Special Prosecutor: DOJ Attorneys Cannot Be Charged With Criminal Contempt Because They Were Not Ordered To Comply With Legal and Ethical Rules

The Justice Department is infamous for conducting long investigations of its own attorneys and finding no grounds for criminal charges as in the dubious investigation of attorneys involved in the torture program. Now, a special prosecutor has found that (surprise) there is no basis for criminal charges against Justice Department officials who concealed evidence in the prosecution of former U.S. Sen. Ted Stevens in open contempt of court. The reason is something only found plausible in the Justice Department’s review of its own conduct: U.S. District Judge Emmet Sullivan failed to order them not to conceal evidence and comply with ethical rules. I kid you not.

Henry F. Schuelke III believes that it is necessary for Justice officials to be formally ordered to act in a lawful and ethical matter for there to be a basis for criminal contempt. He basically blames Sullivan for never explicitly demanding that the government comply with legal and ethical rules in turning over exculpatory evidence in the political corruption case. Judge Sullivan offered a rather obvious, and one would think sufficient, reason for not issuing such an order: “Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law.” I have been laboring under the same illusion that we were all subject to legal and ethical rule without a formal order from the court. While there is certainly room to debate whether criminal sanctions should apply, this is a rather shocking reason.

Criminal contempt charges against the prosecutors were not called for, Schuelke found, because Sullivan never explicitly demanded, in a court order, that the government comply with their legal and ethical obligations concerning the revelation of exculpatory evidence to those defending the Republican senator from Alaska in the political corruption case.

“Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law,” Sullivan wrote, explaining his rationale for not explicitly ordering the government to provide exculpatory evidence to the defense.

Schuelke a former Justice official who served for seven years as an Assistant United States Attorney for the District of Columbia, including three years as Executive Assistant United States Attorney.

The report will be made public after the Justice Department reviews it. However, the premise of the report is an outrage and should shock the conscience of every lawyer. It would suggest that Justice Department lawyers can act in flagrant violation of ethical and legal rules absent an order directed at them by the court and that courts must now issue such orders to every attorney if they want to enforce basic rules of practice and ethics.

So, these lawyers will not be held in contempt despite the finding (as detailed in the order below) that the investigation showed a case “permeated by the systematic 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.”

The criminal conduct provision does not speak to such requirements:


18 USCS § 401

§ 401. Power of court

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as–
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

In Cooke v. United States, 267 U.S. 517, 534 (1925), the Supreme Court reviewed a criminal contempt sanction for a lawyer who sent a “contemptuous” letter to a federal district judge. The Court affirmed the power of the courts to summarily find an individual guilty of criminal contempt if the misconduct at issue occurs “directly under the eye or within the view of the court” where the court may proceed “upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender.” Otherwise, the Court mandated that due process rights were required for a full hearing on the basis for the charge. Here, the investigation appears to confirm the knowing concealment of evidence from both the defendant and the Court. Thus, recently a criminal contempt sanction against a private attorney was upheld for simply using a vulgarity in court, but the systemic concealment of evidence to deprive a person of his rights is viewed as outside the rules unless they are ordered to act ethically. See In Re Sealed Case, 627 F.3d 1235 (D.C. Cir. 2010).

For the record, I am co-lead counsel in the World Bank case (Chang) which involves allegation of the concealment and destruction of evidence by the District of Columbia.

Here is the order: sullivanordernov21

Source: ABA Journal

40 thoughts on “Special Prosecutor: DOJ Attorneys Cannot Be Charged With Criminal Contempt Because They Were Not Ordered To Comply With Legal and Ethical Rules

  1. I had a similar experience in a court proceeding. The prosecutor, the elected one refused to comply with discovery demands. When the case was reset for the 4th time and still had not complied. I asked for the ultimate sanction of contempt and dismissal, the judge looked at me and said show me in the court rules where I have the authority, I did. He then stated that since he did not usually handle cases he was going to adjourn it for another 2 weeks. It was a drug case and they were hoping my client would roll. We held our grounds and eventually after 2 years it was dismissed.

