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.]

Alaskans, You Should Read This Before You Vote on the Constitutional Convention Question

Anchorage--

Proposition No. 1 on Alaska's ballot next Tuesday asks the voters to decide whether there should be a Constitutional Convention.   The Constitution itself requires that this question appear on the ballot every 10 years, and this is the year for that vote.

This is a deceptively simple question with big ramifications.   I have worked with Alaska Common Ground, an organization of which I am a board member, to develop a position paper on this issue.   Here is a link to it.

Alaska Legislative Candidate Discloses Apparent Bribe Attempt from VECO in 1996 Regarding Private Prison

Anchorage--

Richard Mauer of the Anchorage Daily News does it again, getting an Alaska State Senate candidate to reveal that in 1996 he was offered engineering contracts and "a whole bunch of money" for his re-election campaign to the Anchorage Assembly if the official would support the effort of the now-defunct oil-services giant VECO and other companies to build a private prison in South Anchorage.

The legislative candidate--Anchorage Republican and consulting engineer Bob Bell--told the newspaper that he turned down  the money and did not support the prison but also did not report this apparent bribery attempt to authorities.

Mauer's article includes this exchange:

"Told that the offer of an engineering contract in return for his support of the prison as an Assemblyman could be a crime, Bell replied:

'It is?'"

The Anchorage Daily News story also reports that Bell had released a list showing that the oil producer BP was the biggest client of Bell's engineering firm in 2011, and in fact had paid more than $1 million.  

These revelations have the potential of shaking up a State Senate race that is a critical campaign in the efforts of Gov. Sean Parnell and oil producers to engineer a majority in the State Senate friendly to Parnell's initiative to cut taxes on oil production in an attempt to stimulate that production. 

Tom Anderson Likely to Get Off Probation Early

Anchorage--

Federal probation authorities have made an unopposed request that ex-Alaska State Rep. Tom Anderson be released early from probation.    Richard Mauer of the Anchorage Daily News has the report on the request, which would shave about nine months of Anderson's sentence based on the former Anchorage Republican legislator's compliance with the terms of his supervised release, including a substance abuse program.

It is always seemed odd in some moral sense that Anderson--who is obviously not the most culpable figure in the federal probe into Alaska public corruption--has served the most severe sentence of any defendant in the cases arising from that investigation. 

How the Feds Started Investigating Ted Stevens and Moved Toward an Indictment

Anchorage--

Here is the next installment of my series of columns on the Ted Stevens case in the Alaska Bar Rag.   This latest piece will appear in the edition of the official publication for the Last Frontier's lawyers that is published this month.    

How the Feds Started Investigating Ted Stevens and Moved Toward an Indictment

by Cliff Groh

Our understanding of the Ted Stevens case has grown substantially in the past several months from the U.S. Department of Justice’s Office of Professional Responsibility (“OPR”) report on misconduct in that prosecution, which comes on the heels of the report of the court-appointed special counsel (“the Schuelke report”).  

There is so much in the record now about the Justice Department’s development of the indictment against Ted Stevens, in fact, that this piece—the second in a series of offerings on this highly significant case—is only the first installment of my columns on the charging decisions in that case. 

The following analysis presents facts and opinions based on the more than 2,000 pages contained in those reports and the responses and rebuttals to them.   This column also relies on information gained from my in-person coverage of the five-week Ted Stevens trial in Washington, D.C. in 2008, my continuing coverage of the post-trial litigation and other cases arising out of the “POLAR PEN” federal investigation into Alaska public corruption, and dozens of interviews with participants and observers.        

Contrary to what many Alaskans believe, a search of the record does not show a malevolent plot to prosecute Ted Stevens so as to remove him from the U.S. Senate for partisan reasons or to retaliate against him for some old personal slight.  The Justice Department’s handling of the case can be legitimately faulted on a number of levels—the timing was ill-advised, the organization was chaotic, the management was dysfunctional, and the discovery violations were deeply disturbing.    There does not appear, however, to have been an evil mastermind behind the charges against Ted Stevens.    My reporting and analysis backs up the reporting of the Wall Street Journal and the Washington Post in pieces published at the time of the collapse of the Ted Stevens prosecution in April of 2009 regarding the absence of what the latter newspaper called “base political motivations.”  

