Monday, May 28, 2012

As This Blogger Goes Bushy for Three Days, Here Are Expressions of the View that the Justice Department Went Soft on the Ted Stevens Prosecutors


I'm heading off to Alaska's lovely Prince William Sound, so there won't be any blogging at least until Friday.    In the meantime, I leave you with two of the more informed comments in the "I can't believe how easy they got off" school of thought regarding the Office of Professional Responsibility (OPR) report.   The second one carries a bonus in that it has links to the documents released in the package with the report.    Have a good week.

Friday, May 25, 2012

On a Roll with Releases, the Justice Department Defends Its Decision Not to Prosecute Bill Allen for Sex Crimes


The Justice Department announced today that a probe by its internal ethics unit had found no misconduct in the federal government's decision not to prosecute cooperating government witness and convicted briber Bill Allen for crimes involving sexual acts with underage girls.   

The Anchorage Daily News reported that a Justice Department official wrote U.S. Sen. Lisa Murkowski (R.-Alaska) that the investigation by the Office of Professional Responsibility (OPR) uncovered no evidence that the decision to decline prosecution of Allen was driven by "corrupt, improper, or impermissible considerations."   

The letter from Assistant Attorney General Ronald Welch said that the decision not to bring sex-related charges against Allen "appears well within the legitimate exercise of prosecutorial discretion, and was based upon application of the Principles of Federal Prosecution, which includes an evaluation of witness credibility and due process considerations."  

"Compost Flows Downhill" (And the Senators Killed Caesar)


There's a lot of attention going to the characterizations of "laughable" and "pathetic" that Ted Stevens' lawyers have bestowed on the Justice Department's announcement of suspensions without pay of 40 and 15 days for two Assistant U.S. Attorneys involved in discovery violations in the bungled prosecution of the long-time U.S. Senator.  

What has gotten less notice than the nine-sentence broadside from Stevens' attorneys, however, is a 82-page, 316-footnote analysis of the prosecution's problems also released yesterday.   (The document appears at pages 77-158 of the link.)  This memorandum was written by Terrence Berg, a long-time federal prosecutor with the Professional Misconduct Review Unit who was initially assigned to recommend discipline for the line lawyers criticized most harshly in the report prepared by the Office of Professional Responsibility (OPR).    Berg's recommendation that Assistant U.S. Attorneys Joseph Bottini and James Goeke not face professional discipline for the discovery failures in the case was rejected by Justice Department higher-ups, but his reasoning and conclusions are interesting.

Berg pulls no punches in pointing out that the Ted Stevens prosecution was fouled-up.   "Staggering" is his word to describe "the sheer scope and breadth of the misconduct allegations" detailed in the OPR report.   Berg calls the OPR report "a monument inscribed with a myriad of admonitions as to 'how not to prosecute a high-profile public corruption case.'"

This career prosecutor does not, however, determine that Bottini or Goeke engaged in professional misconduct, either of the intentional or reckless variety.    Berg observes that it was a team of prosecutors that prosecuted Ted Stevens and a team that failed.  Berg does not see it as fair that the Justice Department decided to suspend without pay two players while letting the team's captain, manager, and general managers off the hook for the "supervisory failures" that Berg sees as helping to make the numerous discovery violations "almost inevitable."   

Berg names as responsible higher-ups Matthew Friedrich, the former Assistant Attorney General for the Justice Department's Criminal Division; Rita Glavin, the former Principal Deputy Assistant Attorney General for the Criminal Division; William Welch, the former Chief of the Criminal Division's Public Integrity Section; and Brenda Morris, the Public Integrity Section's Principal Deputy Chief.

Berg is particularly critical of the way the OPR report repeatedly gave Morris the benefit of the doubt while not granting the same consideration to lower-level lawyers in the case.    Morris was at the top of the trial team and had the most high-profile role among the prosecutors at trial, but Berg sees a "double standard" in her favorable treatment in the OPR report.

Berg concluded that "[T]he failures that led to the collapse of the Stevens prosecution were caused by team lapses rather than individual misdeeds, with origins in inept organizational and management decisions that led to a hyperpressurized environment in which poor judgments, mistakes and errors compounded one another and made it almost inevitable that disclosure violations would occur."  

More to come.

