The New York Times early Tuesday offered a dubious news analysis about the alarming demise of the government's case against Ted Stevens, the former Alaska senator whose conviction last fall was dismissed this week by a judge furious over a pattern of prosecutorial misconduct.
By talking to Washington insiders (the Timesmen called them "the large corps of Washington lawyers who followed the case, including former prosecutors and defense lawyers") about their fellow Washington insiders (Stevens' prosecutors, who now are in big trouble) the Times came up with a think-piece that unfortunately reads more like an apologia for the newly-dubbed "Stevens Six" than it does an insightful look into how extraordinary (and disgraceful) all of this is.
Let's start with the official record. In his remarks to the lawyers late Tuesday morning, in the moments before he official dismissed the corruption indictment against Stevens, U.S. District Judge Emmett Sullivan offered his reasons for activating a criminal contempt proceeding against six of the Justice Department's lawyers actively involved in the Stevens' prosecution. The judge could not have been more clear or concise. It wasn't just one isolated mistake made by federal prosecutors, it wasn't just a matter of poor oversight, or understaffing, it was a matter of honesty, integrity and ethics.
According to his transcript of his remarks at the hearing, the judge said: "Again and again both during and after the trial in this case, the government was caught making false representations and not meetings its discovery obligations. And each time those false representations or unmet obligations came to light, the government claimed that it had simply made a good faith mistake, that there was no ill intent, and/or that the Court had already taken steps to address the problem and therefore, there was no need for Court action." Turns out, there was.
A Washington insider himself (he was first appointed to judgeship by Ronald Reagan, then promoted by George H.W. Bush before being given his current federal job by Bill Clinton), Judge Sullivan continued: "The fair administration of justice depends on the government meeting its obligations to pursue convictions fairly and in accordance with the Constitution. There was no question in this case that the government knew of its obligations - the Court issued discovery orders and talked about Brady from day one. Nevertheless, the government repeatedly failed to meet those obligations."
But here's what the Times' Neil A. Lewis, David Johnston and Eric Lichtblau wrote and reported in the piece that appeared before the hearing. "The most important question that remains largely unanswered, said officials and veteran lawyers, is whether the corner cutting, especially the serial concealment of information damaging to the government, was a result of flawed judgments and heavy workloads or an intentional step by prosecutors to increase their chances of a high-profile conviction." Please. The "officials and veteran lawyers" who would say such silly things, even before Judge Sullivan's comments, don't deserve even unattributed mention in the paper of record.
I've seen "corner-cutting" and so has Judge Sullivan. This wasn't "corner-cutting." This was persistent, patterned deceit to the court, to the defense team, to the public and to the defendant himself, a 40-year veteran of the United States Senate. The men and women who talked to the Times for the Tuesday story surely knew this. And so did the reporters who took down their comments. The only "unanswered question" here is whether the constitutional abuses perpetrated by the Stevens Six constitute criminal conduct. Judge Sullivan is determined to find out. Good for him.
The Times' story continued in this apologetic vein. "One specific issue is whether the [D]epartment was at fault for failing to pick up on the struggles of a trial team of five principal lawyers that may have been overwhelmed, struggling in the face of tight deadlines and an aggressive defense team from Williams & Connolly, a law firm known for its combativeness, according to current and former Justice Department officials. Prosecutors were particularly hard-pressed because Mr. Stevens surprised them by asking for a speedy trial, rather than seeking a delay as expected."
It's not surprising, I suppose, that "current and former Justice Department officials" would rise to the defense of the Stevens Six. These sources for the Times' story may ultimately even be witnesses in the contempt case, or the Justice Department's internal investigation, and if this is what they are going to say under oath then we already know what the Stevens Six defense will be: "we were 'hard-pressed' and 'overwhelmed' so we made honest mistakes." I am quite sure that any lawyer or client who has ever faced off against the federal government in a criminal case would find this defense as hypocritical as I do. Usually, it's the defense team that is "overwhelmed" by the feds.
But this is how Washington works. The legal Establishment uses the media Establishment to complete the equivalent of a quadruple bank-shot that makes everyone happy. The Times gets its "analysis," designed to offer the "insider" view of the affair. The Stevens Six get an early defense narrative properly set into the minds of potential jurors. The legal community protects its own. And the only loser is the unvarnished truth.