While the D.C. legal community has named Sullivan “The Leading Lawyer in White Collar Criminal Defense,” his practice is far from one-dimensional. The senior partner at venerable Williams & Connolly – and protégé of its founder, the legendary Edward Bennett Williams - also handles a variety of complex and high-profile civil matters. Indeed, Brendan V. Sullivan’s litigation practice is so extensive that his first name has even sued his last.
I’ve been an admirer of Brendan Sullivan for a long time. I was glued to the Iran-Contra hearings. In 1991 I met Oliver North at a signing for his just-released autobiography Under Fire. I told North that I had recently graduated from law school and asked him if he could get me a job with Sullivan. North laughed it off. He signed my book: “Randy, All the best in the law.” That was the extent of Oliver North’s assistance in my career.
Well, twenty-five years later I finally got my interview with Brendan Sullivan. There were many subjects I could have focused on. I chose the one that made him a household name -- his ferocity to protect his clients from the power, and sometimes unlawful tactics, of the government. It’s not a secret that the government sometimes gets called out for prosecutorial misconduct. Sullivan has spent a career protecting clients from such abuse. And in several cases he has laid it out for all to see -- including the granddaddy of them all. About that one Sullivan offers a sobering lesson.
I was delighted when Brendan Sullivan agreed to speak with me (especially with at least three news stories saying that he rarely gives interviews). But, as the hour to call him approached (he’s so senior at Williams & Connolly that his direct-dial phone number ends with 5800), I began to regret my decision. The knot in my stomach would have impressed an Eagle Scout. I’ve had the privilege of interviewing many of the most famous lawyers in America. I get nervous before every one. You would too. But Brendan Sullivan took it to another level. I couldn’t rid my head of the images of him, during the Iran-Contra hearings, practically turning the inquisitors into witnesses. But Sullivan could not have been nicer. He was generous with his time and forthcoming with his answers. And, unlike the Iran-Contra hearings, didn’t object to any questions.
Keeping The Government Honest
Prosecutors are out to prove if the defendant did it. For Brendan Sullivan that is just part of the case: “[Prosecutors],” he told me, “have such enormous power over life, death, freedom, or not freedom, that they have to play by the rules.” Making sure that they do so is Sullivan’s business. He described unambiguously what it looks like when they don’t: “[I]t’s a frightening and sickening experience when you see misbehavior by government officials in the criminal context.”
Oscar Goodman, the legendary mob lawyer turned Las Vegas Mayor, says this right off the bat in his autobiography, Being Oscar: “Over my forty-year career as a defense attorney, I regularly came into contact with people who lied, cheated, and tried to bend the system so they would come out on top. Most of them worked for the government. *** In almost every case I tried – and I tried hundreds – Federal prosecutors and FBI agents thought nothing of withholding evidence, distorting the facts, or making deals with despicable individuals who would get up on the witness stand and say whatever they were told.”
I read this passage to Sullivan and asked him: Is it really this bad? Yes and no, Sullivan said. He called Goodman’s description “pretty accurate,” but doesn’t see misconduct being nearly as pervasive. Sullivan told me that he is “always the first to say that certainly 90%, maybe 95%, of all prosecutors are good people, well trained, wanting to do justice, wanting to do the best, wanting to protect the community.” But Sullivan was quick to add that “the sad fact is I have run into a half a dozen cases which are notorious for having corrupt government actions -- lawyers acting unethically, indeed criminally, in order to win a case and that is a frightening prospect.”
Sullivan recounted for me attending a fundraiser for The Innocence Project – the organization famous for winning exonerations of wrongly convicted individuals. He described a line of people on stage, each stating their name and how many years they served in jail for a crime they didn’t commit. “I mean you cry,” Sullivan said.
I wondered if prosecutors work harder to beat Brendan Sullivan, thinking it’s a feather in their cap to say that they did? Sullivan told me he hopes that’s not the case -- but he acknowledged that prosecutors might have a reason to work harder against him. “I think they try hard to beat us because the kinds of cases we get, they’re more interested in. They’re more high visibility. And in some cases they might think that winning this case will lead to promotions, to judgeships, to jobs in the big law firms. They can say ‘I was the prosecutor in the [Ted] Stevens case.’ It is quite common for prosecutors to tout their victories and to use the victories as stepping stones.”
In a PBS interview, Sullivan expanded on this idea, crediting reputational concerns as a reason why a prosecutor might turn bad. He explained that when a prosecutor reaches a point in a case where he or she feels that they could lose, and that would be bad for them professionally, their competitive nature may take over and they may “cheat to win.”
