IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

: : In Re SPECIAL PROCEEDINGS : Misc. No. 09-0198 (EGS) : :

ORDER

In the fall of 2008 in highly-publicized proceedings before

this Court, then-U.S. Senator Theodore F. Stevens was indicted,

tried and found guilty of making false statements, by failing to

disclose gifts he received on his Senate Financial Disclosure

Forms, in violation of

(a)(1) and (2). During

the course of the five-week jury trial and for several months

following the trial, there were serious allegations and

confirmed instances of prosecutorial misconduct that called into

question the integrity of the criminal proceedings against

Senator Stevens. On April 1, 2009, after acknowledging some of

the misconduct and specifically admitting two instances in which

the prosecution team had failed to produce exculpatory

information to the defense in violation of the government’s

constitutional obligations,1 the Department of Justice moved to

set aside the verdict and dismiss the indictment of Senator

Stevens with prejudice.

1 See, e.g., Brady v. Maryland,

(1963) and Giglio v. United States,

(1972). On April 7, 2009, after granting the government’s motion,

and in recognition of (1) the significance of the government’s

decision to dismiss the indictment and not to seek a retrial;

(2) the government’s admission that it committed Brady

violations and made misrepresentations to the Court during the

prosecution of Senator Stevens; (3) the prosecutorial misconduct

that permeated the proceedings before this Court to a degree and

extent that this Court had not seen in twenty-five years on the

bench; and (4) the likelihood based on events during and after

the trial, including the information revealed by the Department

of Justice in support of its motion to vacate the verdict and

dismiss the indictment, that the prosecution team may have

committed additional constitutional and procedural violations

during the Stevens prosecution that had yet to be discovered or

addressed, the Court appointed Henry F. Schuelke, III to

investigate and prosecute such criminal contempt proceedings as

may be appropriate against the six Department of Justice

attorneys responsible for the prosecution of Senator Stevens.

See Order Appointing Henry F. Schuelke, United States v.

Stevens, No. 08-cr-231 (Apr. 7, 2009).

Mr. Schuelke has informed the Court that he has concluded

his investigation, and he has submitted to the Court in camera a

five-hundred page report detailing the findings of his

investigation. In order to discharge his obligations and fully

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investigate the prosecutors’ conduct during the Stevens

prosecution, Mr. Schuelke and his esteemed colleague, William B.

Shields, reviewed more than 150,000 pages of documents,

interviewed numerous witnesses, conducted twelve depositions,

and, by necessity, acquired a comprehensive understanding of the

government’s investigation, charges, pre-trial and trial

proceedings not only in the Stevens matter, but also in relevant

aspects of at least two other federal prosecutions brought by

the Department of Justice’s Public Integrity Section against

Alaskan state officials, including United States v. Kott, No.

07-30496,

(9th Cir. Mar. 24, 2011),

and United States v. Kohring,

(9th Cir. 2011). Mr.

Schuelke informs the Court that pursuant to this Court’s

directive, officials at the Department of Justice have

cooperated fully with his investigation.

Based on their exhaustive investigation, Mr. Schuelke and

Mr. Shields concluded that the investigation and prosecution of

Senator Stevens were “permeated by the systematic concealment of

significant exculpatory evidence which would have independently

corroborated his defense and his testimony, and seriously

damaged the testimony and credibility of the government’s key

witness.” See Report to the Honorable Emmet G. Sullivan of

Investigation Conducted Pursuant to the Court’s April 7, 2009

Order (“Mr. Schuelke’s Report” or “Report”) at 1 (currently on

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file under seal and in camera). Mr. Schuelke and Mr. Shields

found that at least some of the concealment was willful and

intentional, and related to many of the issues raised by the

defense during the course of the Stevens trial. Further, Mr.

Schuelke and Mr. Shields found evidence of concealment and

serious misconduct that was previously unknown and almost

certainly would never have been revealed – at least to the Court

and to the public – but for their exhaustive investigation.

