Whistle-blower adds twist to Stevens case

WHISTLE-BLOWER: Federal employee accuses government of misconduct.

December 20, 2008 

A whistle-blower inside the Justice Department has accused members of the team investigating public corruption in Alaska of official misconduct, according to the judge who presided over Sen. Ted Stevens' trial in Washington, D.C.

The whistle-blower's complaint, dated Dec. 2, is now the subject of an internal investigation by the Justice Department's Office of Professional Responsibility, according to a memorandum and order signed Friday by U.S. District Judge Emmet Sullivan of the District of Columbia.

Sullivan revealed the existence of the complaint, and three secret hearings about it last week, in his 29-page order.

Sullivan said little about the nature of the alleged misconduct. Among the allegations was that a government employee accepted "multiple things of value" from sources cooperating in the investigation, Sullivan said.

The judge also reported that the whistle-blower accused at least two federal employees of intentionally violating government policies in the corruption investigation in Alaska and in connection with material that was supposed to be provided to Stevens for his defense, Sullivan said.

Stevens was found guilty Oct. 27 of seven felony counts of failing to report gifts and services on his annual Senate disclosures.

Sullivan said it was premature to say whether the allegations, if true, could have affected the outcome of the trial. But Sullivan said the allegations were clearly relevant to the Stevens case.

Stevens is asking for a new trial, arguing that his case was tainted by government misconduct, among other issues. The motion will be heard by Sullivan in February.

The whistle-blower is a federal employee "with extensive knowledge of the investigation and trial in this case," Sullivan said. The whistle-blower and the people named in the complaint "are not strangers to these proceedings, but rather were significantly involved in the investigation and prosecution of the defendant."

His order advised lawyers representing the Justice Department, Stevens and the whistle-blower that he intended to make public a redacted version of the complaint Monday at 4 p.m. Eastern Standard Time -- noon in Alaska.

The public version of the document will not reveal the names of the complainant or the subjects of the internal investigation, Sullivan said, but will otherwise disclose the allegations.

Prosecutors had sought to keep the complaint secret since informing the judge of its existence Dec. 11. Sullivan, in his order Friday, soundly rejected that effort, citing the constitutional rights of Stevens to a fair trial and the public to observe the administration of justice. But he acknowledged that the whistle-blower and the officials cited in the complaint had privacy rights, at least in the current stages of the internal investigation.

SECOND INVESTIGATION

Stevens' lawyers, who complained throughout the month-long trial of prosecutorial misconduct, had sought full public disclosure of the document, Sullivan said. The whistle-blower, concerned about the consequences of being exposed, joined with the government in seeking to keep it secret, he said.

The complaint is the second time the Office of Professional Responsibility, which investigates misconduct by Justice Department attorneys and law enforcement personnel, has gotten involved in the Stevens case.

In mid-trial, lead prosecutor Brenda Morris told Sullivan that she and the other members of her team had self-reported that they had failed to turn over material to the defense as required by law.

The material involved FBI agent notes of interviews with the government's chief witness, Bill Allen, the former chief executive of Veco Corp.

At the time, Sullivan said he thought the government was intentionally hiding information and ordered prosecutors to sweep through their files and give everything connected to Stevens to the defense.

With the jury gone from the courtroom Oct. 2, Morris acknowledged the government committed "a gross error" in withholding the material, but denied any intentional misbehavior.

ARTWORK AND A JOB

From the onset, the government sought to keep the latest problem secret, Sullivan said. When it alerted the court to the complaint Dec. 11, it did so in a sealed memorandum, he said.

Prosecutors asserted the complaint bore "no relationship whatsoever" to the Stevens case.

"The court flatly rejects the government's position," Sullivan wrote. The complaint alleged a person involved in the investigation accepted "multiple things of value," including "artwork and employment for a relative" from cooperating sources, the judge noted with some irony.

"Surely the court does not need to remind the government that the defendant in this case was convicted for failing to disclose that he had accepted multiple things of value and, in fact, the trial included testimony about his receipt of artwork and employment for a relative," Sullivan wrote.

During one of the secret hearings last week, Sullivan said, he was unable to get any kind of answer from a government lawyer to repeated questions about whether the complaint contained favorable information that needed to be disclosed to Stevens. The lawyer's refusal to answer "blinks at reality," Sullivan wrote.

In his order, Sullivan cited a long history of court decisions supporting the public's right to know about government conduct.

"To seal the complaint would be to deprive the public of information that directly addresses courtroom conduct, documents that were introduced at trial, and information that was relied upon by the court for various decisions throughout the proceedings," Sullivan said. "To say that the public's interest in this case was and is significant would be an understatement. In fact, even post-trial, the media has an interest in the case," he said, citing recent reports in the Anchorage Daily News and the Washington Post.

But Sullivan acknowledged the complainant also needed protection, referring to a case involving the Alyeska Pipeline Service Co., where a number of whistle-blowers were subject to reprisals in the 1980s and 1990s.

At the secret hearing Friday, the lawyer representing the whistle-blower "argued that the complainant would not have filed the complaint, at least in the form it was filed, had the complainant known that it might be made public."

But whistle-blower rights don't trump those of Stevens or the public, Sullivan said. Hiding the identities in the document is adequate protection, he said.

Find Richard Mauer online at adn.com/contact/rmauer or call 257-4345.

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