold conservative views and may have stopped labeling themselves as Republicans out of a belief that the Republican Party favored too large a government.   That movement of Tea Party types away from describing themselves as Republicans weakened the predictive effect of the "independents control" rule.     

[November 11--Following a conversation with my son, this morning I updated this post and tweaked it for clarity.]