Why Haven't Ben Stevens and Don Young Been Prosecuted?--UPDATED

Anchorage—

Back in the fall of 2008, it looked like former Alaska State Senate President Ben Stevens (R.-Anchorage) and U.S. Rep. Don Young (R.-Alaska) would be charged soon in the federal investigation into Alaska public corruption.

Federal prosecutors had induced former VECO executives Bill Allen and Rick Smith to plead guilty to bribing Ben Stevens over the ex-lawmaker’s role in oil-tax legislation, and news reports disclosed that investigators were looking closely at Ben Stevens’ income from consulting contracts with fisheries entities with interests in legislation supported by his father, then-U.S. Sen. Ted Stevens (R.-Alaska).

As for Young, the press had reported that the Congressman for all Alaska faced a federal probe on multiple fronts. Particularly problematic for Young, it appeared, were the roles of Allen and Smith in Young’s campaign fundraising.

More generally, back in late October of 2008 the prosecutors appeared to be on a roll. Every defendant who had been charged in the federal probe into Last Frontier public corruption—codenamed “POLAR PEN”—had either pleaded guilty or had the jury return guilty verdicts at trial, and a prominent Alaska journalist had reported that multiple sources had told him that a total of 26 people would be indicted.

Sixteen months later, however, neither Ben Stevens nor Don Young has been charged with any crime. The total number of people charged in the federal probe is stuck at 12, with only one of those—ex-State Rep. Beverly Masek (R.-Willow)—being charged in the last year and a half. The judge who has overseen most of the cases brought in the federal probe into Alaska public corruption announced in October that the likelihood of charges against any more people amounted to “sheer speculation.” And Ben Stevens and Don Young—and their lawyers—would also like you to know that each of them vigorously denies wrongdoing.

Why haven’t federal prosecutors charged either man?

I don’t know for sure, and I haven’t spoken about this with anybody with inside information on the decision-making. With those caveats, here’s my speculation, which puts the factors pointing towards non-prosecution into three categories:

1. The Department of Justice appears to feel both singed and relatively short-staffed after the Ted Stevens case blew up and former legislators Pete Kott and Vic Kohring got out of prison.

A lot has gone wrong for the federal government on its probe in the last 16 months, and the investigation started going downhill very soon after the jury returned its guilty verdicts on October 27, 2008 against then-U.S. Sen. Ted Stevens. The case completely collapsed last April, when in the wake of admitted failures by the prosecution before the trial to over to the defense evidence (“discovery” in legal lingo) the trial judge set aside the jury verdicts and dismissed the case.

The lawyers who served as the prosecutors against Ted Stevens are now the subjects of two investigations themselves. One probe is an internal investigation run by the Department’s Office of Professional Responsibility (OPR), and the other is a highly unusual probe instigated by the trial judge and run by a special counsel that is looking at the possibility of charging those lawyers with criminal contempt of court.

Then in June, the new prosecution teams assigned to the Alaska public corruption investigation announced that they had discovered additional evidence that should have turned over before the trials of former State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla). In another highly unusual development, the government agreed that Kott and Kohring could leave prison pending the resolution of the questions raised by these discovery failures—and both ex-lawmakers are still free.

The meltdown of the Ted Stevens prosecution and the continuing revelations of the prosecution’s failures have put a cloud over the lawyers best-informed about the Alaska public corruption investigation and dirtied up the government’s primary cooperating witnesses.

The Department of Justice appears to face problems both perceptual and practical in pushing ahead with complicated new cases in “POLAR PEN,” the long-running federal probe of Alaska public corruption.

The perceptual problem is that the collapse of the Ted Stevens prosecution and the post-trial litigation in the cases of Kott and Kohring have made the feds look inept, malicious, or both. The prosecutors’ handling of the Ted Stevens case, in particular, stands as a black mark on the Department of Justice. Attorney General Eric Holder might think that the benefit from teaching government lawyers a lesson by pulling the plug on the Alaska public corruption investigation was worth the price in any corrupt public officials who thereby escaped punishment.

