In a January 3, 2011 New Yorker piece, "Casualties of Justice," regarding the prosecution of now-deceased Sen. Ted Stevens (R-AK), Jeffrey Toobin calls the case a "profoundly unjust use of government power against an individual." While there is no argument that the Department of Justice spectacularly bungled the case, facts and evidence untainted by prosecutorial misconduct categorically prove the late senator's guilt. This is not a case in which the full weight of the law was brought against an innocent man. Rather, a guilty one walked away from felony conviction because the system worked. The reverberations from this case are still being felt today as the Department hesitates to bring cases against other members of Congress.
In July 2008, DOJ charged Sen. Stevens with making false statements over a seven-year period on his personal financial disclosure forms. The indictment alleged the senator had failed to disclose hundreds of thousands of dollars in gifts, including major renovations to his home provided by Alaskan oil services company Veco Corporation and its CEO Bill Allen, as well as other items such as furniture, a grill and a sculpture.
During the trial, Sen. Stevens' lawyer, Brendan Sullivan -- well-known for arguing in criminal cases that the government has violated its duty to disclose information to the defense -- repeatedly asked that the case be thrown out over such issues. Although the presiding judge, Emmett Sullivan (no relation), agreed that prosecutors had, in some instances, violated their obligations, he excluded some evidence but declined to dismiss the case and a jury convicted the senator of all charges. Five weeks later, an FBI agent alleged additional prosecutorial misconduct, and DOJ brought in a whole new prosecutorial team to salvage the case.
Mr. Toobin suggests the entire case hinged on the testimony of Mr. Allen, a cooperating witness with his own criminal problems. In Mr. Toobin's view, the jury convicted Sen. Stevens based only on Mr. Allen's testimony, testimony that was inconsistent with an earlier government interview of Mr. Allen, never turned over to the defense. The discovery of this undisclosed interview by the new prosecution team was the final straw, leading the Department of Justice to drop the hopelessly botched case and Judge Sullivan to order his own investigation of the prosecutors' conduct.
The disgraceful comportment of the government does not mean, however, that Sen. Stevens was unfairly prosecuted. The case was not, as Mr. Toobin asserts "dubious from the outset." Instead, the facts -- unchanged by the exculpatory evidence the prosecution unquestionably should have turned over -- show Sen. Stevens was clearly guilty.
For example, Sen. Stevens never disclosed a $2,700 massage chair Alaskan restaurant owner Bob Persons had delivered to the senator's Washington home in 2001. Even though Sen. Stevens kept the chair and emailed Mr. Persons to say how much he enjoyed it, at trial Sen. Stevens insisted he didn't need to disclose it as a gift because Mr. Persons had merely loaned it to him. As the prosecutor asked: "What kind of loan is that?"
Further, Sen. Stevens testified at trial he believed the $160,000 his wife paid to construction companies covered all the renovations on his Alaska home, meaning there were no gifts to disclose. The senator denied knowing that Veco and Mr. Allen spent tens of thousands more in labor and material costs, even though the architect and some construction workers on the project were Veco employees, Mr. Allen handled the bills, Sen. Stevens never received bills for work he knew had been done, and he repeatedly thanked Mr. Allen for the renovation work.
Sen. Stevens also claimed he did not disclose several other items he received from Mr. Allen and Veco, including a built-in Viking grill, because he didn't want them, and said he didn't need to report a $29,000 fish sculpture that sat on his porch because it actually was a gift to his foundation, not to him.
All told, the facts developed at trial demonstrate Sen. Stevens received a number of gifts, none of which he reported on his financial disclosure reports as required by law. While we can't know definitively whether a jury would have returned a not guilty verdict had the defense had access to all of the exculpatory material, after the case was dismissed several jurors reported believing the senator guilty of at least some counts, despite the prosecutorial misconduct.
DOJ's handling of the case was appalling, whether due to malfeasance or incompetence. Nevertheless, the department's blunders hardly exonerate Sen. Stevens. Prosecution of the senator, while flawed in execution, was justified by the evidence. Describing the case as a "profoundly unjust use of government power" is simply wrong.
Unfortunately, the fall-out from the case is still being felt two years later. The Department's once vaunted Public Integrity Section has yet to recover its reputation and the government shies away from federal public corruption probes. Most recently, DOJ declined to prosecute Sen. John Ensign (R-NV) despite abundant evidence he conspired to help his former chief of staff violate the post-employment Senate lobbying ban. So another guilty senator walks away.