Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution

The U.S. Justice Department again showed how its protects its own in scandals involving government lawyers. The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. This week is no exception. Waiting until late Thursday to inform Congress to guarantee a low media coverage, the DOJ announced that it had found no intentional violations by its attorneys in the failed prosecution of U.S. Senator Ted Stevens — despite the contrary finding made by an independent investigation. Instead, the investigation again offered rhetorical punishment as a substitute for true punishment — declaring that the attorneys were only guilty of “reckless professional misconduct.” As a result, Joseph Bottini will be suspended for only 40 days and James Goeke will be suspended for 15 days. Even that level of punishment is viewed as noteworthy for the DOJ given its prior history of whitewashing misconduct by its attorneys. Even the finding of misconduct and brief suspension was contested within the department by Terrence Berg, a lawyer with the department’s Professional Misconduct Review Unit.


Prosecutors brought charges against Stevens for concealing gifts on financial disclosure forms. However, they concealed evidence like conflicting statements by witnesses that was obviously supposed to be turned over to the defense. The special prosecutor found that Mr. Bottini and Mr. Goeke had intentionally withheld evidence. However, the DOJ wiped away the finding and found effectively negligence.

For civil libertarians, it brings back to mind the slap on the wrist given Judge Jay Bybee and Professor John Yoo for their roles in the Bush torture program. They just showed “poor judgment” in misrepresenting the governing law on torture and ratifying a policy of torture. Other notorious DOJ lawyers like Monica Goodling or former Gonzales chief of staff Kyle Sampson were never charged over their actions and testimony vis-a-vis the hiring scandals of the Bush Administration.

Many of us in practice were shocked by the earlier decision that the DOJ lawyer could not be charged with contempt because they were not directly ordered to comply with legal and ethical rules. Most of us assumed that we are always required to comply with such rules, but it left the impression that DOJ attorneys have to be specifically ordered to act in a reasonable and ethical way.

I have litigated against the Justice Department for years and I have many friends and people who I respect in that department. However, I have also run across DOJ attorneys who routinely misrepresent and withhold evidence with impunity. There is a clear sense that they are untouchable and it is a common complaint that judges often shy away from sanctioning the government for misconduct. Once again, I have had cases with some of the best at the department — lawyers who act ethically and civilly out of their personal commitment to the bar and the profession. However, the department as a whole has a checkered history in dealing with its own violations — and this is a good example of the problem.

I cannot see how anyone could withhold this evidence without realizing that they were violating core obligations in a criminal case. I am not sure which is a greater indictment — the notion of an intentional withholding of evidence or a culture that made the attorneys believe it was alright to withhold the evidence. What is clear (as made evident by the celebration of the defense counsel for the lawyers this week) is that the report sends another message to DOJ attorneys that the department will protect them in even the most obvious violations of legal and ethical rules.

The DOJ’s timing of the release of the report just before the Memorial weekend speaks volumes about its view of the investigation and public.  The Department often releases stories on Thursday nights to hit the low coverage window of the end of the week.  It decided after years to release the report just before Memorial Weekend to further avoid any public scrutiny or backlash.  It was the perfect closing moment for the investigation — a largely rhetorical punishment announced in a whisper by the department.

I have always loved the fact that the Justice Department is unsure of the meaning of the motto on its seal Qui Pro Domina Justitia Sequitur. It appears to refer to the Attorney General as the person “who prosecutes on behalf of justice.” Cases like this one may offer a more clear understanding of what it means to work “on behalf of Justice.”

Source: NY Times

29 thoughts on “Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution”

  1. People with power are untouchable. That is the sign of the rule of men, not the rule of law. In the US a powerful person is only touchable when they have pissed off an even more powerful people who will then make an example of them. This complete corruption exists in the worst nations on earth. This complete corruption destroys a society from the inside.

    I don’t know if people realize this but Bush, Cheney, Rice and friends were convicted of war crimes in an international court in Malaysia. This technically means they should be referred to the Hague for prosecution.

    Today, govts. around the world are recalling ambassadors from Syria because that govt. likely ordered the killed of civilians; women, men and children. This is also a stated prelude to regime change. Several questions arise.

    On what basis in law and fact do these actions offend? The US is killing civilians; women, men and children every day. This apparently does not offend the international community. It most certainly does not offend Obama supporters who love nothing better than to cheer, donate and give their full support to a man who orders these actions.

    Why does this action only offend in some nations but not others? Why does it offend at one point, but not another? For example, Gaddafi was a big friend to the US– until he was not.

