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S. HRG. 112–943 

HEARING ON THE SPECIAL COUNSEL’S REPORT 

ON THE PROSECUTION OF SENATOR TED STEVENS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MARCH 28, 2012 

Serial No. J–112–69 

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, Ranking Member 

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 

MARCH 28, 2012, 10:13 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

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

prepared statement .......................................................................................... 27 

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

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

prepared statement .......................................................................................... 25 

WITNESS 

Witness List ............................................................................................................. 23 

Schuelke, III, Henry F., of Janis, Schuelke and Wechsler, Washington, DC ..... 6 

Prepared report not printed due to voluminous nature, previously printed by 

an agency of the Federal Government, or other criteria determined by the 

Committee: http://legaltimes.typepad.com/files/stevenslreport .pdf .... 24 

QUESTIONS 

Questions submitted to Henry F. Schuelke, III, by: 

Senator Grassley .............................................................................................. 30 

Senator Hatch ................................................................................................... 36 

Senator Lee ....................................................................................................... 37 

ANSWERS 

Responses of Henry F. Schuelke, III, to questions submitted by: 

Senator Grassley .............................................................................................. 38 

Senator Hatch ................................................................................................... 61 

Senator Lee ....................................................................................................... 62 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, statement ..... 65 

National Association of Assistant United States Attorneys (NAAUSA), John 

E Nordin, II, President, statement ..................................................................... 117 

National Association of Criminal Defense Lawyers (NACDL), Lisa Monet 

Wayne, President, letter to Chairman Patrick J. Leahy, a U.S. Senator 

from the State of Vermont, and Ranking Member Chuck Grassley, a U.S. 

Senator from the State of Iowa, March 27, 2012 .............................................. 120 

Schuelke, III, Henry F., of Janis, Schuelke and Wechsler, letter to Chairman 

Patrick J. Leahy, a U.S. Senator from the State of Vermont, March 29, 

2012 ....................................................................................................................... 68 

Wainstein, Kenneth L., O’Melveny and Myers LLP, letter to Hon. Eric H. 

Holder, Jr., U.S. Attorney General, March 15, 2012 ......................................... 69 

United States Department of Justice, Washington, DC, statement .................... 109 
Page

IV 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, list .............................................................................. 124 

Bottini, Joseph W.: 

http://lawprofessors.typepad.com/files/submission-of-joseph-w.-bottini .pdf . 124 

Goeke, James A.: 

http://lawprofessors.typepad.com/files/submission-of-james-a.-goeke.pdf ..... 124 

Marsh, Nicholas A.: 

http://lawprofessors.typepad.com/files/submission-on-behalf-of-nicholas-a.- 

marsh.pdf .......................................................................................................... 124 

Morris, Brenda K.: 

http://lawprofessors.typepad.com/files/submission-of-brenda-k.-morris.pdf . 124 

Sullivan, Edward P.: 

http://lawprofessors.typepad.com/files/submission-of-edward-p.- 

sullivan.pdf ....................................................................................................... 124 

Welch, III, William M.: 

http://lawprofessors.typepad.com/files/submission-of-william-m.-welchiii.pdf ................................................................................................................. 124 
(1) 

HEARING ON THE SPECIAL COUNSEL’S REPORT ON THE PROSECUTION OF SENATOR 

TED STEVENS 

WEDNESDAY, MARCH 28, 2012, 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:13 a.m., in Room 

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 

Klobuchar, Franken, Grassley, and Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I am glad to see Senator Feinstein here and Senator Cornyn, as well as Senator Grassley and 

myself. As you probably know, we have a number of hearings going 

on around the Capitol involving Members of this Committee, but 

this is an area, Mr. Schuelke, that we have had a great deal of interest in, as you can imagine. Senators of both parties have talked 

to me about this. 

I have said many times and in a lot of different contexts that our 

criminal justice system is the envy of the world. Our constitutional 

framework provides that all individuals are guaranteed the right to 

fair treatment and a fair trial. But in order for our criminal justice 

system to work, the courts must ensure adherence to the rule of 

law. Defendants have to be afforded vigorous and competent counsel. But I feel—and I think Senator Cornyn, who is a former prosecutor, also would agree—prosecutors bear a very special responsibility in the system. They wield so much power when it comes to 

charging decisions—that is, not only to bring a charge but also determining when to withhold a charge—plea bargaining, and trial. 

Prosecutors have to uphold the law. They have to adhere to the 

highest ethical standards. They have to seek justice. The integrity 

of our criminal justice system relies heavily on prosecutors, and the 

fact that they want to make sure all parties—the State, the defendant, the witnesses, victims, whatever else—have to be treated fairly. 

Now, much of the country is focused on the killing last month of 

Trayvon Martin in Florida. This is a matter in which the police decided not to bring charges. The local prosecutor has since recused 

himself while a special State prosecutor reevaluates the case. Last 
2 

week, the Civil Rights Division of the U.S. Department of Justice 

announced that it had begun an investigation into this matter. I 

share the President’s heartfelt feelings and sense that there needs 

to be a thorough investigation that gets to the truth, which is what 

the American people want—the truth. 

Last week, I chaired a Judiciary Committee hearing that focused 

on one pivotal component that supports the integrity of our criminal justice system—the importance of collecting and retaining critical evidence like DNA that can be used both to convict the guilty 

but exonerate the innocent. One of the witnesses at that hearing 

was the outstanding District Attorney in Dallas, Craig Watkins, 

who has established a team of prosecutors dedicated to reevaluating prior cases to make sure they were handled fairly. We heard 

about the extraordinary work that he and his Criminal Justice Integrity Unit are doing and the works of the judges in Dallas. It is 

an example and model of how prosecutors, judges, and defense attorneys can work together to ensure that all criminal defendants 

receive fair trials. 

[The prepared statement of Chairman Patrick J. Leahy appears 

as a submission for the record.] 

Now, what is going to happen today, we are going to talk about 

what went wrong—and I emphasize ‘‘what went wrong’’—in the 

trial of the late Senator Ted Stevens. We are going to hear testimony from Henry Schuelke—I understand you usually go by 

‘‘Hank.’’ Is that correct? 

Mr. SCHUELKE. Yes. 

Chairman LEAHY. He is the Special Counsel appointed by Judge 

Emmett Sullivan to investigate allegations that the Federal prosecutors in the Stevens case engaged in intentional prosecutorial 

misconduct by not sharing critical exculpatory evidence with the 

defense. Now, in fairness, I would note that Mr. Schuelke’s report 

is accompanied by lengthy rebuttal submissions on behalf of those 

he investigated, which challenge, in particular, the evidence of intentional misconduct. 

Now, this is a prosecution that took place before the election of 

President Obama and before his appointment of Attorney General 

Holder. In fact, it was Attorney General Holder who decided, based 

upon his own review of the matter, to seek to dismiss the indictment and withdrew the case after the jury’s guilty verdict. The 

Justice Department has also taken recent steps to improve its 

training of prosecutors and has a senior official dedicated to this 

purpose. The Attorney General has sought a thorough internal investigation of what happened in the Stevens case started by the Office of Professional Responsibility. I have talked to the Attorney 

General about that report. He hopes to make the report public. I 

intend to have this Committee review that report. 

This hearing today is part of our important oversight responsibility. Prosecutorial misconduct cannot be tolerated. I would not 

tolerate it when I was a prosecutor. It should not be tolerated within our Federal system under any circumstances at all. What happened in the Stevens case should not happen again, and that 

should be whether the defendant is prominent or an indigent defendant. They should all be treated the same. Significant evidence 

was not disclosed to the defense. Critical mistakes were made 
3 

throughout the course of the trial that denied Senator Stevens a 

fair opportunity to defend himself. The sloppiness, mistakes, and 

poor decisions in connection with the Stevens case disturbed the 

judge hearing the case. They also disturb me. And I might say that 

it disturbs an awful lot of the Senators on both sides of the aisle. 