Despite his findings of significant, widespread, and at

times intentional misconduct, Mr. Schuelke is not recommending

any prosecution for criminal contempt.2 Mr. Schuelke bases his

conclusion not to recommend contempt proceedings on the

requirement that, in order to prove criminal contempt beyond a

reasonable doubt under

(3), the contemnor must

disobey an order that is sufficiently “clear and unequivocal at

the time it is issued.” See, e.g., Traub v. United States,

(D.C. Cir. 1955). Upon review of the docket and

proceedings in the Stevens case, Mr. Schuelke concludes no such

Order existed in this case. Rather, the Court accepted the

repeated representations of the subject prosecutors that they

2 Mr. Schuelke “offer[s] no opinion as to whether a prosecution for Obstruction of Justice under

might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.” See Mr. Schuelke’s Report at 514 n.76 (citing Indictment, United States v. Convertino, et al., No. 2:06-cr- 20173 (E.D. Mich. Mar. 29, 2006)). 4

were familiar with their discovery obligations, were complying

with those obligations, and were proceeding in good faith. See,

e.g., Transcript of Motions Hearing, P.M., at 14-15, Stevens,

No. 08-cr-231 (Sept. 10, 2008) (“THE COURT: I’m not going to

write an order that says ‘follow the law.’ We all know what the

law is. The government – I’m convinced that the government in

its team of prosecutors is thoroughly familiar with the

decisions from our Circuit and from my colleagues on this Court,

and that they, in good faith, know that they have an obligation,

on an ongoing basis to provide the relevant, appropriate

information to defense counsel to be utilized in a useable

format as that information becomes known or in the possession of

the government, and I accept that.”).3 Because the Court

accepted the prosecutors’ repeated assertions that they were

complying with their obligations and proceeding in good faith,

the Court did not issue a “clear and unequivocal” order

directing the attorneys to follow the law.

This Court has always recognized the public’s interest in

these proceedings and has maintained from the outset that the

Court intends to make public the results of Mr. Schuelke’s

3 Mr. Schuelke also notes that “[i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation.” Mr. Schuelke’s Report at 513. 5

investigation. See, e.g., Transcript of Hearing 46:7-11,

Stevens, (April 7, 2009) (“[T]he events and allegations in this

case are too serious and too numerous to be left to an internal

investigation that has no outside accountability. This court

has an independent obligation to ensure that any misconduct is

fully investigated and addressed in an appropriate public

forum.”). The public’s interest in the results of this

investigation, which reveal failures of supervision and/or

misconduct by attorneys in the Department of Justice’s Public

Integrity Section in the prosecution of a sitting United States

Senator, is as compelling today as it was on April 7, 2009. In

fact, as recently as November 8, 2011, Attorney General Eric

Holder was questioned by members of the United States Senate

during a hearing before the Senate’s Judiciary Committee about

the Department of Justice’s investigation into the Stevens

prosecution, and the Attorney General acknowledged the public’s

important interest in these matters. See Sean Cockerham, Review

of Stevens Prosecution Nears Completion, Holder Says, Anchorage

Daily News, Nov. 9, 2011 (“What I have indicated was that I want

to share as much of [the Office of Professional Responsibility

report] as we possibly can given the very public nature of that

matter and the very public decision I made to dismiss the

case.”).

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While providing the public with the full results of Mr.

Schuelke’s investigation has been and remains the Court’s

intent, in view of the Amended Protective Order entered in these

proceedings on December 13, 2009, and this Circuit’s holding in

In re North,

(D.C. Cir. 1994), the Court has

determined that Mr. Schuelke’s complete report should not be

made public at least until the Department of Justice has had the

opportunity to review the report. The Court has further

determined that it is appropriate to afford the subject

attorneys and Senator Stevens’s attorneys the opportunity to

review the report, under the terms and conditions set forth

below. The Court will then consider any objections to making

Mr. Schuelke’s Report public; any such objections shall be filed

in accordance with this Order, as set forth below. Regrettably,

and contrary to this Court’s commitment to the public’s right of

access, these interim proceedings may need to be conducted under

seal until the Court has considered any objections raised by

either the Department of Justice or the subject attorneys. The

Court will schedule any further proceedings, sealed or

otherwise, at the appropriate time. Accordingly, it is hereby

ORDERED that the Department of Justice shall forthwith move

to unseal the relevant pleadings in United States v. Boehm, Case

04-cr-003 (D. Alaska) and United States v. Stevens, and

transcripts in United States v. Kott, No. 07-cr-056 (D. Alaska)

