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S. HRG. 112–933 

ENSURING THAT FEDERAL PROSECUTORS MEET 

DISCOVERY OBLIGATIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JUNE 6, 2012 

Serial No. J–112–78 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 46 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

prepared statement .......................................................................................... 48 

WITNESSES 

Witness List ............................................................................................................. 45 

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska ........................ 5 

Cole, James, Deputy Attorney General, U.S. Department of Justice, Washington, DC ............................................................................................................. 9 

prepared statement .......................................................................................... 51 

Brook, Carol, Executive Director, Federal Defender Program for the Northern 

District of Illinois, Chicago, Illinois .................................................................... 33 

prepared statement .......................................................................................... 60 

Bibas, Stephanos, Professor, University of Pennsylvania Law School, Philadelphia, Pennsylvania ............................................................................................... 34 

prepared statement .......................................................................................... 67 

QUESTIONS 

Questions submitted by Senator Grassley for Hon. James Cole ......................... 73 

Questions submitted by Senator Hatch for Hon. James Cole .............................. 78 

Questions submitted by Senator Grassley for Carol Brook ................................. 79 

Questions submitted by Senator Grassley for Stephanos Bibas .......................... 80 

ANSWERS 

Responses of Hon. James Cole to questions submitted by Senators Grassley 

and Hatch ............................................................................................................. 83 

Responses of Carol Brook to questions submitted by Senator Grassley ............. 98 

Responses of Stephanos Bibas to questions submitted by Senator Grassley ..... 106 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Bar Association (ABA), Thomas M. Susman, Washington, DC, June 

5, 2012, letter ....................................................................................................... 116 

American Civil Liberties Union, National Association of Criminal Defense 

Lawyers, Constitution Project, March 15, 2012, joint letter ............................ 118 

Constitution Project, Washington, DC: Sloan, Virginia E., June 5, 2012, 

email ...................................................................................................................... 133

American Civil Liberties Union, National Association of Criminal Defense 

Lawyers, Constitution Project, June 5, 2012, letter .......................................... 135 

Committee on Rules of Practice and Procedure, Judicial Conference of the 

U.S., Reena Raggi, Criminal Rules, June 5, 2012, letter .................................. 137 

National Association of Assistant U.S. Attorneys, Robert Gay Guthrie, President, Lake Ridge Virginia, June 4, 2012, letter ................................................ 140 

Terwilliger, George J., III, White & Case LLP, Washington, DC, June 5, 

2012, letter ............................................................................................................ 144 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island 

and Hon. John Cornyn, a U.S. Senator from the State of Texas, May 

30, 2012, joint letter ............................................................................................. 149 

(1) 

ENSURING THAT FEDERAL PROSECUTORS 

MEET DISCOVERY OBLIGATIONS 

WEDNESDAY, JUNE 6, 2012 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:09 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Klobuchar, Franken, 

Coons, Grassley, Sessions, Hatch, Cornyn, and Lee. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. The Committee will come to order, and I thank 

the Members for being here. 

Today, as we promised, we are continuing our inquiry into ensuring that federal prosecutors meet their obligations, and these are 

obligations, as I look at this, whether the defendant is a prominent 

official or an indigent defendant. Either way, prosecutors have certain obligations that should always be followed. 

Now, we have seen the results of two separate investigations and 

two reports into what went wrong during the Ted Stevens trial. 

And I thank Attorney General Holder for making the report of the 

Department of Justice’s internal Office of Professional Responsibility available to us, something that normally is not, and we have 

now made it available to the public. 

The investigation by the Justice Department found that several 

career prosecutors acted with reckless disregard of their discovery 

obligations and that the Deputy Chief of the Public Integrity Section exercised poor judgment in failing to supervise discovery. 

While the Department’s OPR investigation did not find intentional 

misconduct, its findings are serious, and they are significant. They 

resulted in suspensions of two of the prosecutors. 

Everybody knows that Ted Stevens was a friend of mine, but 

even if Ted Stevens was somebody I never knew, I would be bringing this hearing because I believe that prosecutors bear unique responsibilities in maintaining the integrity of our criminal justice 

system. I am looking at the Senators who are here now. Senator 

Klobuchar and Senator Cornyn have both been prosecutors. 

We all know that our constitutional framework provides that all 

individuals are guaranteed the right to fair treatment and a fair 

trial. And without ensuring adherence to the rule of law and vigorous and competent counsel for defendants, we cannot live up to 
2 

these guarantees. But we also have to remember that prosecutors 

have a unique position in our whole system, a unique thing. They 

wield so much power when it comes to charging decisions, plea bargaining, and gathering of evidence. Simply the power to bring or 

to withhold prosecution is probably the most significant power in 

the whole criminal justice system. So we count on them to uphold 

the law, adhere to the highest ethical standards, and seek justice. 

That is, justice for everybody involved. Their standards are different than that of defense attorneys. 

What happened in the Stevens case undermines this system and 

cannot be tolerated. Two separate investigations have now found 

that significant evidence was not disclosed to the defense, and critical mistakes were made throughout the course of the trial that denied Senator Stevens a fair opportunity to defend himself. The mistakes and poor decisions in connection with the Stevens case disturbed the judge hearing the case, and they disturb the Chairman 

of the Senate Judiciary Committee. 

But I also know they disturb the Department of Justice. Attorney 

General Holder did the right thing when he came into office and, 

based upon his review of the matter, decided to dismiss the indictment that had been brought against Senator Stevens, and he withdrew the case even after a jury’s guilty verdict. Today we will hear 

from Deputy Attorney General Jim Cole, the number two official at 

the Department of Justice, about the steps the Department has 

taken and plans to take to ensure that federal prosecutors meet 

their discovery obligations so that the situation in the Stevens 

prosecution is never repeated—never repeated whether it is a Ted 

Smith or a Ted Stevens, whether it is somebody we have never 

heard of before or somebody we have. The standard should be the 

same. 

We want to ensure that prosecution supervisors are diligent as 

well. The recent mistrial declared in the prosecution of John Edwards raises concerns about the exercise of prosecutorial judgment 

in that case. Now, I worry that when this happens, you can also 

end up with sometimes unfair, partisan criticism directed at the 

Justice Department, and that may make them reluctant to exercise 

restraint. 

Let us get things back on the balance where they are supposed 

to be. Prosecutors make tough judgment calls all the time. By and 

large, they make the right ones, and they use their discretion in 

the interests of justice. Remember, that is the discretion both to 

bring prosecution or to withhold it. More than 70 years ago, while 

he was serving as Attorney General of the United States, Robert 

Jackson spoke about federal prosecutors, saying: ‘‘The prosecutor 

has more control over life, liberty, and reputation than any other 

person in America.’’ As he spoke about the exercise of prosecutorial 

discretion, he wisely observed that federal prosecutors need to be 

‘‘diligent, strict, and vigorous in law enforcement’’ but also ‘‘just.’’ 

As a young prosecutor, I remember reading those words. I also 

made sure that every prosecutor in my office subsequently read 

those words. 

Now, I know how strongly Attorney General Holder and Deputy 

Attorney General Cole feel about these issues. I know they are 

committed to justice and to ensuring that our federal prosecutors 
3 

follow Attorney General Jackson’s timeless advice that ‘‘the citizen’s safety lies in the prosecutor who tempers zeal with human 

kindness, who seeks truth and not victims, who serves the law and 

not factional purposes, and who approaches his task with humility.’’ 

When I talk about my time as a prosecutor in Vermont, it is because I am proud of the dedicated public servants—the prosecutors 

and the law enforcement officers—with whom I had the privilege 

to serve. Our criminal justice system is the envy of the world in 

large measure because good prosecutors adhere to the directive to 

seek justice for all parties, the government and the defendants, not 

just convictions. So we have to ensure that all federal prosecutors 

continue these high standards. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator Grassley, did you want to say something before we go to 

our first witness? 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Yes, please. Thank you. This is a very important hearing to make sure that people get justice. Since our last 

hearing, the Office of Professional Responsibility has released its 

report. You talked about that, so I am going to skip that part of 

my remarks. 

You talked about the second review, and I am going to skip that 

part. I am just going going to say that finally we have the review 

of the OPR’s findings by Terrence Berg, a career prosecutor assigned to the Professional Misconduct Review Unit. Berg was assigned the case by the head of the review unit, and he rejected 

much of OPR’s findings with regard to individual prosecutors. Instead, Berg’s review determined that the problems in the Stevens 

case were part of the mismanagement and poor organization of the 

case by the Public Integrity Section. While Berg’s findings were ultimately overturned by the head of the review unit who sided with 

OPR, his findings raise interesting questions about the failed mismanagement of the case. 

Berg’s findings deserve particular attention for two reasons: 

First, he has been nominated by the President for a position as a 

federal district judge of the Eastern District of Michigan; and, second, he led the U.S. Attorney’s Office in the Eastern District after 

a scandal similar to the Stevens case when a major post-9/11 terrorism prosecution was dismissed because of discovery issues. So 

his judgment on this should not have been lightly overturned. 

All three reviews reached different conclusions but point to the 

same problem: a fundamental failure of justice attorneys to follow 

the rules required by the Department, courts, and the Constitution. 

So where we go from here is the focus of today’s hearing. 

Senator Murkowski has introduced this Fairness in Disclosure of 

Evidence Act, a bill designed to reform the discovery and disclosure 

process in criminal cases. We will also hear about her proposal 

from representatives of the legal community that have offered different views. I thank Senator Murkowski for putting forth a pro-
4 

posal and am looking forward to hearing from her and discussing 

it with our third panel of experts. 

Justice’s conduct in the Stevens case definitely warrants 

Congress’s attention. However, I am not sure at this point that legislation to completely overhaul the criminal justice system is necessary. I do have letters here from the National Association of Assistant U.S. Attorneys and one from Deputy Attorney General 

George Terwilliger expressing concern, and I ask that those be put 

in the record. 

Chairman LEAHY. Without objection. 

[The letters appear as a submission for the record.] 

Senator GRASSLEY. I have concerns that changes to ex parte orders could have a dangerous impact by discouraging their use as 

a means to balance between defendants’ rights and the protection 

of sensitive information. There could be unwarranted disclosure of 

classified information in national security cases such as terrorism 

and espionage prosecutions. Further, these changes could impact 

witness safety as they could require Justice attorneys to provide 

evidence that could be used to harm or intimidate witnesses, a sad 

but true reality of high-profile criminal prosecutions. Where I think 

we can all agree is that reforms are needed at the Justice Department, and I support Senator Murkowski’s efforts to achieve reform 

in the Department. I believe the failures in the Stevens case were 

not simply just a couple of line attorneys making bad decisions, so 

that brings me to something I have been crusading for a long time. 

I have been concerned about the double standard of discipline at 

the Justice Department and FBI. As recently as May 2009, the 

DOJ Inspector General found that ‘‘a perception of a double standard of discipline between higher-ranking and lower-ranking employees continues.’’ This perception was backed by the Inspector 

General’s findings that senior executives at the FBI had OPR findings reversed 83 percent of the time compared with lower-level career employees who had their findings overturned 18 percent of the 

time. While no similar review of Justice Department OPR findings 

was conducted, it is easy to see with the OPR report in the Stevens 

case how this perception continues. 

Another area of concern for me with Justice is the growing list 

of high-profile failures in the Public Integrity Section. Just last 

week, a jury found former Senator John Edwards not guilty on one 

count and a mistrial was declared on five others. 

Then there was the prosecution of State legislators in Alabama 

that ended in two acquittals, a hung jury, and allegations from the 

judge that the Government’s witnesses were racist. Add to this list 

the Stevens prosecution, the failure of the prosecution of Governor 

Blagojevich, and a pattern appears. However, this pattern is not a 

recent trend and dates back to the 1990s. At that time, the Public 

Integrity Section was unwilling to prosecute cases. When the FBI 

presented evidence of campaign finance violations in the Clinton 

administration, it looked the other way. When the FBI Director 

concluded that the law required the appointment of an independent 

counsel, the Justice Department disagreed based on frivolous legal 

analysis, keeping the cases within DOJ but then refusing to prosecute. Hearings were held in the Senate, and the poor management 

of the Public Integrity Section was documented 15 years ago. 
5 

Clearly, something must be done at the Department to address 

the failures of the Public Integrity Section, the double standard of 

discipline, and the discovery failures. Department Attorney General Cole is here today on our second panel to talk about a remedial effort taken following the Stevens case and ongoing efforts to 

correct the problems. I am not sure that these efforts will be 

enough, and we may need to act in Congress. That is why today’s 

hearing is so important. 

Thank you very much. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Chairman LEAHY. Thank you. 

We will begin with Senator Murkowski, Alaska’s senior Senator. 

She and I have talked about this case on a number of occasions. 

We also worked together to pass a strong bipartisan reauthorization of the Violence Against Women Act in the Senate, and I appreciate that. I am hoping it is going to be enacted into law soon. In 

March, she introduced the Fairness in Disclosure of Evidence Act 

of 2012, on which she is going to testify today, and I told her at 

the time we would have a hearing. 

Senator Murkowski, thank you for taking the time to be here. 

STATEMENT OF THE HONORABLE LISA MURKOWSKI, A 

UNITED STATES SENATOR FROM THE STATE OF ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman, and to the 

Ranking Member, I so appreciate the fact that you have convened 

this hearing today to take up what I believe we all agree is an important issue, and that is, as we explore whether our federal prosecutors are meeting their discovery obligations. It is an important 

issue for this Committee to pursue as it goes directly and intimately to the question of whether federal criminal defendants are 

being treated lawfully and consistently by application of divergent 

Brady practices across the various judicial districts here in the 

United States. 

I am hopeful that this oversight hearing will be followed in the 

near future by a legislative hearing on the bill which you have addressed, which is S. 2197. It would establish uniformity in compliance with the Brady obligations. It would establish uniformity basically in three different ways: the what, the when, and the how if 

Brady is not complied with. 

So with respect to the what, S. 2197 would eliminate the materiality requirement as a matter of statutory law and end the practice 

through which prosecutors rationalize their way out of disclosing 

material evidence by claiming that it is not material. 

With respect to the when, the legislation would direct that prosecutors disclose Brady and Giglio material as early in the process 

as is feasible, and this would enable both sides then to evaluate the 

merits of the cases and promote appropriate and efficient dispositions. 

And then, finally, S. 2197 provides trial judges with a broad 

range of remedies that can be employed if Brady obligations are 

not obeyed and the confidence then to use them. 

