Washington—
The Department of Justice will pay some legal fees of the Ted Stevens prosecutors now under scrutiny—but those payments look likely to cover only a fraction of the bills to be charged by the high-priced counsel now on the case.
Both Legal Times and TPMMuckraker.com have reported that the Department of Justice has stated that the federal government will pay the legal bills of what some call “the Stevens Six”—but only up to $200 per hour for a maximum of 120 billable hours per month.
That may sound like a lot to you—but if it does, you don’t know much about what lawyers charge at the big Washington, D.C. firms. Partners routinely charge more than $500 per hour, and—as Legal Times points out—first-year associates right out of law school charge more than $200 per hour.
To see the Legal Times article—which contains details on the attorneys retained by the prosecutors under investigation—go to http://legaltimes.typepad.com/blt/2009/04/stevens-six-lawyering-up-big-time.html on the Internet.
Thursday, April 23, 2009
Wednesday, April 22, 2009
Roundup of Investigation News
Anchorage—
Here’s my effort to give the news of the day and catch up on some stuff I haven’t blogged during the last two weeks:
Here’s my effort to give the news of the day and catch up on some stuff I haven’t blogged during the last two weeks:
- Ted Stevens’ trial prosecutors and the supervisor of the Public Integrity Section—sometimes called “the Stevens Six”—are engaging well-known Washington lawyers to represent them in the court-ordered criminal contempt probe into their own conduct. One of the defense attorneys gained fame as the lawyer for Karl Rove—strategist of George W. Bush’s electoral victories and Deputy Chief of Staff in the Bush White House—and another of those defense lawyers formerly represented another U.S. Senator in an ethics investigation. (Hat tip to Legal Times.) This court-ordered investigation—and the parallel probe by the Department of Justice itself—is both high-stakes and likely to be ungodly expensive for these government employees, who are unlikely to be able to tap political contributors or well-connected friends for donations to a legal defense fund. The Website Talkingpointsmemo.com is seeking to learn if the federal government will be paying any of those legal fees for the prosecutors under investigation.
- Speaking of a legal defense fund, U.S. Rep. Don Young (R.-Alaska) is now paying all his legal bills from his legal defense fund as opposed to the campaign fund he was relying on heavily last year. (Hat tip to Anchorage Daily News.) Campaign records show that the 49th State’s only Congressman spent more than $1 million on legal bills last year.
- Despite the dismissal of the Ted Stevens case with prejudice and the resulting black eye to the overall federal investigation into public corruption in Alaska, a court order signed last Monday shows that the Department of Justice still holds the position that the probe lives on. At the government’s request, Judge Emmet Sullivan issued an order directing the independent counsel examining the Stevens trial prosecutors to keep secret the information turned over by the Department by that lawyer. According to the Anchorage Daily News, Judge Sullivan ruled that "ongoing investigations" could be hampered by release of "certain investigative files, documents, e-mails, grand jury transcripts, interview notes, interview memoranda and other information." Judge Sullivan also cited privacy concerns of innocent persons as another reason for his non-disclosure order. (Hat tip to Anchorage Daily News.)
- The Ninth Circuit Court of Appeals heard oral arguments in the appeals of former state Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla). At issue were allegedly incorrect jury instructions and the trial judge’s decisions to close to the public certain hearings about the scope of cross-examination of key prosecution witness Bill Allen, the long-time VECO CEO. Kohring’s lawyer also argued before the three-judge panel sitting in Seattle that the Wasilla legislator’s prior conflict with the wife of District Judge John Sedwick should have led the trial judge to recuse himself from Kohring’s case. Kott and Kohring continue to serve their sentences in federal prison while their appeals are pending. (Hat tip to the Associated Press as published in the Anchorage Daily News.)
Tuesday, April 14, 2009
Ted Stevens Turned Down a Deal for a Felony Conviction with a Guarantee of No Prison Time
Anchorage--
As first reported by the Legal Times, Ted Stevens rejected a pre-indictment offer to plead guilty to a felony and receive no time in prison.
This news comes from a recently released transcript of a bench conference, a private conversation among the lawyers and the judge that occurs at the front of the courtroom.
