[Senate Hearing 112-943]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-943

             HEARING ON THE SPECIAL COUNSEL'S REPORT 
             ON THE PROSECUTION OF SENATOR TED STEVENS

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

                                 HEARING
			  
			       BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 28, 2012

                               __________

                          Serial No. J-112-69

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                            
                                                        
                          
                            C O N T E N T S

                              ----------                              

                       MARCH 28, 2012, 10:13 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas,
    prepared statement...........................................    27
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    25

                                WITNESS

Witness List.....................................................    23
Schuelke, III, Henry F., of Janis, Schuelke and Wechsler, 
  Washington, DC.................................................     6
    Prepared report not printed due to voluminous nature, 
      previously printed by an agency of the Federal Government, 
      or other criteria determined by the Committee: http://
      legaltimes.typepad.com/files/stevens_report .pdf...........    24

                               QUESTIONS

Questions submitted to Henry F. Schuelke, III, by:
    Senator Grassley.............................................    30
    Senator Hatch................................................    36
    Senator Lee..................................................    37

                                ANSWERS

Responses of Henry F. Schuelke, III, to questions submitted by:
    Senator Grassley.............................................    38
    Senator Hatch................................................    61
    Senator Lee..................................................    62

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, 
  statement......................................................    65
National Association of Assistant United States Attorneys 
  (NAAUSA), John E Nordin, II, President, statement..............   117
National Association of Criminal Defense Lawyers (NACDL), Lisa 
  Monet Wayne, President, letter to Chairman Patrick J. Leahy, a 
  U.S. Senator from the State of Vermont, and Ranking Member 
  Chuck Grassley, a U.S. Senator from the State of Iowa, March 
  27, 2012.......................................................   120
Schuelke, III, Henry F., of Janis, Schuelke and Wechsler, letter 
  to Chairman Patrick J. Leahy, a U.S. Senator from the State of 
  Vermont, March 29, 2012........................................    68
Wainstein, Kenneth L., O'Melveny and Myers LLP, letter to Hon. 
  Eric H. Holder, Jr., U.S. Attorney General, March 15, 2012.....    69
United States Department of Justice, Washington, DC, statement...   109

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government, or 
  other criteria determined by the Committee, list...............   124

Bottini, Joseph W.:
  http://lawprofessors.typepad.com/files/submission-of-joseph-w.-
  bottini .pdf...................................................   124

Goeke, James A.:
  http://lawprofessors.typepad.com/files/submission-of-james-a.-
  goeke.pdf......................................................   124

Marsh, Nicholas A.:
  http://lawprofessors.typepad.com/files/submission-on-behalf-of-
  nicholas-a.-
    marsh.pdf....................................................   124

Morris, Brenda K.:
  http://lawprofessors.typepad.com/files/submission-of-brenda-k.-
  morris.pdf.....................................................   124

Sullivan, Edward P.:
  http://lawprofessors.typepad.com/files/submission-of-edward-p.-
    sullivan.pdf.................................................   124

Welch, III, William M.:
  http://lawprofessors.typepad.com/files/submission-of-william-
  m.-welch-
    iii.pdf......................................................   124

 
 HEARING ON THE SPECIAL COUNSEL'S REPORT ON THE PROSECUTION OF SENATOR 
                              TED STEVENS

                              ----------                              


                       WEDNESDAY, MARCH 28, 2012,

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:13 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 
Klobuchar, Franken, Grassley, and Cornyn.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Chairman Leahy. Good morning. I am glad to see Senator 
Feinstein here and Senator Cornyn, as well as Senator Grassley 
and myself. As you probably know, we have a number of hearings 
going on around the Capitol involving Members of this 
Committee, but this is an area, Mr. Schuelke, that we have had 
a great deal of interest in, as you can imagine. Senators of 
both parties have talked to me about this.
    I have said many times and in a lot of different contexts 
that our criminal justice system is the envy of the world. Our 
constitutional framework provides that all individuals are 
guaranteed the right to fair treatment and a fair trial. But in 
order for our criminal justice system to work, the courts must 
ensure adherence to the rule of law. Defendants have to be 
afforded vigorous and competent counsel. But I feel--and I 
think Senator Cornyn, who is a former prosecutor, also would 
agree--prosecutors bear a very special responsibility in the 
system. They wield so much power when it comes to charging 
decisions--that is, not only to bring a charge but also 
determining when to withhold a charge--plea bargaining, and 
trial. Prosecutors have to uphold the law. They have to adhere 
to the highest ethical standards. They have to seek justice. 
The integrity of our criminal justice system relies heavily on 
prosecutors, and the fact that they want to make sure all 
parties--the State, the defendant, the witnesses, victims, 
whatever else--have to be treated fairly.
    Now, much of the country is focused on the killing last 
month of Trayvon Martin in Florida. This is a matter in which 
the police decided not to bring charges. The local prosecutor 
has since recused himself while a special State prosecutor 
reevaluates the case. Last week, the Civil Rights Division of 
the U.S. Department of Justice announced that it had begun an 
investigation into this matter. I share the President's 
heartfelt feelings and sense that there needs to be a thorough 
investigation that gets to the truth, which is what the 
American people want--the truth.
    Last week, I chaired a Judiciary Committee hearing that 
focused on one pivotal component that supports the integrity of 
our criminal justice system--the importance of collecting and 
retaining critical evidence like DNA that can be used both to 
convict the guilty but exonerate the innocent. One of the 
witnesses at that hearing was the outstanding District Attorney 
in Dallas, Craig Watkins, who has established a team of 
prosecutors dedicated to reevaluating prior cases to make sure 
they were handled fairly. We heard about the extraordinary work 
that he and his Criminal Justice Integrity Unit are doing and 
the works of the judges in Dallas. It is an example and model 
of how prosecutors, judges, and defense attorneys can work 
together to ensure that all criminal defendants receive fair 
trials.
    [The prepared statement of Chairman Patrick J. Leahy 
appears as a submission for the record.]
    Now, what is going to happen today, we are going to talk 
about what went wrong--and I emphasize ``what went wrong''--in 
the trial of the late Senator Ted Stevens. We are going to hear 
testimony from Henry Schuelke--I understand you usually go by 
``Hank.'' Is that correct?
    Mr. Schuelke. Yes.
    Chairman Leahy. He is the Special Counsel appointed by 
Judge Emmett Sullivan to investigate allegations that the 
Federal prosecutors in the Stevens case engaged in intentional 
prosecutorial misconduct by not sharing critical exculpatory 
evidence with the defense. Now, in fairness, I would note that 
Mr. Schuelke's report is accompanied by lengthy rebuttal 
submissions on behalf of those he investigated, which 
challenge, in particular, the evidence of intentional 
misconduct.
    Now, this is a prosecution that took place before the 
election of President Obama and before his appointment of 
Attorney General Holder. In fact, it was Attorney General 
Holder who decided, based upon his own review of the matter, to 
seek to dismiss the indictment and withdrew the case after the 
jury's guilty verdict. The Justice Department has also taken 
recent steps to improve its training of prosecutors and has a 
senior official dedicated to this purpose. The Attorney General 
has sought a thorough internal investigation of what happened 
in the Stevens case started by the Office of Professional 
Responsibility. I have talked to the Attorney General about 
that report. He hopes to make the report public. I intend to 
have this Committee review that report.
    This hearing today is part of our important oversight 
responsibility. Prosecutorial misconduct cannot be tolerated. I 
would not tolerate it when I was a prosecutor. It should not be 
tolerated within our Federal system under any circumstances at 
all. What happened in the Stevens case should not happen again, 
and that should be whether the defendant is prominent or an 
indigent defendant. They should all be treated the same. 
Significant evidence was not disclosed to the defense. Critical 
mistakes were made throughout the course of the trial that 
denied Senator Stevens a fair opportunity to defend himself. 
The sloppiness, mistakes, and poor decisions in connection with 
the Stevens case disturbed the judge hearing the case. They 
also disturb me. And I might say that it disturbs an awful lot 
of the Senators on both sides of the aisle. This is not a 
partisan issue. The Justice Department needs to ensure that 
such a situation is never repeated.
    Day in and day out, prosecutors across the Nation work 
tirelessly to seek justice and protect our communities. They do 
it at the highest standards possible. I speak often of my time 
as a prosecutor in Vermont because I am proud of the dedicated 
public servants--the prosecutors and law enforcement officers--
with whom I had the privilege to work. But in order for our 
justice system to work, good prosecutors know they have to 
adhere without fail to the directive to seek justice for all 
parties, the Government and the defendants, not just 
convictions.
    Senator Grassley, did you want to say something? And then 
we will start with our witness.

