[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
                     PROSECUTION OF FORMER SENATOR 
                              TED STEVENS 

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 19, 2012

                               __________

                           Serial No. 112-106

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                     JARED POLIS, Colorado

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel



                            C O N T E N T S

                              ----------                              

                             APRIL 19, 2012

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     3

                               WITNESSES

Henry F. Schuelke, III, Partner, Janis, Schuelke, and Wechsler
  Oral Testimony.................................................    36
Kenneth L. Wainstein, Partner, Cadwalader, Wickersham and Taft 
  LLP
  Oral Testimony.................................................    48
  Prepared Statement.............................................    51
Alan I. Baron, Senior Counsel, Seyfarth Shaw LLP
  Oral Testimony.................................................    57
  Prepared Statement.............................................    58

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     5
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     7

                                APPENDIX
               Material Submitted for the Hearing Record

Addendum to the Prepared Statement of Kenneth L. Wainstein, 
  Partner, Cadwalader, Wickersham and Taft LLP...................    74
Letter from Virginia E. Sloan, The Constitution Project, to the 
  Honorable F. James Sensenbrenner, Jr...........................   183
Letter from Virginia E. Sloan and Stephen F. Hanlon, The 
  Constitution Project, to the Honorable Eric H. Holder, Jr......   185
Letter from Robert Gay Guthrie, President, the National 
  Association of Assistant United States Attorneys...............   188
Prepared Statement of Sean Bennett, Kalamazoo, Michigan..........   191

                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to 
the Court's Order, dated April 7, 2009, Henry F. Schuelke III, Special 
Counsel, D.C. Bar no. 91579; and William Shields, D.C. Bar no. 451036, 
Janis Schuelke & Wechsler This report is available at the Subcommittee 
and can also be accessed at:

http://www.dcd.uscourts.gov/dcd/sites/www.dcd.uscourts.gov.dcd/files/
Misc09-198.pdf


                     PROSECUTION OF FORMER SENATOR 
                              TED STEVENS

                              ----------                              


                        THURSDAY, APRIL 19, 2012

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 9:34 a.m., in 
room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Subcommittee) 
presiding.
    Present: Representatives Sensenbrenner, Gohmert, Goodlatte, 
Poe, Gowdy, Adams, Scott, Conyers, Johnson, Pierluisi, and 
Jackson Lee.
    Staff Present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Harold Damlin, Counsel; Sheila Shreiber, 
Counsel; Samuel Ramer, Counsel, Lindsay Hamilton, Clerk; 
(Majority) Bobby Vassar, Subcommittee Chief Counsel; Aaron 
Hiller, Counsel; and Veronica Eligan, Professional Staff 
Member.
    Mr. Sensenbrenner. The Subcommittee will come to order.
    Today's hearing examines the troubled prosecution of former 
United States Senator Ted Stevens of Alaska, which resulted in 
the Department of Justice requesting the judge to overturn the 
jury's guilty verdict and dismiss the charges against him. The 
Justice Department's Public Integrity Section, with the 
assistance of two assistant U.S. attorneys from Alaska, 
prosecuted Senator Stevens. The Public Integrity Section is 
supposed to be the Department's elite unit for handling 
political corruption cases. In light of what the prosecutors 
did in this case, I have to question the section's competency 
and ethics.
    In July 2008, a few months before he was to run for 
reelection, Senator Stevens was indicted for making false 
statements on his annual Senate disclosure form. The indictment 
charged that he had not paid for certain renovations made to a 
home he owned in Alaska and failed to disclose the value of the 
renovations as gifts. The renovations were made by VECO 
Corporation, an Alaska company owned by the Senator's longtime 
friend, Bill Allen.
    In order to allow Senator Stevens the chance to clear his 
name before the upcoming November election, his attorney 
requested an October trial date. The government not only agreed 
to a speedy trial, but suggested an even earlier date of 
September. The result was that there would be only 55 days 
between indictment and the start of the trial.
    Since this was a criminal prosecution, the government was 
required to produce all exculpatory and impeachment-type 
evidence known as the Brady and Giglio material. Pretrial, the 
government summarized what it represented to be all of the 
Brady and Giglio material in its possession in two letters sent 
to counsel for Senator Stevens. As would be discovered later, 
the prosecutors had made misstatements and omitted significant 
evidence in each letter.
    This trial started in late September 2008. Senator Stevens' 
counsel repeatedly asked the judge to dismiss the case because 
the prosecutors had failed to produce the evidence in violation 
of their Brady and Giglio obligations. Numerous times the judge 
found that the prosecutors had violated their discovery 
obligations. While the judge declined to dismiss the case, he 
repeatedly ordered the prosecutors to produce the various 
documents required by Brady and Giglio. He sanctioned the 
government by excluding certain evidence.
    In late October, the jury found Senator Stevens guilty on 
all seven counts of the indictment. As subsequent events would 
reveal, the jury reached its verdict based upon a distorted 
version of the facts. Soon after the trial ended, an FBI agent 
involved in the case took the unusual step of filing a 
whistleblower complaint with DOJ and the judge, alleging in 
specific detail that his co-FBI agent and at least one of the 
prosecutors engaged in serious misconduct and unethical 
behavior in the prosecution of Senator Stevens.
    Given these serious allegations, the judge ordered the 
government to produce materials relating to the agent's 
complaint. Consistent with its behavior during the trial, the 
government did not comply with the judge's order. The judge had 
finally had enough of the government's noncompliance, and held 
two of the Public Integrity Section's prosecutors in civil 
contempt.
    At this point, the DOJ assigned a new team of attorneys 
from outside the Public Integrity Section to handle the 
remainder of the Stevens post-trial litigation. They soon 
discovered that the prosecutors had failed to produce to 
Senator Stevens' counsel significant exculpatory and 
impeachment information in the form of interview notes relating 
to the key prosecution trial witness, Bill Allen.
    After producing the interview notes to the judge and to 
Senator Stevens' counsel, DOJ took the drastic step of asking 
the judge to set aside the guilty verdict and to dismiss the 
indictment of Senator Stevens based upon the prosecutor's prior 
failure to produce the interview notes. While the case was 
tossed out, it was too little, too late. Senator Stevens had 
lost his bid for reelection and the damage done by the 
prosecutors was irrevocable.
    The judge was so concerned about the government's admitted 
Brady violations, combined with what he described as 
``prosecutorial misconduct to a degree and extent that this 
court has not seen in 25 years on the bench,'' that he took the 
extraordinary step of appointing a special counsel, Henry 
Schuelke, to investigate and, if appropriate, prosecute 
criminal contempt proceedings against the Stevens prosecutors.
    In November of last year, Mr. Schuelke completed his 
investigation and submitted to the judge a 500-page report.* 
The judge released the report to the public on March 15, 2012, 
and the facts detailed in that report have generated today's 
hearing.
---------------------------------------------------------------------------
    *See http://www.dcd.uscourts.gov/dcd/sites/
www.dcd.uscourts.gov.dcd/files/Misc09-198.pdf.
---------------------------------------------------------------------------
    Mr. Schuelke did not recommend bringing criminal contempt 
charges against any of the prosecutors due to what he concluded 
was a deficiency in the judge's orders. One might say that the 
prosecutors got lucky. Significantly, Mr. Schuelke found that 
the investigation and prosecution of U.S. Senator Ted Stevens 
were permeated by the systematic concealment of exculpatory 
evidence which would have independently corroborated Senator 
Stevens' defense and his testimony, and seriously damaged the 
testimony and credibility of the government's key witness.
    Mr. Schuelke's report describes a series of improper 
actions taken by the prosecutors and the FBI agent that are 
sobering. His report takes us inside a major criminal 
prosecution where he found that the prosecutors won their case 
through willfully failing to disclose exculpatory and 
impeachment evidence, intentionally failing to correct false 
testimony, making misrepresentations to the judge, to defense 
counsel, and even to people within DOJ, shirking supervisory 
responsibility, grossly mismanaging the trial team, and acting 
on questionable ethical decisions.
    Further discrediting the prosecutors, he also found that 
they had a collective memory failure relating to certain key 
events. As would be expected regarding any report like this 
one, people have criticized Mr. Schuelke's conclusions, tactics 
and tones, but there can be no dispute about the hard facts 
which lead to only one conclusion: that Senator Stevens was 
denied a fair trial due to the collective misconduct of the 
prosecutors. If they had complied with their ethical and legal 
obligations, the jury might not have convicted Senator Stevens.
    I think it is important that we try to understand how and 
why the government botched this prosecution before considering 
whether we need legislative changes. I am also interested to 
know that what, if anything, DOJ has done in response to the 
problems that have been uncovered in the Stevens prosecution. 
DOJ undertook an internal review of the Stevens' prosecutors, 
the results of which were leaked to the press over a year ago.
    Despite the Attorney General's public pronouncements to 
Congress that he plans on sharing the DOJ report, he has not 
done so. We invited DOJ to send a representative to testify at 
this hearing, but the Department declined the invitation.
    I look forward to discussing this very troubling matter 
today with Mr. Schuelke and the other panel of witnesses which 
we have scheduled to testify.
    And I now yield to the gentleman from Virginia, Mr. Scott, 
for his opening statement.
    Mr. Scott. Thank you, Mr. Chairman. I am pleased to join 
you for this hearing regarding the prosecutorial misconduct in 
the case involving former Senator Ted Stevens of Alaska.
    I commend the Attorney General for taking decisive action 
after the findings that you have outlined, dismissing the 
prosecution of Senator Stevens with prejudice upon learning of 
the misconduct. I understand that his Department's decision not 
to comment on the matter during the Office of Professional 
Responsibility review, but it is clear from other cases that 
the problem is greater than just the Stevens case. And I am 
concerned about whether or not there are sufficient safeguards 
in place to prevent such disturbing cases from occurring in the 
future.
    The government is given enormous powers over individuals in 
the criminal justice system, including the power to jeopardize 
and take away their freedom, even their lives in some cases. In 
exercising such enormous power over individuals, it is 
incumbent upon the criminal justice system to ensure basic 
fairness to them. And when the government conceals information 
in a prosecution that could undermine its case against a 
defendant, such concealment is fundamentally and 
constitutionally unfair as well as unethical, and it is 
actually illegal under Brady v. Maryland and other cases.
    Generally a defendant will have no way to know of or learn 
of exculpatory evidence known to the government unless the 
government discloses it. Given the adversarial relationship 
between the government and the defendant in criminal cases and 
the natural desire of human beings, including prosecutors, to 
win a case, there are strong temptations not to reveal case 
weaknesses. Therefore, there must be strong disincentives, as 
well as obligations, for the government to overcome such 
temptations. I believe that the Attorney General and his staff 
have demonstrated and continue to demonstrate commendable 
responsibility in revealing the failures of the Department to 
meet its obligations in the Stevens case. However, I am not 
convinced that the dependence on after-the-fact actions by an 
individual Attorney General and disciplinary proceedings 
against individual attorneys for their failures to reveal 
exculpatory evidence, if discovered, is a strong enough 
standard to prevent such problems from occurring in the future.
    In other recent cases, including potential cases among 
those reported in recent newspaper articles, regarding 
unrevealed discredited scientific evidence relied upon for 
convictions of hundreds of defendants caused me to believe that 
stronger requirements than those currently in place need to be 
considered.
    Also, we have several letters that I will offer for the 
record, signed by dozens of criminal justice professionals and 
observers, including many former prosecutors calling for 
stronger measures as safeguards against concealment of 
exculpatory information by prosecutors.
    I look forward to any light the testimony of our witnesses 
may shed on these issues. I also look forward to working with 
you, Mr. Chairman, and the Department of Justice, to ensure 
that effective measures are in place to prevent such cases as 
Senator Stevens' case from occurring in the future. Thank you 
and I yield back.
    Mr. Sensenbrenner. Thank you.
    And without objection, the letters referred to by the 
gentleman from Virginia will be put into the record.
    The Ranking Member of the full Committee, the gentleman 
from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Sensenbrenner. I commend 
you and Ranking Member Scott for your statements, which I 
concur with, and will merely submit my opening for the record 
and observe that the Brady rule is being violated in other 
respects as well. In other words, there are people that don't 
have the rank of United States Senator who are no doubt being 
affected by violations of the Brady rule. So it is in that 
spirit that I commend both the Chairman and the Ranking Member 
for the work that they have done in this regard. And I will 
yield back the balance of the time, and I will yield briefly to 
Bobby Scott.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    In the landmark case Brady v. Maryland, the Supreme Court writes: 
``Society wins not only when the guilty are convicted but when criminal 
trials are fair; our system of the administration of justice suffers 
when any accused is treated unfairly.'' Looking to the constitutional 
guarantees of due process and effective assistance of counsel in the 
Fifth and Sixth Amendments, the Court stated that prosecutors have a 
duty to disclose evidence that is favorable to the defense. This rule, 
when honored, helps to ensure fair process in criminal trials.
    Over time, the Brady rule has become an integral part of our 
federal criminal system. As a direct consequence of Brady and its line, 
Rule 16 of the Federal Rules of Criminal Procedure requires prosecutors 
to disclose a wide array of evidence at the request of a defendant. The 
Jencks Act, 18 U.S.C. Sec. 3500, requires prosecutors to disclose 
certain information about government witnesses.
    And, of course, all prosecutors are governed by professional rules 
of ethics that require us to share information in our possession that 
may be favorable to the defense. Because the government controls so 
much of the information pertinent to a criminal trial, we require 
federal prosecutors to make favorable evidence readily available to the 
other side.
    Notably, however, Congress has never codified the Brady rule 
itself. No statute compels the disclosure of all exculpatory evidence. 
Instead, we have relied on Department of Justice policy, rules of 
procedure, and a sense of trust in our federal prosecutors to ensure 
that Brady is enforced.
    Today, we will address whether that trust has been misplaced. 
Specifically, we focus on the trial of the late Senator Ted Stevens, 
whose prosecution was as flawed as they come. At no point in Senator 
Stevens' trial did prosecutors conduct a full or effective review for 
Brady information. They knowingly withheld impeachment evidence, and 
knowingly failed to correct perjured testimony.
    We have come to these conclusions after a 2-year investigation by 
independent counsel Henry F. Schuelke. His analysis demontrates, beyond 
a reasonable doubt, that federal prosecutors intentionally withheld 
Brady information from Senator Stevens--and, in some instances, never 
bothered to learn the extent of the exculpatory evidence in their 
possession.
    It has become common to say that, if these offenses could happen to 
Senator Stevens, they could happen to anyone. Often overlooked is the 
fact that prosecutorial misconduct of this nature happens with alarming 
frequency, to the obvious harm of countless defendants--many of them 
far less prominent than a U.S. Senator.
    For example, the Lindsay Manufacturing Company was the first 
corporation to be convicted of charges under the Foreign Corrupt 
Practices Act. The conviction was reversed after the court found that 
prosecutors had inserted falsehoods in requests for search warrants, 
allowed an FBI agent to testify untruthfully before a grand jury, 
improperly reviewed Brady material, and withheld key Brady evidence 
from the defense.
    Consider the case of Edgar Rivas, a sailor on a Venezuelan 
freighter bound for New York who was charged with possession of more 
than five kilograms of cocaine. He was sentenced to ten years in 
prison. On appeal, the Second Circuit learned that prosecutors had 
obtained a confession from their main witness, Rivas's shipmate, and 
never disclosed that statement to the defense.
    Or consider the case of Anthony Washington, a drug dealer with 
multiple felony convictions. Washington might have been in prison for 
unlawful possession of a firearm had federal prosecutors not withheld 
the fact that their main witness had been previously convicted for 
making a false report.
    These cases, and others like them, are inexcusable. Still, the 
Department of Justice has been given time to bring its attorneys into 
line with Brady. In 2006, the Department revised the United States 
Attorney Manual to explicitly require Brady disclosure. In 2010, 
following the embarrassing reversal of Senator Stevens' conviction, 
Deputy Attorney General David Ogden issued a series of memoranda to 
provide further guidance for prosecutors.
    But neither of these policies are judicially enforceable. And given 
the continued run of Brady violations, it may be time for Congress to 
consider other options.
    During the trial of Senator Stevens, in deliberations about whether 
a court order would be necessary to compel the government to produce 
Brady material, Judge Emmet G. Sullivan stated: ``I'm not going to 
write an order that says `follow the law.' We all know what the law is. 
. . . I'm convinced that the government and its team of prosecutors . . 
. in good faith, know that they have an obligation on an ongoing basis 
to provide the relevant, appropriate information to defense counsel.'' 
Because the court accepted the prosecutors' repeated assertions that 
they were complying with Brady, it did not issue an order directing the 
attorneys to follow the law.
    But if federal prosecutors must be ordered to obey Brady, because 
it is too vague a rule or too difficult to follow, then it may fall to 
Congress to draw a brighter line. This is the conclusion drawn in this 
letter, ``A Call for Congress to Reform Federal Criminal Discovery,'' 
signed by 141 judges, prosecutors, law enforcement officers, defense 
lawyers, conservative leaders, and others. Few issues draw so much 
agreement from such a diverse and experienced group.
    I look forward to the testimony of the witnesses their insights 
into how we can prevent prosecutorial misconduct, restore a measure of 
faith in our federal criminal process, and protect the constitutional 
rights of all Americans.
                               __________