To appellate courts, what it does is send a strong message that 

the Brady obligation is mandatory, it is not optional, and that the 
6 

harmless error rule should be used sparingly when evaluating 

breaches of a Brady obligation. I believe that the legislation strikes 

an appropriate balance between competing interests in particular 

with respect to the issue of witness intimidation and protection of 

classified information, which Senator Grassley has raised. 

The bill has been endorsed by pretty broad and wide-ranging 

groups, well-respected groups. We have got the American Bar Association that has supported it, the American Civil Liberties Union, 

the U.S. Chamber of Commerce, so clearly coming from divergent 

perspectives but all in support of this legislation. 

Of course, the bill does have its detractors, most notably the U.S. 

Department of Justice, and I would like to take a moment to address my concerns with their approach taken to the legislation. 

It has been widely reported in the legal press that the Justice 

Department has historically opposed efforts to establish a uniform 

Brady process. I have consistently said that Congress is perhaps 

not the most desirable of places to deliberate on Brady reform. 

Ideally, these issues would be sorted out by the Advisory Council 

on the Federal Rules of Evidence. The Justice Department would 

have us believe that the Advisory Council has considered Brady reform on its merits and then rejected it. But the legal press indicates that the Advisory Council’s reform efforts have been abandoned as a direct result of the Justice Department opposition. 

I would also like to comment on the superficial approach that the 

Justice Department has taken to its evaluation of the legislation. 

The Department first criticized the bill in the press after it was introduced and subsequently in hearings before the House Judiciary 

Committee. The Justice Department would have us believe that 

this legislation somehow is going to open the jailhouse doors, let 

the criminals and let the terrorists all run free—precisely the same 

sort of superficial arguments that are used so frequently to argue 

that searches conducted and evidence seized in violation of the 

Fourth Amendment should be excluded, precisely the sort of argument used to argue that the Miranda rule should be eliminated. 

Now, under our system of justice, the victim has rights, the government has rights, and the defendant has rights. And one of the 

defendant’s rights is the disclosure of exculpatory evidence in the 

hands of the government. Another of the defendant’s rights is access to information suggesting that a government witness might 

not be forthright and truthful. The government’s interest in prosecution is balanced then against the defendant’s interests in a fair 

trial. In this instance, the government would have us ignore that 

the defendant has rights which need to be uniformly administered, 

and that is how the government got into the Brady mess that it 

presently finds itself in. 

As this Committee hear from Mr. Schuelke, prosecutors from 

time to time exhibit a contest mentality which gets in the way of 

their judgment with respect to the rights of the defense, and that 

is why I think it is important for Congress to speak to the obligations with a single and enduring voice. A criminal defendant’s 

rights should not depend on whether or not Mr. Holder or someone 

else is the Attorney General or whether the Attorney General 

comes from one party or another. The obligations and the rights 

should be uniform, they should be predictable, and they should be 
7 

consistent. And as you have noted, Mr. Chairman, it should not 

make any difference who that defendant is. 

Now, I would also acknowledge that some would argue that S. 

2197 is not sufficiently protective of the interests of defendants. 

These experts would have us go to an open-file system of discovery. 

I do think that there are merits to this approach provided that the 

exceptions do not swallow up the rule and discovery is provided 

sufficiently early in the process to then be meaningful. 

My suggestion to the Justice Department is that they express a 

willingness to work with me and the Committee on a set of unified 

Brady practices that can be legislated. If the Justice Department 

thinks that S. 2197 is not sufficiently balanced or protective of 

some interest or another, perhaps they could propose a concept 

that would make it more balanced. But I am sad to say that since 

my legislation was introduced in March, I have had no direct contact from the Justice Department until yesterday when Mr. Cole 

did call me to discuss this hearing. But I think that that suggests 

that the Justice Department does not take this effort seriously, and 

if that is the case, it suggests that this is somewhat of an arrogant 

or a dismissive approach. And I think that is unfortunate. 

I would respectfully submit that the Justice Department is in no 

position to be arrogant. The latest chapter in the Ted Stevens prosecution demonstrates that beyond a reasonable doubt. Every time 

I read a postmortem on the Stevens prosecution, I am left more 

and more convinced that it was fatally mismanaged from the getgo, and the Justice Department’s unwillingness to stop it from 

going to the jury despite the many red flags that justice had not 

been done I think is unconscionable. 

The Office of Professional Responsibility report released in late 

May reveals that there was considerable doubt as to whether the 

Justice Department would go forward with the indictment. Once it 

did go forward, it is evident that the case was mismanaged from 

the very top to the very bottom. Senior Public Integrity Section 

managers were more interested in the egos of staff attorneys 

passed over for first-chair responsibilities than seeing that Brady 

was carried out. Brady obligations were delegated to law enforcement officials who were neither properly trained nor supervised to 

carry out their responsibilities. 

There was poor communication between Washington and the 

Alaska attorneys that were working the Brady issue, and in spite 

of all of these deficiencies, the Office of Professional Responsibility 

offers only a slap on the hand to one senior official in Main Justice—that would be Ms. Morris—who was responsible for supervising the case, not anything directed toward her boss. 

I would also note that while Mr. Schuelke found that the Brady 

violations committed by two members of the Alaska U.S. Attorney’s 

Office were intentional, the Office of Professional Responsibility 

simply discards this finding, and the reason, I think, is obvious. 

The Office of Professional Responsibility never once considered Mr. 

Schuelke’s findings. Its report was issued August 15, 2011, about 

90 days before Schuelke’s report was completed. I cannot understand why the Office of Professional Responsibility did not go back 

and reconsider its report in light of Schuelke’s conclusions. 
8 

The public deserves to know whether the Office of Professional 

Responsibility concurs with each of Schuelke’s conclusions, or does 

not, and why. The Department’s plans to expeditiously close the 

books on this unfortunate episode will prevent the people of Alaska 

from ever reaching closure on this issue. 

The Ted Stevens prosecution was one of the most sensitive and 

probably one of the most delicate, one of the most important prosecutions that the Justice Department has ever undertaken, and I 

say this because few prosecutions cut as close to the relationship 

of the American people to the government as this one did. 

If the Justice Department is going to allow a case involving a sitting Senator seeking reelection to go to a jury weeks before that 

Senator’s general election, it must be absolutely certain that the 

defendant’s rights were meticulously observed. In other words, if 

the Justice Department had the slightest doubt that it conducted 

its trial in the fairest fashion, it should have asked for—it actually 

should have demanded a mistrial. 

With 20/20 hindsight, there is no question that this case should 

never have gone to the jury, and with 20/20 hindsight, it is now 

evident that the right of the people of Alaska to select a Senator 

of their choosing was interfered with by the Justice Department’s 

malfeasance that permeated every aspect of this prosecution. This 

is truly one of the darkest moments in the Justice Department’s 

history. I have said that before. We are no longer able to do justice 

to Senator Stevens as he was defeated and then died less than two 

years later. But we can, through legislation, through reforms, make 

a start in ensuring that the same fate does not befall other defendants. 

Mr. Chairman, I thank you for your attention to this issue and 

look forward to working with you and Members of the Committee. 

[The prepared statement of Senator Murkowski appears as a 

submission for the record.] 

Chairman LEAHY. Well, thank you. 

The providing of exculpatory evidence to a defendant should be 

the sine qua non of any prosecution, whether it is a State prosecution, a federal prosecution, or any prosecution. If we are going to 

have a justice system, justice, the true meaning of the word ‘‘justice,’’ I do not care whether it is a State court, a federal court, if 

the prosecution has exculpatory evidence available only to them, 

they have a duty to give it to the defense. They might not like the 

idea, but that duty, unless it is enshrined in the minds of everybody, our justice system is damaged. I felt this as a prosecutor. I 

feel this as a Senator. I feel it especially as an American. 

I know, Senator Murkowski, that you have other places you are 

supposed to be, and Senator Grassley and I have already discussed 

this. We will not have questions at this time for you, but I thank 

you for being here. 

Senator MURKOWSKI. I thank you. And, again, I look forward to 

working with the Committee and the Department as we resolve 

these issues. Thank you. 

Chairman LEAHY. Senator Murkowski mentioned James Cole 

and the conversation they had. Mr. Cole was confirmed by the Senate to be the Deputy Attorney General at the Department of Jus-
9 

tice. It is the number two leadership position at the Department. 

He was confirmed June 20, 2011. 

Mr. Cole first joined the Department in 1979 as part of the Attorney General’s Honors Program, served for 13 years, first as a trial 

attorney in the Criminal Division, later as the Deputy Chief of the 

Division’s Public Integrity Section, the section that handles investigation and prosecution of corruption cases against officials and 

employees at all levels of government. He entered private practice 

in 1992 and was a partner at Bryan Cave from 1995 to 2010 specializing in white-collar defense. 

I have known Mr. Cole for years, and I am delighted to have you 

here. Please go ahead, and then we will open it up to questions in 

the usual order, going back and forth between both sides. 

STATEMENT OF THE HONORABLE JAMES COLE, DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. COLE. Thank you, Mr. Chairman. Chairman Leahy, Ranking 

Member Grassley, and distinguished Members of the Committee, I 

appreciate the opportunity to appear before you to discuss the Department’s commitment to criminal discovery procedures that will 

result in fair trials, the serious public safety risks that would result 

if pending discovery legislation were enacted, and also to talk about 

the recently imposed discipline on two prosecutors responsible for 

the discovery failures in the prosecution of former Senator Ted Stevens. Having been both a prosecutor and for nearly 20 years a 

criminal defense attorney, I understand the critical importance of 

all of these issues. 

What occurred in the Stevens case was unacceptable, but it is 

not representative of the work of the prosecutors in the Department of Justice, and it does not suggest a systemic problem warranting a departure from longstanding criminal justice practices 

that have contributed to a record reduction in the rates of crime 

in this country and that have provided defendants with a fair and 

a just process. The Stevens case was one in which the well-established rules governing discovery were violated. It is not one in 

which the rules themselves were found to be insufficient to ensure 

a fair trial. 

The lesson from Stevens was not that the scope of existing discovery obligations needed to change but, rather, that the Department needed to focus intently on making sure that its prosecutors 

understand and comply with their existing obligations. And we 

have done just that. 

Under Attorney General Holder’s leadership, the Department has 

taken unprecedented steps to ensure that federal prosecutors meet 

their discovery obligations. In January 2010, my predecessor issued 

a memorandum instructing prosecutors to provide broader and 

more comprehensive discovery than before, to provide more than 

the law requires, and to be inclusive when identifying the members 

of the prosecution team for discovery purposes. 

Since then, the Department has instituted mandatory rigorous 

training for all federal prosecutors, appointed a national criminal 

discovery coordinator who reports directly to me, appointed local 

discovery coordinators in each U.S. Attorney’s Office, and provided 
10 

prosecutors with key discovery tools such as online manuals and 

checklists. 

The specific steps we have taken, which are detailed in my written testimony, have already had a demonstrable effect of improving 

criminal discovery practices nationwide. And what is more, we 

have institutionalized these reforms so that they will be a permanent part of the Department’s practice and culture. 

Despite these actions, some have argued that legislation is necessary to alter federal criminal discovery practice. The Department 

does not share that view. Legislation along the lines being proposed 

by Senator Murkowski would alter the balance between ensuring 

protection of a defendant’s constitutional rights and safeguarding 

the equally important public interest in a criminal trial process 

that reaches timely and just results, safeguarding victims and witnesses from retaliation and intimidation, protecting ongoing criminal investigations from undue interference, and recognizing critical 

national security interests. 

Unfortunately, our concerns are more than merely theoretical, 

and in my written testimony, we set forth examples of witnesses 

being intimidated, assaulted, and even killed after their names 

were disclosed in pretrial discovery. Law enforcement officials 

throughout the Nation repeatedly confront chilling situations 

where witnesses are murdered to prevent them from testifying. 

The bill ignores the very substantial costs the legislation’s additional disclosure requirements would impose—costs to the 

reputational and privacy interests of witnesses, and, if witnesses 

become less willing to step forward, costs to society from the loss 

of the just conviction of the guilty. In national security cases, such 

results could have devastating consequences with respect to the 

government’s ability to protect the American people, an ability that 

depends upon obtaining the cooperation of confidential human 

sources. 

The bill would also give the defendants the perverse incentive to 

wait to plead guilty until close to trial in order to see whether they 

can successfully remove identified witnesses from testifying against 

them. These are real costs and ones that both the Supreme Court 

and the Congress have taken great pains to avoid incurring. Unfortunately, they are costs that the bill does not account for. 

But it must be noted that when the Department discovers that 

the applicable rules that exist have been violated, it takes disciplinary action. Late last month, the Department provided this Committee the OPR investigative report in connection with the federal 

prosecution of Senator Stevens. That report reflects OPR’s thorough examination of the allegations of misconduct in the case. OPR 

concluded that the government violated its obligations under the 

constitutional Brady and Giglio principles and under the Department of Justice policy by failing to disclose exculpatory statements 

by the prosecution and by prosecution witnesses during trial preparation sessions and law enforcement interviews and by failing to 

disclose a witness’ alleged involvement in securing a false sworn 

statement. 

OPR found that two prosecutors violated existing rules, thus depriving Senator Stevens of a fair trial. With respect to those two 

prosecutors, the Department found each should be suspended with-
11 

out pay, one for 40 days, the other for 15. The prosecutors violated 

existing rules and are being held to account for that violation. 

The objective of the criminal justice system is to produce just results. This includes ensuring that the processes we use do not result in the conviction of the innocent, and likewise ensuring that 

the guilty do not go free. It also includes an interest in ensuring 

that other participants in the process—victims, witnesses, and law 

enforcement officers—are not unnecessarily subjected to physical 

harm, harassment, public embarrassment, or other prejudice. 

For nearly 50 years, a careful reconciling of these interests has 

been achieved. The legislation proposed by Senator Murkowski 

would disturb this careful balance without a demonstrable improvement in either the fairness or the reliability of criminal judgments and in the absence of a widespread problem. 

As the Judicial Council’s Rules Committee recently agreed, the 

rules of discovery do not need to be changed—and the Stevens case 

did not prove otherwise. Rather, it demonstrates that prosecutors, 

their supervisors, and other law enforcement officials need to recognize fully their obligations under these rules that do exist. They 

must see to it that they are applied fairly and uniformly and must 

be given tools to meet their discovery obligations rigorously. This 

is what the Department has done since the Attorney General directed the dismissal in the Stevens case. And it is what the Department will continue to do in the future under the policies and procedures that have been implemented and institutionalized during the 

past three years. 

Thank you, Mr. Chairman. I am prepared to answer any questions. 

[The prepared statement of Mr. Cole appears as a submission for 

the record.] 

