>> i think what occurred with this case in a number of instances was in violation of an obligation imposed by the courts. >> right. thus? >> interpreting the constitution and so using your term broadly, i would have to say it was illegal. >> okay. so now -- okay, let's talk about what you were talking about in terms of brady violations and what to do about this. >> yes. >> you're talking about maybe taking out the material part and just say anything is exculpatory, a prosecutor would have to reveal. is there any kind of possibility, and i understand

that the judiciary, the justice department doesn't want to do that because they're afraid that it will scare off witnesses who think that anything that they've ever done will have to be you know, witnessed against a defendant, that anything negative about them will be exposed in court and make people much more reluctant to testify in court? i mean, that's one of -- that's one of the fears of the justice department, is it not? >> it is. and that's a legitimate concern. >> okay. so, instead of rewriting the law so that the prosecutor has to reveal all exculpatory, anything that could possibly be exculpatory, even if in their opinion it isn't material, is there any kind of process that could be set up as a reform for

this system where a prosecutor could get an advisory opinion about -- about an independent advisory opinion about evidence that presents a close call under brady? >> when you say "independent," you mean outside of the department of justice? because the department of justice has an office, the professional responsibility advisory office known as preo which is there to entertain questions about the application of the disciplinary rules of the bar to the conduct of the prosecutors. as a matter of fact. >> in other words, if a prosecutor had a question about a brady matter, is there either that board or -- i don't think -- i guess you can't go to

the judge? >> you can. >> can you go to the judge? >> you can. if i had an issue where i, again, a federal prosecutor and i said to myself, hmm, i've got this piece of evidence here. i'm not so sure whether i have to disclose this. well, first of all, i was taught when i was a young assistant u.s. attorney, if i had to think about that for more than ten seconds, turn it over. but if i didn't, i could go to the trial judge ex parte, make a -- >> you can do an ex parte -- >> make a submission to the judge in camera, say this is what i have. i don't know whether i'm obligated to turn this over or not. there are reasons in my view why perhaps i should, but there are reasons why i should not. you, your honor, decide. you're the neutral magistrate.

>> that's kind of what i meant. you can go to the judge? >> yes, that's available. although as you might well imagine -- >> because, pardon me. i'm not a lawyer. i just played one in a sketch on tv. >> and i think you did a pretty good job. >> thank you, thank you. so that kind of ex parte meeting with the judge is cool, it's fine, it's okay? it's kosher? >> it is. all of the above. >> okay. so maybe in the law, if we're changing the law here, there could -- and the justice department has a legitimate meaningful objection to all exculpatory evidence, even if it

doesn't seem material having to be disclosed to the defense, then perhaps there could be some process written into the law saying if you have any question, you got to go to the judge and if you didn't go to the judge on something, you got a big problem. >> yes, yes, that could be done. >> okay. thank you. i'm done with my time. thank you. >> thank you. senator durbin? >> thank you very much, mr. chairman. mr. schuelke, thank you. >> good morning, senator. >> thank you. thank you for your testimony. judge sullivan stated, and i quote, prosecutorial misconduct that permeated the proceedings of this case were to degree an extent he had not seen in 25 years on the bench. i assume that's why attorney general holder took the commendable, but rare step of seeking dismissal in the case and not attempting to retry it. but there are some exceptional reasons why we are meeting today. this was a high profile case, involving a united states senator, one of our colleagues.

