Sunday, April 29, 2012

Head of National Association of Assistant U.S. Attorneys Asks Everyone to Wait for the OPR Report Before Assistant U.S. Attorneys Are Fired


The president of the National Association of Assistant United States Attorneys has published a commentary calling "premature" the calls for the canning of prosecutors involved in the trial of U.S. Ted Stevens (R.-Alaska) in the wake of a court-appointed special counsel's report finding "systematic concealment of significant exculpatory evidence."

Robert Gay Guthrie counsels patience in waiting for the Justice Department's internal watchdog, the Office of Professional Responsibility ("OPR"), to complete its own inquiry into the handling of discovery at the 2008 trial.     

Guthrie offers two reasons for holding off.   One is that "OPR's investigations customarily reveal the unblemished truth while still affording due process to those under investigation."

The second reason given by Guthrie is that the special counsel--Henry Schuelke and his colleague William Shields--did not sufficiently examine the role of Justice Department higher-ups in the matter, while he suggests that OPR will.

Guthrie also weighs in against calls for structural change to the federal criminal discovery process, arguing that the enactment of such proposals for much broader evidence-sharing would provide "significant tactical advantage for criminal defendants." 

Thursday, April 26, 2012

Another Discussion of the Ted Stevens Case on the Anchorage Airwaves


Local attorney and radio talk show host Matt Claman has invited me back to speak more about the Ted Stevens case and its aftermath, and the show be on live tomorrow (Friday) at 2 p.m.    The "Alaska Matters" program is simulcast on KOAN 1020 AM and 95.5 FM in Anchorage. 

Sunday, April 22, 2012

Anchorage Daily News Runs Article on Question of Alternative Universe Regarding Ted Stevens


Sean Cockerham of the Anchorage Daily News has a story in today's edition with the headline "Was Stevens guilty?    Question likely won't be answered."   

Although I am quoted in the article, my focus is on a narrower question.   The question I have addressed repeatedly is:   "If the federal prosecutors had provided Ted Stevens' defense lawyers all the evidence required under the law, would that jury in Washington, D.C. in 2008 have still found Stevens guilty on some or all of the charges?"

Redacted Unsealed Documents Dog Don Young, the Congressman for All Alaska


Documents unsealed through a lawsuit filed by the organization Citizens for Responsibility and Ethics in Washington (CREW) include allegations that U.S. Rep. Don Young (R.-Alaska) and his late wife misused campaign funds for personal purposes, a charge that the Congressman's spokesman denies.

CREW calls itself a watchdog group, and the lawsuit it is pursuing attempts to get the Department of Justice to release documents from its criminal investigation into Young.    Although Young's Congressional office has announced that the federal criminal probe into him is over, CREW claimed last week that redactions in the documents from FBI files that have been released so far indicate that the federal government is still investigating Young.

Young's lawyer dismissed as nonsense CREW's allegation of a continuing federal probe into his client.   

Calling CREW "some of the most reckless people I have ever seen," Washington, D.C.-based attorney John Dowd said "They are just trying to smear him, hurt an old man.   He did everything right, he cooperated with everyone, there is no case there."

The attorney's description of his client as an "old man" shows why Dowd is a defense lawyer, not a campaign consultant. 

Read more here:

Friday, April 20, 2012

Here Is a Link to My Anchorage Press Article on the Ted Stevens Case and the Special Counsel's Report

Kirkland, Washington--

The link to my examination in the Anchorage Press of the Ted Stevens case in the light of the Schuelke-Shields report is here.

Pundit Turns Traffic Cop in the Rain: Here Are Links to Coverage of House Judiciary Committee Subcommittee Hearing on Schuelke-Shields Report

Kirkland, Washington--

Between other responsibilities and a limited Internet connection while traveling, there will be a delay in the analysis of the comments made yesterday at a unit of the U.S. House Judiciary Committee.    Recall that the Crime, Terrorism and Homeland Security Subcommittee held a hearing on the special counsel's report regarding prosecutorial misconduct in the Ted Stevens case.    You can find coverage of that event in the Anchorage Daily News here, in The Blog of Legal Times here, and in the Website here.   Regular blogging resumes Sunday.

Thursday, April 19, 2012

Check this Space Tomorrow for Commentary on House Judiciary Committee Subcommittee Hearing

Kirkland, Washington--

A subcommittee of the U.S. House Judiciary Committee held a hearing today on the special counsel's report on prosecutorial misconduct in the Ted Stevens case while I was traveling with limited Internet access.  I have been able to glean, however, that an outside expert believes that some of the trial prosecutors could have been prosecuted and that Henry Schuelke, chief special counsel, said that he believes the jury would have come back with a different verdict if all the required discovery had been turned over.   More tomorrow.