Sullivan also rails against other flaws in the system. That prosecutors are almost never punished for engaging in misconduct is at the heart of the problem he says. In addition, he tells me, on account of the trial penalty – a defendant receiving a harsher sentence after being found guilty than if he or she had pled guilty – “one wonders whether a criminal trial is a viable option for anyone.” Sullivan called it “horrifying,” to criminal defense lawyers of his generation, “to see the disappearance of the criminal trial.”
Sullivan’s introduction to government overreach came very early in his career. He was stationed in San Francisco during the Vietnam War. Despite the 1964 Georgetown Law grad serving as a supply officer, Sullivan, Captain, was asked by prisoners in the Presidio stockade to represent them concerning overcrowded conditions. In the process, Sullivan encountered a system that denied his clients their rights. He fought back, refusing to go along to get along. The Army decided that the way to silence Sullivan was to send him to South Vietnam for the last six months of his tour. The story got the attention of The CBS Evening News with Walter Cronkite and others in power. At the last minute Sullivan’s retaliatory deployment was blocked by the Secretary of the Army.
The extent of prosecutorial misconduct was the subject of a 2010 story in USA Today, reporting on the findings of the newspaper’s six month investigation into the subject. In 1997, Congress enacted a law designed to end prosecutorial abuses. According to the paper, it documented 201 criminal cases, since that time, where judges determined that Justice Department prosecutors violated laws or ethics rules.
The Justice Department sees it differently. As reported in the USA Today story, the DOJ’s internal ethics office insists that it happens rarely (the adverb “rarely” is not reflected as a DOJ quote; but USA Today’s description of the DOJ’s characterization). According to Justice’s Office of Professional Responsibility, 750 investigations, undertaken over the decade prior to the story, found intentional violations in 68 of them. [Readers can choose their own adverb.] The DOJ would not identify for USA Today the cases that had intentional violations and it removes from public reports any details that could identify the prosecutors involved.
USA v. Senator Ted Stevens: If It Can Happen Here…
Oscar Goodman uses a startling description to make his point about prosecutorial misconduct. Sullivan has one of his own. It comes out of the government’s prosecution of Senator Ted Stevens (R- Alaska).
In July 2008, Ted Stevens was charged in a seven count indictment with making false statements. Specifically, he allegedly failed to report, on his Senate Financial Disclosure Forms, gifts he received from Bill Allen, CEO of VECO Corp., and others, including renovations of his home in Alaska. Stevens was represented by Sullivan and a team from W&C. In late October 2008, Stevens was found guilty by a jury on all seven counts. Bi-partisan calls for Stevens’s resignation were immediate. It was a moot point because Stevens lost his re-election bid shortly thereafter.
What happened post-conviction is complicated. But the short story goes like this. In February 2009, an FBI agent filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence, including notes taken by prosecutors during an interview of Mr. Allen. But that wasn’t the only problem for the government in the case. Stevens’s defense team pointed out that, “over and over” the government was caught in false representations and otherwise failing to perform its duties under the Constitution and rules. And, in each instance, the defense said, the government sought to explain it away as a mistake or a mistaken understanding or not done in bad faith or inadvertent or unintentional or immaterial.
In one instance, the court became so exasperated by its inability to get a “cohesive or credible answer” from the government, concerning an aspect of the whistleblower complaint, that it ordered the Attorney General himself to sign a declaration, under oath, detailing who within the DOJ knew certain details about it, as well as what and when. I asked and Sullivan told me that he had never seen another instance of a judge compelling any Attorney General to do something like that. [The Court ultimately reconsidered, because of the demands on the A.G.’s time, and agreed to allow a high-ranking designee to file the declaration.]
It all came to a head in April 2009 when the court granted the government’s Motion, brought by a newly-appointed team of prosecutors, to Set Aside the Verdict and Dismiss the Indictment. The government had conceded that the notes from the Allen interview contained information that it was constitutionally required to provide to the defense for use at trial. However, the court stated that “[d]espite repeated defense requests and the Court’s repeated admonitions to provide exculpatory information, the notes were not produced to the defense until March 25–26, 2009, nearly five months after trial.” [Sadly, Senator Stevens died a year later in a single engine plane crash in Alaska.]