The Ted Stevens Case Grows Out of Operation Polar Pen, and Operation Polar Pen Starts with Private Prisons

Let’s walk through the process that brought the charges.   The investigation that brought down Alaska’s most important public official began not with an examination of a U.S. Senator’s home renovations and his mandatory annual disclosure forms.    Instead, the probe that led to the prosecution of Ted Stevens started five years before his indictment as an investigation into private prisons.   In the dry words of the OPR report, the U.S. Attorney’s Office in Anchorage opened that corrections-focused investigation in July of 2003 “after the FBI developed information that an Alaska private prison company and a lobbyist were corruptly influencing state legislators.”    In a nod to the Last Frontier correctional origins of the investigation, the probe was dubbed “Operation Polar Pen.”

The investigation began with the work of an FBI agent named Mary Beth Kepner.   Her blond hair and trim physique made her look a lot more like a soccer mom than one of the grim-faced feds famous from the days of J. Edgar Hoover.   (Indeed, her achievements as a college soccer goalie still live on the Internet.)   Starting in Philadelphia—where she investigated complex white-collar and organized crime cases—Kepner had been with “the Bureau” for more than 10 years when she opened Polar Pen while working in the FBI’s small Juneau office.   

The investigation grew in depth and scope after the federal government got Frank Prewitt—a former Alaska Commissioner of Corrections turned private prison lobbyist and consultant for Texas-based Cornell Companies—to become a cooperating witness.  Prewitt started recording (“wiring up”) on various Alaskans and provided information that allowed federal investigators to get wiretaps on telephones.    (Setting aside whatever immunity Prewitt’s cooperation got him for his own potential exposure as a defendant, it is striking that Prewitt received $200,000 from the federal government for his work; it is indeed odd that Prewitt couldn’t find room to mention that payment in a 167–page book he wrote about his experiences as an informant.)         

The Justice Department’s Top Corruption Fighters Get on the Case

As Polar Pen ballooned, the lawyers working on the probe changed.    The Anchorage-based U.S. Attorney’s Office started receiving assistance in June of 2004 from the Justice Department’s Public Integrity Section.    Given that the Public Integrity Section soon came to direct all the prosecutions growing out of the Polar Pen probe—including the Ted Stevens case—a little examination of that unit is in order.

The Public Integrity Section was founded in 1976 on a wave of reforms following the Watergate scandals.    By its official mission, it “oversees the federal effort to combat corruption through the prosecution of elected and appointed public officials at all levels of government.”    Staffed with about 30 attorneys, the Public Integrity Section has had some high-profile successes.    Notable achievements included the Abscam investigation in the late 1970s and early 1980s (which led to the convictions of six Members of Congress) and the more recent probe into super-lobbyist Jack Abramoff (which has led to the conviction of more than a dozen people, including a Member of Congress and several executive branch officials and Congressional staff members).     

The Public Integrity Section had traditionally been known as an elite outfit and a breeding ground for stars like Attorney General Eric Holder and Reid Weingarten, one of a number of the unit’s lawyers who went on to a well-compensated career as a criminal defense attorney for the rich and famous.   

By 2004, however, the Public Integrity Section was in the midst of some turmoil.  Heavy turnover dogged the section during most of the 2000s, with the New York Times finding that only a quarter of the prosecutors who had been with the unit at the beginning of President George W. Bush’s tenure remained there at the end.   

The comings and goings were particularly frequent at the unit’s top.   The Washington Post reported in April of 2009 that the Public Integrity Section had had five heads in the past six years.  