           OPENING STATEMENT OF HON. CHUCK GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Yes. Well, obviously, you deserve a big 
thank you for holding today's hearing because this is a very 
troubling matter that warrants more attention than it has 
gotten.
    In his famous speech entitled, ``The Federal Prosecutor,'' 
then Attorney General and later Justice Jackson said, ``The 
prosecutor has more control over life, liberty, and reputation 
than any other person in America. While the prosecutor at his 
best is one of the most beneficent forces in our society, when 
he acts from malice or other base motives, he is one of the 
worst.'' Obviously fitting words for today's hearing as we 
examine the conduct of the Justice Department prosecutors in an 
effort to understand what went wrong in the prosecution of Ted 
Stevens.
    The Government's prosecution of Senator Stevens was 
arguably the highest profile case ever brought by the Justice 
Department's Washington, D.C.-based Public Integrity Section. 
It had consequences far beyond the jury's guilty verdict and 
impacted the Senate election in 2008.
    While all criminal cases should be handled with the utmost 
professionalism, cases of this level of importance and 
publicity--where elections can be swayed--should be shining 
examples of the best of the Justice Department. They should 
have the best prosecutors and the best agents and should be the 
centerpiece of America's criminal justice system. 
Unfortunately, this case appears to be the opposite of the 
ideal.
    According to our witness today, the prosecution of Senator 
Ted Stevens was ``permeated by the systemic concealment of 
significant exculpatory evidence which would have independently 
corroborated [his] defense and his testimony, and seriously 
damaged the testimony and credibility of the Government's key 
witness.'' These are shocking statements that call into 
question the conduct of those involved in this prosecution and 
threaten to resonate further throughout Justice.
    Like so many times before, we owe much of our insight into 
the Department's failures to a whistleblower. FBI Agent Chad 
Joy came forward in January 2009 with allegations of misconduct 
in the investigation of Senator Stevens. While there were 
indicators of failures to turn over exculpatory material 
before, it was Agent Joy's disclosures to the court that 
instigated the investigation.
    According to media reports, Agent Joy is no longer with the 
FBI. And, of course, I hope it is not because he was run out of 
the FBI for blowing the whistle on this prosecution gone wrong. 
He deserves our thanks for having the courage to speak up.
    To its credit, the Justice Department ultimately moved to 
dismiss with prejudice the case against Senator Stevens. To 
Judge Sullivan's credit, he did not ignore the whistleblower. 
He held the prosecutors in contempt of court for the failures 
to turn over exculpatory evidence. He then appointed an 
independent Special Counsel to investigate and prosecute 
criminal contempt proceedings, if appropriate, against the 
Justice Department lawyers involved.
    Mr. Schuelke's report was recently released, on March 15th, 
and Attorney General Holder has publicly stated the report has 
``disturbing'' findings. I think that is an understatement. 
Reading through this report is like reading though a case study 
in poor management. The case was riddled with problems right 
from the start when DOJ sought an expedited trial date. This 
decision, which is not fully explained and something I want to 
know more about, helped put the case on a collision course with 
failure.
    Why would the Department ask for an expedited trial date 
when the review for Brady material had just started and was far 
from complete? From the report details, the Brady disclosure 
problems appear to stem from an expedited timeline, inadequate 
staffing, a lack of a defined chain of command for making 
decisions, and poor supervision.
    Two major disclosure problems were not revealed until after 
the conclusion of the trial: exculpatory information from one 
of the prosecution's witnesses and the withholding of 
impeachment material of the prosecution's star witness, Bill 
Allen. The impeachment evidence is particularly troubling 
because it involves the witness' effort to cover up a 
relationship with a 15-year-old prostitute. It also raises 
questions because the Justice Department later advised State 
and local prosecutors not to pursue child sexual exploitation 
charges against Allen and then dropped any Federal charges. 
This has led to a second investigation at the Department's 
Office of Professional responsibility as to why that 
prosecution was declined.
    In addition to the failures to disclose exculpatory 
material, the case also suffered from a series of questionable 
decisions from the management at Main Justice. For example, 
prosecutors claim that conflicting involvement between the 
Public Integrity Section and the leadership of the Criminal 
Division created an unclear chain of command. They also claim 
that conflicts in personalities developed as a result of 
staffing decisions, decided by senior leadership in D.C.
    Despite these supervisory failures, there is no 
recommendation in the report related to the management of the 
case. I am particularly interested in this aspect because 
management failures such as this are sanctionable conduct by 
OPR.
    It will be interesting to see how this report compares to 
the final product issued by OPR. OPR's report should include 
some review of the management of this case in addition to the 
disclosure failures. The Attorney General should ensure that a 
full, unredacted version of that OPR report is provided to 
Congress.
    At an oversight hearing in November last year, when Senator 
Hatch asked for a copy of the final OPE report, Holder stated, 
``That is up to the people at OPR. What I have indicated was 
that I want to share as much of that as we possibly can, given 
the very public nature of that matter, and the very public 
decision that I made to dismiss the case.''
    Despite the Attorney General's purported desire to make 
this information public, his statement that it is ``up to the 
people at OPR'' leads me to believe we are not likely to ever 
see that report.
    The Justice Department has routinely blocked the release of 
OPR investigations, citing privacy laws and employee rights of 
the attorneys and agents guilty of misconduct. The Attorney 
General ultimately oversees OPR, and if he truly wants that 
information made public, he should order it released upon the 
conclusion of the investigation.
    In the event he does not, the Privacy Act has an exemption 
for Congress, and so, Mr. Chairman, even under the Department's 
tortured reading of the plain text of that statute, I hope as 
Chairman you will be able to obtain the OPR report in an 
unredacted form, and I will be happy to work with you on that 
issue.
    A lot of things went wrong in the prosecution of Senator 
Stevens, and despite this strongly worded report that we are 
discussing here today, it seems nobody has been held 
accountable at the Justice Department. A criminal defendant's 
constitutional right to a fair trial, regardless of who he is, 
is fundamental to our criminal justice system. Yet when those 
rights were intentionally violated by attorneys at the Justice 
Department, it seems no one was held accountable. I find this 
fact even more disturbing than the findings of this report, and 
we have an obligation to hold the Justice Department 
accountable for what went wrong here and prevent it from 
happening again in the future.
    Thank you.
    Chairman Leahy. Well, thank you. And as I noted, we will 
take it one step at a time. The Attorney General deserves 
credit for having the prosecution dismissed, and he deserves 
credit for having the OPR report, and he has told me that we 
will be seeing it. So let us take it one step at a time.
    Today we have Hank Schuelke, who was appointed in April 
2009 by U.S. District Judge Emmett Sullivan as Special Counsel 
to investigate allegations of prosecutorial misconduct in the 
prosecution of U.S. Senator Ted Stevens. Mr. Schuelke filed his 
report with the court November 14, 2011. By court order, it was 
made publicly available 2 weeks ago, on March 15th, accompanied 
by the submission of the six prosecutors who were the subjects 
of his investigation.
    Mr. Schuelke has worked in private practice in Washington, 
D.C., since 1979 when he started his own law firm. Before that 
he served for 4 years in the Army's Judge Advocate General's 
Corps, 3 years as a military judge, 7 years as Assistant U.S. 
Attorney for the District of Columbia, 3 years as Executive 
Assistant U.S. Attorney.
    Mr. Schuelke, please go ahead, sir.

