As Attorney General Eric Holder prepares to enter the penultimate year of his tenure leading the Department of Justice, the time to honor his sweeping promise to “clean up” the Department of Justice is rapidly diminishing. For many, the time can’t pass quickly enough—and be sure he will stay until the bitter end. Awaiting his departure from the Department is a subpoena from Congress that he would no longer be able to avoid.
Not only has Mr. Holder failed to make any of the reforms he promised in the wake of his forced dismissal of the indictment against former Senator Ted Stevens, the changes he has made have been for the worse. Absent a dramatic about-face, Holder will leave the Department of Justice littered with corrupted prosecutions and prosecutors, his own contempt of Congress, numerous Supreme Court reversals, and scathing rebukes from federal judges.
Instead of seeking justice, as he is constitutionally and ethically required to do, Holder has politicized the Department beyond recognition. Instead of enforcing the rule of law and following legal precedent, he has ignored and twisted the law to suit his president.
We now have confirmation that Mr. Holder is protecting and retaining prosecutors whose intentional or reckless prosecutorial misconduct has been confirmed. Indeed, he has refused repeated demands to release the names of the law-breaking prosecutors or identify the cases their misconduct infected. No one is holding Holder accountable.
Rightly called Obama’s Enforcer, Eric Holder sets the tone and makes the decisions for the Department. Aside from his own contempt of Congress, the “Fast and Furious” debacle, illegally seizing reporters’ phone records, Mr. Holder is deliberately protecting prosecutors who have violated the law, the constitution, fundamental principles of fairness, and longstanding rules of ethics in hundreds of criminal prosecutions.
A recent report from the non-partisan, non-profit Project on Government Oversight reveals more than 400 instances of intentional or reckless misconduct by Justice Department prosecutors in the last decade. A significant number of those have been confirmed by the Department itself during Mr. Holder’s tenure. Those must be especially egregious. Inquiring minds would certainly like to know.
Six prosecutors were implicated in the corrupt persecution that unseated Senator Ted Stevens, the longest-serving Republican in the United States Senate and a highly-decorated World War II veteran. United States District Judge Emmet G. Sullivan lambasted the misconduct of the Department’s “Public Integrity Section” lawyers in the Stevens prosecution, saying “In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” By the time Judge Sullivan uncovered the flagrant misconduct, he was livid.
Only when it became clear that Judge Sullivan was going to dismiss the indictment himself did Attorney General Holder swoop in to deflect Judge Sullivan’s ire. A golden political opportunity fell in his lap. The savvy Holder manipulated this outrageous prosecutorial misconduct to his political advantage. After all, this administration has lived by the creed: “Never let a good crisis go to waste,” and the unjust conviction had already given the Democrats the 60th seat they had targeted.
Attorney General Holder, a Democrat, announced that he was dismissing the indictment against the former Republican Senator “in the interest of justice.” General Holder received bipartisan acclamations, and the press loved it when he vowed to “clean up” the Justice Department. He proclaimed that he wanted all such prosecutorial misconduct brought to his attention. This was “not the way” the Department would conduct business.
Many of us were buoyed by hope and his promises. We didn’t realize the significance of the timing of his announcement—April 1, 2009 (April Fools).
At the dismissal hearing on April 7, 2009, Judge Sullivan applauded Mr. Holder’s decision, but wisely, didn’t buy the Holder Annunciation. Judge Sullivan publicly excoriated the Department at length. Unprecedented but frighteningly justified, Judge Sullivan appointed a special prosecutor to investigate the Stevens’ prosecutors and the Department. The Department was stunned. Holder promised to reform it.
Mr. Holder was compelled to dismiss the Stevens indictment because, among other violations, the Department had concealed the horrible record of its key witness, including his involvement in sex-trafficking of minors and subornation of perjury. That same witness had testified in two previous prosecutions of politicians in Alaska.
Despite the public flogging and the Stevens’ dismissal, Mr. Holder refused even to request a new trial in the Kott and Kohring cases. Mr. Holder’s minions argued that the same evidence withheld in those prosecutions was not “material” to the defense, their trials were just, and their convictions were fair.
On September 26, 2010, one of the young Public Integrity Section prosecutors then under investigation himself for misconduct and for hiding evidence favorable to Senator Stevens’ defense, committed suicide. Again the press exploded with stories about the corrupted prosecution of the former Senator who had recently died in a plane crash in Alaska.
The Alaska district judge in the Kott and Kohring cases was as unimpressed by Judge Sullivan’s actions and admonitions as was Attorney General Holder. But the Ninth Circuit Court of Appeals slammed him with reversals in both cases. Ninth Circuit Judge Betty Fletcher wrote separately to express her outrage. She urged outright dismissal of the indictment against Kohring because the “prosecution’s refusal to accept responsibility for its conduct is deeply troubling and indicates that a stronger remedy is necessary to impress upon it the reprehensible nature of its acts and omissions.” She did the same in Kott—vehemently objecting to the Department’s failure “to fully grasp the egregiousness of its misconduct as well as the importance of its constitutionally imposed discovery obligations.” She said a “mere reversal” was “insufficient to deter future illegality.” Sadly, it turns out she was right.
On March 15, 2012, the report of the special investigation ordered by Judge Sullivan was released. Henry Schuelke and his partner William Shields uncovered the “systematic and intentional concealment” of exculpatory or “Brady” evidence— that is, evidence favorable to a criminal defendant and deemed by the Supreme Court as constitutionally required to be given to the defense before trial. The requirement is fundamental to a fair trial and a cornerstone of our democracy.