Nick Marsh Comes to Probe Alaska Corruption

The lead attorney on the ground for the Public Integrity Section—Nicholas “Nick” Marsh—was new to his job as well, and his part in this story is important enough that it’s worth sketching out his background.   A slender and intense man in his early 30s when he began work on the Polar Pen probe in 2004, Marsh had only become a prosecutor about a year before he started traveling back and forth between the “Main Justice” headquarters in D.C. and Alaska.   

The boyish-looking Marsh had been a high-flyer in his relatively short life.  After clerking for Fairbanks-based Judge Andrew Kleinfeld of the Ninth Circuit Court of Appeals, the native Kentuckian had worked for two old-line law firms in New York City, rising to junior partner at the second.   

Marsh wanted to be a prosecutor, however, reflecting a passion for public service and a strong impulse to mix it up.   That last quality showed up in his lettering in lacrosse in college, a fact at odds with the wonky vibe he displayed in court.   He joined the Justice Department in 2003 and was assigned to the Public Integrity Section in the fall of that year.   After he completed a six-month detail in the Washington, D.C. U.S. Attorney’s Office, Marsh’s supervisors in the Public Integrity Section put him on Polar Pen.  

Marsh’s assignment on the Last Frontier was definitely not full-time, as the young attorney juggled a variety of cases around the country.   The new hire impressed his bosses by handling three appellate cases his first year, according to the National Law Journal.    Marsh also worked in 2004 on the Mississippi-based prosecutions flowing out of fraud in lawsuits involving the drug fen-phen, and he was on the government’s courtroom team at a 2005 trial in New Hampshire over a Republican campaign official’s involvement in jamming the phones on a Democratic Party get-out-the-vote drive.   

The Justice Department approved a partial recusal of the Anchorage-based U.S. Attorney’s Office in September of 2004 that gave Marsh a particularly big role in the Polar Pen probe.   While giving four lawyers from that office the job to “monitor, manage, and direct the day to day operation” of Polar Pen, the Deputy Attorney General simultaneously assigned the Public Integrity Section “overall responsibility” for the probe, including “investigative and prosecutorial decisions.”

Bolstered by more than 17,000 intercepted conversations caught on wiretaps, the Polar Pen probe into Alaska public corruption expanded to cover allegations that VECO executives corruptly influenced state legislators over the construction of a natural gas pipeline and related petroleum tax legislation.    Polar Pen progressed to the point that federal officials investigated at least 19 people, according to a filing submitted by one of the prosecutors involved in the investigation, while Alaska journalist Bill McAllister reported in 2007 after news broke of the probe that multiple sources had told him that it would result in the indictment of 26 people.     

Polar Pen Zeroes in on Senator Ted Stevens

Back when Polar Pen was still covert, the probe started focusing on its most prominent target, U.S. Sen. Ted Stevens, an Alaska icon and Capitol Hill powerhouse who had held his Senate seat for more than three decades.   

The record isn’t clear about when the investigation began that focus on Ted Stevens.  Some observers thought that the Los Angeles Times started that ball rolling with two articles in 2003.   The first focused on the links between the lobbying and consulting clients of Ted Stevens’ son Ben and legislative assistance provided by Ted Stevens to those clients, including VECO.    Another LA Times story published that year headlined “Senator’s Way to Wealth Was Paved with Favors” laid out how Ted Stevens became a millionaire “thanks to investments with businessmen who received government contracts or other benefits with his help.”     

At Ted Stevens’ trial, prosecutors introduced evidence of assistance that the Senator had provided to VECO on a Pakistani pipeline project referenced in one of those newspaper articles; on the other hand, federal investigators never interviewed Chuck Neubauer, the journalist who did most of the reporting and research on the two Times stories.  

Another straw in the wind comes from a statement in a Wall Street Journal article by reporter Evan Perez in 2009 that the Ted Stevens case “was investigated for more than four years.”    Given that the indictment and trial both occurred in 2008, that would put the start of the federal probe into Ted Stevens at no later than 2004.

