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PROSECUTION OF FORMER SENATOR 

TED STEVENS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 19, 2012 

Serial No. 112–106 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

JARED POLIS, Colorado 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 19, 2012 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

WITNESSES 

Henry F. Schuelke, III, Partner, Janis, Schuelke, and Wechsler 

Oral Testimony ..................................................................................................... 36 

Kenneth L. Wainstein, Partner, Cadwalader, Wickersham and Taft LLP 

Oral Testimony ..................................................................................................... 48 

Prepared Statement ............................................................................................. 51 

Alan I. Baron, Senior Counsel, Seyfarth Shaw LLP 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 58 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 5 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 7 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Addendum to the Prepared Statement of Kenneth L. Wainstein, Partner, 

Cadwalader, Wickersham and Taft LLP ............................................................ 74 

Letter from Virginia E. Sloan, The Constitution Project, to the Honorable 

F. James Sensenbrenner, Jr. ............................................................................... 183 

Letter from Virginia E. Sloan and Stephen F. Hanlon, The Constitution 

Project, to the Honorable Eric H. Holder, Jr. .................................................... 185 

Letter from Robert Gay Guthrie, President, the National Association of Assistant United States Attorneys ......................................................................... 188 

Prepared Statement of Sean Bennett, Kalamazoo, Michigan .............................. 191 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the 

Court’s Order, dated April 7, 2009, Henry F. Schuelke III, Special Counsel, D.C. Bar 

no. 91579; and William Shields, D.C. Bar no. 451036, Janis Schuelke & Wechsler 

This report is available at the Subcommittee and can also be accessed at: 

http://www.dcd.uscourts.gov/dcd/sites/www.dcd.uscourts.gov.dcd/files/Misc09-198.pdf 

(1) 

PROSECUTION OF FORMER SENATOR 

TED STEVENS 

THURSDAY, APRIL 19, 2012 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 9:34 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Gohmert, Goodlatte, 

Poe, Gowdy, Adams, Scott, Conyers, Johnson, Pierluisi, and Jackson Lee. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Harold Damlin, Counsel; Sheila Shreiber, Counsel; Samuel Ramer, Counsel, Lindsay Hamilton, Clerk; (Majority) Bobby 

Vassar, Subcommittee Chief Counsel; Aaron Hiller, Counsel; and 

Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

Today’s hearing examines the troubled prosecution of former 

United States Senator Ted Stevens of Alaska, which resulted in the 

Department of Justice requesting the judge to overturn the jury’s 

guilty verdict and dismiss the charges against him. The Justice Department’s Public Integrity Section, with the assistance of two assistant U.S. attorneys from Alaska, prosecuted Senator Stevens. 

The Public Integrity Section is supposed to be the Department’s 

elite unit for handling political corruption cases. In light of what 

the prosecutors did in this case, I have to question the section’s 

competency and ethics. 

In July 2008, a few months before he was to run for reelection, 

Senator Stevens was indicted for making false statements on his 

annual Senate disclosure form. The indictment charged that he had 

not paid for certain renovations made to a home he owned in Alaska and failed to disclose the value of the renovations as gifts. The 

renovations were made by VECO Corporation, an Alaska company 

owned by the Senator’s longtime friend, Bill Allen. 

In order to allow Senator Stevens the chance to clear his name 

before the upcoming November election, his attorney requested an 

October trial date. The government not only agreed to a speedy 

trial, but suggested an even earlier date of September. The result 

was that there would be only 55 days between indictment and the 

start of the trial. 

2 

*See http://www.dcd.uscourts.gov/dcd/sites/www.dcd.uscourts.gov.dcd/files/Misc09-198.pdf. 

Since this was a criminal prosecution, the government was required to produce all exculpatory and impeachment-type evidence 

known as the Brady and Giglio material. Pretrial, the government 

summarized what it represented to be all of the Brady and Giglio 

material in its possession in two letters sent to counsel for Senator 

Stevens. As would be discovered later, the prosecutors had made 

misstatements and omitted significant evidence in each letter. 

This trial started in late September 2008. Senator Stevens’ counsel repeatedly asked the judge to dismiss the case because the prosecutors had failed to produce the evidence in violation of their 

Brady and Giglio obligations. Numerous times the judge found that 

the prosecutors had violated their discovery obligations. While the 

judge declined to dismiss the case, he repeatedly ordered the prosecutors to produce the various documents required by Brady and 

Giglio. He sanctioned the government by excluding certain evidence. 

In late October, the jury found Senator Stevens guilty on all 

seven counts of the indictment. As subsequent events would reveal, 

the jury reached its verdict based upon a distorted version of the 

facts. Soon after the trial ended, an FBI agent involved in the case 

took the unusual step of filing a whistleblower complaint with DOJ 

and the judge, alleging in specific detail that his co-FBI agent and 

at least one of the prosecutors engaged in serious misconduct and 

unethical behavior in the prosecution of Senator Stevens. 

Given these serious allegations, the judge ordered the government to produce materials relating to the agent’s complaint. Consistent with its behavior during the trial, the government did not 

comply with the judge’s order. The judge had finally had enough 

of the government’s noncompliance, and held two of the Public Integrity Section’s prosecutors in civil contempt. 

At this point, the DOJ assigned a new team of attorneys from 

outside the Public Integrity Section to handle the remainder of the 

Stevens post-trial litigation. They soon discovered that the prosecutors had failed to produce to Senator Stevens’ counsel significant 

exculpatory and impeachment information in the form of interview 

notes relating to the key prosecution trial witness, Bill Allen. 

After producing the interview notes to the judge and to Senator 

Stevens’ counsel, DOJ took the drastic step of asking the judge to 

set aside the guilty verdict and to dismiss the indictment of Senator Stevens based upon the prosecutor’s prior failure to produce 

the interview notes. While the case was tossed out, it was too little, 

too late. Senator Stevens had lost his bid for reelection and the 

damage done by the prosecutors was irrevocable. 

The judge was so concerned about the government’s admitted 

Brady violations, combined with what he described as ‘‘prosecutorial misconduct to a degree and extent that this court has not 

seen in 25 years on the bench,’’ that he took the extraordinary step 

of appointing a special counsel, Henry Schuelke, to investigate and, 

if appropriate, prosecute criminal contempt proceedings against the 

Stevens prosecutors. 

In November of last year, Mr. Schuelke completed his investigation and submitted to the judge a 500-page report.* The judge reVerDate Aug 31 2005 13:30 Jul 11, 2012 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041912\73861.000 HJUD1 PsN: DOUGA
3 

leased the report to the public on March 15, 2012, and the facts 

detailed in that report have generated today’s hearing. 

Mr. Schuelke did not recommend bringing criminal contempt 

charges against any of the prosecutors due to what he concluded 

was a deficiency in the judge’s orders. One might say that the prosecutors got lucky. Significantly, Mr. Schuelke found that the investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of exculpatory evidence 

which would have independently corroborated Senator Stevens’ defense and his testimony, and seriously damaged the testimony and 

credibility of the government’s key witness. 

Mr. Schuelke’s report describes a series of improper actions 

taken by the prosecutors and the FBI agent that are sobering. His 

report takes us inside a major criminal prosecution where he found 

that the prosecutors won their case through willfully failing to disclose exculpatory and impeachment evidence, intentionally failing 

to correct false testimony, making misrepresentations to the judge, 

to defense counsel, and even to people within DOJ, shirking supervisory responsibility, grossly mismanaging the trial team, and acting on questionable ethical decisions. 

Further discrediting the prosecutors, he also found that they had 

a collective memory failure relating to certain key events. As would 

be expected regarding any report like this one, people have criticized Mr. Schuelke’s conclusions, tactics and tones, but there can 

be no dispute about the hard facts which lead to only one conclusion: that Senator Stevens was denied a fair trial due to the collective misconduct of the prosecutors. If they had complied with their 

ethical and legal obligations, the jury might not have convicted 

Senator Stevens. 

I think it is important that we try to understand how and why 

the government botched this prosecution before considering whether we need legislative changes. I am also interested to know that 

what, if anything, DOJ has done in response to the problems that 

have been uncovered in the Stevens prosecution. DOJ undertook an 

internal review of the Stevens’ prosecutors, the results of which 

were leaked to the press over a year ago. 

Despite the Attorney General’s public pronouncements to Congress that he plans on sharing the DOJ report, he has not done so. 

We invited DOJ to send a representative to testify at this hearing, 

but the Department declined the invitation. 

I look forward to discussing this very troubling matter today 

with Mr. Schuelke and the other panel of witnesses which we have 

scheduled to testify. 

And I now yield to the gentleman from Virginia, Mr. Scott, for 

his opening statement. 

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you 

for this hearing regarding the prosecutorial misconduct in the case 

involving former Senator Ted Stevens of Alaska. 

I commend the Attorney General for taking decisive action after 

the findings that you have outlined, dismissing the prosecution of 

Senator Stevens with prejudice upon learning of the misconduct. I 

understand that his Department’s decision not to comment on the 

matter during the Office of Professional Responsibility review, but 

it is clear from other cases that the problem is greater than just 

4 

the Stevens case. And I am concerned about whether or not there 

are sufficient safeguards in place to prevent such disturbing cases 

from occurring in the future. 

The government is given enormous powers over individuals in 

the criminal justice system, including the power to jeopardize and 

take away their freedom, even their lives in some cases. In exercising such enormous power over individuals, it is incumbent upon 

the criminal justice system to ensure basic fairness to them. And 

when the government conceals information in a prosecution that 

could undermine its case against a defendant, such concealment is 

fundamentally and constitutionally unfair as well as unethical, and 

it is actually illegal under Brady v. Maryland and other cases. 

Generally a defendant will have no way to know of or learn of 

exculpatory evidence known to the government unless the government discloses it. Given the adversarial relationship between the 

government and the defendant in criminal cases and the natural 

desire of human beings, including prosecutors, to win a case, there 

are strong temptations not to reveal case weaknesses. Therefore, 

there must be strong disincentives, as well as obligations, for the 

government to overcome such temptations. I believe that the Attorney General and his staff have demonstrated and continue to demonstrate commendable responsibility in revealing the failures of the 

Department to meet its obligations in the Stevens case. However, 

I am not convinced that the dependence on after-the-fact actions by 

an individual Attorney General and disciplinary proceedings 

against individual attorneys for their failures to reveal exculpatory 

evidence, if discovered, is a strong enough standard to prevent such 

problems from occurring in the future. 

In other recent cases, including potential cases among those reported in recent newspaper articles, regarding unrevealed discredited scientific evidence relied upon for convictions of hundreds of 

defendants caused me to believe that stronger requirements than 

those currently in place need to be considered. 

Also, we have several letters that I will offer for the record, 

signed by dozens of criminal justice professionals and observers, including many former prosecutors calling for stronger measures as 

safeguards against concealment of exculpatory information by prosecutors. 

I look forward to any light the testimony of our witnesses may 

shed on these issues. I also look forward to working with you, Mr. 

Chairman, and the Department of Justice, to ensure that effective 

measures are in place to prevent such cases as Senator Stevens’ 

case from occurring in the future. Thank you and I yield back. 

Mr. SENSENBRENNER. Thank you. 

And without objection, the letters referred to by the gentleman 

from Virginia will be put into the record. 

The Ranking Member of the full Committee, the gentleman from 

Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. I commend 

you and Ranking Member Scott for your statements, which I concur with, and will merely submit my opening for the record and observe that the Brady rule is being violated in other respects as 

well. In other words, there are people that don’t have the rank of 

United States Senator who are no doubt being affected by violaVerDate Aug 31 2005 13:30 Jul 11, 2012 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041912\73861.000 HJUD1 PsN: DOUGA
5 

tions of the Brady rule. So it is in that spirit that I commend both 

the Chairman and the Ranking Member for the work that they 

have done in this regard. And I will yield back the balance of the 

time, and I will yield briefly to Bobby Scott. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

In the landmark case Brady v. Maryland, the Supreme Court writes: ‘‘Society 

wins not only when the guilty are convicted but when criminal trials are fair; our 

system of the administration of justice suffers when any accused is treated unfairly.’’ Looking to the constitutional guarantees of due process and effective assistance of counsel in the Fifth and Sixth Amendments, the Court stated that prosecutors have a duty to disclose evidence that is favorable to the defense. This rule, 

when honored, helps to ensure fair process in criminal trials. 