Note:    "Compost flows downhill" comes from Solomon Wisenberg's post of Tuesday, March 27, 2012 in the White Collar Crime Prof Blog.   And Julius Caesar was not assassinated by one or two Senators, but by a group of 60 or more who all joined in the attack that killed him.


Thursday, May 24, 2012

Justice Department Wanted to Include Undisclosed Gifts of Firearms in the Ted Stevens Indictment, but Then Figured Out He'd Reported Them


The report of the Justice Department's Office of Professional Responsibility ("OPR") on the botched Ted Stevens prosecution is well over 600 pages long, and it will take a while for me to get through it.    One nugget that does appear early on:    The Justice Department had in early 2008 considered including in the indictment of Stevens charges involving unreported gifts of firearms.   Stevens had accepted an annual gift of a firearm at the Kenai River Classic from 2002 through 2006, and had at some point allegedly received a $20,000 shotgun at the same event.    By May of 2008, an internal memorandum showed that the charges involving firearms had fallen out of the indictment after the Justice Department had discovered that Stevens had alerted his staff to the firearms as gifts in 2006 and reported them in 2007.   

Justice Department Releases to Congress Internal Ethics Report on Ted Stevens Prosecution


As predicted, the Justice Department has released the Office of Professional Responsibility ("OPR") report on the actions and omissions of prosecutors involved in the bungled prosecution of Ted Stevens.    Here is a link to the cover letter for the report.   

The seven-page cover letter says that the Justice Department determined yesterday that Assistant U.S. Attorney Joseph Bottini should be suspended for 40 days without pay and that Assistant U.S. Attorney James Goeke should be suspended for 15 days without pay for what the letter characterizes as "reckless professional misconduct."   The specific allegations of misconduct listed in the letter track those laid out in the court-appointed special counsel's report issued in March.

Notably, the Justice Department letter does not describe the any of the offending conduct by the prosecutors as intentional, which was the finding of the court-appointed special counsel's report.   It is also significant that the letter discloses that the Justice Department attorney at the Professional Misconduct Review Unit assigned to propose discipline based on the OPR report concluded that he "disagreed substantively" with the OPR report's findings of professional misconduct by the prosecutors and that this reviewing attorney was overruled by higher-level Justice Department officials.

The letter says that the Justice Department's determination regarding these suspensions is subject to those attorneys' rights to appeal them administratively.

[UPDATED to include a missing word--Joe Bottini's title is Assistant U.S. "Attorney."]   

Justice Department's Internal Ethics Report on Failed Ted Stevens Prosecution to Go to Congress "This Week"


The Blog of Legal Times reports that the Justice Department is preparing to release to Congress "this week" the report of the Department's Office of Professional Responsibility ("OPR") on the botched Ted Stevens prosecution.   This report is consistent with what a source told me yesterday, although this is not the first report or suggestion that the OPR report would be released soon. 

Sunday, May 20, 2012

Federal Spending in Alaska Has Declined But Remains at a High Level Per Capita Compared to the National Average


Sean Cockerham of McClatchy Newspapers has a story this weekend organized so well it's best summarized by quoting the first two sentences:

<<<The explosive growth of federal spending in Alaska has flattened, according to a new analysis, but the state's per-capita haul is still more than 40 percent above the national average, even with legendary spender Ted Stevens gone from the Senate.

The flat funding is a big difference from the enormous spike between 1999 and 2005, when annual federal spending in Alaska jumped from just over $6 billion to more than $10 billion, at its peak reaching 82 percent above the per-capita national average.>>>

The high point in federal spending roughly coincided with Stevens' tenure as chairman of the U.S. Senate Appropriations Committee.   Since Stevens' departure from the Senate following the 2008 election, other factors--the recession, the expanding federal budget deficit, and "the congressional shunning of earmarks"--have contributed to the fall in the spending directed towards the Last Frontier.

Saturday, May 19, 2012

Similarities and Differences in the Trials of Ted Stevens and John Edwards


As we wait for the jury in the John Edwards trial, note  similarities and differences between that case and that of his former U.S. Senate colleague Ted Stevens.    Both men were respected attorneys and well-known figures on Capitol Hill whose close associations with unsavory characters led them to face charges in white-collar criminal cases prosecuted by the Justice Department's elite Public Integrity Section.   At each trial, the role of the defendant's wife in the defendant's actions was critical and much discussed by other witnesses.