Following Stevens’ rejection of the offer, he was indicted and tried on seven felony counts. A jury returned guilty verdicts on all seven counts, but the judge ultimately set aside the verdicts and dismissed the case due to prosecutorial misconduct.
In addition to this offer regarding the sentence, it would be interesting to know if the prosecution also tried to bargain with Stevens over the charges. Both types of bargaining—over the sentence and over the charges—are common in criminal cases.
The trial contained numerous hints that the prosecution had explored more serious charges that would have included more explicit allegations that VECO had bribed the Senator. Ultimately, the government did not charge Stevens with any crime that included any version of bribery. Instead, the indictment charged Stevens with failing to disclose gifts and liabilities on the annual financial disclosure forms he was required to file with the Senate.
Most of the undisclosed things of value at issue in the trial came from VECO--the Alaska-based oil-services giant--and/or its longtime CEO Bill Allen. The prosecution confined itself to showing favors Stevens had done for the company and favors VECO had done for Stevens without making the jury decide whether there was an explicit quid pro quo.
The things the government showed VECO and Allen provided Stevens included substantial renovations on his chalet in Girdwood as well as numerous other items such as furniture and lighting.
In terms of what Stevens provided VECO, the government presented evidence that the Senator:
As first reported by the Legal Times, Ted Stevens rejected a pre-indictment offer to plead guilty to a felony and receive no time in prison.
This news comes from a recently released transcript of a bench conference, a private conversation among the lawyers and the judge that occurs at the front of the courtroom.
Following Stevens’ rejection of the offer, he was indicted and tried on seven felony counts. A jury returned guilty verdicts on all seven counts, but the judge ultimately set aside the verdicts and dismissed the case due to prosecutorial misconduct.
In addition to this offer regarding the sentence, it would be interesting to know if the prosecution also tried to bargain with Stevens over the charges. Both types of bargaining—over the sentence and over the charges—are common in criminal cases.
The trial contained numerous hints that the prosecution had explored more serious charges that would have included more explicit allegations that VECO had bribed the Senator. Ultimately, the government did not charge Stevens with any crime that included any version of bribery. Instead, the indictment charged Stevens with failing to disclose gifts and liabilities on the annual financial disclosure forms he was required to file with the Senate.
Most of the undisclosed things of value at issue in the trial came from VECO--the Alaska-based oil-services giant--and/or its longtime CEO Bill Allen. The prosecution confined itself to showing favors Stevens had done for the company and favors VECO had done for Stevens without making the jury decide whether there was an explicit quid pro quo.
The things the government showed VECO and Allen provided Stevens included substantial renovations on his chalet in Girdwood as well as numerous other items such as furniture and lighting.
In terms of what Stevens provided VECO, the government presented evidence that the Senator:
- leveraged the government of Pakistan to allow the payment of a dividend to VECO on an investment the company had made in a pipeline in that country;
- assisted on VECO's rebidding for a National Science Foundation contract; and
- helped with VECO's efforts to get the Alaska legislature to adopt petroleum taxes set to the liking of the Big Three oil producers, Allen's main clients in Alaska.
Stevens’ lawyers argued that in each of these matters the Senator was either just helping an Alaska company as he often did or merely pushing policies he agreed with on the merits.
Maybe we will learn more later about the discussions/negotiations between the federal prosecutors and Ted Stevens' attorneys--as well as the internal discussions within the Department of Justice--that occurred before the government announced his indictment last July.
Still Working
Anchorage--
I'm still working on a post on the question of how the Department of Justice under President George W. Bush approved felony charges alleging financial disclosure violations against the longest-serving Republican Senator in history less than three-and-a-half months before that Senator faced a hotly contested general election. In the meantime, I'm working on a brief due Monday. As a result, posting will be lighter this week.
I'm still working on a post on the question of how the Department of Justice under President George W. Bush approved felony charges alleging financial disclosure violations against the longest-serving Republican Senator in history less than three-and-a-half months before that Senator faced a hotly contested general election. In the meantime, I'm working on a brief due Monday. As a result, posting will be lighter this week.
Monday, April 13, 2009
Is Ted Stevens Likely to Sue the Federal Government to Recover His Legal Fees?
