IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

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In Re SPECIAL PROCEEDINGS : Misc. No. 09-0198 (EGS) 

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ORDER

 In the fall of 2008 in highly-publicized proceedings before 

this Court, then-U.S. Senator Theodore F. Stevens was indicted, 

tried and found guilty of making false statements, by failing to 

disclose gifts he received on his Senate Financial Disclosure 

Forms, in violation of 18 U.S.C. § 1001(a)(1) and (2). During 

the course of the five-week jury trial and for several months 

following the trial, there were serious allegations and 

confirmed instances of prosecutorial misconduct that called into 

question the integrity of the criminal proceedings against 

Senator Stevens. On April 1, 2009, after acknowledging some of 

the misconduct and specifically admitting two instances in which 

the prosecution team had failed to produce exculpatory 

information to the defense in violation of the government’s 

constitutional obligations,1

 the Department of Justice moved to 

set aside the verdict and dismiss the indictment of Senator 

Stevens with prejudice. 

                                                            

1 See, e.g., Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. 

United States, 405 U.S. 150 (1972). 
2 

 On April 7, 2009, after granting the government’s motion, 

and in recognition of (1) the significance of the government’s 

decision to dismiss the indictment and not to seek a retrial; 

(2) the government’s admission that it committed Brady

violations and made misrepresentations to the Court during the 

prosecution of Senator Stevens; (3) the prosecutorial misconduct 

that permeated the proceedings before this Court to a degree and 

extent that this Court had not seen in twenty-five years on the 

bench; and (4) the likelihood based on events during and after 

the trial, including the information revealed by the Department 

of Justice in support of its motion to vacate the verdict and 

dismiss the indictment, that the prosecution team may have 

committed additional constitutional and procedural violations 

during the Stevens prosecution that had yet to be discovered or 

addressed, the Court appointed Henry F. Schuelke, III to 

investigate and prosecute such criminal contempt proceedings as 

may be appropriate against the six Department of Justice 

attorneys responsible for the prosecution of Senator Stevens. 

See Order Appointing Henry F. Schuelke, United States v. 

Stevens, No. 08-cr-231 (Apr. 7, 2009). 

 Mr. Schuelke has informed the Court that he has concluded 

his investigation, and he has submitted to the Court in camera a 

five-hundred page report detailing the findings of his 

investigation. In order to discharge his obligations and fully 
3 

investigate the prosecutors’ conduct during the Stevens

prosecution, Mr. Schuelke and his esteemed colleague, William B. 

Shields, reviewed more than 150,000 pages of documents, 

interviewed numerous witnesses, conducted twelve depositions, 

and, by necessity, acquired a comprehensive understanding of the 

government’s investigation, charges, pre-trial and trial 

proceedings not only in the Stevens matter, but also in relevant 

aspects of at least two other federal prosecutions brought by 

the Department of Justice’s Public Integrity Section against 

Alaskan state officials, including United States v. Kott, No. 

07-30496, 2011 U.S. App. LEXIS 6058 (9th Cir. Mar. 24, 2011), 

and United States v. Kohring, 637 F.3d 895 (9th Cir. 2011). Mr. 

Schuelke informs the Court that pursuant to this Court’s 

directive, officials at the Department of Justice have 

cooperated fully with his investigation. 

 Based on their exhaustive investigation, Mr. Schuelke and 

Mr. Shields concluded that the investigation and prosecution of 

Senator Stevens were “permeated by the systematic concealment of 

significant exculpatory evidence which would have independently 

corroborated his defense and his testimony, and seriously 

damaged the testimony and credibility of the government’s key 

witness.” See Report to the Honorable Emmet G. Sullivan of 

Investigation Conducted Pursuant to the Court’s April 7, 2009 

Order (“Mr. Schuelke’s Report” or “Report”) at 1 (currently on 
4 

file under seal and in camera). Mr. Schuelke and Mr. Shields 

found that at least some of the concealment was willful and 

intentional, and related to many of the issues raised by the 

defense during the course of the Stevens trial. Further, Mr. 

Schuelke and Mr. Shields found evidence of concealment and 

serious misconduct that was previously unknown and almost 

certainly would never have been revealed – at least to the Court 

and to the public – but for their exhaustive investigation. 

