- The Washington Times - Monday, November 10, 2008

Above the Law column:

With Sen. Ted Stevens‘ re-election bid still too close to call, the senator’s defenders are determined to turn the tables on his prosecution and criminal conviction last month in federal court in Washington.

While some senators are calling for his resignation, Mr. Stevens’ defense attorneys are demanding an investigation of prosecutors who helped convict the Alaska Republican on Oct. 27 of lying on Senate financial disclosure forms about home renovations and gifts he received from a corporate donor.

If the Justice Department agrees to the request, the inquest would be one of several investigations involving accusations of prosecutorial misconduct.

The defense team from the law firm Williams & Connolly called misconduct by the prosecutors “repeated, severe, intentional and inexcusable” in a letter to U.S. Attorney General Michael B. Mukasey.

It accuses prosecutors of concealing evidence that would tend to exonerate Mr. Stevens and of presenting false evidence.

“Senator Stevens’ trial was irretrievably tainted by the prosecution team’s zeal to convict a high-profile but innocent defendant,” the letter said.

If the defense attorneys’ allegations are true, prosecutors could have committed “selective prosecution,” which refers to singling someone out for prosecution for personal or political reasons, rather than because they are criminals.

Selective prosecution is a basis for overturning convictions. It violates the Constitution’s guarantee of “equal protection” - more commonly known as blind justice.

It is a core issue in the government’s case against former Alabama Gov. Don Siegelman, who was convicted of bid-rigging on government contracts.

The House Judiciary Committee is investigating whether his prosecution was motivated by revenge because Mr. Siegelman is a Democrat.

Other government investigations are reviewing possible political motives behind firings of U.S. attorneys, a conviction that was overturned on appeal of a Wisconsin state employee on federal corruption charges and charges against a former Mississippi State Supreme Court justice.

Mr. Stevens told his constituents in Alaska during a debate with his Democratic rival that he was a victim of a “massive abuse of government power.”

He still is awaiting sentencing but has vowed to press on with appeals.

If prosecutors had any hidden motives for prosecuting the Senate’s longest-serving Republican, “Some of this may be sorted out in appeal,” said Carl Tobias, a University of Richmond School of Law professor who writes on federal courts.

Mr. Tobias, former counsel to a Senate Judiciary subcommittee, is skeptical of the hidden motives theory.

“My sense of the Justice Department is that it’s more professional than that,” Mr. Tobias said.

However, U.S. District Judge Emmet G. Sullivan was harshly critical of the government attorneys’ professionalism during the trial, particularly when they withheld evidence from the defense team that supported Mr. Stevens’ case.

Court procedures require prosecutors to turn over their evidence to defense attorneys before trial.

The evidence included statements by oil industry contractor Bill Allen, a key prosecution witness, who said he believed Mr. Stevens would have paid for renovations to his home in Girdwood, Alaska, if Mr. Allen had billed him.

They blamed their oversights on “human error.”

Judge Sullivan responded, “It strikes me that this was probably intentional. I find it unbelievable that this was just an error.”

He considered declaring a mistrial, but instead told the jury about the prosecutors’ misdeeds.

“How does the court have any confidence that the Public Integrity Section [of the Justice Department] has any integrity?” Judge Sullivan asked prosecutors angrily. The Public Integrity Section prosecutes government officials on corruption charges.

Prosecutors say their only motivation in the prosecution was to ensure good government leadership.

In a press conference outside U.S. District Court for the District of Columbia, Justice Department criminal division head Matthew Friedrich said, “This investigation continues, as does our commitment to holding elected officials accountable when they violate our laws.”

Unlike Mr. Siegelman, the former Alabama governor, Mr. Stevens cannot blame his prosecution on his party affiliation.

Mr. Stevens is a Republican who was indicted during the presidency of a Republican.

Moreover, other Republicans have been investigated on corruption charges.

Most recently, they included Nevada Gov. Jim Gibbons, who the Justice Department investigated for reportedly accepting gifts from a software company that won military contracts. The 18-month investigation ended this month with no indictment.

• Above the Law runs on Mondays. Call Tom Ramstack at 202/636-3180 or e-mail Tom Ramstack.

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