Will Stevens' Prosecutors Get Prosecuted?

(AP Photo/Gerald Herbert)

As dramatic as it sounds, it is not a terrible surprise that U.S. District Judge Emmet Sullivan announced in open court Tuesday that he is authorizing a criminal contempt investigation into the odious misconduct of Ted Stevens' prosecutors, actions that led directly to disgrace and the dismissal of his conviction.

Judges don't suffer deceit gladly and federal judges in particularly don't like it when they, or defense attorneys, are lied to by government attorneys.

The judge's inquiry, replete with the requisite special prosecutor, will run concurrently with any internal Justice Department investigation into what government lawyers knew, when they knew it, and why they failed so miserably to meet their ethical and constitutional duties before and during the former senator's corruption trial last fall. Either of the investigations, or both, could ultimately result in criminal charges (obstruction of justice, for example), and even prison time for the shady prosecutors who played so fast and loose with evidence.

Judge Sullivan's contempt investigation puts enormous legal and political pressure on the Justice Department to undertake its own aggressive look into how federal lawyers, presumably the cream of the crop, could have failed to disclose important evidence to Stevens' attorneys or even fabricated false evidence to try to enhance their case against the legendary politician. Indeed, Judge Sullivan indicated that he was taking aggressive action because he feared that Attorney General Eric Holder and the DOJ's Office of Professional Responsibility weren't moving as quickly with his own review of the matter.

For the prosecutors involved, they'll now "lawyer up" in earnest and await the two-pronged assault on their professional reputations, their character, their motives, and their livelihoods. Much of what they did and said to get them in trouble already has been disclosed—that's why Holder swiftly back away from the Stevens' conviction after he himself reviewed the file.

The only questions, really, are whether the conduct rises to the level of criminality. And the answers to those questions reside within the minds of the people who are now the subjects/targets/focus of these investigations.

It's way too early to predict how this all shakes out. But I can say clearly what will not happen here. The deputizing of a "special prosecutor" by the judge will not lead to an extensive review of other, non-Stevens-related, Bush-era policies and practices at the Justice Department. In other words, this isn't the unintended but inevitable start of a criminal investigation into the Bush Team's torture policies or wiretapping practices. Those things may yet occur-- but not under the direction of this judge as a result of this case.



(CBS)
Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.

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