There are obviously significant differences between the two cases.  The charges against Ted Stevens involved failure to report gifts and debts on Senate disclosure forms, while the federal government is prosecuting John Edwards for campaign finance violations.    And while the central figures in the  Stevens trial (Ted Stevens and his close friend and benefactor Bill Allen, long-time CEO of VECO) each spent days on the witness stand, the key players in the Edwards trial (John Edwards and his former mistress Rielle Hunter) never testified.

Defendants in criminal cases of course have an absolute right not to testify, so the decisions to put Ted Stevens on the stand and keep John Edwards off were all those of the defense.   Stevens' testimony on his own behalf turned out to be a disaster for the defense on every level, an experience that would have gone on the "No" side of the ledger when the  Edwards team was trying to figure out whether the defendant should take the oath in front of the jury.

By contrast, in both trials the choices not to call as a witness those former intimates of the defendants were critical decisions for both the prosecution and the defense.   Bill Allen and Rielle Hunter were dangerous and unpredictable witnesses for both sides.  The prosecution took the risk of calling Allen in the Stevens trial, while neither side was willing to take the chance of putting Hunter on the stand in the Edwards trial.

The jury returned guilty verdicts on all seven felony counts against Stevens that were overturned months later in the wake of revelations of prosecutorial failures in sharing evidence with the defense. We'll have to see what the jury does in the Edwards trial. To follow the developments, I recommend looking at the coverage of Josh Gerstein at Politico and the articles of Richard Simon and David Zucchino in the Los Angeles Times.

Monday, May 14, 2012

Updated Biography of Cliff Groh with Yet More Disclosures


As time marches on, facts about my life change and I also learn more facts about the past.   So here is another updated biography with updated disclosures:

Updated Biography of Cliff Groh with Yet More Disclosures

Cliff Groh is a lifelong Alaskan who has been a lawyer for more than 20 years. He is now a writer and attorney in Anchorage. Formerly a prosecutor, Groh has represented some criminal defendants in his private law practice. His law practice focuses on the writing of appeals and motions and the revision of legal documents.

Groh has been doing research for a book on the Alaska public corruption scandals uncovered by the current federal investigations and the resulting trials. To that end, he has observed most of the trials of former state legislators Pete Kott and Vic Kohring in Anchorage and all of the trial of then-U.S. Senator Ted Stevens in Washington, D.C. He has taught two classes on Alaska public corruption through the Opportunities for Lifelong Education (OLE) program, and has also presented another lecture through that program. He maintains a blog on the Alaska public corruption scandals at on the Internet.

Groh was interviewed for an hour about Alaska public corruption on C-SPAN by the network's founder Brian Lamb, and he has also given a Polaris lecture on the subject at the University of Alaska Anchorage for the Forty-Ninth State Fellows program.    Groh is a columnist for the Alaska Bar Rag, the official publication of the Last Frontier's lawyers, and most of his offerings in that periodical have addressed the cases arising out of the "POLAR PEN" federal probe into Alaska public corruption.   

Groh's writings on Ted Stevens and the federal prosecution of him have appeared in various outlets, including the Anchorage Daily News, the Anchorage Press, and the Fairbanks Daily News-Miner website.   He has also been interviewed live regarding "POLAR PEN" cases on the Alaska Public Radio Network, Anchorage's TV Channel 4, and KOAN-AM and FM.   His comments on these matters have also appeared in the Los Angeles Times and the Reuters news service and on Anchorage's TV Channels 11 and 2.   

Groh served as the Special Assistant to the Commissioner of Revenue from 1987 through 1990. In that capacity, he served essentially as the State of Alaska's tax lobbyist in the successful effort in 1989 to revise the state's oil taxes in a way that increased revenues from the giant Prudhoe Bay and Kuparuk fields. The legislation adopted in 1989 created a regime for oil taxes that lasted until the Alaska Legislature adopted the Petroleum Profits Tax in 2006.

Groh was also the principal legislative staff member working on Permanent Fund Dividend legislation in 1982. That legislation produced the per capita Permanent Fund Dividend Alaska has today. Groh has co-authored two chapters for an academic book on Permanent Fund Dividends to be published by Palgrave Macmillan.

Groh worked as an Assistant District Attorney in Anchorage and in rural Alaska communities such as St. Paul, Unalaska, and Sand Point. He has handled approximately 30 jury trials as a prosecutor. He has also served as in-house and outside counsel for municipal governments in Alaska. He served as a delegate to the Conference of Alaskans in 2004.

