Update on the Government’s Response to Nacchio

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Two words about this update. First, to clarify from my earlier post: the WaPo article refers to a filing written in February 2007 that was just unsealed yesterday. So in fact, there are several more recent filings from Nacchio that rebut the claims made in this newly unsealed document.

Here’s the important part. From reading the available filings, it’s unclear whether Nacchio is right that he lost the Groundbreaker business because he refused to participate in activities the Qwest General Counsel deemed to be illegal. But as far as I can tell, there is no dispute that NSA asked Qwest to do something the latter judged to be illegal (though the government has redacted many of the references to this purportedly illegal request). In other words, while I can’t address Nacchio’s central question of whether this material might be enough to refute his insider trading charges, I can say that the record appears to support Nacchio’s claim that he was asked to do something he believed to be illegal (which we’ve assumed was domestic spying).

Update: Actually, let me revise that. The government is not disputing with this filing that Qwest was asked to do something illegal and Payne’s testimony appears to support that claim. It’s unclear whether the government is simply trying to refute charges by directing attention to the contracts or whether they’re trying to distract away from the claims about an illegal request.

Here’s the filing that appears to be the basis of today’s WaPo article claiming that the government’s filing refutes Nacchio’s claims. While I can’t speak to the veracity of Nacchio’s central claims, the filing unsealed yesterday doesn’t do what Carrie Johnson says it does. For starters, this appears to be a clear attempt (successful, in the case of Johnson) to refute claims made in July and later by unsealing a document written in February.

Johnson lists two ways in which the filing unsealed yesterday refute Nacchio’s claims. First, that Qwest was included among the consortium that eventually won the Groundbreaker business.

Qwest was one of more than a dozen "strategic vendors" that providedservices to the Eagle Alliance, which won a contract in July 2001 toupgrade computer systems and equipment at the National Security Agency, according to a document that prosecutors attached to their court filing yesterday.

And second, that the testimony of James Payne refutes Nacchio’s claims about the February 2001 meeting. Let’s take these in order.

They’re Scared

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I’m watching the HJC hearing on politicized prosecutions. And boy, have the Republicans come loaded for bear, on two counts. First, the Republicans attempted to insinuate that Jill Simpson’s allegations about the Don Siegelman prosecution must be false because she did not testify publicly today. Congressman Forbes repeated a tactic Republicans used when Valerie Wilson testified before Waxman’s committee–suggesting that Simpson "be referred" to DOJ for investigation.  Congressman Davis rebutted Forbes’ allegations, pointing out that Forbes was wrong when he alleged that Simpson’s affidavit had no proof.

In particular, Davis focused on the affidavits from Rob Riley and two others, which the committee just received today. I expect we’ll get those affidavits in the near future. But on one count, it’s clear that the affidavits are rebutted by the facts: all three Alabama Republicans claim there was no phone conference at which Simpson heard politicized discussions about Siegelman. Yet Simpson’s phone records prove that there was such a call, involving at least Rob Riley.

The other line of attack the Republicans pursued was to attack Dick Thorburgh (who testified that one of the cases Mary Beth Buchanan pursued was irregular). Congressman Cannon spent all of his time haranguing Thornburgh, repeatedly saying Read more →

The Prosecutors’ Response to Nacchio

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The WaPo reports that more documents have been unsealed in the Nacchio case–and they show (Prosecutors claim) that Nacchio’s claim to have lost business don’t hold up.

Qwest Communicationsbelonged to a business alliance that won a rich national securitycontract in the summer of 2001, undermining claims that authoritiesretaliated against its former chief executive for refusing to supportan unidentified government program earlier that year, prosecutors saidin documents released yesterday.

I’m on two deadlines for other things, so I’m not going to sort through the unsealed documents until later. But understand this: the document released today was filed in February 2007, at about the mid-point of discussions about the purported deals with the US government. This filing was filed in April 2007–it was one of the final filings on the subject and addresses some of the objections raised in the earlier filing.

For example, it points out that Payne’s claim (which appears to be cited in the Prosecutor’s filings) that the February 2001 meeting did not pertain to big contracts happened in July 2006; in a statement made in October 2006, Payne affirmed that the meeting pertained to Groundbreaker (and a contemporaneous Payne email backs up that claim).