Over time, the Brady rule has become an integral part of our federal criminal system. As a direct consequence of Brady and its line, Rule 16 of the Federal Rules 

of Criminal Procedure requires prosecutors to disclose a wide array of evidence at 

the request of a defendant. The Jencks Act, 18 U.S.C. § 3500, requires prosecutors 

to disclose certain information about government witnesses. 

And, of course, all prosecutors are governed by professional rules of ethics that 

require us to share information in our possession that may be favorable to the defense. Because the government controls so much of the information pertinent to a 

criminal trial, we require federal prosecutors to make favorable evidence readily 

available to the other side. 

Notably, however, Congress has never codified the Brady rule itself. No statute 

compels the disclosure of all exculpatory evidence. Instead, we have relied on Department of Justice policy, rules of procedure, and a sense of trust in our federal 

prosecutors to ensure that Brady is enforced. 

Today, we will address whether that trust has been misplaced. Specifically, we 

focus on the trial of the late Senator Ted Stevens, whose prosecution was as flawed 

as they come. At no point in Senator Stevens’ trial did prosecutors conduct a full 

or effective review for Brady information. They knowingly withheld impeachment 

evidence, and knowingly failed to correct perjured testimony. 

We have come to these conclusions after a 2-year investigation by independent 

counsel Henry F. Schuelke. His analysis demontrates, beyond a reasonable doubt, 

that federal prosecutors intentionally withheld Brady information from Senator Stevens—and, in some instances, never bothered to learn the extent of the exculpatory 

evidence in their possession. 

It has become common to say that, if these offenses could happen to Senator Stevens, they could happen to anyone. Often overlooked is the fact that prosecutorial 

misconduct of this nature happens with alarming frequency, to the obvious harm 

of countless defendants—many of them far less prominent than a U.S. Senator. 

For example, the Lindsay Manufacturing Company was the first corporation to be 

convicted of charges under the Foreign Corrupt Practices Act. The conviction was 

reversed after the court found that prosecutors had inserted falsehoods in requests 

for search warrants, allowed an FBI agent to testify untruthfully before a grand 

jury, improperly reviewed Brady material, and withheld key Brady evidence from 

the defense. 

Consider the case of Edgar Rivas, a sailor on a Venezuelan freighter bound for 

New York who was charged with possession of more than five kilograms of cocaine. 

He was sentenced to ten years in prison. On appeal, the Second Circuit learned that 

prosecutors had obtained a confession from their main witness, Rivas’s shipmate, 

and never disclosed that statement to the defense. 

Or consider the case of Anthony Washington, a drug dealer with multiple felony 

convictions. Washington might have been in prison for unlawful possession of a firearm had federal prosecutors not withheld the fact that their main witness had been 

previously convicted for making a false report. 

6 

These cases, and others like them, are inexcusable. Still, the Department of Justice has been given time to bring its attorneys into line with Brady. In 2006, the 

Department revised the United States Attorney Manual to explicitly require Brady 

disclosure. In 2010, following the embarrassing reversal of Senator Stevens’ conviction, Deputy Attorney General David Ogden issued a series of memoranda to provide further guidance for prosecutors. 

But neither of these policies are judicially enforceable. And given the continued 

run of Brady violations, it may be time for Congress to consider other options. 

During the trial of Senator Stevens, in deliberations about whether a court order 

would be necessary to compel the government to produce Brady material, Judge 

Emmet G. Sullivan stated: ‘‘I’m not going to write an order that says ‘follow the 

law.’ We all know what the law is. . . . I’m convinced that the government and its 

team of prosecutors . . . in good faith, know that they have an obligation on an ongoing basis to provide the relevant, appropriate information to defense counsel.’’ Because the court accepted the prosecutors’ repeated assertions that they were complying with Brady, it did not issue an order directing the attorneys to follow the 

law. 

But if federal prosecutors must be ordered to obey Brady, because it is too vague 

a rule or too difficult to follow, then it may fall to Congress to draw a brighter line. 

This is the conclusion drawn in this letter, ‘‘A Call for Congress to Reform Federal 

Criminal Discovery,’’ signed by 141 judges, prosecutors, law enforcement officers, defense lawyers, conservative leaders, and others. Few issues draw so much agreement from such a diverse and experienced group. 

I look forward to the testimony of the witnesses their insights into how we can 

prevent prosecutorial misconduct, restore a measure of faith in our federal criminal 

process, and protect the constitutional rights of all Americans. 

Mr. SCOTT. Thank you. Mr. Chairman, I just want to mention for 

the record the statement from the Department of Justice, a letter 

from the National Association of Criminal Defense Lawyers, ACLU, 

and a letter from the Constitutional Project that has almost 150 

signatories. 

Mr. SENSENBRENNER. Without objection, the material will be included. 

[The information referred to follows:] 

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Mr. SENSENBRENNER. Without objection, all Members’ opening 

statements will be included at this time. 

I would now like to introduce today’s witness on the first panel. 

Henry F. Schuelke, III, is a partner in the law firm Janis, 

Schuelke, and Wechsler. Mr. Schuelke was named by Judge Emmet 

Sullivan to serve as Special Counsel to investigate the prosecution 

of Senator Ted Stevens. Mr. Schuelke previously served twice as 

Special Counsel to the U.S. Senate. He served as an assistant 

United States attorney for the District of Columbia. And following 

his graduation from law school, he served for 4 years in the Judge 

Advocate General’s Corps. He received his undergraduate degree 

from St. Peters college and his law degree from Villanova University. 

The Chair is going to swear witnesses at this hearing, so Mr. 

Schuelke would you please stand and raise your right hand. 

[Witness sworn.] 

Mr. SENSENBRENNER. Thank you. I ask that you summarize your 

testimony in 5 minutes or less. We have the red, yellow, and green 

lights before you. And when the light turns red, it indicates that 

the 5 minutes have expired. Mr. Schuelke. 

TESTIMONY OF HENRY F. SCHUELKE, III, PARTNER, 

JANIS, SCHUELKE, AND WECHSLER 

Mr. SCHUELKE. Thank you. Mr. Chairman, Mr. Scott, Mr. Conyers, good morning. I appear this morning at the Committee’s invitation to answer such questions as the Committee might have concerning the investigation that my colleague William B. Shields and 

I have performed, having been ordered to do so by the Honorable 

Emmet G. Sullivan of the United States District Court for the District of Columbia. I understand that the Committee has our report, 

and I am prepared to respond to the Committee’s questions. 

I should like to observe that we had the complete cooperation of 

the Department of Justice as we undertook this investigation, as 

well as that of its Office of Professional Responsibility. And with 

that, Mr. Chairman, I am prepared to answer your questions. 

Mr. SENSENBRENNER. Thank you very much, Mr. Schuelke. 

Mr. SCHUELKE. Mr. Chairman, I am not sure—is this microphone 

working? 

Mr. SENSENBRENNER. It is working fine. 

First of all, can you describe the willful nondisclosures of Brady 

and Giglio material that you found during the course of your investigation? 

Mr. SCHUELKE. I can. I found that the prosecutors, Messrs. 

Bottini and Goeke in particular, failed to disclose exculpatory information provided to them by the then-anticipated government witness, Mr. Rocky Williams, concerning his understanding based on 

a conversation that he had with Senator Stevens and Bill Allen before the renovation project ever began, that whatever time and material that Allen’s company, VECO, was to provide on the renovation would be included in the bills submitted to Senator and Mrs. 

Stevens by the general contractor who they had engaged, 

Christensen Builders, and consistent with that understanding, it 

was his practice on a monthly basis to retrieve the Christensen 

Builders invoices, check them for accuracy, take them to Allen’s ofVerDate Aug 31 2005 13:30 Jul 11, 2012 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041912\73861.000 HJUD1 PsN: DOUGA
37 

fice, so that his time and other VECO employees’ time could be 

added to the bills before they were sent to Senator and Mrs. Stevens. 

Mr. SENSENBRENNER. Do you think that the failure to disclose 

this exculpatory information would have had an impact on the outcome of the trial? 

Mr. SCHUELKE. I do. It was altogether consistent with Senator 

Stevens’ defense, which the government well anticipated and forecast. When Senator Stevens and Mrs. Stevens testified during the 

course of the trial that they understood and believed that they had 

paid all the bills—because they did, indeed, pay all the Christensen 

Builders bills to the tune of $160,000—that testimony was not only 

challenged in cross-examination and in closing arguments by the 

government, it was ridiculed. Had the government’s own witness, 

who was the foreman on the job, testified to the understanding 

which I just described, I believe it would have had a significant impact on the outcome. 

Secondly, the government, since 2004—that is 4 years before the 

Stevens trial commenced—was in possession of evidence that its 

principal witness, Mr. Allen, had suborned a false statement from 

a young teenage prostitute with whom it was alleged that he had 

had a sexual relationship. That information, which clearly would 

have been admissible to impeach Mr. Allen’s credibility—namely, 

that he had suborned a false statement—was not disclosed to the 

defense. It was not disclosed to the Stevens defense in 2008, nor 

was it disclosed in the course of two trials conducted in the District 

of Alaska 1 year before the Stevens trial. 

Peter Kott and Victor Kohring were two Alaska State legislators 

who were indicted, tried, and convicted for bribery offenses. The 

principal government witness in both of those cases was Mr. Allen 

who had, according to the government—and ultimately according to 

Mr. Allen’s guilty plea—paid the bribes to those two State legislators. The evidence of Mr. Allen’s subornation of a false statement 

was not provided to either of them either. This was a pattern that 

prevailed over the space of three trials conducted over 1 year. 

Mr. SENSENBRENNER. What do you think motivated the prosecutors to do this? 

Mr. SCHUELKE. As I testified when I was asked that question by 

the Senate Judiciary Committee a couple of weeks ago, I said that 

I believed that it was the adversary’s desire to win, and not to disclose to the defense information which would have hurt the government’s case. That is my view today. 

Mr. SENSENBRENNER. So it was win at all costs and not to have 

justice served? 

Mr. SCHUELKE. I think that is a fair characterization, yes. 

Mr. SENSENBRENNER. Okay. Thank you. My time has expired. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. Mr. Schuelke, when Attorney General 

Holder came in, what was the status of the Stevens case? I understand that he had been found guilty by the jury, but the judge had 

not entered the guilty verdict; is that where we were? 

Mr. SCHUELKE. When Attorney General Holder took office, the 

trial had been concluded, you are correct, and the jury had reVerDate Aug 31 2005 13:30 Jul 11, 2012 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041912\73861.000 HJUD1 PsN: DOUGA
38 

turned a guilty verdict. And post-trial proceedings were underway; 

that is, motions for a new trial. 

Mr. SCOTT. Had the judge entered the guilty verdict? 

Mr. SCHUELKE. Well, if you mean, Mr. Scott, was there a conviction entered, the answer is no because a conviction occurs as a 

matter of law only when the sentence is imposed, and of course the 

case never got to that point. 

Mr. SCOTT. You hadn’t gotten to the sentencing phase? What did 

the Attorney General find out that provoked his investigation? The 

defense counsel got some tips as to what might have happened? 

Mr. SCHUELKE. A couple of things, Mr. Scott. As Chairman Sensenbrenner observed, there was an FBI agent whose name was 

Chad Joy, who filed essentially a whistleblower complaint, making 

a number of allegations about the conduct of the lead FBI agent 

on the case, as well as the prosecutors, that prompted ost-trial motions brought by Senator Stevens’ counsel. 

In the process of responding to those motions, as Chairman Sensenbrenner also observed, Judge Sullivan found two of the government prosecutors to have been in civil contempt for failure to have 

produced certain records which he had ordered in connection with 

those proceedings. At that point, the Department of Justice appointed a new team of prosecutors to represent the United States 

in the course of these post-trial proceedings. 

Those three prosecutors commenced an investigation. And they 

focused initially on the most dramatic testimony delivered by Mr. 

Allen in the trial; namely, that a letter that he had received from 

Senator Stevens, asking him to make sure and send him the bill 

was just Senator Stevens covering his ass, based upon a conversation Mr. Allen claimed to recall with a mutual friend of his and 

Senator Stevens in Alaska. That testimony was, as one might 

imagine, dramatic and damning to Senator Stevens’ defense that 

he acted at all times with pure intent. 