Anchorage—
In the wake of the Attorney General’s bombshell decision earlier this month to throw in the towel on the Ted Stevens case based on prosecutorial misconduct, will the former Senator try to get the federal government to pay his legal fees?
The high cost of the defense would seem to make that pursuit a logical move for Ted Stevens. This blog has previously estimated that the five-week trial cost $200,000 per week, and that doesn’t count the substantial work in pre-trial preparation and post-trial litigation. The Legal Times has reported that “defense lawyers say Stevens easily shelled out at least $2 million” in total legal fees.
Visual evidence of all that spending was obvious last week when the judge dismissed the case. The Anchorage Daily News reported that all 13 of the defense attorneys who worked on the case appeared in court—five at the defense table with Stevens and another eight in a row of chairs lining the courtroom. Even the cheapest of those lawyers is pricey—the Legal Times noted that a Williams & Connolly associate attorney who graduated from law school in 2004 and just joined the White House counsel’s office reported that he made $220,000 last year at the firm.
The idea of Ted Stevens suing to get those legal fees paid by the feds is popular in some circles, as shown last week by the adoption of a resolution by the Alaska House of Representatives that “demands” that the federal government grant permission for such a lawsuit by the former Senator. This resolution passed by a vote of 34 to 1.
Actually, federal law already grants permission to Ted Stevens to sue for his legal fees. The legal standards for recovering fees and the reality of the process for seeking that recovery might tip the balance in favor of Stevens walking away from the case, however. A brief tour of the law here explains why.
Federal law specifically allows a defendant who has prevailed in a federal criminal case “a reasonable attorney’s fee and other litigation expenses” if the court finds that the prosecution’s position was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” (Hat tip to Ashby Jones in the Wall Street Journal’s Law Blog for this reference to a statutory note in 18 U.S.C. § 3006A.)
This statute sets a high bar for Stevens. Daniel Richman, a criminal law professor at Columbia University, told the Wall Street Journal that to win a motion for fees a defendant would have to show that “‘there was really no basis to the prosecution.’” Richman believes that such a showing “‘is nearly impossible to make.’”
Such a showing is not unknown, however. Shortly after the dismissal with prejudice of the Stevens case, a federal judge in Miami ordered the Department of Justice to pay more than $600,000 in legal fees to a criminal defendant following revelations that prosecutors had authorized witnesses to surreptitiously tape their conversations with the defense team. (Thanks to the Letter of Apology blog.)
Such orders are still very rare, however. Stevens and his attorneys might not want to sue for legal fees because such an effort would change the current focus on prosecutorial misconduct in the course of the trial and turn the public’s attention to all the factors the Department of Justice considered when deciding whether to prosecute him. Although the Legal Times suggested that some see the former Senator now as “a victim of corruption,” the newspaper indicated that the process of pursuing a lawsuit to recover legal fees might make him look more like “a scheming politician.” Michael Horowitz, a lawyer in the business fraud and complex litigation group of the Washington law firm of Cadwalader, Wickersham & Taft, told the Legal Times that “‘He may be best positioned now politically to leave the record as is. He doesn’t need much more.”
In the wake of the Attorney General’s bombshell decision earlier this month to throw in the towel on the Ted Stevens case based on prosecutorial misconduct, will the former Senator try to get the federal government to pay his legal fees?
The high cost of the defense would seem to make that pursuit a logical move for Ted Stevens. This blog has previously estimated that the five-week trial cost $200,000 per week, and that doesn’t count the substantial work in pre-trial preparation and post-trial litigation. The Legal Times has reported that “defense lawyers say Stevens easily shelled out at least $2 million” in total legal fees.
Visual evidence of all that spending was obvious last week when the judge dismissed the case. The Anchorage Daily News reported that all 13 of the defense attorneys who worked on the case appeared in court—five at the defense table with Stevens and another eight in a row of chairs lining the courtroom. Even the cheapest of those lawyers is pricey—the Legal Times noted that a Williams & Connolly associate attorney who graduated from law school in 2004 and just joined the White House counsel’s office reported that he made $220,000 last year at the firm.