Chairman LEAHY. Well, thank you. The Attorney General did the 

right thing in directing, even after the guilty verdict, the dismissal 

of the Stevens case because of all the misconduct there. What I 

worry about—and I must admit I come at this with the mind-set 

I had as a prosecutor, and I know some of the superb prosecutors 

we have, not only our State prosecutors but in our federal system. 

But I also know that with some you get this idea of an environment where securing a conviction is the most important measure 

of a prosecutor’s success. And if you are in the Justice Department, 

you have huge resources behind you. Millions of dollars were spent 

on this fiasco, and in the Edwards case to get a hung jury and a 

not guilty verdict. Whether you believe one way or the other about 

Mr. Edwards’ conduct, but many people from the right to the left 

have asked what was the crime involved, not behavior anybody 

would approve of, but what was the crime. But millions of tax dollars were spent on that. In the Stevens case, it seemed to be driven 

by let us get a conviction at all costs, and somehow justice, the 

question of justice, gets lost. 

Now, some have criticized the OPR report for focusing more on 

the conduct of line attorneys than on the role of supervisory failures in the Stevens prosecution. The OPR report concluded that 

two Alaska-based line prosecutors committed reckless professional 

misconduct and recommended suspension but did not make a professional misconduct finding against any of the other prosecutors. 
12 

And one of the supervisors of the Stevens prosecution was found 

by OPR to have exercised poor judgment and failed to supervise 

discovery but was not disciplined. 

What responsibility does supervision and the leadership of the 

Public Integrity Section and the Criminal Division bear for what 

happened in the Stevens case? It is easy to talk about the line attorneys, but at the higher level, the supervisor, what kind of responsibility did they have? They are certainly well aware of this 

case going on. 

Mr. COLE. Well, Mr. Chairman, I think there are two separate 

issues here. One is the question of misconduct from the OPR findings, and the other is a question of good management. As you have 

pointed out in talking about Attorney General Jackson and as Justice Jackson noted in his opinions, the role of the prosecutor is to 

make sure that justice is done at all costs. It is not just to win; it 

is to make sure justice is done. 

In regard to the two line attorneys, they were found to have actually committed professional misconduct by OPR, but the OPR report, as did the Schuelke report, goes into the management failures 

and the supervisory failures of some of the people who were in the 

supervisory line in that matter. They did not find that they had engaged in professional misconduct, but they found that they had not 

performed as they should have as managers. That is different. It 

is not something to be sanctioned in that way. But I will note that 

as soon as the review that was done that Attorney General Holder 

had ordered after the allegations in the Stevens case came to light, 

the two supervisors that were in the Public Integrity Section were 

assigned to non-supervisory positions. And so from the management role standpoint, that was being dealt with. 

Chairman LEAHY. Well, we have what Terrence Berg said, who 

was a long-time career prosecutor initially charged with assessing 

discipline in the matter. He said, ‘‘Conduct by the supervisors was 

of equal or comparatively greater consequence in causing the disclosure violations, created a unique and extremely difficult set of 

circumstances under which line attorneys were required to function.’’ 

Without going into a debate of whether he is right or wrong in 

that, do you believe the changes that you have instituted in the Department of Justice addressed this problem? 

Mr. COLE. Yes, Mr. Chairman, I do think the changes we have 

made address this problem. We have taken great pains to try and 

elevate the issues of proper discovery and following the rules of discovery to a point where everybody, every supervisor, every trial attorney, is required every year to take the training. As the Deputy 

Attorney General, I am required to take this training every year. 

It is the constant topic not only of training, but of supervisory control over every case. It is one of the things we always ask about 

and always make sure is being done, that the rules that we have, 

which are robust, for discovery are being complied with. 

Chairman LEAHY. But those are your rules, and I commend the 

rules. I have commended both you and Attorney General Holder on 

that. But if the Department determines you have to have these 

kind of rules and broader disclosure of exculpatory and impeachment evidence, even more than the Constitution requires to make 
13 

sure everything is fair, the Congress looks at it. Attorneys General 

come and go. Why should Congress not consider codifying these 

policies in order to allow for consistent enforcement by independent 

judges? Which sort of goes to the question that Senator Murkowski 

raises. That will be my last question. 

Mr. COLE. I think you raise a good question, Mr. Chairman, and 

it is one we have thought about a great deal. As we went and developed the standards that we use for discovery disclosures, particularly for Brady and Giglio material that are in the U.S. Attorneys’ Manual—and those have been in there since 2006—they go 

beyond, as you noted, the constitutional minimums, and that is 

something that we want to encourage in the Department of Justice, 

that the constitutional minimums are just that. They are the minimums that the law requires. But we want our prosecutors to go beyond them, and we want them to use their discretion and their 

abilities in these cases to make sure that fairness is being done. 

So anytime that the Department should voluntarily decide that 

it will go beyond what the law requires and give defendants in 

criminal cases more than the law demands that they be given, if 

you then take that as the benchmark and say, okay, we are now 

going to codify that, I am concerned that it would be a disincentive 

for the Department to ever go beyond what the law requires if it 

starts to then become the new floor. And the Department will say, 

well, we do not want to keep moving that floor; we want to make 

sure that we have the ability—because some of these issues, what 

is favorable to the defendant, what is significant to the defendant’s 

case, are sometimes judgment calls, and we want to encourage our 

prosecutors, with a little bit of a buffer, to make those judgment 

calls generously. But if you start putting them into the new floor, 

if you will, by codifying them, you start making prosecutors just 

hew to the minimums, and I would rather that they not hew to the 

minimums. I would rather that they go beyond them. 

Chairman LEAHY. We will have more discussion of that, but I 

want to yield to Senator Grassley, who is the Ranking Member and 

famously known as the grandfather of Pat Grassley, who won his 

primary last night. 

[Laughter.] 

Chairman LEAHY. Congratulate your grandson for me. 

Senator GRASSLEY. I will, and I am sure the whole country 

knows it now. 

First of all, Senator Hatch was here for just a short period of 

time. He had to go to the floor, and he wanted me to express that 

he had great interest in this issue. He wants to see that the crimes 

against Senator Stevens, et cetera, do not happen again, and he 

may be able to come back, but just in case he does not. 

Also, I had questions along the lines of your questioning, so I am 

not going to go over that ground again. 

Mr. Cole, obviously, you know, we are upset about the misconduct of the prosecutors in the Stevens case. We do not want future instances of people having their constitutional rights denied. 

If S. 2197 had been in effect during the Stevens case, would the 

results have been any different? And could you explain why they 

would be different? 
14 

Mr. COLE. Senator Grassley, I do not think the results would 

have been different because the problem was not what the rules 

were that were in place. The problem was that the prosecutors in 

the case did not follow the rules, and that was the real damage and 

harm in the Stevens case. So we believe and we are confident that 

the rules, had they been followed, would have produced all of the 

information that should have been produced in the Stevens case 

and it would have been a fair and a just trial. 

Senator GRASSLEY. You heard what I said in my opening remarks about the Inspector General of the Department reviewing 

disciplinary procedures at the FBI. In 2009, the Inspector General 

found that a perception of a double standard continues to plague 

the FBI; however, the report also found that 83 percent of the SES 

employees had negative disciplinary proceedings overturned compared to only 18 percent of career employees. The OPR report continues to support the theory of a double standard by holding line 

attorneys accountable but not their managers, despite both the 

Schuelke and Berg reports finding the mismanagement of DOJ superiors was a significant factor. 

How should we view the OPR report as anything but evidence of 

a double standard of discipline for managers and line employees? 

Mr. COLE. I do not think the OPR report does show a double 

standard, Senator. I think what we have here is two different sets 

of conduct. We had misconduct by the line prosecutors by not fulfilling their discovery obligations. And I think we had poor supervision and mismanagement by the supervisors in not making sure 

that the trial attorneys were, in fact, paying attention to those 

rules, as was gone through in great detail in both reports, by 

micromanaging the trial teams as opposed to letting them do their 

jobs. 

Those are the kinds of things, while we do not think they are 

proper and we do not think it is the way our managers should perform, they do not rise to the level of misconduct. So we deal with 

them as a management issue as opposed to a misconduct issue because they do not violate rules, but they do not produce the kinds 

of results we want to have produced in the Department of Justice. 

So we dealt with that as a management issue. 

Senator GRASSLEY. Well, then let me follow up on whether or not 

you believe Morris and Welch had a duty as attorneys in charge 

to oversee the production of Brady material. And why were they 

not held accountable by OPR for the failures in the Stevens case 

even though the Schuelke and Berg reviews thought they should 

be? 

Mr. COLE. Well, first of all, OPR did find that there was poor 

judgment on the part of Ms. Morris, who was the chief trial attorney on the trial team and had delegated the review of the Brady 

material to an FBI agent, which is unusual, and had not ensured 

that all the trial attorneys had gone back and reviewed what 

redactions were being made and made sure that what was being 

produced was all that should be produced. 

It was not as though she was personally aware of things that 

were not being produced, and that was her poor judgment failure, 

that she was not aware and she was not supervising it properly. 

But that is different than misconduct. 
15 

The concern that I think we find with Mr. Berg’s view is that he 

was not suggesting that the supervisors be elevated to the level of 

misconduct. He instead was suggesting that the trial attorneys, 

their misconduct would be discounted because of poor supervision. 

And I think that both OPR disagreed with that, the head of the 

Professional Misconduct Review Unit disagreed with that, and that 

is why there were changes made in that regard. 

Senator GRASSLEY. In our investigation of Fast and Furious, a 

supervisor in the U.S. Attorney’s Office in Arizona named Patrick 

Cunningham refused to testify before the House Oversight Committee on grounds that he might incriminate himself. He then resigned a few days later. This raises questions about how the Department manages situations where the prosecutor may have engaged in criminal misconduct. I understand that Mr. Cunningham 

has a constitutional right of the Fifth Amendment, but does he 

have the right to continue supervising federal prosecutors after 

having pled the Fifth? And, hypothetically, if he had not resigned, 

would you have allowed him to continue supervising prosecutors 

while invoking his Fifth Amendment rights? 

Mr. COLE. Senator, in that matter, obviously Mr. Cunningham 

had his own counsel. His counsel gave him advice on whether or 

not he should assert his Fifth Amendment right, and he proceeded 

in that regard. He left fairly shortly after that, and we were not 

in a position of having to evaluate that. 

What we would normally do in those situations is try and find 

out what the facts are behind the matter and make our judgment 

based on those facts. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you, Mr. Cole. 

As Senator Leahy mentioned, many of us up here are former 

prosecutors, and I always viewed that job as—we would always call 

it a ‘‘minister of justice,’’ that our job went beyond prosecuting the 

guilty. It was also protecting the innocent, and I think a larger 

duty to uphold the system of justice and uphold the system of law, 

and that is what is so troubling about what happened here. 

I was listening to your answer to Senator Leahy’s last question 

about why not codify the rules that we have in place, and I think 

your answer would be—and you can change it if you like, but that 

we are doing better—you know, we have started this education effort with all the prosecutors and done something. When Attorney 

General Holder came in, he started a new program here. But is 

there any way to track whether this has worked as opposed to codifying these rules in terms of disciplinary actions, in terms of appeals, in terms of reversals before this education on discovery was 

put in place? 

Mr. COLE. Well, one of the things, I think, that needs to be pointed out is that the instances where there have been findings of misconduct for violating the discovery rules is infinitesimally small. 

We have looked at it over, I think—— 

Senator KLOBUCHAR. And you are talking about it under Attorney General Holder or former—— 
16 

Mr. COLE. Even, frankly, before that. We have looked at it over 

the past 10 years, and the percentage of cases where there have 

been discovery violations, where there was misconduct involved, is 

something like three-hundredths of one percent of all the cases that 

have been brought. And I think it is worth pointing out there is 

no shortage of defense attorneys, having once been one, who will 

make any argument that there is a discovery violation at any moment in any case and push that very, very hard. Also, anytime that 

a judge who is in charge of the case sees any discovery violation, 

the judge, if he puts it into an opinion, our Office of Professional 

Responsibility picks that up. They look at all legal opinions to find 

any indication of that. And under our own rules, if a judge makes 

that kind of finding, even if the prosecutor disagrees with it, the 

prosecutor is required to inform OPR that, in fact, the judge has 

found that there was a discovery violation. So we have a lot of 

sources to put allegations of discovery violations into the system. 

I think part of what we look at in terms of any additional legislation to codify what is being done is that you are legislating judgment, and I think that is a difficult thing to do. The rules are good 

rules. They provide beyond the constitutional minimums. They provide what should be done on an everyday basis to make sure that 

nobody, whether they are rich or poor or famous or not famous, 

gets a fair trial. What is really the heart of what happened in the 

Stevens case was bad judgment, not paying attention, and poor supervision. 

Senator KLOBUCHAR. And you must understand where Senator 

Murkowski is coming from, hearing her passion for this, that she 

is really standing in Senator Stevens’ shoes. He sadly, tragically, 

cannot be here today. How do you respond to some of the things 

that she said about the timing of this and what happened in terms 

of the Justice Department’s decision to move forward? 

Mr. COLE. Well, obviously, the decision to move forward with the 

case was made long before I was in the Justice Department, long 

before Attorney General Holder was in the Justice Department. So 

I cannot really speak to what those decisions—how those decisions 

were made. 

I can understand Senator Murkowski’s concerns. We find what 

happened in the Senator Stevens case wholly unacceptable. And I 

am hard-pressed to find another instance where the Attorney General would come in, look at a case, see a discovery violation, and 

instead of just saying let the court work it out, walk in and take 

the initiative of actually dismissing that case on our own initiative. 

That is very unprecedented. 

Senator KLOBUCHAR. The last question. My ears perked up when 

I heard you talk about the potential danger of disclosing names. 

We had several cases when I was a prosecutor where jurors were 

actually threatened because their names were out there or people 

had identified them. Could you just walk through your concerns 

about that issue? 

Mr. COLE. We have had a number of instances where, while people are awaiting trial, they may find out the name of one of the 

witnesses or two of the witnesses or several of the witnesses 

against them. We have had instances—and it is detailed in my 

written testimony—where the family of a witness, their house was 
17 

firebombed in the middle of the night, and several children and 

some adults, relatives of this witness, were in the house and were 

killed. We have had a witness who walked out of a halfway house 

after having been identified who was killed to prevent her from testifying at trial. We have had instances where the defense attorney 

received the name and the statements of witnesses in the course 

of discovery, gave them to a relative of the defendant, and the witness was then killed. 