  STATEMENT OF HENRY F. SCHUELKE, III, OF JANIS, SCHUELKE AND 
                    WECHSLER, WASHINGTON, DC

    Mr. Schuelke. Thank you, sir. Chairman Leahy, Senator 
Grassley, Senator Feinstein, Senator Cornyn, good morning.
    I appear this morning at your invitation to address 
whatever questions you might have concerning our report to 
Judge Sullivan on the subject of our investigation conducted 
pursuant to Judge Sullivan's order of April 7, 2009.
    We were ordered to investigate and to prosecute such 
criminal contempt proceedings as may be appropriate against 
William Welch, Brenda Morris, Nicholas Marsh, Edward Sullivan, 
Joseph Bottini, and James Goeke, the Department of Justice 
attorneys responsible for the prosecution of United States v. 
Senator Theodore F. Stevens in the United States District Court 
for the District of Columbia.
    I come before you this morning not as an advocate for any 
position but, rather, to respond to your questions. I have 
submitted to the Committee a copy of our report, which, as 
Senator Leahy has indicated, was filed on the public docket in 
the U.S. District Court on March 15th.
    I should like to note that I was assisted throughout our 
investigation by my colleague William B. Shields and note as 
well that our work would not have been possible without the 
complete cooperation of the Department of Justice at the 
highest levels of the Department and by the Department's Office 
of Professional Responsibility.
    With that, I will be pleased to answer your questions.
    [The prepared report of Henry F. Schuelke, III, is listed 
as a website link in the submissions for the record.]
    Chairman Leahy. Well, thank you very much, Mr. Schuelke. We 
have been joined by another former prosecutor, Senator 
Klobuchar.
    The Supreme Court--I mentioned Brady earlier, and that 
case, Brady v. Maryland, something every prosecutor learns that 
they have a clear constitutional duty to disclose exculpatory 
evidence to a defendant prior to trial. It is a constitutional 
duty. It is also common sense. If prosecutors fail to disclose 
exculpatory evidence, whether intentionally or not, the 
integrity of the whole criminal justice system in my belief is 
diminished. You also end up convicting or have the risk of 
convicting innocent people.
    I mention this because in your report you found that 
information withheld from the defense was, and I quote you, 
``quintessential Brady information.'' Now, tell us what you 
mean by that, and especially how would the trial have been 
different if the prosecutors had disclosed this information?
    Mr. Schuelke. I think, Senator Leahy, that I first should 
describe, at least briefly, the allegations made in the 
indictment against Senator Stevens and the essence of his 
defense. Senator Stevens and his wife, Catherine, in addition 
to their home here in Washington, owned a small cabin in the 
community of Girdwood, Alaska. It was a rustic cabin, which was 
quite agreeable to Senator Stevens, who liked to go fishing 
outside of Girdwood, sit on the porch of an evening, put his 
feet up, and perhaps smoke a cigar. Not so Mrs. Stevens or 
their children or their grandchildren, who found the cabin to 
be in need of improvement.
    And so in 1999, Senator Stevens resolved that he would do 
some kind of a renovation to the cabin, which he jokingly 
called ``The Chalet.'' He was a friend of a gentleman whose 
name is Bill Allen, a self-made entrepreneur who, by 1999, had 
become quite wealthy, and he was the CEO of an oil field 
services and construction company. He was a fishing buddy from 
time to time of Senator Stevens as well. He was conversant with 
the construction industry to some degree, and he certainly knew 
what was available in and about Anchorage, Alaska, in terms of 
contractors.
    Senator Stevens and he met in 1999 in the company of a 
gentleman whose name was Rocky Williams, who was a VECO 
employee. VECO was the name of Bill Allen's corporation. 
Senator Stevens told him that he wanted to do a renovation to 
the so-called chalet. He wanted Allen's assistance in 
identifying a remodeling contractor who might do the bulk of 
the work, and he was interested in having Bill Allen, through a 
couple of his employees, assist as might be appropriate in the 
renovation of the chalet.
    Chairman Leahy. Mr. Schuelke, I do not want to cut in, but 
I am trying to keep each of the Senators to a certain amount of 
time, and I do want you to get to the point of my basic 
question: How would the trial have been different if the 
exculpatory information had been released?
    Mr. Schuelke. All right. One principal example, Senator, I 
told you who Rocky Williams was. Rocky Williams, in effect, 
served as the onsite foreman of the job. The job was performed 
for the most part by a firm called Christianson Builders. The 
Stevenses mortgaged their home in Washington for $100,000, 
liquidated a trust for another $10,000, and spent--for another 
$50,000, rather, and spent an additional $10,000 from savings. 
So they paid Christianson Builders and a couple of its 
subcontractors $160,000 for the cabin which was appraised to be 
worth, after the renovations, $152,000.
    Senator Stevens and his wife, Catherine Stevens, testified 
during Senator Stevens' trial that it was their understanding 
that whatever work Allen's company had provided on the house 
had been included in the Christianson Builders' invoices, which 
they paid in full. That testimony of both Senator Stevens and 
Mrs. Stevens was ridiculed by the prosecutors both in cross-
examination of each of them and in their summations.
    Rocky Williams was interviewed by two of the prosecutors, 
Messrs. Bottini and Goeke, in the company of FBI Agent Chad 
Joy, 1 month before the trial commenced here in Washington. On 
the morning that he was interviewed, another of the 
prosecutors, Edward Sullivan, sent an e-mail to the group of 
prosecutors which said, ``We got some additional documents from 
Senator Stevens' defense counsel. It is apparent from those 
documents that Senator Stevens and Mrs. Stevens will testify 
that they thought that all of the VECO charges were included in 
the Christianson Builders' bills, and if Catherine Stevens does 
not testify, they will try to squeeze that out of Rocky on 
cross-examination.''
    The very day that that e-mail was circulated, Messrs. 
Bottini and Goeke interviewed Rocky. They did not have to 
squeeze that out of Rocky. Rocky told them that, ``Well, back 
in 1999 I met with Senator Stevens and with Bill Allen. Senator 
Stevens wanted us to arrange to find a contractor. He wanted to 
pay for everything, and he wanted to make sure that this was 
done right. And so it was my understanding as the foreman on 
the job that my time as a VECO employee, Dave Anderson's time 
as another VECO employee, and anybody else who worked on the 
job from VECO would be included in the Christianson Builders' 
invoices. And so every month,'' he told them, ``I went and got 
the Christianson Builders' invoice. I checked it to make sure 
it was accurate based on my observations of what their people 
did. Then I took it to the front office at VECO to give to Bill 
Allen, or his secretary if he was not there, so that my time, 
that of Dave Anderson, and other VECO employees could be added 
to the Christianson Builders' bills before they were sent to 
the Stevenses for payment.''
    That was Rocky Williams' account. That was his 
understanding. His understanding was altogether consistent with 
that of Senator and Mrs. Stevens.
    Had Rocky Williams testified as a Government witness, as 
the plan was originally, that is what he would have testified 
to.
    Chairman Leahy. And do you believe that would have made a 
difference in the trial?
    Mr. Schuelke. First of all, I believe that that anticipated 
testimony from Rocky Williams directly corroborated Senator 
Stevens' defense. I believe that it may well have affected the 
outcome of the trial.
    Chairman Leahy. And so this is a fairly serious--well, it 
is a serious allegation. Did you provide the report to the 
subjects of your investigation before it was finalized in order 
to allow them to do any rebuttal on that?
    Mr. Schuelke. Judge Sullivan in November of last year 
ordered that our report be made available to the subjects of 
our investigation, and it was.
    Chairman Leahy. And did----
    Mr. Schuelke. In his order--I beg your pardon, Senator.
    Chairman Leahy. Go ahead.
    Mr. Schuelke. In his order in November of last year, he 
expressly provided the opportunity for each of them to submit 
comments and objections.
    Chairman Leahy. And did they?
    Mr. Schuelke. A couple did. A couple did not. 
Subsequently----
    Chairman Leahy. Did that in any way change your comments, 
in any way change your report?
    Mr. Schuelke. It did not.
    Chairman Leahy. Thank you.
    Mr. Schuelke. But I should add, subsequently, in February 
of this year, when Judge Sullivan ordered that the report be 
made public on March 15th, he provided the subjects yet another 
opportunity to submit comments and objections, which each of 
them did, and he ordered that I append those comments to our 
report, which I did.
    Chairman Leahy. Okay. It was not given to them, though, 
before your report first went to the judge.
    Mr. Schuelke. That is correct.
    Chairman Leahy. And I understand that the attorneys for Mr. 
Bottini, the Assistant U.S. Attorney handling the case in 
Alaska, said that he pressed his supervisor on seven separate 
occasions to voluntarily disclose impeachment information 
regarding the possible subordination of perjury by Bill Allen, 
who was a key Government witness, you said, and the other line 
prosecutor in Alaska, Mr. Goeke, he claims they moved to 
disclosed that. But your report says that Mr. Bottini and Mr. 
Goeke intentionally withheld this information and did not try 
to get it disclosed. So which is it? Did they attempt to get 
their supervisors to disclose information by Bill Allen? Or are 
they not being truthful when they say that on these numerous 
occasions they asked to have it?
    Mr. Schuelke. As our report indicates in great, some would 
say excruciating, detail, Messrs. Bottini and Goeke on a number 
of occasions proposed, indeed urged, the rest of the 
prosecution team that some disclosure be made about evidence 
which was in their possession indicating that their star 
witness, Bill Allen, had suborned a false statement from a 
