Scott Bloch Headed To Prison

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[UPDATE: Bloch was sentenced to one month prison, one year probation and 200 hours of community service. His attorney indicated they will appeal, which could be interesting since the plea appears to, on its face, disallow appeal. And the saga of Scott the Blochhead rambles on…..]

Since mid-February an important, but little noticed, criminal case has been playing out in DC District court in which former Bush/Cheney administration Special Counsel Scott Bloch is charged with criminal contempt of Congress pursuant to 2 USC 192. As I summarized in an earlier post:

As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

At the previous date set for sentencing, on March 14, the court gave Bloch one last shot to brief his way out of the hole he dug for himself and ordered a tight briefing schedule therefore. Bloch filed his Motion for Reconsideration on March 14, The government filed their response, again colluding with Bloch, on March 17, and Bloch filed his reply on March 23.

Late yesterday afternoon, Judge Deborah Robinson ruled on Bloch’s latest attempt to get out of the mandatory incarceration sentence he pled guilty to, and entered her order denying his motion. The court fairly well blasted Bloch’s whining attempt to withdraw and, by extension, the continued Read more →

DOJ’s New Miranda Policy Betrays Constitution & Power of Judiciary

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The proclivity of the Obama Administration to simply do as it pleases, whether it violates the Constitution, established authority or the separation of powers doctrine is beyond striking. Last week at this time they were ignoring the Constitutional right of Congress, the Article I branch, to be the determinative branch on the decision to take the country to war. Today Mr. Obama’s Department of Justice has stretched its ever extending arm out to seize, and diminish, the power and authority of the judicial branch and the US Constitution.

Specifically, the DOJ has decided to arrogate upon itself the power to modify the Constitutionally based Miranda rights firmly established by the Article III Branch, the Supreme Court. From Evan Perez at the Wall Street Journal:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration’s most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

The Supreme Court’s 1966 Miranda ruling obligates law-enforcement officials to advise suspects of their rights to remain silent and to have an attorney present for questioning. A 1984 decision amended that by allowing the questioning of suspects for a limited time before issuing the warning in cases where public safety was at issue.

That exception was seen as a limited device to be used only in cases of an imminent safety threat, but the new rules give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights.

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

This type of move has been afoot for almost a year, with Eric Holder proposing it in a string of Sunday morning talk shows on May 9, 2010 and, subsequently, based on Holder’s request for Congressional action to limit Miranda in claimed terrorism cases, Representative Adam Smith proposed such legislation on July 31, 2010. Despite the howling of the usual suspects such as Lindsay Graham, Joe Lieberman, etc. the thought of such legislation died in the face of bi-partisan opposition from a wide range of legislators who actually understood Constitutional separation of powers and judicial authority. They knew the proposed legislation flew in the face of both concepts. And they were quite Read more →

Judge Questions Government’s Persecution of DADT Activists

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I’m busy watching this hearing today (and trying to watch one that happened last week). It’s hard to watch two hearings at once!

But I didn’t want you think I was still celebrating St. Paddy’s Day, so for the moment I’ll direct you to this story, another example where DOJ is taking an unreasonable stance against democratic activists:

Just got a report from Paul Yandura who is at the Federal Court House where the arraignment is for the 13 DADT protesters. As reported yesterday, the protesters, who were arrested on November 15, 2010 in front of the White House, are facing tougher charges than usual for cases like this. The government’s lawyers intend to prosecute the 13 defendants for “violating the orders of a federal law enforcement officer,” which could result in jail time. This is the first time DADT protesters have been in federal court. The other defendants were processed for minor misdemeanors in DC’s court system.

At today’s arraignment, Mark Goldstone, the lawyer for the 13 protesters, explained to Federal Magistrate Judge John M. Facciola that the statute under which the defendants are being charged was unusual. He noted that it had not been used in recent past against people engaging in civil disobedience at the White House. For whatever reason, the government has decided to pursue the more serious criminal charges.

What happened next was surprising to those in the Courtroom. Judge Facciola got up out of his chair, while pacing, gave a speech about the history of the civil rights movement in the United States. He intimated that there were trumped up charges back in the 50s and 60s, too. And, he evoked the Shuttlesworth v. Birmingham case, Martin Luther King’s “letters from the Birmingham jail” and how civil rights protesters were often brought to court to face stricter charges. The judge clearly linked the protest over Don’t Ask, Don’t Tell to those earlier civil rights protests.

