Campaigning under the cloud of federal investigations is tough enough, but could Sen. Ted Stevens or Rep. Don Young have the added worries of an indictment before they face the voters? Would prosecutors wait until after the election to bring charges to avoid the appearance of meddling in Alaska politics?
It's been 21 months since the federal corruption investigation surfaced in Alaska with a series of dramatic raids on legislative and other offices. Eight cases have been brought, resulting in convictions in all but one -- and that matter is still pending.
No one outside the government is privy to where the investigation is headed and whether it will eventually lead to charges against Stevens and Young, who deny wrongdoing but who won't discuss specifics about the allegations.
It remains especially difficult to charge members of Congress for matters related to legislation. The Constitution's Speech or Debate Clause offers a broad shield against interference by the Justice Department and other agencies of the executive branch into how a congressman might have created, for example, an earmark that benefited a campaign contributor, family member or former aide -- matters that are part of the investigations of Young and Stevens.
Last year, that clause was cited by an appeals court in tossing out evidence seized by the FBI in a raid on the office of Rep. William Jefferson, D-La., the congressman famous for keeping $90,000 in marked bills in his home freezer.
Yet the government is pressing ahead, with grand juries continuing to hear evidence in at least Anchorage and Washington, D.C.
Questions about the timing of future indictments, should more be handed up by the grand juries, are being heard with increasing frequency in Alaska as the investigation drags on in relative secrecy and the elections approach. It's just three months to the Republican primary, where both Stevens and Young face opponents, and just over five months to the general election, where strong Democratic challengers await.
The Justice Department's policy manual for U.S. attorneys doesn't impose any restrictions on the timing of indictments in public corruption cases. A department spokeswoman in Washington, Laura Sweeney, said such decisions are made on a "case-by-case basis," much like the other factors that go into whether to indict or not.
Kevin Fryslie, the agent in charge of the FBI's Anchorage office, said that was his understanding of the policy too.
The Alaska investigation is being managed by the Justice Department's Public Integrity Section, a headquarters unit of career prosecutors noted for working on its own timetable and setting its own priorities. But that section also has a record of not bringing cases against sitting politicians in the immediate run-up to an election.
Stevens, 84, is the longest-serving Republican senator. His Girdwood home was searched last summer by FBI and IRS agents investigating his connection to Bill Allen, the chairman of the now-defunct oil field services company Veco. Veco managed and paid some of the employees who worked on renovations that doubled the size of Stevens' home in 2000.
Young, 74, has never lost an election since he gained office in a special election in March 1973, when he replaced Rep. Nick Begich, Anchorage Mayor Mark Begich's father, who vanished on a flight from Anchorage and was never found. Young is a subject of at least two federal investigations: the Veco case and an earmark he introduced for a highway interchange in Florida sought by a campaign contributor. Young is also connected to the long-running investigation of super lobbyist Jack Abramoff, now in federal prison.
Young has reported spending more than $1.1 million in campaign funds on legal bills since last year, although he has consistently declined to say what the work is for.
Investigations don't necessarily mean charges will be brought. Many more elected officials have been investigated than have been indicted. Yet political damage has already been done.
"A politician like Stevens or Young who is under investigation during an election year is in deep trouble," said Prof. Larry Sabato, director of the University of Virginia's Center for Politics and a frequent media analyst. "It really does affect the likelihood of re-election."
"The feds are very conscious of what they're doing in an election year, and they know that if they indict or even investigate a senator or a congressman during an election year, they are significantly reducing his chance of re-election," Sabato said by telephone last week. "But the law applies equally to everyone and whether it's convenient timing or not, the process goes forward. I'm sure it's tough on Stevens and Young, but they've had a lot of good luck too."
A review of about 20 federal indictments of sitting senators and representatives going back to the FBI's Abscam sting in 1980 shows that in most cases, charges preceded elections by more than six months. A handful of cases were brought less than five months before the general election, and two congressmen were charged less than a month before they ran in primaries.
Most of the targeted officials either quit or were voted out of office.
But word of a big investigation is not necessarily a political death sentence. Rep. Jefferson was re-elected in 2006, six months after the FBI raided his House office. Jefferson was indicted in June 2007 on 16 counts of bribery, conspiracy and other charges but still plans to face voters again in November.
Sometimes, prosecutors refuse to bring cases in the midst of an election. In 1992, the U.S. attorney in Little Rock, an appointee of the first President Bush, declined to prosecute a case involving the Clintons and the Whitewater real estate development that reached him about a month before the election.
According to information later made public during Congressional Whitewater hearings, the case was referred to U.S. Attorney Charles Banks by an investigator for a federal regulatory agency who wanted to prosecute Clinton partner James McDougal. Banks refused, saying the complaint was politically motivated. Bringing a case so close to the election would amount to prosecutorial misconduct, he said.
Last year, at a Senate hearing into the Justice Department firings of U.S. attorneys by the Bush Administration, the issue of timing in election-related prosecutions led to a shouting match between Judiciary Chairman Patrick Leahy, D-Vt., and a witness.
Unlike in corruption cases, the Justice Department has a policy against bringing indictments of sensitive voting fraud allegations just before an election. Leahy cited that rule when he questioned a Justice official, Bradley Schlozman, about his indictment of four voter registration workers for fraud a week before the 2006 election.
Schlozman, then the interim U.S. attorney in Kansas City, testified that he brought the indictments against the community activists "at the direction of the Public Integrity Section."
"At your instigation," Leahy said.
"The Department of Justice does not time prosecutions to elections," Schlozman said.
"Yes they do," Leahy shouted, citing the rule.
The former U.S. attorney in Kansas City testified at the same hearing that he was "surprised" by the timing of those indictments so close to an election.
Find Richard Mauer online at adn.com/contact/rmauer or call 257-4345.