This is not a partisan issue. The Justice Department needs to ensure that such a situation is never repeated. 

Day in and day out, prosecutors across the Nation work tirelessly 

to seek justice and protect our communities. They do it at the highest standards possible. I speak often of my time as a prosecutor in 

Vermont because I am proud of the dedicated public servants—the 

prosecutors and law enforcement officers—with whom I had the 

privilege to work. But in order for our justice system to work, good 

prosecutors know they have to adhere without fail to the directive 

to seek justice for all parties, the Government and the defendants, 

not just convictions. 

Senator Grassley, did you want to say something? And then we 

will start with our witness. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Yes. Well, obviously, you deserve a big thank 

you for holding today’s hearing because this is a very troubling 

matter that warrants more attention than it has gotten. 

In his famous speech entitled, ‘‘The Federal Prosecutor,’’ then Attorney General and later Justice Jackson said, ‘‘The prosecutor has 

more control over life, liberty, and reputation than any other person in America. While the prosecutor at his best is one of the most 

beneficent forces in our society, when he acts from malice or other 

base motives, he is one of the worst.’’ Obviously fitting words for 

today’s hearing as we examine the conduct of the Justice Department prosecutors in an effort to understand what went wrong in 

the prosecution of Ted Stevens. 

The Government’s prosecution of Senator Stevens was arguably 

the highest profile case ever brought by the Justice Department’s 

Washington, D.C.-based Public Integrity Section. It had consequences far beyond the jury’s guilty verdict and impacted the 

Senate election in 2008. 

While all criminal cases should be handled with the utmost professionalism, cases of this level of importance and publicity—where 

elections can be swayed—should be shining examples of the best of 

the Justice Department. They should have the best prosecutors and 

the best agents and should be the centerpiece of America’s criminal 

justice system. Unfortunately, this case appears to be the opposite 

of the ideal. 

According to our witness today, the prosecution of Senator Ted 

Stevens was ‘‘permeated by the systemic concealment of significant 

exculpatory evidence which would have independently corroborated 

[his] defense and his testimony, and seriously damaged the testimony and credibility of the Government’s key witness.’’ These are 

shocking statements that call into question the conduct of those involved in this prosecution and threaten to resonate further 

throughout Justice. 
4 

Like so many times before, we owe much of our insight into the 

Department’s failures to a whistleblower. FBI Agent Chad Joy 

came forward in January 2009 with allegations of misconduct in 

the investigation of Senator Stevens. While there were indicators 

of failures to turn over exculpatory material before, it was Agent 

Joy’s disclosures to the court that instigated the investigation. 

According to media reports, Agent Joy is no longer with the FBI. 

And, of course, I hope it is not because he was run out of the FBI 

for blowing the whistle on this prosecution gone wrong. He deserves our thanks for having the courage to speak up. 

To its credit, the Justice Department ultimately moved to dismiss with prejudice the case against Senator Stevens. To Judge 

Sullivan’s credit, he did not ignore the whistleblower. He held the 

prosecutors in contempt of court for the failures to turn over exculpatory evidence. He then appointed an independent Special Counsel to investigate and prosecute criminal contempt proceedings, if 

appropriate, against the Justice Department lawyers involved. 

Mr. Schuelke’s report was recently released, on March 15th, and 

Attorney General Holder has publicly stated the report has ‘‘disturbing’’ findings. I think that is an understatement. Reading 

through this report is like reading though a case study in poor 

management. The case was riddled with problems right from the 

start when DOJ sought an expedited trial date. This decision, 

which is not fully explained and something I want to know more 

about, helped put the case on a collision course with failure. 

Why would the Department ask for an expedited trial date when 

the review for Brady material had just started and was far from 

complete? From the report details, the Brady disclosure problems 

appear to stem from an expedited timeline, inadequate staffing, a 

lack of a defined chain of command for making decisions, and poor 

supervision. 

Two major disclosure problems were not revealed until after the 

conclusion of the trial: exculpatory information from one of the 

prosecution’s witnesses and the withholding of impeachment material of the prosecution’s star witness, Bill Allen. The impeachment 

evidence is particularly troubling because it involves the witness’ 

effort to cover up a relationship with a 15-year-old prostitute. It 

also raises questions because the Justice Department later advised 

State and local prosecutors not to pursue child sexual exploitation 

charges against Allen and then dropped any Federal charges. This 

has led to a second investigation at the Department’s Office of Professional responsibility as to why that prosecution was declined. 

In addition to the failures to disclose exculpatory material, the 

case also suffered from a series of questionable decisions from the 

management at Main Justice. For example, prosecutors claim that 

conflicting involvement between the Public Integrity Section and 

the leadership of the Criminal Division created an unclear chain of 

command. They also claim that conflicts in personalities developed 

as a result of staffing decisions, decided by senior leadership in 

D.C. 

Despite these supervisory failures, there is no recommendation 

in the report related to the management of the case. I am particularly interested in this aspect because management failures such as 

this are sanctionable conduct by OPR. 
5 

It will be interesting to see how this report compares to the final 

product issued by OPR. OPR’s report should include some review 

of the management of this case in addition to the disclosure failures. The Attorney General should ensure that a full, unredacted 

version of that OPR report is provided to Congress. 

At an oversight hearing in November last year, when Senator 

Hatch asked for a copy of the final OPE report, Holder stated, 

‘‘That is up to the people at OPR. What I have indicated was that 

I want to share as much of that as we possibly can, given the very 

public nature of that matter, and the very public decision that I 

made to dismiss the case.’’ 

Despite the Attorney General’s purported desire to make this information public, his statement that it is ‘‘up to the people at OPR’’ 

leads me to believe we are not likely to ever see that report. 

The Justice Department has routinely blocked the release of OPR 

investigations, citing privacy laws and employee rights of the attorneys and agents guilty of misconduct. The Attorney General ultimately oversees OPR, and if he truly wants that information made 

public, he should order it released upon the conclusion of the investigation. 

In the event he does not, the Privacy Act has an exemption for 

Congress, and so, Mr. Chairman, even under the Department’s tortured reading of the plain text of that statute, I hope as Chairman 

you will be able to obtain the OPR report in an unredacted form, 

and I will be happy to work with you on that issue. 

A lot of things went wrong in the prosecution of Senator Stevens, 

and despite this strongly worded report that we are discussing here 

today, it seems nobody has been held accountable at the Justice 

Department. A criminal defendant’s constitutional right to a fair 

trial, regardless of who he is, is fundamental to our criminal justice 

system. Yet when those rights were intentionally violated by attorneys at the Justice Department, it seems no one was held accountable. I find this fact even more disturbing than the findings of this 

report, and we have an obligation to hold the Justice Department 

accountable for what went wrong here and prevent it from happening again in the future. 

Thank you. 

Chairman LEAHY. Well, thank you. And as I noted, we will take 

it one step at a time. The Attorney General deserves credit for having the prosecution dismissed, and he deserves credit for having 

the OPR report, and he has told me that we will be seeing it. So 

let us take it one step at a time. 

Today we have Hank Schuelke, who was appointed in April 2009 

by U.S. District Judge Emmett Sullivan as Special Counsel to investigate allegations of prosecutorial misconduct in the prosecution 

of U.S. Senator Ted Stevens. Mr. Schuelke filed his report with the 

court November 14, 2011. By court order, it was made publicly 

available 2 weeks ago, on March 15th, accompanied by the submission of the six prosecutors who were the subjects of his investigation. 

Mr. Schuelke has worked in private practice in Washington, 

D.C., since 1979 when he started his own law firm. Before that he 

served for 4 years in the Army’s Judge Advocate General’s Corps, 

3 years as a military judge, 7 years as Assistant U.S. Attorney for 
6 

the District of Columbia, 3 years as Executive Assistant U.S. Attorney. 

