More than two years have passed since two investigations began into the conduct of prosecutors and investigators who worked on the federal government’s investigation of Alaska public corruption. These probes of the probers arose in the wake of the botched prosecution of U.S. Sen. Ted Stevens, which ended in April of 2010 with the overturning of a jury’s guilty verdicts on seven felony counts and the dismissal of the case against the longtime lawmaker.
The Department of Justice’s internal watchdog unit—the Office of Professional Responsibility (OPR)—is conducting one of the two satellite investigations into the prosecutors and the investigators; the other investigation is a highly unusual criminal probe run by a special counsel selected by the trial judge in the Ted Stevens case.
Why have these two investigations gone on so long?
As I have said before regarding these matters, I don’t know for sure, and unless you are one of this blog’s readers on the inside in Washington, D.C., neither do you. Having said that, here are several factors that may be contributing to this delay of more than two years:
1. Sex. Issues surrounding the federal government’s handling of Bill Allen’s dealings with underage girls threaten to overwhelm the public’s recollection of the entire “POLAR PEN” federal probe into Alaska public corruption. Bill Allen is the multimillionaire former CEO of VECO, the defunct oil-services corporation, who became a key government witness against public officials he used to pal around with. (Allen is also my neighbor, although Bill and I don’t run into each other now that he’s in federal prison following his convictions for bribery and other crimes related to public corruption.)
The Department of Justice did not turn over to the lawyers for the defendants in the “POLAR PEN” probe the information federal officials possessed about Allen’s exposure to prosecution for various crimes associated with sexual abuse of minors and attempts to cover up that abuse, and those failures to share that evidence has raised some thorny issues. The natural human interest in sex—and the natural human outrage at sexual exploitation of minors—has apparently made particularly sensitive the question of who within the Department of Justice was responsible for not turning over that information.
Another hot potato is the question of what federal officials told Bill Allen about any relationship between the corrupt tycoon’s decision to cooperate with the feds and his potential prosecution for offenses related to sex with underage girls. Despite considerable evidence tending to show Allen’s guilt, no government has ever charged Allen with sexual abuse of minors or transportation of a person under 18 across state lines for purposes of prostitution (or for solicitation of perjury or obstruction of justice in covering up the sex crimes).
2. Death. The tragic suicide of Nicholas Marsh, one of the former prosecutors who played a critical role in the POLAR PEN probe, appears to have both reflected the length of the probes into the prosecutors and further extended them. His friends cited Marsh’s anguish over how long the investigations had run on as a factor in the attorney’s decision to take his life last September. Now that he is dead, there may be a substantial temptation for various other prosecutors involved in the Ted Stevens case in particular to try to dump it all on the dead guy.
3. Fingerpointing. Attempts to blame Marsh now that he can no longer defend himself appear to be a subset of substantial efforts among the lawyers involved in the POLAR PEN probe to deflect responsibility for the failures to share evidence to defendants in the cases that arose from that probe. When the fingerpointing runs out, there may even be negotiations going on regarding the possibility of one or more lawyers accepting certain punishments to escape the possibility of more serious penalties.
4. The extensive facts in the POLAR PEN cases and the new court rulings. Now we get to the reasons that the Justice Department would give itself if that famously tightlipped agency ever offered an official comment about OPR’s long-running internal ethics probe, and special counsel Henry Schuelke would probably tell the press the same thing about the criminal investigation if he ever talked. The POLAR PEN cases—particularly the case against Ted Stevens—generated many, many boxes of evidence, and it takes a while to go through all them and question the prosecutors and FBI and IRS agents who worked on the original federal investigation into Alaska public corruption.
There were also also three court decisions issued last month that the feds might say that they were reviewing to assess any effects those decisions should have on the investigations, the findings, and any decision by the special counsel to prosecute anyone. Those first two of those three are the Ninth Circuit Court of Appeals decisions reversing the convictions of former State Reps. Vic Kohring (R.-Wasilla) and Pete Kott (R.-Eagle River) based on prosecutorial misconduct. The third is the U.S. Supreme Court decision in a case arising in New Orleans in which the high court restricted the ability of criminal defendants to sue prosecutors for civil rights violations based on the government’s failure to provide (or “discover”) evidence to a criminal defendant. (Hat tip to Anchorage attorney Mark Regan for the thought on the U.S. Supreme Court case, plus additional sharpening of my thinking on this post.)
(Notice: I’ll be out of town for a week, so reactions may come more slowly to new developments in the subjects covered by this blog.)