Prosecution Tanks In Toobz Stevens Trial

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Ted Stevens has been sitting in the courtroom of Judge Emmet Sullivan in the E. Barrett Prettyman Federal Courthouse in DC since jury selection began on September 22. This morning the excrement hit the fan. Big time. Stevens’ attorney, Brendan Sullivan, has moved for dismissal of the charges against Stevens, and he just may get it. The prosecution has screwed the pooch in a fundamental and intentional way.

From a wire report off of Reuters filed an hour ago:

Lawyers for Republican U.S. Sen. Ted Stevens of Alaska urged a judge Thursday to dismiss the corruption case against him because they said prosecutors had withheld evidence helpful to their defense.

U.S. Justice Department prosecutor Brenda Morris admitted a mistake had been made, but asked the judge to allow the trial to go forward. "We are human and we made an error," she said. "It was a mistake."

The information involved an interview by an FBI agent with Bill Allen, the prosecution’s star witness. In the interview, Allen said he believed Stevens and his wife would have paid for the renovations to their home in Alaska if Allen had sent them a bill.

Prosecutors had notified the defense about the information only late Wednesday, after Allen had completed his second day of testimony.

Stevens’s attorney Brendan Sullivan asked the judge to dismiss the indictment. "It goes to the core of the defense," he said.

U.S. District Judge Emmet Sullivan did not immediately rule on the request to throw out the case, but he clearly was angered by the mistake, calling it "unbelievable" and "very troubling." (emphasis added)

This is really bad. Blatant intentional withholding by the prosecution of exculpatory evidence. And it is evidence that bores straight into the heart of Stevens’ not guilty defense. The defense did not learn of the existence of this until long after Allen took the stand. The directly and materially exculpatory to Stevens. There is no way to argue that Stevens’ attorney would not have conducted his examination of all witnesses to date, much less Bill Allen, differently with knowledge of this in the government’s evidence set.

Here is the clincher.

The new evidence involved an interview that had been turned over to the defense, but the key part of what Allen said — that the couple would pay if they had been sent a bill — had been blacked out.

How do you not view this as intentional and malicious conduct by the prosecution? Read more →

The Bates Decision: A Question Unasked And Unanswered

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First off, a mea culpa. I was one of the first and strongest saying that Judge Bates would opt to just punt the contempt controversy back into Congress’s lap. I didn’t necessarily believe that he would hand a victory to the Bushies, but I did think he would, for the most part, take a pass by claiming it was not really a question for the courts and that Congress had alternative remedies available, that had not yet been exhausted, thus the issue not appropriate for consideration at this time (In fact, Bates noted on page 70 of the opinion that he would have been on solid ground doing just that).

I was wrong.

The Bush/Cheney unitary executive cult got their rear ends handed to them. Again. How shocking. Or, you know, not. They are basically batting an 0-fer since Cheney took Scalia on the robber baron aristocrat jet set hunting trip and managed to get a decision allowing him to keep the nation’s energy program secret from the nation.

But now, predictably, the dark hats of Miers, Bolten and Bushco want to delay the effect of Judge Bates’ ruling until the next of never on the appeal. However, as MadDog (good to have the dog back I might add) points out, the white hats of Conyers’ House Judiciary Committee have a response to that.

Plaintiff Committee on the Judiciary of the U.S. House of Representatives (“Committee”) opposes Defendants’ motion for a stay pending appeal on the following grounds:

(1) Ms. Miers’s claim of absolute immunity has no likelihood of success on appeal because it is baseless and contrary to Supreme Court precedent, and was thoroughly and irrefutably rejected by the Court;

(2) the Court’s non-final order of July 31, 2008 (“Order”) is not appealable, and thus a stay needlessly would cause further harmful delay;

(3) Defendants suffer no harm, let alone irreparable harm, from (a) appearing at a congressional hearing or (b) producing non-privileged documents and descriptions of the documents they seek to withhold on the basis of executive privilege;

(4) the Committee will suffer considerable harm as a result of the Executive Branch’s delaying tactics, which virtually assure that the Committee’s investigation into the forced resignations in mid-Administration of nine United States Attorneys in 2006 (“Investigation”) will not be completed until after the 110th Congress has concluded and the current Administration has left office in January 2009; and

(5) a stay would undermine the public interest by hindering the Congress from developing, if necessary, any relevant legislative remedies designed to improve the effective and fair functioning of the Nation’s criminal justice system.