 Despite his findings of significant, widespread, and at 

times intentional misconduct, Mr. Schuelke is not recommending 

any prosecution for criminal contempt.2 Mr. Schuelke bases his 

conclusion not to recommend contempt proceedings on the 

requirement that, in order to prove criminal contempt beyond a 

reasonable doubt under 18 U.S.C. § 401(3), the contemnor must 

disobey an order that is sufficiently “clear and unequivocal at 

the time it is issued.” See, e.g., Traub v. United States, 232 

F.2d 43, 47 (D.C. Cir. 1955). Upon review of the docket and 

proceedings in the Stevens case, Mr. Schuelke concludes no such 

Order existed in this case. Rather, the Court accepted the 

repeated representations of the subject prosecutors that they 

                                                            

2

 Mr. Schuelke “offer[s] no opinion as to whether a prosecution 

for Obstruction of Justice under 18 U.S.C. § 1503 might lie 

against one or more of the subject attorneys and might meet the 

standard enunciated in 9-27.220 of the Principles of Federal 

Prosecution.” See Mr. Schuelke’s Report at 514 n.76 (citing 

Indictment, United States v. Convertino, et al., No. 2:06-cr20173 (E.D. Mich. Mar. 29, 2006)). 
5 

were familiar with their discovery obligations, were complying 

with those obligations, and were proceeding in good faith. See, 

e.g., Transcript of Motions Hearing, P.M., at 14-15, Stevens, 

No. 08-cr-231 (Sept. 10, 2008) (“THE COURT: I’m not going to 

write an order that says ‘follow the law.’ We all know what the 

law is. The government – I’m convinced that the government in 

its team of prosecutors is thoroughly familiar with the 

decisions from our Circuit and from my colleagues on this Court, 

and that they, in good faith, know that they have an obligation, 

on an ongoing basis to provide the relevant, appropriate 

information to defense counsel to be utilized in a useable 

format as that information becomes known or in the possession of 

the government, and I accept that.”).3 Because the Court 

accepted the prosecutors’ repeated assertions that they were 

complying with their obligations and proceeding in good faith, 

the Court did not issue a “clear and unequivocal” order 

directing the attorneys to follow the law. 

 This Court has always recognized the public’s interest in 

these proceedings and has maintained from the outset that the 

Court intends to make public the results of Mr. Schuelke’s 

                                                            

3

 Mr. Schuelke also notes that “[i]t should go without saying 

that neither Judge Sullivan, nor any District Judge, should have 

to order the Government to comply with its constitutional 

obligations, let alone that he should feel compelled to craft 

such an order with a view toward a criminal contempt 

prosecution, anticipating its willful violation.” Mr. 

Schuelke’s Report at 513. 
6 

investigation. See, e.g., Transcript of Hearing 46:7-11, 

Stevens, (April 7, 2009) (“[T]he events and allegations in this 

case are too serious and too numerous to be left to an internal 

investigation that has no outside accountability. This court 

has an independent obligation to ensure that any misconduct is 

fully investigated and addressed in an appropriate public 

forum.”). The public’s interest in the results of this 

investigation, which reveal failures of supervision and/or 

misconduct by attorneys in the Department of Justice’s Public 

Integrity Section in the prosecution of a sitting United States 

Senator, is as compelling today as it was on April 7, 2009. In 

fact, as recently as November 8, 2011, Attorney General Eric 

Holder was questioned by members of the United States Senate 

during a hearing before the Senate’s Judiciary Committee about 

the Department of Justice’s investigation into the Stevens

prosecution, and the Attorney General acknowledged the public’s 

important interest in these matters. See Sean Cockerham, Review 

of Stevens Prosecution Nears Completion, Holder Says, Anchorage 

Daily News, Nov. 9, 2011 (“What I have indicated was that I want 

to share as much of [the Office of Professional Responsibility 

report] as we possibly can given the very public nature of that 

matter and the very public decision I made to dismiss the 

case.”). 
7 

While providing the public with the full results of Mr. 