young woman who was a crack-addicted prostitute with whom she 
claimed to have had sex when she was 15 years old.
    Chairman Leahy. And this exculpatory information was not 
made available?
    Mr. Schuelke. It was not.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. Your report states, ``Were there a clear, 
specific, and unequivocal order of the court which commanded 
the disclosure of this information, we are satisfied that a 
criminal contempt prosecution would lie.'' Ultimately your 
report concluded that no such order existed for Brady or Giglio 
obligations. However, your report states that at a September 
10, 2008, motion hearing, the court ``admonished'' the 
Government to follow the law, meaning Brady, but that no order 
was issued that day. As a result, despite the intentional and 
willful efforts to conceal this material, the prosecutors could 
not be criminally prosecuted.
    Question: The fact that Judge Sullivan did not issue an 
order on September the 10th is arguably the seminal point of 
this matter because it prevents the prosecutors from meeting 
the elements of a prosecution for criminal intent. Had the 
court issued a formal order on September the 10th instructing 
DOJ prosecutors to comply with Brady and Giglio, would you have 
recommended criminal contempt against the prosecutors?
    Mr. Schuelke. I would.
    Senator Grassley. Notwithstanding this technical violation, 
do you believe they should face criminal penalties, including 
jail time?
    Mr. Schuelke. That is not a judgment, Senator Grassley, for 
me to make.
    Senator Grassley. In the course of your investigation, were 
you able to determine what the intent of the prosecutors was 
during the September 10th motion hearing? Did they--well, that 
is the question, but let me continue. Let me start over again.
    In the course of your investigation, were you able to 
determine what the intent of the prosecutors was during the 
September 10th motion hearing? Did they intend to keep Judge 
Sullivan from issuing an order so that they would not be 
subject to possible criminal contempt charges later?
    Mr. Schuelke. They did not. As a matter of fact, at one 
point during that colloquy on September the 10th, Judge 
Sullivan said, ``Well, so what should I do, Madam 
Prosecutor?''--addressing Brenda Morris. ``Should I issue an 
order that you produce any and all Brady and Giglio material?'' 
And the response was: ``If that is what the court wishes to do, 
the court may do so.''
    The court, however, concluded that colloquy on September 
the 10th by saying, ``I am not going to issue an order. I will 
accept the professions of good faith on the part of the 
Government. We all know the law. They tell me they know the 
law. There is no need for me to issue an order compelling them 
to comply with the law. Hints to the wise should be 
sufficient.''
    Senator Grassley. As a result of this case and going 
forward, should all district judges issue formal orders to DOJ 
prosecutors instructing them to comply with Brady and Giglio in 
an effort to ensure compliance and secure the possibility of 
criminal contempt?
    Mr. Schuelke. Well, Senator Grassley, that is one way to 
address the issue. I am not satisfied it is the best way to 
address the issue. You know, I say in the report, during the 
discussion of whether or not Judge Sullivan had issued an 
order, that no district judge ought to be required to order 
prosecutors to comply with their constitutional obligations, 
let alone be required to issue an order so specific that it 
might support a criminal contempt prosecution in anticipation 
of its willful violation. That does not make any sense to me.
    It is true that around the country, at last count of which 
I am aware, some 38 of the 94 districts have standing local 
rules which order the production of Brady and Giglio material 
pre-trial as a part of the overall discovery regimen. That is 
one way to address it. There are judges individually who have 
standing orders in every criminal case to the same effect. And, 
indeed----
    Senator Grassley. I think you have answered my question. 
Let me go on to another question.
    Mr. Schuelke. Yes, sir.
    Senator Grassley. The Stevens case was prosecuted by two 
attorneys--U.S. Attorney's Office Alaska as well as two 
attorneys Public Integrity Section, Main Justice. In fact, the 
U.S. Attorney Office was recused from the case because of 
conflicts of interest. Thus, the Public Integrity Unit in Main 
Justice was in charge of the case with the chief of the section 
and his Principal Deputy significantly involved. They were 
involved in the drafting of the indictment. They prepared memos 
for the leadership of the Criminal Division, and they briefed 
the Division's leadership on the progress of the case. Numerous 
e-mails reinforce the fact that Public Integrity viewed 
themselves as the final authorities. Indeed, shortly before the 
case was to be indicted, the front office of Criminal Division 
at Main Justice made the Principal Deputy, Public Integrity, 
the lead trial attorney. Nevertheless, the report seems to 
minimize the responsibility of Public Integrity for the failure 
of the case. The section chief claims, and the report seems to 
accept, that he was cut out of the supervisory chain of 
command, and the deputy chief claims that she withdrew from 
supervision over the prosecution team because she did not want 
to cause dissension among the team.
    Question: Doesn't the chief of the section that was in 
charge of the case bear responsibility for failures? This was 
perhaps one of the most important cases Public Integrity has 
ever prosecuted, that of a sitting Senator. Why does the report 
seem to avoid a finding of fault against the section chief of 
Public Integrity ultimately responsible for all cases in the 
section? Shouldn't the buck stop with the boss at the top? If 
not, why not?
    Mr. Schuelke. First of all, Senator Grassley, it is not so 
that the report fails to address this issue. The report 
catalogs in great detail the history of the management or 
mismanagement of the case. The report chronicles the fact that 
both Mr. Welch, then the chief of the Public Integrity Section, 
and Brenda Morris, his deputy chief, abdicated supervisory 
responsibility for assorted reasons, some of which you, 
Senator, just recited. So the report did not shirk from 
addressing the failures of management.
    Recall, Senator, that the object of our investigation, as 
chronicled in our report, was to determine whether or not 
criminal contempt proceedings were appropriate with respect to 
any of the named prosecutors. We found no evidence, apart from 
this failure of management, that either Mr. Welch or Ms. Morris 
willfully engaged in any misconduct in the nature of concealing 
Brady or Giglio information from the defense.
    Senator Grassley. This will be my last question because I 
want to keep my colleagues going. The report makes the deputy 
chief of Public Integrity seem hapless and overwhelmed. At 
times she seemed more interested in not ruffling feathers with 
the trial team than aggressively supervising the case.
    As an experienced prosecutor assigned to run the case, 
shouldn't she have risen above the concerns about ruffling 
feathers and done the job she was tasked with? And if she was 
failing, wasn't it the job of her supervisor to fix that?
    Mr. Schuelke. No question.
    Senator Grassley. Okay. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Feinstein.
    Senator Feinstein. Well, thank you very much, Mr. Schuelke, 
for your----
    Mr. Schuelke. Good morning, Senator Feinstein.
    Senator Feinstein [continuing]. Work in this area. Both 
Senator Leahy and I have served on the Appropriations Committee 
with Senator Stevens, Senator Leahy far longer than I, but I 
almost 20 years. So in the course of so doing, you learn a 
little bit about a person that sits on that Committee. So it is 
with a kind of particular shock that we view what happened to 
him, made all the more worse by his premature demise, 
obviously, and the fact that he never knew the result of your 
report, which is a great tragedy.
    But as I understand the Department's policies regarding 
Assistant United States Attorney, a DOJ attorney engages in 
professional misconduct when he or she--and this is a quote--
``intentionally violates or acts in reckless disregard of an 
obligation or standard imposed by law, applicable rule of 
professional conduct, or Department regulation or policy.''
    Do you make that finding in your report?
    Mr. Schuelke. I do not address the disciplinary rule, nor 
do I address the standards that the Department of Justice 
applies. What I did conclude is that in several instances, two 
of the surviving prosecutors engaged in intentional misconduct. 
Therefore, if the Department were to come to the same 
conclusion, or if they concluded that the conduct was reckless, 
they would per force conclude that the lawyers engaged in 
professional misconduct.
    Senator Feinstein. Your report finds that the prosecution 
was troubled by significant mismanagement, specifically the 
lack of supervision, which you point to, of the attorneys 
prosecuting the case and the compressed schedule the 
prosecution was under.
    Did you in any way, shape, or form consider whether the 
failures to disclose evidence were due, at least in part, to 
lack of time or to a misinterpretation or misunderstanding of 
what these disclosure duties entailed?
    Mr. Schuelke. I did, and I found and concluded that there 
were a number of failures to disclose impeachment information 
owing to the compressed schedule, the absence of effective 
supervision, and the fact that a decision was taken to permit 
FBI agents who were not schooled in Brady and Giglio to do the 
Brady-Giglio review. All of those occasions, which in my 
judgment were the product of the failure of management, came to 
light during the trial. They caused Judge Sullivan to have 
grave concerns about the credibility of the prosecution team, 
but they did come to light, and the defense was able to use 
that information.
    Not so with respect to the three episodes about which we 
concluded that there was intentional concealment of exculpatory 
or impeachment information. None of those three, in my 
judgment, was a product of the compressed time schedule or the 
management and supervision failures.
    Senator Feinstein. So what was the motivation?
    Mr. Schuelke. Prosecutors, plaintiffs' attorneys, defense 