    Mr. Scott. Thank you. Mr. Chairman, I just want to mention 
for the record the statement from the Department of Justice, a 
letter from the National Association of Criminal Defense 
Lawyers, ACLU, and a letter from the Constitutional Project 
that has almost 150 signatories.
    Mr. Sensenbrenner. Without objection, the material will be 
included.
    [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

                               __________
    Mr. Sensenbrenner. Without objection, all Members' opening 
statements will be included at this time.
    I would now like to introduce today's witness on the first 
panel. Henry F. Schuelke, III, is a partner in the law firm 
Janis, Schuelke, and Wechsler. Mr. Schuelke was named by Judge 
Emmet Sullivan to serve as Special Counsel to investigate the 
prosecution of Senator Ted Stevens. Mr. Schuelke previously 
served twice as Special Counsel to the U.S. Senate. He served 
as an assistant United States attorney for the District of 
Columbia. And following his graduation from law school, he 
served for 4 years in the Judge Advocate General's Corps. He 
received his undergraduate degree from St. Peters college and 
his law degree from Villanova University.
    The Chair is going to swear witnesses at this hearing, so 
Mr. Schuelke would you please stand and raise your right hand.
    [Witness sworn.]
    Mr. Sensenbrenner. Thank you. I ask that you summarize your 
testimony in 5 minutes or less. We have the red, yellow, and 
green lights before you. And when the light turns red, it 
indicates that the 5 minutes have expired. Mr. Schuelke.