And then there’s the practical problem—the people who spent the most time on your dime learning the most about public corruption in Alaska are now on the griddle themselves for their alleged misconduct in the Ted Stevens trial. The lead FBI agent on the “POLAR PEN” investigation may also be facing an internal investigation over various allegations made by Chad Joy, a colleague who worked closely with her.

The federal government’s reputation for unlimited resources notwithstanding, there are only about 30 lawyers in the Public Integrity Section, the Department of Justice’s specialized unit dedicated to fighting public corruption. The U.S. Attorney’s Office in Anchorage could help directly now that it is no longer recused from working on the “POLAR PEN” cases. Particularly given the Attorney General’s possible desire to take advantage of a teachable moment for prosecutors, however, the Department may decide (or have already decided) that it wants to move on to other matters in this investigation that has already run on almost seven years.

Even if the Department decides it’s willing to throw in the staff needed to prosecute Ben Stevens and Don Young, the new team(s) of federal prosecutors would be stuck with dealing with key witnesses who look significantly worse than they did 16 months ago.

It's not just the fact that former VECO executives Bill Allen and Rick Smith are now in prison that they may be less attractive witnesses for federal prosecutors than they were before--the government has bigger problems than that. The increased questions about Bill Allen’s memory and credibility that have arisen in the post-trial litigation in the Ted Stevens and Kott cases are bad enough.

Even worse, though, are the details of Allen’s alleged sexual abuse of minors. Prosecutors would have to be worried about the risks that evidence of Allen’s alleged sexual offenses would somehow get in front of a jury in a trial and create such anger that jurors would go for jury nullification and acquit Ben Stevens or Young out of outrage that Allen has so far escaped prosecution for what some jurors might see as crimes worse than public corruption. Publicity regarding Allen’s sordid past has been so extensive in Alaska—which is the only logical place that Ben Stevens could be tried, at least for crimes involving oil-tax legislation—that prosecutors would also have to be concerned about the jury being tainted even without the introduction of evidence about the alleged sex crimes of the former VECO CEO.

UPDATE (March 7): Bill Allen is less likely to be cooperative as a federal witness against Ben Stevens or Don Young if Allen comes to believe that the Anchorage police--or especially the federal government--is investigating him for allegedly committing sex crimes.

To a much lesser degree, Allen’s former political lieutenant Smith also looks worse than he did before because of recent revelations about his alleged psychological instability since he pleaded guilty. This could be particularly importantly important in a prosecution of Young, as Smith would apparently be a key witness against the Congressman in any prosecution involving the alleged illegal receipt of gratuities.

2. A controversy over the constitutionality over one of the feds’ primary weapons against public corruption has appeared to make them wary about bringing more complicated cases in this area.

One of the favorite arrows in the quiver of federal prosecutors in white-collar crime cases is “the honest services fraud statute.” The feds have for years used this law in the public corruption realm and against alleged corporate malefactors as well. Half of the 12 people who have been charged in the “POLAR PEN” probe, for example, have faced charging documents that have included at least one count of honest services fraud.

The U.S. Supreme Court, however, has given a number of hints in the past few months that it might rule this law unconstitutional soon. The Supreme Court just heard its third case during its current term on the honest services fraud statute—one of them being the case of former State Rep. Bruce Weyhrauch (R.-Juneau). All indications are that this controversial law is going to get pruned substantially or even ruled unconstitutional. This uncertainty over a preferred tool seems to be causing federal prosecutors all over the country to be hold back, and Ben Stevens and Don Young may be benefitting from the resulting legal limbo.

3. The combination of his extensive financial disclosures and—perhaps—his relative invisibility on incriminating tapes may help prevent the prosecution of Ben Stevens, and Don Young’s apparent receipt of things of relatively little value may be aiding Alaska’s only Congressman avoid charges.

Ben Stevens got almost a quarter of a million dollars in fees from VECO while he was in the State Senate and also took positions as a legislator on oil taxes that VECO wanted him to take, but the combination of those two facts do not by themselves constitute a crime. What was going on in Ben Stevens’ mind is where the action is in prosecuting him, as it often is in public corruption cases. (That’s also true in the broader category of white-collar crime cases, like that of his father.)