The idea of Ted Stevens suing to get those legal fees paid by the feds is popular in some circles, as shown last week by the adoption of a resolution by the Alaska House of Representatives that “demands” that the federal government grant permission for such a lawsuit by the former Senator. This resolution passed by a vote of 34 to 1.
Actually, federal law already grants permission to Ted Stevens to sue for his legal fees. The legal standards for recovering fees and the reality of the process for seeking that recovery might tip the balance in favor of Stevens walking away from the case, however. A brief tour of the law here explains why.
Federal law specifically allows a defendant who has prevailed in a federal criminal case “a reasonable attorney’s fee and other litigation expenses” if the court finds that the prosecution’s position was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” (Hat tip to Ashby Jones in the Wall Street Journal’s Law Blog for this reference to a statutory note in 18 U.S.C. § 3006A.)
This statute sets a high bar for Stevens. Daniel Richman, a criminal law professor at Columbia University, told the Wall Street Journal that to win a motion for fees a defendant would have to show that “‘there was really no basis to the prosecution.’” Richman believes that such a showing “‘is nearly impossible to make.’”
Such a showing is not unknown, however. Shortly after the dismissal with prejudice of the Stevens case, a federal judge in Miami ordered the Department of Justice to pay more than $600,000 in legal fees to a criminal defendant following revelations that prosecutors had authorized witnesses to surreptitiously tape their conversations with the defense team. (Thanks to the Letter of Apology blog.)
Such orders are still very rare, however. Stevens and his attorneys might not want to sue for legal fees because such an effort would change the current focus on prosecutorial misconduct in the course of the trial and turn the public’s attention to all the factors the Department of Justice considered when deciding whether to prosecute him. Although the Legal Times suggested that some see the former Senator now as “a victim of corruption,” the newspaper indicated that the process of pursuing a lawsuit to recover legal fees might make him look more like “a scheming politician.” Michael Horowitz, a lawyer in the business fraud and complex litigation group of the Washington law firm of Cadwalader, Wickersham & Taft, told the Legal Times that “‘He may be best positioned now politically to leave the record as is. He doesn’t need much more.”
Sunday, April 12, 2009
Special Prosecutor Probing the Ted Stevens Trial Prosecutors More than the Headline Caricature
Anchorage—
The headline on the Associated Press article was “Low-key Harley lover running Stevens investigation.”
A casual reading of the article shouts: “Fun!” Henry Schuelke, the newly selected special prosecutor probing the work of the prosecutors in the Ted Stevens trial, drives a Porsche to work, likes fast motorcycles, and gives great parties even while avoiding grandstanding.
But the reader can’t just focus on the headline and the human-interest highlights. I’ve never met this guy, but I know he is not merely the coolest uncle you could ever imagine. You don’t get to be one of the most successful and respected lawyers specializing in white-collar criminal defense unless you’re real smart and real tough.
A more complete account of Schuelke’s personality and approach to his work can be found in the book The Man to See by Evan Thomas. The book is a biography of legendary lawyer Edward Bennett Williams, the founding partner of the law firm Williams & Connolly. That firm represented Ted Stevens, and Stevens’ lead trial attorney was Brendan Sullivan, a protégé of Williams.
While serving as an Assistant U.S. Attorney in 1978, Schuelke beat Williams in a public corruption trial in Washington, D.C. The wisecracking Schuelke worked during the trial to throw his iconic opponent off his stride. Williams owned the Washington Redskins professional football team. If the Redskins lost on Sunday, Schuelke would sidle up to Williams and say “‘Hey Ed, I’ve been busy. What happened? Skins win?’”
After Williams lost the trial, his firm asked the judge to throw the verdict out based on juror misconduct. After Schuelke asked whether Williams had learned this information before the verdict and tucked it away to use in case he needed it, the defense attorney had to go on the stand himself in post-trial proceedings and defend his integrity.
Williams ultimately got the verdict thrown out and the case re-tried in Philadelphia. He won the re-trial, but it was clear that he didn’t view his experience up against Schuelke as some sort of unalloyed triumph. “‘Victory?’ Williams said when someone stopped to congratulate him. ‘All we did was split a doubleheader.’”