As these new prosecutors focused on this, they began to review 

some internal emails by, between, and among the prosecution team 

and found a series of emails that were obviously contemporaneous 

to an interview of Mr. Allen 5 months before the trial. I say contemporaneous, meaning it was obvious that they were emailing 

back and forth while the interview was in progress. They were curious about this exchange and, in short, ultimately found the handwritten notes of that interview, which had been recorded by two of 

the prosecutors. Ultimately, the handwritten notes of two more 

prosecutors and the lead FBI agent were also discovered. All of 

those notes reflected that Mr. Allen was asked during that interview whether he remembered the note he got from Ted Stevens 

and whether he remembered speaking to Mr. Persons, the one to 

whom he at trial attributed the cover-your-ass comment. And all of 

those notes reflected that he either said no, he did not speak to 

Persons, or he did not recall speaking to Persons. 

Mr. SCOTT. And my time is almost up. But as a result of those 

findings, the new team of lawyers made a motion to dismiss the 

case with prejudice? 

Mr. SCHUELKE. That is correct. The new team of lawyers, as I 

understand it, recommended that that be the course taken by the 

39 

Department. And the Attorney General authorized the motion to 

dismiss with prejudice, which of course Judge Sullivan granted. 

Mr. SENSENBRENNER. Thank you. The gentleman from South 

Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. Mr. Schuelke, if I heard you correctly, Senator Stevens paid $160,000 for the improvements 

made, the addition? Did I hear you correctly? 

Mr. SCHUELKE. Yes, sir, you did. 

Mr. GOWDY. What was the fair market value of the additions or 

changes made to the lodge? 

Mr. SCHUELKE. The fair market value of the house after the renovations was $152,000. 

Mr. GOWDY. Were the bills paid contemporaneous with their 

being submitted? In other words, was he paying the bills in a timely fashion? Or was it a circumstance where he got a lot of bills toward the end? 

Mr. SCHUELKE. No. The Christensen Builders bills were paid in 

the regular course by Mrs. Catherine Stevens upon receipt. The 

Stevenses, in order to finance this project, had taken a second 

mortgage, liquidating $100,000 in cash for the project, had liquidated a $10,000 trust and spent from their savings as well. And 

that is how they timely paid the $160,000 worth of Christensen invoices. 

Mr. GOWDY. Well, here is what I am struggling with: I actually 

like prosecutors. I actually like Federal prosecutors. 

Mr. SCHUELKE. I do, too. I used to be one. 

Mr. GOWDY. So when I say what I am getting ready to say it is 

not by virtue of a criticism toward them. But they are not known 

for taking really close cases that could go either way, unless they 

have to, particularly against a high-profile defendant. State prosecutors have to roll the dice more than Federal prosecutors do. So 

if you have a high-profile defendant with a really good defense 

team and your allegation is that he unjustly enriched himself via 

gifts, and the evidence is he actually paid more than the value of 

the home, what am I missing? Why was the case ever brought in 

the first place? It doesn’t seem to be a very good case from a factual 

standpoint. 

Mr. SCHUELKE. Well, the government had evidence that Bill Allen’s company, VECO, had provided labor and materials for the 

project, and it was the government’s theory of the case that Senator Stevens well knew that that had occurred, acknowledged, at 

least late in the process, that he knew that, which is why he sent 

the note to Mr. Allen asking him, please send me a bill for whatever work you did. And the government contended that VECO’s 

contribution to this project, as was alleged in the indictment, was 

$250,000. 

Now, at trial, when the government introduced the records of the VECO Corporation which purported to establish this $250,000 figure, it was demonstrated that the records were simply inaccurate. 

They, for example, logged 8 hours a day, 5 or 6 days a week, for 

Rocky Williams. He didn’t work 8 hours a day, 5 or 6 days a week 

on the project. They logged 8 hours a day, 5 days a week, for another VECO employee, Dave Anderson, who wasn’t even in Alaska 

for several months during that period of time. And Judge Sullivan, 

40 

upon the motion of Senator Stevens’ defense counsel, concluded 

that those records were false and excluded the majority of those 

records. 

Mr. GOWDY. All right, my light is on. So let me ask you this, 

which is kind of related, I guess somewhat. Before I ask you that, 

the Federal prosecutors weren’t interviewing these witnesses without the Bureau being present, were they? I mean they are not 

crazy enough to do witness prep without a law enforcement agent 

present, were they? 

Mr. SCHUELKE. As a general practice, they did have FBI agents, 

and, on occasion, agents of the Internal Revenue Service, accompany them for purposes of interviews. 

Mr. GOWDY. This may or may not be true because it has been 

reported, which carries no presumption of credibility, that there is 

this movement to change Brady/Giglio, the discovery rules, because 

of this case. There is a Senator from Alaska that has introduced 

legislation. It strikes me that if the rules as they existed had been 

followed, you and I wouldn’t be having this conversation. 

Mr. SCHUELKE. Well, I think that is quite right, Mr. Gowdy. It 

has been the law, since the Supreme Court decided the Brady case 

and the Giglio case, that the government is obligated to disclose 

material exculpatory information. I don’t believe that this materiality issue, which I personally think is a problem that needs to be 

addressed, was a determining factor in the problems that occurred 

in the Stevens case. But I do think it is a problem that needs to 

be addressed. 

I have seen Senator Murkowski’s proposed bill. I don’t know that 

I am in a position to subscribe to it in its entirety. But to the extent that it would eliminate the materiality requirement with respect to the disclosure of exculpatory material, I think it is welcome and necessary. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I first want to thank 

you for coming before us today. And I just want to take a moment 

to look at the larger question of Brady rule violations and how we 

ought to look at them. I understand the Subcommittee may be considering looking at other kinds of cases like this, and it might add 

some dimension to the problem. So I would just like you to tell us 

about your impressions of whether the Brady rule needs strengthening or whether we need to get a way for the prosecutors to actually look at it more and use it more appropriately. 

Mr. SCHUELKE. Yes, sir. I shall try, Mr. Conyers. 

First of all, we should all understand that the Supreme Court 

has for years announced the rule that in order for a conviction to 

be reversed for the government’s failure to provide exculpatory information, that failure must have had an outcome determinative effect. That is to say, are we left with a situation where we can have 

no confidence in the verdict because of the failure to disclose Brady 

information? That is the materiality concept which, in my judgment, is perfectly sensible and appropriate from that post hoc appellate perspective. 

Now we are in the pretrial situation. The prosecutor has an obligation to disclose Brady material. The prosecutor says—and they 

41 

have argued in court repeatedly, they did in the Stevens case— 

well, we were only obligated to disclose material exculpatory information. Now mind you, the prosecutor is one of the adversaries in 

this process. In my judgment, it is not appropriate for one of the 

adversaries to be the self-appointed gatekeeper for what may be exculpatory information that the defense, consistent with its strategy, 

may be in a position to pursue and to use in the course of the trial. 

And this adversarial process, which is a general proposition I applaud, leaves one in a situation where there is a considerable risk 

for mischief. If I am the prosecutor and I say, here is this little tidbit which is in my files which reflects adversely on the credibility 

of my star witness, it is really not material. I don’t think I have 

to turn that over. Human nature is such that good people motivated by this adversarial desire to prevail make those kinds of 

judgments. They should not. And it is for that reason that I believe, as I have testified, that the materiality requirement with respect to pretrial disclosure of the Brady material should be eliminated. 

Mr. CONYERS. Is it fair, in closing, to ask you whether this kind 

of problem occurs perhaps more than we on the Judiciary Committee could be aware of? 

Mr. SCHUELKE. Well, that is a very good question, Mr. Conyers. 

One never knows what one doesn’t know. 

Based on my experience both as a prosecutor and a defense attorney for now over 40 years, I do not personally believe that there 

is a pervasive nondisclosure problem in the thousands and thousands of cases that are brought by the Department of Justice. 

There have been a number of celebrated ones. There have been a 

half a dozen or so that have attracted considerable attention in the 

last 2 years. So it happens. And of course, one never knows if the 

case goes to trial and there had been no disclosure of Brady material, and the defendant, for whatever reason, was not equipped to 

ferret it out, if there was not a Judge Sullivan presiding over the 

matter, one never knows. But it is my personal view, based on my 

experience, that it is not a widespread pervasive problem in the 

Department of Justice. And I know that the Department, since the 

Stevens case, has taken significant steps both in terms of policy, 

proscription and training to address this problem. 

Mr. CONYERS. Thank you for your views. 

Mr. SENSENBRENNER. The gentleman’s time has expired. We are 

expecting about 25 minutes of votes pretty soon, and then there 

will be a second series of votes later on. I would kind of like to do, 

to speed this hearing up and not to impose undue time delays upon 

our witnesses, to do what we can in shuttling us in and out. So the 

Chair recognizes the gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. We know that we had 

an FBI Agent Joy that filed a whistleblower complaint against the 

DOJ. As of November 2008, how long had FBI Agent Joy been 

working for the FBI? 

Mr. SCHUELKE. Mr. Gohmert, I don’t remember precisely how 

long. He was quite young and inexperienced. 

Mr. GOHMERT. And still had the courage to come forward with 

the information. That is very impressive. 

42 

One of my concerns over the FBI 5-year ‘‘up or out’’ policy that 

this Director implemented, it drove thousands of years of FBI experience out of the FBI and left people with much less experience in 

charge. And my experience, from having been a prosecutor in my 

early days out of law school was, you know, you are hard-charging 

and you need somebody, maybe not as smart as you, but somebody 

with experience to say, ‘‘This is not a good idea. You should not put 

a case in jeopardy. We are about justice, and that means your title 

forces you to disclose Brady material, whether there is a Brady 

case or not. You are about justice. You are not about winning at 

all cost.’’ And some people have a hard time understanding that 

and understanding their role. 

I have got to tell you, just my perceptions. I was not a big fan 

of Ted Stevens. When I heard and saw and read the information 

coming from the Justice Department, it sounded like, gee, this guy 

really had, you know, over $100,000, $200,000 of benefits come his 

way, and that really is abusive. This is a bad situation. And then 

when you find out the real facts, he paid more than the value of 

the structure. And then you find out that, gee, they knew—not only 

his theory, they had his notes where he was saying, ‘‘Give me the 

bill. Let me pay the bill.’’ And as you said, his wife was paying 

them as they came in and they end up paying more than the value 

of the structure itself. 

It is just hard to imagine prosecutors, Justice officials, FBI officials—I have got a lot of friends in the FBI, a lot of people I have 

so much respect for. And I do disagree with you that an adversary 

should not be a gatekeeper. If they understand their goal, their end 

is justice, not to win at all costs. As you have said, I don’t think 

this is a widespread problem. But I am wondering—and having 

been a judge and a chief justice, I have sat on disbarment cases 

back in Texas in State court. I don’t know why anybody that literally took the life that Ted Stevens built and destroyed it, took his 

life, why they should ever be allowed to practice law again if they 

do not understand the trust and betrayed it as they did here. 

And I understand your recommendations with regard to contempt of court. You looked at the burden of proof. Had there been 

any actions taken to pull the ticket to disbar these people that 

would ruin a man’s life, at the end of his life, in such a way by 

withholding evidence, it sure seems it would have made a heck of 

a difference. 

If I am a judge hearing a case without a jury, and I find out the 

structure is worth less than he paid, that he has notes out there 

that he gave timely manner and said, Give me the bills, and the 

evidence was his wife paid the bills as they came in, and then it 

turns out there is evidence of the key witness involved with a prostitute—can we say ‘‘prostitute,’’ involved with a prostitute—I cannot imagine why they should not be allowed to practice law again 

after ruining this man’s life. Have you looked at possible disbarment? 

Mr. SENSENBRENNER. If the gentleman will yield, you can use 

that word because The Washington Post has used it quite a bit in 

the last week. 

Mr. GOHMERT. Okay. Well, have you looked at disbarment recommendations? 

43 

Mr. SCHUELKE. I have not, Mr. Gohmert. It is beyond my charter, 

and I don’t have a view on that subject. 

Mr. GOHMERT. You don’t have a view at all? Not even personally? 

Mr. SCHUELKE. I don’t care to take a view on it. 

Mr. GOHMERT. Okay. You could have one but you don’t care to 

take a view. 

Mr. SENSENBRENNER. The gentleman’s time has expired. I am 

going to recess the Committee. And I will admonish both Mr. Johnson and Mr. Pierluisi to be back after the last vote of this series. 

Otherwise, we will move on. 

Without objection, the Committee is recessed until after the last 

vote of the series. 

[Recess.] 

Mr. SENSENBRENNER. The Subcommittee will be in order. The 

Chair recognizes the gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman, for holding this very 

important Committee meeting on this issue. 