attorneys for that matter--I happen to have served as all three 
in the course of my career--like to win. It is what we call 
``contest living.'' We go into a case believing that our case 
is meritorious. We believe that our witnesses are telling us 
the truth. We do not want to have to undermine our case if it 
can possibly be avoided. I think that motive to win the case--
--
    Senator Feinstein. No matter what.
    Mr. Schuelke [continuing]. Was the principal operative 
motive. I do not believe that any of the prosecutors, including 
Mr. Bottini and Mr. Goeke from Alaska, harbored a personal 
animus toward Senator Stevens. I do not believe that either of 
them sought fame and glory and that is the reason they wanted 
to win the case. That is just not in their personalities, in my 
judgment. They did, however, want to win the case.
    Senator Feinstein. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. I would just remind everybody listening 
that no matter how much a prosecutor might want to win, we 
still have the Brady case, and we have their responsibility to 
disclose exculpatory information. A prosecutor--and I can say 
this as one who was. A prosecutor has a unique position in the 
system. They are not just there to win.
    I understand what you are saying about wanting to win, but 
they are not just there to win. They are there to make sure 
that justice is done.
    Senator Cornyn, speaking of prosecutors, a former Attorney 
General and Justice.
    Senator Cornyn. Mr. Schuelke, the Constitution, the 
integrity of our adversarial system of justice, and the rules 
of professional responsibility that bind members of the bar, as 
these prosecutors were, all depend upon prosecutors observing 
some goal above and more fundamental than just a desire to win. 
Wouldn't you agree?
    Mr. Schuelke. Absolutely.
    Senator Cornyn. Mr. Chairman, I would ask on behalf of 
Senator Murkowski--she has a statement that she would ask 
unanimous consent to be put in the record, and I have one as 
well that I would like to have put in the record.
    Chairman Leahy. Absolutely. And I told Senator Murkowski of 
course we would include anything she wanted.
    [The prepared statement of Senator Murkowski appears as a 
submission for the record.]
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Senator Cornyn. Mr. Schuelke, you have performed a profound 
public service. Thank you for that. And I know it continues 
here today. The thing that disturbs me so greatly is not that 
this prosecution involved a United States Senator, because I 
doubt we would be having this hearing if it involved a citizen 
who was not a United States Senator. And that disturbs me 
greatly because I know the resources that you and the court 
have put into this investigation, and I doubt those sorts of 
resources, that time and that effort, would be put into an 
investigation involving similar abuses involving the 
constitutional rights of other citizens accused of crimes but 
whose rights were violated by the prosecutors by prosecutorial 
misconduct.
    Do you share those concerns?
    Mr. Schuelke. To a degree. The Judge Sullivan whom I know 
would have done the same thing no matter who the defendant was.
    Senator Cornyn. And I appreciate that and appreciate what 
Judge Sullivan has done here, particularly allowing the release 
of this report unredacted. And I hope the Office of 
Professional Responsibility report will be released to us in 
full in unredacted form so we can get to the bottom of this.
    Of course, one of the prosecutors in this case did not have 
an opportunity to respond to your report. Nicholas Marsh 
committed suicide, did he not?
    Mr. Schuelke. He did, although his counsel was invited to 
submit a response and did so as a representative of Mr. Marsh's 
estate.
    Senator Cornyn. The Justice Department has told us that the 
Stevens case does not suggest a systemic problem with regard to 
prosecutors abusing their responsibilities to divulge 
exculpatory and other information required under Brady and 
Giglio. How can we possibly be satisfied with that 
representation? And how do we know? How does any citizen know 
that the Department of Justice will not abide similar 
prosecutorial misconduct in the future?
    Mr. Schuelke. First of all, I do not believe on the basis 
of our investigation that what happened in the Stevens case is 
representative of what happens in cases brought by the 
thousands across this country by the Department of Justice.
    Second, as Senator Leahy indicated at the outset, it was, 
of course, the Attorney General, Eric Holder, who moved that 
the Stevens case be dismissed with prejudice when he learned of 
a portion--a portion--of the nondisclosure which had occurred 
in the case.
    Eric Holder did not shirk from that responsibility. I know 
Eric Holder both personally and professionally and have for 
years, likewise his deputy Jim Cole; likewise the Assistant 
Attorney General of the Criminal Division Lanny Breuer. They 
are men of probity and integrity. And I do not believe, the 
Stevens case notwithstanding, that the public should labor 
under the notion that what happened in the Stevens case happens 
as a matter of course.
    Senator Cornyn. Well, Mr. Schuelke, I agree with you that 
the Attorney General is entitled to credit for after the fact 
raising this issue with the court and seeking the dismissal of 
the charges. Unfortunately, the damage to Senator Stevens and 
to the adversarial system of justice had already been done, and 
there is nothing the Attorney General or anyone else can do to 
undo it. And so I know you--well, let me just ask you, in 
conclusion, since time is short here. In those instances where 
the character and integrity and professional responsibility of 
a prosecutor do not seem to overcome their desire to win at any 
cost, is there anything that Congress can or should do or is 
there any further action that you would recommend that we take 
in order to make sure that abuses like this do not occur? 
Because I worry that when they do sometimes occur--and I agree 
with you that in the main, prosecutors are honorable people who 
perform their responsibilities with integrity. But in those 
instances where they do not and where they intentionally 
withhold this kind of information, as you said these 
prosecutors have, how do we protect the integrity of our system 
of justice? How do we protect the reputation of people who are 
wrongfully convicted when this information is withheld? How do 
we protect our Constitution?
    Mr. Schuelke. I do have a view on this subject, Senator 
Cornyn. As you know, the Supreme Court of the United States as 
well as the circuit courts around the country have long 
articulated an appellate standard of review of Brady 
violations. By that standard, the Court will not reverse a 
conviction even in the presence of the concealment of 
exculpatory information unless the Court is able to conclude 
that that concealment was outcome determinative; that is to 
say, that it was material to the conviction and was so material 
to the conviction that it would leave one without confidence in 
the guilty verdict.
    So we have this appellate materiality standard, which makes 
perfect sense to me, from the post hoc perspective of an 
appellate court. Because that standard has been articulated 
over the years, prosecutors take the view pre-trial that they 
are only required to disclose what they believe to be material, 
that is, which might ultimately have an adverse effect on the 
outcome.
    Judge Paul Friedman of the district court here in 
Washington, in a recent, fairly publicized case called 
Safavian, addressed this issue and said, no, it is not the 
prerogative of the prosecutor--one of the adversaries, of 
course, in this proceeding--to decide before a single witness 
has been called to testify, before a jury has been empaneled, 
before the judge has ruled on the admissibility of any piece of 
evidence, that some exculpatory or impeachment information will 
not be material. That is looking, Judge Friedman said, at the 
subject through the wrong end of the telescope. He is 
absolutely right about that, in my judgment. That makes perfect 
sense.
    So I believe the question for the Congress may be squarely 
presented. Need we do something about eliminating this 
materiality requirement so that prosecutors understand that in 
the pre-trial setting they are required to disclose any 
information which is favorable to the accused or which would 
serve to impeach anticipated Government witnesses?
    I know that the Department of Justice has a strong contrary 
view, namely, that there should not be legislation to achieve 
this objective. Rather, the Department, through the U.S. 
Attorney's Manual and through guidance issued by then Deputy 
Attorney General David Ogden in December 2010, largely inspired 
by the Stevens case, issued guidance which directs the 
prosecutors to disclose information that is impeachment or that 
is exculpatory regardless of the materiality standard in most 
cases, recognizing and specifically stating that what we are 
saying in this policy statement is we are going to have 
prosecutors go beyond the requirement of the law.
    Chairman Leahy. Thank you.
    I am going to include the following submissions of the 
Committee in the hearing record: written testimony of the 
Department of Justice; a letter from the National Association 
of Criminal Defense Lawyers on Discovery Reform; a letter from 
Attorney Ken Wainstein to Attorney General Holder raising 
process and substantive concerns about the report of the 
Special Counsel. Without objection, they will be in the record.
    [The information referred to appears as submissions for the 
record.]
    Chairman Leahy. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    This is a pretty awful hearing, frankly. I mean, it is of 
high quality and thank you for holding it and thank you for 
your work, but this is some pretty awful conduct by the 
prosecutors, I think, just appalling.
    I just want to ask a couple questions about--and you have 
just been talking about this--how to get at fixing these kinds 
of problems. One thing I would like to know, first of all, do 
you think that what the prosecutors did is--you know, is it 
illegal? Or do you think that we need to change the law? Or do 
you think what they did was already illegal?
    Mr. Schuelke. I think what occurred in this case in a 
number of instances was in violation of an obligation imposed 