The Judge asked the government prosecutor a lot of questions, including why the government didn’t charge the protesters under the lesser crime of disorderly conduct.

You may remember Facciola from the White House email case, in which he ordered the White House to actually keep its emails.

I’m glad the Magistrate judges are pushing back against DOJ’s unreasonable positions.

Mr. PJ Crowley, Obama & Firedoglake

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.

As you know by now, State Department spokesman PJ Crowley was effectively given the Shirley Sherrod pull over to the side of the road and resign order by the Obama White House, and the announcement was made public this morning. As Phoenix Woman noted it was reminiscent of the Saturday Night Massacre.

Pj Crowley told the truth, and it is now pretty clear, meant it when he said the treatment being occasioned on Bradley Manning is “ridiculous, counterproductive and stupid”, and it is NOT hunky dory like Mr. Obama shamefully bleats.

But the best observation was made by Rosalind in comments noting the side splitting non-comedy of the Commander in Chief last night at the annual Gridiron Club Dinner meeting of moldy MOTUs and their press lackeys:

Obama’s whole “act” last night at the Gridiron is now up. While his minions were forcing Crowley out, he was spewing this:

But whatever challenges we face and however history unfolds, we rely on all of you — the press — to tell the story. Those of us who are fortunate enough to be in positions of power may have our gripes about how the media covers us, but that’s only because your job is to hold us accountable. And none of us would want to live in a country without that failsafe — without a free press and freedom of expression. That’s what people all around the world are fighting for as we speak. In some cases, they’re dying for those rights. And that’s what many reporters risk their lives to uphold — from Kandahar to Tripoli.

tee hee, oh my sides! s/

extra bonus: FDL got a shout-out early on:

And while I know I have my share of critics out there, I don’t focus on the negative stuff. I just don’t pay much attention to it. Most days I barely skim through the comment section of Huffington Post — Daily Kos — Fire Dog Lake — The Daily Dish — boingboing.net. (Laughter.)

Bald faced craven comedy AND a dedicated shout out to Firedoglake during our membership drive, what else could you ask for from a Torturer-in-Chief? I would like to personally thank Mr. Obama for the plug and endorsement; though, I must say, if he is reading Firedoglake daily, he sure is not learning and retaining much. Please work on that Mr. President; we know you can do better!

Now, back to Mr. Crowley. Turns out Ozzy Osbourne, of all people, presciently wrote an ode for this exact occasion. I kid you not, it is scarily spot on for for what happened to Mr. Crowley, who indeed “uncovered things that were sacred”. The video is above, the prophetic lyrics below. Come, sit with us PJ, you will find kindred spirits here at Firedoglake; you are one of us now, trying to speak truth to obstreperous power.

Mr. Crowley, what went wrong in your head?

Oh, Mr. Crowley, did you talk with the dead?

Your life style to me seemed so tragic

With the thrill of it all

You fooled all the people with magic

You waited on Satan’s call

Mr. Charming, did you think you were pure

Mr. Alarming, in nocturnal rapport

Uncovering things that were sacred manifest on this Earth

Conceived in the eye of a secret

And they scattered the afterbirth

Mr. Crowley, won’t you ride my white horse

Oh, Mr. Crowley, it’s symbolic of course

Approaching a time that is classic

I hear maidens call

Approaching a time that is drastic

Standing with their backs to the wall

Was it polemically sent

I wanna know what you meant

I wanna know

I wanna know what you meant

NYT’s Selective Press Prosecution Outrage Doesn’t Include WikiLeaks

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As a follow up to yesterday afternoon’s decision in the WikiLeaks grand jury subpoena case, it is, shall we say, interesting that the New York Times today comes out with and editorial slamming democracies that use secret evidence and maneuvers to prosecute journalists.

The editorial is titled No Way to Run a Democracy and it doesn’t spend one word of it on the rabid use of just those tactics in relation to WikiLeaks and Julian Assange (See here and here). Nor has there been any comparable outrage over the US actions against WikiLeaks journalists in any other NYT effort and/or article.