Ted Stevens was a gentleman who I met for the first time Christmas of 2007, and we were both standing in line together at the 

White House Christmas celebration, waiting to shake hands with 

the President. And while he was there, I think it was his wife and 

a couple of his daughters were with him, and they were very jovial 

and, you know, just regular, normal people. I know they have 

hearts and feelings and that kind of thing, and they were happy. 

Senator Stevens was spry, kind of cantankerous, and he was 

irascible, but I liked him. He seemed to be a good proud man, used 

to being in authority and in control. I can only imagine how he 

must have felt when the jury announced the verdict of guilty in 

this case. And in this case, it was in 2004 that the government 

knew that the principal witness, Bill Allen, had suborn perjury by 

getting a prostitute to testify or make a false statement under 

oath; is that correct, Mr. Schuelke? 

Mr. SCHUELKE. Yes, sir, that is correct. 

Mr. JOHNSON. And was Mr. Allen prosecuted for that? 

Mr. SCHUELKE. He was not. 

Mr. JOHNSON. But that was a note that was in—that was evidence that was in the file of the prosecution in the Stevens case? 

Mr. SCHUELKE. Yes. The young woman had been interviewed by 

an FBI agent and—— 

Mr. JOHNSON. Okay. I will stop you there. I just wanted to clear 

up the facts. And that same information was available in a Federal 

prosecution of the two cases prior to Senator Stevens’ trial. And 

those two cases involving State legislators were Federal trials as 

well; is that correct? 

Mr. SCHUELKE. That is correct. 

Mr. JOHNSON. So we have three instances of failure to disclose 

subornation of perjury. That would have been material information, 

would it not? 

Mr. SCHUELKE. Yes, sir. 

Mr. JOHNSON. And pursuant to Giglio, that information should 

have been disclosed as well as Brady. 

Mr. SCHUELKE. It was Giglio material, I would say. 

Mr. JOHNSON. Yeah. And then during the trial in 2008, the prosecution failed to disclose—or during the Ted Stevens case, the prosVerDate Aug 31 2005 13:30 Jul 11, 2012 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041912\73861.000 HJUD1 PsN: DOUGA
44 

ecution failed to disclose written information in the files, in the 

way of case notes that the prosecutors had written down what a 

witness was telling them, that witness being Bill—or, excuse me, 

Rocky Williams. And then also, that information would have been 

material also, in your opinion; is that correct? 

Mr. SCHUELKE. I believe that was material Brady information, 

yes, sir. 

Mr. JOHNSON. And then you have already testified about the fact 

that the prosecutors derided Senator Stevens’ principal defense 

which was that, I have this note here and it shows that I requested 

so-and-so to send me a bill. And prosecutors allowed the witness, 

Bill Allen, to testify falsely that he was just trying to cover up his 

ass. 

Mr. SCHUELKE. Well, the note from Senator Stevens in 2002 to 

Mr. Allen said, Bill, when I think of all the ways you help me, I 

lose count, but you have to send me a bill. And I am going to have 

Bob Persons talk to you. So don’t get PO’d at him. 

Mr. JOHNSON. Okay. 

Mr. SCHUELKE. Six years later Allen testified at the trial—— 

Mr. JOHNSON. Okay. We are getting into the weeds now. I just 

wanted that particular statement. My time is getting ready to run 

out, and I hate to interrupt you. But why was there no prosecution 

recommendation to charge any of the prosecutors with the same 

charge that probably should have been leveled against Bill Allen 

back in 2004; it is 18 USC 1622, subornation perjury. And has 

there been a recommendation to the State bar of the State where 

these gentlemen, the prosecutors practiced? 

Mr. SCHUELKE. Not that I am aware of. 

Mr. JOHNSON. And they have not been prosecuted; no recommendation; no sanction has been applied to them? 

Mr. SCHUELKE. To the Stevens prosecutors? 

Mr. JOHNSON. Yes. 

Mr. SCHUELKE. Not that I am aware of. 

Mr. JOHNSON. And you do say, though, that Senator Murkowski’s 

legislation should go a little bit further and make sure that the 

gatekeeper is not the sole keeper of that file insofar as Brady and 

Giglio materials are concerned. 

Do you think that it would be a good idea for the judge to have 

to look at that case, look at the case file, make a determination 

independently that there is no—or all information that should have 

been disclosed has been disclosed, and then seal that, file a copy 

of that file, what he has reviewed in the clerk’s office for purposes 

of later appeals? Do you think that is a reasonable way of going 

about getting this responsibility out of—— 

Mr. SCHUELKE. It is a reasonable way of going about it, assuming 

that the prosecutor first says, I am in doubt about whether I 

should disclose this. I will submit it to the judge in camera and let 

the judge decide. But the prosecutor first has to get to that point 

in his own analysis. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from Puerto Rico, Mr. Pierluisi. 

Mr. PIERLUISI. Good morning, Mr. Schuelke. 

Mr. SCHUELKE. Good morning, sir. 

45 

Mr. PIERLUISI. As I understand the Supreme Court case law, the 

Supreme Court has set a constitutional minimum in this area. So 

States, and I would assume also this Congress, Congress can set 

a higher standard and change the rule so that it is more favorable 

to the defense and to the process as a whole. 

You mentioned before that in your view, the materiality requirement shouldn’t be there. I heard that. Apart from that, do you have 

any other suggestions to us in terms of how to go about changing 

the rule? Are we talking about amending rule 16? And if so, in 

what fashion would you recommend that we would do so? 

Mr. SCHUELKE. Well, as you may know, sir, the Rules Committee 

of the Federal Judiciary has been contemplating such a change 

since 2006, I believe, and has rejected suggestions that rule 16 be 

amended to accomplish this purpose. As I recall, when most recently the Rules Committee took it up, they had available to them 

a poll that was taken of sitting Federal judges across the country, 

and slightly in excess of 50 percent of the Federal judges recommended an amendment to the rule. The Justice Department opposed such an amendment, and the views of the Justice Department, as I understand it, carried the day. 

So I persist in the view that such a change is necessary. And 

while it could be accomplished by an amendment to rule 16, that 

has not occurred, and I think if the Rules Committee is not going 

to do it, the Congress should. 

Mr. PIERLUISI. And in your view, is the prosecutor’s intent to use 

or not to use the evidence a relevant factor here, or not? 

Mr. SCHUELKE. I am not sure I understand the question. The 

prosecutor’s intention to—— 

Mr. PIERLUISI. Yeah. Because some of the case law seems to suggest and rules also that one of the relevant factors in determining 

whether you turn over this type of evidence to the defense is 

whether the prosecutor intends to use it at trial. And in my view, 

that shouldn’t be a factor. And I want to hear from you about it. 

Mr. SCHUELKE. I quite agree. That should not be, and I don’t 

know that it typically is a factor. 

Mr. PIERLUISI. Okay. And we have been talking about Congress. 

Now would you turn your attention to DOJ? The U.S. attorney 

manual, as you know, is binding on the prosecutors and internally 

can be used for disciplinary purposes but it has no bearing—it has 

no remedy for the defense. So that is a flaw. I have seen that they 

have made some revisions to it. I have seen that training has been 

enhanced in this area. Is there anything else that the Department 

of Justice should be doing so that this type of conduct doesn’t happen again? 

Mr. SCHUELKE. Well, as you have pointed out, the Department, 

through its U.S. attorney’s manual, has a provision, which has recently been revised, together with guidance from the then-deputy 

Attorney General Ogden, right after the Stevens trial, which as a 

matter of policy tells the Federal prosecutors that they are to disclose Brady and Giglio material. They are to take a liberal view of 

it, and in most cases, they are not to impose this materiality standard. 

As you have also observed, the U.S. attorney’s manual has an explicit disclaimer that these policy pronouncements do not have the 

46 

force of law, and they vest in no one any rights. I believe if the Justice Department, as expressed in the U.S. attorney’s manual, is of 

the view that the materiality requirement ought to be eliminated, 

then I see no principled reason why they would oppose legislation 

which does, of course, have the force of law to accomplish the same 

thing. 

Mr. PIERLUISI. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentlewoman from Florida, Ms. Adams. 

Mrs. ADAMS. Thank you, Mr. Chairman. Knowing that, how was 

the Stevens trial team structured? 

Mr. SCHUELKE. How was it structured? 

Mrs. ADAMS. Uh-huh. 

Mr. SCHUELKE. Very shortly before the indictment was returned 

in July of 2008, Brenda Morris, who was a deputy chief of the Public Integrity Section, who up until that point had very limited involvement in the Stevens investigation, was tapped by the Office 

of the Assistant Attorney General for the criminal division to be 

the lead trial prosecutor. 

The team in the courtroom, in addition to Ms. Morris, was Mr. 

Nicholas Marsh and Mr. Joseph Bottini. Mr. Marsh was a public 

integrity lawyer. Mr. Bottini was an assistant U.S. attorney in the 

district of Alaska. They had significant experience in this public 

corruption investigation in Alaska because Mr. Goeke, the other 

Alaska assistant U.S. attorney, and Mr. Marsh tried the first of the 

two State legislators, whose cases I have described, and Mr. Bottini 

and a young Public Integrity lawyer named Edward Sullivan tried 

the other one. So that was the composition of the trial team. 

Mrs. ADAMS. Do you believe that the six prosecutors who were 

the subject of your inquiry were candid, forthright, truthful with 

you during the course of your investigation? 

Mr. SCHUELKE. I believe that they were. 

Mrs. ADAMS. Can you explain your references in the report to the 

simultaneous and collective memory failure, I guess it is of Messrs. 

Bottini, Marsh, Goeke and Sullivan, to recall the details of their 

interview with Bill Allen on April 15, 2008? 

Mr. SCHUELKE. Can I explain the memory failure? 

Mrs. ADAMS. Your references to that. Because you just said they 

were being forthright. 

Mr. SCHUELKE. All of them participated in the interview of Mr. 

Allen on April 15, 2008. All of them took notes, in which they recorded what he said. Five months later, Mr. Allen has a dramatically different—indeed, a polar opposite—account from the one he 

gave them in April. And all of them, to a person, maintained that 

they had no memory of him having said what he said on April 15. 

As I say in the report, I was unable to determine by compelling 

evidence that any one of them, in fact, remembered what had transpired in that April interview and falsely represented that they had 

not. 

Mrs. ADAMS. At this time I yield to Mr. Gowdy. 

Mr. GOWDY. Was this what we sometimes refer to as an openfile case? Or did they try to follow the statute? 

Mr. SCHUELKE. In the Stevens case? 

Mr. GOWDY. Right. 

47 

Mr. SCHUELKE. It was not a so-called open-file discovery practice. 

Mr. GOWDY. If DOJ adopted an open-file status for all of its 

cases, how many of the concerns raised by our colleagues on the 

other side would go away? 

Mr. SCHUELKE. Some, but not all. 

Mr. GOWDY. Can you give me an example of something that is 

potentially impeachment material but not material; doesn’t meet 

the materiality element but is potentially impeachment, Giglio material. 

Mr. SCHUELKE. I suppose a witness could testify at a trial that 

the crime he or she observed occurred on a Tuesday, and that witness could have testified—or in the course of an interview earlier, 

stated that it occurred on a Thursday. The accounts of the events 

themselves might in both the interview and the trial testimony 

have been otherwise altogether consistent. And one can make an 

argument that the witness’ memory at one point, months ago, that 

it was a Tuesday versus memory that it was a Thursday at the 

trial was not material. 

Mr. GOWDY. Well, my time is out. But I appreciate your testimony. And I would hope you would come back at some point. You 

are a former prosecutor. There are other former prosecutors up 

here. Reciprocal discovery is something I would like to get your 

perspective on as well, because I can’t recall the name of any criminal defense attorneys—at least in my experience—that have been 

disciplined in any way for not meeting the reciprocal discovery requirements. And that may be a source of frustration for prosecutors. 

Mr. SENSENBRENNER. The gentleman’s time has expired. Mr. 

Schuelke thank you very much not only for coming today and answering the questions that we all have relative to this prosecution 

and your report, but also the extensive time you spent putting together an extremely thorough report on a very messy and sad experience in the history of the Justice Department. So I think the entire country should thank you for your efforts on that. And hopefully your report and what has transpired in the Stevens case will 

prevent this from happening again. So thank you. 

Mr. SCHUELKE. Thank you, Mr. Chairman. I appreciate your hospitality. 

Mr. SENSENBRENNER. Yes. Thank you. 