As Sullivan sees it, the lesson to be learned from the Stevens case is clear -- and staggering: “You have a U.S. Senator, a sitting senator, a powerful senator with a lot of friends, be indicted in the nation’s capital, and have the case tried in one of the finest District courts in the country, with a very experienced, smart federal judge. And you have the top prosecutors, the elite of prosecutors, lined up to bring the case, to try the case, and, modestly, you have experienced defense counsel right here in the city, known for their successful criminal defense work. If in [a well defended case, right here in the District of Columbia] you can have illegal conduct by the government, perjury by government witnesses, hiding of evidence [failing to give Brady material which clearly exculpates the defendant], what’s going on in the rest of the country? . . . It’s a frightening prospect so the lesson of the Stevens case is, of course, if it can happen here, under these circumstances, it can happen anywhere.”
Sullivan wouldn’t call the Stevens case his most satisfying win – simply because, he told me, there is great professional satisfaction every time you save someone. But he said that the Stevens victory does stand above others in one way. While all cases involve a human element -- saving a person whose life is in jeopardy -- the Stevens case, he hopes, will have an impact on the system.
A Career Carrying Brandy
Sullivan joked that lawyers who do his kind of work are like a St. Bernard, carrying a cask of brandy up a snow covered mountain to save a skier. Sullivan has carried a lot of brandy.
Sullivan, working behind the scenes with the local lawyers, represented Duke University lacrosse players who were accused of rape, sexual assault and kidnapping of an exotic dancer at a party. The North Carolina Attorney General, following findings of prosecutorial misconduct, ultimately dismissed the charges and announced that the plaintiffs were in fact innocent. Sullivan’s involvement surfaced when he represented the players in a civil rights action brought against the City of Durham, North Carolina.
Sullivan represented Dr. Henry Nicholas, co-founder of Broadcom, who was accused of fraud concerning the backdating of options. The case was dismissed. Pacer does not include the transcript of the dismissal hearing, but, in doing so, the Judge reportedly accused the prosecution of a “shameful” campaign of witness intimidation aimed at securing unjustified convictions.
Sullivan represented Richard Grasso, Chairman and CEO of the New York Stock Exchange, against the State of New York, which accused Grasso of receiving an excessive compensation package. It totaled nearly $140 million. Maybe it’s hard to feel sorry for Dick Grasso. But even rich people are entitled to a defense against government overreach. The case reached the New York Court of Appeals. Without getting into the weeds (and this wasn’t the only case), the New York Attorney General did not prevail. While the state’s highest court suggested that the compensation package may seem unreasonable on its face, Sullivan beat back the challenge on the grounds that the A.G. lacked the authority to do so. Just as in his criminal cases, Sullivan succeeded by challenging the government’s method.
Sullivan has also represented several state attorneys general, against Microsoft, involving antitrust violations; FBI agents involved in the 1992 Ruby Ridge shootout; and former HUD Secretary, Henry Cisneros, against accusations of making false statements to the FBI during a background check.
Studying Sullivan’s career I couldn’t help but think that he should write a book detailing his experiences with prosecutorial misconduct. While there is certainly literature out there on the subject, surely a book by Brendan Sullivan would get a lot of attention. But Sullivan has no interest he tells me. It turns out that I’m not the first person to make this suggestion. So his response is well-rehearsed. He won’t do what it takes to meet the criteria for a book by a lawyer – tout his own success and tell secrets.
Iran-Contra
I didn’t ask Sullivan about the Iran-Contra hearings. It is an old and well-known story. But in Under Fire, Oliver North tells a story about Sullivan that demonstrates his ferociousness to protect his client.
Months before North testified, Sullivan told him that he’d have to take the Fifth Amendment. But North had no interest in doing so. As North saw it, the Fifth Amendment was for criminals. It was for people with something to hide. It was tantamount to pleading guilty. North said he was proud of what he did. According to North, Sullivan replied, “I know you are. But that’s not what you’re going to do.”
North recounts what Sullivan said next: “If you and I were in a plane that crashed in a jungle behind enemy lines, and we were fortunate enough to survive, I’d rely on you to get us out of there alive. Well, today you’re in a different kind of jungle, and you’ve got to rely on me. You may not like everything I tell you to do, but as long as I’m your lawyer, that’s the way it’s going to be.”
Sullivan was, of course, concerned about a possible criminal prosecution of North down the road, and making sure that nothing North said, before the House-Senate committee, would be used against him in any such proceeding. North eventually testified before the Committee with use immunity, precluding anything he said from being used against him in a criminal case. Sure enough, North was criminally charged -- and found guilty. And sure enough, Sullivan had the conviction overturned, on grounds that the government used North’s immunized testimony against him.