  2. Yet another instance of the utter lawlessness engulfing our nation. This is a powerful elite protecting their own. Law means nothing to them. Every day we see what the destruction of the rule of law brings.

    I cannot stress enough that we the people should refuse to accept this behavior on the part of the incompentsia and their paid lackeys in the US govt. OWS is completely correct in the belief that we cannot count on the lizard overlords to restore the rule of law. The people must do this.

    If you’re not outraged, you’re not paying attention!!!

  3. Arthur,

    I love that!!!

    I also hope Obama hears about the extreme police brutality in the US! He seems to have heard about it in Egypt but it must have escaped his notice in the US. Here’s the WH on Egypt: “As the Egyptian people shape their future, the United States continues to believe that the rights of minorities — including Copts — must be respected, and that all{*} people have the
    universal rights of peaceful protest and religious freedom.” *all people does not mean US citizens-all is a registered trademark word of the administration and only refers to people when “all” is convenient to the administration!

  4. ARE,

    Exactly but not likely….I see Obama as more of a Bush clone than anything else…and hell…so long as Haiilburton and KBR are still on the US payroll Cheney is in charge as well….

    I think it is all too ironic that Bush was able to do to his most ardent supporter what he has done to the rest of America and now appears to be the rest of the world….I hold Tom Hicks responsible for the ascension of W to anything other than an outhouse in deep west Texas….

    Will The Dallas Star’s Bankruptcy Mean Tom Hicks is Downsizing? Dallas Real Estate News
    Written by Candy Evans on September 16, 2011

    Tom Hicks used to own the Texas Ranger and Dallas Stars….They have both been bankrupted…..


    The Texas Rangers Thrive while Owner Tom Hicks’ Sports Empire Crumbles.
    By Sam Merten Thursday, Jul 29 2010
    Maybe going bankrupt is the best thing that’s ever happened to the Texas Rangers. On the field, at least, 2010 is shaping up to be the team’s best season since 1999, the last time the Rangers made the playoffs, when they were sent packing in the American League Division Series by the New York Yankees.


    Hicks is now being sued by the Rangers for self dealing before the Bankruptcy….

  5. ;) Interesting that everyone is speaking in italics all of a sudden!

    I was taught that we are a nation of laws, not of men. That seems to have changed in the last few decades & not for the better. Unless the voters wake up & demand an end to this it is only going to get worse . . .oh crap! we are so screwed.

  6. I think somebody forgot to put the ‘end embed’ command at the end of the header for comments. I am trying it here, so lets see if it works.

  7. Gyges,

    You obviously never saw the Krusty Krab training manual video. Although, come to think of it, it only spoke to making certain you workspace was cleared of droppings, so yes, spitting is O.K.!!!

  8. Outrageous, of course. Yet Outrageous is becoming the norm, and as it happens ever so more often in the highest of institutions, govt and private, that outrage becomes muted, and ho-hummed. The Stockholm syndrome in action.

    The average person in the street is so far removed from the breach, and the understanding for the outrage, and even more far removed from being able to do anything about it, that the trend becomes a juggernaut with little effective deterrent from becoming just accepted. Like the daily bribing and graft in Mexico, or other third world countries. (Is Mexico a second world country?)

    Mr. Turley is right, of course. Why should an officer of the court need to be told explicity on a case-by-case basis that they must not violate the rules.
    They already have been told that, and agreed to it, by the standing rules of the court and of universally known jurisprudence, and by their oath to the office and law in general.

    The court must use its presumptive supervisory powers here, and simply impose a finding of criminal contempt. It doesn’t need the agreement of the Justice Dept to do so.
    That the Justice Dept issued this finding itself should be a sanctionable act.