Okay. We will now go to the second panel of witnesses. Kenneth 

Wainstein is a partner in the law firm of Cadwalader, Wickersham 

& Taft where his practice focuses on corporate internal investigations. He is also an adjunct professor at Georgetown law school. 

Mr. Wainstein served as an assistant U.S. attorney both in the 

Southern District of New York and the District of Columbia. Later 

he served as the U.S. Attorney in the District of Columbia, and 

then was the first assistant attorney general for national security. 

He has served as FBI Director Robert Mueller’s chief of staff and 

then as President Bush’s homeland security adviser. He received 

his undergraduate degree from the University of Virginia and his 

law degree from the University of California at Berkeley. 

Alan Baron is the senior counsel at the law firm of Seyfarth 

Shaw where his practice focuses on white-collar criminal defense. 

He has served as special impeachment counsel to the U.S. House 

48 

of Representatives three times, and most recently he was Special 

Counsel in the impeachment of Judges Samuel Kent and G. Thomas Porteous. He also is minority chief counsel to the Senate Governmental Affairs Committee and served as an assistant U.S. attorney in Maryland. He received his undergraduate degree from 

Princeton and his law degree from Harvard. 

As I said earlier, I will swear the witnesses in. Could the two 

witnesses please stand, raise your right hand. 

[Witnesses sworn.] 

Mr. SENSENBRENNER. Let the record show that both witnesses 

answered in the affirmative. Their written statements will be entered in the record in their entirety. And you all have been up here 

before, so you know about green lights, yellow lights, and red 

lights. 

Mr. Wainstein. 

TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, 

CADWALADER, WICKERSHAM AND TAFT LLP 

Mr. WAINSTEIN. Thank you, Chairman Sensenbrenner, Ranking 

Member Scott, Members of the Subcommittee. I am here with two 

of my colleagues, Jeffrey Nestler and Sara Zdeb. And together, we 

are proud to represent assistant United States attorney Joe Bottini 

in this matter. We are here today for one reason: to demonstrate 

that the Special Prosecutor got it simply wrong when he found that 

Joe intentionally violated the rules in the Stevens case. 

First let me take a minute on who Joe is. Joe is a 27-year veteran of the Alaska U.S. attorney’s office. He is universally respected by the Alaska bench and bar, has never had a single allegation of misconduct against him. He has tried and prosecuted 

hundreds of cases. And the only recognition he wants in life is to 

be counted among those prosecutors who go to work each day seeking to do justice for the American people. In short, and in my eyes, 

Joe is a model public servant. 

Joe is also something else. He is human. He makes mistakes. He 

acknowledges he made mistakes, serious mistakes in the Senator 

Stevens case. And he acknowledges and he greatly regrets the impact those mistakes had on the integrity of that trial and on the 

public’s perception of the Justice Department. But Joe does not acknowledge, I do not acknowledge and, most importantly, the facts 

do not acknowledge that Joe committed those errors purposely or 

with any bad faith. 

The Special Prosecutor’s report, as you know, concluded definitively that he did. While the report goes on for some 500-odd pages, 

it really distills down to just two findings about Joe: one, a finding 

that Joe committed errors; and two, a finding that those errors 

were intentional. What is completely missing, however, is any connective tissue between those two findings, any actual support for 

the conclusion that Joe’s errors were intentional as opposed to inadvertent. 

In fact, there is really no analysis of Joe’s intent at all. We have 

carefully gone through the 514 pages and have found a grand total 

of one paragraph that reports to analyze the intent behind Joe’s 

conduct, one single paragraph for the most critical question in the 

whole investigation. 

49 

Professional prosecutors understand that every error is not a 

crime, and that they have a duty to carefully distinguish between 

mistake and misconduct before concluding that somebody is guilty 

of an intentional crime. 

The Special Prosecutor’s report failed to uphold that duty in just 

about every respect. First, the report fails to take into account the 

conditions under which the prosecutors were working before and 

during trial. And the Chairman mentioned these earlier today. Circumstances that made it likely that balls would be dropped and 

made it therefore more likely that mistake rather than misconduct 

was behind any errors; circumstances such as the complete failure 

by the Public Integrity Section management to do its job; the severely shortened time period for trial preparation; and the combative defense tactics that kept the prosecutors off balance during 

trial, all highly relevant circumstances and none given any real 

consideration by the report. 

Second failing: The report fails to consider critically important 

mitigating circumstances, such as the fact that Joe is universally 

admired by his defense counsel adversaries as, quote, a man of 

high moral character and as, quote, the kind of person for whom 

the expression ‘‘straight arrow’’ was invented. And also, the fact 

that on seven different occasions, Joe actually pushed his Public Integrity Section supervisors to disclose the very information the Special Prosecutor’s report accuses him of trying to suppress, requests 

that were firmly denied each time. 

Third failing. The report mischaracterizes important facts in a 

way that puts a nefarious slant on Joe’s conduct by saying, for example, that Joe made a prejudicial argument in his closing jury address, an argument that is not found in the jury trial transcript. 

The report altogether ignores other facts, facts that cut against 

its findings. For instance, the report finds Joe guilty of suppressing 

Rocky Williams’ assumption about the Senator paying for the work 

on his house, but never addresses the fact that Joe’s outline for his 

direct examination of Rocky Williams had an entry showing that 

Joe intended to elicit that very assumption on the record in open 

court, a circumstance that completely undermines a finding of intentional misconduct and a circumstance that should have been 

front and center in any credible consideration of that issue. 

As a final failing, the report reflects a process that showed very 

little regard for fairness, and, most troublingly, in the way the investigation concluded with no criminal charges, but with a public 

branding of our client as a proven criminal. 

Under our system, professional prosecutors have one way and 

only one way to accuse a person of a crime, and that is with the 

filing of formal charges that the person can then contest in open 

court to defend his liberty and his reputation. That rule was not 

followed in this case. The Special Prosecutor decided not to file 

charges against Joe but then turned around and publicly declared 

to the world that Joe was guilty of the worst thing one can say 

about a Federal prosecutor, that he is dishonest and a cheat. This 

left Joe with the shame of a criminal accusation but without any 

opportunity to show the American people that that accusation was 

wrong. 

50 

*See Appendix for the Addendum submitted with this statement. 

Today, thanks to this hearing, we finally have that opportunity 

and we are very grateful to the Committee for giving it to us. I look 

forward to this hearing and I look forward to answering any questions you may have for me. 

Mr. SENSENBRENNER. Thank you very much. 

[The prepared statement of Mr. Wainstein follows:]* 

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Mr. SENSENBRENNER. Mr. Baron. 

TESTIMONY OF ALAN I. BARON, SENIOR COUNSEL, 

SEYFARTH SHAW LLP 

Mr. BARON. Thank you very much, Mr. Chairman. As you noted 

in introducing me, you mentioned that I had been an assistant 

United States attorney for Maryland. I think I would only add to 

that that during that time, I headed the investigation which led to 

the indictment of a former United States Senator, Daniel Brewster 

of Maryland. And I am aware therefore—although that was a long 

time ago—of the pressure that is put on a prosecutor when he is 

involved in a case of such magnitude and importance. I would note 

that I have no connection whatever to the Stevens case, I have no 

relationship with any of the individuals involved in that matter, 

other than having had minimal contact with Mr. Welch relative to 

the Porteous impeachment. 

I join with the Chairman in commending Mr. Schuelke for his 

comprehensive report. In my view it is clearly the product of an 

enormous amount of effort conducted in a highly professional manner. 

So for purposes of my testimony, I accept the accuracy of his 

findings of fact; specifically, that by any standard—and I think I 

want to keep those words in mind—‘‘By any standard, the information provided to the prosecutors by Rocky Williams and Bambi 

Tyree was Brady material.’’ And Mr. Schuelke concluded that both 

Mr. Bottini and Mr. Goeke consciously withheld and concealed this 

critical information from the defense, and indeed that there were 

affirmative misrepresentations regarding the Tyree information to 

the effect that such material did not even exist. 

And then Mr. Schuelke also found that Mr. Bottini failed to take 

steps to correct false testimony by Mr. Allen on the witness stand, 

which testimony Mr. Bottini knew to be false, in violation of the 

Supreme Court case Napue v. Illinois. 

Mr. Schuelke was appointed to investigate and prosecute criminal contempt proceedings as may be appropriate against the prosecutors in this case. Despite having the findings that we have all 

referred to this morning, Mr. Schuelke ultimately concluded that 

no prosecution for criminal contempt would lie. According to Mr. 

Schuelke at a hearing on September 10, 2008, the judge in the Stevens case failed to issue—I am quoting now from the report—′′a 

clear, specific, and unequivocal order such that it would support a 

finding by a district court beyond a reasonable doubt that 18 USC 

section 4013—that is the criminal contempt statute—had been violated.’’ 

In my view—and I certainly defer to Mr. Schuelke’s report, wherever it purports to find facts and reach conclusions based on the 

enormous investigative effort which clearly underlies it—but the 

entire transcript of the proceedings on September 10, 2008, is 

available for review. Anyone here can read—that is the entire universe contained in that transcript. And one can therefore reach 

one’s own conclusion as to what transpired at that critical event. 

And here, I must regrettably and respectfully disagree with Mr. 

Schuelke’s characterization of what occurred. 

58 

1Senator Brewster ultimately entered a plea of nolo contendre after the Supreme Court rejected his claim of immunity under the Speech or Debate clause of the Constitution. See United 

States v. Brewster, 408 U.S. 501 (1972). 2 373 U.S. 83 (1963) 

3 405 U.S. 150 (1972) 

On September 10, 2008, the court issued a clear, unequivocal 

order to the government to produce material pursuant to Brady 

and its progeny. Everyone agreed that they understood their obligation. None of the prosecutors asked for clarification of what was 

being ordered. And we must recall Mr. Schuelke’s earlier conclusion that by any standard, even the narrowest view of what Brady 

requires, the Williams and Tyree materials had to be disclosed as 

Brady material. 

In my view, if you accept Mr. Schuelke’s factual premise, the failure to disclose what were clear Brady materials was in direct violation of the court’s order. Now, the fact that there was no written 

order entered on September 10 is irrelevant. It is well established 

that no written order is required. And it is noteworthy that Mr. 

Wainstein, who represents Mr. Bottini, in a letter to the Attorney 

General, dated March 15, 2012, acknowledges A, that no written 

order is required for contempt proceeding and that the judge’s 

verbal order at the September 10, 2008 hearing was clear and unequivocal. To me, the judge’s order was clear, as was its violation. 

The question is how did this happen? In a sense, it is a bigger 

issue. The obvious answer is that overzealous prosecutors got 

caught up in a win-at-all cost mentality and ignored their obligation to prosecute fairly within the limits imposed by the Constitution. 

But I think there is a deeper question here. There seems to have 

been a total breakdown of supervision. Who was in charge? Who 

would accept responsibility to rein in prosecutors when they began 

to violate their constitutional obligations? 

What I find—and we can talk about this perhaps in response to 

questions, because I see my time is elapsing—what I see here is 

a total breakdown in supervision. You might ask, Why do experienced prosecutors need supervision? Because it puts someone in a 

position where they must account for what happens. And when you 

don’t have that structure, you get the problem of people going off 

and essentially doing their own thing, very much to the detriment 

of the administration of justice. Thank you. 

Mr. SENSENBRENNER. Thank you Mr. Baron. 

[The prepared statement of Mr. Baron follows:] 

Prepared Statement of Alan I. Baron, Senior Counsel, 

Seyfarth Shaw LLP 

My name is Alan Baron and I am Senior Counsel to the law firm of Seyfarth 

Shaw LLP based in Washington, DC. In the course of my career, I have served as 

an Assistant United States Attorney for Maryland, during which time I headed the 

investigation which led to the indictment of former Senator Daniel Brewster for 

bribery while in office.1 I am aware of the pressures on prosecutors when involved 

in a case of such magnitude and importance. 

A substantial portion of my career in private practice over the years has involved 

acting as defense counsel in white collar criminal cases. I am familiar with the requirements of Brady v. Maryland, 2 Giglio v. United States 3 and related cases. 

59 

4 Rocky Williams was foreman for the renovations on the Stevens’ house. He told prosecutors, 

based on statements made by Bill Allen, his boss, and by Senator Stevens, he understood that 

all charges would be added to the bill submitted to Senator Stevens by the subcontractor. This 

corroborated the heart of the defense case. Senator Stevens maintained that when he paid the 

bills submitted to him, he understood he was paying for everything he owed. 