Prosecutors have found that the best way to show that a defendant in a public corruption case has criminal intent is by playing tapes that show him saying and/or doing things that make him look guilty. This focus on tapes to prove intent has been true since before the famous ABSCAM cases in the 1970s, but the emphasis on such tangible and simple-seeming evidence has only increased with the popularity of such television programs as “CSI,” where technicians each week come up with scientific proof that a suspect committed a crime.

All the defendants that juries have returned guilty verdicts against in the Alaska public corruption cases have had damaging tapes of them played in front of the jury. Tapes are powerful evidence, and tapes tend to trump other evidence.

An obstacle in prosecuting Ben Stevens is that there may be no evidence of him looking bad on tape. Absence from incriminating videotapes or audiotapes might occur through avoiding hanging out in the infamous VECO-rented Suite 604 or by not talking much on the telephone with Bill Allen or Rick Smith. If Ben Stevens has been able to stay out of the FBI’s greatest hits, he may be as smart—or at least as shrewd and cunning—as some of his former legislative colleagues say he is. (It’s also possible--as he and his attorneys would certainly assert—that Ben Stevens might never have been caught saying or doing anything incriminating on tape because he didn’t say or do anything incriminating.)

Aside from whatever the more than 17,000 conversations the feds intercepted in this investigation may show about Ben Stevens, there is another problem the feds have in prosecuting him on offenses involving either VECO or fisheries. That problem is the fact that the former State Senator apparently disclosed all the income he got for consulting and/or lobbying that he was legally required to disclose. You might think his conduct was unseemly and unsavory, but it’s likely that Ben Stevens would say that he is just a hard-working businessman who laid bare his income as the law required, both when he served as a federal lobbyist and when he served as a state legislator.

As to all that money from VECO that came in while his legislator when his work product may look tiny or even non-existent, Ben Stevens might well say that he thought he was on retainer—a retainer that allowed Bill Allen to call Ben Stevens about work for VECO anytime 24 hours a day, seven days a week. Ben Stevens might add that it was not his problem that Bill Allen seemed to call him so infrequently to work on matters such as advice on salvaging vessels.

Don Young may face even less problems that Ben Stevens, in part because the sheer volume of money going to Young as income—as opposed to campaign contributions—may not seem that impressive. As Mark Regan has pointed out in a guest post on this blog, documents made public in Allen’s sentencing suggested that the feds were investigating Young for matters that involved less than $200,000 in VECO expenses on campaign fundraisers over about 14 years and perhaps $1,000 in a set of golf clubs allegedly bought by Smith for Young with Allen’s credit card.

Numerous Alaskans would be surprised if Ben Stevens and Don Young escaped prosecution after being under investigation for years, but many people are probed a long time without being charged. Not prosecuting Ben Stevens after getting Allen and Smith to plead guilty to bribing him might pose a particular public relations problem for the Department of Justice, but such a result would be neither illegal nor unprecedented. The criminal justice system has produced some odd outcomes in the public corruption sphere as well as in some less famous cases. One well-known irony that involved verdicts by juries rather than the exercise of prosecutorial discretion comes from the notorious Teapot Dome scandal of the 1920s. Albert Fall was convicted for taking a bribe from oilman Edward Doheny while serving as Secretary of Interior, but oilman Edward Doheny was acquitted of the charge of bribing Fall.

Additional caveats and acknowledgments: Recall again that Ben Stevens and Don Young would say that the reason that they have not been charged with crimes is that they are not guilty. Nothing in this analysis should be taken as expressing any view that any particular person is guilty of any crime. My background in both prosecution and criminal defense sharpened my thinking in writing this analysis of the factors involved in evaluating potential criminal charges. So did numerous conversations with other attorneys and journalists, including lawyers Mark Regan of Fairbanks and George Freeman of Anchorage. Those who have spoken with me are responsible for none of what might be bad about what I write and much of what is good.