Mr. Schuelke, please go ahead, sir. 

STATEMENT OF HENRY F. SCHUELKE, III, OF JANIS, 

SCHUELKE AND WECHSLER, WASHINGTON, DC 

Mr. SCHUELKE. Thank you, sir. Chairman Leahy, Senator Grassley, Senator Feinstein, Senator Cornyn, good morning. 

I appear this morning at your invitation to address whatever 

questions you might have concerning our report to Judge Sullivan 

on the subject of our investigation conducted pursuant to Judge 

Sullivan’s order of April 7, 2009. 

We were ordered to investigate and to prosecute such criminal 

contempt proceedings as may be appropriate against William 

Welch, Brenda Morris, Nicholas Marsh, Edward Sullivan, Joseph 

Bottini, and James Goeke, the Department of Justice attorneys responsible for the prosecution of United States v. Senator Theodore 

F. Stevens in the United States District Court for the District of 

Columbia. 

I come before you this morning not as an advocate for any position but, rather, to respond to your questions. I have submitted to 

the Committee a copy of our report, which, as Senator Leahy has 

indicated, was filed on the public docket in the U.S. District Court 

on March 15th. 

I should like to note that I was assisted throughout our investigation by my colleague William B. Shields and note as well that 

our work would not have been possible without the complete cooperation of the Department of Justice at the highest levels of the 

Department and by the Department’s Office of Professional Responsibility. 

With that, I will be pleased to answer your questions. 

[The prepared report of Henry F. Schuelke, III, is listed as a 

website link in the submissions for the record.] 

Chairman LEAHY. Well, thank you very much, Mr. Schuelke. We 

have been joined by another former prosecutor, Senator Klobuchar. 

The Supreme Court—I mentioned Brady earlier, and that case, 

Brady v. Maryland, something every prosecutor learns that they 

have a clear constitutional duty to disclose exculpatory evidence to 

a defendant prior to trial. It is a constitutional duty. It is also common sense. If prosecutors fail to disclose exculpatory evidence, 

whether intentionally or not, the integrity of the whole criminal 

justice system in my belief is diminished. You also end up convicting or have the risk of convicting innocent people. 

I mention this because in your report you found that information 

withheld from the defense was, and I quote you, ‘‘quintessential 

Brady information.’’ Now, tell us what you mean by that, and especially how would the trial have been different if the prosecutors 

had disclosed this information? 

Mr. SCHUELKE. I think, Senator Leahy, that I first should describe, at least briefly, the allegations made in the indictment 

against Senator Stevens and the essence of his defense. Senator 

Stevens and his wife, Catherine, in addition to their home here in 

Washington, owned a small cabin in the community of Girdwood, 

Alaska. It was a rustic cabin, which was quite agreeable to Senator 
7 

Stevens, who liked to go fishing outside of Girdwood, sit on the 

porch of an evening, put his feet up, and perhaps smoke a cigar. 

Not so Mrs. Stevens or their children or their grandchildren, who 

found the cabin to be in need of improvement. 

And so in 1999, Senator Stevens resolved that he would do some 

kind of a renovation to the cabin, which he jokingly called ‘‘The 

Chalet.’’ He was a friend of a gentleman whose name is Bill Allen, 

a self-made entrepreneur who, by 1999, had become quite wealthy, 

and he was the CEO of an oil field services and construction company. He was a fishing buddy from time to time of Senator Stevens 

as well. He was conversant with the construction industry to some 

degree, and he certainly knew what was available in and about Anchorage, Alaska, in terms of contractors. 

Senator Stevens and he met in 1999 in the company of a gentleman whose name was Rocky Williams, who was a VECO employee. VECO was the name of Bill Allen’s corporation. Senator 

Stevens told him that he wanted to do a renovation to the so-called 

chalet. He wanted Allen’s assistance in identifying a remodeling 

contractor who might do the bulk of the work, and he was interested in having Bill Allen, through a couple of his employees, assist 

as might be appropriate in the renovation of the chalet. 

Chairman LEAHY. Mr. Schuelke, I do not want to cut in, but I 

am trying to keep each of the Senators to a certain amount of time, 

and I do want you to get to the point of my basic question: How 

would the trial have been different if the exculpatory information 

had been released? 

Mr. SCHUELKE. All right. One principal example, Senator, I told 

you who Rocky Williams was. Rocky Williams, in effect, served as 

the onsite foreman of the job. The job was performed for the most 

part by a firm called Christianson Builders. The Stevenses mortgaged their home in Washington for $100,000, liquidated a trust 

for another $10,000, and spent—for another $50,000, rather, and 

spent an additional $10,000 from savings. So they paid 

Christianson Builders and a couple of its subcontractors $160,000 

for the cabin which was appraised to be worth, after the renovations, $152,000. 

Senator Stevens and his wife, Catherine Stevens, testified during 

Senator Stevens’ trial that it was their understanding that whatever work Allen’s company had provided on the house had been included in the Christianson Builders’ invoices, which they paid in 

full. That testimony of both Senator Stevens and Mrs. Stevens was 

ridiculed by the prosecutors both in cross-examination of each of 

them and in their summations. 

Rocky Williams was interviewed by two of the prosecutors, 

Messrs. Bottini and Goeke, in the company of FBI Agent Chad Joy, 

1 month before the trial commenced here in Washington. On the 

morning that he was interviewed, another of the prosecutors, Edward Sullivan, sent an e-mail to the group of prosecutors which 

said, ‘‘We got some additional documents from Senator Stevens’ defense counsel. It is apparent from those documents that Senator 

Stevens and Mrs. Stevens will testify that they thought that all of 

the VECO charges were included in the Christianson Builders’ 

bills, and if Catherine Stevens does not testify, they will try to 

squeeze that out of Rocky on cross-examination.’’ 
8 

The very day that that e-mail was circulated, Messrs. Bottini and 

Goeke interviewed Rocky. They did not have to squeeze that out of 

Rocky. Rocky told them that, ‘‘Well, back in 1999 I met with Senator Stevens and with Bill Allen. Senator Stevens wanted us to arrange to find a contractor. He wanted to pay for everything, and 

he wanted to make sure that this was done right. And so it was 

my understanding as the foreman on the job that my time as a 

VECO employee, Dave Anderson’s time as another VECO employee, and anybody else who worked on the job from VECO would 

be included in the Christianson Builders’ invoices. And so every 

month,’’ he told them, ‘‘I went and got the Christianson Builders’ 

invoice. I checked it to make sure it was accurate based on my observations of what their people did. Then I took it to the front office 

at VECO to give to Bill Allen, or his secretary if he was not there, 

so that my time, that of Dave Anderson, and other VECO employees could be added to the Christianson Builders’ bills before they 

were sent to the Stevenses for payment.’’ 

That was Rocky Williams’ account. That was his understanding. 

His understanding was altogether consistent with that of Senator 

and Mrs. Stevens. 

Had Rocky Williams testified as a Government witness, as the 

plan was originally, that is what he would have testified to. 

Chairman LEAHY. And do you believe that would have made a 

difference in the trial? 

Mr. SCHUELKE. First of all, I believe that that anticipated testimony from Rocky Williams directly corroborated Senator Stevens’ 

defense. I believe that it may well have affected the outcome of the 

trial. 

Chairman LEAHY. And so this is a fairly serious—well, it is a serious allegation. Did you provide the report to the subjects of your 

investigation before it was finalized in order to allow them to do 

any rebuttal on that? 

Mr. SCHUELKE. Judge Sullivan in November of last year ordered 

that our report be made available to the subjects of our investigation, and it was. 

Chairman LEAHY. And did—— 

Mr. SCHUELKE. In his order—I beg your pardon, Senator. 

Chairman LEAHY. Go ahead. 

Mr. SCHUELKE. In his order in November of last year, he expressly provided the opportunity for each of them to submit comments and objections. 

