DOJ Apologizes, Again, to Stevens Judge

Posted February 5, 2009 at 2:19pm

The Justice Department has issued yet another apology to the judge overseeing the trial of former Sen. Ted Stevens (R-Alaska), this time admitting that it may have released the names of FBI agents involved in the investigation without their permission.

Stevens was convicted in October of seven counts of failing to report gifts on his annual financial disclosure forms.

Since late December, the department has been grappling with a complaint filed by FBI Agent Chad Joy, a member of the team that investigated Stevens, that alleges a broad swath of misbehavior by other agents involved in the case, including one agent who was allegedly involved in a personal relationship with one of the department’s key witnesses against Stevens.

The prosecution originally told Judge Emmet Sullivan that Joy may be subject to whistle-blower protections, and it argued for none of the names of agents involved in the case to be publicly released.

Prosecutors later reversed themselves, saying that Joy had been ruled ineligible for those protections and that the other FBI agents had agreed to have their names made public.

Joy’s complaint was released, but Sullivan demanded more explanation of how his whistle-blower status determination was made. The Justice Department replied that the prosecutors had misunderstood the whistle-blower process, and Joy had not been denied protection, only told that he did not yet qualify because no retaliatory action had been taken against him.

In a Jan. 30 letter to the judge, William Welch, head of the Justice Department’s Public Integrity Section, admitted that the FBI agents in the case may not have actually agreed to have their names released. Welch said he told special agents to interview people who had been named in the complaint and to inform them that their names might be made public.

“I wish to note for the public record that I did not personally contact and canvass each FBI Anchorage employee on the issue of disclosure,” Welch wrote, and some of those employees now believe that the process “was not sufficient to infer or conclude that they had consented to disclosure of their names.”

“I apologize to the court if I misled the court in any way,” Welch said

Along with Welch’s letter, the Justice Department responded to Sullivan’s order with another explanation of Joy’s whistle-blower status, saying that, in essence, Joy was protected by law from the moment he filed his complaint, without any further determination required by the department.

Prosecutors appearing before the judge, including Welch, “formed the belief that ‘whistleblower status’ is a concept reserved exclusively for those complainants who have alleged reprisal — a belief that he held until only very recently. … That belief was erroneous.”

The department also filed, in response to the judge’s demand for details about internal discussions of Joy’s complaint, a truncated list of documents related to his whistle-blower status. The department admits in its filing that it has taken the liberty of narrowing the scope of the order to focus only on documents related to Joy’s whistle-blower status because it is clear that is what the court was concerned with, despite the department’s recognition that “read literally, the January 21 Order would require the disclosure of any communication” among Justice Department offices related to Joy’s complaint.

The Justice Department filing immediately prompted another appeal from Stevens’ attorneys to throw out the case against the former Senator. The defense argues that Welch’s assertion that FBI agents had agreed to have their names made public is a “newly revealed false statement [that] can be added to the long list … which seems to grow, like Pinnochio’s nose, every time one of government counsel’s statements is scrutinized.”

Stevens’ attorneys also argue that the government had no right to unilaterally decide to limit the scope of materials that it would provide in response to the judge’s order for documents related to the Joy complaint.

“If the court does not dismiss the indictment, the Court should hold the government in contempt and impose an appropriate remedy,” the defense demanded.