This is a nicely done, pointed response to the transparently disingenuous delay tactics of the Bush Administration. In going through the decision and the latest arguments on the shape of the appellate process by the parties, I realize there is another facet to this equation that has been bugging me. Despite how good Bates’ decision is, why did it not address the refusal by the DOJ to prosecute a duly constituted, and valid on it’s face, contempt citation referred by the United States Congress?

Bates’ decision has drawn nearly uniform praise from across the board (with the exception, of course, of the parties negatively affected by it and their sycophants) including on this blog. Martin Lederman is indicative:

It is an extraordinarily thorough, scholarly and thoughtful opinion — surely one of the best opinions ever written on questions relating to executive/congressional disputes. It is also, IMHO, correct on the merits, of virtually all of the many legal questions it discusses. It is important not only for its holding on the immunity question, but also for its holding and analysis on congressional standing, and for its unequivocal rejection (pp. 39-41) of one of the Administration’s principal arguments with respect to all of these privilege disputes in the U.S. Attorney matter…

I find it shocking to be writing these words, but I pretty much agree. However, there is one glaring issue that is not addressed in the decision that is critical to this greater discussion of power and privilege, and I predict that will prove unfortunate in the future. To wit, is it appropriate for the US Attorney, in this case Jeffrey Taylor of the DC District, upon specific command of the Attorney General, in this case the ever obstructing Mike Mukasey, to refuse to prosecute a duly constituted and valid on it’s face contempt citation referred by the United States Congress?

A whole lot of people, both expert and non, have already been asking "what happens next"? What happens when Miers, Bolten, Rove et al. either blow off their repeat summons, or give unprincipled refusals to answer proper examination by the Committee? Without a prior resolution of the propriety of the Mukasey/Taylor refusal to prosecute the properly referred contempt citation, Read more →

Let The Sun Shine In

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Today Tomorrow (per CHS) is a big day in the life of Firedoglake, the debut of the new, powerful and reader driven Oxdown Gazette. Oxdown will be run by Ari Rabin-Havt, formerly of Harry Reid’s office, an immensely talented and committed progressive voice. But the real power behind Oxdown will be you, and all the other readers, who heed the call and step forward to lend their voice to the work ahead. You are the future; the time is now.

Fittingly, one of the first substantive contributors anteing up at Oxdown is none other than our own longtime Emptywheel and FDL regular, masaccio. Following the lead started by Marcy in her The FISA Loss: Recommendations for the Future post, masaccio has taken the next step in formulating a progressive based action plan. He has done an excellent job identifying several key goals and discussing modalities for obtaining them, and the thoughts and suggestions previously made by many of you here at EW and FDL are an integral part of his discussion. Go read What Should Obama Do For Us? and make your own further suggestions as to what we can accomplish through, and obtain from, Barack Obama in return for our support and votes. Here is my suggestion.

I would like a full and definitive pledge to open and transparent government. When the Democratic leadership were campaigning to claim a majority in 2006, and after they seized that mandate in the election, there was a promise made to change the ways of Washington, specifically in Congress, and stop the secretion of legislation being proposed, stop secret manipulation in back rooms, and to insure that bills are available to the individual members of Congress and the public sufficiently ahead of time to allow intelligent analysis and informed review before voting on the floor.

But when it came to seminal landmark legislation fundamentally weakening and eroding the rights of, and guarantees made to, every citizen that are embedded in the Fourth Amendment, they reneged. When it came to the literal, and arguably unconstitutional, taking of vested monetary claims, by mass numbers of US citizens, being actively and affirmatively pursued in courts of law against co-conspirator telephone companies, the Democratically controlled House of Representatives reneged. Instead of living up to their promises, Nancy Pelosi, Harry Reid, Steny Hoyer, and a cast of cronies saw fit to do an about face and operate covertly and clandestinely out of sight, in the shadows, concealing Read more →

The FISA Shaft Is Underway

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As you know, the FISA Amendments Act has been being negotiated behind closed doors by Steny Hoyer, Kit Bond and friends for some time now. See here and here. Well, the action is coming a little faster than we all anticipated.