Anchorage Press Features My Article on the Ted Stevens Case

Kirkland, Washington--

This week's edition of the Anchorage Press features a cover story I wrote examining the alternative universe in which federal prosecutors turned over all the evidence to the defense the government was required to before the Ted Stevens trial in Washington, D.C. in 2008.    I conclude, as I have repeatedly said on this blog, that it is still very possible that the jury would have found Ted Stevens guilty on at least some of the counts if the feds had provided all the necessary discovery.    The Anchorage Press is a free weekly newspaper distributed at grocery stores, coffee shops, and other locations all over Alaska's largest city, and this week's edition will be on stands from today up through next Wednesday, April 25.

It was impossible to cover all that I wanted in that story limited to 3,000 words.    With more space, I would have written more about the career of Alaska's remarkable public servant who ended up as the defendant in that case.    Here is what I wrote back in August of  2010 on the occasion of his tragic death.

Tuesday, August 17, 2010

Why Ted Stevens' Death Has Hit Alaska So Hard


An outpouring of grief has washed over Alaskans regarding the tragic passing of Ted Stevens. The former U.S. Senator died last week in a plane crash near Dillingham. In addition to Stevens, that accident took the lives of Dana Tindall, of Anchorage, a telecommunications executive; Tindall's daughter, Corey, a high school student; Washington, D.C., lobbyist Bill Phillips, a former chief of staff for Stevens; and the pilot, Terry Smith, of Eagle River, a retired Alaska Airlines chief pilot. The survivors were former NASA Administrator and ex-Stevens staff member Sean O’Keefe; O’Keefe’s son Kevin, a student; Washington, D.C.-area lobbyist Jim Morhard; and Phillips’ son Willy, a student.

Signs of mourning for Ted Stevens are all over. Large streetside signs reading “GOD BLESS TED STEVENS” and “HE LOVED ALASKA AND WE WILL MISS HIM SEN TED STEVENS” appear four blocks apart in Anchorage. A funeral home runs a radio spot in heavy rotation urging people to sign the official guestbook at its parlor and receive a program about the former Senator’s life.

There are no fewer than four events marking the end of his life in Anchorage this week. There was a Catholic mass Monday; a viewing of his casket today at his old home church, All Saints Episcopal; a procession tonight following that viewing from All Saints to Anchorage Baptist Temple; and finally the official memorial service at that megachurch on Wednesday at 2 p.m. The Anchorage Baptist Temple can hold more than 4,500 people, and Vice President Joe Biden is expected to be among those in the pews.

Love and Admiration

There appear to be several strands in this mourning for “Uncle Ted,” who served as U.S. Senator for Alaska for 40 years. For his family and friends, there is the obvious love for a man who was dedicated to those close to him. For many others who crossed his path over the years, there is affection and admiration for his many fine qualities—intelligence, hard work, devotion to Alaska and the interests of Alaskans as he saw them. Alaskans also treasure the bluntness that carried its own kind of charm: the skillfully used temper, the Incredible Hulk and Tasmanian devil ties, the tough-guy statements like “Senator, that’s not a threat, it’s a promise.” If the legendary Governor Jay Hammond personified Alaskans’ image of themselves as independent pioneers who run trap lines and build their own cabins, Ted Stevens personified the Last Frontier’s scrappy fighter side.

Grief Over the Loss of a Glorious Past

The mourning over the man who worked in Alaska public life for well over five decades also seems to reflect a nostalgia for an earlier time—the era in the 1950s and early 1960s when statehood was won and people worked to build the new state. Back then, Alaskans seemed more united, the politics seemed purer, and the Great Land seemed greater. Ted Stevens was the last prominent link to that period, and some of the grief seems to come from that longing for a time that now seems more glorious and less complicated. (Mingled with that nostalgia may be a strong sense of regret among Alaska voters. Stevens only lost re-election after a jury returned guilty verdicts against him on seven felony counts eight days before the general election in 2008, and a poll taken after the case collapsed the next year reportedly showed that the then 85-year-old Stevens would have won 2-1 if the election were run again.)