Bambi Tyree was an underage prostitute with whom Mr. Allen had a relationship. Allen was 

a major prosecution witness against Senator Stevens. In an unrelated case, Tyree was interviewed by the FBI. The FBI memorandum of that interview states that Tyree submitted a false 

affidavit at Allen’s request denying her sexual relationship with Allen. The Government in that 

case filed a memorandum under seal which stated Allen had procured the false affidavit. 5 360 U.S. 264 (1959). When Allen was interviewed by prosecutors shortly before trial, he 

changed his version of the facts on a critical issue for the defense. For the first time, Allen characterized memoranda Senator Stevens had sent to him in 2002 asking Allen to be sure and send 

Senator Stevens a bill for the work, as ‘‘cover your ass’’ memos. When asked on cross-examination at trial whether his characterization of the documents as ‘‘cover your ass’’ memos was something he had just recently told prosecutors, Allen said ‘‘no.’’ That answer was false, but no effort 

was made to correct the testimony. 

I have also served, from time-to-time, as special counsel in the public sector. I 

have been retained as special impeachment counsel by the House of Representatives 

to pursue the impeachment, trial and removal of four federal judges, including 

former Judge G. Thomas Porteous. 

I am appearing before the Subcommittee to testify concerning the report filed by 

Mr. Henry Schuelke setting forth the results of his investigation into possible criminal contempt proceedings against the prosecutors who conducted the investigation 

and prosecution of Senator Ted Stevens of Alaska (hereafter ‘‘the Report’’). I should 

note that I have no connection whatsoever to the Stevens case and have no relationship with any of the individuals involved in that matter other than minimal contact 

with Mr. Welch, relative to the Porteous impeachment. 

Mr. Schuelke is to be commended for this comprehensive report. It clearly is the 

product of an enormous amount of effort conducted in a highly professional manner. 

For purposes of my testimony, I accept the accuracy of his findings of fact, specifically that ‘‘By any standard, the information provided to the prosecutors by Rocky 

Williams and Bambi Tyree was Brady material’’ (the Report at 500).4 The Report 

concluded that Mr. Bottini and Mr. Goeke consciously withheld and concealed this 

critical information from the defense. Indeed, the Report states that there were affirmative misrepresentations regarding the Tyree information to the effect that such 

materials did not exist (the Report at 503). 

Finally, Mr. Schuelke found that Mr. Bottini failed to take steps to correct testimony by Mr. Allen on the witness stand which Mr. Bottini knew to be false in violation of Napue v. Illinois 5 (the Report at 503). 

Mr. Schuelke was appointed ‘‘to investigate and prosecute criminal contempt proceedings as may be appropriate against the prosecutors in this case’’ (the Report at 

1). Despite having found that Mr. Bottini and Mr. Goeke intentionally withheld and 

concealed material exculpatory information which was required to be disclosed to 

Senator Stevens and Williams & Connolly by Brady and Giglio (the Report at 36), 

Mr. Schuelke ultimately concluded that no prosecution for criminal contempt would 

lie. According to Mr. Schuelke, at a hearing on September 10, 2008, the judge in 

the Stevens case failed to issue ‘‘a clear, specific and unequivocal order such that 

it would support a finding by a District Court beyond a reasonable doubt that 18 

U.S.C. § 401 (3) had been violated’’ (the Report at 513). 

In my view, Mr. Schuelke’s report is entitled to deference where it purports to 

find facts and reach conclusions based on the enormous investigative effort which 

underlies it. However, the entire transcript of the September 10, 2008 hearing is 

available for review so that one can reach one’s own conclusion as to what transpired at that critical event. Here, I must respectfully disagree with Mr. Schuelke’s 

characterization of what occurred. On September 10, 2008, the court issued a clear, 

unequivocal order to the government to produce material pursuant to Brady and its 

progeny. Everyone agreed that they understood their obligation. None of the prosecutors asked for clarification of what was being ordered. We must recall Mr. 

Schuelke’s earlier conclusion that ‘‘By any standard . . .’’ the Williams and Tyree 

60 

6The Report exonerates Ms. Morris of knowingly and willfully withholding Brady and Giglio 

information from the defense (the Report at 506). 

materials were Brady. Accordingly, failure to disclose what were clear Brady materials, was in direct violation of the court’s order. 

The fact that no written order was entered on September 10 is irrelevant because 

it is well established that a written order is not required. See In re Hipp, Inc., 5 

F.3d 109, 112 n.4 (5th Cir. 1993). It is noteworthy that Mr. Wainstein, counsel for 

Mr. Bottini, in a letter to Attorney General Holder dated March 15, 2012, acknowledges that no written order is required for a contempt proceeding and that the 

judge’s verbal order at the September 10, 2008 hearing was clear and unequivocal. 

Based on the foregoing, I believe that Mr. Schuelke’s rationale for not proceeding 

is unpersuasive. There may be many reasons for a prosecutor to exercise discretion 

and decide not to prosecute a case, but the reason stated here in not convincing. 

The judge’s order was clear as was its violation. 

It is fair to ask ‘‘how did this happen?’’ The obvious answer is that over-zealous 

prosecutors got caught up in a win at all costs mentality and ignored their obligation to prosecute fairly and within the limits imposed by the Constitution. The question remains, however, where was the supervision which would have operated as a 

reality check to rein in prosecutors who, according to the Report, engaged in ‘‘systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’ defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.’’? 

It is clear from the Report that there was a breakdown in responsibility and accountability in how the case was being handled. Brenda Morris, Principal Deputy 

Chief of the Public Integrity Section, was thrust into the role of lead prosecutor just 

a few days before the indictment was filed in a case which had been investigated 

for two years. According to Ms. Morris, she had resisted being put in the position 

of lead counsel several times. (See Exhibit 4 in the Addendum to the Report.) Once 

in the position, she was well behind the curve in mastering the facts and was faced 

with resentment by the prosecutors who had been on the case. Her solution, in her 

own words was, ‘‘to make herself as little as possible’’ (the Report at 3). In essence, 

she accepted the position of lead counsel without accepting and exercising the responsibilities inherent in the role. This was at least part of the reason the case imploded. No one was supervising the prosecutors in a meaningful way. This does not 

in any way excuse the misconduct, but it is part of the explanation for how matters 

got to the sorry state set out in the Report.6

The vast majority of federal prosecutors perform their roles with integrity and in 

conformity with their sworn obligation to uphold the law. Matters went terribly 

awry in this case, and it is to Attorney General Holder’s credit that he decided to 

dismiss the Stevens case with prejudice, in effect, expunging the verdict. 

Mr. SENSENBRENNER. Mr. Wainstein, I think that Mr. Bottini 

was very clearly the most experienced of the prosecutors that were 

prosecuting Senator Stevens. And I just look at the long litany of 

errors that occurred, and ignoring the judge’s admonition. You 

know, for example, during one hearing, the judge admonished the 

prosecutors that the government has an obligation to turn over the 

Brady and Giglio information, and if they don’t want to do that, 

they ought to resign. 

And then there were some letters that Mr. Bottini authored relative to the Brady and Giglio issues that were sent to counsel for 

Senator Stevens. In one of those letters Mr. Bottini failed to include significant Brady information provided to him by Rocky Williams, which a few days earlier corroborated Senator Stevens’ primary defense. In your written testimony, you said, Mr. Bottini only 

skimmed the second of the two Brady letters, which also, according 

to Mr. Schuelke, contain significant misstatements and conceal the 

61 

importance of important Brady and Giglio information. At trial, 

Mr. Bottini did not correct Bill Allen’s false testimony on cross-examination. On September 10, the judge issued a clear order to the 

prosecutors to comply with Brady and Giglio or it would support 

a criminal contempt prosecution. 

Mr. Williams was sent to Alaska, and Mr. Bottini apparently had 

some role in making that decision. Mr. Allen suborned perjury. 

That information was not disclosed. And Mr. Bottini did not 

produce counsel for Senator Stevens’ April 15, 2008 interview notes 

of Bill Allen pursuant to Brady or Giglio. 

Now it is going on again and again. And we know of at least two 

admonitions from the bench to either produce the information, resign, or face criminal prosecution. Mr. Allen’s false testimony was 

not corrected on cross-examination. 

Now, this is an experienced prosecutor. And it was up to the Department of Justice to determine when to file the indictment. Senator Stevens was up for reelection 4 months after the indictment 

was filed. And as one who has run for office numerous times, it is 

pretty hard to get reelected when you are indicted, you don’t have 

an opportunity to have a jury decide your guilt or innocence. And 

that is, the timing that the Justice Department undertook in determining when to file the indictment I think practically guaranteed 

that Senator Stevens’ attorneys would have asked for a very speedy 

trial. 

And finally, there was the complaint that the defense counsel 

was very aggressive in the presentation of their case. Now, it has 

been a long time since I have tried cases in court. And I always 

thought that the counsel, pursuant to rules, was on an ethical obligation to present a vigorous case for their trial. You know, you say 

that Mr. Bottini was caught up in the milieu of the trial and the 

lack of supervision from on high. But he was so experienced, 

couldn’t he overcome that? Or couldn’t he throw the red flag down 

on the field and tell his superiors in the Justice Department that 

they ought to have a hand on the tiller? 

Basically what I hear from you, Mr. Wainstein, is that well, he 

did the best he could under the circumstances, and it was the folks 

up above him that kind of dropped the ball. And I will give you a 

chance to answer my 41⁄2 minutes of a litany of things that are in 

the report. And forget about the red light, because I am not going 

to ask a follow-up question. 

Mr. WAINSTEIN. Thank you, Mr. Chairman. You gave me a lot to 

chew on here. Let me start off. First, Joe is not saying—not pointing fingers at the people above him. He is not saying that he didn’t 

do anything wrong. He will say he wishes he did throw a flag. He 

just bore down and worked on his little area and didn’t say, you 

know what, we really need to do this, we need to stop the presses 

here, go back to the beginning and try to fix this. And he wishes 

he did. So he is not saying that this is all somebody else’s fault. 

He is accepting responsibility for the mistakes and the miscalculations he made. 

Another thing I would like to mention is, you know, you mentioned zealous advocacy by defense counsel. I am not complaining 

about their work. They are very a successful defense counsel and 

they do a great job for their clients. My only point is, that is a cirVerDate Aug 31 2005 13:30 Jul 11, 2012 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041912\73861.000 HJUD1 PsN: DOUGA
62 

cumstance that kept the prosecutors on their heels, confused, running here and there, and they never really got their sea legs at 

trial. And that is one of the reasons why mistakes were more likely, because the critical thing that we have focused on is, is there 

intentional conduct here or is it mistaken conduct? 

And the circumstances that we have laid out here, we have laid 

out with the intention of showing you that this really was a series 

of mistakes. Now, you have laid out a number of the things that 

the report indicates that my client is guilty of. Now of course, you 

are characterizing the facts as characterized in the report. You are 

accepting the conclusions that these things were done intentionally. 

And I understand that, because your basis of knowledge is the report. 

What I am doing is—on behalf of Joe, and frankly on behalf of 

the other subjects—pushing back on those assertions by the Special 

Prosecutor, because I think the Special Prosecutor, like you, did a 

tremendous service to the country here and it was a tremendous 

challenge what he had to deal with. But I believe that he got some 

of the facts wrong and he got the inferences wrong. 

So if you look at a few of the things raised, it is not so clear-cut. 

For instance, the question about whether Bill Allen provided perjured testimony or wrong testimony that Joe should have corrected. 

If you actually go back and look at the record, you will see why Joe 

realized he was totally confused, and the jury who had already— 

Joe had already advised the jury that Mr. Allen had some cognitive 

impairments, that he had some serious problems, and those problems actually played out while he was on the stand. The jury understood that he would get confused and he got confused. 

I think his final question was, hell I don’t know what day it was 

that I talked about this. Joe’s recognition—he explained this to Mr. 

Schuelke—was I realized he was confused. If I tried to clean it up, 

it would get worse. And the critical thing is that Joe did not use 

that information, did not try to take advantage of it in his closing 

argument by suggesting that Allen had not just recently told him 

this information. He didn’t exploit it at all, even though defense 

counsel raised that issue. My point is, he had a reason for what 

he did which was not nefarious, was in fact understandable. 

Rocky Williams, the only other example I would like to cite. He 

talked about how he learned that Rocky Williams had this assumption that Senator Stevens was going to pay for that work. He did. 