Now, make no mistake, the plight of investigative journalists in Turkey under threat from the administration of Prime Minister Erdogan is extremely troubling, and it is commendable that the Gray Lady has called it out. But it does make you wonder where the same outrage is in relation to the First Amendment eviscerating effort of the US Department of Justice toward WikiLeaks and Assange. An investigation which could, and if it is taken to its logical conclusion, should involve the Times itself.

Maybe it is because Bill Keller reached some agreement with the DOJ not to trash them in return for DOJ laying off the NYT during one of his endless tete a tetes with them over quashing news reporting, maybe Keller and the Times are fearful that they don’t have some kind of secret agreement with the DOJ, maybe it is the product of the merging of the media and government in the US, or maybe it is because of Keller’s irrational and unprofessional extreme dislike of, and contempt for, the “dirty” Julian Assange and WikiLeaks.

Whatever the reason, the stridence against the Erdogan government actions contrasted with the silence toward the domestic Obama government actions is telling.

WikiLeaks: Court Upholds US Subpoena For Twitter Records

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In a 21 page opinion, US Magistrate Judge Theresa Buchanan of the Eastern District of Virginia District Court has just granted the United States Department of Justice subpoena demand for records in the WikiLeaks investigation.

Three people associated with WikiLeaks – Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp – had petitioned the court to vacate the subpoena and to unseal the court pleadings. The court held:

For the foregoing reasons, petitioners’ Motion to Vacate is DENIED. Petitioners’ Motion to Unseal is DENIED as to docket 10- gj-3793, and GRANTED as to the 1:11-dm-00003 docket, with the exception of the government attorney’s email address in Twitter’s Motion for Clarification (Dkt. 24), which shall be redacted. Petitioners’ request for public docketing of the material within 10-gj-3793 shall be taken under consideration. An Order shall follow.

The three WikiLeaks individuals had argued the subpoena violated constitutional protections for free speech and association; the court disagreed. Appelbaum, Gonggrijp and Jonsdottir have already stated they will appeal.

You can read the full opinion here. I will be updating the post as I read the decision.

In December of last year, the US government, upon ex parte motion, moved the EDVA Court to enter a sealed Order (“Twitter Order”) pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs government access to customer records stored by a service provider. The Twitter Order, which was unsealed on January 5, 2010, at the request of Twitter, required Twitter to turn Read more →

Court Denies Scott Bloch & DOJ Collusive Attempt To Withdraw Plea

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As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

Seeing the specious nature of Bloch’s reply filed on March 3, 2011, the Emptywheel blog got involved and initiated a formal filing with the court. We combined much of the material from the previous blog post on March 1 with new argument directly responsive to Bloch’s Reply, and additional general argument, into a formal sentencing recommendation and filed it with the court. The document was lodged on March 4.

Late last night, after consideration of the various pleadings related to the attempt to withdraw Bloch’s plea, the court filed its decision on PACER. Scott Bloch’s motion to withdraw from his plea, despite the collusive help from the DOJ, is DENIED!

For all of the foregoing reasons, the court finds that Defendant, at the time he pled guilty to a violation of 2 U.S.C. § 192, was well aware that he could have been sentenced to a period of incarceration of up to one year. His assertion, through his affidavit, that he would not have pled guilty had he “been informed” that he would not receive probation is, simply put, not entitled to credence. This court–like the Circuit, when confronted with a comparable contradiction between the defendant’s answers under oath during the Rule 11 colloquy and the affidavit in support of his motion – finds that “[Defendant’s] argument – if not his affidavit – amounts to a claim that the defect in the taking of the plea consisted of his committing perjury, when, under oath, he acknowledged the truth of the factual recitals in the plea agreement and in the government’s proffer. Lying to a court is not a ‘fair and just reason,’ Fed.R.Crim.P. 11(d)(2)(B), for allowing a plea to be withdrawn.” (emphasis added)

The entire ruling by the court is 20 pages long and takes apart every argument Bloch makes limb by limb. As it should have been. Perhaps the best line of Judge Robinson’s decision, and a point we argued strongly, is:

Confidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.

Boy, the court sure got that right. Not to mention that confidence in fair and honest government is undermined when the DOJ is willing to not prosecute and/or minimize clear crimes committed by other Executive Branch officers. They tried to soft walk Scott Bloch out of this, and it is still awfully small punishment considering Bloch’s crimes, but at least they did not get away with further obfuscation and frustration of justice. Now let’s get the Obama DOJ to get some more prosecutions for all the other egregious Executive Branch crimes of the previous administration going. It is about time.