Thanks, Ted, for the Spending and the Helpful Laws

Then there is the gratitude. Ted Stevens delivered for Alaskans. People usually focus on the dollars, and there were billions and billions of those. Stevens concentrated most of his Capitol Hill career on his service on the Senate Appropriations Committee, where he ultimately ascended to the post of Chairman. In that capacity, he showered so much federal funding on Alaska that the state’s newspapers routinely used the term “Stevens money” without quotation marks to describe projects and programs from Washington, D.C. As Stevens said in his farewell Senate address, “Where there was nothing but tundra and forest, today there are now airports, roads, ports, water and sewer systems, hospitals, clinics, communications networks, research labs, and much, much more.”

Ted Stevens was the man who brought home the bacon (or the pork, as observers outside Alaska often called it). In the words of the writer Michael Carey, Stevens became “something of a frontier fertility god—worshipped, propitiated, feared."

But Alaskans tend to have some sense that Ted Stevens’ contributions to the state came in places other than the federal budget. As a Department of Interior official, Ted Stevens helped bring statehood. As a U.S. Senator, he played major roles in legislation that created Alaska Native corporations (the Alaska Native Claims Settlement Act, or ANCSA), helped make Alaska’s fisheries sustainable, and allowed the construction of the Trans Alaska Pipeline System (TAPS) that has brought so much wealth to Alaska’s economy.

Sophisticated insiders also recognize that Ted Stevens’ distinctive accomplishments in legislation required a shrewd sense of the possible, a knack for timing, a willingness to compromise, and even that seemingly un-Stevens quality of patience. As Mark Regan has noted, the Alaska National Interest Lands Conservation Act of 1978 (ANILCA) depended on Stevens' brokering a very complex compromise, and the law would not have passed without Stevens' almost infinitely patient work. Regan has also pointed out that Stevens was almost entirely responsible for passing legislation rescuing the Native corporations allowing them to sell their net operating losses; this move was only possible because Stevens and his staff saw how to do it.

“If Ted Stevens hadn't been there, land issues might still be uncertain, many Native corporations might have gone under, and fishing rights might still be as snarled as they were in the early 1970s,” Regan told me. “We can remember and celebrate him not for bringing home so much bacon, but for working out arrangements which have made it a whole lot easier for us to live and work together as Alaskans.”

The writer Charles Homans observed that “In the view of his constituents he was less Alaska's senator than its patriarch, the leader who guided Alaska's transformation from a territorial outpost to a modern petrostate.”

Alaskans seem to understand the correctness of the observation of the Almanac of American Politics that “No other senator fills so central a place in his state’s public and economic life as Ted Stevens of Alaska; quite possibly no other senator ever has.”

Only a Career Member of Congress Focused on Alaska Issues Could Stay Above the Fray and Command Respect Across Alaska’s Factions

Ted Stevens only kept his status as an icon across the decades, however, because he didn’t do what at least one of his Senate staff members thought likely 35 years ago. In 1975, a Capitol Hill aide to Stevens told me that there was speculation among the staff that the Senator would ultimately go back to Alaska and cap his career by serving as Governor.

Stevens’ long-time Senate colleague Frank Murkowski did that in 2002, and that move ended up destroying his image in the state. Murkowski went from routine re-election over 22 years in the Senate to finishing third in his own Republican primary when he ran for re-election as Governor in 2006.

Sen. Murkowski kept winning re-election because as a Senator he did not have to make decisions that divided Alaskans. Gov. Murkowski lost badly when he ran for re-election as Governor in part because he made some tough calls, which had him take aggressive positions on fiscal questions like state budget cuts vs. reductions in Permanent Fund Dividends vs. bringing back the state income tax on individuals.

Ted Stevens, on the other hand, stayed an Alaska hero because he maintained a laser-like focus on fighting for Alaskans against the federal government. He worked to get federal dollars for Alaska projects and programs; he maneuvered to make federal law favorable to Alaskans; and he stood up for individual Alaska constituents against federal agencies. As the state’s fierce lobbyist, clever lawyer, and superombudsman, Stevens was almost a cross between a Western hero played by John Wayne and star attorney Perry Mason of TV fame, the kind of champion you want on your side when the stakes are high and the odds are long.

Stevens was a gladiator for Greatlanders in the arena of Washington, D.C. Even if he didn’t always win, Alaskans could always see that he was trying his hardest. As U.S. Senator for Alaska, Stevens was the captain of the Last Frontier team, or even the chieftain of the Alaska tribe.