Schuelke’s investigation has been and remains the Court’s 

intent, in view of the Amended Protective Order entered in these 

proceedings on December 13, 2009, and this Circuit’s holding in 

In re North, 16 F.3d 1234 (D.C. Cir. 1994), the Court has 

determined that Mr. Schuelke’s complete report should not be 

made public at least until the Department of Justice has had the 

opportunity to review the report. The Court has further 

determined that it is appropriate to afford the subject 

attorneys and Senator Stevens’s attorneys the opportunity to 

review the report, under the terms and conditions set forth 

below. The Court will then consider any objections to making 

Mr. Schuelke’s Report public; any such objections shall be filed 

in accordance with this Order, as set forth below. Regrettably, 

and contrary to this Court’s commitment to the public’s right of 

access, these interim proceedings may need to be conducted under 

seal until the Court has considered any objections raised by 

either the Department of Justice or the subject attorneys. The 

Court will schedule any further proceedings, sealed or 

otherwise, at the appropriate time. Accordingly, it is hereby 

ORDERED that the Department of Justice shall forthwith move 

to unseal the relevant pleadings in United States v. Boehm, Case 

04-cr-003 (D. Alaska) and United States v. Stevens, and 

transcripts in United States v. Kott, No. 07-cr-056 (D. Alaska) 
8 

and United States v. Kohring, No. 07-cr-0055 (D. Alaska), or, by 

no later than December 5, 2011, shall inform this Court why the 

Department of Justice objects to such unsealing.4 It is further 

ORDERED that the Report shall not be disclosed during the 

pendency of these proceedings except as follows: 

1. Mr. Schuelke shall provide five copies of the Report 

to the Department of Justice, and two copies to each of the 

subjects of the Report and to Senator Stevens’s attorneys. 

Initially, the Department will receive unredacted copies of the 

Report; the copies provided to the subject attorneys and Senator 

Stevens’s attorneys will be redacted to protect the contents of 

                                                            

4

 The relevant sealed materials are as follows: In Boehm, 

(1) Gov’t Mot. in Limine to Limit Cross Examination of B. Tyree, 

filed July 26, 2004. (Note that this motion was filed publicly 

as an exhibit to the government’s opposition to defendant’s 

motion to dismiss in Kott, Sept. 26, 2011.) (2) Gov’t Reply in 

Supp. of Mot. in Limine, filed Aug. 17, 2004. (Note this was 

filed publicly (with redactions) in Boehm on Nov. 4, 2009.) 

(3) Judge Sedwick’s Decision on Mot. in Limine, Order, Sept. 14, 

2004. (4) Gov’t Opp’n to Def.’s Motion for Recons. of Decision 

re: Mot. in Limine, Oct. 6, 2004. (Note this was filed publicly 

(with redactions) in Boehm on Nov. 4, 2009.) In Kott, (1) Tr. 

of Sealed Hr.’g, Sept. 13, 2007. In Kohring, (1) Tr. of Sealed 

Hr.’g Oct. 25, 2007. In Stevens, (1) Gov’t Mot. in Limine to 

Exclude Inflammatory, Impermissible Cross Examination under Rule 

608(b), filed Aug. 14, 2008. (Note this motion was withdrawn 

during a hearing on Sept. 5, 2008.) (2) Def.’s Opp’n to Gov’t 

Rule 608(b) Motion, filed Aug. 25, 2008. (3) Def.’s Opp’n to 

Gov’t Mot. to Seal, filed Aug. 25, 2008. (4) Gov’t Reply in 

Supp. of Mot. to Seal and Request to Strike Def.’s Opp’n to Mot. 

in Limine to Exclude Inflammatory, Impermissible Cross, filed 

Sept. 2, 2008. Note that this Court unsealed all hearings in 

Stevens with the consent of the parties. See Order, Feb. 24, 

2009 (Doc. No. 323); see also Hr.’g Tr. 44:16 – 45:10 (Apr. 7, 

2009). 
9 

the still-sealed materials in Boehm, Kott, Kohring, and Stevens. 

Following the unsealing of some or all of those materials, Mr. 

Schuelke shall provide unredacted copies of the Report to the 

subject attorneys and Senator Stevens’s attorneys. 

2. Disclosure of the Report shall be limited to five 

individuals at the Department of Justice to be selected by the 

Department, two for each of the subjects of the Report to be 

selected by the subject, and two of Senator Stevens’s attorneys 

to be selected by his attorneys. Prior to disclosure of the 

Report to him or her, each individual who will have access to 

the Report shall sign a Confidentiality Agreement agreeing, 

inter alia, not to disclose or discuss the Report, or its 

contents, except as provided in the Confidentiality Agreement. 