by the courts.
    Senator Franken. Right, thus?
    Mr. Schuelke. Interpreting the Constitution. And so using 
your term broadly, I would have to say it was illegal.
    Senator Franken. Okay. Let us talk about what you were 
talking about in terms of Brady violations and what to do about 
this.
    Mr. Schuelke. Yes, sir.
    Senator Franken. You are talking about maybe taking out the 
``material'' part and just say anything that is exculpatory a 
prosecutor would have to reveal. Is there any kind of 
possibility--and I understand that the Justice Department does 
not want to do that because they are afraid that it will scare 
of witnesses who think that anything that they have ever done 
will have to be--you know, a witness against a defendant, that 
anything negative about them will be exposed in court and make 
people much more reluctant to testify in court. That is one of 
the fears of the Justice Department, is it not?
    Mr. Schuelke. It is, and that is a legitimate concern.
    Senator Franken. Okay. So instead of rewriting the law so 
that the prosecutor has to reveal all exculpatory, anything 
that could possibly be exculpatory, even if in their opinion it 
is not material, is there any kind of process that could be set 
up as a reform for this system where a prosecutor could get an 
advisory opinion about--an independent advisory opinion about 
evidence that presents a close call under Brady?
    Mr. Schuelke. When you say ``independent,'' you mean 
outside of the Department of Justice?
    Senator Franken. Either outside----
    Mr. Schuelke. The Department of Justice has an office, the 
Professional Responsibility Advisory Office, known as PRAO, 
which is there to entertain questions about the application of 
the disciplinary rules of the bar to the conduct of 
prosecutors. As a matter of fact----
    Senator Franken. I mean, in other words, if a prosecutor 
had a question about a Brady matter, is there either that board 
or--I guess you cannot go to the judge?
    Mr. Schuelke. You can.
    Senator Franken. Can you go to the judge?
    Mr. Schuelke. You can. If I had, were I again a Federal 
prosecutor, and I said to myself, ``Hmm, I have got this piece 
of evidence here. I am not so sure whether I have to disclose 
this.'' Well, first of all, I was taught when I was a young 
Assistant U.S. Attorney, if I had to think about that for more 
than 10 seconds, turn it over. But if I did not, I could go to 
the trial judge ex parte----
    Senator Franken. You can do an ex parte meeting with----
    Mr. Schuelke. Make a submission to the judge in camera, 
say, ``This is what I have. I do not know whether I am 
obligated to turn this over or not. There are reasons, in my 
view, why perhaps I should, but there are reasons why I should 
not. You, Your Honor, decide. You are the neutral magistrate.''
    Senator Franken. Well, that is kind of what I meant. You 
can go to the judge.
    Mr. Schuelke. Yes, that is available, although, as you 
might well imagine----
    Senator Franken. Because, pardon me, I am not a lawyer. I 
just played one in a sketch on TV.
    [Laughter.]
    Mr. Schuelke. And I think you did a pretty good job.
    Senator Franken. Thank you. Thank you. So that kind of ex 
parte meeting with a judge is cool, is fine, it is okay, it is 
kosher?
    Mr. Schuelke. It is.
    Senator Franken. Thank you.
    [Laughter.]
    Mr. Schuelke. All of the above.
    Senator Franken. Okay. So maybe in the law, if we are 
changing the law here, there could be--and the Justice 
Department has a legitimate, meaningful objection to all 
exculpatory evidence, even if it does not seem material, having 
to be disclosed to the defense, then perhaps there could be 
some process written into the law saying if you have any 
question, you have got to go to the judge, and if you did not 
go to the judge on something, you have got a big problem.
    Mr. Schuelke. Yes. Yes, that could be done.
    Senator Franken. Okay. Thank you. I am done with my time.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Mr. Schuelke, thank you.
    Mr. Schuelke. Good morning, Senator.
    Senator Durbin. Thank you for your testimony. Judge 
Sullivan stated, and I quote, ``The prosecutorial misconduct 
that permeated the proceedings in this case'' were to a degree 
and extent that he had not seen in 25 years on the bench. I 
assume that is why Attorney General Holder took the commendable 
but rare step of seeking dismissal of the case and not 
attempting to retry it. But there are some exceptional reasons 
why we are meeting today.
    This was a high-profile case involving a United States 
Senator, one of our colleagues. That Senator had some of the 
best legal talent on his defense team, experienced attorneys 
from a prominent Washington firm. An extremely conscientious 
judge presided over this case and took the rare step of 
appointing an independent investigator, yourself, who issued a 
500-page report. And there was an FBI agent in the case who 
allegedly spoke out as a whistleblower and raised allegations 
of misconduct by the Government's prosecutorial team.
    In short, this was the furthest thing from the everyday 
criminal trial world that is going on even as we meet. What is 
at stake, though, the principle of law, the constitutional 
principle, applies equally to cases of celebrity and notoriety 
as it does to those that are commonplace by comparable 
standards.
    When I heard about your report and came to understand what 
your conclusions were, I challenged the Department of Justice 
and said, ``Now what? Now that you know this has taken place, 
what can you do, what will you do to make certain that it is 
less likely in the future?'' And the answer was, ``We have 
learned our lesson.''
    Pardon my skepticism, but I am not sure, because of what 
you referred to earlier as contest living, that we will ever 
avoid that inclination of attorneys in court--and I was one 
many years ago--to do their darnedest to proceed to the outcome 
they are looking for.
    So my question to you--I have two. One relates to what 
Senator Franken asked. If what happened in this case by the 
prosecutors was, in fact, illegal, was it the commission of a 
crime, failing to disclose what should have been disclosed in 
evidence under the Brady rule?
    Second, if we are really serious about avoiding this in the 
future, don't we have to go further than to trust the instincts 
of the Department of Justice and prosecutors across America? 
Don't we have to enshrine in the law some basic protection of 
the criminal defendant when it comes to this disclosure?
    A bill has been introduced by one of our colleagues. I am 
not sure if you are aware of it.
    Mr. Schuelke. I am.
    Senator Durbin. She talks about exceptions when it comes to 
this disclosure relating to witness safety and national 
security and the like, but really puts a standard that goes to 
the case you cited--Safavian, I believe?
    Mr. Schuelke. Yes, sir.
    Senator Durbin. And says that we are going to basically 
assume everything is material until proven otherwise or the 
court notes otherwise.
    So if you would address those two issues: One, if illegal, 
what specific crime did these prosecutors commit? And, second, 
if there is a lesson to be learned here, should this lesson be 
written into the law so that the faceless criminal defendant 
who may not get a Senate Judiciary Committee hearing has the 
same protection?
    Mr. Schuelke. First, Senator, as my report describes, had 
Judge Sullivan issued a clear and unequivocal order that the 
prosecutors produce all Brady and Giglio material, there would 
have been a crime committed, criminal contempt with respect to 
those episodes described in our report as to which we concluded 
the conduct was intentional. Beyond that, there is a footnote 
in our report which says that we offer no opinion as to whether 
or not a prosecution for obstruction of justice might lie 
because that is not within my prerogative.
    As a matter of fact, the separation of powers doctrine 
would preclude a lawyer investigator appointed by the court 
from bringing such a charge.
    Senator Durbin. I am sorry to interrupt you, but what you 
are saying is, unless there is an express violation of a court 
order, that you do not believe a prosecution for obstruction of 
justice would lie----
    Mr. Schuelke. No, that is not what I am saying, Senator.
    Senator Durbin. Please clarify it.
    Mr. Schuelke. In the absence of an express order, a 
prosecution for criminal contempt will not lie. Whether or not 
the self-same conduct violates the obstruction of justice 
statutes and whether under the U.S. Attorney's Manual a 
prosecution for that offense on this conduct would be 
appropriate is not a decision for me to make.
    Senator Durbin. I have gone beyond my time, but if you 
could address the second part, whether we should seriously 
consider creating a statute which specifies the protection 
which you have articulated was denied Senator Stevens and 
should be given to all criminal defendants under Brady.
    Mr. Schuelke. I believe you should consider legislation 
which eliminates, as I explained earlier, the so-called 
materiality requirement. I know that Senator Murkowski's bill 
does that. It does a lot of other things as well about which I 
am not prepared to express a view at this moment.
    The Department--I know, because I saw their statement 
yesterday--has submitted to the Committee a lengthy statement 
describing what they have done in the wake of the Stevens case, 
which is quite impressive, in my view. They explain as well, as 
I said earlier, that as a matter of policy their prosecutors 
are instructed not to make distinctions based on the 
materiality issue.
    That policy, however, has an express disclaimer. This does 
not have the force of law. It vests no rights in anyone. I 
understand why that is so with respect to the policy.
    My question is: If the Department believes that there 
should be no pre-trial materiality standard--because that is 
what they are telling their prosecutors now to do--what is the 
principled reason for opposing legislation that does just that?
    Chairman Leahy. Thank you very much.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    I, having been both United States Attorney and the Attorney 
General for my State, tend to lean toward an open file rule. I 
think that there are obvious exceptions to the open file rule, 
