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The Stevens Prosecution

April 2nd, 2009 No comments

April 8. The Justice Dept. seems to have decided to make it hard to get info on the case by removing files from their website, but I found the 10-02-2008 GOVERNMENT’S MEMORANDUM IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS OR FOR A NEW TRIAL
and have posted it. This is worth having because it is said that the prosecutors lie in it. I haven’t been following closely enough to know where.

The place to go for info on this case is the blog Crime and Federalism.

April 7. I see another motivation for dropping the case. I read now that the judge is ordering the prosecutors to give him their background materials even though they want to drop the case. It looks to me as if the judge is outraged and wants to hold the prosecutors in criminal contempt, perhaps sending them to jail for a while. The FBI is accused of misbehavior too. If Holder can stop the proceedings, he’ll be able to hold the threat of punishment ordered by himself over the Public Integrity Section and the FBI, and use that as leverage. Thus, the Stevens case might be dropped even if Holder was sure he could get a conviction. What we may have here is that the attorney-general is willing for one criminal to go free (Stevens) to prevent another group of criminals from going to jail (the prosecutors). Stevens, of course, would not object to this– it’s a perfect opportunity for prosecution-defense collusion. The judge, however, has less reason to approve the deal.

I posted this comment at VC.

Brenda Morris joined the Public Integrity Section, Criminal Division, U.S. Department of Justice in September 1991. After working for twelve years as a Trial Attorney with the Public Integrity Section, she was promoted in March 2004 to Deputy Chief for Litigation. In August 2006, Professor Morris was promoted to the position of Principal Deputy Chief.

The acting head of the Criminal Division, who rushed the indictment unethically, was also a career civil servant. It does look as if the careerists have scored another scalp with Stevens.

A question for the lawyers: Is prosecutorial misconduct in a previous trial for the same offence admissible? If it is, Stevens would surely be acquitted in a second trial. Second question: Should it be? (Yes, I would think.)

What has received little discussion here are Holder’s motives. I wonder if it has any connection with Senator Dodd. Is failure to report a favorable mortgage a crime? It is, I suppose if favorable mortgage terms are defined as a gift.

Here is an article on the Dodd mortgage.

I called Robert Feinberg, the former Countrywide executive who blew the whistle on Dodd last summer, but he declined to speak on the record. What he said to me last October is still relevant.

Dodd “got the best of the best,” Feinberg told me in the fall, saying that the deal would have saved the Dodds about $77,000 over the life of the loan. It means, for example, that Dodd got a free-of-charge “floatdown” to a better interest rate and that he paid no points.

“There isn’t one person that was in my pipeline during that four and a half years that didn’t know they were getting VIP service,” Feinberg said.

I would really like to find out who is in the Justice Dept. as career and political appointees. The same goes for the rest of the government. How many are Democrats? The public has a right to the info of who is running our government.


April 7.
I hadn’t been following the Stevens case, and believed the conventional wisdom that he was guilty. Now I really wonder. It seems as if this is the story: Stevens had his friend Allen renovate his house. Allen billed Stevens for $160,000. Allen also let his construction company provide free work, bought furniture, a grill, etc. The government, it seems (this is not clear, and in any case, I don’t trust the government at all on this) values the free stuff at $240,000, and I couldn’t figure out what the defense valued it at. Allen claims that Stevens knew he was getting renovations cheap; Allen claims he didn’t know it.

I believe Stevens, on the renovations. He was not closely involved– he even gave a power of attorney to a neighbor to sign all the permits and suchlike— and he did, after all, pay $160,000 for not an entire new house, but just renovations. I don’t see how anyone could find him guilty there beyond a reasonable doubt.

On the other hand, he seems clearly guilty of smaller infractions. He knew he had gotten new furniture, a new grill, a salmon statute, etc. If the value of that was over the ridiculously small statutory limit– $320, I think— then he is guilty in not reporting it.

The government could easily have proved guilt on the gifts of chattels, without even using Allen as a witness. But that was too small a violation to make the prosecution seem reasonable. In fact, I bet half the Senate is guilty of not reporting $400 gifts from old friends. I hope the Federal Sentencing Guidelines don’t impose a big minimum sentence for that. Of course, prosecutorial discretion is supposed to help by preventing de minimis prosecutions.

Here are the exempt categories of gifts:

(1) Bequests and other forms of inheritance; (2) Political campaign contributions; (3) Communications to your offices including subscriptions to
newspapers and periodicals; (4) Consumable products provided by home state businesses to your offices, if those products are intended for consumption
by persons other than yourself; (5) Gifts received prior to your Federal employment; (6) Gifts to your spouse or dependent child totally independent of his or
her relationship to you; (7) Gifts from relatives;
(8) Personal hospitality of any individual (see instructions); (9) meals and beverages unless consumed in
connection with a gift of overnight lodging; and (10) Food, lodging, transportation, and entertainment provided by a foreign government within a foreign
country, or by federal, state, D.C., or local governments.

Categories: corruption, dodd, government, Holder, law, stevens Tags:

The Function of the Office of Legal Counsel

April 1st, 2009 No comments

More on the Holder overruling of the OLC. The Washington Post reported

In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment….

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

“The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional,” Matthew Miller said. “As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress.”

I finally found a leftwing comment on this. Mark Tushnet says that Holder has not taken any formal, legally binding, action, yet and the bill hasn’t passed either, so nothing has happened.

It seems Tushnet is wrong, though. It is true there is not action yet, but that is like saying the “torture memo” was unimportant because when it was issued, no actual interrogation had occurred yet. What Holder has said is that for any DOJ action that depends on the legal question of whether the DC bill is unconstitutional, he is overruling the OLC and the Department is to act as if the bill is constitutional.

A VC comment of mine on AG Holder’s decision to back the DC Representation bill in court:

This is of course a much clearer case than in the Bush Administration of the top political leaders overruling the civil service lawyers on a legal stance. So I hope the people who objected to John Yoo’s stance call for AG Holder’s disbarment even more strongly.

As for myself, though, I find it appalling that anyone thinks the civil service lawyers ought to be making these decisions instead of the elected leaders. The OLC is just a bunch of staffers (mostly civil service staffers– i.e., lawyers who couldn’t get better jobs and who probably have strong ideological preferences). Staffers are supposed to give their best technical expertise to the organization leader, who then makes the actual decision– in this case, What Shall the Executive Branch’s Position be on the DC Bill? I do think the bill is blatantly unconstitutional, but I didn’t get elected President and I’m not on the relevant court. I say: Let Holder and Obama defend the position they want in court. And the opinion of his staffers should not be admissible there.