         TESTIMONY OF HENRY F. SCHUELKE, III, PARTNER, 
                 JANIS, SCHUELKE, AND WECHSLER

    Mr. Schuelke. Thank you. Mr. Chairman, Mr. Scott, Mr. 
Conyers, good morning. I appear this morning at the Committee's 
invitation to answer such questions as the Committee might have 
concerning the investigation that my colleague William B. 
Shields and I have performed, having been ordered to do so by 
the Honorable Emmet G. Sullivan of the United States District 
Court for the District of Columbia. I understand that the 
Committee has our report, and I am prepared to respond to the 
Committee's questions.
    I should like to observe that we had the complete 
cooperation of the Department of Justice as we undertook this 
investigation, as well as that of its Office of Professional 
Responsibility. And with that, Mr. Chairman, I am prepared to 
answer your questions.
    Mr. Sensenbrenner. Thank you very much, Mr. Schuelke.
    Mr. Schuelke. Mr. Chairman, I am not sure--is this 
microphone working?
    Mr. Sensenbrenner. It is working fine.
    First of all, can you describe the willful nondisclosures 
of Brady and Giglio material that you found during the course 
of your investigation?
    Mr. Schuelke. I can. I found that the prosecutors, Messrs. 
Bottini and Goeke in particular, failed to disclose exculpatory 
information provided to them by the then-anticipated government 
witness, Mr. Rocky Williams, concerning his understanding based 
on a conversation that he had with Senator Stevens and Bill 
Allen before the renovation project ever began, that whatever 
time and material that Allen's company, VECO, was to provide on 
the renovation would be included in the bills submitted to 
Senator and Mrs. Stevens by the general contractor who they had 
engaged, Christensen Builders, and consistent with that 
understanding, it was his practice on a monthly basis to 
retrieve the Christensen Builders invoices, check them for 
accuracy, take them to Allen's office, so that his time and 
other VECO employees' time could be added to the bills before 
they were sent to Senator and Mrs. Stevens.
    Mr. Sensenbrenner. Do you think that the failure to 
disclose this exculpatory information would have had an impact 
on the outcome of the trial?
    Mr. Schuelke. I do. It was altogether consistent with 
Senator Stevens' defense, which the government well anticipated 
and forecast. When Senator Stevens and Mrs. Stevens testified 
during the course of the trial that they understood and 
believed that they had paid all the bills--because they did, 
indeed, pay all the Christensen Builders bills to the tune of 
$160,000--that testimony was not only challenged in cross-
examination and in closing arguments by the government, it was 
ridiculed. Had the government's own witness, who was the 
foreman on the job, testified to the understanding which I just 
described, I believe it would have had a significant impact on 
the outcome.
    Secondly, the government, since 2004--that is 4 years 
before the Stevens trial commenced--was in possession of 
evidence that its principal witness, Mr. Allen, had suborned a 
false statement from a young teenage prostitute with whom it 
was alleged that he had had a sexual relationship. That 
information, which clearly would have been admissible to 
impeach Mr. Allen's credibility--namely, that he had suborned a 
false statement--was not disclosed to the defense. It was not 
disclosed to the Stevens defense in 2008, nor was it disclosed 
in the course of two trials conducted in the District of Alaska 
1 year before the Stevens trial.
    Peter Kott and Victor Kohring were two Alaska State 
legislators who were indicted, tried, and convicted for bribery 
offenses. The principal government witness in both of those 
cases was Mr. Allen who had, according to the government--and 
ultimately according to Mr. Allen's guilty plea--paid the 
bribes to those two State legislators. The evidence of Mr. 
Allen's subornation of a false statement was not provided to 
either of them either. This was a pattern that prevailed over 
the space of three trials conducted over 1 year.
    Mr. Sensenbrenner. What do you think motivated the 
prosecutors to do this?
    Mr. Schuelke. As I testified when I was asked that question 
by the Senate Judiciary Committee a couple of weeks ago, I said 
that I believed that it was the adversary's desire to win, and 
not to disclose to the defense information which would have 
hurt the government's case. That is my view today.
    Mr. Sensenbrenner. So it was win at all costs and not to 
have justice served?
    Mr. Schuelke. I think that is a fair characterization, yes.
    Mr. Sensenbrenner. Okay. Thank you. My time has expired. 
The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you. Mr. Schuelke, when Attorney General 
Holder came in, what was the status of the Stevens case? I 
understand that he had been found guilty by the jury, but the 
judge had not entered the guilty verdict; is that where we 
were?
    Mr. Schuelke. When Attorney General Holder took office, the 
trial had been concluded, you are correct, and the jury had 
returned a guilty verdict. And post-trial proceedings were 
underway; that is, motions for a new trial.
    Mr. Scott. Had the judge entered the guilty verdict?
    Mr. Schuelke. Well, if you mean, Mr. Scott, was there a 
conviction entered, the answer is no because a conviction 
occurs as a matter of law only when the sentence is imposed, 
and of course the case never got to that point.
    Mr. Scott. You hadn't gotten to the sentencing phase? What 
did the Attorney General find out that provoked his 
investigation? The defense counsel got some tips as to what 
might have happened?
    Mr. Schuelke. A couple of things, Mr. Scott. As Chairman 
Sensenbrenner observed, there was an FBI agent whose name was 
Chad Joy, who filed essentially a whistleblower complaint, 
making a number of allegations about the conduct of the lead 
FBI agent on the case, as well as the prosecutors, that 
prompted ost-trial motions brought by Senator Stevens' counsel.
    In the process of responding to those motions, as Chairman 
Sensenbrenner also observed, Judge Sullivan found two of the 
government prosecutors to have been in civil contempt for 
failure to have produced certain records which he had ordered 
in connection with those proceedings. At that point, the 
Department of Justice appointed a new team of prosecutors to 
represent the United States in the course of these post-trial 
proceedings.
    Those three prosecutors commenced an investigation. And 
they focused initially on the most dramatic testimony delivered 
by Mr. Allen in the trial; namely, that a letter that he had 
received from Senator Stevens, asking him to make sure and send 
him the bill was just Senator Stevens covering his ass, based 
upon a conversation Mr. Allen claimed to recall with a mutual 
friend of his and Senator Stevens in Alaska. That testimony 
was, as one might imagine, dramatic and damning to Senator 
Stevens' defense that he acted at all times with pure intent.
    As these new prosecutors focused on this, they began to 
review some internal emails by, between, and among the 
prosecution team and found a series of emails that were 
obviously contemporaneous to an interview of Mr. Allen 5 months 
before the trial. I say contemporaneous, meaning it was obvious 
that they were emailing back and forth while the interview was 
in progress. They were curious about this exchange and, in 
short, ultimately found the handwritten notes of that 
interview, which had been recorded by two of the prosecutors. 
Ultimately, the handwritten notes of two more prosecutors and 
the lead FBI agent were also discovered. All of those notes 
reflected that Mr. Allen was asked during that interview 
whether he remembered the note he got from Ted Stevens and 
whether he remembered speaking to Mr. Persons, the one to whom 
he at trial attributed the cover-your-ass comment. And all of 
those notes reflected that he either said no, he did not speak 
to Persons, or he did not recall speaking to Persons.
    Mr. Scott. And my time is almost up. But as a result of 
those findings, the new team of lawyers made a motion to 
dismiss the case with prejudice?
    Mr. Schuelke. That is correct. The new team of lawyers, as 
I understand it, recommended that that be the course taken by 
the Department. And the Attorney General authorized the motion 
to dismiss with prejudice, which of course Judge Sullivan 
granted.
    Mr. Sensenbrenner. Thank you. The gentleman from South 
Carolina, Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman. Mr. Schuelke, if I 
heard you correctly, Senator Stevens paid $160,000 for the 
improvements made, the addition? Did I hear you correctly?
    Mr. Schuelke. Yes, sir, you did.
    Mr. Gowdy. What was the fair market value of the additions 
or changes made to the lodge?
    Mr. Schuelke. The fair market value of the house after the 
renovations was $152,000.
    Mr. Gowdy. Were the bills paid contemporaneous with their 
being submitted? In other words, was he paying the bills in a 
timely fashion? Or was it a circumstance where he got a lot of 
bills toward the end?
    Mr. Schuelke. No. The Christensen Builders bills were paid 
in the regular course by Mrs. Catherine Stevens upon receipt. 
The Stevenses, in order to finance this project, had taken a 
second mortgage, liquidating $100,000 in cash for the project, 
had liquidated a $10,000 trust and spent from their savings as 
well. And that is how they timely paid the $160,000 worth of 
Christensen invoices.
    Mr. Gowdy. Well, here is what I am struggling with: I 
actually like prosecutors. I actually like Federal prosecutors.
    Mr. Schuelke. I do, too. I used to be one.
    Mr. Gowdy. So when I say what I am getting ready to say it 
is not by virtue of a criticism toward them. But they are not 
known for taking really close cases that could go either way, 
unless they have to, particularly against a high-profile 
defendant. State prosecutors have to roll the dice more than 
Federal prosecutors do. So if you have a high-profile defendant 
with a really good defense team and your allegation is that he 
unjustly enriched himself via gifts, and the evidence is he 
actually paid more than the value of the home, what am I 
missing? Why was the case ever brought in the first place? It 
doesn't seem to be a very good case from a factual standpoint.
    Mr. Schuelke. Well, the government had evidence that Bill 
Allen's company, VECO, had provided labor and materials for the 
project, and it was the government's theory of the case that 
Senator Stevens well knew that that had occurred, acknowledged, 
at least late in the process, that he knew that, which is why 
he sent the note to Mr. Allen asking him, please send me a bill 
for whatever work you did. And the government contended that 
VECO's contribution to this project, as was alleged in the 
indictment, was $250,000.
    Now, at trial, when the government introduced the records 
of the VECO Corporation which purported to establish this 
$250,000 figure, it was demonstrated that the records were 
simply inaccurate. They, for example, logged 8 hours a day, 5 
or 6 days a week, for Rocky Williams. He didn't work 8 hours a 
day, 5 or 6 days a week on the project. They logged 8 hours a 
day, 5 days a week, for another VECO employee, Dave Anderson, 
who wasn't even in Alaska for several months during that period 
of time. And Judge Sullivan, upon the motion of Senator 
Stevens' defense counsel, concluded that those records were 
false and excluded the majority of those records.
    Mr. Gowdy. All right, my light is on. So let me ask you 
this, which is kind of related, I guess somewhat. Before I ask 
you that, the Federal prosecutors weren't interviewing these 
witnesses without the Bureau being present, were they? I mean 
they are not crazy enough to do witness prep without a law 
enforcement agent present, were they?
    Mr. Schuelke. As a general practice, they did have FBI 
agents, and, on occasion, agents of the Internal Revenue 
Service, accompany them for purposes of interviews.
    Mr. Gowdy. This may or may not be true because it has been 
reported, which carries no presumption of credibility, that 
there is this movement to change Brady/Giglio, the discovery 
rules, because of this case. There is a Senator from Alaska 
that has introduced legislation. It strikes me that if the 
rules as they existed had been followed, you and I wouldn't be 
having this conversation.
    Mr. Schuelke. Well, I think that is quite right, Mr. Gowdy. 
It has been the law, since the Supreme Court decided the Brady 
case and the Giglio case, that the government is obligated to 
disclose material exculpatory information. I don't believe that 
this materiality issue, which I personally think is a problem 
that needs to be addressed, was a determining factor in the 
problems that occurred in the Stevens case. But I do think it 
is a problem that needs to be addressed.
    I have seen Senator Murkowski's proposed bill. I don't know 
that I am in a position to subscribe to it in its entirety. But 
to the extent that it would eliminate the materiality 
requirement with respect to the disclosure of exculpatory 
material, I think it is welcome and necessary.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I first want to thank 
you for coming before us today. And I just want to take a 
moment to look at the larger question of Brady rule violations 
and how we ought to look at them. I understand the Subcommittee 
may be considering looking at other kinds of cases like this, 
and it might add some dimension to the problem. So I would just 
like you to tell us about your impressions of whether the Brady 
rule needs strengthening or whether we need to get a way for 
the prosecutors to actually look at it more and use it more 
appropriately.
    Mr. Schuelke. Yes, sir. I shall try, Mr. Conyers.
    First of all, we should all understand that the Supreme 
Court has for years announced the rule that in order for a 
conviction to be reversed for the government's failure to 
provide exculpatory information, that failure must have had an 
outcome determinative effect. That is to say, are we left with 
a situation where we can have no confidence in the verdict 
because of the failure to disclose Brady information? That is 
the materiality concept which, in my judgment, is perfectly 
sensible and appropriate from that post hoc appellate 
perspective.
    Now we are in the pretrial situation. The prosecutor has an 
obligation to disclose Brady material. The prosecutor says--and 
they have argued in court repeatedly, they did in the Stevens 
case--well, we were only obligated to disclose material 
exculpatory information. Now mind you, the prosecutor is one of 
the adversaries in this process. In my judgment, it is not 
appropriate for one of the adversaries to be the self-appointed 
gatekeeper for what may be exculpatory information that the 
defense, consistent with its strategy, may be in a position to 
pursue and to use in the course of the trial.
    And this adversarial process, which is a general 
proposition I applaud, leaves one in a situation where there is 
a considerable risk for mischief. If I am the prosecutor and I 
say, here is this little tidbit which is in my files which 
reflects adversely on the credibility of my star witness, it is 
really not material. I don't think I have to turn that over. 
Human nature is such that good people motivated by this 
adversarial desire to prevail make those kinds of judgments. 
They should not. And it is for that reason that I believe, as I 
have testified, that the materiality requirement with respect 
to pretrial disclosure of the Brady material should be 
eliminated.
    Mr. Conyers. Is it fair, in closing, to ask you whether 
this kind of problem occurs perhaps more than we on the 
Judiciary Committee could be aware of?
    Mr. Schuelke. Well, that is a very good question, Mr. 
Conyers. One never knows what one doesn't know.
    Based on my experience both as a prosecutor and a defense 
attorney for now over 40 years, I do not personally believe 
that there is a pervasive nondisclosure problem in the 
thousands and thousands of cases that are brought by the 
Department of Justice. There have been a number of celebrated 
ones. There have been a half a dozen or so that have attracted 
considerable attention in the last 2 years. So it happens. And 
of course, one never knows if the case goes to trial and there 
had been no disclosure of Brady material, and the defendant, 
for whatever reason, was not equipped to ferret it out, if 
there was not a Judge Sullivan presiding over the matter, one 
never knows. But it is my personal view, based on my 
experience, that it is not a widespread pervasive problem in 
the Department of Justice. And I know that the Department, 
since the Stevens case, has taken significant steps both in 
terms of policy, proscription and training to address this 
problem.
    Mr. Conyers. Thank you for your views.
    Mr. Sensenbrenner. The gentleman's time has expired. We are 
expecting about 25 minutes of votes pretty soon, and then there 
will be a second series of votes later on. I would kind of like 
to do, to speed this hearing up and not to impose undue time 
delays upon our witnesses, to do what we can in shuttling us in 
and out. So the Chair recognizes the gentleman from Texas, Mr. 
Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. We know that we had 
an FBI Agent Joy that filed a whistleblower complaint against 
the DOJ. As of November 2008, how long had FBI Agent Joy been 
working for the FBI?
    Mr. Schuelke. Mr. Gohmert, I don't remember precisely how 
long. He was quite young and inexperienced.
    Mr. Gohmert. And still had the courage to come forward with 
the information. That is very impressive.
    One of my concerns over the FBI 5-year ``up or out'' policy 
that this Director implemented, it drove thousands of years of 
FBI experience out of the FBI and left people with much less 
experience in charge. And my experience, from having been a 
prosecutor in my early days out of law school was, you know, 
you are hard-charging and you need somebody, maybe not as smart 
as you, but somebody with experience to say, ``This is not a 
good idea. You should not put a case in jeopardy. We are about 
justice, and that means your title forces you to disclose Brady 
material, whether there is a Brady case or not. You are about 
justice. You are not about winning at all cost.'' And some 
people have a hard time understanding that and understanding 
their role.
    I have got to tell you, just my perceptions. I was not a 