Rocky Williams told Joe this, and Joe thought about it. He has explained this to Mr. Schuelke. He thought about, boy, this is an assumption by a person who is working on a work site that the guy 

who owns that work site, the house there, is going to pay for that 

work. Is that something that we need to turn over to defense? 

He asked a critical question: Did you Mr. Williams, Rocky Williams, tell the Senator or the Senator’s wife that the charges for 

the work were all going to be put in the Christensen Builders bills 

that you are paying? ‘‘No, I didn’t but I assumed that.’’ 

Well, frankly, Joe’s thinking was, everybody on that work site assumes that the owner of the house is paying for the construction 

on that house. I think we would all assume that. That is not something that can be elicited on the stand. That is just speculation, 

and is not something that is disclosable. 

63 

Now, you can take issue with that decision. My point is, he had 

a reasonable basis for the decision he made that is far from criminal intent to hide facts that should have gotten to the defense, even 

though one can question whether, you know, in retrospect he 

should have made the other decision. 

Mr. SENSENBRENNER. Thank you. The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. Mr. Chairman, I am not as concerned about the individual prosecutors involved. Their fate will be determined in another forum. But it does 

show, I think it is clear particularly from what we have heard from 

the Chairman and from the gentleman from South Carolina, that 

things didn’t go right in this trial. It should have been treated differently. 

And if this kind of stuff happens in a high-profile case like this, 

you can only imagine what happens in the run-of-the-mill cases. In 

most cases, this kind of information would never come to light. 

So we have a question of whether or not we need to change our 

procedures, particularly in light of the laboratory scandal that has 

just come to light. So in terms of what the standard ought to be 

going forward, does anybody think admissibility ought to be part 

of the standard if it is evidence that Brady information has to be 

admissible? I know in civil standards, if it would lead to admissible 

evidence it would help impeach witnesses, it would help the investigation, even if it is hearsay, or if it helps settlement you can get 

discovery in civil cases, and it has nothing to do with admissibility. 

Should admissibility be part of the standard going forward? 

Mr. BARON. Let me respond. Usually when you are talking about 

Brady material, it is material that the prosecution does not want 

admitted, I mean, because it is going to tend to be exculpatory. It 

may be material that the defense wants to admit. And certainly if 

it is relevant and material, it certainly should be admitted, if that 

is your question. 

Mr. SCOTT. Well, should that be part of the standard? It wouldn’t 

have to be admissible evidence. It could be hearsay and other 

things that are clearly inadmissible that would be helpful to the 

prosecution. So admissibility is not going to be part of—— 

Mr. BARON. Admissibility of the evidence in and of itself should 

not be the standard. It is whether it might lead to evidence that 

could be used in that way. 

Mr. SCOTT. Okay. So we are back to material. Is there any suggestion that the standard on review, on appellate review ought to 

be different? The standard on appellate review suggests that the 

availability of the Brady material could have changed the result. 

Could have—not necessarily—but could have. Is there any suggestion that that standard on appellate review be changed? 

Mr. WAINSTEIN. I think there is talk about that. I don’t know 

that—I see problems with that. If you were to change the—or to 

take materiality out of the appellate standard, then every little deviation—let’s say to talk about it in a Giglio context, impeachment, 

to use the example that Mr. Schuelke cited before, about a Tuesday 

versus a Thursday. You would be litigating every little discrepancy. 

So there would be no finality to cases, and you would end up with 

cases being reversed for what really is not outcome determinative. 

64 

Mr. SCOTT. So if all of these proposals will not change the standard on appellate review, are we just talking about good practice 

and not really changing the law? 

Mr. BARON. I think that the materiality standard—and I think 

Mr. Schuelke made the point earlier; it is very difficult for someone 

who is a prosecutor to put himself in the shoes of defense counsel 

in a hotly contested case and figure out what is material, what is 

not material, what is relevant, what is not relevant. Indeed, the 

prosecutor may not really know just what his defense strategy is 

going to be. How can he make the judgment in a vacuum? 

So I think that to the extent that one continues to impose a materiality standard, it makes it harder and harder for the prosecutor 

to make a judgment that is sound. And so therefore I think that 

is the push of removing that standard because it is unrealistic to 

expect the prosecutor to make that judgment and indeed very difficult for an appellate court to make that judgment. 

Mr. SCOTT. Well particularly because neither may know what the 

defense knew, and this could be the key little connection that could 

help them make their case and be material to the defense, but the 

prosecution had no way of knowing that it was that important information. 

Mr. BARON. Exactly. 

Mr. SCOTT. Now on appellate review, if it turns out that way, 

and you hadn’t released it, you would have a Brady problem. 

Mr. BARON. Yes. 

Mr. SCOTT. So we are talking about good practice; don’t get into 

Brady problems that you can avoid. Just release it all. But you are 

not talking about changing the standard on review. If it in fact was 

not material, then there should be—are you suggesting that there 

is no sanction? 

Mr. BARON. I think that—to the extent that on appellate review, 

the court—it is going to be a pretty extreme case that where an appellate court will feel it is in a position to, let’s say, reverse a conviction for failure to disclose I think will be material evidence. 

I agree with Mr. Wainstein that to the extent—you don’t want 

the appellate courts getting bogged down in every relatively minor 

instance that something was not turned over. If it would not have 

had some material effect, it seems to me that that is asking too 

much. I think you bog down, you clog the system with a lot of cases 

on appeal where it shouldn’t be happening. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. GOWDY. [presiding.] I thank the gentleman from Virginia. 

Mr. Wainstein, I don’t really care about how zealous or not zealous 

the defense counsel was. I would rather have good facts than good 

lawyers. And it just strikes me that the facts weren’t good, which 

means maybe I am missing something. 

If you paid $170,000 for something whose fair market value is 

$160,000, even Mr. Scott can’t win that case if he is a prosecutor— 

I don’t think. Am I missing facts? Look, I want to be sympathetic 

to prosecutors. I was one for a long time. But what am I missing? 

Mr. WAINSTEIN. Good question, sir. Just keeping in mind, I represent Joe Bottini. And I will say that Joe was not involved in the 

decision to charge the case. When the decision was made to charge 

65 

the case, he was actually surprised that an indictment was actually 

filed. 

Mr. GOWDY. It is not tough to get an indictment. 

Mr. WAINSTEIN. No, no, no. I am not making the point that that 

passed the threshold. I am saying the fact that it was actually 

issued caught him by surprise. He was off working on a capital 

case up in Alaska when it was issued. But you know, having been 

in main Justice for quite some time, I have often seen where you 

have a case that looks a certain way at the indictment stage and 

then especially with good defense counsel—and we had good defense counsel here—get involved, it starts to morph and it starts 

to look different. And I am only speculating because I wasn’t inside 

this process. But sometimes that happens, where the facts just get 

worse. I think everybody would question, you know, why the case 

was charged. You have got to remember, it is tough. If you have 

what looks like a makable case against a sitting United States Senator, charging has its consequences. But not charging also has its 

consequences. So it is a tough—I just think the people in that position were in a tough position. 

Mr. GOWDY. You were at DOJ for a time period. This practice of 

interviewing witnesses without the case agent present, which at 

best may potentially make you a witness, at worst leads to what 

we are talking about here, wouldn’t that have corrected it if you 

had had a Bureau agent or an IRS agent or the case agent present 

for the interview? 

Mr. WAINSTEIN. Yes. I mean in most cases they did as far as I 

know, and I think Mr. Schuelke is sort of the expert on the facts. 

He indicated that he thought that there was an agent there, either 

FBI or IRS agent. Not always the case agent. 

One of the problems was—in a couple of the critical interviews, 

a 302, an FBI report, was not generated. And especially in the 

interview of Bill Allen, on April 15, 2008, where he made the critical comment—statement which was then—which he then changed 

as it got closer to trial, there was no 302 written of that. 

And that is one of the problems in the case because prosecutors 

didn’t have a written record, which they could have looked at to 

say, oh, wait a minute; what Bill Allen is saying now in September 

is different from what he said in April. So that was really the main 

problem. And I don’t believe there were instances where they went 

forward without agents. They were smart. They get it. Yeah, if you 

go in there without an agent, you are going to make yourself a witness in case something arises at trial that hearkens back to that 

interview. 

Mr. GOWDY. Well, as you probably noticed, Congress is much better at doing autopsies than it is at doing well-checkups. We like to 

wait until something horrible happens and then we rush in with 

a long list of cures, most of which are cures for symptoms that 

don’t exist. But it does sully the name of 99 percent of the prosecutors who actually do value the administration of justice more than 

they do results. And you don’t ever make the news when you don’t 

drop the baby. It is only when you do that you have your counsel 

at a House Judiciary Committee hearing. 

66 

So do the rules need to change? Does the law need to change? 

Or is this just a case where the rules are sufficient, they just 

weren’t followed? 

Mr. WAINSTEIN. I am not going to pretend to be the world’s expert on this issue, because my focus in this has been different. It 

has been Joe. But I think, as someone has said earlier, the rules 

here were sufficient. And I think especially in the aftermath of 

this, I give a lot of credit to the Department for what they did, 

where they have tightened up training, expanded training and that 

their whole focus is, okay, we are going to give guidance to the 

prosecutors that they turn over all exculpatory, all favorable information to the defense without regard to the materiality requirement. But we want the law to be a materiality requirement. 

So that if we don’t turn over the Tuesday versus Thursday thing, 

because we just overlooked it, that we are not going to then put 

a conviction in jeopardy or really undermine the process of—— 

Mr. GOWDY. So an open-file policy by not an open-file law? 

Mr. WAINSTEIN. Well, I don’t know if I would say open file. The 

prosecutor’s job is to turn it over whether it is through open file 

or just telling them, providing the relevant documents to the defense, if they find something favorable, and don’t just hold onto it 

because it is not favorable information that is material. 

And I think having that as the policy guidance and the law 

being, okay, but we only actually take action against the prosecutors and against their case if it was material information that 

wasn’t turned over. I think that is a good approach if well trained 

and well carried out and well supervised. And 99.99 percent of the 

criminal trials should go smoothly. 

Mr. GOWDY. My time is up. And I think the Chairman is back. 

Mr. SENSENBRENNER. [Presiding.] The gentleman from Georgia, 

Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

There are two issues that I am concerned with. One is the prosecution being the gatekeeper or the keeper of the file and having 

the unbridled discretion with which to decide whether or not to disclose information that might be exculpatory to guilt or of impeachment value to the defense. So with that unbridled discretion, it 

means that most failures to disclose evidence will never be decided—or would never be discovered because at no point during the 

initial prosecution, the trial, the appeal, at no point does the defense have the right to peruse the entire prosecution file. 

And I can tell you that this is not the first time this has happened. It happens many times. It even happened in a death penalty case that I handled out of Georgia, that we got the case reversed because the prosecutor used perjured testimony, knowingly, 

knowingly used perjured testimony. This is in a death penalty case. 

So this desire to win at all cost, I am afraid is a little more prevalent than we may admit. 

And then my second problem is that whenever it is discovered, 

then nothing happens to the prosecutor. People think that lawyers 

are—you know, make up kind of a good-old-boy club-type situation, 

and they are supposed to discipline themselves. They don’t want 

another outside force outside of the bar to discipline lawyers. And 

that is why under most State bar rules, lawyers have an obligation 

67 

to—when a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer is in question, then they have an 

obligation by their State bar association to disclose that information. 

We have a reluctance to disclose misconduct. It is like tattling on 

our club member. And that, if it continues, will result in a public 

demand that the power to discipline lawyer misconduct be put in 

the hands of nonlawyers, and I don’t think we want that. So we 

need to be cognizant of our obligation to disclose any case where 

there may be a question about whether or not something was untruthful or not. 

Now, as far as a remedy for this situation, upon motion of a defense counsel or the State for an in-camera review of the entire 

State’s file and a continuing obligation thereafter to disclose, all 

the way through appeal, such information, to require that by statute, to require that the court do that by statute, is that a workable 

solution to this first problem that I cited about the prosecutor being 

the unbridled gatekeeper? Mr. Baron. 

Mr. BARON. I think it is a nice idea. But I think from a practical 

matter there would be something of an uproar by the judges that 

they don’t have the time to be burdened with that. And also, they 

know about a case. They may have had a couple of hearings in it, 

but they don’t know the case in depth. So to put that burden on 

them and expect them to be the gatekeeper, even though we like 

the fact that they are neutral, rather than a prosecutor who is in 

an adversarial process, it is a huge burden to impose on the courts. 

