The Justice Department's internal watchdog office has concluded that two federal prosecutors acted with reckless misconduct in the botched case against then-Alaska Sen. Ted Stevens and should be suspended without pay but not fired.
A Justice Department official chosen to decide the punishment said Assistant U.S. Attorney Joe Bottini should be suspended for 40 days. Bottini still works in the Anchorage office and has been part of the high-profile federal case against Fairbanks militia leader Schaeffer Cox.
Associate Deputy Attorney General Scott Schools decided on a 15-day suspension for James Goeke, who worked in Anchorage during the Stevens case but now prosecutes federal crimes in Yakima, Wash.
Bottini and Goeke can appeal to the independent merit systems protection board.
The 600-page report by the Justice Department's Office of Professional Responsibility, made public Thursday, said the two prosecutors "engaged in professional misconduct by acting in reckless disregard," by not disclosing evidence that would have helped Stevens' defense. But the report concluded that the misconduct was not intentional.
That contradicts an earlier finding by special prosecutor Henry Schuelke, who was appointed by the judge at Stevens' trial. Schuelke said the prosecutors deliberately withheld evidence from the defense.
Alaska Republican Sen. Lisa Murkowski has called for Bottini and Goeke to be fired. She said Thursday, "I find it difficult to reconcile the conflict" between Schuelke and the Office of Professional Responsibility on the question of whether the withholding of evidence was intentional.
"What this report does not address (are) the concerns of many Alaskans and Americans deeply troubled that all this misconduct took place in one of the highest-profile cases in the 200-year history of the Department of Justice," she said. "Rather than speak to the possibility of a larger, more systemic problem inside the Justice Department, the Office of Professional Responsibility wants us to believe that (these were) the inadvertent errors of two lone actors."
Texas Republican Sen. Kay Bailey Hutchinson said it is deplorable that only two prosecutors were mildly disciplined over what happened.
The Washington, D.C., law firm that represented Stevens, Williams & Connolly, put out a statement describing the punishment as "laughable."
"No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report," the law firm said.
Stevens, the longest-serving Republican in the history of the U.S. Senate, was found guilty in 2008 by a Washington, D.C., jury of accepting excessive gifts and failing to report them on his disclosure forms. Stevens lost his re-election bid for a seventh term in the Senate shortly afterward.
The Obama administration came into office in the same election and the new attorney general, Eric Holder, determined that important evidence had been withheld by prosecutors from the Bush Justice Department. Holder moved in 2009 to dismiss the charges. Stevens died in a plane crash a year later.
Vermont Democrat Patrick Leahy, chair of the Senate Judiciary Committee, said he plans to hold a hearing June 6 on what the Justice Department is doing to make sure the problems in the Stevens case never happen again.
Prosecutors Bottini and Goeke did not return messages seeking comment Thursday. They've maintained through their attorneys that they have been unfairly singled out, and that they advocated for the disclosure of more evidence to the defense.
Bottini's attorney, Ken Wainstein, said in an interview Thursday that Bottini would appeal the 40-day suspension.
Wainstein said Bottini made mistakes in the "hopelessly chaotic situation" of the Stevens trial but didn't commit reckless misconduct. Special prosecutor Schuelke's report had described a rudderless and unsupervised six-member prosecution team under pressure from the speedy trial demanded by Stevens in an attempt to have the case over before the election, which he ended up losing to Mark Begich.
Wainstein said the most important thing is that the Office of Professional Responsibility disputed Schuelke's finding that Bottini withheld evidence on purpose. "The worst thing you can say about a federal prosecutor is that he intentionally tried to violate the rules," Wainstein said.
The Office of Professional Responsibility found that Bottini failed to share pre-trial statements made by the government's star witness, Bill Allen, then owner and chief executive of Veco, an oil field services company. The statements would have helped Stevens' contention that he intended to pay for renovations being done on his home.
The report also said Bottini and Goeke didn't disclose statements made by Rocky Williams, the foreman of the renovation, that Williams thought Stevens was paying for the work on his house.