witness safety being preeminent. Very often these are 
particularly dangerous individuals who would like nothing more 
than to murder witnesses. National security would be another 
important consideration. Not disclosing or disrupting or 
impeding an ongoing investigation would be another. And a 
general protection against unwarranted invasions of 
individuals' privacy would all seem to make sense and would all 
seem to be subject to a reason check and balance if there were 
a proceeding with the judge, ex parte where it was appropriate 
in a national security/witness safety matter. And it would sort 
of put the prosecution through its paces.
    I think that with those protections, less is likely to go 
wrong than in prosecutions that are based on a hide-the-ball 
strategy, which I think is the wrong way to go about making 
cases.
    So I am speaking in part to you, Mr. Schuelke, but I am 
speaking really through you to the Department to urge them to 
take a serious look at this, not just to push back because it 
is new or different, but to see what systemically can be done 
about this. And there are two messages that I have. As somebody 
who was in the Department and I consider myself a friend of it, 
there is, I do not think, a place in the Government that I 
admire more than the Department of Justice. But that does not 
mean that there is not occasional room for improvement. And I 
worry sometimes that, in addition not necessarily having the 
rule be right, when something does go wrong, it appears that 
there are times when there can be a bit of a lean, shall we 
say--L-E-A-N--in favor of the Department attorneys who 
violated--assuming that they did--the provision.
    I just want to raise something that I have raised over and 
over again with the Department and take this opportunity to 
flag it yet again. This goes back to the Office of Legal 
Counsel opinions on torture in which the Office of Legal 
Counsel failed to cite a circuit court decision, Circuit Court 
of Appeals of the United States, that looked exactly at the 
type of conduct that was involved--waterboarding; described it 
very clearly, and described it--I do not remember my count 
right now, but 10 or 11 times in the decision--as torture. And 
the OLC opinions never mention the case. They go on for pages, 
they go on for dozens of pages. They never mention the case.
    What concerns me about that is that when the Department 
went back to look at it, the investigation concluded with a 
memorandum by--I think he is retired from the Department now--
David Margolis, the Margolis memo, which said that the lawyers 
at the Office of Legal Counsel were not to be held to the 
standard that a regular, ordinary ham-and-egg lawyers hauling 
the files under his arm into the district court is in terms of 
the standard required for candor to the tribunal.
    So, again, I am speaking through you, Mr. Schuelke, to the 
Department, but that continues to leave a sour taste with me. 
It does not make sense to me that the Department lawyers at the 
Office of Legal Counsel, which is probably the highest and most 
talented part of the legal profession in Government, outside of 
the Supreme Court itself, should not have to meet the standard 
of the day-to-day workaday trial lawyer appearing before a 
judge, particularly where the process for the candor to the 
tribunal standard is a pretty open one. There are checks on it. 
There is the other counsel who can say, ``Your Honor, he forgot 
to tell you the case on point,'' or the judge and his clerk who 
look it up and come back to the lawyer and say, ``Counselor, 
how could you not have told me about the case on point that 
comes out of the circuit court of appeals.''
    The OLC does not operate that way. It is much more 
secretive, particularly when it is a classified hearing. So I 
think, if anything, the standard for OLC lawyers should be 
higher than the standard for a regular, workaday lawyer going 
before a tribunal, not lower. And I am going to continue to 
press on that Margolis memo because I think it is wrong to hold 
those Department lawyers to a lower standard than workaday 
lawyers outside of the Department. And I flag that because I 
think it is very important that the Department make clear not 
only that it gets the rules right and follows the rules, but 
also that when there are violations it is clear that there is 
no hesitancy to come down on people who have violated those 
very important rules.
    So, Mr. Chairman, that is more in the nature of a statement 
than a question for Mr. Schuelke, but I wanted to make sure 
that those points were clear to the Department of Justice and 
my concerns about them were clear to the Department of Justice, 
which I will conclude by saying again is perhaps the 
organization in the U.S. Government that I am proudest of. I 
think it is a wonderful organization, and I do not want to 
gainsay that with these two very specific concerns.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, and we will wrap up rather 
quickly here.
    You concluded that line prosecutors intentionally withheld 
the information. Did you give consideration to the evidence 
that they sought approval to disclose impeachment evidence but 
were told not to by leadership of the Public Integrity Section 
of the Department of Justice?
    Mr. Schuelke. I did.
    Chairman Leahy. Thank you. And does the leadership of the 
Public Integrity Section bear some responsibility for what 
happened in the Stevens case?
    Mr. Schuelke. It bears responsibility for failing its 
supervisory responsibility to know all of the operative facts 
before they pass on a decision.
    Chairman Leahy. Okay. And what did you conclude about the 
role of the Criminal Division and its then Acting Assistant 
Attorney General Matthew Friedrich in terms of managing the 
case, including what you suggest was the Department's failure 
in your judgment to satisfy discovery obligations?
    Mr. Schuelke. I think Matthew Friedrich--and I say so in 
the report--quite sensibly and understandably took an interest 
in this high-visibility prosecution of a senior sitting United 
States Senator. It would, in my judgment, be----
    Chairman Leahy. And a member of the same party as----
    Mr. Schuelke. The administration.
    Chairman Leahy [continuing]. The administration that was 
prosecuting him.
    Mr. Schuelke. Indeed. So, in my view, it would be 
completely counterintuitive if the Assistant Attorney General 
for the Criminal Division had not taken a serious interest in 
the matter. I think, however, as we also say, that 
paradoxically that sensible interest to supervise and make sure 
things were done right put in place a prosecutor to serve as 
lead counsel whom he thought was better equipped than the 
existing team of prosecutors, contributed to the morale 
problems, contributed to Brenda Morris having decided, 
``Because they put me in here and created all these morale 
problems, I do not want to make anybody any more unhappy, so I 
am going to make myself as little as possible,'' as she put it, 
``and I am just going to my job, I am going to cross-examine 
witnesses, I am going to make closing arguments, and I am going 
to trust what the rest of them tell me about what the state of 
discovery is.''
    Chairman Leahy. Well, I have great concerns about this 
case, as you can probably gather. I am trying to be as 
objective as I can in getting information. We will have the OPR 
report, and we will go into that when it comes. I agree with 
Senator Whitehouse. Some of the finest men and women that we 
have in this country are those who work in the Department of 
Justice and are prosecutors and others there. But this one 
bothers me greatly, not the least of which I knew Ted Stevens. 
In my more than 30 years of knowing him, I never knew him to 
break his word. I never knew him to tell me something that was 
not accurate and true. And for full disclosure, I had that kind 
of a personal relationship with him. I thought the world of him 
and assumed that, for whatever time I would be in the Senate, I 
would be serving with him. We traveled together. In fact, I had 
told his attorney that I would be willing to testify. While I 
could not testify to the facts of the case, I could testify to 
the fact that he was always totally honest with me.
    As Chairman of this Committee, though, and one with 
oversight of the Department of Justice, and while I realize 
this happened with the last Department of Justice, not the 
current one--and I do agree with your assessment and your 
statement of approval of Attorney General Holder in dismissing 
this case. We have both known him for a lot of years before he 
was Attorney General, and I have a great deal of respect for 
his ability. I am concerned about what happened. It happened 
here.
    I also want to make sure, as others have suggested, that 
this not happen if it was Ted Smith who nobody would know, and 
that is why I have had my Innocence Protection hearings and 
others. I think the prosecutor is in many ways the most 
important person in the whole criminal justice system, even 
more so than the judge in many ways, because the prosecutor can 
determine not to bring a case as well as to bring one. That is 
enormous power. If it is exercised appropriately, the whole 
population is protected; improperly, the whole system is 
damaged. So that is why I am holding these hearings and why I 
have stayed through the whole hearing.
    Mr. Schuelke, I thank you very much for----
    Mr. Schuelke. If I may, just as----
    Chairman Leahy. Of course.
    Mr. Schuelke [continuing]. A point of personal privilege, I 
should like to say that, like Senator Whitehouse, I am a proud 
alumnus of the Department of Justice. This is a sad story. I 
take no joy in having had to come to these conclusions. I hope 
I never have to do it again.
    Chairman Leahy. Well, I will concur in that. I am proud to 
be a lawyer. When people ask me what my occupation is, I say 
lawyer before I do U.S. Senator. I am very proud of that. I was 
proud of being in private practice. I was proud of being 
State's attorney, district attorney, and I was proud to be 
picked as one of the three outstanding prosecutors in the 
country 1 year. Whether deserved or not, I will not judge, but 
that is probably the early thing that will be on my biography 
someday.
    Thank you very much.
    Mr. Schuelke. Thank you, Mr. Chairman.
    [Whereupon, at 11:40 a.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

