FAIRBANKS -- U.S. Sen. Lisa Murkowski said Thursday that she was "aghast" by the ruling of a federal personnel board that upheld the appeals of two prosecutors from Alaska who argued they did not deserve suspensions for the handling of the corruption case against the late Sen. Ted Stevens.
The U.S. Merit Systems Protection Board, a quasi-judicial agency that protects the rights of federal employees, ruled Jan. 2 that the U.S. Department of Justice did not follow its policies in handing out a 40-day suspension to Joseph Bottini and a 15-day suspension to James Goeke. Murkowski, who has spent years criticizing the DOJ attorneys who prosecuted Stevens for failing to disclose gifts and favors from disgraced oil-field contractor Bill Allen, said that even the proposed punishments were "meager."
Goeke served one day of the suspension, while Bottini did not serve any portion of the suspension, a footnote to the board decision said. The two men are assistant U.S. attorneys who worked on the case in which Stevens was charged in 2008. Bottini still works for the U.S. Attorney's Office in Anchorage, while Goeke is a federal prosecutor in Spokane, Washington.
In the wake of the government decision in 2009 to toss out the Stevens guilty verdicts because prosecutors did not disclose certain information to the defense and other examples of misconduct, DOJ had its Professional Misconduct Review Unit consider whether disciplinary action should be taken against Bottini and Goeke.
The unit manager assigned the case to attorney Terrence Berg, who said the attorneys made mistakes, but not on purpose.
Berg, now a federal judge in Michigan, said they showed poor judgment, but it did not rise to the level of "reckless professional misconduct" and that no disciplinary action was warranted.
The entire prosecution team, not the two attorneys, were at fault, Berg said. He named eight lawyers as being responsible for violations, topped by Matthew Friedrich, the former assistant attorney general for the criminal division in President George W. Bush's administration. He also named Rita Glavin, the former principal deputy assistant attorney general for the criminal division, as well as William Welch, the former chief of the Public Integrity Section of the criminal division, and Brenda Morris, Welch's principal deputy chief.
In addition to Bottini and Goeke, Berg cited trial attorneys Nicholas Marsh, who later committed suicide, and Edward Sullivan.
"Even if I had concluded that reckless misconduct had occurred, all of the same concerns that caused me to reduce the findings to poor judgment, along with the uniformly positive -- if not outright lustrous -- personnel records of AUSA's (assistant U.S. attorneys) Bottini and Goeke, would have counseled in favor of a low level of discipline," Berg wrote in 2012 after several months of investigation.
But a supervisor in the misconduct review unit disagreed with Berg's conclusions and proposed that the two men be suspended. An administrative law judge reversed the suspensions in 2013. That judge, Benjamin Gutman, said he was ruling not on whether Berg's conclusions were correct but on the process under which he was removed from the case and his conclusions overruled.
The three-member board confirmed Gutman's ruling Jan. 2. It said that the agency violated its process by rejecting Berg's work after it became clear his supervisors did not agree with his conclusions and wanted to suspend the men.
The claims against the two lawyers dealt with statements by Allen, the former Veco Corp.'s chief executive, and Rocky Williams, a Veco employee, that could have bolstered Stevens' claims that he tried to pay for all the work done on his house in Girdwood under Veco's direction.
Murkowski said in a statement Thursday that Goeke and Bottini should not have been cleared.
"I am aghast that the Merit Systems Protection Board is overturning the meager punishments for the two Justice Department prosecutors who committed serious ethical lapses in the Ted Stevens case -- which led to the verdict being thrown out -- because the internal actions taken to impose discipline upon these attorneys broke internal rules and protocols," she said.
"These two attorneys committed serious misconduct in one of the highest profile cases in a generation. When the Justice Department tried to discipline them, it botched its own process. This deplorable development undercuts the faith Alaskans may still have in the justice system."
However, the decision by Berg that no suspension was warranted would have been the agency position had it not improperly overruled him, according to the merit protection board.