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and United States v. Kohring, No. 07-cr-0055 (D. Alaska), or, by

no later than December 5, 2011, shall inform this Court why the

Department of Justice objects to such unsealing.4 It is further

ORDERED that the Report shall not be disclosed during the

pendency of these proceedings except as follows:

1. Mr. Schuelke shall provide five copies of the Report

to the Department of Justice, and two copies to each of the

subjects of the Report and to Senator Stevens’s attorneys.

Initially, the Department will receive unredacted copies of the

Report; the copies provided to the subject attorneys and Senator

Stevens’s attorneys will be redacted to protect the contents of

4 The relevant sealed materials are as follows: In Boehm, (1) Gov’t Mot. in Limine to Limit Cross Examination of B. Tyree, filed July 26, 2004. (Note that this motion was filed publicly as an exhibit to the government’s opposition to defendant’s motion to dismiss in Kott, Sept. 26, 2011.) (2) Gov’t Reply in Supp. of Mot. in Limine, filed Aug. 17, 2004. (Note this was filed publicly (with redactions) in Boehm on Nov. 4, 2009.) (3) Judge Sedwick’s Decision on Mot. in Limine, Order, Sept. 14, 2004. (4) Gov’t Opp’n to Def.’s Motion for Recons. of Decision re: Mot. in Limine, Oct. 6, 2004. (Note this was filed publicly (with redactions) in Boehm on Nov. 4, 2009.) In Kott, (1) Tr. of Sealed Hr.’g, Sept. 13, 2007. In Kohring, (1) Tr. of Sealed Hr.’g Oct. 25, 2007. In Stevens, (1) Gov’t Mot. in Limine to Exclude Inflammatory, Impermissible Cross Examination under Rule 608(b), filed Aug. 14, 2008. (Note this motion was withdrawn during a hearing on Sept. 5, 2008.) (2) Def.’s Opp’n to Gov’t Rule 608(b) Motion, filed Aug. 25, 2008. (3) Def.’s Opp’n to Gov’t Mot. to Seal, filed Aug. 25, 2008. (4) Gov’t Reply in Supp. of Mot. to Seal and Request to Strike Def.’s Opp’n to Mot. in Limine to Exclude Inflammatory, Impermissible Cross, filed Sept. 2, 2008. Note that this Court unsealed all hearings in Stevens with the consent of the parties. See Order, Feb. 24, 2009 (Doc. No. 323); see also Hr.’g Tr. 44:16 – 45:10 (Apr. 7, 2009). 8

the still-sealed materials in Boehm, Kott, Kohring, and Stevens.

Following the unsealing of some or all of those materials, Mr.

Schuelke shall provide unredacted copies of the Report to the

subject attorneys and Senator Stevens’s attorneys.

2. Disclosure of the Report shall be limited to five

individuals at the Department of Justice to be selected by the

Department, two for each of the subjects of the Report to be

selected by the subject, and two of Senator Stevens’s attorneys

to be selected by his attorneys. Prior to disclosure of the

Report to him or her, each individual who will have access to

the Report shall sign a Confidentiality Agreement agreeing,

inter alia, not to disclose or discuss the Report, or its

contents, except as provided in the Confidentiality Agreement.

