The Justice Department's 'systematic concealment" of evidence that might have helped the late Sen. Ted Stevens, R-Alaska, defend himself in a corruption case will get a fresh airing Wednesday, when special prosecutor Henry Schuelke offers Senate testimony about his blistering 500-page report.
He's due to be before the Senate Judiciary Committee at 10 a.m. ET.
After two years of investigation, at a price tag that's still not public, Schuelke earlier this month cited two Alaska based federal prosecutors — Joseph Bottini and James Goeke — for repeatedly violating their legal obligations to share evidence that could have equipped Stevens with the tools to discredit the main witness against him.
But lawyers following the case say the lengthy investigation raised but didn't answer a tantalizing issue: whether senior managers in the elite public integrity unit at Justice should have raised alarms about another scandal involving that witness, Bill Allen, to Alaska state House officials convicted in the same wide-ranging corruption probe that snared Stevens.
The report and other documents suggest that the head of the Justice Department's public integrity section, William Welch, identified major problems with Allen's credibility in the middle of the Stevens trial in October 2008, but he apparently didn't notify Victor Kohring and Pete Kott, two Alaska state House officials who had already been convicted in part based on testimony from Bill Allen.
At issue are allegations that Allen, a powerful executive at the oil services firm Veco, had himself broken the law by carrying on a relationship with a 15-year-ld prostitute, then asking her to lie about it under oath after he faced a blackmail plot. The young woman, Bambi Tyree, told the FBI about the episode in July 2004, after she was arrested on other charges.
The court filings that contained her account were sealed, meaning no one else could see them — including Kott and Kohring, the Alaska state lawmakers. But her initial account to authorities was memorialized in FBI notes buried in government files.
As the 2008 trial of Sen. Stevens approached, his lawyers began to ask the Justice Department about Allen's relationships with young women and rumors that he had tried to get one of them to lie. Prosecutors responded in a September 2008 letter reviewed by their supervisors in the public integrity unit that "the government conducted a thorough investigation and was unable to find any evidence to support it."
In his report, special investigator Schuelke called these "astonishing misstatements" and pointed out that Allen's FBI handler said allegations of sexual improprieties might have caused Allen to become "unglued" on the witness stand if he was questioned about them — underscoring how they could have helped defense attorneys challenge Allen's credibility.
The team that brought Stevens to trial debated how much to say about Allen's "shady background," and the special prosecutor's report says the two Alaska-based prosecutors he cited for misconduct apparently had pushed for more disclosure, even in general terms. But the report says the team ultimately did not disclose the perjury allegation.
William Welch, who led the public integrity unit at the time of the Stevens trial, told the special investigator that he believed there weren't any damaging FBI notes to turn over until mid October 2008, when he saw the Alaska police department file which contained the FBI form memorializing Tyree's claims.
Welch told investigators he "became quite upset ... I became upset because I had been under the belief there was no information suggesting that the false affidavit was as a result of any prompting by Bill Allen," according to the special prosecutor's report.
Welch told investigators he went to the office of his deputy Ray Hulser to discuss the issue. "I said to him how is this (expletive) ambiguous." The investigators asked whether Welch had disclosed it to other members of the trial team or higher ups at Justice and he said no.
In fact, the public integrity unit led by Welch continued to fight efforts by Kott and Kohring — the two Alaska state lawmakers — to appeal their convictions. And in the months that followed, the same Justice Department unit also opposed the lawmakers' bid to win release from prison on bond while their appeals moved through the courts. Welch's name appears on several of the legal pleadings in the case, as do other lawyers whose conduct was probed by the special prosecutor.
Sheryl Gordon McCloud, a lawyer for one of the Alaska state lawmakers, told NPR that she only got 4,500 pages of previously undisclosed evidence from the Justice Department after the trial, after the conviction, and after the first appeal. "Everything that was said in the Ted Stevens report about the withholding of Bambi Tyree stuff is also true about," her client, McCloud said.
A federal appeals court ultimately reversed both of those convictions, in part because prosecutors had suppressed information including the perjury allegations. Both former state lawmakers pleaded guilty in 2011 and were sentenced to time served.
The special investigators' report and Welch's lawyers say he directed his team to disclose important evidence to the defense whenever it came to his attention. "Mr. Welch's practice throughout his career has been and continues to be to provide defendants with the fullest possible discovery," his attorneys wrote.
William Taylor, a lawyer for Welch, told NPR that Welch didn't think he had to disclose the information in 2008 because a trial judge had barred the issue of sexual impropriety from coming up in the earlier Alaska state lawmaker case — so it had "no application" there. The issue of possible perjury never emerged until after the state lawmakers' conviction. Other Justice Department lawyers handled those appeals. But Welch's name continued to appear on the court filings alongside theirs for months.
Stevens lost his bid for reelection in 2008. Voting came just after he was convicted on corruption charges — a conviction that was later abandoned by the Justice Department. The senator died in August 2010, along with four other people, in the crash of a small plane that was taking them on a fishing trip in Alaska. He was 86.