So these, sadly, happen more than we would like to see them 

happen and create a great concern on our part that this be carefully controlled. You still have to have discovery. You still have to 

make sure that the trial is conducted fairly. But these are countervailing concerns that are very important that need to be protected 

and taken care of. 

Senator KLOBUCHAR. Thank you very much for your testimony. 

Mr. COLE. Thank you, Senator. 

Chairman LEAHY. Thank you very much, Senator Klobuchar. 

I am going to yield to Senator Cornyn but first ask consent that 

a letter from the Chair of the Judicial Conference Committee on 

Rules of Criminal Procedure sent to Senator Grassley and myself 

be included in the record. 

[The letter as a submission for the record.] 

Chairman LEAHY. Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman, for holding this 

hearing. Good morning, Mr. Cole. 

Mr. COLE. Good morning, Senator. 

Senator CORNYN. I join Senator Grassley in expressing deep concern about what appears to be a troubling lack of accountability at 

the Department of Justice, and it is not just limited to this one instance where there is a suspension of these lawyers for 15 and 40 

days. Under the circumstances of this case, it hardly seems adequate to dismiss the case once what happened here occurred, and 

then to have suspensions for that short period of time hardly seems 

like a just outcome. 

But I also would join Senator Grassley in expressing concern 

that as part of the investigation into the botched gunrunning operation known as Fast and Furious that the Department has unfortunately misled Congress. Mr. Breuer came back nine months after 

the fact and said, ‘‘Sorry about that,’’ but, again, very little accountability there. 

But what I want to focus my attention on and ask your opinion 

about are two sensitive national security leaks, specifically on our 

intelligence efforts on Iran’s pursuit of nuclear weapons, and the 

war against al Qaeda and the use of drone strikes, two highly sensitive and highly classified programs. 

First of all, just to lay the groundwork, is it a crime to leak classified information on the part of a government employee? 

Mr. COLE. Without going into all the details, generally, yes, it is, 

Senator. 

Senator CORNYN. Just looking at the article in the New York 

Times on the so-called Kill List and the President’s personal participation in that process and the process by which 100 national security personnel are patched in by videoconference to go through 

this list and then make recommendations to the President, it says 
18 

in this article that, ‘‘David Axelrod, the President’s closest political 

adviser, began showing up at the ‘Terror Tuesday’ meetings, his 

unspeaking presence a visible reminder of what everyone understood: a successful attack would overwhelm the President’s other 

aspirations and achievements.’’ 

Are you aware or can you confirm that Mr. Axelrod participated 

in that? And wouldn’t that concern you? 

Mr. COLE. Well, two things, Senator. Number one, Mr. Axelrod 

was no longer with the White House by the time I started serving 

as Deputy Attorney General; and, number two, those meetings are 

classified, so I would not be at liberty to talk about what occurred 

inside at those meetings. 

Senator CORNYN. In the article on the Kill List, which is intriguing and troubling in a number of different respects that I do not 

have the time to go into here, the reporters Joe Becker and Scott 

Shane said, ‘‘In interviews with the New York Times, three dozen 

of his current’’—meaning the President—‘‘and former advisers describe Mr. Obama’s evolution since taking on the role, without 

precedent in Presidential history, of personally overseeing the 

shadow war with al Qaeda.’’ 

As a prosecutor and Deputy Attorney General of the United 

States, does it trouble you that current and former advisers of the 

President would talk to reporters and disclose classified information about this highly sensitive program? 

Mr. COLE. It troubles me that anybody who has classified information and lawfully has it would then disclose it in violation of 

their duties to keep that classified information secret. 

Senator CORNYN. Are you aware that any of this had been declassified? 

Mr. COLE. I am not aware of any of that. 

Senator CORNYN. And, also, the whole issue of the use of cyber 

attacks to try to disrupt Iran’s pursuit of nuclear weapons, a highly 

sensitive and classified program, and I must say even in classified 

settings it is difficult for Members of Congress to get information 

on some of these issues. Now we read about it, of course, on June 

1 in the New York Times once again. 

It seems to be that there is some sort of coordinated effort to leak 

classified information, which, of course, jeopardizes the sources of 

that information, because if the sources realize that they are going 

to be exposed to being identified in public, then they are not likely 

to cooperate. Likewise, our allies whom we are working with would 

be unlikely to share information. And, indeed, disclosure of classified information like this makes the world a more dangerous place 

for the people of the United States. 

So I would just like to ask you, is it the intention of the Department of Justice to pursue an investigation? It seems to me that if 

you can—these interviews took place by talking to three dozen current and former advisers. Another article, the one on the cyber attacks, talks about quotations from President Obama, according to 

members of the President’s national security team who were in the 

room, I mean, that is a rather small and defined number of people 

who would be the potential source of those leaks. 

Is it your intention and the Department of Justice’s intention to 

conduct an investigation of this to see if prosecution is warranted? 
19 

Mr. COLE. I do not mean to dodge the question, Senator, but obviously we are talking about material that, if it exists, would be 

very classified, and the existence of it itself obviously would be 

classified. So it is a difficult topic to talk about without treading 

into the area of either confirming or denying that such information 

exists, which I think is also in the realm of how sensitive and classified anything like that might be, were it to exist. 

Senator CORNYN. So this information is so classified you cannot 

even confirm it—— 

Mr. COLE. Well, there is a lot of information that is classified at 

a very high level, and obviously, as you described it—I take you at 

your word that information of that nature would be very, very sensitive and agree that information of that nature, should it exist, 

would be very, very sensitive. 

Senator CORNYN. If confirmed, do you believe that a special prosecutor or special counsel would be warranted? 

Mr. COLE. I do not believe that it would be necessary in this 

case, no. 

Senator CORNYN. If I may ask, Mr. Chairman, just one follow-up 

question. Thank you for your usual courtesy. 

The problem of accountability that Senator Grassley addressed 

earlier and that I touched on, too, ranging across so many different 

topics to me raises the concern that I think the Justice Department 

is perhaps the hardest job that you and Attorneys General generally have, and that is to maintain a separation between the political operations of an administration and your separate professional 

responsibility as a lawyer and as the chief administrator of justice. 

Can you understand why people would be worried, if these types 

of stories were confirmed, that there has been not only cooperation 

but collaboration and a lack of accountability when it comes to 

maintaining those separate and distinct roles, pursuing justice and 

winning the next election? 

Mr. COLE. We are always cognizant of the fact that the role of 

the Justice Department is a very sensitive role and has to be separated from not only the actual influence of politics but the appearance of any influence of politics, and we take great pains to both 

separate what the Justice Department does from any actual or apparent influence by the White House and, with all due respect, trying to separate what the Justice Department does from any actual 

or apparent influence from the Congress, because we just do not 

want politics in it at all. 

Chairman LEAHY. The questions asked by the Senator from 

Texas are legitimate questions, and I worry that we see this so 

often. I do recall a time when then Director of the CIA, Mr. Casey, 

was required to report certain things to the so-called Gang of 

Eight, and over a period of several weeks he came up to the Hill 

three times to report something that had not been reported to Congress, even though required by law to be reported to Congress, but 

had been on the front page of the New York Times. On the third 

time that he came up, he was asked in the hearing, ‘‘You want to 

report these things to us, but you never do. Wouldn’t it be easier 

just to send us each a copy of the New York Times marked ‘Top 

Secret’? ’’ Because three things would happen: one, we would get 

the information in a more timely fashion than we ever got it, from 
20 

Mr. Casey; second, we would get greater detail; and, third, of 

course, you would have that wonderful crossword puzzle. 

[Laughter.] 

Chairman LEAHY. I appreciate the chuckles insofar as I was the 

one that said that to him, but I appreciate the chuckles around the 

room. I should note for the record that Mr. Casey was not amused. 

Senator CORNYN. Mr. Chairman, if I may—— 

Chairman LEAHY. And I do not suggest by saying that that this 

is something amusing because, as I read these articles in the New 

York Times, like the Senator from Texas and we all have, you can 

get these briefings when you want. I remember sitting there just 

fuming as I read the details of what was—and I have not had a 

briefing yet to determine whether what was in there was accurate 

or not, so I am not saying whether it was—but if it was, it should 

not be in a newspaper. 

Senator CORNYN. Mr. Chairman, thank you for your comments 

and your leadership on these issues, but I would just—my concern 

really comes from our independent constitutional responsibility to 

provide oversight of the Federal Government, including the Department of Justice. And that implies, indeed requires, a certain accountability and transparency, and we need to get information to 

be able to do our jobs, or else we are failing to do our jobs in holding the Department of Justice or any federal agency accountable. 

Senator WHITEHOUSE. Mr. Chairman. 

Chairman LEAHY. We are in agreement on that. What I am going 

to do—Senator Whitehouse? 

Senator WHITEHOUSE. May I add one point while we are having 

this moment of discussion? That is, the executive branch has an 

enormous advantage in these discussions versus the legislative 

branch, which is that the executive branch has a great number of 

officials who are, by virtue of their official responsibilities, 

declassifiers. And as they utter classified information, it becomes 

declassified because they have uttered it. There are no declassifiers 

in the legislative branch of government. We have to go through exhaustive procedures. And so I just wanted to add that point to this 

discussion. I thank the Chairman for his courtesy. 

Chairman LEAHY. What I am going to do, I am going to yield to 

Senator Franken, and I am going to ask Senator Coons to take the 

gavel, and he has agreed to do that, as I go to another hearing. But 

thank you. And, Senator Franken, thank you. You have been here 

diligently through all of this. Please go ahead, sir. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Deputy Attorney General Cole, when the court-appointed special 

counsel appeared before the Committee in March, basically on this 

subject, I asked him whether in close cases could prosecutors 

present evidence to judges in camera and seek ex parte advisory 

opinions about their Brady obligations. He said that that was an 

option. Do your prosecutors ever take that approach? And, more 

generally, what instructions do you give your prosecutors when 

they are unsure whether to produce evidence? 

Mr. COLE. First of all, sure, prosecutors do take that approach. 

When I was a prosecutor, I would at times take that approach. But 

what we instruct our prosecutors to do—and it is in the U.S. Attor-
21 

neys’ Manual—is if it is a close call, turn it over. And that is the 

general rule that we want them to follow. 

Senator FRANKEN. Well, what if it is a close call as to whether 

it is a close call? 

Mr. COLE. If it is a close call that it is a close call, they should 

first seek some input from their supervisors, and there is a discovery coordinator who is even more advanced, has gone through 

more advanced training in each district to advise on discovery 

issues on the close calls. And if that does not answer the question 

and it really becomes one of those, there is an incredible reason 

why I cannot turn it over but I am not sure, it might be Brady, 

then we ask them to go to the court. 

Senator FRANKEN. That to me seems possibly one way to address 

the objections that the DOJ may have to Senator Murkowski’s bill, 

which is maybe that could be a procedure build in that you go to 

the judge, and that way there is some third party who is not doing 

the prosecuting deciding whether this information should be— 

whether it is safe to pass on in terms of all those witnesses you 

talked about who are getting blown up. Is that idea out of bounds 

for you or what? 

Mr. COLE. It already exists. It is already there. I do not think 

we need to legislate for it because the judges are available in those 

situations to make those rulings. Judges make discovery rulings all 

the time on any number of different things, and when you get into 

very close calls on Brady issues, the judges are available to look 

through those as well. 

Senator FRANKEN. But that is up to the discretion of the prosecutor. 

Mr. COLE. To initiate it, that is right. 

Senator FRANKEN. Yes, that is what I am saying. 

Mr. COLE. But, again, I think that anytime you would initiate it, 

it is one of those where you are going to be making the judgment 

call up front that it is a close, close call. Under our rules, we are 

telling you if it is a regular close call, turn it over. 

Senator FRANKEN. Okay. Well, just a suggestion. 

Mr. COLE. Thank you. 

Senator FRANKEN. You are welcome. 

Mr. Cole, in your written testimony, you say that ‘‘true improvements to discovery practices will come from prosecutors and agents 

having a full appreciation of their responsibilities . . .’’ Don’t you 

think that defense lawyers have a role to play here, too? And if so, 

what do you think that role should be? 

Mr. COLE. Well, they do have a role to play, just like the role 

they play in any trial. It is an adversarial proceeding, and defense 

attorneys are there to make sure that their client’s rights, including the discovery rights, are honored. And even when a prosecutor 

who may have his or her own view of what should or should not 

be turned over, the defense attorneys are there to try and challenge 

that and to push it and to make sure that anything that comes out 

is everything that should come out. 

I think it should be noted again that the failures in this receive 

a lot of attention, but they are actually very rare. But when they 

happen—and if it happens once, it is unacceptable from our point 
22 

of view. But when it happens, they do get a lot of play, and, frankly, they should get a lot of play because it is unacceptable. 

Senator FRANKEN. Most cases result in plea bargains. What are 

the Justice Department’s policies with respect to the disclosure of 

exculpatory evidence during plea negotiations? 

Mr. COLE. Well, I think that every prosecutor, if they are aware 

of information that indicates that the defendant who is planning on 

pleading guilty did not commit the crime, they should not be taking 

that plea because they have a duty as an officer of the court to 

make sure that whatever is being done is, in fact, just and is based 

on the facts and the law. 

As far as something like Giglio material, whether there is an inconsistent statement from a witness or there is something in the 

witness’ background that may make them somewhat unsavory, 

that is not necessarily required to be turned over before a plea because really what you are focusing on there is how the trial might 

progress and how the proof might progress. But in a situation with 

a plea, the defendant, with the advice of counsel, has gone through 

their own view of whether or not it is appropriate for them to plead 

guilty, and they have made that decision knowing what it is they 

have done and knowing what it is they are willing to swear to 

under oath in court. 

Senator FRANKEN. Thank you. My time is up. 

Thank you, Mr. Chairman. 

Senator COONS [presiding]. Senator Lee. 

Senator LEE. Thank you, Mr. Chairman, and thank you, Mr. 

Cole, for joining us today. It is an honor to have someone with your 

distinguished background join us and help us with this. 

Like many of my colleagues, I am very concerned with any practice that could result in innocent people going to prison, especially 

considering the fact that our Nation has the highest incarceration 

rate in the world. It is my understanding that we have got about 

five percent of the world’s population, and yet we have about 25 

percent of the world’s incarcerated population. And we need to look 

at that, and we need to look at the fact that, notwithstanding these 

facts, we continue to expand the federal criminal code, we continue 

to expand the number of federal inmates we have, which right now 

I think is at about 200,000. We have got to watch out for this. 