Schuelke’s comment on his opponent’s conduct gives some insight into his nuanced view of lawyer’s ethics in ligitation. “‘Williams played the game with a little chalk on his shoes, but he’s no different from any other lawyer in a hotly contested suit. You take advantage wherever you can get it.'"
The headline on the Associated Press article was “Low-key Harley lover running Stevens investigation.”
A casual reading of the article shouts: “Fun!” Henry Schuelke, the newly selected special prosecutor probing the work of the prosecutors in the Ted Stevens trial, drives a Porsche to work, likes fast motorcycles, and gives great parties even while avoiding grandstanding.
But the reader can’t just focus on the headline and the human-interest highlights. I’ve never met this guy, but I know he is not merely the coolest uncle you could ever imagine. You don’t get to be one of the most successful and respected lawyers specializing in white-collar criminal defense unless you’re real smart and real tough.
A more complete account of Schuelke’s personality and approach to his work can be found in the book The Man to See by Evan Thomas. The book is a biography of legendary lawyer Edward Bennett Williams, the founding partner of the law firm Williams & Connolly. That firm represented Ted Stevens, and Stevens’ lead trial attorney was Brendan Sullivan, a protégé of Williams.
While serving as an Assistant U.S. Attorney in 1978, Schuelke beat Williams in a public corruption trial in Washington, D.C. The wisecracking Schuelke worked during the trial to throw his iconic opponent off his stride. Williams owned the Washington Redskins professional football team. If the Redskins lost on Sunday, Schuelke would sidle up to Williams and say “‘Hey Ed, I’ve been busy. What happened? Skins win?’”
After Williams lost the trial, his firm asked the judge to throw the verdict out based on juror misconduct. After Schuelke asked whether Williams had learned this information before the verdict and tucked it away to use in case he needed it, the defense attorney had to go on the stand himself in post-trial proceedings and defend his integrity.
Williams ultimately got the verdict thrown out and the case re-tried in Philadelphia. He won the re-trial, but it was clear that he didn’t view his experience up against Schuelke as some sort of unalloyed triumph. “‘Victory?’ Williams said when someone stopped to congratulate him. ‘All we did was split a doubleheader.’”
Schuelke’s comment on his opponent’s conduct gives some insight into his nuanced view of lawyer’s ethics in ligitation. “‘Williams played the game with a little chalk on his shoes, but he’s no different from any other lawyer in a hotly contested suit. You take advantage wherever you can get it.'"
Saturday, April 11, 2009
What Happened, What It Looked Like, and What It Means (Part Three)
Anchorage--
Legally speaking, the first thing to know about this dismissal is that the jury verdict finding Ted Stevens guilty of seven felony counts has been set aside and—in the words of Judge Sullivan—“has no legal effect.”
As Judge Sullivan also noted in his written order of dismissal, he never issued a judgment of conviction that would have imposed sentence on the former Senator. As a result, in a technical sense Ted Stevens was correct when he asserted right after the verdict that he had not been convicted.
Reflecting the reality that the court’s setting aside of the jury verdict eliminated any legal disability for the former Senator, the Alaska Bar Association moved immediately after the court’s dismissal of the indictment to withdraw the motion for interim suspension of Ted Stevens’ license to practice law in the 49th State. The Alaska Bar Association had made that motion after the jury said “Guilty” seven times last October, but the Legal Times reported that the Alaska Supreme Court had not yet taken action by the time of Judge Sullivan’s setting aside of the jury verdict. (A court in the District of Columbia had issued an interim suspension of Stevens’ D.C. law license in December, but the Legal Times also reported on April 9 that the licensing authority in our nation’s capital is also expected to move to lift that suspension in the wake of Judge Sullivan’s order.)
There are two more outstanding—and interrelated—questions about the future:
A. What happens to the trial prosecutors in the Ted Stevens case?
B. What happens to the federal investigation into public corruption in Alaska?
I wrote about these subjects at some length 10 days ago when the Attorney General threw in the towel, but that was before Judge Sullivan has ordered his own investigation of the trial prosecutors’ handling of evidence and witnesses to go along with the already-ongoing internal investigation by the Department of Justice.