    I am just calloused by what I see go on daily in the courts. (Currently fighting a custody case. Talk about lack of due process – try seeing what happens in Family Court)

  9. As plaintiff and Pro Se I have seen this at the lower level, my experience has been, and I do not mean to paint all lawyers with the same brush, that many attorneys and judges not only think but know that the laws and ethics do not apply to them.
    (Plaintiff committed perjury, Pa. Superior Court said so, no charges brought, by anyone. Opposing counsel’s behavior looked, on the face of it, to have been subornation of perjury, (Counsel told I would drop defendent B from suit if he testified at trial to what he had said at deposition; which was 100% opposite of twice offered depo testimony from main defendant A. Next day A changed testimony 100% to mirror the dropped defendant’s testimony),
    We are a nation of laws unless something better comes along and you have a name, prestige, money or power (and seems here stupidity can be added to the list.)

  10. P.S. I posted this video because it makes a point of showing how brutal our police state is and how this is in direct conflict with the speeches of the president.

    I see the term “illuminati” in the caption so I’m assuming this comes from a libertarian or right wing site. I found it on the comments section at Common Dreams. I posted it for content. You can judge the content’s accuracy for yourself.

  11. @carol levy,

    I was at a forum popular with lawyers and professors yesterday, and I pointed out the enormous numbers of false and bogus TROs obtained that even judges and lawyers complain about this in their journals.

    I said, lawyers knoiw that the first thing in a divorce is to get a TRO against the other party, whether it’s warranted or not. And they know how to get their client to understand that, and then demand a TRO and file whatever affidavits are required to do so. And there is never any punishment for perjury or anything and the lawyers are never held accountable when the TRO invariably is overturned, months later, after doing its damage.

    So I a lawyer in the forum piped up to say:

    1) This never happens. And when it does, it’s certainly not condoned by lawyers.

    Then with a bit more evidence say

    2) Okay, it happens and it’s done by a small minority of shady lawyers

    Then with even more evidence say

    3) It’s the clients at fault. The lawyers are helpless and don’t even know it’s happening.

    So judges and lawyers complain about the thousands of bogus TROs, and a lawyer chimes in to first deny it happens, then to blame it on clients, and the lawyers themselves could never be contributing to this mess and are all fine ethical creatures that would never encourage the filing of bogus charges.

    And that’s reason n of infinity of why people hate lawyers and would like to see them impaled on a pike.

    (By the way he was an securities lawyer proudly bragging that he would never look at family law, because as the meltdown shows, securities lawyers are all ethical beasts as well.)

    Consider an alternate world novel in which the Taliban crashed planes into the nation’s top four law schools and then said, “we wanted to apologize for Bamiyan”.

  12. I see Henry F. Schuelke III, Esq. is listed as a Super Lawyer! Mere titles do not a royal make.

    This really is comical. I am hopefull that Mr. Schuelke will apply the same logic to an employee of his who steals from the office and proffers the excuse that he was not specifically instructed not to do it.

    Was that wrong? Should I not have done that?

  13. Sent to Henry Schuelke at his law firm via tor and an anonymous remailer from the inside of a panel van on highway 80 stopped outside a McDonald’s:

    From: george.clymer at mailinator.com
    To: hfschuelke at janisschuelke.com

    Hi Hank,

    Earlier today, Professor Jonathan Turley, wrote a blog entry concerning your recent decision that “it is necessary for Justice officials to be formally ordered to act in a lawful and ethical matter for there to be a basis for criminal contempt.”


    Neither Professor Turley, nor anyone else commenting at his blog can understand your decision.

    I would like to invite you to read Professor Turley’s blog, and comment at the above link.

    I am certain we would all appreciate hearing you clarify what has been reported, and explain the logic behind what would appear to be such an unusual conclusion.

    Very Sincerely Yours,

    Some guy on the net

    It would be nice to see Mr. Schuelke show up…

  14. Don’t hold your breathe. A more effective way of getting his attention would be to file a compaint with his Bar Association. I think that somebody needs to see if he is fit to practice law. It is up to lawyers to bring him to account.