that senator had some of the best legal talent on his defense team, experienced attorneys from a prominent washington firm. an extremely conscientious judge preside over this case and took the rare step of appointing an independent investigator, yourself, who issued a 500-page report, and there was an fbi agent in the case who allegedly spoke out as a whistle-blower and raised allegations of misconduct by the government's prosecutorial team. in short, this was the furthest thing from the everyday criminal trial world even as we meet. what is at stake, though, the principle of law, the constitutional principle, applies equally to cases of celebrity and notoriety as it does to those that are commonplace by comparable standards. when i heard about your report

came to understand what your conclusions were, i challenged the department of justice and said now what? now that you know this has taken place, what can you do? what will you do to make certain that it's less likely in the future? and the answer was we've learned our lesson. pardon my skepticism. but i'm not sure, because of what you referred to earlier as contest living that we will ever avoid that inclination of attorneys in court, and i was one many years ago, to do their darnedest to proceed to the outcome they're looking for. so in my question to you, i have too. one relates to what senator franken asked you. if it happened in this case by the prosecutors was illegal, was it the commission of a crime, failing to disclose what should have been disclosed in evidence under the brady rule?

secondly, if we are really serious about avoiding this in the future, don't we have to go further than to trust the instincts of the department of justice and prosecutors across america? don't we have to enshrine in the law some basic protection of the criminal defendant when it comes to this disclosure? a bill has been introduced by one of our colleagues. i'm not sure that you're aware of it. >> i am. >> she talks about exceptions when it comes to this disclosure relating to witness safety, national security and the like. but it really puts a standard that goes to the case you cited, safavian, i think? >> yes, sir. >> and basically assume everything is material until proven otherwise or the court notes otherwise. so if you would address those two issue. one, if illegal, what specific crime did these prosecutors commit? and secondly, if there is a lesson to be learned here,

should this lesson be written into the law so that the faceless criminal defendant who may not get a senate judiciary committee hearing has the same protection. >> first, senator, there have been -- as my report describes, had judge sullivan issued a clear and unequivocal order that the prosecutors produce all brady and giglio material, there would have been a crime committed, criminal contempt with respect to those episodes described in our report as to which we concluded the conduct was intentional. beyond that, there's footnote in our report which says that we

offer no opinion as to whether or not a prosecution or obstruction of justice might lie, because that's not within my prerogative. as a matter of fact, the separation of powers doctrine would preclude a lawyer investigator appointed by the court from bringing such a charge. >> i'm sorry to interrupt you, but what you're saying is unless there is an express violation of a court order, that you do not believe a prosecution for obstruction of justice would lie? >> no, that's not what i'm saying. >> please clarify it. >> in the absence of express order of prosecution for criminal contempt will not lie. whether or not the self-same conduct violates the obstruction of justice statutes, and whether under the u.s. attorney's manual

of prosecution for that offense on this conduct would be appropriate is not a decision for me to make. >> i'm going beyond my time. but if you could address the second part, whether we should seriously consider creating a statute which specifies the protection which you have articulated was denied senator stevens and should be given to all criminal defendants under brady? >> i believe you should consider legislation which eliminates, as i have explained earlier, the so-called materiality requirement. i know that senator murkowski's bill does that. it does a lot of other things as well about which i'm not prepared to express a view at this moment. the department -- i know because i saw their statement yesterday -- has submitted to

the committee a lengthy statement describing what they have done in the wake of the stevens case, which is quite impressive in my view. they explained as well, as i said earlier that as a matter of policy, their prosecutors are instructed not to make distinctions based on the materiality issue. that policy has a disclaimer. this does not have the force of law. invests no rights in anyone. i understand why that's so with respect to the policy. my question is, if the department believes that there should be no pretrial materiality standard -- because they're telling their prosecutor now to do, what is the principled reason for opposing legislation that does just that.

>> thank you very much. >> thank you, chairman. i having been both the united states attorney and the attorney general for my state, tend to lean towards an open file rule. i can that there are obvious exceptions to the open file rule, witness safety being preeminent. very often these are particularly dangerous individuals who would like nothing more than to murder witnesses. national security would be another important consideration. not disclosing or disrupting or impeding an ongoing investigation would be another,

and a general protection against unwarranted invasions of individual's privacy would all seem to make sense and would all seem to be subject to a reasonable check and balance if they were proceeding with the judge ex parte where it was appropriate in a national witness safety matter, and it would sort of put the prosecution through its paces. i think with those protections, less is likely to go wrong than in prosecutions that are based on a hide the ball strategy, which i think is the wrong way to go about making cases. so i'm speaking in part to you, mr. schuelke, but i'm speaking really through you to the department to urge them to take a serious look at this, not just