Similarly, the later filing explains that Read more →

What Remains Unsaid

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Here’s my favorite exchange from Stanford Lawyer’s interview of Carol Lam (h/t bmaz):

YOU SERVED UNDER BOTH JOHN ASHCROFT AND ALBERTO GONZALES.  HOW DID THAT TRANSITION FROM ASHCROFT TO GONZALES AFFECT YOUR LIFE AND YOUR DUTIES AS A U.S. ATTORNEY?

The structures of the department were in place, so I didn’t expect a lot of impact from the change in attorney general under the same administration. There are a great many traditions that have built up over the years at the Justice Department that should carry the institution forward on its own momentum. The people come and go, but the institution carries on. So I was surprised by how much change there was.

Note carefully. The question was "How did the transition from Ashcroft to Gonzales affect your life?" To which Lam answers "It shouldn’t have–all the structures of DOJ should have prevented it–but it did, to a surprising degree." Not really an answer to the question, but telling nonetheless.

The only place where Lam really provides any hint of what those changes are is when she describes DOJ having a "straight shot" to the White House.

What these events did show me is that you can’t have a Department of Justice that’s a Read more →

Trojan First Amendment

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In his book, Unequal Protection, Thom Hartman shows how corporations (specifically, railroads) used the 14th Amendment–which ostensibly guaranteed African Americans the same rights other citizens enjoyed–to enshrine the concept of corporate personhood in our legal system.

With the passage of the Fourteenth Amendment, the owners of the what werethen America’s largest and most powerful corporations – the railroads -figured they’d finally found a way to reverse Paine’s logic and no longerhave to answer to “we, the people.” They would claim that the corporation isa person. They would claim that for legal purposes, the certificate ofincorporation declares the legal birth of a new person, who should thereforehave the full protections the voters have under the Bill of Rights.

[snip]

Acting on behalf of the railroad barons, attorneys for the railroadsrepeatedly filed suits against local and state governments that had passed lawsregulating railroad corporations. They rebelled against restrictions, and mostof all they rebelled against being taxed.

The main tool the railroad’s lawyers tried to use was the fact thatcorporations had historically been referred to under law not as “corporations”but as “artificial persons.” Based on this, they argued, corporations shouldbe considered “persons” under the free-the-slaves Fourteenth Amendment andenjoy the protections of the constitution just like living, breathing, humanpersons.

It’s an important lesson in history–but also an important lesson in Trojan Horses. That is, when you’re passing legislation, you might want to think about the unintended consequences the most powerful entities in the State might make of that legislation.

Case in point is the reporter shield bill just passed 398-21 in the House. The bill gives several acceptable reasons why the government can force a reporter to reveal her sources in a criminal investigation (after exhausting all other means of learning the source and proving the public interest in disclosing the source outweighs the public interest in the free flow of information). Those reasons are:

Six Months

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Six months. That’s how long Comcast keeps its records that allow it to track the activity of a Comcast Internet subscriber. At least that’s what Comcast’s Cable Law Enforcement Manual, which somebody liberated and got into the hands of Secrecy News, says.

  • Because Comcast’s system of allocating IP addresses uses Dynamic Host Configuration Protocol (DHCP), its subscribers are not assigned a single, constant or static IP address. Instead, a dynamic IP address is assigned and has the potential to change several times throughout the course of a month. As a result, it is necessary to include in all requests for information the specific date and time of incident when an IP address was alleged to have been used.
  • Comcast currently maintains its IP log files for a period of 180 days. If asked to make an identification based upon an IP address that was used more than 180 days prior to receipt of the request, Comcast will not have information to provide.

I’m still waiting to see a copy of Amway’s complaint against 30 bloggers, but I wonder if they’ve missed their opportunity to find out their identities?

And if it’s phone call data the snoops want, they can get it up to two years after the phone call.

The NewOld USAs

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Amanda marks the expiration of the PATRIOT Act appointees as USA.

These 11 prosecutors now “find themselves at the mercy of the same U.S. district courts that the Justice Department saw fit to cut out of the U.S. Attorney appointmentprocess last year.” The courts today will decide whether to reappointthese prosecutors who were handpicked by Gonzales and the White House.

Many judges and former U.S. attorneys believe that the federal courts today will be “less inclined than they have been in the past to rubber-stamping the attorney general’s interim picks.”

She’s following some of the same USAs as I am:

Jeff Taylor, DC. It’d be awfully nice to ensure that the USA overseeing DC would be willing to take a criminal referral from Congress or the DOJ IG. You know–just in case someone was held in contempt by Congress? But I’m not sure Taylor would do that. Unfortunately, the DC judges seem to like him anyway.