Chairman LEAHY. And did they? 

Mr. SCHUELKE. A couple did. A couple did not. Subsequently—— 

Chairman LEAHY. Did that in any way change your comments, 

in any way change your report? 

Mr. SCHUELKE. It did not. 

Chairman LEAHY. Thank you. 

Mr. SCHUELKE. But I should add, subsequently, in February of 

this year, when Judge Sullivan ordered that the report be made 

public on March 15th, he provided the subjects yet another opportunity to submit comments and objections, which each of them did, 

and he ordered that I append those comments to our report, which 

I did. 
9 

Chairman LEAHY. Okay. It was not given to them, though, before 

your report first went to the judge. 

Mr. SCHUELKE. That is correct. 

Chairman LEAHY. And I understand that the attorneys for Mr. 

Bottini, the Assistant U.S. Attorney handling the case in Alaska, 

said that he pressed his supervisor on seven separate occasions to 

voluntarily disclose impeachment information regarding the possible subordination of perjury by Bill Allen, who was a key Government witness, you said, and the other line prosecutor in Alaska, 

Mr. Goeke, he claims they moved to disclosed that. But your report 

says that Mr. Bottini and Mr. Goeke intentionally withheld this information and did not try to get it disclosed. So which is it? Did 

they attempt to get their supervisors to disclose information by Bill 

Allen? Or are they not being truthful when they say that on these 

numerous occasions they asked to have it? 

Mr. SCHUELKE. As our report indicates in great, some would say 

excruciating, detail, Messrs. Bottini and Goeke on a number of occasions proposed, indeed urged, the rest of the prosecution team 

that some disclosure be made about evidence which was in their 

possession indicating that their star witness, Bill Allen, had suborned a false statement from a young woman who was a crack-addicted prostitute with whom she claimed to have had sex when she 

was 15 years old. 

Chairman LEAHY. And this exculpatory information was not 

made available? 

Mr. SCHUELKE. It was not. 

Chairman LEAHY. Thank you. 

Senator Grassley. 

Senator GRASSLEY. Your report states, ‘‘Were there a clear, specific, and unequivocal order of the court which commanded the disclosure of this information, we are satisfied that a criminal contempt prosecution would lie.’’ Ultimately your report concluded 

that no such order existed for Brady or Giglio obligations. However, your report states that at a September 10, 2008, motion hearing, the court ‘‘admonished’’ the Government to follow the law, 

meaning Brady, but that no order was issued that day. As a result, 

despite the intentional and willful efforts to conceal this material, 

the prosecutors could not be criminally prosecuted. 

Question: The fact that Judge Sullivan did not issue an order on 

September the 10th is arguably the seminal point of this matter 

because it prevents the prosecutors from meeting the elements of 

a prosecution for criminal intent. Had the court issued a formal 

order on September the 10th instructing DOJ prosecutors to comply with Brady and Giglio, would you have recommended criminal 

contempt against the prosecutors? 

Mr. SCHUELKE. I would. 

Senator GRASSLEY. Notwithstanding this technical violation, do 

you believe they should face criminal penalties, including jail time? 

Mr. SCHUELKE. That is not a judgment, Senator Grassley, for me 

to make. 

Senator GRASSLEY. In the course of your investigation, were you 

able to determine what the intent of the prosecutors was during 

the September 10th motion hearing? Did they—well, that is the 

question, but let me continue. Let me start over again. 
10 

In the course of your investigation, were you able to determine 

what the intent of the prosecutors was during the September 10th 

motion hearing? Did they intend to keep Judge Sullivan from 

issuing an order so that they would not be subject to possible criminal contempt charges later? 

Mr. SCHUELKE. They did not. As a matter of fact, at one point 

during that colloquy on September the 10th, Judge Sullivan said, 

‘‘Well, so what should I do, Madam Prosecutor?’’—addressing Brenda Morris. ‘‘Should I issue an order that you produce any and all 

Brady and Giglio material?’’ And the response was: ‘‘If that is what 

the court wishes to do, the court may do so.’’ 

The court, however, concluded that colloquy on September the 

10th by saying, ‘‘I am not going to issue an order. I will accept the 

professions of good faith on the part of the Government. We all 

know the law. They tell me they know the law. There is no need 

for me to issue an order compelling them to comply with the law. 

Hints to the wise should be sufficient.’’ 

Senator GRASSLEY. As a result of this case and going forward, 

should all district judges issue formal orders to DOJ prosecutors instructing them to comply with Brady and Giglio in an effort to ensure compliance and secure the possibility of criminal contempt? 

Mr. SCHUELKE. Well, Senator Grassley, that is one way to address the issue. I am not satisfied it is the best way to address the 

issue. You know, I say in the report, during the discussion of 

whether or not Judge Sullivan had issued an order, that no district 

judge ought to be required to order prosecutors to comply with 

their constitutional obligations, let alone be required to issue an 

order so specific that it might support a criminal contempt prosecution in anticipation of its willful violation. That does not make any 

sense to me. 

It is true that around the country, at last count of which I am 

aware, some 38 of the 94 districts have standing local rules which 

order the production of Brady and Giglio material pre-trial as a 

part of the overall discovery regimen. That is one way to address 

it. There are judges individually who have standing orders in every 

criminal case to the same effect. And, indeed—— 

Senator GRASSLEY. I think you have answered my question. Let 

me go on to another question. 

Mr. SCHUELKE. Yes, sir. 

Senator GRASSLEY. The Stevens case was prosecuted by two attorneys—U.S. Attorney’s Office Alaska as well as two attorneys 

Public Integrity Section, Main Justice. In fact, the U.S. Attorney 

Office was recused from the case because of conflicts of interest. 

Thus, the Public Integrity Unit in Main Justice was in charge of 

the case with the chief of the section and his Principal Deputy significantly involved. They were involved in the drafting of the indictment. They prepared memos for the leadership of the Criminal 

Division, and they briefed the Division’s leadership on the progress 

of the case. Numerous e-mails reinforce the fact that Public Integrity viewed themselves as the final authorities. Indeed, shortly before the case was to be indicted, the front office of Criminal Division at Main Justice made the Principal Deputy, Public Integrity, 

the lead trial attorney. Nevertheless, the report seems to minimize 

the responsibility of Public Integrity for the failure of the case. The 
11 

section chief claims, and the report seems to accept, that he was 

cut out of the supervisory chain of command, and the deputy chief 

claims that she withdrew from supervision over the prosecution 

team because she did not want to cause dissension among the 

team. 

Question: Doesn’t the chief of the section that was in charge of 

the case bear responsibility for failures? This was perhaps one of 

the most important cases Public Integrity has ever prosecuted, that 

of a sitting Senator. Why does the report seem to avoid a finding 

of fault against the section chief of Public Integrity ultimately responsible for all cases in the section? Shouldn’t the buck stop with 

the boss at the top? If not, why not? 

Mr. SCHUELKE. First of all, Senator Grassley, it is not so that the 

report fails to address this issue. The report catalogs in great detail 

the history of the management or mismanagement of the case. The 

report chronicles the fact that both Mr. Welch, then the chief of the 

Public Integrity Section, and Brenda Morris, his deputy chief, abdicated supervisory responsibility for assorted reasons, some of which 

you, Senator, just recited. So the report did not shirk from addressing the failures of management. 

Recall, Senator, that the object of our investigation, as chronicled 

in our report, was to determine whether or not criminal contempt 

proceedings were appropriate with respect to any of the named 

prosecutors. We found no evidence, apart from this failure of management, that either Mr. Welch or Ms. Morris willfully engaged in 

any misconduct in the nature of concealing Brady or Giglio information from the defense. 

Senator GRASSLEY. This will be my last question because I want 

to keep my colleagues going. The report makes the deputy chief of 

Public Integrity seem hapless and overwhelmed. At times she 

seemed more interested in not ruffling feathers with the trial team 

than aggressively supervising the case. 