The individuals to whom the Report shall be disclosed shall

contact Mr. Schuelke to make arrangements to execute the

Confidentiality Agreement and receive the Report. It is further

ORDERED that pursuant to the Amended Protective Order, if

the Department of Justice believes that any of the Material(s)

or sealed pleadings or transcripts identified by Mr. Schuelke in

his report should be withheld from the public, the Department of

Justice shall file a motion under seal by no later than January

6, 2012, specifically identifying the Material(s) and/or sealed

pleadings and/or transcripts it believes should be withheld and

the precise legal basis for the proposed withholding (i.e., the

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basis for any privilege, whether the material is covered by

Federal Rule of Criminal Procedure 6(e), etc.).5 In considering

whether to file such a motion, the Court strongly encourages the

Department of Justice to consider the very significant public

interest in these proceedings, the fact that much of the

information in the Material(s) and pleadings may already be

known to the public and/or subject to future disclosure, the

fact that the investigations and prosecutions related to these

matters are now concluded, and the benefit of promptly bringing

these regrettable events to closure, not just for the benefit of

the public and the late Senator’s family, but for the Department

of Justice, as well. It is further

ORDERED that any other individual seeking to withhold from

the public information contained in Mr. Schuelke’s Report shall

file a motion under seal, and, if appropriate, any comments or

5 The Amended Protective Order simply provides that if “any Materials [provided by the Department of Justice] are to be included in applications or submissions filed with or submitted to the Court, or disclosed during court proceedings, other than under seal, Mr. Schuelke will advise the Department of Justice five business days in advance of such submission or proposed disclosure so that, if deemed necessary, the Department of Justice has the opportunity to present its position on the public disclosure of such Materials to the Court for consideration.” Amended Protective Order at 2, In re Special Proceedings, No. 09-mc-198, (Dec. 13, 2009). The Court, however, has determined that it is appropriate to afford the Department of Justice the opportunity to review Mr. Schuelke’s Report in its entirety, rather than just be notified of Materials relied on in the report, and to give the Department of Justice substantially more time than the five days contemplated in the Amended Protective Order. 10

factual information regarding the Report, by no later than

January 6, 2012, and shall provide the basis and nature of the

relief sought. Any such person shall be mindful, however, that

(1) the Court has already expressed its intent to make the

results of Mr. Schuelke’s Report public to the greatest extent

possible; (2) in response to previous efforts by the Stevens

prosecution team to withhold from the public information related

to allegations of prosecutorial misconduct in the Stevens case,

the Court has already addressed the significant constitutional

protections providing public access to court proceedings under

these or similar circumstances, see, e.g., Memorandum Opinion &

Order 16-17, Stevens, No. 08-cr-231, (Dec. 19, 2008) at 16-17

(“‘Under [the Globe Newspaper] test, the first amendment

protects public access to an aspect of court proceedings if such

access has historically been available, and serves an important

function of monitoring prosecutorial or judicial misconduct.’”

(emphasis added) (quoting Washington Post v. Robinson,

(D.C. Cir. 1991))); (3) the identities of the subjects

of this investigation have already been disclosed and therefore

this situation is not analogous to a grand jury investigation in

which the subject of the investigation is not identified to the

public and the subject may be prejudiced if her identity is

revealed – in fact, under these circumstances, some or all of

the subjects may be prejudiced by withholding the results of Mr.

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Schuelke’s Report from the public; (4) the matters Mr. Schuelke

investigated stem from allegations and events that occurred in a

highly-publicized trial of a sitting United States Senator and

therefore the public interest in this matter is well-documented

and not a matter of mere speculation; and (5) the public

availability of the results of Mr. Schuelke’s Report will

facilitate the public’s understanding of the Court’s rulings in

the Stevens case and the constitutional and procedural

requirements inherent in our criminal justice system, and will

better enable the public to follow and place in context the

developments in the Stevens case, all of which, again, were

widely publicized at the time. See, e.g., In re North,

(discussing factors to be weighed in determining whether

to publicly release special prosecutor’s report). Accordingly,

while the Court will give appropriate consideration to any legal

argument to withhold Mr. Schuelke’s Report from the public, the

Court notes that the “presumption of openness may be overcome

only by an overriding interest based on findings that closure is

essential to preserve higher values and is narrowly tailored to

serve that interest.” Press-Enterprise Co. v. Superior Court,

(1984).

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge November 21, 2011

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