As a former Assistant U.S. Attorney, I am committed to enforcing our laws. I want to be certain that victims and witnesses are 

properly protected and that prosecutors are able to pursue their 

cases zealously where crimes have been committed, and that opportunities for guilty parties to get off on a mere technicality are 

avoided. 

I am, at times, though, inclined to wonder whether the somewhat 

vague and inconsistent standard that currently constitutes the 

Brady rule and the Giglio rule might allow prosecutors to withhold 

important information from the defense without a real threat of 

penalty. And so I would like to ask you, Mr. Cole, you mentioned 

the fact that the U.S. Attorneys’ Manual standards are actually 

higher than what Brady itself requires. What might happen to a 

prosecutor who violates that rule even where there is not a Brady 

violation recognized by the court? What might be the consequences 

for a prosecutor who does that? 
23 

Mr. COLE. Well, certainly there would be supervisory admonishment. There would be counseling at a minimum if that came to our 

attention. It would probably be referred to OPR for them to look 

at whether or not it amounts to misconduct or poor judgment or 

something that was negligent or any of the various options that 

might be available. It would be part of how that prosecutor gets 

evaluated. If it is misconduct, they will be sanctioned. If it is not, 

they will be admonished, and they will be counseled, and they will 

be looked at a lot more closely and supervised a lot more closely 

to make sure that they comport and comply with Department policy. We do not put them in the U.S. Attorneys’ Manual just to make 

it thick. We put them in there to be followed. 

Senator LEE. Right. I appreciate that. 

You referred in your opening statement to the fact that the incidents of violation of the Brady rule and of the accompanying U.S. 

Attorneys’ Manual standards are, I think as you put it, infinitesimally small. Doesn’t the very nature of the Brady rule and the violation of the Brady rule make it somewhat difficult to detect? So 

the incidents that you referred to I think were those that were actually discovered, but isn’t it somewhat difficult to detect by its 

very nature? 

Mr. COLE. Well, it can be, but I think one of the interesting aspects of the cases we have looked at is that most of—maybe not 

most, but a number of the instances where we have discovered violations of Brady have been because some other motion was raised 

in the case which caused either a supervisor or somebody else to 

start looking through the file, discovered the material that they believed should have been turned over, and we voluntarily let people 

know that this matter, this piece of evidence had not been turned 

over. So a number of these are generated by the Department voluntarily, giving over after the fact what turned out to be Brady material. 

Senator LEE. Okay. That is helpful. 

I think one of the arguments that could be made in support of 

this legislation is the fact that the Brady rule itself has some 

vagueness built into it, it has some subjectivity built into it— 

vagueness and subjectivity that I think, arguably, are reduced 

under the standard proposed by this legislation. So there is a judgment call that has to be made in the case of Brady as to whether 

or not there is a reasonable probability that the conviction or sentence might have been different had the materials been disclosed; 

whereas, there is less subjectivity, less vagueness built into the 

other rule. Is that a strength? Is that a benefit to this statute? Or 

is there something that I am not taking into account there? 

Mr. COLE. I think, frankly, that the other rule of ‘‘favorable to 

the defendant’’ is a less-defined standard. The Brady standard, I 

think, is a little tighter, and it is a little more easy to define, but 

it is not the standard we use going into a trial. It is the standard 

that the appellate courts use when they are reviewing a trial after 

the fact in order to make sure that we have finality and that if a 

case is going to be overturned, it is going to be overturned for a 

good reason. But going into trial, looking at it prospectively, that 

is not the standard we use in the Justice Department. 
24 

Senator LEE. That is part of why you have the U.S. Attorneys’ 

Manual standard to help flesh that out in advance of trial. 

Mr. COLE. Exactly. And our standard is any evidence that is inconsistent with any element of any crime that is charged against 

the defendant, turn it over; any information that casts doubt upon 

the accuracy of any evidence, including but not limited to witnesses’ testimony, turn it over; and that we tell people err on the 

side of disclosure. And those are mantras that we repeat over and 

over and over again, particularly since what happened with Senator Stevens’ case, and we realize that there was a need in the Department for greater sensitivity for this, greater supervision, and 

greater training. 

Senator LEE. Thank you very much. 

Mr. Chairman, my time has expired. 

Senator COONS. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. Welcome, Mr. Cole. 

Mr. COLE. Thank you, Senator. 

Senator WHITEHOUSE. I was here for your exchange with Senator 

Franken, and it sounded for a moment as if you were saying that 

the only reason that any defendant pleads guilty is because they 

are guilty. You did not mean to make that point, did you? 

Mr. COLE. Well, I think there have been instances found where 

defendants who are not guilty have pled guilty, and—— 

Senator WHITEHOUSE. Correct. So having an open file prior to a 

plea negotiation and having, from the defendant’s point of view, 

some view of how likely or effective the prosecution’s case is 

against them could actually have a meaningful effect on a defense 

counsel’s recommendation to his or her client, correct? 

Mr. COLE. Yes. 

Senator WHITEHOUSE. Okay. Let me ask unanimous consent to 

put into the record of this hearing a letter of May 30, 2012, that 

Senator Cornyn and I wrote to the Attorney General. I do not expect you to be familiar with this letter, Mr. Cole—— 

Mr. COLE. I have read it, Senator. 

Senator WHITEHOUSE. Oh, good. Well, it concludes, ‘‘We recommend that the Department of Justice give serious consideration 

to a departmentwide default open file policy. We invite your 

thoughts on this proposal, whether it is sound and why, and what 

exceptions ought to apply. We understand that there are exceptions, particularly in the witness safety and witness privacy context, and what their scope should be. We look forward to your response.’’ 

Do you have any idea when we might get a response to that letter or where it is in the process? 

Mr. COLE. I do not know exactly where it is in the process, but 

it is something we will certainly respond to. 

Senator WHITEHOUSE. I appreciate it. 

Senator COONS. Without objection, it will be made part of the 

record. 

Senator WHITEHOUSE. Thank you. 

[The letter appears as a submission for the record.] 

Senator WHITEHOUSE. As Attorney General of Rhode Island, I operated under rules that were so liberal that I think they could fairly be described a de facto open file policy, and I thought we did 
25 

fine. I tried to run as wide open a U.S. Attorney’s Office as I could 

when I was U.S. Attorney in terms of discovery. So I think it is a 

worthy discussion to have, that the traps and the damage to the 

Department’s reputation, setting aside the damage to the defendant themselves, is worth—is a heavy weight in the balance. 

I also would like to react briefly to your suggestion that the U.S. 

Attorneys’ Manual applies a higher standard to Assistant United 

States Attorneys than the Brady rule or the Giglio rule per se. 

There is one piece—and I think we have had this discussion before—that remains a real thorn in my side in which that is not 

true, and that is the so-called Margolis memo that closed out the 

investigation into the Office of Legal Counsel and that declined to 

apply to opinions of the Office of Legal Counsel the same standard 

and duty of care with respect to candor toward a tribunal that a 

regular lawyer has. And it strikes me that this is a mistake, and 

I once again urge the Department to correct it. 

In Rhode Island, you see workaday lawyers heading into the 

Garrahy Judicial Complex with multiple files under their arms to 

get through the work of the day. They are going before a judge who 

has the chance to do independent research and correct any failure 

of candor to the tribunal. They are facing an opposing attorney who 

has every incentive to catch them out in any failure of candor to 

the tribunal. And even in that environment, they nevertheless bear 

a duty of candor to the tribunal. 

Cut to OLC. You have perhaps the smartest lawyers in the country. You have lawyers who go on to become Supreme Court Justices. You have lawyers who come off Supreme Court clerkships. 

You do not have any safeguard on them. There is no judge who will 

be reviewing that opinion, and there is no opposing counsel who 

will see it. 

So it would seem to me that structurally it is even more important that an OLC opinion meet the basic standard of duty of candor 

to a tribunal that a regular workaday lawyer has to meet slugging 

into the courthouse every day. And I urge you to reconsider that. 

I think it is the last bad legacy of that bad event that we no longer 

hold OLC—or since then we do not hold OLC to the minimal standards that a regular workaday lawyer is held to in a context in 

which I think it is more important that they be held to a high 

standard because so many of the checks and balances do not apply. 

So I think it is important that the Department set high standards. I am delighted that the U.S. Attorneys’ Manual sets a higher 

standard with respect to Brady and Giglio. In this area, you are 

on the wrong side. You are setting a lower standard, and I urge 

you to correct it. 

The last thing I want to raise with you in my last second is Director Mueller of the FBI said that a substantial reorientation of 

the Bureau was necessary to face the modern age of cyber crime, 

and I hope that the Department will be similarly flexible and 

thoughtful about how we should reorient the resources and perhaps 

even the structure of the Department to meet a threat that now 

the head of the cyber command says is the cause of the greatest 

transfer of wealth in the history of humankind and of which we are 

on the losing end. It is a very important issue, and I think the De-
26 

partment needs to be flexible in rethinking what its role is, even 

if it means clashing with OMB about asking for more resources. 

Mr. COLE. All I can say is, as you know, Senator, you and I have 

had many discussions on the cyber issue. It is one of the greatest 

dangers facing our country today, and it is something that we need 

to look at very carefully, both in terms of what legislation we have, 

what organizational structures we have, what resources we have to 

fight it. 

Senator WHITEHOUSE. I appreciate that. 

Thank you, Chairman. 

Senator COONS. Thank you, Senator Whitehouse. 

Before we proceed to Senator Sessions, Senator Grassley has 

asked for an opportunity to speak briefly. 

Senator GRASSLEY. I have to apologize to Professor Bibas because 

he came at our request to be here, but I have an 11:45 meeting I 

have got to go to, and I just wanted to apologize, and I will submit 

questions for answer in writing. 

Senator COONS. Thank you, Senator Grassley. 

Senator Sessions. 

Senator SESSIONS. Mr. Cole, thank you for coming. It strikes me, 

looking at your bio, that you are well prepared to deal with this 

question, having spent 13 years as a trial attorney in the Criminal 

Division, later as Deputy Chief of the Public Integrity Section, having prosecuted notable cases, including a federal judge, a Member 

of Congress, and a federal prosecutor. 

You know one thing, and that is, when you send an attorney into 

a courtroom to try a big case, this is not a little bitty matter. It 

is a very, very intense environment. When you have a person who 

is the Chairman of the Appropriations Committee, a governor, a 

Congressman, or a federal judge, and they are looking at maybe 

the rest of their life in jail, it ceases to be an academic matter. 

Wouldn’t you agree? It becomes a very intense environment. 

Mr. COLE. I would agree wholeheartedly, Senator. It is a very important matter. 

Senator SESSIONS. And the defense attorneys are highly skilled 

at identifying the slightest Brady violation, and they make charges 

in the press of prosecutorial misconduct and denial, and it may be 

an innocent, insignificant event, an error perhaps by the prosecutor, but insignificant nevertheless. Is that true? 

Mr. COLE. That does happen. 

Senator SESSIONS. And it is just part of the technique to put the 

prosecutor on the defensive from the get-go. 

Mr. COLE. It is one of the standard avenues of attack that prosecutors use. 

Senator SESSIONS. So prosecutors—— 

Mr. COLE. That defense attorneys use. 

Senator SESSIONS. Excuse me. Defense attorneys. Let me tell you 

what I am worried about. I am worried that we have these big 

cases—we have had them in my State. We have had them in Alaska. We have had them with a former Presidential candidate here. 

These are tough things, and my sense is from my observation of 

it that too often we are sending prosecutors in from Washington 

who do not have the depth of experience—they may be top of their 

class academically. They may be men and women of integrity. But 
27 

they just do not know what they are in for, the kind of challenges 

they are going to be facing, and there is no substitute for real experience, having been through these kinds of cases. 

Do you sense and don’t you think the Department of Justice as 

part of your review needs to give serious thought to the question 

I just raised? 

Mr. COLE. I think you raise a very important and a very interesting point, Senator. In looking at the statistics over the years, the 

number of trials that are taking place in federal court, criminal 

trials, has gone down. 

Senator SESSIONS. Gone dramatically. 

Mr. COLE. Dramatically. 

Senator SESSIONS. So there is a lot less experience out there by 

the FBI and by the prosecutors. 

Mr. COLE. And having been one of those Washington lawyers 

who went out and tried cases in different parts of the country, I 

know how important it was when I did that to make sure that I 

understood what the local rules were, that I understood what the 

makeups of the juries were, that I understood what the preferences 

of the judges were. I would try—— 

Senator SESSIONS. Did you listen to experienced local prosecutors 

who have been in the courtroom? 

Mr. COLE. To the point where I would annoy them. I would try 

and get as much information as I could. 

Senator SESSIONS. I understand that often prosecutors—and it is 

always I have been told that, but even in recent years—ignore or 

reject the opinion of the experienced attorneys oftentimes. Do you 

think that would be a dangerous thing for a prosecutor to do? 

Mr. COLE. Well, I think it would. I am hopeful that those are the 

exceptions to the rule because I do know that many of our prosecutors go out and in most cases work with the local United States Attorney’s Offices on these cases. The times where they are not working together are pretty rare, and in my view, and certainly the tradition has been, even in those cases, except where there are 

recusals and there have to be walls, you should be checking with 

the local prosecutors to make sure you understand what is going 

on in that district. 

Senator SESSIONS. I do not think that always happens. 

Let me mention something to you. Isn’t it true that there is a 

real danger in putting prosecutors in big cases that require a lot 

of discovery, a lot of records and documents, heading out to a big 

trial, facing some of the best defense lawyers in the country, isn’t 

there a real danger that cases can be rushed, prosecutors can be 

put in a position where they are physically unable to master all the 

evidence and can get in trouble for that reason? 

Mr. COLE. Yes, I think those are certainly big concerns that any 

manager and any supervisor should have, that they want not only 

the most capable team trying the case but the most experienced 

and familiar team trying the case, so that the lawyers who really 

handled the case should be the ones trying it. It does not mean you 

cannot add talent to a team, but you have to take care that they 

are up to speed. 

Senator SESSIONS. Right. Well, I would just say, this case in 

Alaska had two local Assistant United States Attorneys. Public In-
28 

tegrity Section attorneys Edward Sullivan and Nick Marsh were 

assigned to the trial team. However, this arrangement was abruptly altered by the Chief of Public Integrity Bill Welch’s decision to 

bring in Brenda Morris, his Principal Deputy, as a lead prosecutor 

just before the indictment was issued. That was before you were 

Deputy Attorney General. But wouldn’t you say that is a highly 

risky thing just from the basic facts I have given you? 