As an experienced prosecutor assigned to run the case, shouldn’t 

she have risen above the concerns about ruffling feathers and done 

the job she was tasked with? And if she was failing, wasn’t it the 

job of her supervisor to fix that? 

Mr. SCHUELKE. No question. 

Senator GRASSLEY. Okay. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Feinstein. 

Senator FEINSTEIN. Well, thank you very much, Mr. Schuelke, for 

your—— 

Mr. SCHUELKE. Good morning, Senator Feinstein. 

Senator FEINSTEIN [continuing]. Work in this area. Both Senator 

Leahy and I have served on the Appropriations Committee with 

Senator Stevens, Senator Leahy far longer than I, but I almost 20 

years. So in the course of so doing, you learn a little bit about a 

person that sits on that Committee. So it is with a kind of particular shock that we view what happened to him, made all the 

more worse by his premature demise, obviously, and the fact that 

he never knew the result of your report, which is a great tragedy. 

But as I understand the Department’s policies regarding Assistant United States Attorney, a DOJ attorney engages in professional misconduct when he or she—and this is a quote—‘‘inten-
12 

tionally violates or acts in reckless disregard of an obligation or 

standard imposed by law, applicable rule of professional conduct, or 

Department regulation or policy.’’ 

Do you make that finding in your report? 

Mr. SCHUELKE. I do not address the disciplinary rule, nor do I 

address the standards that the Department of Justice applies. 

What I did conclude is that in several instances, two of the surviving prosecutors engaged in intentional misconduct. Therefore, if 

the Department were to come to the same conclusion, or if they 

concluded that the conduct was reckless, they would per force conclude that the lawyers engaged in professional misconduct. 

Senator FEINSTEIN. Your report finds that the prosecution was 

troubled by significant mismanagement, specifically the lack of supervision, which you point to, of the attorneys prosecuting the case 

and the compressed schedule the prosecution was under. 

Did you in any way, shape, or form consider whether the failures 

to disclose evidence were due, at least in part, to lack of time or 

to a misinterpretation or misunderstanding of what these disclosure duties entailed? 

Mr. SCHUELKE. I did, and I found and concluded that there were 

a number of failures to disclose impeachment information owing to 

the compressed schedule, the absence of effective supervision, and 

the fact that a decision was taken to permit FBI agents who were 

not schooled in Brady and Giglio to do the Brady-Giglio review. All 

of those occasions, which in my judgment were the product of the 

failure of management, came to light during the trial. They caused 

Judge Sullivan to have grave concerns about the credibility of the 

prosecution team, but they did come to light, and the defense was 

able to use that information. 

Not so with respect to the three episodes about which we concluded that there was intentional concealment of exculpatory or impeachment information. None of those three, in my judgment, was 

a product of the compressed time schedule or the management and 

supervision failures. 

Senator FEINSTEIN. So what was the motivation? 

Mr. SCHUELKE. Prosecutors, plaintiffs’ attorneys, defense attorneys for that matter—I happen to have served as all three in the 

course of my career—like to win. It is what we call ‘‘contest living.’’ 

We go into a case believing that our case is meritorious. We believe 

that our witnesses are telling us the truth. We do not want to have 

to undermine our case if it can possibly be avoided. I think that 

motive to win the case—— 

Senator FEINSTEIN. No matter what. 

Mr. SCHUELKE [continuing]. Was the principal operative motive. 

I do not believe that any of the prosecutors, including Mr. Bottini 

and Mr. Goeke from Alaska, harbored a personal animus toward 

Senator Stevens. I do not believe that either of them sought fame 

and glory and that is the reason they wanted to win the case. That 

is just not in their personalities, in my judgment. They did, however, want to win the case. 

Senator FEINSTEIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. I would just remind everybody listening that 

no matter how much a prosecutor might want to win, we still have 
13 

the Brady case, and we have their responsibility to disclose exculpatory information. A prosecutor—and I can say this as one who 

was. A prosecutor has a unique position in the system. They are 

not just there to win. 

I understand what you are saying about wanting to win, but they 

are not just there to win. They are there to make sure that justice 

is done. 

Senator Cornyn, speaking of prosecutors, a former Attorney General and Justice. 

Senator CORNYN. Mr. Schuelke, the Constitution, the integrity of 

our adversarial system of justice, and the rules of professional responsibility that bind members of the bar, as these prosecutors 

were, all depend upon prosecutors observing some goal above and 

more fundamental than just a desire to win. Wouldn’t you agree? 

Mr. SCHUELKE. Absolutely. 

Senator CORNYN. Mr. Chairman, I would ask on behalf of Senator Murkowski—she has a statement that she would ask unanimous consent to be put in the record, and I have one as well that 

I would like to have put in the record. 

Chairman LEAHY. Absolutely. And I told Senator Murkowski of 

course we would include anything she wanted. 

[The prepared statement of Senator Murkowski appears as a 

submission for the record.] 

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

Senator CORNYN. Mr. Schuelke, you have performed a profound 

public service. Thank you for that. And I know it continues here 

today. The thing that disturbs me so greatly is not that this prosecution involved a United States Senator, because I doubt we 

would be having this hearing if it involved a citizen who was not 

a United States Senator. And that disturbs me greatly because I 

know the resources that you and the court have put into this investigation, and I doubt those sorts of resources, that time and that 

effort, would be put into an investigation involving similar abuses 

involving the constitutional rights of other citizens accused of 

crimes but whose rights were violated by the prosecutors by prosecutorial misconduct. 

Do you share those concerns? 

Mr. SCHUELKE. To a degree. The Judge Sullivan whom I know 

would have done the same thing no matter who the defendant was. 

Senator CORNYN. And I appreciate that and appreciate what 

Judge Sullivan has done here, particularly allowing the release of 

this report unredacted. And I hope the Office of Professional Responsibility report will be released to us in full in unredacted form 

so we can get to the bottom of this. 

Of course, one of the prosecutors in this case did not have an opportunity to respond to your report. Nicholas Marsh committed suicide, did he not? 

Mr. SCHUELKE. He did, although his counsel was invited to submit a response and did so as a representative of Mr. Marsh’s estate. 

Senator CORNYN. The Justice Department has told us that the 

Stevens case does not suggest a systemic problem with regard to 

prosecutors abusing their responsibilities to divulge exculpatory 
14 

and other information required under Brady and Giglio. How can 

we possibly be satisfied with that representation? And how do we 

know? How does any citizen know that the Department of Justice 

will not abide similar prosecutorial misconduct in the future? 

Mr. SCHUELKE. First of all, I do not believe on the basis of our 

investigation that what happened in the Stevens case is representative of what happens in cases brought by the thousands across this 

country by the Department of Justice. 

Second, as Senator Leahy indicated at the outset, it was, of 

course, the Attorney General, Eric Holder, who moved that the Stevens case be dismissed with prejudice when he learned of a portion—a portion—of the nondisclosure which had occurred in the 

case. 

Eric Holder did not shirk from that responsibility. I know Eric 

Holder both personally and professionally and have for years, likewise his deputy Jim Cole; likewise the Assistant Attorney General 

of the Criminal Division Lanny Breuer. They are men of probity 

and integrity. And I do not believe, the Stevens case notwithstanding, that the public should labor under the notion that what 

happened in the Stevens case happens as a matter of course. 

Senator CORNYN. Well, Mr. Schuelke, I agree with you that the 

Attorney General is entitled to credit for after the fact raising this 

issue with the court and seeking the dismissal of the charges. Unfortunately, the damage to Senator Stevens and to the adversarial 

system of justice had already been done, and there is nothing the 

Attorney General or anyone else can do to undo it. And so I know 

you—well, let me just ask you, in conclusion, since time is short 

here. In those instances where the character and integrity and professional responsibility of a prosecutor do not seem to overcome 

their desire to win at any cost, is there anything that Congress can 

or should do or is there any further action that you would recommend that we take in order to make sure that abuses like this 

do not occur? Because I worry that when they do sometimes 

occur—and I agree with you that in the main, prosecutors are honorable people who perform their responsibilities with integrity. But 

in those instances where they do not and where they intentionally 

withhold this kind of information, as you said these prosecutors 

have, how do we protect the integrity of our system of justice? How 

do we protect the reputation of people who are wrongfully convicted 

when this information is withheld? How do we protect our Constitution? 

