Greg Pollowitz points me to this report from the Anchorage Daily News, that the judge in the failed corruption prosecution of former Sen. Ted Stevens is still fuming at the Justice Department. The paper reports that Judge Emmet Sullivan, “on his own, without a request by either party” issued a pair of orders over the weekend, “indicating he may not be ready to give up jurisdiction of the case even as the government is asking for all charges to be dismissed.” The report elaborates that the judge
directed federal prosecutors to provide him copies of everything they had gathered in the post-trial reviews and investigations and which they had provided to Stevens’ defense attorneys. He also directed them to provide everything they had uncovered and produced related to the complaint by Anchorage FBI agent Chad Joy into the conduct of the Alaska corruption investigation and the prosecution of Stevens’ case…. Sullivan also demanded the notes of prosecutors from an April 15, 2008, interview of former Veco Corp. chief executive Bill Allen. It was the discovery of those notes two weeks ago by a new prosecution team that led Attorney General Eric Holder to seek dismissal of all charges against Stevens “in the interest of justice.” The notes directly contradicted a key piece of Allen’s testimony six months later at Stevens’ trial and should have been turned over to the defense, Holder said….
Judge Sullivan also directed the government not to “destroy any evidence or documents connected to the case,” including e-mails, notes, memos, investigative files, audio recordings, etc.
At least based on what’s reported here, these are lawless orders. Judge Sullivan — though he no doubt has the best of intentions — should stand down. What’s going on here occasionally happens when other prosecutions, especially in high-profile cases, go awry: The presiding judge gets very angry over what is at least incompetence, and, potentially, something more nefarious; he decides to conduct his own investigation — or, in some instances, purports to order the government to conduct and investigation — into what happened.
This is understandable but foolish. It’s also a separation-of-powers violation. By comparison, let’s suppose that — as has happened, oh, once or twice – a judge makes a boneheaded ruling in a criminal case. Imagine the reaction if the government were to start hauling the judge’s clerks into the grand jury in order to investigate whether the judge’s ruling was the product of poor legal reasoning or a bribe. Judges and the media would go nuts, and rightfully so, over the executive interference with the judicial function. Absent very strong evidence of bribery — like a witness who comes in with proof the judge was bribed — a prosecutor does not open such an investigation in a fit of pique.
Besides, judges don’t have any general supervisory authority over the Justice Department and they don’t have any jurisdiction to conduct investigations. What the judge has is authority to dismiss the indictment. After that, it’s up to the Justice Department. The judge can stamp his feet, Congress can conduct oversignt, but neither branch has the power to order a criminal investigation, or to conduct one.
Here, it looks like Attorney General Holder and his chain-of-command acted responsibly. New prosecutors were assigned to the troubled case, evidence that should have been disclosed at trial was uncovered, and that caused Holder to conclude that the trial had been unfair and the conviction should be dismissed. Beyond that, the Justice Department is obviously looking very closely at what happened. There’s no reason to doubt, if it turns out the trial prosecutors engaged in malfeasance, that appropriate consequences will follow – whether that means administrative discipline or something more serious.
Judge Sullivan should stand down and let AG Holder do his job. I certainly hope that what happened here was just a screw-up rather than something really sinister. But if the Justice Department does find something meriting prosecution, or administrative sanctions (like suspension or termination), you would think the last thing Judge Sullivan would want is to have given bad actors a bogus defense that the allegations against them have been trumped up to appease an angry judge.