Holder On

When I first heard the news on Wednesday morning that the AG Eric Holder was planning to recommend tossing the conviction of Alaska Senator Ted Stevens, my first thought was that it had to be an April Fool's joke.

However, Scott Horton, who has been on top of the DOJ debacle, explains in a recent Harper's piece, Justice on Stevens:

Attorney General Eric Holder has decided that the Justice Department should abandon the corruption conviction secured against former Alaska Senator Ted Stevens. The bombshell decision has nothing to do with the merits of the case against Stevens–it stems from a recognition that the Justice Department’s Public Integrity Section behaved unethically in the conduct of the case—withholding vital evidence from the defense, among other things. Holder is himself a former Public Integrity prosecutor. He made the right call in the Stevens case.

After listening to the rationale why the conviction should be overturned, due to the egregious misconduct of the prosecutors, my second thought was: OK, I can accept that. But, using that analysis, how about the Siegelman and Wecht cases? As Horton observes:

The Stevens prosecution is only one of roughly two dozen cases in which similar charges have been made on a credible level–collectively they make plain that an ethically-challenged “victory at all costs” mentality is now well entrenched there. Judge Sullivan, presiding over the Stevens case, asked an important question: “Does the Public Integrity Section have any integrity?” By referring the Stevens matter to the Office of Professional Responsibility for an investigation and possible internal disciplinary action—in addition to the sanctions that Judge Sullivan is promising—Holder makes clear that he appreciates the gravity of the damage done to the department’s reputation during the Bush era.

Holder’s difficult decision was essential, but it was only a first step. The Stevens prosecution was undertaken just as the Justice Department was coming under sustained fire from Congress and the media over a pattern of political prosecutions. The misconduct by prosecutors in the Stevens case, bad as it was, is trivial compared to what went on in a number of other political prosecutions which have been profiled here–the Siegelman case, the prosecutions of Paul Minor and two Mississippi judges, and the prosecution of Cyril Wecht.

All of these cases cry out for prompt investigation. Holder has taken the right first step. But much remains to be done if the Justice Department is to win back its reputation for integrity in politically-tinged cases. Restoring that reputation should be a top priority for Holder. Today he signals that it is a top priority.

As we know, the DOJ was politicized during the reign of Bush. See RTAs 'R Us at Justice. Not surprisingly, that corruption seeped into the public integrity division of the Department as well. An article by Horton in the American Lawyer, Public Indecency, explores this serious concern:

The U.S. Department of Justice's public integrity section was once something of a showcase operation. Its purpose was to go after corrupt politicians and judges and to help ensure the integrity of the electoral process. It stood for the highest ethical standards in government, and it was supposed to put teeth in those standards.

Today, however, the public integrity section is reeling. Federal judges in Washington, D.C., and Maine have questioned the section's ethics and motivations. A special prosecutor is investigating whether cases brought by the section were politically motivated.

* * * *

What went wrong at this institution? The problems are too systematic to be laid simply at the foot of partisan politics. In fact, the section has usually been led by a career prosecutor, such as the current incumbent, William Welch II.

The whistle-blower's accusations in the Stevens case suggest a victory-at-all-costs attitude, which is difficult to reconcile with the section's ostensible purpose of upholding ethics. That attitude was also apparent in the case of former Alabama governor Don Siegelman, where the public integrity section suppressed another whistle-blower's claims of jury tampering and political manipulation. That information only became public in a House Judiciary Committee investigation in 2008.

Equally troublesome are charges that public integrity cases were politically manipulated. Statistics show that, during the George W. Bush presidency, roughly six cases were opened involving Democrats for every one involving a Republican. A Justice Department probe into the 2006 sacking of nine U.S. attorneys, which was led by Inspector General Glenn Fine, concluded that there was substantial evidence of such manipulation, but because Karl Rove, Harriet Miers, and other Bush White House figures refused to cooperate, Fine could not conclude his investigation. A special prosecutor, Nora Dannehy, was appointed to pursue the matter.

If Holder's next moves are to exonerate those Democrats like Siegelman and Wecht who were also wrongfully prosecuted by the DOJ, see, e.g., Time to Go, it helps silence the outcry by the Republicans that a Democratic Administration is playing favorites. A brilliant move, if that was the plan.

Of course, the GOP is trying to spin this as a complete exoneration of Stevens, which is far from the case. Instead, it merely speaks to the fact that the conviction was tainted by the prosecutorial misconduct of the DOJ. The fact is, Stevens ended up going free because of a "technicality," which is the kinda stuff that normally drives the Republicans nuts when applied to most criminal defendants.

It is somewhat ironic that DOJ ended up applying the same corrupt standards to republicans as democrats. Some have suggested that this was due to incompetence on the part of the prosecutors, as being the only logical explanation for targeting their own party in the politicized environment that was DOJ in the Bush Administration. They were corrupt AND incompetent.

On this one, I have to disgree. I'm not sure that they were incompetent so much as arrogant. Having worked in the D.A.'s office one time in my life (long ago & far away), I learned that there is a certain personality that tends to gravitate to criminal law, especially prosecutors. I have found that prosecutors generally have a self-righteous, right and wrong view of the world. On the one hand, it's what makes them so good at their job -- a sense of mission, of doing the right thing. On the other hand, it can be so narrow-visioned as to cloud their judgment. The single-minded "win at all costs" mentality, that so infused the DOJ during the Bush Administration was so extreme that they truly came to believe that the rules just didn't apply to them. It was a philosophy generally adopted by the Bush Administration, so why not for them?