Mr. SCHUELKE. I do have a view on this subject, Senator Cornyn. 

As you know, the Supreme Court of the United States as well as 

the circuit courts around the country have long articulated an appellate standard of review of Brady violations. By that standard, 

the Court will not reverse a conviction even in the presence of the 

concealment of exculpatory information unless the Court is able to 

conclude that that concealment was outcome determinative; that is 

to say, that it was material to the conviction and was so material 

to the conviction that it would leave one without confidence in the 

guilty verdict. 

So we have this appellate materiality standard, which makes 

perfect sense to me, from the post hoc perspective of an appellate 

court. Because that standard has been articulated over the years, 
15 

prosecutors take the view pre-trial that they are only required to 

disclose what they believe to be material, that is, which might ultimately have an adverse effect on the outcome. 

Judge Paul Friedman of the district court here in Washington, 

in a recent, fairly publicized case called Safavian, addressed this 

issue and said, no, it is not the prerogative of the prosecutor—one 

of the adversaries, of course, in this proceeding—to decide before 

a single witness has been called to testify, before a jury has been 

empaneled, before the judge has ruled on the admissibility of any 

piece of evidence, that some exculpatory or impeachment information will not be material. That is looking, Judge Friedman said, at 

the subject through the wrong end of the telescope. He is absolutely 

right about that, in my judgment. That makes perfect sense. 

So I believe the question for the Congress may be squarely presented. Need we do something about eliminating this materiality 

requirement so that prosecutors understand that in the pre-trial 

setting they are required to disclose any information which is favorable to the accused or which would serve to impeach anticipated 

Government witnesses? 

I know that the Department of Justice has a strong contrary 

view, namely, that there should not be legislation to achieve this 

objective. Rather, the Department, through the U.S. Attorney’s 

Manual and through guidance issued by then Deputy Attorney 

General David Ogden in December 2010, largely inspired by the 

Stevens case, issued guidance which directs the prosecutors to disclose information that is impeachment or that is exculpatory regardless of the materiality standard in most cases, recognizing and 

specifically stating that what we are saying in this policy statement is we are going to have prosecutors go beyond the requirement of the law. 

Chairman LEAHY. Thank you. 

I am going to include the following submissions of the Committee 

in the hearing record: written testimony of the Department of Justice; a letter from the National Association of Criminal Defense 

Lawyers on Discovery Reform; a letter from Attorney Ken 

Wainstein to Attorney General Holder raising process and substantive concerns about the report of the Special Counsel. Without 

objection, they will be in the record. 

[The information referred to appears as submissions for the 

record.] 

Chairman LEAHY. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

This is a pretty awful hearing, frankly. I mean, it is of high quality and thank you for holding it and thank you for your work, but 

this is some pretty awful conduct by the prosecutors, I think, just 

appalling. 

I just want to ask a couple questions about—and you have just 

been talking about this—how to get at fixing these kinds of problems. One thing I would like to know, first of all, do you think that 

what the prosecutors did is—you know, is it illegal? Or do you 

think that we need to change the law? Or do you think what they 

did was already illegal? 

Mr. SCHUELKE. I think what occurred in this case in a number 

of instances was in violation of an obligation imposed by the courts. 
16 

Senator FRANKEN. Right, thus? 

Mr. SCHUELKE. Interpreting the Constitution. And so using your 

term broadly, I would have to say it was illegal. 

Senator FRANKEN. Okay. Let us talk about what you were talking about in terms of Brady violations and what to do about this. 

Mr. SCHUELKE. Yes, sir. 

Senator FRANKEN. You are talking about maybe taking out the 

‘‘material’’ part and just say anything that is exculpatory a prosecutor would have to reveal. Is there any kind of possibility—and 

I understand that the Justice Department does not want to do that 

because they are afraid that it will scare of witnesses who think 

that anything that they have ever done will have to be—you know, 

a witness against a defendant, that anything negative about them 

will be exposed in court and make people much more reluctant to 

testify in court. That is one of the fears of the Justice Department, 

is it not? 

Mr. SCHUELKE. It is, and that is a legitimate concern. 

Senator FRANKEN. Okay. So instead of rewriting the law so that 

the prosecutor has to reveal all exculpatory, anything that could 

possibly be exculpatory, even if in their opinion it is not material, 

is there any kind of process that could be set up as a reform for 

this system where a prosecutor could get an advisory opinion 

about—an independent advisory opinion about evidence that presents a close call under Brady? 

Mr. SCHUELKE. When you say ‘‘independent,’’ you mean outside 

of the Department of Justice? 

Senator FRANKEN. Either outside—— 

Mr. SCHUELKE. The Department of Justice has an office, the Professional Responsibility Advisory Office, known as PRAO, which is 

there to entertain questions about the application of the disciplinary rules of the bar to the conduct of prosecutors. As a matter of 

fact—— 

Senator FRANKEN. I mean, in other words, if a prosecutor had a 

question about a Brady matter, is there either that board or—I 

guess you cannot go to the judge? 

Mr. SCHUELKE. You can. 

Senator FRANKEN. Can you go to the judge? 

Mr. SCHUELKE. You can. If I had, were I again a Federal prosecutor, and I said to myself, ‘‘Hmm, I have got this piece of evidence here. I am not so sure whether I have to disclose this.’’ Well, 

first of all, I was taught when I was a young Assistant U.S. Attorney, if I had to think about that for more than 10 seconds, turn 

it over. But if I did not, I could go to the trial judge ex parte—— 

Senator FRANKEN. You can do an ex parte meeting with—— 

Mr. SCHUELKE. Make a submission to the judge in camera, say, 

‘‘This is what I have. I do not know whether I am obligated to turn 

this over or not. There are reasons, in my view, why perhaps I 

should, but there are reasons why I should not. You, Your Honor, 

decide. You are the neutral magistrate.’’ 

Senator FRANKEN. Well, that is kind of what I meant. You can 

go to the judge. 

Mr. SCHUELKE. Yes, that is available, although, as you might 

well imagine—— 
17 

Senator FRANKEN. Because, pardon me, I am not a lawyer. I just 

played one in a sketch on TV. 

[Laughter.] 

Mr. SCHUELKE. And I think you did a pretty good job. 

Senator FRANKEN. Thank you. Thank you. So that kind of ex 

parte meeting with a judge is cool, is fine, it is okay, it is kosher? 

Mr. SCHUELKE. It is. 

Senator FRANKEN. Thank you. 

[Laughter.] 

Mr. SCHUELKE. All of the above. 

Senator FRANKEN. Okay. So maybe in the law, if we are changing 

the law here, there could be—and the Justice Department has a legitimate, meaningful objection to all exculpatory evidence, even if 

it does not seem material, having to be disclosed to the defense, 

then perhaps there could be some process written into the law saying if you have any question, you have got to go to the judge, and 

if you did not go to the judge on something, you have got a big 

problem. 

Mr. SCHUELKE. Yes. Yes, that could be done. 

Senator FRANKEN. Okay. Thank you. I am done with my time. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Durbin. 

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

Mr. Schuelke, thank you. 

Mr. SCHUELKE. Good morning, Senator. 

Senator DURBIN. Thank you for your testimony. Judge Sullivan 

stated, and I quote, ‘‘The prosecutorial misconduct that permeated 

the proceedings in this case’’ were to a degree and extent that he 

had not seen in 25 years on the bench. I assume that is why Attorney General Holder took the commendable but rare step of seeking 

dismissal of the case and not attempting to retry it. But there are 

some exceptional reasons why we are meeting today. 

