Alaska’s U.S. Attorney under scrutiny in disgraced federal judge’s sex scandal

The fallout from former U.S. District Court Judge Joshua Kindred’s inappropriate relationships with two federal prosecutors continues to unfold.

Kindred resigned July 3. Days later, the Judicial Council of the Ninth Circuit released the results of its investigation into Kindred’s bad behavior, which included sexual harassment, vulgar remarks and creating a hostile work environment.

The investigation found that Kindred had unwanted sexual contact with a former law clerk after she went to work as a prosecutor in the U.S. Attorney’s Office for Alaska and that another federal prosecutor had sent him nude photos. The former law clerk has alleged that the U.S. Attorney’s Office retaliated against her for reporting Kindred.

Bloomberg Law wrote Thursday that an impeachment inquiry, which would bar Kindred from holding future office if he’s convicted, has moved to the U.S. House.

There are still many questions swirling around the scandal, including the precise number of criminal cases Kindred heard that might’ve involved conflicts of interest with either of the two prosecutors and how the U.S. Attorney for Alaska, S. Lane Tucker, responded to the initial complaint.

And Bloomberg Law reporter Ben Penn says Tucker, who was overseeing the prosecutors involved in the scandal, was also seeking a federal judgeship for herself.

Listen:

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This interview has been lightly edited for length and clarity.

Ben Penn: The former law clerk who then became an assistant U.S. Attorney for a brief period of time in Anchorage, we’ve reviewed documents in which she has alleged retaliation by the U.S. attorney, the U.S. Attorney’s other top supervisors, saying that after she had come forward with complaints about being abused by Kindred that the U.S. Attorney’s Office initially tried to decline her request to be transferred to a different district, because she didn’t feel safe working inside the same federal building as Kindred. And they did eventually approve that transfer, but they initially tried to decline it, and then ultimately denied her permanent employment after her one year temporary position expired.

Casey Grove: So at least a couple different official bodies are looking into these allegations and investigating. You spoke with two former U.S. Attorneys for Alaska. What did they say about what they expect to see come out of that?

BP: Yeah, and this isn’t just those two former Democratic-appointed U.S. Attorneys. I spoke with many other former law enforcement officials, (Department of Justice) officials, ethics attorneys and professors. Basically, nobody knows what the outcome is going to be, but there is a fairly broadly held expectation that the Justice Department is going to now conduct an internal investigation, likely by the Office of Professional Responsibility. There are other offices within DOJ, they could have a hook to examine how the Department of Justice, the U.S. Attorney’s Office in Alaska, responded to that initial complaint before it was confirmed. And there is an assumption that at least the U.S. Attorney Lane Tucker, who was appointed by President Biden, that she would be one of the subjects who who would get questioned as part of any inquiry that the Justice Department would take.

CG: Interesting, yeah, and I guess this is a good point to just ask what sort of response did you get from the U.S. Attorney’s Office in Alaska or from the Department of Justice in general?

BP: Yeah, everybody has clamped down on communicating right now. They’re doing all they’re talking just through the courts. I should point out, however, that according to my reporting, the U.S. Attorney’s Office, including the U.S. Attorney Lane Tucker, did promptly refer that initial complaint to the Ninth Circuit and to the DOJ Office of Professional Responsibility, which examines attorney misconduct, and they at least should feel confident that they performed that part of their duty. There is a separate question, though, as to whether they did their own factfinding exercise at the U.S. Attorney’s Office to figure out if there was any veracity to the senior prosecutor having actually sent nude photos to the judge, just because of what a serious allegation that is. That’s not the type of thing that, at least the ethics professors I spoke with, feel any U.S. attorney should feel comfortable hanging out there as a possibility during the pendency of a DOJ OPR investigation, which can take many months to complete, that there was a responsibility to at least initiate an informal, you know, review.

CG: And as part of your story for Bloomberg Law, you had obtained some documents from various different sources and even spoke to anonymous sources who were either current or former staffers in the U.S. Attorney’s office here in Alaska. What did you learn from those sources?

BP: Basically, I came away with pretty consistent accounts from numerous current and former employees that I spoke with about the U.S. Attorney having a detached leadership style, frequently taking trips outside of the state of Alaska and not attending Criminal Division meetings, deferring decisions on criminal prosecutions to a criminal chief in the office who had four years of experience as a prosecutor. And that, you know, Lane Tucker is not somebody, she was pretty open, according to my interviews with her staff when she arrived two years ago, about the fact that her background was in civil not criminal law, and that as a result, she delegated quite a bit of responsibility. I think a lot of people felt that Lane Tucker was not present as much as they were accustomed to seeing her predecessors be in the office. And that does overlap with the period in which, afterward, after she had received the initial report about Kindred’s behavior.

CG: And then, of course, there’s another wrinkle that comes up in your story, that S. Lane Tucker, the U.S. Attorney for Alaska, had expressed interest in a judgeship that was open previous to Kindred resigning, right?

BP: That’s right, and in fact, when Sen. (Lisa) Murkowski had asked for the Alaska Bar Association to do a poll of the most qualified applicants for that judgeship — this is the seat that was opened in late 2021 before a new vacancy opened when Kindred resigned — and Lane Tucker came back as one of the top four most qualified applicants. And you know, there’s an open question now as to whether Murkowski had already submitted her name to the White House for vetting for that judgeship. So, you know, we asked Murkowski, a couple weeks ago a colleague of mine asked her, if Tucker remains on on her list of potential candidates, and she declined to say. So yes, we’re still waiting for that seat, for a nomination for that seat.

CG: I mean, I don’t want to get too far out over my skis, as they say, but is there any reason to think that Lane Tucker, the U.S. Attorney for Alaska, had maybe kept things under wraps with the Kindred investigation, because that would look poorly as she tried to become a federal judge?

BP: That’s an allegation that the former law clerk to Kindred had included in her retaliation complaint that is pending before the Office of Special Counsel. That’s an independent agency that investigates federal employee whistleblower complaints. That’s not something that I’m in a position to speculate on. In defense to Tucker, I will point out keeping things under wraps wouldn’t be a consistent characterization with the fact that, according to my reporting, she did quickly refer that complaint to the Ninth Circuit, which did lead to Kindred’s resignation and the findings that corroborated his abuse. And you know, however long it took, it did take a year and a half before those findings went public and he stepped down, but once she made that referral to the Ninth Circuit, it was out of her hands at that point. The timing was out of her control.

CG: So Ben, I mean, you’re based in Washington D.C., you work for Bloomberg Law covering legal issues around the entire country, and, you know, here we are talking about this scandal in Alaska. Why is this such a big deal, I guess, outside of Alaska?

BP: Writing for a legal audience, it’s fascinating, anytime you have a judge who engaged in improper relations with the federal prosecution office that is adjoined to his chambers in a district like Alaska, a smaller district in which Kindred was, at the time, one of only two active judges who could hear criminal cases that that U.S. Attorney’s Office was prosecuting. There were numerous cases that they were prosecuting right in front of him. At a minimum, it’s very fair to say that the U.S. Attorney’s Office is dealing with a real administrative conundrum here, and that all the work that their prosecutors, that their support staff, are now forced to do, to review, to go back into past cases and review whether they had an obligation to identify a conflict that could have led to Kindred’s recusal but didn’t, that’s just more time, more energy that they’re spending that could have been spent on, you know, uncovering new crime, on investigating narcotics traffickers. That’s all a major distraction for the office, and this is something that we are going to be continuing to track.