big fan of Ted Stevens. When I heard and saw and read the 
information coming from the Justice Department, it sounded 
like, gee, this guy really had, you know, over $100,000, 
$200,000 of benefits come his way, and that really is abusive. 
This is a bad situation. And then when you find out the real 
facts, he paid more than the value of the structure. And then 
you find out that, gee, they knew--not only his theory, they 
had his notes where he was saying, ``Give me the bill. Let me 
pay the bill.'' And as you said, his wife was paying them as 
they came in and they end up paying more than the value of the 
structure itself.
    It is just hard to imagine prosecutors, Justice officials, 
FBI officials--I have got a lot of friends in the FBI, a lot of 
people I have so much respect for. And I do disagree with you 
that an adversary should not be a gatekeeper. If they 
understand their goal, their end is justice, not to win at all 
costs. As you have said, I don't think this is a widespread 
problem. But I am wondering--and having been a judge and a 
chief justice, I have sat on disbarment cases back in Texas in 
State court. I don't know why anybody that literally took the 
life that Ted Stevens built and destroyed it, took his life, 
why they should ever be allowed to practice law again if they 
do not understand the trust and betrayed it as they did here.
    And I understand your recommendations with regard to 
contempt of court. You looked at the burden of proof. Had there 
been any actions taken to pull the ticket to disbar these 
people that would ruin a man's life, at the end of his life, in 
such a way by withholding evidence, it sure seems it would have 
made a heck of a difference.
    If I am a judge hearing a case without a jury, and I find 
out the structure is worth less than he paid, that he has notes 
out there that he gave timely manner and said, Give me the 
bills, and the evidence was his wife paid the bills as they 
came in, and then it turns out there is evidence of the key 
witness involved with a prostitute--can we say ``prostitute,'' 
involved with a prostitute--I cannot imagine why they should 
not be allowed to practice law again after ruining this man's 
life. Have you looked at possible disbarment?
    Mr. Sensenbrenner. If the gentleman will yield, you can use 
that word because The Washington Post has used it quite a bit 
in the last week.
    Mr. Gohmert. Okay. Well, have you looked at disbarment 
recommendations?
    Mr. Schuelke. I have not, Mr. Gohmert. It is beyond my 
charter, and I don't have a view on that subject.
    Mr. Gohmert. You don't have a view at all? Not even 
personally?
    Mr. Schuelke. I don't care to take a view on it.
    Mr. Gohmert. Okay. You could have one but you don't care to 
take a view.
    Mr. Sensenbrenner. The gentleman's time has expired. I am 
going to recess the Committee. And I will admonish both Mr. 
Johnson and Mr. Pierluisi to be back after the last vote of 
this series. Otherwise, we will move on.
    Without objection, the Committee is recessed until after 
the last vote of the series.
    [Recess.]
    Mr. Sensenbrenner. The Subcommittee will be in order. The 
Chair recognizes the gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman, for holding this very 
important Committee meeting on this issue.
    Ted Stevens was a gentleman who I met for the first time 
Christmas of 2007, and we were both standing in line together 
at the White House Christmas celebration, waiting to shake 
hands with the President. And while he was there, I think it 
was his wife and a couple of his daughters were with him, and 
they were very jovial and, you know, just regular, normal 
people. I know they have hearts and feelings and that kind of 
thing, and they were happy.
    Senator Stevens was spry, kind of cantankerous, and he was 
irascible, but I liked him. He seemed to be a good proud man, 
used to being in authority and in control. I can only imagine 
how he must have felt when the jury announced the verdict of 
guilty in this case. And in this case, it was in 2004 that the 
government knew that the principal witness, Bill Allen, had 
suborn perjury by getting a prostitute to testify or make a 
false statement under oath; is that correct, Mr. Schuelke?
    Mr. Schuelke. Yes, sir, that is correct.
    Mr. Johnson. And was Mr. Allen prosecuted for that?
    Mr. Schuelke. He was not.
    Mr. Johnson. But that was a note that was in--that was 
evidence that was in the file of the prosecution in the Stevens 
case?
    Mr. Schuelke. Yes. The young woman had been interviewed by 
an FBI agent and----
    Mr. Johnson. Okay. I will stop you there. I just wanted to 
clear up the facts. And that same information was available in 
a Federal prosecution of the two cases prior to Senator 
Stevens' trial. And those two cases involving State legislators 
were Federal trials as well; is that correct?
    Mr. Schuelke. That is correct.
    Mr. Johnson. So we have three instances of failure to 
disclose subornation of perjury. That would have been material 
information, would it not?
    Mr. Schuelke. Yes, sir.
    Mr. Johnson. And pursuant to Giglio, that information 
should have been disclosed as well as Brady.
    Mr. Schuelke. It was Giglio material, I would say.
    Mr. Johnson. Yeah. And then during the trial in 2008, the 
prosecution failed to disclose--or during the Ted Stevens case, 
the prosecution failed to disclose written information in the 
files, in the way of case notes that the prosecutors had 
written down what a witness was telling them, that witness 
being Bill--or, excuse me, Rocky Williams. And then also, that 
information would have been material also, in your opinion; is 
that correct?
    Mr. Schuelke. I believe that was material Brady 
information, yes, sir.
    Mr. Johnson. And then you have already testified about the 
fact that the prosecutors derided Senator Stevens' principal 
defense which was that, I have this note here and it shows that 
I requested so-and-so to send me a bill. And prosecutors 
allowed the witness, Bill Allen, to testify falsely that he was 
just trying to cover up his ass.
    Mr. Schuelke. Well, the note from Senator Stevens in 2002 
to Mr. Allen said, Bill, when I think of all the ways you help 
me, I lose count, but you have to send me a bill. And I am 
going to have Bob Persons talk to you. So don't get PO'd at 
him.
    Mr. Johnson. Okay.
    Mr. Schuelke. Six years later Allen testified at the 
trial----
    Mr. Johnson. Okay. We are getting into the weeds now. I 
just wanted that particular statement. My time is getting ready 
to run out, and I hate to interrupt you. But why was there no 
prosecution recommendation to charge any of the prosecutors 
with the same charge that probably should have been leveled 
against Bill Allen back in 2004; it is 18 USC 1622, subornation 
perjury. And has there been a recommendation to the State bar 
of the State where these gentlemen, the prosecutors practiced?
    Mr. Schuelke. Not that I am aware of.
    Mr. Johnson. And they have not been prosecuted; no 
recommendation; no sanction has been applied to them?
    Mr. Schuelke. To the Stevens prosecutors?
    Mr. Johnson. Yes.
    Mr. Schuelke. Not that I am aware of.
    Mr. Johnson. And you do say, though, that Senator 
Murkowski's legislation should go a little bit further and make 
sure that the gatekeeper is not the sole keeper of that file 
insofar as Brady and Giglio materials are concerned.
    Do you think that it would be a good idea for the judge to 
have to look at that case, look at the case file, make a 
determination independently that there is no--or all 
information that should have been disclosed has been disclosed, 
and then seal that, file a copy of that file, what he has 
reviewed in the clerk's office for purposes of later appeals? 
Do you think that is a reasonable way of going about getting 
this responsibility out of----
    Mr. Schuelke. It is a reasonable way of going about it, 
assuming that the prosecutor first says, I am in doubt about 
whether I should disclose this. I will submit it to the judge 
in camera and let the judge decide. But the prosecutor first 
has to get to that point in his own analysis.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Puerto Rico, Mr. Pierluisi.
    Mr. Pierluisi. Good morning, Mr. Schuelke.
    Mr. Schuelke. Good morning, sir.
    Mr. Pierluisi. As I understand the Supreme Court case law, 
the Supreme Court has set a constitutional minimum in this 
area. So States, and I would assume also this Congress, 
Congress can set a higher standard and change the rule so that 
it is more favorable to the defense and to the process as a 
whole.
    You mentioned before that in your view, the materiality 
requirement shouldn't be there. I heard that. Apart from that, 
do you have any other suggestions to us in terms of how to go 
about changing the rule? Are we talking about amending rule 16? 
And if so, in what fashion would you recommend that we would do 
so?
    Mr. Schuelke. Well, as you may know, sir, the Rules 
Committee of the Federal Judiciary has been contemplating such 
a change since 2006, I believe, and has rejected suggestions 
that rule 16 be amended to accomplish this purpose. As I 
recall, when most recently the Rules Committee took it up, they 
had available to them a poll that was taken of sitting Federal 
judges across the country, and slightly in excess of 50 percent 
of the Federal judges recommended an amendment to the rule. The 
Justice Department opposed such an amendment, and the views of 
the Justice Department, as I understand it, carried the day.
    So I persist in the view that such a change is necessary. 
And while it could be accomplished by an amendment to rule 16, 
that has not occurred, and I think if the Rules Committee is 
not going to do it, the Congress should.
    Mr. Pierluisi. And in your view, is the prosecutor's intent 
to use or not to use the evidence a relevant factor here, or 
not?
    Mr. Schuelke. I am not sure I understand the question. The 
prosecutor's intention to----
    Mr. Pierluisi. Yeah. Because some of the case law seems to 
suggest and rules also that one of the relevant factors in 
determining whether you turn over this type of evidence to the 
defense is whether the prosecutor intends to use it at trial. 
And in my view, that shouldn't be a factor. And I want to hear 
from you about it.
    Mr. Schuelke. I quite agree. That should not be, and I 
don't know that it typically is a factor.
    Mr. Pierluisi. Okay. And we have been talking about 
Congress. Now would you turn your attention to DOJ? The U.S. 
attorney manual, as you know, is binding on the prosecutors and 
internally can be used for disciplinary purposes but it has no 
bearing--it has no remedy for the defense. So that is a flaw. I 
have seen that they have made some revisions to it. I have seen 
that training has been enhanced in this area. Is there anything 
else that the Department of Justice should be doing so that 
this type of conduct doesn't happen again?
    Mr. Schuelke. Well, as you have pointed out, the 
Department, through its U.S. attorney's manual, has a 
provision, which has recently been revised, together with 
guidance from the then-deputy Attorney General Ogden, right 
after the Stevens trial, which as a matter of policy tells the 
Federal prosecutors that they are to disclose Brady and Giglio 
material. They are to take a liberal view of it, and in most 
cases, they are not to impose this materiality standard.
    As you have also observed, the U.S. attorney's manual has 
an explicit disclaimer that these policy pronouncements do not 
have the force of law, and they vest in no one any rights. I 
believe if the Justice Department, as expressed in the U.S. 
attorney's manual, is of the view that the materiality 
requirement ought to be eliminated, then I see no principled 
reason why they would oppose legislation which does, of course, 
have the force of law to accomplish the same thing.
    Mr. Pierluisi. Thank you.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentlewoman from Florida, Ms. Adams.
    Mrs. Adams. Thank you, Mr. Chairman. Knowing that, how was 
the Stevens trial team structured?
    Mr. Schuelke. How was it structured?
    Mrs. Adams. Uh-huh.
    Mr. Schuelke. Very shortly before the indictment was 
returned in July of 2008, Brenda Morris, who was a deputy chief 
of the Public Integrity Section, who up until that point had 
very limited involvement in the Stevens investigation, was 
tapped by the Office of the Assistant Attorney General for the 
criminal division to be the lead trial prosecutor.
    The team in the courtroom, in addition to Ms. Morris, was 
Mr. Nicholas Marsh and Mr. Joseph Bottini. Mr. Marsh was a 
public integrity lawyer. Mr. Bottini was an assistant U.S. 
attorney in the district of Alaska. They had significant 
experience in this public corruption investigation in Alaska 
because Mr. Goeke, the other Alaska assistant U.S. attorney, 
and Mr. Marsh tried the first of the two State legislators, 
whose cases I have described, and Mr. Bottini and a young 
Public Integrity lawyer named Edward Sullivan tried the other 
one. So that was the composition of the trial team.
    Mrs. Adams. Do you believe that the six prosecutors who 
were the subject of your inquiry were candid, forthright, 
truthful with you during the course of your investigation?
    Mr. Schuelke. I believe that they were.
    Mrs. Adams. Can you explain your references in the report 
to the simultaneous and collective memory failure, I guess it 
is of Messrs. Bottini, Marsh, Goeke and Sullivan, to recall the 
details of their interview with Bill Allen on April 15, 2008?
    Mr. Schuelke. Can I explain the memory failure?
    Mrs. Adams. Your references to that. Because you just said 
they were being forthright.
    Mr. Schuelke. All of them participated in the interview of 
Mr. Allen on April 15, 2008. All of them took notes, in which 
they recorded what he said. Five months later, Mr. Allen has a 
dramatically different--indeed, a polar opposite--account from 
the one he gave them in April. And all of them, to a person, 
maintained that they had no memory of him having said what he 
said on April 15.
    As I say in the report, I was unable to determine by 
compelling evidence that any one of them, in fact, remembered 
what had transpired in that April interview and falsely 
represented that they had not.
    Mrs. Adams. At this time I yield to Mr. Gowdy.
    Mr. Gowdy. Was this what we sometimes refer to as an open-
file case? Or did they try to follow the statute?
    Mr. Schuelke. In the Stevens case?
    Mr. Gowdy. Right.
    Mr. Schuelke. It was not a so-called open-file discovery 
practice.
    Mr. Gowdy. If DOJ adopted an open-file status for all of 
its cases, how many of the concerns raised by our colleagues on 
the other side would go away?
    Mr. Schuelke. Some, but not all.
    Mr. Gowdy. Can you give me an example of something that is 
potentially impeachment material but not material; doesn't meet 
the materiality element but is potentially impeachment, Giglio 
material.
    Mr. Schuelke. I suppose a witness could testify at a trial 
that the crime he or she observed occurred on a Tuesday, and 
that witness could have testified--or in the course of an 
interview earlier, stated that it occurred on a Thursday. The 
accounts of the events themselves might in both the interview 
and the trial testimony have been otherwise altogether 
consistent. And one can make an argument that the witness' 
memory at one point, months ago, that it was a Tuesday versus 
memory that it was a Thursday at the trial was not material.
    Mr. Gowdy. Well, my time is out. But I appreciate your 
testimony. And I would hope you would come back at some point. 
You are a former prosecutor. There are other former prosecutors 
up here. Reciprocal discovery is something I would like to get 
your perspective on as well, because I can't recall the name of 
any criminal defense attorneys--at least in my experience--that 
have been disciplined in any way for not meeting the reciprocal 
discovery requirements. And that may be a source of frustration 
for prosecutors.
    Mr. Sensenbrenner. The gentleman's time has expired. Mr. 
Schuelke thank you very much not only for coming today and 
answering the questions that we all have relative to this 
prosecution and your report, but also the extensive time you 
spent putting together an extremely thorough report on a very 
messy and sad experience in the history of the Justice 
Department. So I think the entire country should thank you for 
your efforts on that. And hopefully your report and what has 
transpired in the Stevens case will prevent this from happening 
again. So thank you.
    Mr. Schuelke. Thank you, Mr. Chairman. I appreciate your 
hospitality.
    Mr. Sensenbrenner. Yes. Thank you.
    Okay. We will now go to the second panel of witnesses. 
Kenneth Wainstein is a partner in the law firm of Cadwalader, 
Wickersham & Taft where his practice focuses on corporate 
internal investigations. He is also an adjunct professor at 
Georgetown law school. Mr. Wainstein served as an assistant 
U.S. attorney both in the Southern District of New York and the 
District of Columbia. Later he served as the U.S. Attorney in 
the District of Columbia, and then was the first assistant 
attorney general for national security. He has served as FBI 
Director Robert Mueller's chief of staff and then as President 
Bush's homeland security adviser. He received his undergraduate 
degree from the University of Virginia and his law degree from 
the University of California at Berkeley.
    Alan Baron is the senior counsel at the law firm of 
Seyfarth Shaw where his practice focuses on white-collar 
criminal defense. He has served as special impeachment counsel 
to the U.S. House of Representatives three times, and most 
recently he was Special Counsel in the impeachment of Judges 
Samuel Kent and G. Thomas Porteous. He also is minority chief 
counsel to the Senate Governmental Affairs Committee and served 
as an assistant U.S. attorney in Maryland. He received his 
undergraduate degree from Princeton and his law degree from 
Harvard.
    As I said earlier, I will swear the witnesses in. Could the 
two witnesses please stand, raise your right hand.
    [Witnesses sworn.]
    Mr. Sensenbrenner. Let the record show that both witnesses 
answered in the affirmative. Their written statements will be 
entered in the record in their entirety. And you all have been 
up here before, so you know about green lights, yellow lights, 
and red lights.
    Mr. Wainstein.

    TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, CADWALADER, 
                    WICKERSHAM AND TAFT LLP

    Mr. Wainstein. Thank you, Chairman Sensenbrenner, Ranking 
Member Scott, Members of the Subcommittee. I am here with two 
of my colleagues, Jeffrey Nestler and Sara Zdeb. And together, 
we are proud to represent assistant United States attorney Joe 
Bottini in this matter. We are here today for one reason: to 
demonstrate that the Special Prosecutor got it simply wrong 
when he found that Joe intentionally violated the rules in the 
Stevens case.
    First let me take a minute on who Joe is. Joe is a 27-year 
veteran of the Alaska U.S. attorney's office. He is universally 
respected by the Alaska bench and bar, has never had a single 
allegation of misconduct against him. He has tried and 
prosecuted hundreds of cases. And the only recognition he wants 
in life is to be counted among those prosecutors who go to work 
each day seeking to do justice for the American people. In 
short, and in my eyes, Joe is a model public servant.
    Joe is also something else. He is human. He makes mistakes. 
He acknowledges he made mistakes, serious mistakes in the 
Senator Stevens case. And he acknowledges and he greatly 
regrets the impact those mistakes had on the integrity of that 
trial and on the public's perception of the Justice Department. 
But Joe does not acknowledge, I do not acknowledge and, most 
importantly, the facts do not acknowledge that Joe committed 
those errors purposely or with any bad faith.
    The Special Prosecutor's report, as you know, concluded 
definitively that he did. While the report goes on for some 
500-odd pages, it really distills down to just two findings 
about Joe: one, a finding that Joe committed errors; and two, a 
finding that those errors were intentional. What is completely 
missing, however, is any connective tissue between those two 
findings, any actual support for the conclusion that Joe's 
errors were intentional as opposed to inadvertent.
    In fact, there is really no analysis of Joe's intent at 
all. We have carefully gone through the 514 pages and have 
found a grand total of one paragraph that reports to analyze 
the intent behind Joe's conduct, one single paragraph for the 
most critical question in the whole investigation.
    Professional prosecutors understand that every error is not 
a crime, and that they have a duty to carefully distinguish 
between mistake and misconduct before concluding that somebody 
is guilty of an intentional crime.
    The Special Prosecutor's report failed to uphold that duty 
in just about every respect. First, the report fails to take 
into account the conditions under which the prosecutors were 
working before and during trial. And the Chairman mentioned 
these earlier today. Circumstances that made it likely that 
balls would be dropped and made it therefore more likely that 
mistake rather than misconduct was behind any errors; 
circumstances such as the complete failure by the Public 
Integrity Section management to do its job; the severely 
shortened time period for trial preparation; and the combative 
defense tactics that kept the prosecutors off balance during 
trial, all highly relevant circumstances and none given any 
real consideration by the report.
    Second failing: The report fails to consider critically 
important mitigating circumstances, such as the fact that Joe 
is universally admired by his defense counsel adversaries as, 
quote, a man of high moral character and as, quote, the kind of 
person for whom the expression ``straight arrow'' was invented. 
And also, the fact that on seven different occasions, Joe 
actually pushed his Public Integrity Section supervisors to 
disclose the very information the Special Prosecutor's report 
accuses him of trying to suppress, requests that were firmly 
denied each time.
    Third failing. The report mischaracterizes important facts 
in a way that puts a nefarious slant on Joe's conduct by 
saying, for example, that Joe made a prejudicial argument in 
his closing jury address, an argument that is not found in the 
jury trial transcript.
    The report altogether ignores other facts, facts that cut 
against its findings. For instance, the report finds Joe guilty 
of suppressing Rocky Williams' assumption about the Senator 
paying for the work on his house, but never addresses the fact 
that Joe's outline for his direct examination of Rocky Williams 
had an entry showing that Joe intended to elicit that very 
assumption on the record in open court, a circumstance that 
completely undermines a finding of intentional misconduct and a 
circumstance that should have been front and center in any 
credible consideration of that issue.
    As a final failing, the report reflects a process that 
showed very little regard for fairness, and, most troublingly, 
in the way the investigation concluded with no criminal 
charges, but with a public branding of our client as a proven 
criminal.
    Under our system, professional prosecutors have one way and 
only one way to accuse a person of a crime, and that is with 
the filing of formal charges that the person can then contest 
in open court to defend his liberty and his reputation. That 
rule was not followed in this case. The Special Prosecutor 
decided not to file charges against Joe but then turned around 
and publicly declared to the world that Joe was guilty of the 
worst thing one can say about a Federal prosecutor, that he is 
dishonest and a cheat. This left Joe with the shame of a 
criminal accusation but without any opportunity to show the 
American people that that accusation was wrong.
    Today, thanks to this hearing, we finally have that 
opportunity and we are very grateful to the Committee for 
giving it to us. I look forward to this hearing and I look 
forward to answering any questions you may have for me.
    Mr. Sensenbrenner. Thank you very much.
    [The prepared statement of Mr. Wainstein follows:]*
---------------------------------------------------------------------------
    *See Appendix for the Addendum submitted with this statement.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

