A federal judge revealed yesterday that a court-appointed investigator has concluded that the Justice Department's failed criminal case against the late Alaska Senator Ted Stevens was,
. . . 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.
The conclusions came as part of an order by Judge Emmet G. Sullivan (judge in the Stevens case) revealing his intent to make the full report public after the attorneys and Justice Department have had a chance to review it.
Leading the Stevens team at DOJ was William Welch II, who headed - ironically - the Public Integrity Section. Welch was reassigned after the allegations of prosecutorial misconduct effectively tanked the Stevens case, but mysteriously resurfaced as the Justice Department's leading prosecutor in the Obama administration's war on whistleblowers - the record-breaking number of Espionage Act prosecutions targeting so-called "leakers," who are more often than not whistleblowers.
Marcy Wheeler asks the important question:
Why Is William Welch, Whose Team Is Accused of Intentional Prosecutorial Misconduct, Still at DOJ?
My follow-up question is:
Why has he been handed the high-profile portfolio of ill-fated Espionage Act prosecutions against so-called "leakers"?
The prosecutorial abuses in the Stevens case are eerily similar to Welch's questionable tactics as lead prosecutor in the now-defunct case against National Security Agency (NSA) whistleblower Thomas Drake.
Welch proved he was up to his old tricks during the Drake case, keeping potentially exculpatory evidence from Drake's defense team for months after the Indictment was handed down. For over six months, the Justice Department failed to produce evidence that one of the allegedly classified documents Drake was charged with improperly retaining was declassified two months after the indictment. Welch waited ten months to turn over evidence that another document that formed the basis of an Espionage Act charge against Drake had been - in the words of Drake's criminal defense team -
. . . published as 'unclassified' and had never been deemed 'classified' until after it was recovered from Mr. Drake's home.
(emphasis added).
Welch also told Drake's criminal defense team that potentially exculpatory evidence relating to Drake's years-long cooperation with a Department of Defense Inspector General (DoD IG) investigation had been destroyed. Drake’s criminal defense team explained that the destroyed documents were,
essential to Mr. Drake’s defense and contain information tending to show his innocence, (citation omitted), [and that] the government was on notice as early as October 2006, and as recently as August 2007, that the DOD-IG audit was directly related to a criminal investigation, and it should have ordered retention of the DOD-IG audit documents.
Welch is also handling the Espionage Act prosecution of former Central Intelligence Agency (CIA) employee Jeffrey Sterling. In the Sterling case, the court has repeatedly rebuked Welch's efforts to subpoena Pulitzer Prize-winning journalist Jim Risen to testify about his sources.
As for accountability for Welch's role in the Stevens debacle, the independent investigator's report does not recommend a criminal charge for the Justice Department attorneys. But, the investigator does not opine on whether the attorneys should instead be charged with obstruction of justice. It is worth noting that "Obstruction of Justice" was one of the charges the Justice Department had no problem lobbing against whistleblower Drake. The Justice Department dropped that charge - along with all felony charges - when the case against Drake collapsed in spectacular fashion days before trial.
Welch's conduct in the Stevens case and shady, overzealous tactics in commanding Obama's war on whistleblowers are inexcusable. We deserve better from the Justice Department.