This was a high-profile case involving a United States Senator, 

one of our colleagues. That Senator had some of the best legal talent on his defense team, experienced attorneys from a prominent 

Washington firm. An extremely conscientious judge presided over 

this case and took the rare step of appointing an independent investigator, yourself, who issued a 500-page report. And there was 

an FBI agent in the case who allegedly spoke out as a whistleblower and raised allegations of misconduct by the Government’s 

prosecutorial team. 

In short, this was the furthest thing from the everyday criminal 

trial world that is going on even as we meet. What is at stake, 

though, the principle of law, the constitutional principle, applies 

equally to cases of celebrity and notoriety as it does to those that 

are commonplace by comparable standards. 

When I heard about your report and came to understand what 

your conclusions were, I challenged the Department of Justice and 

said, ‘‘Now what? Now that you know this has taken place, what 

can you do, what will you do to make certain that it is less likely 

in the future?’’ And the answer was, ‘‘We have learned our lesson.’’ 

Pardon my skepticism, but I am not sure, because of what you 

referred to earlier as contest living, that we will ever avoid that in-
18 

clination of attorneys in court—and I was one many years ago—to 

do their darnedest to proceed to the outcome they are looking for. 

So my question to you—I have two. One relates to what Senator 

Franken asked. If what happened in this case by the prosecutors 

was, in fact, illegal, was it the commission of a crime, failing to disclose what should have been disclosed in evidence under the Brady 

rule? 

Second, if we are really serious about avoiding this in the future, 

don’t we have to go further than to trust the instincts of the Department of Justice and prosecutors across America? Don’t we have 

to enshrine in the law some basic protection of the criminal defendant when it comes to this disclosure? 

A bill has been introduced by one of our colleagues. I am not sure 

if you are aware of it. 

Mr. SCHUELKE. I am. 

Senator DURBIN. She talks about exceptions when it comes to 

this disclosure relating to witness safety and national security and 

the like, but really puts a standard that goes to the case you 

cited—Safavian, I believe? 

Mr. SCHUELKE. Yes, sir. 

Senator DURBIN. And says that we are going to basically assume 

everything is material until proven otherwise or the court notes 

otherwise. 

So if you would address those two issues: One, if illegal, what 

specific crime did these prosecutors commit? And, second, if there 

is a lesson to be learned here, should this lesson be written into 

the law so that the faceless criminal defendant who may not get 

a Senate Judiciary Committee hearing has the same protection? 

Mr. SCHUELKE. First, Senator, as my report describes, had Judge 

Sullivan issued a clear and unequivocal order that the prosecutors 

produce all Brady and Giglio material, there would have been a 

crime committed, criminal contempt with respect to those episodes 

described in our report as to which we concluded the conduct was 

intentional. Beyond that, there is a footnote in our report which 

says that we offer no opinion as to whether or not a prosecution 

for obstruction of justice might lie because that is not within my 

prerogative. 

As a matter of fact, the separation of powers doctrine would preclude a lawyer investigator appointed by the court from bringing 

such a charge. 

Senator DURBIN. I am sorry to interrupt you, but what you are 

saying is, unless there is an express violation of a court order, that 

you do not believe a prosecution for obstruction of justice would 

lie—— 

Mr. SCHUELKE. No, that is not what I am saying, Senator. 

Senator DURBIN. Please clarify it. 

Mr. SCHUELKE. In the absence of an express order, a prosecution 

for criminal contempt will not lie. Whether or not the self-same 

conduct violates the obstruction of justice statutes and whether 

under the U.S. Attorney’s Manual a prosecution for that offense on 

this conduct would be appropriate is not a decision for me to make. 

Senator DURBIN. I have gone beyond my time, but if you could 

address the second part, whether we should seriously consider creating a statute which specifies the protection which you have ar-
19 

ticulated was denied Senator Stevens and should be given to all 

criminal defendants under Brady. Mr. SCHUELKE. I believe you should consider legislation which 

eliminates, as I explained earlier, the so-called materiality requirement. I know that Senator Murkowski’s bill does that. It does a lot 

of other things as well about which I am not prepared to express 

a view at this moment. 

The Department—I know, because I saw their statement yesterday—has submitted to the Committee a lengthy statement describing what they have done in the wake of the Stevens case, which 

is quite impressive, in my view. They explain as well, as I said earlier, that as a matter of policy their prosecutors are instructed not 

to make distinctions based on the materiality issue. 

That policy, however, has an express disclaimer. This does not 

have the force of law. It vests no rights in anyone. I understand 

why that is so with respect to the policy. 

My question is: If the Department believes that there should be 

no pre-trial materiality standard—because that is what they are 

telling their prosecutors now to do—what is the principled reason 

for opposing legislation that does just that? 

Chairman LEAHY. Thank you very much. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

I, having been both United States Attorney and the Attorney 

General for my State, tend to lean toward an open file rule. I think 

that there are obvious exceptions to the open file rule, witness safety being preeminent. Very often these are particularly dangerous 

individuals who would like nothing more than to murder witnesses. 

National security would be another important consideration. Not 

disclosing or disrupting or impeding an ongoing investigation 

would be another. And a general protection against unwarranted 

invasions of individuals’ privacy would all seem to make sense and 

would all seem to be subject to a reason check and balance if there 

were a proceeding with the judge, ex parte where it was appropriate in a national security/witness safety matter. And it would 

sort of put the prosecution through its paces. 

I think that with those protections, less is likely to go wrong 

than in prosecutions that are based on a hide-the-ball strategy, 

which I think is the wrong way to go about making cases. 

So I am speaking in part to you, Mr. Schuelke, but I am speaking really through you to the Department to urge them to take a 

serious look at this, not just to push back because it is new or different, but to see what systemically can be done about this. And 

there are two messages that I have. As somebody who was in the 

Department and I consider myself a friend of it, there is, I do not 

think, a place in the Government that I admire more than the Department of Justice. But that does not mean that there is not occasional room for improvement. And I worry sometimes that, in addition not necessarily having the rule be right, when something does 

go wrong, it appears that there are times when there can be a bit 

of a lean, shall we say—L-E-A-N—in favor of the Department attorneys who violated—assuming that they did—the provision. 

I just want to raise something that I have raised over and over 

again with the Department and take this opportunity to flag it yet 
20 

again. This goes back to the Office of Legal Counsel opinions on 

torture in which the Office of Legal Counsel failed to cite a circuit 

court decision, Circuit Court of Appeals of the United States, that 

looked exactly at the type of conduct that was involved— 

waterboarding; described it very clearly, and described it—I do not 

remember my count right now, but 10 or 11 times in the decision— 

as torture. And the OLC opinions never mention the case. They go 

on for pages, they go on for dozens of pages. They never mention 

the case. 

What concerns me about that is that when the Department went 

back to look at it, the investigation concluded with a memorandum 

by—I think he is retired from the Department now—David 

Margolis, the Margolis memo, which said that the lawyers at the 

Office of Legal Counsel were not to be held to the standard that 

a regular, ordinary ham-and-egg lawyers hauling the files under 

his arm into the district court is in terms of the standard required 

for candor to the tribunal. 

So, again, I am speaking through you, Mr. Schuelke, to the Department, but that continues to leave a sour taste with me. It does 

not make sense to me that the Department lawyers at the Office 

of Legal Counsel, which is probably the highest and most talented 

part of the legal profession in Government, outside of the Supreme 

Court itself, should not have to meet the standard of the day-today workaday trial lawyer appearing before a judge, particularly 

where the process for the candor to the tribunal standard is a pretty open one. There are checks on it. There is the other counsel who 

can say, ‘‘Your Honor, he forgot to tell you the case on point,’’ or 

the judge and his clerk who look it up and come back to the lawyer 

and say, ‘‘Counselor, how could you not have told me about the 

case on point that comes out of the circuit court of appeals.’’ 