After all, a prosecutor represents all the citizens. As Alex Kozinski explains in the foreword to my new book Licensed to Lie, the prosecutor has unlimited resources of the Sovereign and controls the investigation. The Supreme Court and prior Attorneys General of great integrity have made plain that a prosecutor’s job is to seek Justice—not convictions. They understood that “with great power comes great responsibility.”
Shocked by the Schuelke Report, the Wall Street Journal published an editorial appropriately named “The Department of Injustice.” The Journal called for “severe sanctions” against the Stevens’ prosecutors. Simultaneously with the issuance of the Report, the non-partisan Constitution Project issued a Call for Discovery Reform. Approximately 200 former federal prosecutors and judges (including this author) signed a letter that was delivered to Congress, supporting Senate Bill 2197—the Fairness in Disclosure of Evidence Act, introduced by Senator Lisa Murkowski and a bi-partisan collection of five co-sponsors. Every major organization of attorneys across the country publicly supported the proposed legislation, including the American Bar Association, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the United States Chamber of Commerce and many others
The only opposition to the legislation came from prosecutors and the Department of Justice.
Meanwhile, back in Texas, I was working as defense counsel for the Merrill Lynch executives being dragged through a second round of criminal prosecution initiated by the Task Force prosecutors that destroyed Arthur Andersen. Unaware of Mr. Holder’s opposition to the new legislation, we were buoyed by the Attorney General’s pronouncements, and the widespread and repeated calls for reform. I represented Merrill exec Jim Brown, and I was certain the prosecutors were hiding evidence. None of the prosecution made any sense—from the indictment forward. No witnesses, including Merrill counsel, would talk with any of the defense lawyers because the prosecutors kept them under threat of indictment.
By then, three teams of Department of Justice lawyers had claimed there was no exculpatory evidence in the government’s huge files from which the original defense trial lawyers had been given only a few page summary by original prosecutors Kathryn Ruemmler, Matthew Friedrich, John Hemann, and Task Force Director Andrew Weissmann.
On top of that, this second prosecution was on the same indictment the Fifth Circuit had already found “fatally flawed” when it reversed 12 of 14 counts of convictions and acquitted one defendant entirely. Four Merrill Lynchers who the federal district judge had noted were “just doing their jobs” had spent up to a year in prison because they had been denied bail pending their appeals—until the Fifth Circuit held that their conduct was not criminal as charged.
Countless lawyers across the country (including this one) hoped and believed that Holder meant what he said. He instituted new training on prosecutors’ duties to provide evidence favorable to the defense (Brady evidence), and publicly, he was saying all the right things. Except one.
The Department of Justice opposed the Fairness in Disclosure of Evidence Act. The bill died. And the Department of Justice continues to hide evidence. We learned that in Holder’s view, only prosecutors can decide what is “material to the defense,” and if they decide it’s not material, they don’t disclose it—even if it is obviously favorable to the defense. Mr. Holder’s Department is even seeking to change the ethical rules in each state to comport with the Department’s view and make it easier for prosecutors to hide evidence. Mr. Holder’s view of the Brady rule puts the prosecutor in total and sole control of the outcome of the case. It licenses him to lie.
Meanwhile, in the Merrill case back in Texas, while still denying there was any Brady evidence, the prosecutors mailed me a disc of documents they did not realize revealed crucial notes of government agents’ interviews of the person that lead prosecutor Kathryn Ruemmler herself had called the “key” to their case. Not only did these long-hidden notes reveal clear, declaratory statements that directly contradicted everything Ruemmler, Friedrich, Hemann and their hearsay-only witnesses had told the court and jury, but the prosecutors had actually yellow-highlighted the notes as Brady information favorable to the defense—and still hid it.
So where, you might ask, are all of these prosecutors now? Holder fired them immediately, right?
Not exactly. The prosecutors on the team who yellow-highlighted the evidence favorable to the Merrill defendants and still “plainly suppressed” it were honored, promoted, and protected.
Andrew Weissmann became General Counsel of the FBI until this past October, when he quietly left to join NYU Law School.
Kathryn Ruemmler, who signed the Brady letter in the Merrill prosecution, which omitted the crucial yellow-highlighted statements of the person she herself said was the “key” to the prosecution, was promoted to Assistant Attorney General, and then became Obama’s longest serving chief White House Counsel. She recently returned to the prestigious firm of Latham & Watkins.
Her co-lead counsel, Matthew Friedrich, who also personally told the jury facts that were directly refuted by the yellow-highlighted evidence, became the head of the Criminal Division of the Department of Justice. Mr. Friedrich rushed the indictment of Senator Stevens and micromanaged that corrupted prosecution, which cost the citizens of Alaska their senior Senator, changed the balance of power in the Senate, and facilitated the enactment of Obamacare. Mr. Friedrich quietly left the Department during the transition to Mr. Holder, just before the Stevens’ prosecution blew up completely and well before the Shuelke Report revealed evidence of his nefarious role (which he denied). He’s now a partner at the prestigious international law firm Freshfields Bruckhaus Deringer.
John Hemann remains an Assistant United States Attorney in San Francisco.
Four of the Stevens’ prosecutors are still with the Department. Two who were assessed brief suspensions have their rulings on appeal and are still Assistant U.S. Attorneys. The others the Department cleared of any wrongdoing; one is back in the Public Integrity Section, the other in the US Attorney’s Office in Massachusetts.
And now, despite demands from POGO, repeated rebukes by various federal judges, his own contempt of Congress, IRS abuses and now missing crucial evidence and emails, and widespread acknowledgment of an “epidemic” of prosecutorial misconduct, Attorney General Holder refuses to release so much as the names of the prosecutors who have committed intentional or reckless acts of misconduct.
How many times can a man turn his head and pretend that he just doesn’t see? And how long will Congress and the public allow it?
Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She served nine US Attorneys from both political parties and is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.