Early next month, a committee of active judges at the U.S. DistrictCourt for the District of Columbia will meet to discuss Taylor’sappointment, according to a spokesman for Chief Judge Thomas Hogan. Thelast time the judges convened for a U.S. Attorney appointment was inSeptember 2004, when they extended Kenneth Read more →

How to Spend $57 Million on Cocktail Weenies

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Larry Johnson does the math, so I don’t have to. Fitzgerald’s total costs to investigate the deliberate outing of a CIA spy, through March 31, amount to $2,396,283. Ken Starr’s total costs, to investigate a failed land deal and a blow job, amount to $59,463,703. I guess all those cocktail weenies Starr bought for the press really add up, huh?

Now that Larry pulled all these numbers together, though, I’d like to take a look at what Fitzgerald spent when–or rather, how much time he spent when. Here’s the total spent on personnel for each reporting period (click through to Larry’s post for the total amounts–I’m using personnel to get a sense of how much time these activities took). The total amount for all personnel time reported to date is $1,876,570.

PeriodEnding

 Amount Activities
3/31/2004 $13,330 Review FBI case

Grand jury interviews of most witnesses, including Rove, Libby, Novak
9/30/04 $487,098 Pursue and obtain testimony from Russert, Kessler, Cooper (pertaining to Libby), and Pincus

Pursue testimony from Cooper (pertaining to Rove) and Miller

Follow-up interviews with Armitage and Novak
3/31/05 $48,536 Argue before Appeals Court to justify Cooper and Miller subpoenas
9/30/05 $169,383 Obtain testimony from Cooper and (the first appearance) Miller.
3/31/06 $297,188 Obtain testimony from Miller (the second appearance)

Last minute pre-indictment frenzy

Indict Libby

Interview Viveca Novak, Woodward

Begin discovery phase
9/30/06 $268,198 Continue discovery

Begin CIPA Read more →

Wilkes Is On His Own

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Via chrisc, Judge Burns has severed the trials of Brent Wilkes and John Michael, on account of the health problems of the latter.

Ajudge Monday severed the trials of ex-defense contractor Brent Wilkesand banker John Michael, who are charged in connection with thecorruption scandal that sent former Rep. Randy "Duke" Cunningham toprison.

U.S.District Judge Larry Burns postponed Michael’s trial indefinitely afterattorney Raymond Granger said his client had been diagnosed with viralmeningitis.Pretrialmotions are scheduled in Wilkes’ case Tuesday, with jury selection setto begin Wednesday. Opening statements are scheduled for Oct. 9.

Given that Michael seems intent on avoiding conviction by exposing all of Tommy K’s crimes, and Wilkes seems intent on avoiding conviction by … who knows, exposing all of Congress’ crimes? I don’t think the separate trials will help either one overly much. Though it may mean that no prostitutes will show up at John Michael’s trial.

What Secrets Is Wilkes Planning to Spring?

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Paul Kiel reported this morning that Brent Wilkes doesn’t want the government to mention the prostitutes that Wilkes engaged as part of his bribe scheme to influence Duke Cunningham (here’s the filing). And if the Court doesn’t exclude the testimony about prostitutes, Geragos threatens, he’s going to haul the prostitute whose calendar has been submitted as a business record into court so he can delve into her record-keeping practices. That might be fun.

But I’m more interested in the possibilities presented by two of Wilkes’ other filings. The first objects to the government’s attempt to exclude duress as a defense. Geragos argues that the case law the government cites doesn’t apply, either because the cases pertained to evidence excluded during jury instructions, or because the case wasn’t directly on point.

Here, without having seen the government’s case, the defense has no way of knowing whether the prosecution’s theories of liability and evidence will necessarily foreclose a necessity or duress defense. Tellingly, the government cannot cite controlling authority holding that extortion is not a defense to the offenses charged against Mr. Wilkes. Instead, the government makes its argument through meandering statutory construction analysis and metaphor. Indeed, the only case it cites for a holding regarding the application of federal law does not address whether extortion is a defense to bribery, but rather whether extortion and bribery charges brought in the same case are mutually exclusive.

It’s unclear whether Geragos is just objecting to the government’s attempt to exclude a defense based on extortion for kicks, or whether the government was correct in anticipating that that may be what Wilkes intends to argue. In any case, though, Geragos seems intent on postponing any decision about the appropriateness of a duress defense until after he presents his case.