Mr. COLE. You know, you have to learn what all the facts are 

surrounding it. Certainly when I was the Deputy Chief of Public 

Integrity, every now and then I would get called in at the last 

minute to help with trying a case just to add in a level of trial experience, a level of seasoning that may have been viewed as needed 

in the team. So you have to try and look at what all the reasons 

may have been for having done that. 

Senator SESSIONS. Well, I understand that the new dynamic created by the Morris addition led to discord among the litigation 

team and a lack of communication. I think that factually has been 

ascertained. 

Mr. COLE. Right, and that is not good. 

Senator SESSIONS. That is not good. Are you confident that the 

Chief of Public Integrity, who served under your direction, is sufficiently aware of the dangers and difficulties of trying these kinds 

of cases and is sufficiently committed to having the kind of experienced prosecutors necessary to handle a case of this magnitude facing perhaps some of the best defense lawyers in America? And do 

you think that is something you will be looking at in your supervisory role? 

Mr. COLE. Absolutely, we look at it in our supervisory role, and 

absolutely, I feel that this is something that has been reiterated 

time and time again, something that we focus on, and something 

that the Chief of the Public Integrity Section understands. 

Senator SESSIONS. Well, Mr. Chairman, thank you for letting me 

go over a minute. I really love the Department of Justice. I spent 

14 years in it. I personally tried some very big public corruption 

cases for weeks at a time. And I am telling you, anybody that 

thinks that is a picnic does not know what it is about. And I lived 

with those cases, and the idea on the eve of trial of another lawyer 

being assigned to a case of the kind that Alaska was and the cases 

I dealt with is unthinkable to me. It is just very dangerous. And 

I would think you do not have in the Department of Justice, Mr. 

Chairman, you just almost cannot have in the Department of Justice the kind of experience you need. And perhaps these big cases, 

you need to look around to the offices around the country where 

they have got skilled Assistant United States Attorneys who have 

tried cases, who know what it is like to be called on to move to another district if need be to lead or assist in these prosecutors, something like that. But you cannot have, in my opinion, a big, complex 

case being tried by an inexperienced attorney. It is a disaster waiting to happen. 

Mr. COLE. Well, Senator, obviously, that cannot be disputed. 

There are, however, very experienced attorneys both in U.S. Attorney’s Office and in Main Justice, and in some of the sections in 

Main Just, there is a real repository of expertise in some of these 

kinds of cases which is very helpful. But I agree with you. People 
29 

who are not experienced with a case should not be thrown on it at 

the last minute. 

Senator SESSIONS. My time is up. Thank you, Mr. Chairman. 

And I do hope that you will give that attention. And I am inclined 

to believe, as you have said, that it is not a question of legislation, 

rules. The rules are in my view clear. You have to disclose exculpatory evidence. The question is: When you do a massive case, do 

the lawyers have the time or the ability or the knowledge to ascertain what is discoverable, what needs to be produced within the 

time frame set for the trial? And if you rush it too fast, you can 

make mistakes. And Alaska went awfully fast, it seems to me. 

Mr. COLE. Yes, it did. And they need to make that time to make 

sure that those things are being followed and those rules are being 

honored. 

Senator SESSIONS. So when you announced—I hate to keep—but 

so when this trial was moved up, first at the request of the defendants, which is a clever gambit sometimes when they know the prosecution really is not prepared, so they demand the speediest of 

trials, and you—do you think in retrospect sufficient resources 

were poured into that case to make sure every document was 

scanned and evaluated and promptly gotten to the defendant as required? 

Mr. COLE. Based on the record that has been developed rather 

exhaustively, obviously not. 

Senator SESSIONS. I think not, too. It is just dangerous to have 

a big case like that go that fast and have lawyers being changed 

in the process. It is a disaster waiting to happen. 

Thank you. 

Senator COONS. Thank you, Senator Sessions. I think your personal experience and your passion for this is obvious and contributes significantly to this discourage today. 

I believe I am the last questioner for this panel. Mr. Cole, thank 

you for your testimony in front of us today. As Senator Sessions 

has so roughly summarized it, we are weighing a piece of legislation that is intended through statute to enforce certain commitments, requirements, and obligations of prosecutors, and you have 

suggested in your testimony that the Department already sort of 

goes above and beyond the Brady obligations and is already engaged in the sorts of actions to enforce appropriate disclosure and 

compliance. So if I could, I just wanted to go over a few things with 

you before we conclude. 

Mr. COLE. Certainly. 

Senator COONS. First, there was an exchange with Senator 

Whitehouse before you testified that each U.S. Attorney’s Office 

has a designated discovery attorney, and I would just be interested 

in hearing what regulations exist governing the qualifications and 

experience of that attorney, and then what percentage of their time 

they are available to answer disclosure questions—in other words, 

the sort of first level questions—so in these instances when you 

have got fast-moving trials, perhaps relative inexperience, high 

stakes, and you have got a tough judgment call to make prospectively, how accessible, how reliable, how engaged are the discovery 

attorneys that are available to those practitioners who have got a 

tough judgment call? 
30 

Mr. COLE. Generally, they are experienced attorneys who have 

had a number of trials, who have been through those wars that 

Senator Sessions has described. They have the scars to show for it. 

They are part of the office. They are there to answer those questions. They will have their own cases, too, but they are generally 

going to be available to answer those tough discovery questions, 

and they are going through their own training to make sure that 

they are really up on all of the Department policies and procedures 

that need to be followed in order to make sure we have a fair trial. 

Senator COONS. And what sort of policies are in place in the DOJ 

to audit line prosecutors for their Brady compliance, to ensure and 

to record their Brady compliance? 

Mr. COLE. Well, first of all, we have the standards that are put 

not only in the United States Attorneys’ Manual, but there are 

memos that have been issued by the Deputy Attorney General’s office, by my predecessor, that give further instruction not only on 

what the standards are but how to implement them. And then we 

have the Office of Professional Responsibility’s procedures where 

any allegation of a violation of discovery rules is going to come to 

their attention. If a judge questions whether discovery was done 

properly in a case and makes any finding, that automatically goes 

to OPR. If the attorneys have been found by a judge to have violated discovery, the attorneys themselves are supposed to report it 

to OPR. 

As was pointed out, I believe, by Senator Sessions, defense attorneys are always giving us letters and calls and making allegations 

that discovery has not been given as it should have been. And 

while those happen frequently, we do not just throw them out. We 

look at them and we take them seriously, and we make sure that 

there was no problem. 

So there is an enormous number of sources that come in that 

allow us to have visibility into whether or not the individual line 

attorneys are fulfilling their obligations. 

Senator COONS. So if I could summarize, there is no uniform, 

routine audit process, but there are so many different ways in 

which challenges are presented, whether judicial, opposing counsel, 

postconviction if that is the outcome, that you are confident that 

the audit process is sufficiently robust and broad? 

Mr. COLE. Yes, I think that a kind of regularized routine audit 

process would require you to go through virtually every piece of information or evidence in a case file, and I do not think that would 

be practical. 

Senator COONS. Would you comment on whether the duty imposed in this proposed disclosure fairness bill to use due diligence 

to discover exculpatory evidence that was reasonably available to 

the prosecutor, would that, in fact, expand the duty of the prosecutor beyond current Department regulations? 

Mr. COLE. I am not sure that in and of itself would expand it. 

Obviously, that is not a hard-and-fast standard. There is a lot of 

room and judgment that is contained in that standard. The memos 

that have been put out by the Department really expand who is 

part of the prosecution team, and I think that is really the key to 

that part of it, to define whose material should be looked at. And 

this is something the Department has taken great pains to make 
31 

sure is taken into account, who is part of the Department team, the 

prosecution team, making sure that their files are reviewed to determine whether there is any Brady or Giglio information in them, 

and that is certainly one of the most important parts of complying 

with these rules, is starting out by defining where you are going 

to get the information. 

Senator COONS. Then my last question, as has been referenced 

before, the vast majority of cases are actually resolved through plea 

bargains rather than taken to trial? 

Mr. COLE. Correct. 

Senator COONS. And, if anything, that percentage has increased. 

You are familiar, I presume, perhaps, with the Ashcroft memorandum regarding plea deals which restricted prosecutors post indictment to accepting pleas for anything less than the top count, 

and my understanding is that that standard has been changed 

somewhat in the current administration. I am concerned with the 

potential Brady implications. A deal may be impossible if a prosecutor discovers and discloses Brady material that negates the top 

count if there is still a position that you cannot accept a plea for 

less than the top count. 

What is the current status of this policy memo? My impression 

was it had receded to individual U.S. Attorney’s Offices to make 

their decisions. And what would you think of the DOJ adopting a 

uniform policy that permitted prosecutors to resolve cases with 

plea bargains that did not require the top count? And what is the 

impact both for Brady and, to the extent relevant, for Giglio material? 

Mr. COLE. Well, the Attorney General issued a memorandum 

that I think expanded on the Ashcroft memorandum and allowed 

for—while there is the general policy still in effect, but it allows for 

individual considerations in each case—not every case is the 

same—and allows there to be consideration of any number of factors that may not have been anticipated in a case so that you can 

deal with them in the most effective way possible. And so I think 

there is room within that standard to take into account the situation that you propose where you may not be able to prove the top 

count in a charge and you should not be taking a plea for something you cannot prove, but there are other charges that are available that will end up producing justice for the matter, and that is 

really where we want to be. 

Senator COONS. Thank you. Thank you very much, Mr. Cole, for 

your testimony here before us today. 

Senator SESSIONS. Could I say one more thing to Mr. Cole? 

Senator COONS. Senator Sessions. 

Senator SESSIONS. Mr. Cole, you may be uniquely qualified to 

deal with this problem. You have got the experience and the knowledge. You have seen the Department of Justice Public Integrity 

Section. I do not think it is performing well in terms of getting 

your best people in the courtroom trying some of the most important cases. I think the Department has been embarrassed by the 

results of a lot of big cases. And I think you should look at it really 

hard. You should review from top to bottom the staff you have got 

there, see if you can find ways to make sure that the best attorneys 

are available, whether they are in Washington or in U.S. Attorney’s 
32 

Offices around the country or in the courtroom handling these 

cases, because I do think the Department is challenged right now 

and needs to demonstrate that it is operating at the highest degree 

of professionalism. 

Mr. COLE. Senator, I appreciate those comments. The only comment I would like to make in return is that I think you end up emphasizing—the press ends up emphasizing—our losses much more 

than our victories. There are a huge number of very successful 

cases that prosecutors throughout the country and throughout the 

Public Integrity Section win on a regular basis. 

We, of course, do not like to lose cases because obviously we 

make a lot of decisions on the way toward a case being tried. And 

as you point out, these are tough cases. Some of them are very 

tough cases. And the ability to find that right balance and to exercise your discretion under tough sets of facts, under issues that cry 

out, on the one hand, to be dealt with and, on the other hand, may 

have questions about how far are you going and where are you 

going as far as the interpretation of the law. These are very tough 

cases to deal with day in and day out, but I think our prosecutors 

do a very good job of it, but we are constantly looking as managers 

to make sure that all of our attorneys are trained as well as they 

can be, are as experienced as they can be, are supervised as well 

as they can be, and are performing at the peak of their abilities. 

By and large, they are, but there is always room for improvement. 

Senator COONS. Thank you very much, Mr. Cole, for your service, 

for your leadership, and for your testimony before us today, and I 

would like to specifically thank the men and women of the Department of Justice for their very hard work to ensure that witnesses 

are protected, that cases are brought forward, and that justice is 

served. So thank you for appearing before this Committee here 

today. 

Mr. COLE. Thank you, Senator. 

Senator COONS. I would like to invite the second panel, Executive 

Director Carol Brook of the Federal Defender Program and Professor Stephanos Bibas, professor of law at the University of Pennsylvania Law School. As this next panel is coming forward, I would 

like to state that, without objection, we will enter into the record 

a number of letters that Senator Murkowski had asked be put into 

the record. These are letters from the American Bar Association, 

the ACLU, the U.S. Chamber of Commerce, the Constitution 

Project, and the NACDL broadly in support of Senator Murkowski’s 

legislation. That matter of housekeeping simply needed to be done 

before we introduce our second panel. 

[The letters appears as a submission for the record.] 

Senator COONS. First we welcome Carol Brook, who is executive 

director of the Federal Defender Program for the Northern District 

of Illinois. Director Brook has been an attorney with the Federal 

Defender Program for over 25 years. She previously served as staff 

attorney, chief appellate attorney, and deputy director. Her duties 

include representation of clients through trial and all appeals and 

the training of staff attorneys and 170 private attorneys under the 

Criminal Justice Act panel. Ms. Brook received her law degree 

from the University of Illinois College of Law and undergraduate 

degree from the University of Michigan, and we are grateful for 
33 

your willingness to join with us here today. Before I then introduce 

Professor Bibas, if you would like to make your opening statement. 

STATEMENT OF CAROL BROOK, EXECUTIVE DIRECTOR, FEDERAL DEFENDER PROGRAM FOR THE NORTHERN DISTRICT 

OF ILLINOIS, CHICAGO, ILLINOIS 

Ms. BROOK. Thank you, Chairman Coons, Senator Sessions. I 

guess I want to start by thanking you, Senator Coons, for saying 

it was 25 years rather than 36 years. I appreciate that. 

Senator COONS. I appreciate the length and seasoning that your 

service has brought. 

Ms. BROOK. I am honored to be here not just because you want 

to hear my testimony, but because the issue of discovery in federal 

cases has been near and dear to my heart since I began practicing 

law. I am here as a member of the criminal defense bar on behalf 

of the hundreds, probably thousands of federal defender colleagues. 

And I need to say I am not here representing the Federal Criminal 

Rules Committee, and if you ask me any questions about it, you 

will get me in trouble. 

When I began practicing law—— 

Senator COONS. Disclosure up front is always very practical. 

Ms. BROOK. I promised I would. 

When I began practicing law, I first learned about the kind of 

training that Deputy Attorney General Cole talked about from a 

story that then U.S. Attorney and later Chief Judge of the Second 

Circuit Jon Newman told. At that time the training consisted of 

going before very large groups of prosecutors and giving a hypothetical. The hypothetical was, ‘‘You have indicted a bank robber, 

and several bank tellers and customers have identified that person 

as the robber in a line-up. Later, a witness comes in and says, ‘No, 

that was not the man.’ ’’ 

Judge Newman asked the prosecutors at the time, How many of 

you would turn over the name of the witness who said that was 

not the man? It turned out only two would. 