               Prepared Report of Henry F. Schuelke, III

   Prepared report not printed due to voluminous nature, previously 
   printed by an agency of the Federal Government, or other criteria 
                      determined by the Committee:
        http://legaltimes.typepad.com/files/stevens_report.pdf
        
 [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

            
                 Additional Submissions for the Record

A list of material and links can be found below for Submissions for the 
 Record not printed due to voluminous nature, previously printed by an 
 agency of the Federal Government, or other criteria determined by the 
                               Committee:

    Bottini, Joseph W.:
        http://lawprofessors.typepad.com/files/submission-of-joseph-w.-
        bottini.pdf

    Goeke, James A.:
        http://lawprofessors.typepad.com/files/submission-of-james-a.-
        goeke.pdf

    Marsh, Nicholas A.:
        http://lawprofessors.typepad.com/files/submission-on-behalf-of-
        nicholas-a.-
        marsh.pdf

    Morris, Brenda K.:
        http://lawprofessors.typepad.com/files/submission-of-brenda-k.-
        morris.pdf

    Sullivan, Edward P.:
        http://lawprofessors.typepad.com/files/submission-of-edward-p.-
        sullivan .pdf

    Welch, III, William M.:
        http://lawprofessors.typepad.com/files/submission-of-william-
        m.-welch-
        iii.pdf

                                 [all]