to push back because it's new or different, but to see what systematically can be done about this. and there are two messages that i have, as somebody who was in the department and i consider myself a friend of it. i don't think there is a place in the government that i admire more than the department of justice. but that doesn't mean there's not room for improvement. a and i worry sometimes that in addition to not necessarily having the rule be right, when something does go wrong, it appears that there are times when there can be a bit of a lean, shall we say, l-e-a-n, in favor of the department attorneys who violated, assuming that they did, violated the provisions.

and i just want to raise something that i've raised over and over again with the department and take this opportunity to flag it yet ag n again. this goes back to the office of legal council opinions on torture in which the office of legal council failed to cite a circuit court decision, circuit court of appeals of the united states that looked exactly at the time of conduct that was involved, waterboarding, described it very clearly, and described it- i don't remember my count right now, but 10 or 11 times in the decision as torture. and the olc opinions never mention the case. they go on for pages, for dozens of pages. they never mention the case. what concerns me about that is that when the department went back to look at it, the

investigation concluded with a memorandum by -- i think he is retired from the department now, but david margolis, the margolis memo, which said that the lawyers at the office of legal counsel weren't to be held to the standard that a regular ordinary ham and egg lawyer hauling the files under his arm into the district court is in terms of the standard acquired for candor to the tribunal. so, again, i'm speaking through, you, mr. schuelke, to the department. but that continues to leave a sour taste with me. it does not make sense to me that the departments at the office -- that the department lawyers at the office of legal counsel, which is probably the highest and most talented part

of the legal profession outside -- in government, outside of the supreme court itself should not have to meet the standard of the day to day work and work a day trial lawyer appearing before a judge. particularly where the process for the candor of the tribunal standard is a pretty open one. there are checks on it. there is the other counsel who can say your honor, he forgot to tell you the case on point, or the judge and his clerk who look it up and come back to the lawyer and say counselor, how could you not have told me about the case on point that comes out of the court of appeals? the olc doesn't operate that way. it's much more secretive, particularly when it's a classified hearing. so i think if anything, the standard for olc lawyers should be higher than the standard for a regular work a day lawyer going before a tribunal, not

lower. and i'm going to continue to press on that margolis memo, because i think it is wrong to hold those department lawyers to a lower standard than work a day lawyers outside of the department. and i flag that because i think it is very important that the department make clear not only that it gets the rules right, and follows the rules, but also when there are violations, it is clear that there is no hesitancy to come down on people who have violated those very important rules. so mr. chairman, that's more in the nature of a statement than a question for mr. schuelke, but i wanted to make sure that those points were clear to the department of justice and my concerns about them were clear to the department of justice, which i'll conclude by saying, again, is perhaps the organization in the united states government that i am proudest of. i think it is a wonderful organization, and i don't want to gain say that with these two very specific concerns.

thank you, mr. chairman. >> thank you. you have further questions? we'll wrap up rather quickly here. you concluded that prosecutors intentionally withheld the information. did you give consideration to the evidence that they sought approval to disclose, the evidence but were told not to by the leadership of the republican integrity sections of the department of justice? >> i did. >> thank you. and does the leadership of the public integrity section bear some responsibility for what happened in the stevens case? >> it bears responsibility for failing its supervisory responsibility to know all of the operative facts before they pass on a decision. >> and what did you conclude

about the role of the criminal division as then acting assistant attorney general matthew friedrick in terms of managing the case, including what you suggested was the department's failure in your judgment to satisfy discovery obligations? >> i think matthew friedrick -- and i say so in the report, quite sensibly and understandably took an interest in this high visibility prosecution of a senior sitting united states senator. it would in my judgment be -- >> and a member of the same party as the -- >> the administration. >> the administration that was prosecuting. >> indeed. so in my it would be