I’m Not A Potted Plant
By now the story is the stuff of lawyer-legend. It will be told in Sullivan’s obituary – maybe even the first paragraph. If not, definitely the second.
During the Iran-Contra hearings, Hawaii Senator, and Committee Chair, Daniel Inouye admonished Sullivan for objecting to a hypothetical question posed to North by Arthur Liman, Chief Counsel of the Senate committee. [“Dreamland. Pure speculation. It has two ‘ifs’ in it,” Sullivan protested, arms wide apart.] Following a heated exchange between Inouye and Sullivan, the chairman stated that North can object himself if he wishes. Sullivan, with an incredulous expression, responded: “Well, sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”
Sullivan’s words elicited huge laughter from the gallery and “I’m not a potted plant” took on a life of its own. Whatever people thought about North (and he had detractors), the line endeared Sullivan to the public as a lawyer who wouldn’t back down. In Under Fire, North described what happened later that afternoon: “[W]e returned to the law firm to find dozens of potted plants. By the next day there were potted plants everywhere – in the lobby, in the corridors, and especially in Brendan’s office, which now resembled a terrarium.” I asked Sullivan if any of those plants are still around. They’re not he told me. But one lived 15 to 20 years and grew to the ceiling.
Incidentally, lost in the telling of the potted plant story is that in the 41 seconds before Sullivan uttered those famous words, he called for “fairness” – the mantra of his career -- six times in his objection to the Liman hypothetical.
While Sullivan was not in a court room when he distinguished himself from foliage, the line – with full credit to Sullivan -- has been used at least thirteen times by judges in opinions to make various points. See Celanese Chemicals Ltd. v. U.S., No. 04–00594, 2008 WL 5482052 (U.S. Ct. Int’l Trade Nov. 19, 2008) (“[T]he scope of judicial review is quite narrow. As the Court of Appeals has underscored, the Commission’s preliminary determination must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ On the other hand, the court is not a ‘potted plant.’”); U.S. v. Johnson, 42 M.J. 443 (U.S. Ct. App. Armed Forces 1995) (“As far as the implication that an issue not raised at the lower level cannot be raised before us, we are sure the court below would not sanction a ‘potted plant’ role for appellate counsel with regard to new issues.”).
In fact, in one decision, “potted plant” was not just a clever, but innocuous, expression used to make a point. Rather, the term took on a substantive role. See De Stasio v. Kocsis, A-5558-05T1, 2007 WL 1542607 (N.J. Super. Ct. App. Div. May 30, 2007) (“We disagree with the hospital’s contention that the underscored comments of plaintiff, including the ‘potted plant’ reference, impermissibly invited the jury to conclude that the nurses had the authority to order a CBC test or to otherwise override Dr. Elkwood’s medical decision to proceed with the August 2000 surgery. Counsel’s remarks, using a well-known legal metaphor popularized in the Congressional investigation of Oliver North [footnote credits Sullivan], merely suggested that the nurses failed to perform their own duties in this case by presenting false information on plaintiff’s chart, and that the nurses had an important role to play in plaintiff’s overall care. We discern no manifest injustice in the circumstances, as the comments were within the bounds of fair advocacy.”)
Beat The Clock: Brendan V
In 1992, the Minneapolis band Beat the Clock recorded the song “Brendan V” on its Funk Bus album. I bought the C.D. It’s an interesting song. It describes Sullivan as the lawyer you call when all hope seems lost: “It doesn’t matter if you were the trigger man.” Or, how about, “What do you do when the files all say he was there that day? Find the guy who pulled them out and find the one mistake he made.” A line in the chorus: “You get the Brendan V. Sullivan, Jr.” is pretty catchy and I’ve had it stuck in my head a few times.
I couldn’t get off the phone with Sullivan without asking him what he thought of “Brendan V.” Had he ever met Beat the Clock? Sullivan had absolutely no idea what I was talking about. None whatsoever. He was completely dumbfounded. You gotta be kidding me?, I replied, incredulously. He wasn’t. “I never heard that before this moment,” Sullivan assured me. I’m not sure which of us was more in shock by what the other was saying.
Sure, Beat the Clock isn’t the Beatles. But still, how could Brendan Sullivan have spent the past 25 years not knowing that he was the subject of a song? After all, it’s right there in his Wikipedia entry. It must be because he has more pressing matters to attend to than sitting around Googling himself.
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