All that would have gone out the window if Ted Stevens had left the U.S. Senate to return to Alaska as Governor. As the state’s chief executive, he would have had to takes sides among Alaska’s warring clans on various issues, particularly fiscal matters. Stevens’ popularity would have plummeted, especially if falling oil prices forced him to make tough calls on budget and tax issues. The diminutive scrapper’s famously irritable and pugnacious personality would have not have worn as well with Alaskans if he had become the state’s chief executive. Serving as Governor would have made it much harder for Stevens to hang onto the idealized view of Alaska society he seemed to have as a Senator, which allowed him to believe that all boats would rise together if he just kept pouring enough federal dollars into the ocean. As Governor, Stevens would no longer have been “Uncle Ted”—he could easily have become in many Alaskans’ eyes “that knucklehead in Juneau.”

Ted Stevens was a smart man who worked hard for a long time to promote the best interests of Alaska as he saw them. His stature as an Alaska legend was immeasurably aided by his decision to stay in the U.S. Senate, where as a top-ranking federal official he could best fight the feds on behalf of his constituents.

Wednesday, April 18, 2012

House Judiciary Committee Hearing to Feature Outside Expert and Lawyer for Accused Prosecutor


The House Judiciary Committee's hearing tomorrow on the court-ordered Schuelke-Shields report on prosecutorial misconduct in the Ted Stevens case promises more disagreement than the hearing held by the Senate Judiciary Committee last month.    

Tomorrow's House hearing will feature both an outside expert in white-collar criminal litigation and the most vocal attorney for a prosecutor a special counsel's report accused of intentional misconduct in withholding evidence in that botched prosecution.    

The outside expert is Alan Baron, a white-collar criminal defense attorney who has also served as an Assistant U.S. Attorney and Special Impeachment Counsel in a proceeding against a federal judge.    

The attorney for the accused prosecutor is Ken Wainstein, who represents Assistant U.S. Attorney Joe Bottini, who sat as second chair in the Ted Stevens trial in Washington, D.C. in 2008 before returning to his regular job in Alaska.   

Returning to Capitol Hill to testify on the report will be chief court-appointed special counsel Henry "Hank" Schuelke, who also appeared as the sole witness at the Senate hearing in March.

The hearing tomorrow occurs against a backdrop of calls in Alaska and in Congress for the firing of the two prosecutors specifically accused of intentional misconduct in the special counsel's report.   

Wainstein blasted the special's counsel report in a news release earlier this week, saying that "We are confident that Congress and the American people will ultimately see that the report is based on nothing more than flawed reasoning, slanted factual analysis and a process that denied our client and his colleague the fundamental right to answer and test the accusations against them."

(Hat tip:

Monday, April 16, 2012

House Judiciary Committee to Hold Hearing on Schuelke-Shields Report on Thursday


The Wall Street Journal Law Blog reports that the U.S. House Judiciary Committee will hold a hearing on Thursday morning, April 19, regarding the special counsel's report on prosecutorial misconduct in the Ted Stevens case.    The hearing is set to start at 9:30 a.m. EDT.

The lawyer who led the elite federal government unit in charge of the Ted Stevens investigation and prosecution has told friends he is leaving.  Carrie Johnson of NPR reports that William Welch, who served as chief of the Public Integrity Section from 2007 to 2009, is departing the Justice Department in a move he is apparently characterizing as a retirement.   The special counsel's report airs criticism of Welch for management failures in the handling of the Stevens case, although co-investigators Henry Schuelke and William Shields did not accuse Welch of intentionally withholding discovery.    

Tuesday, April 10, 2012

Justice Department Releases List of Documents in Don Young Investigation, Including a "Potential Witness List and Indictment"


The Justice Department has released a list of documents it generated in the course of investigating U.S. Rep. Don Young (R.-Alaska), including a "potential witness list and indictment."    The release of the list occurred during litigation over a Freedom of Information Act request filed by Citizens for Responsibility and Ethics in Washington (CREW) regarding the federal government's closed probe of Young's involvement with the notorious Coconut Road project in Florida. Richard Mauer has the story at

Saturday, April 7, 2012

Tips for Prosecutors


Caleb Mason has a good collection of thoughts on the lessons to be learned from the Schuelke-Shields report on the Ted Stevens trial.  

And as long as the federal government sticks with its limited and discretionary system of criminal discovery, these words should serve as a guide:

"If your gut is telling you you do not want the defense to have this, then that tells you you must turn it over....People who don't do that, and hold things too close to the chest, those are the people who get into trouble."

--Mary Patrice Brown, then chief of the Office of Professional Responsibility, the U.S. Department of Justice's internal ethics unit, speech, May 6, 2009.

