Elite Unit’s Problems Pose Test for Attorney General

Source: New York Times, www.nytimes.com
By Charlie Savage
May 8, 2009

WASHINGTON — A week after shutting down the criminal case against former Senator Ted Stevens of Alaska because it had been botched by prosecutors, Attorney General Eric H. Holder Jr. delivered a pep talk to Justice Department lawyers.

“I’m here to tell you personally that I’ve got your back,” Mr. Holder told prosecutors in the department’s Public Integrity Section, an elite unit charged with pursuing corruption charges against public officials. He called them “among the finest lawyers in the entire government,” promised them more resources and vowed not to back off from “prosecuting the tough cases when warranted because of the criticism we’re getting right now.”

Despite Mr. Holder’s gesture of reassurance last month, recalled by someone present, the public integrity unit, once the pride of the Justice Department, is badly in need of rehabilitation, according to current and former officials.

Mr. Holder’s ambitions for the section, where he worked two decades ago, may well be a test of how much he can change a department that was at the center of some of the Bush administration’s biggest controversies, including its legal opinions approving harsh interrogations, the politicization of civil-service hiring and the firing of United States attorneys.

“Holder faces calls for more autonomy and freedom from political influence on one hand — consider the torture memo and the U.S. attorney firings — and demands for more supervision and training on the other — consider the public integrity unit,” said Daniel Richman, a Columbia University law professor and former federal prosecutor.

The Public Integrity Section has scored some successes in recent years, most notably a string of convictions connected to the Jack Abramoff lobbying scandal, including that of Bob Ney, a Republican former congressman from Ohio.

Less visibly, though, a decision by the Bush administration eight years ago to shake up the section has had some troubling consequences, like frequent leadership changes and the loss of experienced prosecutors, according to interviews with more than a dozen current and former officials. Against that backdrop, court records show that the Stevens case has not been the only one in which the unit may have failed to disclose evidence favorable to the defense, as required by law.

“What you are having is a kind of organizational failure,” said David A. Sklansky, a Berkeley law professor and former federal prosecutor.

Mr. Sklansky said the pressure to bring cases coupled with the erosion of “the institutional memory of the unit and the availability of prosecutors with seasoned, detached judgment” had created an ideal environment for mistakes like the disclosure violations.

In 2001, Michael Chertoff, the new assistant attorney general for the criminal division, decided to replace the Public Integrity Section’s longtime chief, Lee Radek. “The thought was that fresh energy might be useful,” Mr. Chertoff said in an interview.

Under Mr. Radek, some law-enforcement officials had complained that the section moved too slowly and declined to prosecute many cases. Congressional Republicans also criticized Mr. Radek after he recommended against appointing an independent counsel to look into accusations of illegal campaign fund-raising by Vice President Al Gore.

While Mr. Chertoff said his decision to change the section’s leadership had nothing to do with politics, several former career prosecutors said Mr. Radek’s removal was interpreted internally as retribution for a politically unpopular decision. And, adding to prosecutors’ concerns about maintaining independence from political appointees, Mr. Chertoff brought in as new section leaders two outsiders who had worked for him when he was a United States attorney in New Jersey.

Moreover, the pipeline of high-profile corruption investigations began to dry up, as the Federal Bureau of Investigation began reassigning agents to counterterrorism work after the Sept. 11, 2001, attacks. But with the section’s leaders wary of passing on potential cases, prosecutors took on lower-profile infractions. The section’s annual reports from that period recount numerous convictions of low-ranking officials for relatively small violations, like inflating overtime.

“All kinds of little piddly stuff was just kind of worked to death, and that kind of demoralized people,” said one former prosecutor with the public integrity unit. “The flip side of that was that we were probably overly aggressive about things that weren’t crimes of the century. You could argue that the Stevens case is an example of that. It was a forms case — a guy got his financial disclosure forms wrong.”

As discontent over the section’s new direction mounted, turnover soared to an unusually high level, former officials said. Comparable rates from previous eras are unavailable, but records show that only a quarter of the prosecutors working at the section when former President George W. Bush left office were there when he arrived.

Significant departures included the section’s deputy chief, Stuart Goldberg, described as a cautious and stringent quality-control enforcer. His replacement, Brenda K. Morris, led the Stevens trial. While she had worked there since the 1990s, she had not headed its highest-profile cases, and a case she led in 2003 ended in an acquittal and a settlement that cost taxpayers $1.34 million.

There were other warnings of problems in the section before the Stevens case. For example, in the case of David Safavian, a Bush official charged in the Abramoff scandal, a judge wrote in December 2008 that documents in prosecutors’ possession, brought to light by a recent book, “should be disclosed to the defendant immediately because they constitute favorable or potentially favorable evidence.”

The revelation implied that prosecutors might have improperly failed to disclose that material at Mr. Safavian’s 2006 trial, in which he was convicted. But the order attracted little attention because he was already scheduled for retrial on other charges. (He was convicted again.)

Mr. Holder has signaled that such disclosure lapses may be a systematic problem. Last month, he ordered all prosecutors to undergo retraining and established a working group to review where they needed additional resources to fulfill their obligations to provide material to the defense.

He has also made several other moves, including changing the leadership of the department’s internal ethics unit, the Office of Professional Responsibility, which the judge in the Stevens case criticized for moving slowly.

For now, the Public Integrity Section’s chief, William M. Welch II, and its deputy, Ms. Morris, are under a contempt order and are being investigated for their conduct in the Stevens case. Mr. Holder’s challenge, former officials say, is to maintain the morale of his old section as it continues to handle cases and he evaluates how to rebuild it.

In his retraining announcement, Mr. Holder hinted at the scope of that larger task.

“The actions we are taking today are part of an ongoing process to ensure justice is served in every case the department brings,” he said. “We will continue to review how cases are managed before, during and after charges are filed, and where there is room for improvement, we will make additional changes.”