    So this action by the DO? fits into a pattern of a nation which has completely moved beyond the rule of law and into the rule of fiat. They are still giving a minimal semblance of “lawiness” because there’s an election on. People in the US most be fooled so they will vote “correctly”. Still, this should show clearly what is really happening here.

  2. Saying corruption should be trusted means there is no LAW. It just means figuring out who is best at the corruption.

  3. AY, AN, sometimes you can’t walk away, that’s the problem.

    You can get stuck in the corruption and prevented from walking away. That’s the biggest problem. I remember telling a lawyer back in 1986, “This is like saying you can’t get justice and you can’t just walk away from the whole thing either,” and he said, “Of course not!” When I asked how that could be fair, he said, “Because we have to have some semblance of LAW!” I followed up: “But if the semblance is actually the opposite of what the law says, are you willing to put up with that?” He answered, with a straight face: “We have to put up with that because if we don’t, we just have to say the whole system is fucked up and we can’t trust ANYTHING any more, and nobody can say that, it cannot be SAID!”

    I immediately said, “The whole system is fucked up and we can’t trust anything any more.” He did not appreciate it.

  4. AN,

    I echo your statements and links more than you’ll ever know…. Sometimes one just gets tired of the corruption and walks away…….

  5. repuplicans always want to get rid of the dept. of education or HUD. i’m beginning to think DOJ could use a good shake-up.

  6. “Comparisons are…..???
    The USA system vs the parliamentary. Bad conduct here in Sweden is much more in the hands of the public response in terms of retribution. Minister’s heads roll (and some sit like fixed in concrete), government fall, and even judges may be impugned and processed away by administrative process.
    All the executives do is propose laws as does the opposition parties.
    The actual administration is by the bureaucrats. And
    god help the minister that makes a move crossing that line.

  7. In a totally corrupted system, and I mean all we have in terms of compacts here in the USA, where is the first step to be taken? All steps would seem useless as the system will subvert/sabotage the reforms. And any surviving elements of corruption will fight viciously to eliminate the reforms.

    Read Romney’s pledges re the new bills biting the finance world that he promises to eliminate. Read Obama’s lame speech kissing private finance firms and his record so far after the 2008 crash.

    And read yesterday’s OPED NYTimes article making just the same point. Both of them have already been bought, and Obama was in the 2008 campaign says the article. Compare the fraction of finance world campaign contributions to both to that from other sectors. It was said by an responsible voice: “the banks own Washington”. They sure as hell do.

    Same old question. Tiresome. We have words, but where are the deeds? And which can succeed?

  8. Part of the problem is sovereign immunity, which ends up being used by courts and the whole government (in ways it never should be used) to provide protection for people in power, regardless of how essentially inapplicable it is to the circumstances or how it distorts any proper vision of our vanishing democracy. It has been misused so long (even when not referenced in words; it is used in actual practice) that it has become a sort of magic wand that, when waved over any obvious illegal conduct committed by protected government officials, magically removes all liability or accountability from them, and even removes reviewability of their actions. This encourages lying, bullying, file-doctoring, whistle-blower-punishing, stone-walling, jurisdiction-denying, governing by individual acts of terrorism, and just about every disgusting and barbaric behavior we could have ever wanted to avoid.

    People get worked up now and then about some drunken Russian diplomat being immune to prosecution or damages after doing something awful, or the like. They carry on about the “immunity” provisions giving someone the right to do evil in our country. But what about the fact that our own DOJ folks operate with this kind of protection of their own misconduct and they are STAYING HERE and not being hastily withdrawn after a bad incident?

    Until people get the idea that there is some accountability that inevitably attaches to their conduct, official or unofficial, we will have this same nauseating situation. And if it is thought that only the insignificant people like me can fall victim to it, think again.

  9. Great article Professor. This is one more example of why the citizens need some sort of oversight ability over the police force and the prosecution authorities at every level. Yoo and Bybee got even less than a slap on the wrist. Bybee got a life tenured federal judgeship and Yoo is still a law professor. Disgusting.

  10. I’ll go with what Justice Holmes said and raise you a “not holding the watchmen responsible undermines the very fabric of the social compact in an allegedly egalitarian society.”

  11. For anyone interested in how the Republican party got hijacked, I recommend “Michelle Bachmann’s America”. I expected a puff piece, pro or con, about her. Instead the book uses Bachmann as a starting point. How did she manage to get nominated? And elected? How could she say such outrageously inaccurate things without a hint later of chagrin at being wrong? It helps understand the extreme religious right. The bankrollers are in it for the money. Those who go along with it have a different way of thinking (or not).