Friday, April 6, 2012

Preview of Coming Attractions, Plus a Correction


Questions I will answer soon in this space and elsewhere:

1.  Why did Ted Stevens become such good buddies with Bill Allen?

2.  What was the choice Matthew Friedrich, acting Assistant Attorney General in charge of the U.S. Justice Department's Criminal Division in the late stages of the George W. Bush administration, thought he faced when he gave the go-ahead for the prosecution of Ted Stevens in July of 2008, and why was that choice false?

3.  How are the Ted Stevens trial and the investigation of the Ted Stevens prosecutors similar?

Also, my blog post yesterday reflected misinformation from an outdated webpage.   The Dan Fagan Show is no longer on radio.    It is on television on Anchorage's Channel 4 and also shown through the show's Facebook page.   

Thursday, April 5, 2012

More Talk on Special Counsel's Report on Ted Stevens Prosecutors


I will be on the Dan Fagan Morning Show tomorrow at 7 a.m., which is simulcast on both TV and radio in Anchorage.    I will probably be speaking mostly about the court-appointed special counsel's investigation and report regarding the Ted Stevens prosecutors.  

Wednesday, April 4, 2012

Advocacy Group Rallies to Get Pro-Disclosure Legislation Adopted and Federal Employees Fired

Washington, D.C.--

An organization called Alaskans for Justice is holding a rally today to call for the passage of legislation promoting greater discovery in federal criminal cases.   The group is also demanding the firing of two prosecutors and an FBI agent whose conduct was attacked in a special counsel's report on prosecutorial failings in the bungled Ted Stevens prosecution.

Greater understanding of matters referenced at the rally will come from reading two blog posts by experienced lawyers who have worked as federal prosecutors and white collar criminal defense attorneys.  

The first is by Michael Volkov, who says "There is no question that mistakes were made in the Stevens case, but the Schuelke-Shields report ignores too many facts, inconsistent evidence and the surrounding managerial dysfunctions to carry much weight."    Volkov contends that "In many respects, the Schuelke-Shields report is guilty of the same conduct it complains about in the Stevens case."   

Observing that the special counsel's report "appears to be guided by a predetermined political result," Volkov even suggests that the report's conclusion that no charges of criminal contempt of court should be brought was a way to protect a flawed process by insulating the findings from being tested in court.   

Solomon Wisenberg, on the other hand, focuses on the practical lessons to be gained from the special counsel's report.  

Four of Wisenberg's nine points in his post dated March 27 are:

Compost flows downhill....

If I am an experienced prosecutor and supervisor and agree to take over and lead the prosecution team a few days prior to the Indictment, I need to lead that team and take responsibility for my actions and the team's actions....
If I am prosecuting a white collar case involving hundreds of FBI 302s [forms the FBI uses to summarize witness interviews] and I don't hand them over to the defense before trial AND I am going up against a United States Senator who is represented by a highly skilled law firm known for its tenacious tactics, I am a fool. I deserve what I get. But the people who work for me don't necessarily deserve what they get....

If four prosecutors and one case agent interview the key prosecution witness three months before Indictment, and the interview goes poorly, AND no 302 is generated, people aren't going to think well of them. This is especially true if the FBI Special Agent later admits that no 302 was written because, "the debriefing...did not go well," and the prosecutors completely forget about the interview and the Brady information gleaned during it.

Monday, April 2, 2012

Leopard-Skin Bathrobes, Highest-End College Kids, and Brazilian Bargain-Hunters

Washington, D.C.--

Three lessons learned while traveling:

1. Globalization means that in the Orlando area--allegedly the world's most visited tourist destination--40 percent of the units at one time-share sales operation are owned by people from South America. (Much of the appeal seems to be the shopping bargains.)

2. Some college students on Spring Break last week went in nine days from Miami to Mexico to Greece via private jet.

3. Staying at a "boutique hotel" in D.C. means in at least one case experiencing a color scheme of orange, lime green, and white along with a leopard-skin bathrobe in the closet.

Don't Have a Federal Criminal Discovery System that Requires Prosecutors to Make Discretionary Decisions Against Their Instincts, Veteran Former Federal Prosecutor Says

Washington, D.C.--

Long-time federal prosecutor turned white collar defense attorney Peter Zeidenberg urges the federal government to adopt a practice of open-file discovery in criminal cases.    You should read the whole thing, but it's hard to beat this conclusion:

Experience and logic suggest that prosecutors have great difficulty shifting from their natural role as advocate to the impartial role required to determine what evidence will be helpful to the defense. Only by taking the discretion out of prosecutor’s hands, and mandating full and open discovery in all but the rarest cases, can there be confidence that what occurred in Stevens will not reoccur down the road.