In About-Face, DOJ Says FBI Agent Not Denied Whistle-Blower Status

Posted January 16, 2009 at 9:52am

The Justice Department late Thursday acknowledged that prosecutors in the trial of former Sen. Ted Stevens (R-Alaska) made yet another error: incorrectly telling the judge that an FBI agent who complained about the investigation was denied whistle-blower protection by the department.

U.S. District Judge Emmet Sullivan became enraged at a hearing Wednesday when prosecutors told him that the FBI agent who has alleged misconduct among the prosecution team was denied whistle-blower protection.

Sullivan argued that he should have been told about this decision earlier, and he demanded that the department file by today a detailed description — signed by the attorney general — of who knew about the decision and how it was made.

But late Thursday night, the department filed a motion asking Sullivan to retract his order for an explanation because the agent in question was never actually denied whistle-blower protection.

Sullivan’s order “was premised on a misstatement by government counsel at the January 14 hearing to the effect that [the agent] has been denied whistleblower protection and had been so notified as early as December 4, 2008 by the Office of Professional Responsibility” wrote Patty Merkamp Stemler, a section chief in DOJ’s criminal division. “Government counsel was mistaken; that had misconstrued a letter sent to [the agent] by OPR.”

The department has never made a determination on the agent’s whistle-blower status because he has never alleged retaliation by his supervisors, the triggering event for a whistle-blower determination. Without retaliation, OPR has no basis to make a whistle-blower protection determination, Stemler wrote.