Wainstein Defends AUSA in Stevens Case and Joins Cadwalader(Updated)

Ken Wainstein

As an aftermath of the investigation and prosecution of Senator Ted Stevens, United States District Judge Emmet G. Sullivan, District of Columbia, appointed Special Prosecutor Henry Schuelke to investigate potential criminal contempt on the part of the government prosecutors. On March 15, 2012, Schuelke’s 525 page report was publicly released, concluding that the government’s prosecution of Senator Stevens was “permeated by the systematic concealment of significant exculpatory evidence.”

NAFUSA member Kenneth Wainstein represents Assistant United States Attorney Joseph W. Bottini, one of the prosecutors implicated by the findings of the Schuelke report. In a lengthy hand delivered letter to Attorney General Eric H. Holder, Jr., Wainstein writes:

Our objection to the Special Prosecutor’s findings is very simple. We take no issue with the finding that the investigation and prosecution of Senator Stevens were marked by mistakes, miscalculations, and oversights that led to a series of discovery violations. AUSA Bottini acknowledges that he played a role in those violations, and he will always live with a profound sense of personal and professional regret for the effect they had on the Stevens trial and on the reputation of the Justice Department. However, we do take issue—very strong issue—with the finding that these missteps were intentional and were something more than simple human errors on the part of an AUSA who was working under extremely difficult circumstances. That finding of intentional misconduct is completely unsupported by the evidence, and is the product of an investigative process that was marked by selective fact-finding and faulty legal analysis.

On Wednesday, March 28, 2012, Schuelke testified before the Senate Judiciary Committee. In addition, the Department of Justice has yet to release the result of its internal investigation of the the prosecution’s handling of the Stevens case. Wainstein, therefore, will be continuing to fight to keep AUSA Bottini’s job and reputation at the Justice Department.

Wainstein spent 19 years at the Department of Justice, including time as the Director of the Executive Office for U.S. Attorneys; General Counsel and then Chief of Staff to Director Mueller at the FBI; U.S. Attorney for the District of Columbia; and the first Assistant Attorney General for National Security. He also served as Homeland Security Advisory to President Bush. Wainstein has also been active at NAFUSA, having served on panels at the past two national conferences.

On March 26, 2012, Cadwalader, Wickersham & Taft announced that Wainstein had left O’Melveny & Myers to join Cadwalader’s D.C. office as a partner in the firm’s white collar defense and corporate investigations practices. Wainstein cited his relationship with Michael Horowitz and others at the firm as factors in his decision to move.