DOJ Motion to Dismiss Sen. Stevens Indictment: Statement of J. Gerald Hebert, Campaign Legal Center Executive Director

Attorney General Eric Holder's announcement yesterday that, after reviewing the record and based on the totality of circumstances, he was going to seek dismissal of the original indictment against convicted former Senator Ted Stevens (R-AK) raises serious questions and concerns.

The motion filed by the Government in the case today and other allegations of prosecutorial misconduct in the case are gravely serious and must be fully addressed. But the outright dismissal of an indictment rather than agreeing to a new trial is such an extreme measure that it warrants additional explanation. What is it about the information that now justifies outright dismissal of the indictment with prejudice?

Today, the Government filed a motion in the U.S. District Court for the District of Columbia to dismiss the indictment with prejudice. That filing details more background on the Attorney General's announcement. The Government notes in its filing that there were interview notes of a key witness that were not provided to Senator Stevens or his counsel. Such notes clearly should have been provided, and as the Government correctly notes, "[h]is information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury." The Government also observes, correctly in my view, that "Given the facts of this particular case, the Government believes that granting a new trial is in the interest of justice. See Fed. R. Crim. P. 33(a)."

But the Government's filing goes on to say that "[t]he Government has further determined that, based on the totality of circumstances and in the interest of justice, it will not seek a new trial. Accordingly, pursuant to Fed. R. Crim. P. 48(a), the Government moves to set aside the verdict and dismiss the indictment with prejudice."

Why? What other circumstances are there that would justify a dismissal of an indictment after a conviction, especially in a case that is one of the most high profile public corruption trials in years? The withheld evidence undoubtedly would have been of great use to defense counsel at trial. Defense counsel could have challenged the witness's truthfulness by pointing out the inconsistency between his trial testimony and the statements he made to prosecutors when interviewed. Perhaps it might have resulted in an acquittal of the defendant. But a prior inconsistent statement, even of a key witness, is likely not the only reason that our nation's chief law enforcement officer would authorize prosecutors to seek a dismissal of an indictment after conviction, especially in a high profile case like this.

Perhaps the totality of circumstances here includes the fact that Senator Stevens is out of office and he's 85 years old. But it must be remembered that he was prepared (if he won re-election) to serve another 6-year term. And he was prepared to reap the benefits and rewards of a U.S. Senator for six more years even in the face of compelling evidence that he made false statements and got caught accepting gratuities that he failed to report. Perhaps at the April 7 hearing, we'll know more about the Government's decision.

I cannot say that I disagree with the decision to dismiss the indictment. The Attorney General has all the information in front of him and is in the best position to make that judgment of prosecutorial discretion. But additional explanation would be helpful.

In any event, one thing we can all agree on is this: the prosecutorial misconduct in this case was very, very serious and should be thoroughly investigated. AG Holder has said that the Office of Professional responsibility will conduct such investigation and presumably, appropriate action will be taken. The Department's filing today informs the trial judge, who was rightfully outraged by the prosecution's misconduct, that he will be informed of the results of that investigation and the actions taken. Presumably, the state bar for each of the prosecutors will also be informed of the results as well.

We also need more from the Attorney General than what we have received thus far. We need his assurances that the public integrity section of the Department of Justice's Criminal Division is now being supervised to a degree that pending investigations ( e.g ., arising out of the Abramoff scandal, Rep. Jefferson, Rep. Doolittle, etc.) are not at risk of being thrown out for similar prosecutorial misconduct.