August 15, 2010
Clarice's Pieces: Requiem for a Heavyweight
Nancy Pelosi rode into the speakership on a theme of ending what she called the "Culture of Corruption," suggesting that she was going to get out her broom and clean it up. As wealthy as she is, the thought of her cleaning house was always amusing. She is likely to be ousted from the speakership in November on a tsunami of voter revulsion. Speaker Pelosi will probably be remembered as much for the gloating parade through protesting Tea Partiers with a giant gavel in her hand to celebrate the passage of Obamacare, which, as much as anything, has inspirited the voters to pitch her and her party from power as soon as possible. It is unlikely Nancy with a broom in hand will be her pictorial legacy.
The Democratic march to the majority in both houses was aided through the slander of two congressmen and one senator: Congressmen Mark Foley (falsely accused but cleared of having engaged in pedophilia with House pages), Congressman Tom Delay (indicted by Texas Prosecutor Ronnie Earle but not yet tried for what appears to be a phony baloney charge), and Ted Stevens, Senator of Alaska (who contrary to longstanding Department of Justice practice was prosecuted just before an election and whose subsequent conviction was overturned for egregious prosecutorial misconduct).
I thought of this when I read of Stevens' tragic death this week in a plane crash in Alaska. So many of the reports about his life elided over the nature of the criminal case against him and why his conviction was overturned and the matter was dropped. This suggests that perhaps there was something substantial to the matter which caused him so much pain, depleted his relatively meager resources, cost him his reelection, and even after death, unfairly cast a cloud on his reputation.
See this, for example:
The news accounts were mildly disturbing to anyone who knew the facts of the case, but as James Taranto noted, the account by Zachery Roth was particularly outrageous:
Former senator Ted Stevens of Alaska died in a plane crash yesterday, and one Zachary Roth, writing for the Columbia Journalism Review ("Strong Press, Strong Democracy"), hastens to speak ill of him--and to demand that the press do the same:
You can expect to see a gaggle of Washington figures competing over the coming days to outdo one another in praising the eighty-six-year old ex-legislator--and whitewashing his record in the process. And since you can also expect the Beltway press to play right along, it's worth getting out ahead of this impending train wreck.
"Train wreck" is an odd metaphor to use after a literal plane crash, but whatever.Stevens narrowly lost his seat in 2008 after being convicted on corruption charges. But the conviction was overturned after the election following the revelation of what Roth acknowledges was "serious misconduct by federal prosecutors."Nonetheless, Roth describes the "raging Beltway pity party" that followed as "to use a technical term--crap." Even though Stevens was wrongly convicted, and might have been acquitted in a fair trial, it was still "conclusively established that Stevens acted unethically by using his position for major personal gain," Roth argues:No one wants to speak ill of the dead, and there's nothing whatsoever wrong with news outlets treating Stevens respectfully. But that's different from aiding in the willful distortion of a major coda to the late senator's career in public life. And yet, when lawmakers on both sides of the aisle line up to beatify their old friend in the coming days, here's betting that much of the press will play along.Then again, as we noted in the preceding item, Ted Kennedy, who died a year ago this month, was widely lionized despite his foul behavior. An example is this story from TalkingPointsMemo.com, published the day after his death:Ted Kennedy's greatest legacy was as a legislator in the U.S. Senate. Over 300 bills bearing his name became law, most dealing with the day-to-day social and economic needs of children, families, or the elderly. What made him such an effective legislator?The author, who does not even mention that Mary Jo Kopechne could not be reached for comment, is one Zachary Roth.
Last April, I explained to AT readers why Attorney General Holder dropped the case five months after the Stevens conviction. It was not a usual or a minor technical matter. It was not because the judge, a Clinton appointee, wanted to protect a political ally or because Holder wanted to pay off Stevens for some favor.
It was because the prosecution had so overstepped the bounds of propriety that the case against Stevens was a travesty from beginning to end.
The decision by Holder was preceded by a remarkable opinion by Judge Emmet Sullivan.