The Department of Justice’s official history—the OPR report—says that it was a monitored telephone conversation between VECO executives Bill Allen and Rick Smith on October 19, 2005 that shifted the spotlight of the federal probe onto Ted Stevens.    In that call, Allen and Smith discussed benefits VECO had provided to Ted Stevens in the form of renovations at Stevens’ Girdwood residence.    The OPR report then states:   “Thereafter, the government obtained additional information about the Girdwood renovations, noting that Stevens had not reported the benefits on his United States Senate Public Financial Disclosure Reports for the corresponding years.”

Whatever the precise date federal investigators started looking hard at Ted Stevens, it is clear that very shortly after that telephone call the leadership of the Anchorage-based U.S. Attorney’s Office wanted no part of the probe.    

On November 5, 2005, the Justice Department approved what the OPR report describes as an “office wide” recusal of that office based on the office’s concern “[g]iven the high degree of sensitivity of such an investigation and the controversy likely to be engendered by investigating such individuals in the close knit Alaskan community.”    

This recusal left the Public Integrity Section in charge of the federal probe into Alaska public corruption.   Despite that “office wide” recusal, the investigation also proceeded with the assistance of two Anchorage-based Assistant U.S. Attorneys, Joseph Bottini and James Goeke. 

In practice, this recusal made Marsh Polar Pen’s “top dog,” as veteran Anchorage attorney Jeff Feldman told New Yorker writer Jeffrey Toobin.  This development meant that Bottini—who had been a prosecutor for approximately 20 years—was effectively supervised on POLAR PEN by a lawyer with about 10 percent of his experience as a prosecutor.    

The Polar Pen prosecution team increased to four in 2006 with the addition of Edward Sullivan, who was immediately assigned to the probe upon his joining Public Integrity.   (Confusingly, three unrelated Sullivans played significant roles in the Ted Stevens case—there was Edward Sullivan the prosecutor, Emmet Sullivan the trial judge, and Brendan Sullivan the chief defense counsel.)   Edward Sullivan had been a lawyer for 10 years when he started on Polar Pen, and he—like Marsh and Goeke—had clerked for a federal judge.    (It is a telling social commentary that the OPR report details federal clerking experience of these three lawyers while omitting Bottini’s experience clerking for a state court judge.)    Despite Edward Sullivan’s impressive resume, his prosecutorial experience was zero.

The Grand Juries Hear Evidence, While a Logical Source of Help Goes Largely Untapped

The Polar Pen team presented evidence regarding Ted Stevens to grand juries between November of 2006 and June of 2008.   One grand jury sat in Anchorage, and the other sat in Washington, D.C.   Despite the use of the grand jury in the nation’s capital, the Washington, D.C. U.S. Attorney’s Office had no significant involvement in the Ted Stevens case.

This was too bad for the prosecution, particularly since the Justice Department was aiming for a possible trial in Washington.    As Washington Post reporter Carrie Johnson pointed out after the government’s case collapsed in 2009, the government’s path could have been smoother if the Washington U.S. Attorney’s Office had been part of the case, thereby adding “players who were familiar with the courthouse and the personality of the trial judge.”   Such a role for that office would have not been at all unprecedented in a major public corruption case.   The Washington U.S. Attorney’s Office ran the prosecution of U.S. Rep. Dan Rostenkowski (D.-Illinois), the long-time chairman of the tax-writing House Ways and Means Committee, that produced his guilty plea in 1996 and a sentence that put him in federal custody for 17 months.      

There are varying explanations for the lack of significant participation by the Washington U.S. Attorney’s Office in the prosecution of Ted Stevens.    That 2009 Washington Post story reported that prosecutors in that office “were consulted about the Stevens case starting in 2006 but declined to participate, thinking that the charges were shaky, according to sources familiar with the discussions.”    That article also stated that sources said “The assistant U.S. attorneys also considered overly aggressive the prosecutors' early plan, later abandoned, to get a warrant to search the lawmaker's D.C. area home….”