It now appears quite clear that either the House will vote on the War Funding Supplemental and then go to the FISA Amendments ACT or, and it is not clear at this time what the odds on this are, link the two bills and vote on both at the same time. Here is what we do know. House has finalized their war supplemental bill, and it appears to be a go for a vote tomorrow (Thursday). So, the best evidence is that the vote on FISA will be on Friday June 20, and may be as early as Thursday night. There is precious little time left to make our voices heard.

Here is what Liz Rose from the ACLU gave me for publication:

One thing bugging me is that we do not have the Hoyer draft and neither do reporters; and yet some reporters are believing every single word Hoyer says. Feingold, Leahy, Conyers do not have the draft; the only people who do have it are Rockefeller, Bond, and Hoyer. People who are for the proposal. And yet I have not yet heard anyone question why that is. No sunshine and no one demanding to see the details.

Plus, even if leadership will vote with us, and act like they are on our side, the truth is they control the calendar. Nothing happens unless they want it to. It is so cynical and calculating. And it seems that the unwritten story is that this whole FISA cave in is really all about the DCCC and their worries about freshmen dems getting re-elected. They are not afraid of terrorists — they are afraid of ads about terrorists. If they were really afraid of terrorists they would just extend the orders. But all they really want is to reward the big telco contributors and get more checks for their campaign coffers. It is all political.

But I think they are wrong. Fear mongering did not help Guiliani win. And remember how good the House Dems were when they stood up on FISA and said no to the senate bill?. I will keep you up Read more →

The FISA Fix and Obama’s Profile In Courage Leadership Moment

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Whether by design or random chance, there is so much information, on so many and diverse subjects, flooding the politically astute citizen currently that it is hard to keep track. It seems like we are drawn from one crisis and seminal issue to another with the passing of not every day, but with the passing of every hour. And yes, they are all pretty much that important; but there are some that portend not just how we do in our lives, but who we are and what we stand for in the first place. Chief among those is the question of whether we are a nation of men freelancing in the public trough of goodwill, or a nation of laws in which men operate within the rule of law and under the edicts and guidance of our founding fathers and the Constitution they bequeathed us.

One of these issues has been at the forefront of out conscience for nearly a year now; the issue of how to improve the Foreign Intelligence and Surveillance Act (FISA) for the future we face and how to address the criminal violations of FISA we have suffered in the past. How we resolve FISA will go a long way indeed in indicating whether we are a nation of admirable laws or, alternatively, of mere opportunistic men.

The three critical parts of FISA that are the subject of the heated and protracted fight over reform are exclusivity, minimization and retroactive immunity. Simply put, exclusivity refers to the relative degree in which the resulting FISA law will control this area of the law. The original FISA statute was designed to be the

…exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted.

As Marcy Wheeler has pointed out however, the Bush Administration performed a terminally disingenuous end run around the exclusivity mandate of FISA via one of John Yoo’s made to order faux legal opinions. The exclusivity provisions must be made impervious to such sophistry and with sufficient teeth to insure future compliance by the executive branch.

Minimization is the word for the procedures the government uses to

remove and (eventually) delete any data from US persons collected incidentally in the course of surveilling someone overseas. If we could be guaranteed that minimization procedures are sound, then the whole debate over Read more →

FISA Update (And Why Is John Boehner Crying Again?)

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The week starts off with Main Core, Glen Fine’s much anticipated IG Report has been released, today is another state election (Kentucky) in the most hotly, and closely, contested primary that many of us can remember, and, now, the tragic and deflating news that Senator Ted Kennedy has a malignant brain tumor. Oh yeah, and an extended holiday weekend and Congressional recess is at hand in a couple of days. This type of situation can mean only one thing – FISA is bubbling back to the surface. Heck, the only thing missing from this equation is a terror alert; but then again, the week is still young.

