Rollcall reported yesterday:
"FBI Director James Comey told a Senate subcommittee Thursday that an
agent faced discipline for conduct related to the investigation of late
Sen. Ted Stevens.
Comey was ready for a line of questioning from Republican Sen. Lisa
Murkowski about the FBI’s conduct in the probe of her former Alaska
colleague. Murkowski asked for an update from 2012 on allegations made
by FBI whistleblower Special Agent Chad Joy about inappropriate conduct
by a fellow agent.
“I did learn about this in the last week and get briefed in detail.
The Office of Professional Responsibility (OPR) inside FBI did
investigate in response and identified an agent who had engaged in
improper conduct there, and the agent was severely disciplined,” Comey
said. “The discipline has been imposed.”
Comey was sworn-in as FBI director last September, succeeding
longtime director Robert S. Mueller. Mueller previously faced
questioning at the Appropriations Subcommittee on
Commerce-Justice-Science about the Stevens case from both Murkowski and
then-Sen. Kay Bailey Hutchison, R-Texas."
I attended and blogged the three trials in Anchorage. When Chad Joy's so called "Whistle-blowing" document was released,
I reviewed it in great detail. As I saw it, the charges could be broken down into two categories:
1. How Agent Kepner ran the investigation
2. Misconduct involving the handling of information at the trial
I found the complaints about the investigation to be about subjective issues of administrative discretion (things like how close do you get to a source and what information do you tell a source) and not about breaking any clear laws or regulations. [In fact, he never cites any laws or regulations or policies that were violated.]
I would also note that there was nothing in Joy's memo that showed concern that the behavior might result in injustice for any of the defendants. The 'victim' of her alleged misbehavior was Chad Joy himself. He complained she told witnesses personal information about him and there was a sense that he was worried things would go bad and he didn't want to be blamed.
I had no way to judge the allegation regarding what happened with information at the trial, but I was struck that he provided few specifics about what he thought had been done wrong. The only specific details he gave were about a meeting that Kepner had with their key witness in a hotel room which he used to suggest they were having an affair. I discussed that allegation in depth in
this post.
And here's a
post I wrote in November 2010 trying to understand the general context of the investigation itself.
I mention all this because the media coverage has tended to jump all over Kepner and I see this as far more nuanced. After all, she's the agent who set up the surveillance of Bill Allen's hotel room that revealed how he was managing key legislators' votes regarding changing oil taxes. The reporting doesn't ring true with my impressions of the agent I had a few opportunities to talk to in some depth.
I don't know what happened. I recognize that that the FBI and prosecutors in general often have extraordinary power over most defendants and they do a lot of stuff we don't know about to intimidate suspects into cooperating. I also know that getting information about white collar crime is extremely difficult and without insider informants almost impossible. And whenever you use informants, lots of tricky issues arise. And there was some mishandling of evidence.
But the Ted Stevens team had the money and brainpower to take on the FBI and the DOJ and while they lost in the trial, they did 'win' in after trial maneuvering.
Andrew Longstreth quotes Jeffrey Toobin in an
The American Law article about two young Jersey attorneys beating the law firm that defended Ted Stevens. He writes about Brendan Sullivan:
In court, however, Sullivan is often silent during pretrial proceedings.
According to a story repeated in legal circles, a judge once asked
Sullivan about his lack of involvement during a hearing. Sullivan
pointed at the jury box and said: "I work when they work." Arguing
pretrial motions is often the job of his partner, Barry Simon.
Longstreth continues:
"There are no school yard fights," says Toobin, who was the junior
member on the North prosecution team, about Simon. "Every battle is
nuclear warfare. Everything is prosecutorial misconduct." (Sullivan
declined a request to speak for this article. Simon did not return
calls.)
Everything is prosecutorial misconduct. That's part of the Sullivan strategy. The team is good at defending high profile defendants, for very large amounts of money, and forcing the prosecution to make errors. That's no excuse, but it does shade the story differently than most coverage.
It's possible that the main offense Kepner committed was to catch Republican legislators, particularly Stevens. And to interrupt the oil companies' influence in Juneau. The infractions Stevens committed are dismissed as minor given all the pork he brought to so many Alaskans, but Kepner's infractions are used to define her and all her accomplishments are dismissed.
Cliff Groh, who attended the Stevens trial in DC and believed that Stevens would have been convicted without the evidence that was tainted, in
one post cites interviews with jurors who found Stevens not credible. It wasn't just the recording of Stevens telling Bill Allen
"that the worst they could expect was 'a little time in jail.'”
I think there's a much bigger story behind all this. With the prosecutions behind us and Kepner and others in the prosecution team disciplined, the oil companies are once again as cozy with Alaska's governor and legislators as they were before this diversion that Agent Kepner started..
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