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:
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
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