On the other hand, the OPR report suggests that it was the competition for glory that blocked the participation of the Washington U.S. Attorney’s Office, not that office’s perception that the Polar Pen team was on the wrong track with Ted Stevens.   

Glen Donath, an Assistant U.S. Attorney from the Fraud and Public Corruption Section of the Washington U.S. Attorney’s Office, did attend at least one grand jury session in Washington in April of 2007 regarding Ted Stevens.   The Public Integrity Section ran him off the case quickly, however.   Donath—who had previously served on the team defending President Clinton at the impeachment trial—ended his slight participation in the Ted Stevens case after Public Integrity officials communicated to him that he was not needed and that any role he would play would be minor and merely an accommodation to his superiors.    Edward Sullivan told OPR that Public Integrity Section Chief William Welch spelled it out more bluntly, conveying the message that Donath was “coming in late” and would be viewed as a “fifth wheel.”

Charges the Justice Department Considered

Contemporaneous media reports in the Anchorage Daily News, the Associated Press, and Roll Call showed that the federal government conducted a wide-ranging investigation of Ted Stevens and his close associates.   As detailed in that coverage and in interviews, this probe included an examination of legislative assistance Ted Stevens had provided that had benefitted his son Ben (who was by 2006 President of the Alaska State Senate), Ted Stevens’ former long-time legislative aide Trevor McCabe, and Anchorage businessmen who had engaged in real estate deals with Ted Stevens that the Senator bragged about publicly.   As part of this investigation, the FBI Interviewed former state legislator and activist Ray Metcalfe, who had accumulated evidence to support allegations regarding real estate transactions and fisheries legislation.   The Justice Department also perceived early on in the investigation that tax charges could be brought against Ted Stevens, and the OPR report says that IRS agents remained part of the prosecution team through the Ted Stevens trial.

In the end, however, the prosecution’s charges did not relate to real estate transactions, fisheries legislation, or income taxes, and the word “earmark” appeared nowhere in the 28-page indictment issued on July 29, 2008.   

Instead, the prosecution focused during the three-month period before the issuance of the indictment on five charges:  

--Bribery under 18 U.S. Code Subsec. 201(b)(2);

--Illegal gratuities under 18 U.S. Code Subsec. 201(c)(1)(B);

--Honest-services fraud under 18 U.S. Code Secs. 1341-1351;

-- Conversion of services of government employees for personal use under 18 U.S. Code Sec. 641; and

--False statements, by concealment under 18 U.S. Code Subsec. 1001(a)(1) and by omission under 18 U.S. Code Subsec. 1001(a)(2).

Except for the potential conversion charge—which concerned Ted Stevens’ alleged use of Senate staff members to pay the personal bills of himself and his family—all these potential charges would have related to things of value received by Ted Stevens and not reported on mandatory annual Senate disclosure forms.   Most of those things of value involved renovations to the Senator’s Girdwood home provided by Bill Allen and/or VECO. 

There’s a common problem with the three charges listed above regarding Ted Stevens.    Conviction under the bribery or illegal gratuities statutes requires “official acts” in connection with the crimes.   Honest-services fraud—a favorite arrow in the federal prosecutor’s quiver before the U.S. Supreme Court sharply restricted the reach of the statute in 2010—does not explicitly require a quid pro quo between the receipt of a specific thing of value and a specific official act.   With honest services fraud, prosecutors have tended to look to prove the defendant received a stream of things of value in exchange for a series of official acts.       

At least one line prosecutor pushed hard for the inclusion of one or more of these counts in the Ted Stevens indictment.     Higher-ups at the Department of Justice, however, seemed to perceive that Stevens had delivered so much for so many Alaskans over four decades that it was difficult to say that the Senator was motivated by gifts to do official acts.    Those supervisors appeared to understand that it was difficult to throw a rock in any populated place on the Last Frontier and not hit somebody who had benefitted from an official act of “Uncle Ted”—whether it was a local appropriation or intervention with the federal bureaucracy—and that the great majority of those who had received help from the Senator had never given him a penny in campaign contributions, much less gifts (and had certainly never given his son Ben a lobbying or consulting contract).

