The U.S. attorney's office said Friday that it will agree to toss the corruption conviction of Jim Clark, wiping out the criminal record of the man who was once the most powerful unelected official in Alaska.
Clark, former chief of staff to Gov. Frank Murkowski and before that a Juneau lobbyist and attorney, last month sought to have his charge thrown out under a recent U.S. Supreme Court ruling that narrowed the law barring conflicts of interest under which he, and many other public and corporate officials around the country, have been convicted.
In his filing Friday in U.S. District Court in Anchorage, assistant U.S. attorney Kevin Feldis agreed that Clark's 2008 guilty plea was to a felony that no longer exists.
But Feldis said that prosecutors will hold Clark to his plea-bargain pledge to cooperate in any future corruption trials and investigations. If he fails to cooperate, it would void the plea bargain and it would subject him to other charges.
Reached in the Lower 48, where he is attending a wedding, Clark said he has no intention of wavering in that pledge.
"My obligation to cooperate with the government and everything else that was in the plea agreement stands," he said.
Clark is expected to be a witness in a possible future trial of former state Rep. Bruce Weyhrauch on bribery, extortion and conspiracy charges. Weyhrauch, a Juneau Republican, is also challenging his charges.
Last month, Clark asked a federal judge to dismiss his case despite his guilty plea in 2008 to a single count of defrauding Alaska citizens of their right to his honest services as a public official. Clark admitted conspiring with former officials of the defunct oil-field services company Veco Corp. to channel $68,550 in illegal contributions to Murkowski's political campaign -- without Murkowski's knowledge, he said.
But last summer, in cases brought by former public and corporate officials, including Weyhrauch, the Supreme Court narrowed the scope of the honest services fraud statute. Where once it covered undisclosed conflicts of interest and self-dealing, the justices said it could only apply when bribery or kickbacks were involved. Neither was alleged in the Clark case, and both Clark and prosecutors agreed he was no longer in violation of the weakened law.
U.S. District Judge John Sedwick accepted Clark's guilty plea on March 4, 2008, and he will have to formally rule on the dismissal, which he almost certainly will agree to. He has not yet set a hearing date. Clark's law license was suspended after his plea. Alaska Bar counsel Steve Van Goor said that when he gets official notice that the charge is dismissed, he'll inform the Alaska Supreme Court, which will likely reinstate Clark's license.
Van Goor said Clark's license was suspended solely on the basis of his conviction. He said a new ethics complaint against Clark could still be brought by a citizen or the bar association itself based on the facts in the plea, which still stand.
The Justice Department has gone to Congress to restore the original breadth of honest services fraud, which assistant attorney general Lanny Breuer said has been an essential tool for decades in the prosecution of public corruption and corporate misdeeds.
"A public official who conceals his financial interest and then takes official action to advance those interests engages in behavior every bit as corrupt as if he accepts a clear bribe from a third party," Breuer said in testimony before the Senate Judiciary Committee last month. Honest services fraud has been used by prosecutors "because corrupt individuals could be very creative, and the schemes that they devised included a wide range of dishonest conduct that was not always susceptible to definition as a bribe or extortion."
An official who steered public contracts to a company he or she secretly owned didn't engage in bribery or kickbacks, but still violated the public trust and should be prosecuted, Breuer told the senators.
Dismissal of the charge against Clark would be yet another blow to the Alaska corruption cases, which erupted in public view with massive searches of legislative offices and the offices of Veco on Aug. 31, 2006. At one point early in 2009, the government had won jury verdicts or guilty pleas in all 11 cases it had brought, including a seven-count guilty verdict against U.S. Sen. Ted Stevens, with investigations still ongoing against Stevens' son Ben, a former state senator, and U.S. Rep. Don Young, among others.
But the massive case began to unravel with allegations of prosecutorial misconduct in Stevens' case, and those charges were eventually dismissed. Clark's would be the second dismissal, though there were no allegations of misconduct in his case.
Last month, one of the six prosecutors in the Alaska case committed suicide while he was being investigated by a special prosecutor for contempt, and earlier this year Young announced he had been told by the Justice Department that no charges would be brought against him.
Two of those convicted, former Reps. Pete Kott and Vic Kohring, are appealing their cases, citing similar misconduct as Stevens did, while Weyhrauch says his charges should be dismissed before he even goes to trial.