completely counterintuitive if the assistant attorney general for the criminal division hadn't taken a serious interest in the matter. i think, however, as we also say, that paradoxically that sensible interest to supervise and make sure things were done right put in place a prosecutor to serve as lead counsel whom he thought was better equipped than the existing team of prosecutors, contributed to the morale problems, contributed to brendan morris having decided because thut and created all these morale problems, i don't want to make anybody any more unhappy. so i'm going to make myself as little as possible, as she put it. and i'm just going to do my job. i'm going to cross-examine witnesses. i'm going to make closing arguments. and i'm going to trust what the rest of them tell me about what

the state of discovery is. >> well, i have great concerns about this case, as you can probably gather. i'm trying to be as objective as i can in getting information. we will have the opr report. we will go into that when it comes. i agree with senator whitehouse, some of the finest men and women we have in this country, those who work in the department of justice and our prosecutors and others there. but this one bothers me greatly. not the least of which i knew ted stevens. in my more than 30 years of knowing him, i never knew him to break his word. i never knew him to tell me something that wasn't accurate and true.

and for full disclosure, i had what kind of a personal relationship with him. i thought the world of him and assumed that i would -- for whatever time i would be in the senate would be serving with him. we traveled together. we had -- in fact, i told his attorney that i would be willing to testify. while i could not testify to the facts of the case, i could testify to the fact that he was always totally honest with me. as chairman of this committee, 000, and one of the oversight of the department of justice, i realize this happened with the last department of justice, not the current one, i do agree with your assessment and your statement, approval attorney general holder in dismissing this case. we both have known him for a lot of years before he was attorney general. and i have a great deal of

respect for his ability. i'm concerned about what happened. it happened here. i also want to make sure, as others have suggested, this would not have happened if it was ted smith, who nobody would know. that's why i've had my innocent protection hearings and others. i view the prosecutor as the most important person in the whole criminal justice system, even more so than the judge, because the prosecutor can decide not to bring a case as well as to bring one. that's enormous power. if it's exercised appropriately, the whole population is protected. improperly, the whole system is damaged. so that's why i'm holding these hearings, why i stayed through the whole hearing.

mr. schuelke, i thank you very much. >> if i may just as a -- >> of course. >> as a point of personal privilege, i would like to say that like senator whitehouse, i am a proud alumnus of the department of justice. this is a sad story. i take no joy in having had to come to these conclusions. i hope i never have to do again. >> well, i'll concur in that. i'm plowed to be lawyer. people ask me what my occupation is. i say lawyer before i do u.s. senator. i'm very proud of that. proud to be in private practice, proud of being state's attorney, district attorney. i was proud to be picked as one of the three outstanding prosecutors in the country one year. whether deserved or not, i won't judge, but that's probably the

early things that will be on my biography some day. thank you very much. >> thank you, mr. chairman.

coming up on c-span 3, a look at security efforts by the transportation security administration. later, the sunlight foundation hosts a forum on the role of super pacs in the 2012 elections. after that, a discussion on the end of the war in iraq and u.s. relations with that country. monday on american history tv, a look at the nation's 34th president, dwight david eisenhower. at 8:00 p.m., we start with a look at the proposed eisenhower memorial. at 9:00, eisenhower's granddaughter, susan eisenhower talks about her opposition to the frank gehry memorial design.

later a film about eisenhower produced by the army. that's monday, 8:00 p.m. eastern on american history tv here on c-span 3. >> follow c-span's local content vehicles throughout the weekend as book tv and american history tv explore the history and literary culture of little rock, arkansas. saturday, starting at noon eastern on book tv on c-span 2, author griff stockily on the little known riots and killing of at least 20 african-american share croppers. >> you had calls going all up and down the mississippi delta, in revolt. and the next morning, between 600 and a thousand men, white men, pour into phillips county to begin shooting down blacks. >> and on american history tv on c-span 3, sunday at