It would have probably fortified the Justice Department brass in their rejection of bribery/illegal gratuities charges/honest services fraud charges against Ted Stevens if they had been aware of a conversation the lead FBI agent on Polar Pen had with a journalist in May of 2008.   Mary Beth Kepner met with reporter Tony Hopfinger at a coffee shop in midtown Anchorage.    This meeting occurred more than nine months after the FBI had executed a search warrant on the Senator’s Girdwood home and in the final throes of the Justice Department’s decision on the indictment.   In the conversation—later recounted in Crude Awakening, a book by Hopfinger and Amanda Coyne, and in a recent interview with Hopfinger—Kepner speculated that Allen had bribed Ted Stevens by renovating the Senator’s house.   The FBI agent then asked the reporter:   “What do you think the quid pro quo was?”

Given that this conversation occurred after the FBI had been investigating Ted Stevens for at least 2.5 years and in the last 90 days before the Justice Department announced the indictment, it was surprising that the lead FBI agent on the Ted Stevens investigation would at that point ask a reporter in a coffee shop for that reporter's opinion on a critical element of a case against Ted Stevens.    (Then again, Kepner was known for her ability to get people to tell her things, and playing dumb is one well-known way to do that.)

The prosecutors also considered a charge of conversion.   This charge would have been based on evidence that the Senator had for years arranged for Senate staff members to work on the Congressional clock to pay from his personal account his family’s personal bills—including his wife’s credit card bills, the family’s regular household bills, and the bills for the Senator’s participation in a horse racing partnership.  The 1994 indictment against another Congressional titan—Rep. Rostenkowski—had included a charge of conversion of federal funds based on the Congressman’s alleged use of Congressional staff members working on federal time to perform personal services for Rostenkowski.    As laid out in a 2007 article by John Stanton in Roll Call, Ted Stevens’ alleged use of a Senate staff member making more than $150,000 annually to serve as his “personal bookkeeper” substantially exceeded the occasional de minimis personal tasks some Senators asked of their own Senate staff.

Although Polar Pen’s line prosecutors expressed to their superiors in the spring of 2008 their belief that the evidence and the law supported a conversion charge against Ted Stevens, those lower-level lawyers advised against pursuing such a charge because it would significantly distract from a prosecution based on the Senator’s alleged falsehoods in his annual disclosure forms.    (The prosecution did use evidence that the above-described Senate staff member routinely paid Catherine Stevens’ department store credit card bills while cross-examining the Senator’s wife at his trial.)

Next:    The charges of failure to disclose required financial information that the Justice Department finally settled on

Cliff Groh is an Anchorage lawyer and writer who has worked as both a prosecutor and a criminal defense attorney.   He has blogged about the “POLAR PEN” federal probe into Alaska public corruption for years at www.alaskacorruption.blogspot.com, which in its entry for May 14, 2012 features an expanded and updated list of disclosures.    Groh’s analysis regarding the Ted Stevens case has appeared in media as diverse as C-SPAN, the Los Angeles Times, Alaska Dispatch, the Anchorage Daily News, and the Anchorage Press.    The lifelong Alaskan covered the five-week Ted Stevens trial in person in Washington, D.C. in the fall of 2008.   He welcomes your bouquets, brickbats, tips, and questions at cliff.groh@gmail.com.   

More of My Writing on Another Alaska Topic

Anchorage--

Entertaining relatives the past two weeks has slowed down my distribution of this news.   A chapter on the Prudhoe Bay Curve and Alaska's fiscal system I wrote is in a book published this month by Palgrave Macmillan.    It is the second in a series of two academic books published this year on the Permanent Fund Dividend.    The first book was published in April, and it included three chapters I co-authored.    Here is a link to the book published this month:

http://www.amazon.com/Exporting-Alaska-Model-Permanent-Guarantee/dp/1137006595