Columbia University law professor Scott Horton makes that abundantly clear in a new article for American Lawyer magazine. Horton writes of a "victory-at-all-costs" attitude that seems to have permeated the PIS in recent years. I've seen evidence of that firsthand while studying transcripts from the Paul Minor trial.
Horton focuses initially on misconduct by PIS lawyers in the prosecution of former U.S. Senator Ted Stevens (R-AK). But Horton's piece has profound implications for a number of political prosecutions, including the Don Siegelman case in Alabama and the Paul Minor case in Mississippi.
The PIS once was a showcase operation, Horton writes, known for going after corrupt politicians and judges, while ensuring the integrity of the electoral process. But the PIS and its high-minded ideals somehow went off the tracks. Writes Horton:
Today, however, the public integrity section is reeling. Federal judges in Washington, D.C., and Maine have questioned the section's ethics and motivations. A special prosecutor is investigating whether cases brought by the section were politically motivated. The section is stonewalling a House Judiciary Committee investigation into its handling of a series of politically charged cases. And U.S. Supreme Court justice Antonin Scalia recently ridiculed "honest services fraud"--the legal theory that has emerged as the hallmark of public-integrity corruption prosecutions.
The Stevens conviction fell apart when an FBI whistleblower said prosecutors withheld evidence, that one of his colleagues had an "inappropriate relationship" with a star witness, and another prosecutor had accepted improper gratuities.
Horton is not the only high-profile reporter taking a critical look at the Public Integrity Section. Carrie Johnson, of The Washington Post, takes an indepth-look at how the Stevens case crumbled. The myriad problems with the Stevens case probably were not a surprise to those who have followed the PIS closely, Johnson reports:
Indeed, during the presidential transition period, incoming Justice Department officials heard complaints about whether career lawyers properly understood their obligations to hand over materials to criminal defendants, prompting Attorney General Eric H. Holder Jr. last week to call for additional training and oversight. The Stevens case, perhaps the starkest example of the troubles, brought the severity of the problem into the national spotlight.
Such problems hardly are limited to the Stevens case, Horton reports:
The whistle-blower's accusations in the Stevens case suggest a victory-at-all-costs attitude, which is difficult to reconcile with the section's ostensible purpose of upholding ethics. That attitude was also apparent in the case of former Alabama governor Don Siegelman, where the public integrity section suppressed another whistleblower's claims of jury tampering and political manipulation.
I saw that attitude in black and white while reviewing transcripts from the Paul Minor case. During arguments regarding jury instructions, federal prosecutors claimed that it was irrelevant that judges in underlying state cases had ruled correctly according to the facts and the law before them. The judges, and attorney Minor, still could be found to have committed criminal acts even if the cases had been correctly decided, the feds argued--and a corrupt federal judge (Henry Wingate) went along with them!
Federal prosecutors, led by representatives of the Public Integrity Section, had to know their argument was not correct under the law. Heck, I don't have the first day of law school behind me, and I looked up the correct law with just a little bit of effort.
PIS lawyers also tried to muddy the waters by arguing that information about Mississippi state bribery laws should be included in the jury instructions--and again, the judge went along with them. They had to know that state bribery laws were not an issue in the Minor case. But they made the argument anyway. And I suspect that helped confuse the jury enough that it convicted three innocent men--Minor and former state judges Wes Teel and John Whitfield.
This is just one example of the mess new Attorney General Eric Holder inherited with the Public Integrity Section. What will he do about it? Horton addresses that question:
How will Attorney General Eric Holder, who previously held a position in the public integrity section ["Making History," June 2008], deal with this dilemma? He has given no public indication so far, but in the confirmation process a number of congressional leaders expressed their concern about the charges surrounding the handling of public integrity cases. The public integrity section has had five heads in the last six years, and Holder is said to be considering a sixth.
As it stands now, however, the question Judge Sullivan asked in the Stevens case is still ringing in Washington, D.C.: "How does the court have confidence that the public integrity section has public integrity?"