  15. the American Bar association needs to have a divided house, such as senate and congress, in order to better watch over the conduct of attorneys. I’m open to other suggestions, but attorneys literally get away with murder and make the victims families look like the bad guys for alleged false accusations. Something needs to be done to uphold and require stricter standards and stronger penalties for attorneys breaking the ABA code of conduct rules…which were, of course, written by the attorneys. Why not have the alleged victims and the alleged assailants of 1,000 cases write codes of attorney conduct just for those thousand cases and see how that changes history. I would hate to have to listen to Shakespeare, in Henry VIII, and adhere to “first kill all the lawyers” although that is seemingly line the only option.

  16. Jill,

    “I see the term “illuminati” in the caption so I’m assuming this comes from a libertarian or right wing site.”

    Because… all libertarians believe in the illuminati?

    If you want a better evidence of the lawlessness of police start here with a video that shows what happens when an ordinary citizens tries to report that he is not happy with the “service” he received from one of his “public servants”

    Its also amusing how I hear that police, as agents of the government protect us, so when they violate someone’s rights instead of protecting them, you guys pull all kinds of mental gymnastics to esculpate the government and lay the blame on something, anything else.

  17. This is an amazing decision. I would think that the ethical rules that all attorneys work under would cover these US Attorneys. Can’t their respective bar associations take their licenses?

  18. Raff,

    My partner volunteers as a hearing officer for the ARDC here in Chicago. You know who you never, and I mean never, see in front of the board? Prosecutors, state or federal. There have been numerous cases in Illinois were people spent decades in prison, in some of these cases it was found that the State withheld exculpatory evidence. The main reason this persists is that it is largely left to the defense bar to make complaints. The reality is if a defense attorney refers a State’s Attorney or an AUSA to the bar that defense attorney will become a pariah in the court house from then on. The judges also bend over backwards to protect prosecutors from allegations of misconduct. Even if a layperson defendant brings the complaint, the defense attorney is going to be asked to comment in writting or in person before a hearing board.


    Check this case out. I know and like this judge. But he has gone on the record as saying these prosecutors did nothing wrong. The prosecutors are still very highly ranked ASA’s in the office. More groups like Northwestern’s center need to take cases like this to the ARDC because they experiance no political or professional fall-out (although the current State’s Attorney is currently doing everything she can to discredit Northwestern)

    The recent THOMPSON case out of the Supreme Court make’s it even less likely state and federal prosecutors are going to police themselves.

  19. Arthur Randolph Erb
    1, November 22, 2011 at 5:09 pm
    Don’t hold your breathe. A more effective way of getting his attention would be to file a compaint with his Bar Association. I think that somebody needs to see if he is fit to practice law. It is up to lawyers to bring him to account

    Personal anecdote: went to fee dispute against lawyer who relied on pro se’s work and essentially did nothing more then write a brief but got nice 1/3 compensation of forced settlement.
    It went in my favor: I was awarded very low 5 figure additional monies, but letter wrote, ‘you win’ but we find in favor of attorney. Now he has no fee dispute loss against him when people investigate.
    Lawyers investigating lawyers, same as cop thin blue line, doc thin blue line, etc. This is why so many in gov’t get away with their wrongdoings: wrongdoers (or potential wrongdoers) investigating wronddoers.
    (Hopefully Diogenes one honest man serves also but beginning more and more to understand and catch his cynicism.

  20. Now can the bank robber use as his defense that he wasn’t specifally ordered not to rob a bank? Or does this type of defense only apply to insiders?

    This is also at the heart of the Penn State case. While it is about abuse of children, it is also about cronyism and institutional protection, that is taking place in the example here, as it relates to Wall Street and the economic collapse, as it relates to actors in the the prior administration not being held accountable for their myriad of illegal activities.

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