Stevens trial judge demands answers from Mukasey

McClatchy NewspapersJanuary 16, 2009 

WASHINGTON -- Seemingly stunned by the conduct of the Justice Department in the weeks following former Sen. Ted Stevens' trial, the judge in the case has ordered U.S. Attorney General Michael Mukasey to provide an accounting for how his prosecutors handled a whistle-blower complaint last month.

By 5 p.m. Saturday, Mukasey or a high-level designate must turn in a so-called "declaration" about who knew what and when about the whistle-blower status of an FBI agent who criticized the government's handling of the case, U.S. District Judge Emmet Sullivan ordered on Friday.

"This Court is very sensitive to the extremely important, numerous, and competing demands made on high-level government officials such as the Attorney General, and therefore the Court does not ordinarily burden officials at that level with matters that can be addressed by others," Sullivan wrote.

"However, based on the record in this case and the appearance that several attorneys in this matter -- in multiple departments within the Department of Justice -- may have intentionally withheld important information from the Court, it is the Court's view that a declaration from an official at the highest levels of the Department of Justice is appropriate and warranted in this instance."

In the complaint, Special Agent Chad Joy of the FBI accused the lead agent in the corruption investigation, Mary Beth Kepner, of becoming too close to witnesses, accepting "things of value" including a painting and help with house-hunting, and compromising the investigation by revealing too much information to outsiders, including her husband.

Joy also accused Nicholas Marsh, another attorney with the Public Integrity Section, of seeking to keep critical evidence and witnesses from Stevens' lawyers. For example, Joy wrote that Marsh developed a scheme to send a witness who was ailing and in Washington, D.C., for the trial back to Alaska without telling the defense or the judge, even though the defense had subpoenaed the same witness.

Stevens, who was convicted in October on seven counts of lying on financial disclosure forms, has seized on the revelations in Joy's complaint to bolster his efforts to overturn his conviction or win a new trial. Stevens' trial was marred by questions of misconduct by the prosecutors, beginning with the witness who was sent home early and then an accusation that the government failed to turn over evidence favorable to the senator.

The whistle-blower complaint from the FBI agent came to light in early December when prosecutors alerted Sullivan to Joy's recently filed complaint. But at the time, they asked that it be withheld from Stevens and his lawyers, as well as the public. After a secret hearing on Dec. 19, Sullivan ordered that it be provided to Stevens' legal team in its entirety, but blacked out most names and identifying details from the copy made public. Joy's name also was blacked out.

Wednesday, prosecutors asked for a hearing to release an un-redacted version of the document, saying it would be easier to file a response to Stevens' motions to win a new trial or dismiss the case if they were able to avoid using pseudonyms.

In the hearing, prosecutors said that they had contacted all of the Justice Department employees in the case, and except for one, they did not object to being named. Both the head prosecutor in the case, Brenda Morris, and her boss in the Public Integrity Section at the Justice Department, William Welch, also told Sullivan that Joy had no whistle-blower status.

That information angered Sullivan, who told prosecutors he would have handled the request to redact the complaint differently in December had he known Joy wasn't considered a whistle-blower. The judge this week ordered a new version of the complaint released, with most of the deleted information restored.

He also asked for an explanation from the attorney general by noon on Friday.

But then just one day later, prosecutors filed a briefing with a shocking admission: they had erred in saying that Joy had no whistle-blower status.

Patty Merkamp Stemler, chief of the U.S. Justice Department's criminal appeals section, wrote that the department apologized for its error but that they had misconstrued a letter sent to Joy by the Justice Department's Office of Professional Responsibility. In a Dec. 4 letter to Joy, the office said it would investigate his complaint but also said it didn't have jurisdiction to investigate whether he was "entitled to relief as an aggrieved whistle-blower."

But Sullivan said he found the government explanation that they "misconstrued" the letter to be "wholly incredible."

"The government's effort to write this off as Ms. Morris's misstatements and misunderstandings fall short," he wrote in his order, giving the Justice Department until Saturday at 5 p.m. to file a declaration from a top-level Justice Department official.

Stevens' lawyer, Brendan Sullivan, ascribed a more sinister motive in a brief filed Friday.

"The government apparently wants to attack Agent Joy in public by name," his lawyers wrote. "In order to achieve that end, the government told the Court that Agent Joy 'does not qualify for whistle-blower status' after all and that he 'was denied whistle-blower protection.'"

"Clearly, when it suited its strategic goal to try to keep Agent Joy's complaint confidential and hidden from the public, the government relied on Agent Joy's whistleblower status. But when the government wanted to attack Agent Joy by name in public, the government claimed that Agent Joy was not a whistle-blower at all."

"The defense (and the Court) was forced to spend hundreds of hours dealing with these "mistakes" in the middle of the trial," Stevens' lawyers wrote. "It strains credulity to believe that these were all good faith mistakes."

Judge Sullivan agreed, writing:

"It is for these reasons, and because this incident is not the first one in this case where the government represents to the Court that it made a 'mistake' and that there was no 'bad faith' or intent to 'mislead' the Court or defense counsel in the face of serious allegation of government misconduct, that the Court has directed that a declaration be provided by the Attorney General."

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