  12. Mr. Ed,

    With regard to “Liberty U.”, you might find today’s Chris Hedges’ article to be of interest:

    http://www.truthdig.com/report/item/the_war_on_gays_20120528/

    “Liberty University is funded by fundamentalist billionaires, like the man who owns Hobby Lobby, like Chick-fil-A and the fundamentalist author who wrote these terrible books, the ‘Left Behind’ series, Tim LaHaye,” White said. “These guys are giving tens of millions of dollars to institutions such as Liberty. They see the Liberty Universities of the world as the Koch brothers do, as the bastions of training for the new Americans. They are brainwashing young people whom they hope will guide us away from the precipice of liberalism.”

    Liberty is one of the fastest-growing universities in America. It has 50,000 students, on campus or taking degrees through online courses. The university built a 24-hour, all-seasons ski resort, the first in the nation. It has an Olympic-size pool and an Olympic-style ice rink. It has an accredited law school. Its debate team often beats major Ivy League teams. It is putting in a medical school. This is also a university that teaches that the oldest fossils date from only 6,000 years ago. It produces Ph.D.s who believe exclusively in creationism, reject evolution and deny that global warming exists. And it is a university that is openly hostile to gays, lesbians, bisexuals and those who are transgender.

    “By the time Gary and I moved away from Lynchburg a majority of Virginians seemed to be turning against gay people,” White said. “They passed a constitutional amendment against marriage equality and new laws saying we cannot adopt [children] or provide foster care. More than half the people of Virginia seem to see us as the enemy.”

    As the economy unravels, as hundreds of millions of Americans confront the fact that things will not get better, life for those targeted by this culture of hate will become increasingly difficult. Rational debate will prove useless. “Fundamentalists aren’t interested in data,” White said. “They are not influenced by truth, including scientific, psychological, psychiatric or historic truth. They are not influenced by a personal experience with truth. The Bible is more important. Verses are taken out of context to condemn even sons and daughters. How do you oppose that?” (end of excerpt)

  13. Its terrible that the people on top of the political chain can get away with crimes. Bush, Cheney, Rumsfeld, Rice and all their cronies were “untouchables”. Add Obama into that circle also. We the people can’t seem to find a way to hold these crooks accountable. Our Government lawyers and the justice system are also to blame.

  14. I did not like Senator Stevens’ policy positions or his seemingly arrogant disregard for the needs of others but no one deserves to be wrongly prosecuted, no one. As long as prosecutors are judged on a won and lost record and are immune from suit this kind of outrageous behavior will continue. It is time for the Bar to take a stand on prosecution over reach and worse. Their actions bring the entire system into disrepute.

  15. “Justice Department Clears Its Own Lawyers Of Intentional Misconduct In Stevens Prosecution”

    Well, of course it does. It’s what we’ve come to expect.

  16. “For civil libertarians, it brings back to mind the slap on the wrist given Judge Jay Bybee and Professor John Yoo for their roles in the Bush torture program.”

    http://billmoyers.com/episode/full-show-reckoning-with-torture/

    Full Show: Reckoning with Torture
    May 25, 2012

    After 9/11, the U.S. government turned to torture — in defiance of domestic and international laws — to extract information about and from terrorists and others who might follow after them. Were it not for defense attorneys and the work of human rights organizations, these prisoners would be ignored. But that’s changing.

    The American Civil Liberties Union and the international literary and human rights group PEN have teamed up to comb through 150,000 declassified documents — as well as large collections of articles and transcripts — to produce The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program, written by PEN’s Larry Siems. PEN and the ACLU have also staged readings of excerpts from the documents and first-person testimony at the Sundance Film Festival in Utah and Lincoln Center here in New York.

    Those readings have been videotaped and are being made into a documentary by movie director Doug Liman called Reckoning with Torture. Liman is now asking people across the country to videotape their own readings of declassified memos and testimonies for the project. Learn how to get involved.

    “We made mistakes. We made grave, serious mistakes of judgment,” Siems tells Moyers, “And we would be stronger as a nation, if we stood up and said, ‘We did these things. We’re sorry. We’re gonna do better.’”

    http://reckoningwithtorture.org/

  17. Just curious, and partisan, too: Were any of these people Liberty “U” grads?

  18. Big surprise. I’ve had some relatively minor interaction with the federal judiciary. And local judiciary as well. There was a movie on last night called Gangs of New York. That movie has been around for a while now.

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