The individuals to whom the Report shall be disclosed shall 

contact Mr. Schuelke to make arrangements to execute the 

Confidentiality Agreement and receive the Report. It is further 

ORDERED that pursuant to the Amended Protective Order, if 

the Department of Justice believes that any of the Material(s) 

or sealed pleadings or transcripts identified by Mr. Schuelke in 

his report should be withheld from the public, the Department of 

Justice shall file a motion under seal by no later than January 

6, 2012, specifically identifying the Material(s) and/or sealed 

pleadings and/or transcripts it believes should be withheld and 

the precise legal basis for the proposed withholding (i.e., the 
10 

basis for any privilege, whether the material is covered by 

Federal Rule of Criminal Procedure 6(e), etc.).5 In considering 

whether to file such a motion, the Court strongly encourages the 

Department of Justice to consider the very significant public 

interest in these proceedings, the fact that much of the 

information in the Material(s) and pleadings may already be 

known to the public and/or subject to future disclosure, the 

fact that the investigations and prosecutions related to these 

matters are now concluded, and the benefit of promptly bringing 

these regrettable events to closure, not just for the benefit of 

the public and the late Senator’s family, but for the Department 

of Justice, as well. It is further 

ORDERED that any other individual seeking to withhold from 

the public information contained in Mr. Schuelke’s Report shall 

file a motion under seal, and, if appropriate, any comments or 

                                                            

5

 The Amended Protective Order simply provides that if “any 

Materials [provided by the Department of Justice] are to be 

included in applications or submissions filed with or submitted 

to the Court, or disclosed during court proceedings, other than 

under seal, Mr. Schuelke will advise the Department of Justice 

five business days in advance of such submission or proposed 

disclosure so that, if deemed necessary, the Department of 

Justice has the opportunity to present its position on the 

public disclosure of such Materials to the Court for 

consideration.” Amended Protective Order at 2, In re Special 

Proceedings, No. 09-mc-198, (Dec. 13, 2009). The Court, 

however, has determined that it is appropriate to afford the 

Department of Justice the opportunity to review Mr. Schuelke’s 

Report in its entirety, rather than just be notified of 

Materials relied on in the report, and to give the Department of 

Justice substantially more time than the five days contemplated 

in the Amended Protective Order. 
11 

factual information regarding the Report, by no later than 

January 6, 2012, and shall provide the basis and nature of the 

relief sought. Any such person shall be mindful, however, that 

(1) the Court has already expressed its intent to make the 

results of Mr. Schuelke’s Report public to the greatest extent 

possible; (2) in response to previous efforts by the Stevens

prosecution team to withhold from the public information related 

to allegations of prosecutorial misconduct in the Stevens case, 

the Court has already addressed the significant constitutional 

protections providing public access to court proceedings under 

these or similar circumstances, see, e.g., Memorandum Opinion & 

Order 16-17, Stevens, No. 08-cr-231, (Dec. 19, 2008) at 16-17 

(“‘Under [the Globe Newspaper] test, the first amendment 

protects public access to an aspect of court proceedings if such 

access has historically been available, and serves an important 

function of monitoring prosecutorial or judicial misconduct.’” 

(emphasis added) (quoting Washington Post v. Robinson, 935 F.2d 

282, 288 (D.C. Cir. 1991))); (3) the identities of the subjects 

of this investigation have already been disclosed and therefore 

this situation is not analogous to a grand jury investigation in 

which the subject of the investigation is not identified to the 

public and the subject may be prejudiced if her identity is 

revealed – in fact, under these circumstances, some or all of 

the subjects may be prejudiced by withholding the results of Mr. 
12 

Schuelke’s Report from the public; (4) the matters Mr. Schuelke 

investigated stem from allegations and events that occurred in a 

highly-publicized trial of a sitting United States Senator and 

therefore the public interest in this matter is well-documented 

and not a matter of mere speculation; and (5) the public 

availability of the results of Mr. Schuelke’s Report will 

facilitate the public’s understanding of the Court’s rulings in 

the Stevens case and the constitutional and procedural 

requirements inherent in our criminal justice system, and will 

better enable the public to follow and place in context the 

developments in the Stevens case, all of which, again, were 

widely publicized at the time. See, e.g., In re North, 16 F.3d 

at 1240 (discussing factors to be weighed in determining whether 

to publicly release special prosecutor’s report). Accordingly, 

while the Court will give appropriate consideration to any legal 

argument to withhold Mr. Schuelke’s Report from the public, the 

Court notes that the “presumption of openness may be overcome 

only by an overriding interest based on findings that closure is 

essential to preserve higher values and is narrowly tailored to 

serve that interest.” Press-Enterprise Co. v. Superior Court, 

464 U.S. 501, 510 (1984). 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 November 21, 2011