And I think implicit in your question is, How do we legislate integrity? And can we? Because ultimately what we see from what 

Mr. Schuelke found in his report, even if you had had open-file discovery, complete access, things never got into the file that should 

have been there. Or 302s, the FBI interview form, were edited in 

such fashion that the exculpatory information was left out and the 

inculpatory stuff was left in. 

So ultimately, even the most prophylactic approach is going to 

turn on the integrity of the people who are serving as prosecutors. 

I think some of these steps might be a step in the right direction, 

but we shouldn’t kid ourselves. If what happened here—if Mr. 

Schuelke is right about what happened here, this was really pretty 

terrible. I don’t want to put too fine a point on this. It is pretty terrible. And prosecutors engaged in that kind of conduct, no amount 

of reviewing the file is going to really reveal that, because they 

were hiding things, according to Mr. Schuelke. And that is pretty 

awful. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentlewoman from Florida, Ms. Adams. 

Mrs. ADAMS. Thank you, Mr. Chairman. That kind of is very 

bothersome to me as a law enforcement officer. 

You mentioned in your opening statement the breakdown in supervision. Would you like to elaborate on that? Would you care to 

elaborate on that a little bit further? I think from what you are 

saying here, there was a definite breakdown. 

Mr. BARON. Yes, of course. I have over the course of my career 

run a number of investigations, some very big ones where I had a 

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tigation, and much smaller ones where there were three or four of 

us. 

What seems to have happened here—it was very interesting. 

When Mr. Schuelke was asked to describe what was the administrative structure, he started with the trial itself. But who was running the show for the 2 years that the investigation was going on? 

When I read the report, I couldn’t figure out who was in charge, 

which is kind of shocking and I think can lead to all kinds of problems. 

The thing is that even when Brenda Morris was appointed, apparently she was appointed the lead prosecutor a few days before 

the indictment came down. Apparently, prior to that, according to 

her submission she made, had basically declined several times taking the role of lead prosecutor. I don’t know why she ultimately accepted, whether she was pressured into it, or decided it was a good 

idea. But in any event, to push somebody into that spot was not 

a good decision. 

But then it gets worse. According to her own testimony, she decided that she would, quote, make herself small in her role as now 

the lead prosecutor. That could only make a bad situation worse. 

It is basically saying, even though I am accepting the role of lead 

prosecutor and all the responsibility that comes with that, I am not 

going to exercise it. I am not going to do that. 

In the absence of that, all kinds of very bad things happen. There 

has to be a hierarchy when you are running an investigation or 

when you are running a case, because with hierarchy comes structure, and with structure comes accountability. You can’t have people milling around on their own making these decisions. You need 

somebody who steps up and says, I am going to lead this, and if 

things go bad, I am going to be responsible for it, and I am going 

to give everybody direction. That didn’t happen here. It doesn’t excuse the misconduct but it helps explain it. 

Mrs. ADAMS. Thank you. Mr. Wainstein, your specific criticism 

about Mr. Schuelke and the way he conducted his investigation, 

what are they? And his conclusions? What are they? What are your 

specific criticisms about the way it was handled? 

Mr. WAINSTEIN. Well, I guess the general criticism is that he 

looked at what were clearly mistakes, very serious mistakes made 

on behalf of the whole trial team. And my client participated in 

those mistakes as well, and was responsible for some. He looked at 

those mistakes. He gauged them as being very serious and having 

a serious impact on the integrity of the trial. And I don’t take any 

issue with any of that. But then he concluded that they were intentional. And that is the very critical thing that I am focusing on 

here, because in my book, if you are—and I think former prosecutors here would all agree—if you find a prosecutor who intentionally broke the rules, punish him to the hilt. That is it. Throw 

the book at him. Because one bad apple is going to have serious 

implications not only for that person and that person’s trial, but for 

the whole Justice Department. 

But that is very different, though, from making mistakes. And 

that is why I wanted to focus—and I think he didn’t focus sufficiently—on the circumstances that were very difficult for these 

prosecutors that caused them to make the mistakes they shouldn’t 

69 

have made, but nonetheless they were inadvertent as opposed to 

intentional. 

Mrs. ADAMS. Didn’t the court give you an opportunity to comment on Mr. Schuelke’s report and have those appended to the report? 

Mr. WAINSTEIN. The report was—— 

Mrs. ADAMS. Did they give you the opportunity, the court? 

Mr. WAINSTEIN. The court gave us the opportunity, after announcing the conclusions, to provide a criticism that could be appended to the report, but not to provide any input that might have 

any impact on the outcome of the report. 

Mrs. ADAMS. Did you choose to do so? 

Mr. WAINSTEIN. I submitted a 50-or-so-page memo that we had 

provided before that wasn’t even mentioned in the report, with a 

cover memo. And then Joe said his main concern was talking to his 

colleagues and the Attorney General in the Justice Department. 

Mrs. ADAMS. So you submitted that to the courts to have it appended? 

Mr. WAINSTEIN. Yes. And that was appended. Yes, ma’am. And 

then we also provided a letter to the Attorney General. 

Mrs. ADAMS. Okay. Which, if any, of the Brady and Giglio violations described in Mr. Schuelke’s report do you take issue with? 

Mr. WAINSTEIN. Well, I don’t take issue with—well, there are a 

couple where he determines it is a Brady violation. And I think 

there is an argument that it is not a Brady violation. My criticism 

is not so much that these were not violations. So if you look at it 

from the perspective of Senator Stevens, he was denied a fair process. No question about it. 

My criticism, as I explained earlier, is Mr. Schuelke’s determination that those violations on the part of Joe were intentional. And 

my point is, no, they were not intentional. They were mistakes. 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. The 

gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. I thank the Chairman and Ranking Member 

for this hearing and thank the witnesses for their presence and express my deep concern over this question. And I really refer to the 

numbers of individuals who have been released under the new 

premise of DNA evidence, as led by the Innocence Project. And the 

reason why I mention that is because a lot of that has occurred in 

the State of Texas. 

I know that we are looking at a number of different issues. But 

I think the underlying premise, what I want to speak to, is when 

people are convicted wrongly and they are incarcerated inappropriately, because of either a lack of expanded evidence, an unwillingness to investigate evidence and then, of course, not presenting evidence or not sharing evidence. 

So Mr. Wainstein, within the limits of what you can say, what 

is the status of your case, of your client? Where is it? Is the case 

completed? Or are you still in the process of defense of this individual? 

Mr. WAINSTEIN. I am actually—I am representing him for purposes of the investigation that was conducted by Mr. Schuelke. I 

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ciplinary process at the Justice Department, and that is not completed. 

Ms. JACKSON LEE. And is he, or she, presently still a functioning 

prosecutor? 

Mr. WAINSTEIN. Yes. Mr. Bottini, a 27-year AUSA, assistant U.S. 

Attorney, and is in court, going in and out of court every day, doing 

everything from meth cases to—he is doing a case involving a militia, members of a militia who threatened to kill a Federal judge. 

So he is still going in there and doing—— 

Ms. JACKSON LEE. So is it in the public domain as to the reason—is it in the public domain based upon Mr. Schuelke’s report 

why he did not present that evidence? Is that in the public domain? 

Mr. WAINSTEIN. Yes. Our submissions to Mr. Schuelke in which 

I explained the reasons why these discovery violations happened on 

the part of Joe, and explained how they were mistakes, that is in 

the public domain. That was released with the Schuelke report. So 

yes, people see that. And hopefully people are hearing today that 

there is another side to the story, not just a finding of intentional 

misconduct. 

Ms. JACKSON LEE. And I don’t want to litigate your case, but I 

guess since it is in the public domain—Mr. Schuelke’s report—is 

the explanation that the paperwork was voluminous, that it didn’t 

come to his attention, what is the parameters of the explanation 

of the mistake? 

Mr. WAINSTEIN. Well, there are several different things that Mr. 

Schuelke has accused him of doing wrong. And he did make mistakes. He didn’t turn over several things that should have been disclosed. 

Ms. JACKSON LEE. That he was aware of? 

Mr. WAINSTEIN. He was aware of. But one thing he forgot. Another thing he made an assessment that it was something that 

didn’t need to be turned over. Another thing, he tried to get it disclosed but his supervisors wouldn’t let him. Seven times he said to 

his supervisors in the Public Integrity Section, you have got to get 

this out. We have got to disclose it. And they shut him down. In 

fact, the section chief supervisor sent him an email saying, You 

work for Public Integrity. These are your marching orders. Stand 

down.’’ That is why that information didn’t get out. 

Ms. JACKSON LEE. Without litigating his case here, if I just take 

the parameters or the framework that you have just given, I would 

assume, then, that we look at this question of either prosecutorial 

abuse or misconduct, we need to look up the chain and try to understand what supervisors are told and what they are not. 

Let me quickly ask: This proposed legislation that has been suggested that might clarify Brady material, would that be helpful in 

knowing and having more detailed procedures for presenting or 

finding evidence? Both of you, any of you. 

Mr. BARON. I would say that eliminating the materiality requirement for a prosecutor to take into consideration in making a Brady 

or Giglio judgment, I think that is a step in the right direction. 

Ms. JACKSON LEE. So that means that they would just present 

what they had and you don’t have the discretion to say, ‘‘No, this 

is not really relevant. I will keep this.’’ Is that what you are saying? 

71 

Mr. BARON. Well, as I understand the legislation, the prosecutor 

is not to say, gee, this might help them but I don’t think it is really 

material. 

Ms. JACKSON LEE. That discretion is taken away. It is supposed 

to be turned over, even though the issue of materiality, that is not 

going to be addressed. You have to turn it over if it might be helpful to the other side. 

Ms. JACKSON LEE. I think this is crucial in terms of what happened to Senator Stevens. And in his death, I apologize for what 

happened. And I hope we can correct this situation. Thank you. I 

yield back. 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. I 

would like to thank all of our witnesses for their testimony today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask them to respond as promptly as 

they can so their answers may be part of the record. Without objection, all Members will have 5 legislative days to submit additional 

materials for inclusion in the record. 

Now in closing, let me say that this is probably one of the 

blackest incidents in the history of the Justice Department, because by their misconduct they have ruined the reputation of a senior United States Senator and probably caused his defeat in the 

election, both by their timing of the indictment, how the trial was 

conducted, the lack of supervision by the Justice Department and 

the like. 

I think culpability here goes beyond the trial team that actually 

prosecuted Senator Stevens. There is plenty of evidence that there 

was a lack of supervision, that the Public Integrity Section wanted 

to get Senator Stevens one way or the other. 

And even though some members of the Public Integrity Section 

have been exonerated in the internal review of the Justice Department, there has to be a review beyond the Justice Department into 

exactly what happened. 

All of us in law school are reminded that in addition to being advocates for our clients, we are also officers of the court. And as officers of the court, we have taken an oath to attempt to have justice 

administered fairly and impartially, which means that it is based 

upon all of the evidence and the applicable law. 

As one of my colleagues on the panel has indicated earlier, I 

think that this terrible miscarriage of justice warrants the investigation of the D.C. bar into whether any of those who were involved in this should be disciplined, with penalties up to disbarment. 

I don’t trust the Justice Department to conduct an impartial investigation. We have heard time and time again that the marching 

orders were to win at all cost, and to forget about the administration of justice. That is something that is profoundly troubling to me 

and I think to anybody who looks at this objectively. I am not saying that any one person should possibly be disbarred, but I am saying that the D.C. bar ought to look at this away from the old boys’ 

and girls’ network in the Justice Department, and impose what discipline that is warranted on whomever was responsible for what 

happened in this trial. 

72 

This is not the first time the Public Integrity Section has gone 

overboard. We had the case a couple of decades ago of former Congressman Joe McDade of Pennsylvania who basically spent his life 

savings and then some to get an acquittal verdict from a jury for 

essentially doing casework for constituents. 

So I think that what has to happen here is the message has to 

get out that any prosecutor who does something like this, their career and their bar license may be on the line for doing something 

that is outrageous and egregious. I am not a bar commissioner. I 

think that they ought to look at the evidence on this. But they 

ought to look at it. 

So with that, without objection, the Subcommittee is adjourned. 

[Whereupon, at 12:12 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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Addendum to the Prepared Statement of Kenneth L. Wainstein, Partner, 

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E N C L O S U R E: 

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EXHIBIT A 


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Prepared Statement of Sean Bennett, Kalamazoo, Michigan 


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