That vignette, if you will, is important, I think, because although 

we have heard from Deputy Attorney General Cole that everything 

is much better now, that the Stevens case was an aberration, that 

is not my experience, nor is it the experience of my colleagues. Our 

experience is that it is a rare case where some piece of discovery 

is not turned over at midnight the night before the trial or during 

the trial or after the trial. And, of course, we do not know how 

many cases there are when the evidence is not turned over at all. 

We do know that there are a significant number of cases where our 

research determines, our investigation determines, that there was 

Brady evidence that we did not get. 

What that tells me is that the internal training, commendable as 

it is, which has gone on now for 50 years since the decision in 

Brady, is not making enough of a difference; that the rules governing criminal discovery, although helpful, are not making enough 

of a difference; and that what we need at this point is legislation, 

the imprimatur of Congress to say we believe in the rule of Brady, 

which is not about guilt or innocence but about fairness. The bedrock principle of Brady is fairness. 
34 

It seems to me that when we talk about internal training, I can 

hear the difference between what the prosecution believes and 

what we see. They say the U.S. Attorneys’ Manual is far broader 

than the law. I see their interpretation of the law as far narrower 

than what I believe the law to be. So we start out, I think, in different places, and we continue to go out from those places instead 

of coming back together. 

It is my belief that the clear legislation that Senator Murkowski 

has proposed would bring us together because it would set a level 

of clarity that we simply do not have at this time, and I urge this 

Committee and the full Congress to take up that legislation. 

Thank you. 

[The prepared statement of Ms. Brook appears as a submission 

for the record.] 

Senator COONS. Thank you, Ms. Brook. 

Next I am going to welcome and introduce Professor Stephanos 

Bibas, who is a professor of law and criminology and director of the 

Supreme Court Clinic at the University of Pennsylvania Law 

School. Professor Bibas is a former Assistant U.S. Attorney for the 

Southern District of New York, a national leader in the field of 

criminal law who has published important articles regarding the 

role of plea bargaining and the effects of scarce resources in the 

criminal justice system. He clerked for Judge Patrick 

Higginbotham in the Fifth Circuit and for Justice Anthony Kennedy of the U.S. Supreme Court. Professor Bibas is a graduate of 

Columbia University, Oxford University, and I have the passing 

impression that I remember him from our time at Yale Law School 

together. 

So I welcome you, Professor Bibas. Thank you so much. And, 

again, Senator Grassley was grateful for your willingness to join us 

and testify here today. 

STATEMENT OF STEPHANOS BIBAS, PROFESSOR, UNIVERSITY 

OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA 

Mr. BIBAS. Mr. Chairman, Members, thank you for having me 

back, and good to see you again. 

I am delighted the Committee is looking at this problem. The impulse is important. The problem is a real one. I fear that the thrust 

of the bill is beside the point, and I think it important to look beyond the Stevens case to the impact of the bill, which would be far 

broader. 

I want to make three points today. The first is the root problem 

here is not one of standards but enforcement. Second, the core 

issue here is not the very small minority of cases that go to trial 

but plea bargaining. And, third, that particularly disclosure of 

Giglio material during plea bargaining poses grave risks to victims, 

to witnesses, to undercover agents, and confidential informants in 

particular. 

So the first point I want to make is the Brady and Giglio decisions have been on the books for decades, and yet we have seen 

multiple studies that show hundreds of violations. Now, most of 

these focus on State and local prosecutors, but I would not be surprised if there are a good number in the federal system as well. 
35 

I agree that there is a problem here, but all of these are already 

unlawful under existing constitutional law, and nothing in the bill 

would appear to solve that. The much bigger problem—and I have 

written about this repeatedly—is not the substantive standard. It 

is the structures and procedures used to comply with them. 

We have heard reference to—and I would agree—the mentality 

of winning a conviction at all costs as opposed to seeing justice 

done. And that is bound up with a series of structural issues: prosecutorial hiring, incentives such as pay and promotion, training, 

oversight, discipline, firing, office culture. Some of that can be 

spurred externally. I do believe there may be a role for congressional oversight hearings, for bar disciplinary authorities which 

currently do almost nothing in practice, and sometimes judicial review of evidence in camera, as I think Senator Franken referred to. 

But experience has shown that at best they are going to have a secondary role. You can weed out a few bad apples, but there are systemic failings here that led to the Senator Stevens debacle. What 

you really need is to have the outsiders be backstopped to prod 

DOJ and prosecutors’ offices themselves to self-regulate and supervise themselves. 

As I view it, from what I have seen empirically, there are two 

basic clusters of discovery issues that come up, and both of them 

are not about the substantive standards. They are about compliance. The first one is that prosecutors, police, and other agents 

have to gather all the evidence from across far-flung agencies, case 

files, computer systems, lawyers, and teams, and here we have the 

problem that in the Stevens case you had Main Justice, you have 

Alaska, you have different people coming on and off the team. That 

is a logistical problem, and especially in the Stevens case, there is 

a problem that some of the evidence that came up in interviews 

was not even recorded down into FBI 302 witness reports. That is 

a procedural problem. Once it is not in the report, whatever substantive standard you put on the paper is not going to affect that 

problem. 

The second problem is that prosecutors have to learn to see and 

track what evidence, in fact, meets the standard of being favorable 

or helpful. I have been a prosecutor, and I know that there is a 

mentality that comes with being on one side of the aisle that 

means you do not always see the evidence the way the other side 

is going to see it. It is a valuable thing to have some prosecutors 

who can see things through a defense lawyer’s eyes, but that is an 

issue of perspective, of vision. 

You can tweak the materiality standard or not, but if you do not 

understand the defense’s theory of the case and the way they are 

going to use a piece of evidence, any formula of words on paper is 

not going to deal with that problem. And so that, again, is a cultural issue that DOJ needs to work on within. As far as I can tell, 

the bill would do nothing to attack these core problems. 

The second issue I want to point out, which is something that the 

Chairman has referred to, is that the Stevens case is atypical, because roughly 95 percent of criminal cases never reach trial. They 

result in guilty pleas. One of the big things the bill would do is accelerate the timing of all of this disclosure to say it has to be right 

after arraignment, as soon as is feasible. 
36 

For classic Brady material, that is, stuff that shows you are innocent of the crime or deserve a lower penalty, I probably would support that. It’s probably not a bad thing if it shows the person is innocent. We could set aside some possible defenses like entrapment, 

but core evidence as to whether you did it and whether you deserve 

the punishment, that is fine—except that is already standard Department of Justice policy. That is what I was taught. That is what 

everyone understood in the system. 

I think the crux of the dispute here is going to be about Giglio, impeachment material. The problem with that is that often signals 

who the defense witness is. If you are signaling there is a romantic 

jealousy or someone who is a co-conspirator, the defense lawyer is 

going to be able to tell the identity of this witness in a lot of cases. 

And I do not think it is as crucial to justice in the way classic 

Brady disclosure is. It makes sense at trial in the context of undercutting the incriminating evidence, but without the picture of what 

the incriminating evidence is, you do not really know whether this 

witness’s compromised eyesight matters or not if there are five 

other witnesses who had perfect eyesight. 

So it is part of the whole picture at trial. It does not matter as 

much during plea bargaining. I am strongly inclined to believe that 

the waiver provisions in this bill would wind up meaning that this 

right would be waived the same way that the rights to a jury trial 

and proof beyond a reasonable doubt are waived all the time. 

If I am wrong about that, I think this would be a serious impediment to plea bargaining, to disposing of the flood especially of immigration cases along the southwestern border. And I think correspondingly defendants would be less likely to receive concessions 

because they would not be able to trade that off. 

If I thought that these disclosures had little cost, I might still 

support them. Even if they do not do much good, they would help 

to reduce some bluffing, some trial by surprise. But, as I am going 

to discuss, my fear is that Giglio disclosures at an early stage come 

with a very high cost. 

So my final point is that there are substantial costs to giving this 

discovery of witness and victim information. The most obvious cost 

is to victims—rape victims, molested children, victims of other 

forms of violence. They are traumatized, they are fearful, they can 

easily be intimidated or tampered with, and there is some evidence 

I mention in my written testimony that this happens routinely in 

jurisdictions such as New Jersey where this kind of disclosure is 

commonplace. So in the Stevens case, that may not be a fear. That 

is a public corruption or white-collar case. But the majority of federal cases involve violence, gangs, drugs, other situations where 

this is pretty common. 

Criminal cases also involve a lot of hidden witnesses—undercover agents, cooperating witnesses, confidential informants—and 

they legitimately fear for their safety. There is the big ‘‘Stop 

Snitching’’ campaign out there to show community hostility to 

working with the government, and in New Jersey and other jurisdictions with broad discovery, witness threats have become serious 

problems, witness tampering. 

The bill does allow a safety valve. It would require prosecutors 

to jump through hoops, so I am not sure that would take care of 
37 

it. But even the safety valve is only limited to threats to witness 

safety. It makes no provision for witness influence to shade their 

testimony, to bribery of witnesses, no provision for keeping undercover agents’ and confidential informants’ identities secret so they 

can continue to work undercover and provide information for future 

cases. 

One of the major reasons why prosecutors plea bargain is so that 

they can preserve the confidentiality of an informant who will continue to penetrate organized crime or some other big organization. 

That is an important quid pro quo for plea bargaining concessions. 

It takes a lot of time, a lot of money, and a lot of risk to infiltrate 

these organizations. And the prosecution should not have to burn 

the informant the first time it makes a case or bring the entire organization down at once. If they had to do that, they would be 

much less willing to offer concessions, and they would be much less 

able to prosecute many gang conspiracy and organized crime cases. 

So, in short, I applaud the Committee’s work. I think it is focusing on an important problem. But I fear that the bill distracts attention from the root problem, and if it is not amended to take care 

of these victim and witness concerns, it would cause some serious 

harm. 

[The prepared statement of Mr. Bibas appears as a submission 

for the record.] 

Senator COONS. Thank you, Professor Bibas. Thank you, Ms. 

Brook. We will begin five-minute rounds of questions. 

Ms. Brook, if I might, first, thank you for your many years of 

service in the Federal Defender Program. Could you describe from 

your experience as the chief appellate attorney of the Federal Defender Program in the Northern District your experience of the difficulty seeking meaningful recourse on appeal following a prosecutor’s failure to disclose exculpatory evidence? 

Ms. BROOK. Well, you really cannot raise that on appeal because 

you do not have the evidence. You have to go all the way through 

the appellate process and then come back down and file a habeas 

corpus petition and then do the investigation to present the evidence into the record. So we are talking about, first of all, some 

length of years and, second of all, an entirely new investigative 

process, which is not only time-consuming but costly. And then the 

standards are, of course, much more difficult to meet on an appeal 

from a habeas corpus petition than a direct appeal. 

Senator COONS. Mr. Cole testified that Brady should not be augmented by statute and pointed to the very extensive training the 

Department of Justice has put in place and the higher standard 

they meet than the Brady obligations and argued repeatedly that 

the disclosure standard that the Department currently complies 

with goes beyond Brady obligations. In your statement to us, you 

suggested you have a different view. How do you see this? 

Ms. BROOK. Well, I see it in two ways. One, we see cases all the 

time where we are not receiving whatever Brady material is out 

there in those cases that we know about it. Now, Senator Sessions, 

I would just say in response to your earlier comment, some of those 

may not seem like significant pieces, but in the context of the hundreds and hundreds of cases that we see that are not the Ted Stevens case or a mob case but a much smaller immigration case or 
38 

a drug case, that can make the difference. It can be a witness who 

could not see as well or who was not wearing their glasses that 

does make the difference truly in a case where there are only two 

witnesses and my client talking about some relatively small drug 

deal, which make up the majority of cases that we see in federal 

defender offices and the majority of cases that are prosecuted are 

represented by federal defenders. I think the number is 85 percent 

across the country. 

The U.S. Attorneys’ Manual, as I read it, in answer to the second 

part of your question, starts out as a narrower reading of Brady. It talks actually, as Professor Bibas talks, about this idea of classic 

Brady and impeachment material under Giglio. That is not something that I think the law supports. I think the law is Brady, is 

Brady and Giglio impeachment material, is a part of Brady. It 

could be that the impeachment of a witness is the key. Indeed, in 

the capital cases that the Supreme Court hears on discovery, such 

as Kyles v. Whitley, that is what they find, that it was the impeachment material that was withheld that made the difference between 

whether that defendant was sentenced to death or not. 

Senator COONS. Would you, Ms. Brook, support a duty for prosecutors to certify to the court what they have done in order to identify Brady material? 

Ms. BROOK. To certify to the court. 

Senator COONS. And would that be sufficient to make some real 

progress on this compliance issue? 

Ms. BROOK. If I had a preference, I would prefer to see the statute that would put the onus on them rather than to have them 

bring a certification to the court. I think that might cause some, 

I guess I would say, bad feelings between the prosecutors and the 

court, which I would not like to see. My preference would be for 

this body to create legislation that would apply to everybody and 

send a signal to everybody. I mean, Congress knows better than 

anybody the importance of passing a law, not to catch the law 

breakers but to prevent the law breakers, and that is what I think 

would make a difference here. 

Senator COONS. Thank you, Ms. Brook. 

I will yield to Senator Sessions. 

Senator SESSIONS. Thank you. You know, you told the story of 

Judge Newman. Maybe the prosecutors were sleeping when he 

asked them to raise their hand. Maybe they did not bother to raise 

their hand. But that is obvious—— 

Ms. BROOK. That is what he said. 

Senator SESSIONS. There is no question about it—well, I am just 

saying I do not think the story is that valuable. It was 1968, also, 

so I do not want to—I am just saying today I do not think any 

prosecutor faced with that choice would withhold evidence that he 

had an eyewitness that said this was not the guy. Do you disagree 

with that? 

Ms. BROOK. I do disagree with that. 

Senator SESSIONS. Well, I think the prosecutor should be fired on 

the spot. 

Ms. BROOK. Well, I would agree with that. But I do not think 

that is what happens, and I think it is the materiality that makes 

that so difficult because—— 
39 

Senator SESSIONS. Well, it could be. They talk about the—— 

Ms. BROOK [continuing]. It gives them a whole different—— 

Senator SESSIONS [continuing]. Glasses. You know, if you know 

that there is a key eyewitness and you know they do not have good 

eyesight and you know they did not have their glasses on, that has 

to be disclosed. Wouldn’t you agree, Mr. Bibas? It is not a question. 

It should not take 30 seconds to give that any thought. 

Mr. BIBAS. Absolutely. 

Ms. BROOK. And I wish the government prosecutor was like 

you—— 

Senator SESSIONS. I do not think—I think you are exaggerating 

the willingness of prosecutors not to disclose. I am just telling you. 

You and I can disagree, and I respect your opinion, but I do not 

agree on that. 