First off, where we stand. The news is not all bad, but it sure isn’t all good either. From the National Journal (subscription required-sorry):

House Majority Leader Hoyer had previously said he wanted to reach a compromise on FISA by the Memorial Day recess. GOP and Democratic aides cited several reasons why that has not happened. Late last week, Hoyer sent Senate Republicans a list of provisions that House Democrats want included in a final bill, aides said. Hoyer’s proposal took Senate Republicans by surprise. A Republican aide called the proposal "a step backward."

Before Hoyer’s proposal, Senate Republicans believed that only two main issues needed to be resolved, and that they were close to reaching an agreement on them with House Democrats. One issue dealt with having the secret FISA court determine if the telecom firms should be granted retroactive immunity from lawsuits for their role in the administration’s warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks. The second issue centered on allowing the FISA court to review the administration’s procedures and certifications for surveillance operations. "We’re basically there on those two," an aide said.

But Hoyer’s proposal included other provisions, some of which had already been defeated during votes in the Senate, aides said. One provision, for example, would allow the FISA court to assess if the government is complying with so-called minimization procedures, which limit the amount of information collected and stored on Americans incidental to the surveillance target. Another provision contains language making FISA the exclusive means under which the government can conduct electronic surveillance.

The good news is that it appears that there is little chance that Read more →

FISA: The Coming Battle

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As I am minding the store while mom is away tilting kilts, I was party to a group discussion among several notable powers that be in the blogosphere early this afternoon, and the various blogs, all of which you are intimately familiar with, will be rolling out over the next few days somewhat of a battle plan on FISA/immunity. Nothing particularly new or shocking really, just a reminder to folks of the stakes involved and where the pressure points are that we need to address.

I wish I could say that there is some new brilliant, sexy and effective tact that we have lit upon to wipe this all away; but that, alas, is not the case. It will be back to the grindstone of calling, faxing and otherwise communicating with the key representatives etc. One thing I think will be critical is to offer plenty of carrots, with gentle reminders of the sticks. As you will recall, we got a surprisingly good response, and result, from the House Democrats in the last go round. We want to build, grow and reinforce that effort and result. The gathering proximity of the election is a double edged sword however. It is a chance for us to remind them of how favorably we view the last effort, but it is clearly also another opportunity for the Bushies to roll out the fear/security card and threaten the weak, and weakly situated, elements (read mostly Blue Dogs) of the Democratic coalition. It is going to be critical for those of us that actually live in districts represented by one of these souls to work them hard.

I have some things that will divide most of my attention for a few hours; although I will check in periodically as I can. In the meantime, use this space to discuss anything you feel important, but please start putting all the collective talent together to suggest ways and means for fighting the next stage of the FISA battle. My post from yesterday morning pretty much gives the lay of the land as it is understood at this moment; there are no real new baseline facts since then. Thanks.

Jello Jay And Hoyer Slither Back Into The FISA Limelight

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Crikey, this is getting old. You may have seen by now that rumors of a new push on passage of FISA, and, of course, full retroactive immunity, are bubbling to the surface in the last 24 hours. Here is Jane. Here is Digby. Here is McJoan. From Jane at FDL:

According to the ACLU, there is rumor of a backroom deal being brokered by Jay Rockefeller on FISA that will include retroactive immunity. I’ve heard from several sources that Steny Hoyer is doing the dirty work on the House side, and some say it will be attached to the new supplemental.

A few more facts and circumstances are available now than were in the earlier stories. For one, we apparently see the "urgency lever" being pressed this time around (there always seems to be one in these plays, it’s a feature). From Alexander Bolton at The Hill:

The topic has reached a critical point because surveillance orders granted by the director of national intelligence and the attorney general under the authority of the Protect America Act begin to expire in August.

If Congress does not approve an overhaul of the Foreign Intelligence Surveillance Act (FISA) by Memorial Day, intelligence community officials will have to prepare dozens of individual surveillance warrants, a cumbersome alternative to the broader wiretapping authority granted by the Protect America Act, say congressional officials familiar with the issue.