Here is what I said then:
Stevens had an A- Frame house in Alaska for which he'd engaged a contractor (Veco) to do some renovation work. He asked for and received bills for this work for which he paid Veco in full in the sum of $150,000. The government claimed that the job was really worth $250,000 and that Stevens violated the law when he failed to disclose as a gift the additional $100,000 on his Senate ethics reporting form. The government never charged that VECO had sought any favors for this "gift" or that Stevens had done any for VECO. The crux of the case was only about whether or not he had paid fair value for the work.The foreman on the job was a Mr. Allen. On April 15, 2008, before Stevens was indicted, the government interviewed Allen and he provided a great deal of evidence that established that Stevens' defense was credible. For example, he valued the work done for Stevens at $80,000, about ½ of what Stevens had paid for it and about 1/3 of what the government said it was worth. The government had an obligation to turn this over to Stevens and never did. Had they done so, much of Allen's testimony for the prosecution on the stand would surely have been discredited on cross examination. But there is more.On Oct. 6, 2002, Stevens sent a handwritten note to Allen asking that it be "done right" making clear he wanted to pay in full for Veco's services, adding"You owe me a bill." "Remember Torricelli, my friend. Friendship is one thing, compliance with the ethics rules entirely different."Confronted with this note, Allen said he'd met with a Mr.Persons, who told him the note from Stevens shouldn't be taken seriously. As reported by Erika Bolstad and Richard Mauer of the Anchorage Daily News:"Don't worry about getting a bill -- Ted's just covering his ass," Allen quoted Persons as saying.The Allen statement came at the close of testimony for the day.With the jury out of the courtroom, defense attorney Sullivan cried foul. In all the material turned over to the defense by the government under fair-trial rules, there was nothing from Allen quoting Persons like that, he argued, and then accused the government and Allen of conspiring to make up the testimony.Even worse, Sullivan said, was that Allen's testimony came at the end of the day, leaving the jury to ponder it, unchallenged, overnight.The newly discovered April 15 interview [ed: Not disclosed to the defense until after the trial and conviction] wasn't transcribed the way interviews with Allen and other witnesses had been, on FBI form 302s or memorandums of interviews, the Justice Department said this morning. Rather, it was discovered in the notes of attorneys who questioned Allen that day, five and half months before his testimony."The notes of the April 15 interview indicate that Bill Allen said, among other things, in substance and in part, that he (Bill Allen) did not recall talking to Bob Persons regarding giving a bill to the defendant," the Justice Department said in its motion to dismiss the case. "This statement by Allen during the April 15 interview was inconsistent with Allen's recollection at trial where he described a conversation with Persons about the Torricelli note."[snip]"Defendant Stevens was not informed prior to or during trial of the statements by Bill Allen on April 15, 2008," the department's motion for dismissal said. "This information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury."But there is more.Here is what Judge Sullivan noted when he empowered his own special counsel to look into further proceedings against the prosecutors:Returning a witness to Alaska who had been under defense subpoena, Sullivan said the prosecutors at trial called it, "not material."Blacking out exculpatory information from an FBI report, the prosecutors called this, "a mistake."Not providing a key grand jury transcript, "Inadvertent."Submitting false business records into evidence a "mistake."Saying key witness Bill Allen was not reinterview[ed] by prosecutors close to indictment, "mistaken understanding."Prosecutors work hard and must have some zeal to do their job well, but as they alone have access to so much of the relevant evidence and are bound to review it to comply with legal disclosure requirements, they should be subject to some reasonable scrutiny. That there was none here is evident from the fact that no one apparently reported to the Attorney General that over five months before indicting Stevens, the government had strong, credible exculpatory information which would clear him of any suspicion of wrongdoing.
In addition to this scathing critique of the Department's counsel, the judge took the unusual step of appointing as a special prosecutor for the court Henry F. Schuelke III, private attorney, to investigate the career prosecutors, including the chief and deputy chief of the Public Integrity Section, which deals with official corruption matters in order to determine whether the prosecutors themselves should face criminal charges.
The conviction did not completely dim the respect his colleagues held for him, the longest-serving Republican Senator in U.S. history, nor was he discredited in the eyes of many Alaskan voters, who nearly returned him to office on his 85th birthday, one month after the misbegotten conviction.
Still, we await the special prosecutor's report, which I am certain Ted Stevens waited for, too, in the belief that it would be useful to persuade those who had not yet been convinced of his innocence.
On December 3 of last year, Main Justice reported that the Schuelke investigation of the Stevens prosecution team was expected to wrap up in January.
The interviews are expected to wrap up in January. Scheulke has already reviewed thousands of documents related to the case, which Attorney General Eric Holder moved to dismiss after learning of prosecutors' lapses in sharing information and witness statements with the defense.Earlier this week, Inspector General Glenn Fine said restoring confidence in the department in the wake of the Stevens case was among the department's highest priorities. The Stevens debacle has prompted a series of reforms, including additional training for prosecutors.