The OLC does not operate that way. It is much more secretive, 

particularly when it is a classified hearing. So I think, if anything, 

the standard for OLC lawyers should be higher than the standard 

for a regular, workaday lawyer going before a tribunal, not lower. 

And I am going to continue to press on that Margolis memo because I think it is wrong to hold those Department lawyers to a 

lower standard than workaday lawyers outside of the Department. 

And I flag that because I think it is very important that the Department make clear not only that it gets the rules right and follows the rules, but also that when there are violations it is clear 

that there is no hesitancy to come down on people who have violated those very important rules. 

So, Mr. Chairman, that is more in the nature of a statement 

than a question for Mr. Schuelke, but I wanted to make sure that 

those points were clear to the Department of Justice and my concerns about them were clear to the Department of Justice, which 

I will conclude by saying again is perhaps the organization in the 

U.S. Government that I am proudest of. I think it is a wonderful 

organization, and I do not want to gainsay that with these two very 

specific concerns. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, and we will wrap up rather quickly here. 
21 

You concluded that line prosecutors intentionally withheld the 

information. Did you give consideration to the evidence that they 

sought approval to disclose impeachment evidence but were told 

not to by leadership of the Public Integrity Section of the Department of Justice? 

Mr. SCHUELKE. I did. 

Chairman LEAHY. Thank you. And does the leadership of the 

Public Integrity Section bear some responsibility for what happened in the Stevens case? 

Mr. SCHUELKE. It bears responsibility for failing its supervisory 

responsibility to know all of the operative facts before they pass on 

a decision. 

Chairman LEAHY. Okay. And what did you conclude about the 

role of the Criminal Division and its then Acting Assistant Attorney General Matthew Friedrich in terms of managing the case, including what you suggest was the Department’s failure in your 

judgment to satisfy discovery obligations? 

Mr. SCHUELKE. I think Matthew Friedrich—and I say so in the 

report—quite sensibly and understandably took an interest in this 

high-visibility prosecution of a senior sitting United States Senator. 

It would, in my judgment, be—— 

Chairman LEAHY. And a member of the same party as—— 

Mr. SCHUELKE. The administration. 

Chairman LEAHY [continuing]. The administration that was prosecuting him. 

Mr. SCHUELKE. Indeed. So, in my view, it would be completely 

counterintuitive if the Assistant Attorney General for the Criminal 

Division had not taken a serious interest in the matter. I think, 

however, as we also say, that paradoxically that sensible interest 

to supervise and make sure things were done right put in place a 

prosecutor to serve as lead counsel whom he thought was better 

equipped than the existing team of prosecutors, contributed to the 

morale problems, contributed to Brenda Morris having decided, 

‘‘Because they put me in here and created all these morale problems, I do not want to make anybody any more unhappy, so I am 

going to make myself as little as possible,’’ as she put it, ‘‘and I am 

just going to my job, I am going to cross-examine witnesses, I am 

going to make closing arguments, and I am going to trust what the 

rest of them tell me about what the state of discovery is.’’ 

Chairman LEAHY. Well, I have great concerns about this case, as 

you can probably gather. I am trying to be as objective as I can in 

getting information. We will have the OPR report, and we will go 

into that when it comes. I agree with Senator Whitehouse. Some 

of the finest men and women that we have in this country are 

those who work in the Department of Justice and are prosecutors 

and others there. But this one bothers me greatly, not the least of 

which I knew Ted Stevens. In my more than 30 years of knowing 

him, I never knew him to break his word. I never knew him to tell 

me something that was not accurate and true. And for full disclosure, I had that kind of a personal relationship with him. I thought 

the world of him and assumed that, for whatever time I would be 

in the Senate, I would be serving with him. We traveled together. 

In fact, I had told his attorney that I would be willing to testify. 
22 

While I could not testify to the facts of the case, I could testify to 

the fact that he was always totally honest with me. 

As Chairman of this Committee, though, and one with oversight 

of the Department of Justice, and while I realize this happened 

with the last Department of Justice, not the current one—and I do 

agree with your assessment and your statement of approval of Attorney General Holder in dismissing this case. We have both 

known him for a lot of years before he was Attorney General, and 

I have a great deal of respect for his ability. I am concerned about 

what happened. It happened here. 

I also want to make sure, as others have suggested, that this not 

happen if it was Ted Smith who nobody would know, and that is 

why I have had my Innocence Protection hearings and others. I 

think the prosecutor is in many ways the most important person 

in the whole criminal justice system, even more so than the judge 

in many ways, because the prosecutor can determine not to bring 

a case as well as to bring one. That is enormous power. If it is exercised appropriately, the whole population is protected; improperly, 

the whole system is damaged. So that is why I am holding these 

hearings and why I have stayed through the whole hearing. 

Mr. Schuelke, I thank you very much for—— 

Mr. SCHUELKE. If I may, just as—— 

Chairman LEAHY. Of course. 

Mr. SCHUELKE [continuing]. A point of personal privilege, I 

should like to say that, like Senator Whitehouse, I am a proud 

alumnus of the Department of Justice. This is a sad story. I take 

no joy in having had to come to these conclusions. I hope I never 

have to do it again. 

Chairman LEAHY. Well, I will concur in that. I am proud to be 

a lawyer. When people ask me what my occupation is, I say lawyer 

before I do U.S. Senator. I am very proud of that. I was proud of 

being in private practice. I was proud of being State’s attorney, district attorney, and I was proud to be picked as one of the three outstanding prosecutors in the country 1 year. Whether deserved or 

not, I will not judge, but that is probably the early thing that will 

be on my biography someday. 

Thank you very much. 

Mr. SCHUELKE. Thank you, Mr. Chairman. 

[Whereupon, at 11:40 a.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 
(23) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED REPORT OF HENRY F. SCHUELKE, III 

Prepared report not printed due to voluminous nature, previously printed by an 

agency of the Federal Government, or other criteria determined by the Committee: 

http://legaltimes.typepad.com/files/stevenslreport.pdf 
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PREPARED STATEMENT OF CHAIRMAN PATRICK J. LEAHY
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PREPARED STATEMENT OF SENATOR JOHN CORNYN
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QUESTIONS SUBMITTED TO HENRY F. SCHUELKE, III, BY SENATOR GRASSLEY
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QUESTIONS SUBMITTED TO HENRY F. SCHUELKE, III, BY SENATOR HATCH
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QUESTIONS SUBMITTED TO HENRY F. SCHUELKE, III, BY SENATOR LEE
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RESPONSES OF HENRY F. SCHUELKE, III, TO QUESTIONS SUBMITTED

BY SENATORS GRASSLEY, HATCH, AND LEE
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SUBMISSION FOR THE RECORD
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ADDITIONAL SUBMISSIONS FOR THE RECORD

A list of material and links can be found below for Submissions for the Record not 

printed due to voluminous nature, previously printed by an agency of the Federal 

Government, or other criteria determined by the Committee: 

Bottini, Joseph W.: 

http://lawprofessors.typepad.com/files/submission-of-joseph-w.-bottini.pdf 

Goeke, James A.: 

http://lawprofessors.typepad.com/files/submission-of-james-a.-goeke.pdf 

Marsh, Nicholas A.: 

http://lawprofessors.typepad.com/files/submission-on-behalf-of-nicholas-a.- 

marsh.pdf 

Morris, Brenda K.: 

http://lawprofessors.typepad.com/files/submission-of-brenda-k.-morris.pdf 

Sullivan, Edward P.: 

http://lawprofessors.typepad.com/files/submission-of-edward-p.- 

sullivan .pdf 

Welch, III, William M.: 

http://lawprofessors.typepad.com/files/submission-of-william-m.-welchiii.pdf 

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