Maybe, but if so, then the situation is intentionally so from a designated plan by the Administration to have some of their programs start running out while they are still in office and can use the "urgency" to fuel their desperate push for immunity. The reason, if you will recall, is the little provision placed in the Protect America Act (PAA) allowing any surveillance order (i.e entire general program, not just individual warrants) existing at the sunset of the PAA, which occurred on February 17, 2008, to continue until expiration, which means that there was NO necessity that any program that the government wished to pursue expire anytime during the current Administration. I have reminded folks of this repeatedly, but here is a wonderful synopsis from Cindy Cohn of EFF:

The PAA provides that any currently ongoing surveillance continues until the "date of expiration of such order," even if PAA expires. "Orders" are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there’s no court involved). These surveillance orders can be Read more →

Mr. Siegelman Goes To Washington

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From the NYT:

The House Judiciary Committee asked the Justice Department Thursday to temporarily release former Alabama Gov. Don Siegelman from prison in early May to testify before Congress about possible political influence over his prosecution.

A spokeswoman for the committee said Siegelman, a Democrat serving more than seven years in a Louisiana prison, would travel to Washington under guard of the U.S. Marshals Service. She said Committee Chairman John Conyers, a Michigan Democrat, believes Siegelman could provide important information about Justice Department practices under President Bush.

This is good news. Not necessarily because I think it will lend a lot of new facts that will do the trick to spring Siegelman from what appears to be a very bum rap, but because it will really build on the wave of national publicity started by the 60 Minutes segment.

I have not yet seen anything additional as to details, such as who other witnesses would be, exactly what Conyers hopes to accomplish, etc. Perhaps we should help the Judiciary Committee out and come up with a game plan for them. Any suggestions?

UPDATE: Well. Wow. That was fast. I figured the request by Congress would turn up the heat on the 11th Circuit in relation to Siegelman’s release pending appeal, but I didn’t really want to jinx the concept by saying so in the post. BREAKING NEWS from The Birmingham News via TPM:

Former Gov. Don Siegelman will be released from prison, after the 11th Circuit Court of Appeals granted him an appeal bond, the lead prosecutor in the case said.

Acting U.S. Attorney Louis Franklin said he received a courtesy call from the court today. "He’s going to be released," Franklin said.

He said he was disappointed but added, "The 11th Circuit has the discretion to do that, and I respect that.

Sometimes You Eat The Bear, Sometimes The Bear Eats You – Stearns Thoughts

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That whole financial disaster, black hole rivaling the Great Depression, collapse of the American economy thing is oh so last week eh? Because from what I can tell this week, Britney has been on a sitcom, Barrack (gasp!) has listened to a fiery preacher man, Bush and McCain say stupid things (okay, that is not news, but it is being reported on), and Hillary (gasp!) won’t quit a race that is essentially neck and neck (and this reference does not make this a thread for discussion of the horserace, so give that a rest). What happened to the biggest financial crisis in our nation’s history?

What was the the Bear Stearns takeover/bailout about anyway? Who really benefitted in the present? What does it portend for the future? I don’t have these answers; but I have a lot of questions and the ground seems to be morphing so fast on this that not only are we not getting answers, the real questions are getting left behind in the wake. To paraphrase Wilson Pickett, we need to "slow this mustang down" and think about what has occurred and where it will lead us for the future. Really, the implications are pretty incredible. The federal government, under the cover of a spring weekend, stepped in to force one private financial company to sell itself to another private financial company at a price more than fifteen times less than the market valuation at the time. And then the government pledged the public’s money to guarantee the worst parts of the deal. Wow. And here I thought the free market was the golden holy rule for those currently running our country into the ground.

How did something so huge, and with so many far ranging implications, happen literally overnight? One thing is sure, if the economy was as great as they say, and Bush and his band of merry pillagers were on top of everything as much as they claim, this never would have happened. There has been plenty of discussion about the sub-prime shitpile and the exponential rise in derivitives in the financial industry, but my question here is what really happened with the Bear Stearns deal itself? Thankfully, people that know a whole lot more about this than I do are starting to ask the right questions. Today’s example is an outstanding Read more →