                               __________
    Mr. Sensenbrenner. Mr. Baron.

          TESTIMONY OF ALAN I. BARON, SENIOR COUNSEL, 
                       SEYFARTH SHAW LLP

    Mr. Baron. Thank you very much, Mr. Chairman. As you noted 
in introducing me, you mentioned that I had been an assistant 
United States attorney for Maryland. I think I would only add 
to that that during that time, I headed the investigation which 
led to the indictment of a former United States Senator, Daniel 
Brewster of Maryland. And I am aware therefore--although that 
was a long time ago--of the pressure that is put on a 
prosecutor when he is involved in a case of such magnitude and 
importance. I would note that I have no connection whatever to 
the Stevens case, I have no relationship with any of the 
individuals involved in that matter, other than having had 
minimal contact with Mr. Welch relative to the Porteous 
impeachment.
    I join with the Chairman in commending Mr. Schuelke for his 
comprehensive report. In my view it is clearly the product of 
an enormous amount of effort conducted in a highly professional 
manner.
    So for purposes of my testimony, I accept the accuracy of 
his findings of fact; specifically, that by any standard--and I 
think I want to keep those words in mind--``By any standard, 
the information provided to the prosecutors by Rocky Williams 
and Bambi Tyree was Brady material.'' And Mr. Schuelke 
concluded that both Mr. Bottini and Mr. Goeke consciously 
withheld and concealed this critical information from the 
defense, and indeed that there were affirmative 
misrepresentations regarding the Tyree information to the 
effect that such material did not even exist.
    And then Mr. Schuelke also found that Mr. Bottini failed to 
take steps to correct false testimony by Mr. Allen on the 
witness stand, which testimony Mr. Bottini knew to be false, in 
violation of the Supreme Court case Napue v. Illinois.
    Mr. Schuelke was appointed to investigate and prosecute 
criminal contempt proceedings as may be appropriate against the 
prosecutors in this case. Despite having the findings that we 
have all referred to this morning, Mr. Schuelke ultimately 
concluded that no prosecution for criminal contempt would lie. 
According to Mr. Schuelke at a hearing on September 10, 2008, 
the judge in the Stevens case failed to issue--I am quoting now 
from the report--"a clear, specific, and unequivocal order such 
that it would support a finding by a district court beyond a 
reasonable doubt that 18 USC section 4013--that is the criminal 
contempt statute--had been violated.''
    In my view--and I certainly defer to Mr. Schuelke's report, 
wherever it purports to find facts and reach conclusions based 
on the enormous investigative effort which clearly underlies 
it--but the entire transcript of the proceedings on September 
10, 2008, is available for review. Anyone here can read--that 
is the entire universe contained in that transcript. And one 
can therefore reach one's own conclusion as to what transpired 
at that critical event. And here, I must regrettably and 
respectfully disagree with Mr. Schuelke's characterization of 
what occurred.
    On September 10, 2008, the court issued a clear, 
unequivocal order to the government to produce material 
pursuant to Brady and its progeny. Everyone agreed that they 
understood their obligation. None of the prosecutors asked for 
clarification of what was being ordered. And we must recall Mr. 
Schuelke's earlier conclusion that by any standard, even the 
narrowest view of what Brady requires, the Williams and Tyree 
materials had to be disclosed as Brady material.
    In my view, if you accept Mr. Schuelke's factual premise, 
the failure to disclose what were clear Brady materials was in 
direct violation of the court's order. Now, the fact that there 
was no written order entered on September 10 is irrelevant. It 
is well established that no written order is required. And it 
is noteworthy that Mr. Wainstein, who represents Mr. Bottini, 
in a letter to the Attorney General, dated March 15, 2012, 
acknowledges A, that no written order is required for contempt 
proceeding and that the judge's verbal order at the September 
10, 2008 hearing was clear and unequivocal. To me, the judge's 
order was clear, as was its violation.
    The question is how did this happen? In a sense, it is a 
bigger issue. The obvious answer is that overzealous 
prosecutors got caught up in a win-at-all cost mentality and 
ignored their obligation to prosecute fairly within the limits 
imposed by the Constitution.
    But I think there is a deeper question here. There seems to 
have been a total breakdown of supervision. Who was in charge? 
Who would accept responsibility to rein in prosecutors when 
they began to violate their constitutional obligations?
    What I find--and we can talk about this perhaps in response 
to questions, because I see my time is elapsing--what I see 
here is a total breakdown in supervision. You might ask, Why do 
experienced prosecutors need supervision? Because it puts 
someone in a position where they must account for what happens. 
And when you don't have that structure, you get the problem of 
people going off and essentially doing their own thing, very 
much to the detriment of the administration of justice. Thank 
you.
    Mr. Sensenbrenner. Thank you Mr. Baron.
    [The prepared statement of Mr. Baron follows:]
         Prepared Statement of Alan I. Baron, Senior Counsel, 
                           Seyfarth Shaw LLP
    My name is Alan Baron and I am Senior Counsel to the law firm of 
Seyfarth Shaw LLP based in Washington, DC. In the course of my career, 
I have served as an Assistant United States Attorney for Maryland, 
during which time I headed the investigation which led to the 
indictment of former Senator Daniel Brewster for bribery while in 
office.\1\ I am aware of the pressures on prosecutors when involved in 
a case of such magnitude and importance.
---------------------------------------------------------------------------
    \1\ Senator Brewster ultimately entered a plea of nolo contendre 
after the Supreme Court rejected his claim of immunity under the Speech 
or Debate clause of the Constitution. See United States v. Brewster, 
408 U.S. 501 (1972).
---------------------------------------------------------------------------
    A substantial portion of my career in private practice over the 
years has involved acting as defense counsel in white collar criminal 
cases. I am familiar with the requirements of Brady v. Maryland, \2\ 
Giglio v. United States \3\ and related cases.
---------------------------------------------------------------------------
    \2\ 373 U.S. 83 (1963)
    \3\ 405 U.S. 150 (1972)
---------------------------------------------------------------------------
    I have also served, from time-to-time, as special counsel in the 
public sector. I have been retained as special impeachment counsel by 
the House of Representatives to pursue the impeachment, trial and 
removal of four federal judges, including former Judge G. Thomas 
Porteous.
    I am appearing before the Subcommittee to testify concerning the 
report filed by Mr. Henry Schuelke setting forth the results of his 
investigation into possible criminal contempt proceedings against the 
prosecutors who conducted the investigation and prosecution of Senator 
Ted Stevens of Alaska (hereafter ``the Report''). I should note that I 
have no connection whatsoever to the Stevens case and have no 
relationship with any of the individuals involved in that matter other 
than minimal contact with Mr. Welch, relative to the Porteous 
impeachment.
    Mr. Schuelke is to be commended for this comprehensive report. It 
clearly is the product of an enormous amount of effort conducted in a 
highly professional manner. For purposes of my testimony, I accept the 
accuracy of his findings of fact, specifically that ``By any standard, 
the information provided to the prosecutors by Rocky Williams and Bambi 
Tyree was Brady material'' (the Report at 500).\4\ The Report concluded 
that Mr. Bottini and Mr. Goeke consciously withheld and concealed this 
critical information from the defense. Indeed, the Report states that 
there were affirmative misrepresentations regarding the Tyree 
information to the effect that such materials did not exist (the Report 
at 503).
---------------------------------------------------------------------------
    \4\ Rocky Williams was foreman for the renovations on the Stevens' 
house. He told prosecutors, based on statements made by Bill Allen, his 
boss, and by Senator Stevens, he understood that all charges would be 
added to the bill submitted to Senator Stevens by the subcontractor. 
This corroborated the heart of the defense case. Senator Stevens 
maintained that when he paid the bills submitted to him, he understood 
he was paying for everything he owed.
     Bambi Tyree was an underage prostitute with whom Mr. Allen had a 
relationship. Allen was a major prosecution witness against Senator 
Stevens. In an unrelated case, Tyree was interviewed by the FBI. The 
FBI memorandum of that interview states that Tyree submitted a false 
affidavit at Allen's request denying her sexual relationship with 
Allen. The Government in that case filed a memorandum under seal which 
stated Allen had procured the false affidavit.
---------------------------------------------------------------------------
    Finally, Mr. Schuelke found that Mr. Bottini failed to take steps 
to correct testimony by Mr. Allen on the witness stand which Mr. 
Bottini knew to be false in violation of Napue v. Illinois \5\ (the 
Report at 503).
---------------------------------------------------------------------------
    \5\ 360 U.S. 264 (1959). When Allen was interviewed by prosecutors 
shortly before trial, he changed his version of the facts on a critical 
issue for the defense. For the first time, Allen characterized 
memoranda Senator Stevens had sent to him in 2002 asking Allen to be 
sure and send Senator Stevens a bill for the work, as ``cover your 
ass'' memos. When asked on cross-examination at trial whether his 
characterization of the documents as ``cover your ass'' memos was 
something he had just recently told prosecutors, Allen said ``no.'' 
That answer was false, but no effort was made to correct the testimony.
---------------------------------------------------------------------------
    Mr. Schuelke was appointed ``to investigate and prosecute criminal 
contempt proceedings as may be appropriate against the prosecutors in 
this case'' (the Report at 1). Despite having found that Mr. Bottini 
and Mr. Goeke intentionally withheld and concealed material exculpatory 
information which was required to be disclosed to Senator Stevens and 
Williams & Connolly by Brady and Giglio (the Report at 36), Mr. 
Schuelke ultimately concluded that no prosecution for criminal contempt 
would lie. According to Mr. Schuelke, at a hearing on September 10, 
2008, the judge in the Stevens case failed to issue ``a clear, specific 
and unequivocal order such that it would support a finding by a 
District Court beyond a reasonable doubt that 18 U.S.C. Sec. 401 (3) 
had been violated'' (the Report at 513).
    In my view, Mr. Schuelke's report is entitled to deference where it 
purports to find facts and reach conclusions based on the enormous 
investigative effort which underlies it. However, the entire transcript 
of the September 10, 2008 hearing is available for review so that one 
can reach one's own conclusion as to what transpired at that critical 
event. Here, I must respectfully disagree with Mr. Schuelke's 
characterization of what occurred. On September 10, 2008, the court 
issued a clear, unequivocal order to the government to produce material 
pursuant to Brady and its progeny. Everyone agreed that they understood 
their obligation. None of the prosecutors asked for clarification of 
what was being ordered. We must recall Mr. Schuelke's earlier 
conclusion that ``By any standard . . .'' the Williams and Tyree 
materials were Brady. Accordingly, failure to disclose what were clear 
Brady materials, was in direct violation of the court's order.
    The fact that no written order was entered on September 10 is 
irrelevant because it is well established that a written order is not 
required. See In re Hipp, Inc., 5 F.3d 109, 112 n.4 (5th Cir. 1993). It 
is noteworthy that Mr. Wainstein, counsel for Mr. Bottini, in a letter 
to Attorney General Holder dated March 15, 2012, acknowledges that no 
written order is required for a contempt proceeding and that the 
judge's verbal order at the September 10, 2008 hearing was clear and 
unequivocal.
    Based on the foregoing, I believe that Mr. Schuelke's rationale for 
not proceeding is unpersuasive. There may be many reasons for a 
prosecutor to exercise discretion and decide not to prosecute a case, 
but the reason stated here in not convincing. The judge's order was 
clear as was its violation.
    It is fair to ask ``how did this happen?'' The obvious answer is 
that over-zealous prosecutors got caught up in a win at all costs 
mentality and ignored their obligation to prosecute fairly and within 
the limits imposed by the Constitution. The question remains, however, 
where was the supervision which would have operated as a reality check 
to rein in prosecutors who, according to the Report, engaged in 
``systematic concealment of significant exculpatory evidence which 
would have independently corroborated Senator Stevens' defense and his 
testimony, and seriously damaged the testimony and credibility of the 
government's key witness.''?
    It is clear from the Report that there was a breakdown in 
responsibility and accountability in how the case was being handled. 
Brenda Morris, Principal Deputy Chief of the Public Integrity Section, 
was thrust into the role of lead prosecutor just a few days before the 
indictment was filed in a case which had been investigated for two 
years. According to Ms. Morris, she had resisted being put in the 
position of lead counsel several times. (See Exhibit 4 in the Addendum 
to the Report.) Once in the position, she was well behind the curve in 
mastering the facts and was faced with resentment by the prosecutors 
who had been on the case. Her solution, in her own words was, ``to make 
herself as little as possible'' (the Report at 3). In essence, she 
accepted the position of lead counsel without accepting and exercising 
the responsibilities inherent in the role. This was at least part of 
the reason the case imploded. No one was supervising the prosecutors in 
a meaningful way. This does not in any way excuse the misconduct, but 
it is part of the explanation for how matters got to the sorry state 
set out in the Report.\6\
---------------------------------------------------------------------------
    \6\ The Report exonerates Ms. Morris of knowingly and willfully 
withholding Brady and Giglio information from the defense (the Report 
at 506).
---------------------------------------------------------------------------
    The vast majority of federal prosecutors perform their roles with 
integrity and in conformity with their sworn obligation to uphold the 
law. Matters went terribly awry in this case, and it is to Attorney 
General Holder's credit that he decided to dismiss the Stevens case 
with prejudice, in effect, expunging the verdict.
                               __________