Bloch’s sentencing is set for this afternoon at 2:30 pm at the E. Barrett Prettyman Federal Courthouse.

DOJ Bigfoots Over A Bridge Too Far On Loughner Indictment

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Friday, at 12 noon local time, the Arizona United States Attorneys Office held a press conference to announce new charges against Jared Loughner in the Gabby Giffords shooting spree. From the official press release:

“This was an attack on Congresswoman Giffords, her constituents, and her staff,” said U.S. Attorney Dennis K. Burke. “We will seek justice for the federal officials, Judge Roll and Gabriel M. Zimmerman, and for Dorothy J. Morris, Phyllis C. Schneck, Dorwan C. Stoddard, and C-T G. These final four Arizonans’ lives were extinguished while exercising one of the most precious rights of American citizens, the right to meet freely and openly with their Member of Congress. The deceased are not the only ones whose rights are being defended. Those citizens who were peaceably assembled to speak to their Member of Congress are also named victims in this indictment. This indictment involves potential death-penalty charges, and Department rules require us to pursue a deliberate and thorough process. That process is ongoing, and we will continue to

work diligently to see that justice is done.”

The press release, at the end, contains a nice summary chart of the various crimes charged and potential sentences. What is notable is that the new superseding indictment, although the press release is somewhat vague about it, is that the federal government has effectively seized jurisdiction of the entire case, including on the presumptively state law victims. As the Washington Post describes it:

But, employing a novel legal argument, prosecutors persuaded a federal grand jury to indict him on 46 new charges, on the theory that the shootings occurred on protected federal ground, as if it happened in Congress. Six people, including a chief federal district judge, were killed, and 13 – including Giffords – were injured.

U.S Attorney Dennis K. Burke told reporters in Phoenix that he wants to seek justice for all the victims and make no distinction between those who were federal employees and those who were merely attending the congresswoman’s event.

“These victims were exercising one of the most precious and fundamental rights of American citizens: the right to meet freely, openly and peaceably with their member of Congress,” Burke said. “It is a civil right. And their safety in participating in this federal activity is protected by federal law.”

“Novel legal argument” is one of the larger understatements of this still young century. A better description would be overreaching rubbish. This is something you are not likely to see often, but I am in complete agreement with Andrew McCarthy, who opined at the NRP Corner:

I think the Justice Department’s strategy in the Loughner case is legally suspect (to say the least) and tactically foolish. There are federal charges that apply to the shootings of the federal officials. That’s the federal case here. To the contrary, shooting people who are not federal officials in a mall is not a federal offense — such shootings are state crimes, for which Arizona provides very severe sentences, including death if death has resulted.

Justice is hanging its jurisdictional hat on the “federally protected activity” aspect of the civil rights laws. The purpose of this provision is to give the feds a vehicle to go after people who purposely try to stop someone from enjoying the benefits of a federal program. So if some misguided soul tried to vent his disagreement with, say, the “cash for clunkers” program by standing outside the car dealership and intimidating would be participants, he would be interfering with a federally protected activity even though this sort of menacing, ordinarily, would be a state offense, not a federal offense. The idea is to protect obvious federal interests. The idea is not to create federal cases whenever the commission of a state crime has some incidental, attenuated federal consequence.

That is exactly correct although, again, it is somewhat of an understatement. What is going on here is Read more →

Court Should Deny DOJ & Scott Bloch Collusion to Avoid Accountability

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As you will recall, Scott Bloch is the senior governmental attorney who formerly served as head of the United States Office of Special Counsel:

The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).

In short, it is an unique, but quite important, entity in the federal government, and is entrusted with protecting the sanctity of whistleblowers, who are one of the last checks on an increasingly imperious federal government, and especially the Executive Branch thereof. Mr. Bloch refused to do his job appropriately under the Bush/Cheney Administration and, when members of his own staff, including attorneys, attempted to blow the whistle on Bloch, the man entrusted with protecting whistleblowers unconscionably retaliated against them and blatantly destroyed governmental property and statutorily protected electronic files evidencing his acts.