I will have more to write later about these topics. The short answers to Questions A and B above are that all this scrutiny of the trial prosecutors (and lead investigators) both makes the lives of those federal employees very difficult and tends to put up barriers to the successful prosecution of additional targets in the underlying investigation into Alaska public corruption.
For today, I point you to two articles:
Ashby Jones, Wall Street Journal Law Blog, “Pregaming the Ted Stevens-Prosecutors Investigation,” found at http://blogs.wsj.com/law/2009/04/08/pregaming-the-ted-stevens-prosecutors-investigation/
William Yardley, New York Times, New Scrutiny of Other Alaska Corruption Cases,” found at http://www.nytimes.com/2009/04/09/us/politics/09stevens.html (note that the article misspells the last name of former state Rep. Bruce Weyhrauch)
Coming up:
What’s the story on Henry Schuelke, the private attorney selected by Judge Sullivan as the special prosecutor investigating the work of the trial prosecutors in the Ted Stevens case?
What is the likelihood that Ted Stevens will seek to get his legal fees paid by the Department of Justice?
Why did the Department of Justice charge Ted Stevens with felony counts alleging financial disclosure violations so close to an election?
Why did these discovery problems occur in the prosecution?
Why did Ted Stevens push so hard for a quick trial?
What would have happened if Ted Stevens hadn’t pushed so hard for a quick trial?
Legally speaking, the first thing to know about this dismissal is that the jury verdict finding Ted Stevens guilty of seven felony counts has been set aside and—in the words of Judge Sullivan—“has no legal effect.”
As Judge Sullivan also noted in his written order of dismissal, he never issued a judgment of conviction that would have imposed sentence on the former Senator. As a result, in a technical sense Ted Stevens was correct when he asserted right after the verdict that he had not been convicted.
Reflecting the reality that the court’s setting aside of the jury verdict eliminated any legal disability for the former Senator, the Alaska Bar Association moved immediately after the court’s dismissal of the indictment to withdraw the motion for interim suspension of Ted Stevens’ license to practice law in the 49th State. The Alaska Bar Association had made that motion after the jury said “Guilty” seven times last October, but the Legal Times reported that the Alaska Supreme Court had not yet taken action by the time of Judge Sullivan’s setting aside of the jury verdict. (A court in the District of Columbia had issued an interim suspension of Stevens’ D.C. law license in December, but the Legal Times also reported on April 9 that the licensing authority in our nation’s capital is also expected to move to lift that suspension in the wake of Judge Sullivan’s order.)
There are two more outstanding—and interrelated—questions about the future:
A. What happens to the trial prosecutors in the Ted Stevens case?
B. What happens to the federal investigation into public corruption in Alaska?
I wrote about these subjects at some length 10 days ago when the Attorney General threw in the towel, but that was before Judge Sullivan has ordered his own investigation of the trial prosecutors’ handling of evidence and witnesses to go along with the already-ongoing internal investigation by the Department of Justice.
I will have more to write later about these topics. The short answers to Questions A and B above are that all this scrutiny of the trial prosecutors (and lead investigators) both makes the lives of those federal employees very difficult and tends to put up barriers to the successful prosecution of additional targets in the underlying investigation into Alaska public corruption.
For today, I point you to two articles:
Ashby Jones, Wall Street Journal Law Blog, “Pregaming the Ted Stevens-Prosecutors Investigation,” found at http://blogs.wsj.com/law/2009/04/08/pregaming-the-ted-stevens-prosecutors-investigation/
William Yardley, New York Times, New Scrutiny of Other Alaska Corruption Cases,” found at http://www.nytimes.com/2009/04/09/us/politics/09stevens.html (note that the article misspells the last name of former state Rep. Bruce Weyhrauch)
Coming up:
What’s the story on Henry Schuelke, the private attorney selected by Judge Sullivan as the special prosecutor investigating the work of the trial prosecutors in the Ted Stevens case?
What is the likelihood that Ted Stevens will seek to get his legal fees paid by the Department of Justice?
Why did the Department of Justice charge Ted Stevens with felony counts alleging financial disclosure violations so close to an election?
Why did these discovery problems occur in the prosecution?
Why did Ted Stevens push so hard for a quick trial?
What would have happened if Ted Stevens hadn’t pushed so hard for a quick trial?
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