    Mr. Sensenbrenner. Mr. Wainstein, I think that Mr. Bottini 
was very clearly the most experienced of the prosecutors that 
were prosecuting Senator Stevens. And I just look at the long 
litany of errors that occurred, and ignoring the judge's 
admonition. You know, for example, during one hearing, the 
judge admonished the prosecutors that the government has an 
obligation to turn over the Brady and Giglio information, and 
if they don't want to do that, they ought to resign.
    And then there were some letters that Mr. Bottini authored 
relative to the Brady and Giglio issues that were sent to 
counsel for Senator Stevens. In one of those letters Mr. 
Bottini failed to include significant Brady information 
provided to him by Rocky Williams, which a few days earlier 
corroborated Senator Stevens' primary defense. In your written 
testimony, you said, Mr. Bottini only skimmed the second of the 
two Brady letters, which also, according to Mr. Schuelke, 
contain significant misstatements and conceal the importance of 
important Brady and Giglio information. At trial, Mr. Bottini 
did not correct Bill Allen's false testimony on cross-
examination. On September 10, the judge issued a clear order to 
the prosecutors to comply with Brady and Giglio or it would 
support a criminal contempt prosecution.
    Mr. Williams was sent to Alaska, and Mr. Bottini apparently 
had some role in making that decision. Mr. Allen suborned 
perjury. That information was not disclosed. And Mr. Bottini 
did not produce counsel for Senator Stevens' April 15, 2008 
interview notes of Bill Allen pursuant to Brady or Giglio.
    Now it is going on again and again. And we know of at least 
two admonitions from the bench to either produce the 
information, resign, or face criminal prosecution. Mr. Allen's 
false testimony was not corrected on cross-examination.
    Now, this is an experienced prosecutor. And it was up to 
the Department of Justice to determine when to file the 
indictment. Senator Stevens was up for reelection 4 months 
after the indictment was filed. And as one who has run for 
office numerous times, it is pretty hard to get reelected when 
you are indicted, you don't have an opportunity to have a jury 
decide your guilt or innocence. And that is, the timing that 
the Justice Department undertook in determining when to file 
the indictment I think practically guaranteed that Senator 
Stevens' attorneys would have asked for a very speedy trial.
    And finally, there was the complaint that the defense 
counsel was very aggressive in the presentation of their case. 
Now, it has been a long time since I have tried cases in court. 
And I always thought that the counsel, pursuant to rules, was 
on an ethical obligation to present a vigorous case for their 
trial. You know, you say that Mr. Bottini was caught up in the 
milieu of the trial and the lack of supervision from on high. 
But he was so experienced, couldn't he overcome that? Or 
couldn't he throw the red flag down on the field and tell his 
superiors in the Justice Department that they ought to have a 
hand on the tiller?
    Basically what I hear from you, Mr. Wainstein, is that 
well, he did the best he could under the circumstances, and it 
was the folks up above him that kind of dropped the ball. And I 
will give you a chance to answer my 4\1/2\ minutes of a litany 
of things that are in the report. And forget about the red 
light, because I am not going to ask a follow-up question.
    Mr. Wainstein. Thank you, Mr. Chairman. You gave me a lot 
to chew on here. Let me start off. First, Joe is not saying--
not pointing fingers at the people above him. He is not saying 
that he didn't do anything wrong. He will say he wishes he did 
throw a flag. He just bore down and worked on his little area 
and didn't say, you know what, we really need to do this, we 
need to stop the presses here, go back to the beginning and try 
to fix this. And he wishes he did. So he is not saying that 
this is all somebody else's fault. He is accepting 
responsibility for the mistakes and the miscalculations he 
made.
    Another thing I would like to mention is, you know, you 
mentioned zealous advocacy by defense counsel. I am not 
complaining about their work. They are very a successful 
defense counsel and they do a great job for their clients. My 
only point is, that is a circumstance that kept the prosecutors 
on their heels, confused, running here and there, and they 
never really got their sea legs at trial. And that is one of 
the reasons why mistakes were more likely, because the critical 
thing that we have focused on is, is there intentional conduct 
here or is it mistaken conduct?
    And the circumstances that we have laid out here, we have 
laid out with the intention of showing you that this really was 
a series of mistakes. Now, you have laid out a number of the 
things that the report indicates that my client is guilty of. 
Now of course, you are characterizing the facts as 
characterized in the report. You are accepting the conclusions 
that these things were done intentionally. And I understand 
that, because your basis of knowledge is the report.
    What I am doing is--on behalf of Joe, and frankly on behalf 
of the other subjects--pushing back on those assertions by the 
Special Prosecutor, because I think the Special Prosecutor, 
like you, did a tremendous service to the country here and it 
was a tremendous challenge what he had to deal with. But I 
believe that he got some of the facts wrong and he got the 
inferences wrong.
    So if you look at a few of the things raised, it is not so 
clear-cut. For instance, the question about whether Bill Allen 
provided perjured testimony or wrong testimony that Joe should 
have corrected. If you actually go back and look at the record, 
you will see why Joe realized he was totally confused, and the 
jury who had already--Joe had already advised the jury that Mr. 
Allen had some cognitive impairments, that he had some serious 
problems, and those problems actually played out while he was 
on the stand. The jury understood that he would get confused 
and he got confused.
    I think his final question was, hell I don't know what day 
it was that I talked about this. Joe's recognition--he 
explained this to Mr. Schuelke--was I realized he was confused. 
If I tried to clean it up, it would get worse. And the critical 
thing is that Joe did not use that information, did not try to 
take advantage of it in his closing argument by suggesting that 
Allen had not just recently told him this information. He 
didn't exploit it at all, even though defense counsel raised 
that issue. My point is, he had a reason for what he did which 
was not nefarious, was in fact understandable.
    Rocky Williams, the only other example I would like to 
cite. He talked about how he learned that Rocky Williams had 
this assumption that Senator Stevens was going to pay for that 
work. He did. Rocky Williams told Joe this, and Joe thought 
about it. He has explained this to Mr. Schuelke. He thought 
about, boy, this is an assumption by a person who is working on 
a work site that the guy who owns that work site, the house 
there, is going to pay for that work. Is that something that we 
need to turn over to defense?
    He asked a critical question: Did you Mr. Williams, Rocky 
Williams, tell the Senator or the Senator's wife that the 
charges for the work were all going to be put in the 
Christensen Builders bills that you are paying? ``No, I didn't 
but I assumed that.''
    Well, frankly, Joe's thinking was, everybody on that work 
site assumes that the owner of the house is paying for the 
construction on that house. I think we would all assume that. 
That is not something that can be elicited on the stand. That 
is just speculation, and is not something that is disclosable.
    Now, you can take issue with that decision. My point is, he 
had a reasonable basis for the decision he made that is far 
from criminal intent to hide facts that should have gotten to 
the defense, even though one can question whether, you know, in 
retrospect he should have made the other decision.
    Mr. Sensenbrenner. Thank you. The gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Thank you. Thank you, Mr. Chairman. Mr. 
Chairman, I am not as concerned about the individual 
prosecutors involved. Their fate will be determined in another 
forum. But it does show, I think it is clear particularly from 
what we have heard from the Chairman and from the gentleman 
from South Carolina, that things didn't go right in this trial. 
It should have been treated differently.
    And if this kind of stuff happens in a high-profile case 
like this, you can only imagine what happens in the run-of-the-
mill cases. In most cases, this kind of information would never 
come to light.
    So we have a question of whether or not we need to change 
our procedures, particularly in light of the laboratory scandal 
that has just come to light. So in terms of what the standard 
ought to be going forward, does anybody think admissibility 
ought to be part of the standard if it is evidence that Brady 
information has to be admissible? I know in civil standards, if 
it would lead to admissible evidence it would help impeach 
witnesses, it would help the investigation, even if it is 
hearsay, or if it helps settlement you can get discovery in 
civil cases, and it has nothing to do with admissibility. 
Should admissibility be part of the standard going forward?
    Mr. Baron. Let me respond. Usually when you are talking 
about Brady material, it is material that the prosecution does 
not want admitted, I mean, because it is going to tend to be 
exculpatory. It may be material that the defense wants to 
admit. And certainly if it is relevant and material, it 
certainly should be admitted, if that is your question.
    Mr. Scott. Well, should that be part of the standard? It 
wouldn't have to be admissible evidence. It could be hearsay 
and other things that are clearly inadmissible that would be 
helpful to the prosecution. So admissibility is not going to be 
part of----
    Mr. Baron. Admissibility of the evidence in and of itself 
should not be the standard. It is whether it might lead to 
evidence that could be used in that way.
    Mr. Scott. Okay. So we are back to material. Is there any 
suggestion that the standard on review, on appellate review 
ought to be different? The standard on appellate review 
suggests that the availability of the Brady material could have 
changed the result. Could have--not necessarily--but could 
have. Is there any suggestion that that standard on appellate 
review be changed?
    Mr. Wainstein. I think there is talk about that. I don't 
know that--I see problems with that. If you were to change 
the--or to take materiality out of the appellate standard, then 
every little deviation--let's say to talk about it in a Giglio 
context, impeachment, to use the example that Mr. Schuelke 
cited before, about a Tuesday versus a Thursday. You would be 
litigating every little discrepancy. So there would be no 
finality to cases, and you would end up with cases being 
reversed for what really is not outcome determinative.
    Mr. Scott. So if all of these proposals will not change the 
standard on appellate review, are we just talking about good 
practice and not really changing the law?
    Mr. Baron. I think that the materiality standard--and I 
think Mr. Schuelke made the point earlier; it is very difficult 
for someone who is a prosecutor to put himself in the shoes of 
defense counsel in a hotly contested case and figure out what 
is material, what is not material, what is relevant, what is 
not relevant. Indeed, the prosecutor may not really know just 
what his defense strategy is going to be. How can he make the 
judgment in a vacuum?
    So I think that to the extent that one continues to impose 
a materiality standard, it makes it harder and harder for the 
prosecutor to make a judgment that is sound. And so therefore I 
think that is the push of removing that standard because it is 
unrealistic to expect the prosecutor to make that judgment and 
indeed very difficult for an appellate court to make that 
judgment.
    Mr. Scott. Well particularly because neither may know what 
the defense knew, and this could be the key little connection 
that could help them make their case and be material to the 
defense, but the prosecution had no way of knowing that it was 
that important information.
    Mr. Baron. Exactly.
    Mr. Scott. Now on appellate review, if it turns out that 
way, and you hadn't released it, you would have a Brady 
problem.
    Mr. Baron. Yes.
    Mr. Scott. So we are talking about good practice; don't get 
into Brady problems that you can avoid. Just release it all. 
But you are not talking about changing the standard on review. 
If it in fact was not material, then there should be--are you 
suggesting that there is no sanction?
    Mr. Baron. I think that--to the extent that on appellate 
review, the court--it is going to be a pretty extreme case that 
where an appellate court will feel it is in a position to, 
let's say, reverse a conviction for failure to disclose I think 
will be material evidence.
    I agree with Mr. Wainstein that to the extent--you don't 
want the appellate courts getting bogged down in every 
relatively minor instance that something was not turned over. 
If it would not have had some material effect, it seems to me 
that that is asking too much. I think you bog down, you clog 
the system with a lot of cases on appeal where it shouldn't be 
happening.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Gowdy. [presiding.] I thank the gentleman from 
Virginia. Mr. Wainstein, I don't really care about how zealous 
or not zealous the defense counsel was. I would rather have 
good facts than good lawyers. And it just strikes me that the 
facts weren't good, which means maybe I am missing something.
    If you paid $170,000 for something whose fair market value 
is $160,000, even Mr. Scott can't win that case if he is a 
prosecutor--I don't think. Am I missing facts? Look, I want to 
be sympathetic to prosecutors. I was one for a long time. But 
what am I missing?
    Mr. Wainstein. Good question, sir. Just keeping in mind, I 
represent Joe Bottini. And I will say that Joe was not involved 
in the decision to charge the case. When the decision was made 
to charge the case, he was actually surprised that an 
indictment was actually filed.
    Mr. Gowdy. It is not tough to get an indictment.
    Mr. Wainstein. No, no, no. I am not making the point that 
that passed the threshold. I am saying the fact that it was 
actually issued caught him by surprise. He was off working on a 
capital case up in Alaska when it was issued. But you know, 
having been in main Justice for quite some time, I have often 
seen where you have a case that looks a certain way at the 
indictment stage and then especially with good defense 
counsel--and we had good defense counsel here--get involved, it 
starts to morph and it starts to look different. And I am only 
speculating because I wasn't inside this process. But sometimes 
that happens, where the facts just get worse. I think everybody 
would question, you know, why the case was charged. You have 
got to remember, it is tough. If you have what looks like a 
makable case against a sitting United States Senator, charging 
has its consequences. But not charging also has its 
consequences. So it is a tough--I just think the people in that 
position were in a tough position.
    Mr. Gowdy. You were at DOJ for a time period. This practice 
of interviewing witnesses without the case agent present, which 
at best may potentially make you a witness, at worst leads to 
what we are talking about here, wouldn't that have corrected it 
if you had had a Bureau agent or an IRS agent or the case agent 
present for the interview?
    Mr. Wainstein. Yes. I mean in most cases they did as far as 
I know, and I think Mr. Schuelke is sort of the expert on the 
facts. He indicated that he thought that there was an agent 
there, either FBI or IRS agent. Not always the case agent.
    One of the problems was--in a couple of the critical 
interviews, a 302, an FBI report, was not generated. And 
especially in the interview of Bill Allen, on April 15, 2008, 
where he made the critical comment--statement which was then--
which he then changed as it got closer to trial, there was no 
302 written of that.
    And that is one of the problems in the case because 
prosecutors didn't have a written record, which they could have 
looked at to say, oh, wait a minute; what Bill Allen is saying 
now in September is different from what he said in April. So 
that was really the main problem. And I don't believe there 
were instances where they went forward without agents. They 
were smart. They get it. Yeah, if you go in there without an 
agent, you are going to make yourself a witness in case 
something arises at trial that hearkens back to that interview.
    Mr. Gowdy. Well, as you probably noticed, Congress is much 
better at doing autopsies than it is at doing well-checkups. We 
like to wait until something horrible happens and then we rush 
in with a long list of cures, most of which are cures for 
symptoms that don't exist. But it does sully the name of 99 
percent of the prosecutors who actually do value the 
administration of justice more than they do results. And you 
don't ever make the news when you don't drop the baby. It is 
only when you do that you have your counsel at a House 
Judiciary Committee hearing.
    So do the rules need to change? Does the law need to 
change? Or is this just a case where the rules are sufficient, 
they just weren't followed?
    Mr. Wainstein. I am not going to pretend to be the world's 
expert on this issue, because my focus in this has been 
different. It has been Joe. But I think, as someone has said 
earlier, the rules here were sufficient. And I think especially 
in the aftermath of this, I give a lot of credit to the 
Department for what they did, where they have tightened up 
training, expanded training and that their whole focus is, 
okay, we are going to give guidance to the prosecutors that 
they turn over all exculpatory, all favorable information to 
the defense without regard to the materiality requirement. But 
we want the law to be a materiality requirement.
    So that if we don't turn over the Tuesday versus Thursday 
thing, because we just overlooked it, that we are not going to 
then put a conviction in jeopardy or really undermine the 
process of----
    Mr. Gowdy. So an open-file policy by not an open-file law?
    Mr. Wainstein. Well, I don't know if I would say open file. 
The prosecutor's job is to turn it over whether it is through 
open file or just telling them, providing the relevant 
documents to the defense, if they find something favorable, and 
don't just hold onto it because it is not favorable information 
that is material.
    And I think having that as the policy guidance and the law 