In April, Main Justice reported that the probe was nearing its conclusion:
Schuelke's investigation has been complex, reaching back years before Stevens was indicted and drawing from thousands of documents. The people, who spoke on the condition of anonymity because the investigations are ongoing, said Schuelke is now evaluating the evidence he's collected in the past year. It's unclear when he will make his determination.Schuelke and investigators in the department's Office of Professional Responsibility conducted separate interviews with the lawyers, with some sessions lasting 16 hours, but they are sharing information because of the overlap in their investigations, the people said.Five of the lawyers involved in the Stevens prosecution, including two former supervisors in the department's prestigious Public Integrity Section, have shifted jobs since the case was thrown out. William Welch II, who was the section chief, is now based in the Springfield branch of the U.S. Attorney's Office in Massachusetts. Brenda Morris, who was the section's principal deputy chief, moved to the U.S. Attorney's Office in Atlanta for personal reasons.Both Welch and Morris are employees of the Criminal Division -- they are not Assistant U.S. Attorneys -- though it's unclear whether they continue to handle public corruption work. Justice Department spokeswoman Laura Sweeney declined to comment on personnel matters.Two other members of the trial team, Nicholas Marsh and Edward Sullivan, were reassigned from the public integrity unit to the Office of International Affairs. James Goeke, an Assistant U.S. Attorney, transferred from the U.S. Attorney's Office for the District of Alaska to the Yakima branch of the U.S. Attorney's Office for the Eastern District of Washington. Alaska-based Assistant U.S. attorney Joseph Bottini has continued in his position.The Stevens case prompted a series of reforms at the department, including a new training regime for prosecutors and the creation of a new position with oversight of department discovery practices.
Welch now seems to be working on national security matters.
Morris is still doing public corruption work in Alabama. Brenda Morris, who led the case against Stevens, recently resurfaced in a corruption case in the Middle District of Alabama. Main Justice again:
The letter is the first sign that Morris has continued investigating corruption since April 2009, when a federal judge appointed a special prosecutor to investigate whether she and five other Justice Department lawyers violated criminal contempt statutes in their handling of evidence in the Stevens case. (That probe, as well as a separate investigation by OPR, has nearly run its course, as Main Justice reported here Friday.)Morris was principal deputy chief of the Public Integrity Section until September, when she moved to Atlanta for personal reasons. She remains an employee of the Criminal Division - her title is senior litigation counsel - but is based in the U.S. Attorney's Office for the Northern District of Georgia.
Former Senator Stevens died without having been able to find out the results of the court-ordered investigation into his railroading.
But charges of congressional corruption never cease, whether or not the Department of Justice is involved. This week, Maxine Waters and Charles Rangel, both prominent members of the Congressional Black Caucus, were named by the Congressional Ethics Committee as having violated the House's ethics rules. In both cases, the charges seem to involve more than those in the Stevens criminal case, and the facts seem less subject to subjective fiddling by investigators and prosecutors.
PBS' designated race-baiter, Tavis Smiley, on CNN's Larry King, performed his usual race card trick. As usual, baiting was based on the soundest of evidence: "Facts are facts. The names that keep coming out happen to be members of the Congressional Black Caucus."
Both seemed determined to fight the charges, which will make it a bit harder for their party to move on to other messages if they ever find some that might work.
Rangel in particular provided considerable amusement to those who watched him make his self-defense on the floor in an unscheduled speech to the members.
Dana Milbank covered it, and his report includes the video of Rangel's-eye opening performance. It's good that it was videotaped because it appears a number of his fellow party members missed it:
Midway through the diatribe, House Speaker Nancy Pelosi left her seat and walked to the back of the chamber. When Rangel finally finished, a few dozen Democrats -- mostly members of the black caucus, New Yorkers and liberals -- stood to applaud. Most Democrats -- including Rep. David Obey (Minn.), the man who was leading the teachers-and-cops bill on the floor -- sat in silence. Democratic members, approached by reporters for comment as they left the chamber, looked stricken."Not now," said Rep. Louise Slaughter."I didn't really hear it," pleaded Rep. Howard Berman."What speech?" asked Rep. Steve Cohen.Rep. Debbie Wasserman Schultz merely rolled her eyes and shook her head.
Since the topic of the day is congressional corruption -- imaginary and real -- former Congressman Dan Rostenkowski of Illinois, once head of the House Ways and Means Committee before serving time in prison for fraud, also died this week. I can't tell you what party he belonged to because I got the news of his passing from ABC and NBC, and they never mentioned that.