Once informed of the questionable, inappropriate and/or patently illegal acts by Bloch, the Chairman and Ranking Member of the House Oversight Committee instigated a formal Congressional investigation of Bloch. On March 4, 2008, in the course of formal interviews with Oversight Committee staff, Bloch withheld critical information and lied. (See Bloch’s signed Stipulation of Facts dated 4/27/2010). Bloch entered into a plea agreement with the government and has been awaiting sentencing by Magistrate Judge Deborah Robinson of the District of Columbia District Court.

As Marcy Wheeler and I previously explained, the Obama Department of Justice is furiously colluding with the defendant they are supposed to be prosecuting, Scott Bloch, to ensure that he never does a day in jail for his crimes, and there appears to be no credible reason they are doing so:

The Department of Justice has literally teamed up with Scott Bloch-who previously plead guilty to blowing off Congress–to try to help him avoid any jail time, at any cost to credibility, for that crime. The extent of this collusion first became apparent in a ruling dated February 2, 2011 by Federal Magistrate Judge Deborah Robinson, who is handling the matter.

…

Now, there’s more than a chance that what is going on here is DOJ scrambling to prevent Bloch from doing jail time because they–part of the Executive Branch–like it that people like Alberto Gonzales, Monica Goodling and John Yoo have managed to avoid almost all Congressional oversight. And, now with Darrell Issa cranking up the not-so-way back investigatory machine, they really do not want a precedent made that executive branch officials who lie to Congress have to – gasp – actually serve jail time.

…

Then, the willingness of the government prosecutors to fight to keep the criminal Bloch from serving one lousy second in jail goes from the absurd to the ridiculous. A mere four days after having filed the whiny Motion to Reconsider, and before it was substantively ruled on, the government, by and through the ever ethical DOJ, suddenly files a pleading encaptioned “Governments Motion To Withdraw Its Motion To Reconsider The Court’s February 2, 2011 Memorandum Opinion“. In this pleading, the government suddenly, and literally, admits their February 2 Motion to Reconsider was without merit.

The foregoing is the background that brings us to where we are today, with a DOJ unconscionably, and with at least questionable ethics, literally fighting tooth and nail to help Scott Bloch get out of his pleas deal because he might actually have to serve 30 days in jail for his crimes. What, as the remainder of Read more →

Roger Ailes to Be Indicted?!?

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Whoo boy. Think back to how loudly the mighty wurlitzer argued that Scooter Libby should not be indicted for lying. And imagine how much louder it will be if Roger Ailes–a cornerstone of Republican success–were indicted for telling Judith Regan to do the same?

That’s what Barry Ritholtz claims is about to happen.

Someone I spoke with claimed that Ailes was scheduled to speak at their event in March, but canceled. It appears that Roger’s people, ostensibly using a clause in his contract, said he “cannot appear for legal reasons.”I asked “What, precisely, does that mean?”

The response: “Roger Ailes will be indicted — probably this week, maybe even Monday.”

The NYT broke the underlying story on Thursday:

It was an incendiary allegation — and a mystery of great intrigue in the media world: After the publishing powerhouse Judith Regan was fired by HarperCollins in 2006, she claimed that a senior executive at its parent company, News Corporation, had encouraged her to lie two years earlier to federal investigators who were vetting Bernard B. Kerik for the job of homeland security secretary.

[snip]

Now, court documents filed in a lawsuit make clear whom Ms. Regan was accusing of urging her to lie: Roger E. Ailes, the powerful chairman of Fox News and a longtime friend of Mr. Giuliani. What is more, the documents say that Ms. Regan taped the telephone call from Mr. Ailes in which Mr. Ailes discussed her relationship with Mr. Kerik.

Frankly, I’m skeptical. After all, Obama’s DOJ doesn’t like to indict any MOTUs. Besides, they’re too busy trying to prevent Scott Bloch from doing any time for having lied to Congress. And to think his DOJ (presumably former Chuck Schumer aide Preet Bharara, who is US Attorney for SDNY) would indict one of the most important players in the Republican party?

I doubt it.

But just on the off chance it’s true, I’m popping popcorn.

Update: It seems, they’d have a hard time indicting for the request that she lie itself: that took place in 2004, and presumably the statute of limitations would have expired in 2009. It’d be hard to say no one knew about the conversation given that it was front page news.