Now, what about, Mr. Bibas, in the Murkowski legislation—we 

had a defense lawyer write the Committee, a defense lawyer, saying that eliminating the materiality requirement, which I think the 

Murkowski bill tends to do, ‘‘could lead to new trials and reversals 

in cases even where error results in no prejudice to a defendant 

and would have no impact on the case.’’ Do you agree that that 

problem with the Murkowski bill? 

Mr. BIBAS. It is hard to know whether the materiality change 

would make a difference or not when it interacts with the harmless 

error standard that the bill preserves. I actually tend to think that, 

you know, it looks like a change in the form of words. It probably 

would not matter that much. It could wind up—— 

Senator SESSIONS. Because it preserves the harmless error. 

Mr. BIBAS. It preserves the harmless error rule. The place where 

it would matter is in those cases in which a defense lawyer had the 

evidence and did not make a timely objection. In that situation, it 

is possible to read the harmless error rule in here as undercutting 

the requirement that a defense lawyer make a timely objection or 

else suffer a more demanding plain error standard. So it could get 

in the way of resolving the issue early on, but it is really hard to 

tell how it is going to interact with the harmless error rule. 

Senator SESSIONS. Well, I know judges and courts analyze it on 

the basis of, you know, is it material, is it a matter not relevant 

to the guilt or innocence of the defendant. And I think you do have 

differences of opinion about where to draw that line. At some point 

a judge gets to call the question. But I do not think that is the final 

thing. 

I am just aware of some big cases that go to trial rapidly. Sometimes you have computer access documentation of massive 

amounts, and so I worry about charges of prosecutorial misconduct 

when it is simply that may be a young prosecutor doing the best 

they can do, just did not fulfill the responsibility either from lack 

of time, lack of insight to realize this could be a problem, that this 

might be something a defense lawyer would come up with as part 

of the defense. 

So I guess there is some problem or dangers there, but I believe 

that there are more—that prosecutors are hammered constantly 

over this question. Almost every case that you have large complaints about, you know, anything that is close to a Brady violation 

is raised. So most prosecutors that have much experience are pret-
40 

ty well informed about what they should produce and what they 

should not. 

Ms. Brook, would you—I will give the two of you a right to comment on that. 

Ms. BROOK. Well, in cases that I have laid out in the written testimony, there are a number of cases—small cases, not these big 

cases—where prosecutors have not turned over evidence that seems 

to me—fingerprint evidence, for example—to be clearly exculpatory, 

as you say, and yet it was not turned over. 

Senator SESSIONS. Is that like there was no fingerprint on the 

counter where a robbery occurred? 

Ms. BROOK. It was the fingerprint of the investigating agent in 

a case where the defense was, ‘‘I, the defendant, did not touch it. 

Somebody else must have put the drugs there.’’ And it turned out 

that actually somebody else did have access to the piece, but he did 

not know it. 

I am not saying, Senator, that all these prosecutors are deliberately sneaking around withholding evidence. I do not believe 

that. But I believe the standards are so muddled and the internal 

kind of non-disclosure culture that has developed would change if 

there was a higher ruling that said this is what the United States 

declares. 

Senator SESSIONS. Professor Bibas. 

Mr. BIBAS. Yes, Senator Sessions, I think you are right. There 

are young prosecutors, and they do not always know how to look 

at things, but I think it is dangerous to view this as a matter of 

a few bad apples. I also think there are false charges that get 

thrown around. And fundamentally, I think it is an issue of culture 

and systems, and I just do not see what changing the standard of 

materiality is going to do to that. Fundamentally, when I was a 

young prosecutor and I look back and I say, gee, I should have 

turned that over under Brady, it was because I—and I can think 

of a specific case. I just did not see this the way that the lawyer 

on the other side saw his defense. And I think one thing that is 

very atypical about Stevens is there is an internal memo in Stevens where the prosecutors knew exactly what the Stevens defense 

was going to be, and it was very clear how this plugged into that. 

But you cannot write a bill based on the Stevens case that is going 

to apply to a whole bunch of cases where the real problem is the 

young prosecutors who have not dealt with a lot of defense lawyers 

or do not see things that way do not see the evidence that way. I 

mean, partner them up with senior prosecutors, maybe some of 

them who have served some time on the defense side. Maybe there 

is a way to get the defense to voluntarily provide some of its theory 

of the defense so that in time the prosecution can see, oh, this relates to the idea that the contractor had folded this into his bills. 

But it is much more complicated than just putting a set of words 

on paper and saying getting rid of the materiality requirement is 

going to change what is a failure to see things in the first place. 

Senator SESSIONS. Thank you. 

Senator COONS. Thank you, Senator Sessions. 

If I might just follow up on that specific line of questioning, if 

I remember correctly, in the Schuelke report, there is a reference 

to a Stevens prosecutor defending his non-disclosure of a statement 
41 

that would corroborate the Stevens defense by stating that it never 

crossed his mind that Brady required disclosure, and I think that 

reflects what you are suggesting about just the difference in mindset and how prosecutors and defense attorneys look at evidence. 

And should this cause us to doubt whether Brady is sufficiently 

clear in what it demands of prosecutors? In short, is the core issue 

here a lack of clarity in how to interpret what constitutes Brady 

material or a failure to adhere to Brady standards? Both of you, 

if you would, please. 

Mr. BIBAS. I think it is more foundational than that. If it were 

unclear, people would be running around, wondering, asking questions. I just do not—the ‘‘never crossed his mind’’ I think is about 

just the tunnel vision. There is a psychological tunnel vision that 

when you are too invested in a particular theory and you are rushing to trial and this case is under very tight time pressure, you 

know, you do not step back. And I think a second opinion is what 

doctors do for that, right? But there is not a mechanism for a second opinion for someone else more seasoned to step in and say, 

well, here are the strengths and weaknesses. Maybe you need a 

pause or a little more time in the cases that are going to trial to 

really look at it the way that they will. But I do not think that that 

has to do with the wording of the standards. You know, training 

and culture and those other things could help with that, but it is 

a more complex problem than I think the bill grapples with. 

Senator COONS. So, in an article that you published, I think, in 

Northwestern Law Review, you suggest the problem is skewed priorities and metrics of success rather than underfunding or other 

proposed factors. Are you implying prosecutors are fully capable of 

complying with Brady but do not do so just because in their career 

paths and in their operating environment they just do not place 

enough emphasis on it? 

Mr. BIBAS. I think some of that is conscious and a lot of it is unconscious. I think a lot of it is just the way their worldview has 

been shaped. In England, generally people do not specialize in 

being prosecutors or defense lawyers. Barristers do some prosecution, some defense. We are not going to require all prosecutors here 

to have defense experience, but having a fraction who do or having 

a supervisor who does or having to justify something—it is like a 

moot court where you get the hostile questions, and you really test 

whether your theory works or holds up under the best cross-examination. 

There are other ways to do that, but I do think that you are 

right—and in a way I fear that if we stigmatize losses too much 

or there are always the occasions for stigmatizing the prosecutor, 

you discourage prosecutors from saying, okay, I dismiss the case. 

Maybe we want to celebrate the prosecutor who dismisses the case, 

loses the case, because he turned over the evidence. And if every 

acquittal is an occasion for saying, oh, this prosecution should 

never have been brought, the risk is that there will be more pressure to win or to be so risk averse that everything winds up in generous plea bargaining, because there are a lot of moving parts here. 

So I am reluctant to say—I am reluctant to put my finger on one 

thing as the easy solution, but you are right, the metrics, the incentives, the worldview are connected here, and DOJ has to make a 
42 

point of rewarding and praising the people who maybe do not do 

everything that they can do to win a case. 

Senator COONS. So if the main thing that Mr. Cole points to is 

policies, training, compliance, access to more seasoned attorneys in 

close calls, would you suggest, Professor, not the adoption of this 

new statute and the imposition of new statutory standards but instead some voluntary action by the Department of Justice to 

change or strengthen their recognition and training procedures so 

that those who fully comply yet lose the important case as a result, 

those who are less willing to focus on the win-loss record and more 

willing to invest time in mentoring more junior attorneys ought to 

be celebrated and that would be the better path forward? 

Mr. BIBAS. Yes, I think—— 

Senator COONS. Is that what I hear you suggesting? 

Mr. BIBAS. I think that—and I think this Committee could play 

a role in oversight and just communicating that, you know, if the 

Department wants to prove that it is capable of self-regulation, the 

Committee is going to want to see progress on those fronts. And I 

think they are better at self-regulating than maybe just a piece of 

legislation in the first instance, assuming the Department is making good-faith efforts. And when you look at states like Florida and 

New Jersey, actually, prosecutors in those states have adopted selfregulation to head off legislative reforms and have been able to 

come up with more careful, more subtle metrics than maybe just 

writing a piece of legislation in the first instance could do. 

Senator COONS. Let me in closing on my part—has Senator Sessions left? Okay. If I might just as a last question, both of you highlighted the importance of the predominance of federal cases being 

resolved through plea bargains. Your closing comments, if you 

would, on the impact of insufficient disclosure of potentially exculpatory evidence on the plea bargain process and the question I had 

for Mr. Cole about the Ashcroft memo and whether or not the approach of the Department ought to be, as it is now, to allow some 

consideration of individual case factors in order to avoid being overly rigid in terms of plea bargaining and its interaction with Brady 

disclosure, some comments on how do we ensure plea bargaining 

is being done fully appropriately. 

Ms. BROOK. Well, as I said in my written testimony, I think especially in light of the most recent Supreme Court decisions, the idea 

that we will receive adequate discovery, including Brady discovery, 

prior to a plea is going to be mandatory. We are going to be required as defense lawyers, as all good defense lawyers have always 

tried to do in the past, to understand as much about the case and 

as much about the prosecution’s evidence as we can to knowingly 

advise our clients whether or not it makes sense to plead, not just 

because either you did it or you did not, but because of a whole 

host of factors, including what the risks are, which we generally do 

not know now, although in my view we should know now, and certainly under the law that the Supreme Court has put down, we 

must know now. 

So I think this idea that we will have to have more discovery 

prior to plea is already going to be mandated by the Supreme 

Court and, as you point out, is required for us to actually make any 
43 

kind of reasonable assessment of what to tell our clients and 

whether they should plead. 

I agree with you on your second point as well that—and they 

have backed away from the Ashcroft memo. They do more individual decision making now on what is a reason to plead. So we 

are not always told you must plead to only the highest possible 

statute that we can prove. But there would be some room—like 

under the Sentencing Guidelines, there would be some room for 

some more breadth of consideration. 

Senator COONS. Thank you, Ms. Brook. 

Professor Bibas, I thought you raised in your testimony some 

particularly interesting points about the potential threats or risks 

of compromising confidential informants, potentially risking witness intimidation or inappropriate persuasion. Your comments— 

and this will be the last—on how to ensure that plea bargaining 

is being done appropriately and that there is accelerated disclosure 

that is relevant. 

Mr. BIBAS. I think it is a very important point, and I am glad 

that the Committee focuses on it. I will talk generally about the 

plea bargaining issue and then specifically about the Ashcroft and 

Holder memos. 

The general point is I think I have a different emphasis from Ms. 

Brook, in part, because the Supreme Court itself unanimously in 

the Ruiz case said, you know, when it comes to impeachment evidence, when it comes even to affirmative defense evidence, they 

said this is—it is not the central factor for a defense in weighing 

the evidence. I think defendants would like to have a picture of the 

prosecution’s case, but they do not get the incriminating evidence, 

which is what they would really need to weigh it. And in the ordinary case, that probably does not matter too much because in the 

ordinary case the defendant knows whether he did it or not and 

has a general idea as to what the likely evidence is going to be 

against him, especially assuming that he did do it. There are some 

special cases, but they are not going to be a huge fraction. 

I agree that the classic Brady exculpatory material is important 

to keep innocent people from being bluffed into pleading guilty. But 

as I said, the Department of Justice policy and what I taught and 

what I observed consistently as a prosecutor was the classic exculpatory material gets turned over as soon as you get it, and it is 

about whether you should be able to bargain over a concession in 

exchange for keeping your witnesses confidential, and that strikes 

me as a legitimate tradeoff as long as we do not have any of that 

red-flag classic Brady material. And I do think the Court in Ruiz 

treated that differently from Giglio material. 

Now, on to your specific point about the change from the 

Ashcroft to the Holder memos, I think it is a good one. My understanding of the way that the Ashcroft memo was interpreted in 

practice is that you could always drop the top charge if there were 

genuine doubts about the likelihood that it would result in a sustainable conviction. So if you had a good-faith Brady argument, 

that itself you could use as your rationale for dropping the top 

charge and pleading it down from, you know, a high-level conspiracy to a low-level conspiracy or something like that. 
44 

So I think in practice that was never barred, and what the Holder memo does only serves to underscore that prosecutors have some 

flexibility that way. And there are costs and benefits, and that is 

beyond the scope of this particular panel. But I do think it important that in plea bargaining it be clear to prosecutors that when 

there is a good-faith doubt about Brady material, et cetera, that 

that should not be viewed as something they have to push ahead. 

I tend to think that is already covered by the Holder memo, certainly, and even by the Ashcroft memo, but that is something DOJ 

could underscore internally as well. 

Senator COONS. Thank you. Thank you, Professor Bibas. Thank 

you, Ms. Brook. Thank you for your service. Thank you for your 

contribution to this hearing today. 

We will keep in the Committee the record open for a week for 

those Members who had other hearings and were not able to attend 

or have questions they would like to submit to any of today’s witnesses for the record. But other than that, this hearing is hereby 

adjourned. 

[Whereupon, at 12:35 p.m., the Committee was adjourned.] 
(45) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF COMMITTEE CHAIRMAN PATRICK LEAHY
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PREPARED STATEMENT OF RANKING MEMBER CHUCK GRASSLEY
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PREPARED STATEMENT OF HON. JAMES M. COLE
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PREPARED STATEMENT OF CAROL A. BROOK
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PREPARED STATEMENT OF STEPHANOS BIBAS
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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR HON. JAMES COLE
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QUESTIONS SUBMITTED BY SENATOR HATCH FOR HON. JAMES COLE
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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR CAROL A. BROOK
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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR STEPHANOS BIBAS
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RESPONSES OF HON. JAMES COLE TO QUESTIONS SUBMITTED BY SENATORS GRASSLEY

AND HATCH
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RESPONSES OF CAROL A. BROOK TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
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RESPONSES OF STEPHANOS BIBAS TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
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MISCELLANEOUS SUBMISSIONS FOR THE RECORD
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Æ