being, okay, but we only actually take action against the 
prosecutors and against their case if it was material 
information that wasn't turned over. I think that is a good 
approach if well trained and well carried out and well 
supervised. And 99.99 percent of the criminal trials should go 
smoothly.
    Mr. Gowdy. My time is up. And I think the Chairman is back.
    Mr. Sensenbrenner. [Presiding.] The gentleman from Georgia, 
Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    There are two issues that I am concerned with. One is the 
prosecution being the gatekeeper or the keeper of the file and 
having the unbridled discretion with which to decide whether or 
not to disclose information that might be exculpatory to guilt 
or of impeachment value to the defense. So with that unbridled 
discretion, it means that most failures to disclose evidence 
will never be decided--or would never be discovered because at 
no point during the initial prosecution, the trial, the appeal, 
at no point does the defense have the right to peruse the 
entire prosecution file.
    And I can tell you that this is not the first time this has 
happened. It happens many times. It even happened in a death 
penalty case that I handled out of Georgia, that we got the 
case reversed because the prosecutor used perjured testimony, 
knowingly, knowingly used perjured testimony. This is in a 
death penalty case. So this desire to win at all cost, I am 
afraid is a little more prevalent than we may admit.
    And then my second problem is that whenever it is 
discovered, then nothing happens to the prosecutor. People 
think that lawyers are--you know, make up kind of a good-old-
boy club-type situation, and they are supposed to discipline 
themselves. They don't want another outside force outside of 
the bar to discipline lawyers. And that is why under most State 
bar rules, lawyers have an obligation to--when a substantial 
question as to the lawyer's honesty, trustworthiness, or 
fitness as a lawyer is in question, then they have an 
obligation by their State bar association to disclose that 
information.
    We have a reluctance to disclose misconduct. It is like 
tattling on our club member. And that, if it continues, will 
result in a public demand that the power to discipline lawyer 
misconduct be put in the hands of nonlawyers, and I don't think 
we want that. So we need to be cognizant of our obligation to 
disclose any case where there may be a question about whether 
or not something was untruthful or not.
    Now, as far as a remedy for this situation, upon motion of 
a defense counsel or the State for an in-camera review of the 
entire State's file and a continuing obligation thereafter to 
disclose, all the way through appeal, such information, to 
require that by statute, to require that the court do that by 
statute, is that a workable solution to this first problem that 
I cited about the prosecutor being the unbridled gatekeeper? 
Mr. Baron.
    Mr. Baron. I think it is a nice idea. But I think from a 
practical matter there would be something of an uproar by the 
judges that they don't have the time to be burdened with that. 
And also, they know about a case. They may have had a couple of 
hearings in it, but they don't know the case in depth. So to 
put that burden on them and expect them to be the gatekeeper, 
even though we like the fact that they are neutral, rather than 
a prosecutor who is in an adversarial process, it is a huge 
burden to impose on the courts.
    And I think implicit in your question is, How do we 
legislate integrity? And can we? Because ultimately what we see 
from what Mr. Schuelke found in his report, even if you had had 
open-file discovery, complete access, things never got into the 
file that should have been there. Or 302s, the FBI interview 
form, were edited in such fashion that the exculpatory 
information was left out and the inculpatory stuff was left in.
    So ultimately, even the most prophylactic approach is going 
to turn on the integrity of the people who are serving as 
prosecutors. I think some of these steps might be a step in the 
right direction, but we shouldn't kid ourselves. If what 
happened here--if Mr. Schuelke is right about what happened 
here, this was really pretty terrible. I don't want to put too 
fine a point on this. It is pretty terrible. And prosecutors 
engaged in that kind of conduct, no amount of reviewing the 
file is going to really reveal that, because they were hiding 
things, according to Mr. Schuelke. And that is pretty awful.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentlewoman from Florida, Ms. Adams.
    Mrs. Adams. Thank you, Mr. Chairman. That kind of is very 
bothersome to me as a law enforcement officer.
    You mentioned in your opening statement the breakdown in 
supervision. Would you like to elaborate on that? Would you 
care to elaborate on that a little bit further? I think from 
what you are saying here, there was a definite breakdown.
    Mr. Baron. Yes, of course. I have over the course of my 
career run a number of investigations, some very big ones where 
I had a dozen lawyers and a dozen forensic auditors conducting 
an investigation, and much smaller ones where there were three 
or four of us.
    What seems to have happened here--it was very interesting. 
When Mr. Schuelke was asked to describe what was the 
administrative structure, he started with the trial itself. But 
who was running the show for the 2 years that the investigation 
was going on? When I read the report, I couldn't figure out who 
was in charge, which is kind of shocking and I think can lead 
to all kinds of problems.
    The thing is that even when Brenda Morris was appointed, 
apparently she was appointed the lead prosecutor a few days 
before the indictment came down. Apparently, prior to that, 
according to her submission she made, had basically declined 
several times taking the role of lead prosecutor. I don't know 
why she ultimately accepted, whether she was pressured into it, 
or decided it was a good idea. But in any event, to push 
somebody into that spot was not a good decision.
    But then it gets worse. According to her own testimony, she 
decided that she would, quote, make herself small in her role 
as now the lead prosecutor. That could only make a bad 
situation worse. It is basically saying, even though I am 
accepting the role of lead prosecutor and all the 
responsibility that comes with that, I am not going to exercise 
it. I am not going to do that.
    In the absence of that, all kinds of very bad things 
happen. There has to be a hierarchy when you are running an 
investigation or when you are running a case, because with 
hierarchy comes structure, and with structure comes 
accountability. You can't have people milling around on their 
own making these decisions. You need somebody who steps up and 
says, I am going to lead this, and if things go bad, I am going 
to be responsible for it, and I am going to give everybody 
direction. That didn't happen here. It doesn't excuse the 
misconduct but it helps explain it.
    Mrs. Adams. Thank you. Mr. Wainstein, your specific 
criticism about Mr. Schuelke and the way he conducted his 
investigation, what are they? And his conclusions? What are 
they? What are your specific criticisms about the way it was 
handled?
    Mr. Wainstein. Well, I guess the general criticism is that 
he looked at what were clearly mistakes, very serious mistakes 
made on behalf of the whole trial team. And my client 
participated in those mistakes as well, and was responsible for 
some. He looked at those mistakes. He gauged them as being very 
serious and having a serious impact on the integrity of the 
trial. And I don't take any issue with any of that. But then he 
concluded that they were intentional. And that is the very 
critical thing that I am focusing on here, because in my book, 
if you are--and I think former prosecutors here would all 
agree--if you find a prosecutor who intentionally broke the 
rules, punish him to the hilt. That is it. Throw the book at 
him. Because one bad apple is going to have serious 
implications not only for that person and that person's trial, 
but for the whole Justice Department.
    But that is very different, though, from making mistakes. 
And that is why I wanted to focus--and I think he didn't focus 
sufficiently--on the circumstances that were very difficult for 
these prosecutors that caused them to make the mistakes they 
shouldn't have made, but nonetheless they were inadvertent as 
opposed to intentional.
    Mrs. Adams. Didn't the court give you an opportunity to 
comment on Mr. Schuelke's report and have those appended to the 
report?
    Mr. Wainstein. The report was----
    Mrs. Adams. Did they give you the opportunity, the court?
    Mr. Wainstein. The court gave us the opportunity, after 
announcing the conclusions, to provide a criticism that could 
be appended to the report, but not to provide any input that 
might have any impact on the outcome of the report.
    Mrs. Adams. Did you choose to do so?
    Mr. Wainstein. I submitted a 50-or-so-page memo that we had 
provided before that wasn't even mentioned in the report, with 
a cover memo. And then Joe said his main concern was talking to 
his colleagues and the Attorney General in the Justice 
Department.
    Mrs. Adams. So you submitted that to the courts to have it 
appended?
    Mr. Wainstein. Yes. And that was appended. Yes, ma'am. And 
then we also provided a letter to the Attorney General.
    Mrs. Adams. Okay. Which, if any, of the Brady and Giglio 
violations described in Mr. Schuelke's report do you take issue 
with?
    Mr. Wainstein. Well, I don't take issue with--well, there 
are a couple where he determines it is a Brady violation. And I 
think there is an argument that it is not a Brady violation. My 
criticism is not so much that these were not violations. So if 
you look at it from the perspective of Senator Stevens, he was 
denied a fair process. No question about it.
    My criticism, as I explained earlier, is Mr. Schuelke's 
determination that those violations on the part of Joe were 
intentional. And my point is, no, they were not intentional. 
They were mistakes.
    Mr. Sensenbrenner. The gentlewoman's time has expired. The 
gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I thank the Chairman and Ranking Member 
for this hearing and thank the witnesses for their presence and 
express my deep concern over this question. And I really refer 
to the numbers of individuals who have been released under the 
new premise of DNA evidence, as led by the Innocence Project. 
And the reason why I mention that is because a lot of that has 
occurred in the State of Texas.
    I know that we are looking at a number of different issues. 
But I think the underlying premise, what I want to speak to, is 
when people are convicted wrongly and they are incarcerated 
inappropriately, because of either a lack of expanded evidence, 
an unwillingness to investigate evidence and then, of course, 
not presenting evidence or not sharing evidence.
    So Mr. Wainstein, within the limits of what you can say, 
what is the status of your case, of your client? Where is it? 
Is the case completed? Or are you still in the process of 
defense of this individual?
    Mr. Wainstein. I am actually--I am representing him for 
purposes of the investigation that was conducted by Mr. 
Schuelke. I also happen to be representing him in regard to the 
internal disciplinary process at the Justice Department, and 
that is not completed.
    Ms. Jackson Lee. And is he, or she, presently still a 
functioning prosecutor?
    Mr. Wainstein. Yes. Mr. Bottini, a 27-year AUSA, assistant 
U.S. Attorney, and is in court, going in and out of court every 
day, doing everything from meth cases to--he is doing a case 
involving a militia, members of a militia who threatened to 
kill a Federal judge. So he is still going in there and doing--
--
    Ms. Jackson Lee. So is it in the public domain as to the 
reason--is it in the public domain based upon Mr. Schuelke's 
report why he did not present that evidence? Is that in the 
public domain?
    Mr. Wainstein. Yes. Our submissions to Mr. Schuelke in 
which I explained the reasons why these discovery violations 
happened on the part of Joe, and explained how they were 
mistakes, that is in the public domain. That was released with 
the Schuelke report. So yes, people see that. And hopefully 
people are hearing today that there is another side to the 
story, not just a finding of intentional misconduct.
    Ms. Jackson Lee. And I don't want to litigate your case, 
but I guess since it is in the public domain--Mr. Schuelke's 
report--is the explanation that the paperwork was voluminous, 
that it didn't come to his attention, what is the parameters of 
the explanation of the mistake?
    Mr. Wainstein. Well, there are several different things 
that Mr. Schuelke has accused him of doing wrong. And he did 
make mistakes. He didn't turn over several things that should 
have been disclosed.
    Ms. Jackson Lee. That he was aware of?
    Mr. Wainstein. He was aware of. But one thing he forgot. 
Another thing he made an assessment that it was something that 
didn't need to be turned over. Another thing, he tried to get 
it disclosed but his supervisors wouldn't let him. Seven times 
he said to his supervisors in the Public Integrity Section, you 
have got to get this out. We have got to disclose it. And they 
shut him down. In fact, the section chief supervisor sent him 
an email saying, You work for Public Integrity. These are your 
marching orders. Stand down.'' That is why that information 
didn't get out.
    Ms. Jackson Lee. Without litigating his case here, if I 
just take the parameters or the framework that you have just 
given, I would assume, then, that we look at this question of 
either prosecutorial abuse or misconduct, we need to look up 
the chain and try to understand what supervisors are told and 
what they are not.
    Let me quickly ask: This proposed legislation that has been 
suggested that might clarify Brady material, would that be 
helpful in knowing and having more detailed procedures for 
presenting or finding evidence? Both of you, any of you.
    Mr. Baron. I would say that eliminating the materiality 
requirement for a prosecutor to take into consideration in 
making a Brady or Giglio judgment, I think that is a step in 
the right direction.
    Ms. Jackson Lee. So that means that they would just present 
what they had and you don't have the discretion to say, ``No, 
this is not really relevant. I will keep this.'' Is that what 
you are saying?
    Mr. Baron. Well, as I understand the legislation, the 
prosecutor is not to say, gee, this might help them but I don't 
think it is really material.
    Ms. Jackson Lee. That discretion is taken away. It is 
supposed to be turned over, even though the issue of 
materiality, that is not going to be addressed. You have to 
turn it over if it might be helpful to the other side.
    Ms. Jackson Lee. I think this is crucial in terms of what 
happened to Senator Stevens. And in his death, I apologize for 
what happened. And I hope we can correct this situation. Thank 
you. I yield back.
    Mr. Sensenbrenner. The gentlewoman's time has expired. I 
would like to thank all of our witnesses for their testimony 
today.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward and ask them to respond as 
promptly as they can so their answers may be part of the 
record. Without objection, all Members will have 5 legislative 
days to submit additional materials for inclusion in the 
record.
    Now in closing, let me say that this is probably one of the 
blackest incidents in the history of the Justice Department, 
because by their misconduct they have ruined the reputation of 
a senior United States Senator and probably caused his defeat 
in the election, both by their timing of the indictment, how 
the trial was conducted, the lack of supervision by the Justice 
Department and the like.
    I think culpability here goes beyond the trial team that 
actually prosecuted Senator Stevens. There is plenty of 
evidence that there was a lack of supervision, that the Public 
Integrity Section wanted to get Senator Stevens one way or the 
other.
    And even though some members of the Public Integrity 
Section have been exonerated in the internal review of the 
Justice Department, there has to be a review beyond the Justice 
Department into exactly what happened.
    All of us in law school are reminded that in addition to 
being advocates for our clients, we are also officers of the 
court. And as officers of the court, we have taken an oath to 
attempt to have justice administered fairly and impartially, 
which means that it is based upon all of the evidence and the 
applicable law.
    As one of my colleagues on the panel has indicated earlier, 
I think that this terrible miscarriage of justice warrants the 
investigation of the D.C. bar into whether any of those who 
were involved in this should be disciplined, with penalties up 
to disbarment.
    I don't trust the Justice Department to conduct an 
impartial investigation. We have heard time and time again that 
the marching orders were to win at all cost, and to forget 
about the administration of justice. That is something that is 
profoundly troubling to me and I think to anybody who looks at 
this objectively. I am not saying that any one person should 
possibly be disbarred, but I am saying that the D.C. bar ought 
to look at this away from the old boys' and girls' network in 
the Justice Department, and impose what discipline that is 
warranted on whomever was responsible for what happened in this 
trial.
    This is not the first time the Public Integrity Section has 
gone overboard. We had the case a couple of decades ago of 
former Congressman Joe McDade of Pennsylvania who basically 
spent his life savings and then some to get an acquittal 
verdict from a jury for essentially doing casework for 
constituents.
    So I think that what has to happen here is the message has 
to get out that any prosecutor who does something like this, 
their career and their bar license may be on the line for doing 
something that is outrageous and egregious. I am not a bar 
commissioner. I think that they ought to look at the evidence 
on this. But they ought to look at it.
    So with that, without objection, the Subcommittee is 
adjourned.
    [Whereupon, at 12:12 p.m., the Subcommittee was adjourned.]



                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Addendum to the Prepared Statement of Kenneth L. Wainstein, Partner, 
                   Cadwalader, Wickersham & Taft LLP

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          AUSA Bottini's Submission to the Special Prosecutor

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        Prepared Statement of Sean Bennett, Kalamazoo, Michigan

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