When Groh was first out of college in the late 1970s, he worked as a reporter with a statewide newspaper called the Alaska Advocate. He has also published historical articles on topics ranging from the Permanent Fund Dividend to the history of journalistic coverage of the capital move campaigns.

Groh is a graduate of Harvard College, where his senior honors thesis was on the history of the Alaska Native Claims Settlement Act of 1971 (ANCSA). His law degree is from the University of California at Berkeley (then called Boalt Hall, now known as Berkeley Law).

Disclosures of Potentially Relevant Interests and Relationships

Groh’s work in government has included service in both partisan and non-partisan positions. Groh has worked for Democrats while serving in partisan positions in the Alaska State Legislature and the Alaska Department of Revenue. He is a registered Democrat who was a delegate to the 1988 Alaska Democratic Convention.

Groh socialized with Bruce Weyhrauch during periods in the 1980s and early 1990s when both lived in Juneau, and Groh had some social contacts with Weyhrauch afterwards. While serving as City and Borough Attorney for the City and Borough of Sitka, Groh arranged in 2002 or 2003 for Weyhrauch to act as counsel for the City and Borough in a case where Groh had a conflict of interest. Weyhrauch and Groh have never discussed the criminal case against Weyhrauch while those legal proceedings were pending, and have discussed only the case's effects on him since the case was adjudicated.

Groh knew Ted Stevens all of Groh's life, and Groh's father—who passed away in 1998—was a close friend and political ally of Ted Stevens. Groh lived in a dormitory in Washington, D.C. in the summer of 1975 with interns of Stevens' Senate office while researching a college senior honors thesis on the history of the Alaska Native Claims Settlement Act of 1971.   Ted Stevens apparently made the arrangements for Groh to live in that dormitory, and his office may have paid for the room rental.  Groh sometimes used space in Ted Stevens' Senate office during the summer of 1975 while researching his thesis, and Groh both interviewed and had some social contacts with Stevens that summer.

Groh’s mother was a close friend of Ted Stevens’ first wife Ann Stevens, who died in an airplane crash in 1978. Ted Stevens and his Senate staff worked to arrange for additional medical care for both of Groh’s parents when they were stricken with cancer in the 1990s.

At various points over the years, Groh met and spoke with Jim Clark, Bill Weimar, and Pete Kott about various matters. Groh also exchanged e-mail messages with Vic Kohring about fiscal policy. Groh interviewed Don Young in the 1970s, and as a child he may have played with Ben Stevens.

In the 1980s, Groh’s father served as VECO’s lawyer in some legal matters.   In one such matter, Groh's father defended the corporation against an enforcement action brought by the Alaska Public Offices Commission (APOC) regarding VECO’s campaign contributions. One or both of Groh’s parents also had some business dealings with Bill Allen in the 1980s. In an apparent attempt to interest Bill Allen in buying real estate, Groh’s father reportedly took Allen to a subdivision in rural Alaska owned by a corporation controlled by Groh’s father. Neither Allen nor VECO purchased any property at the subdivision. Given the limited number of sleeping spaces available in the area at the time, however, that visit by Bill Allen probably means that Groh has slept in a bed that Bill Allen once slept in.

Groh's son was selected in 2012 as one of nine summer interns for U.S. Sen. Mark Begich (D.-Alaska).   Groh made no efforts in his son's obtaining of the position.   

Groh's law practice has included work for a law firm representing a municipal government in administrative proceedings and litigation over the property tax on the Trans Alaska Pipeline System (TAPS). The opponents in those legal matters consist mostly of the major oil producers on Alaska's North Slope, who are the majority owners of TAPS.

Groh has also worked and/or socialized with a number of the Anchorage lawyers who have worked on matters associated with the federal government's “POLAR PEN” probe into public corruption in Alaska. Some of those attorneys are or have been prosecutors on those matters, and some of those attorneys have served as defense counsel on those matters.

Tuesday, May 8, 2012

More Talk on the Air about Permanent Fund Dividends


Public radio station KCAW-FM in Sitka, Alaska broadcast today a story based on a telephone interview of me.    Reporter  Robert Woolsey talked to me about my contributions to two academic books on Permanent Fund Dividends.    Both the broadcast interview and a longer print story are here.