We're From The Government That Makes It Legal

November 25, 2011 11:13 AM

Federal Prosecutors Are Allowed To Break Laws and Ethical Violations U.S. Senator from Alaska, Ted Stevens was charged with and convicted of corruption in 2008. The prosecutors were admonished by the judge for their actions during the trial such as sending home to Alaska, a witness who would have helped Sen Stevens. Furthermore in direct violation of Brady v Maryland, the prosecutors withheld evidence from the defense. The DoJ decided that the DoJ did nothing wrong with such violations because they were not explicitly told not to break the law. Because the judge took the government at their word, that they would obey the law, he did not issue a court order demanding that they do so, therefor allowing the attorneys carte blanche.
posted by 2manyusernames (44 comments total)

I guess it makes me a hypocrite, but I'm not all that outraged about breaking the law in order to send politicians to jail.
posted by cmoj at 11:20 AM on November 25, 2011

Is this something like cops double-parking while dealing with a bank robbery?
posted by Aquaman at 11:24 AM on November 25, 2011

No, it's more like an alleged Brady violation in a federal criminal case.
posted by Sticherbeast at 11:26 AM on November 25, 2011 [6 favorites]

Yes, it does make you a hypocrite, cmoj. The idea of breaking the law to send someone to jail is utterly anthethical to what we're supposed to be about, here in America. The law is supposed to protect everyone, from the weakest to the strongest. Some decades we've been better than others at actually reaching that ideal, but that's how it's supposed to be.

What's the functional difference between government functionaries breaking the law to send someone to jail and absolute tyranny?

I don't even know what party this guy is in, and I still find this absolutely reprehensible. Every lawyer involved in this should be immediately fired, and barred from ever working as an attorney in this country again.
posted by Malor at 11:26 AM on November 25, 2011 [29 favorites]

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
posted by Horace Rumpole at 11:27 AM on November 25, 2011 [110 favorites]

This is clearly an FPP from a parallel universe where the DoJ did not ask a judge to overturn the charges against Stevens. In ours...
posted by Kid Charlemagne at 11:29 AM on November 25, 2011 [10 favorites]

Well, the charges were dismissed against Stevens, and the team of prosecutors responsible for the misconduct have been excoriated by the judge and the public. One of the prosecutors committed suicide. This new report will probably lead to additional consequences. So, even though the report does not recommend charges, I feel as though those responsible have been called out pretty good.
posted by ClaudiaCenter at 11:32 AM on November 25, 2011 [10 favorites]

Of all the cases of prosecutorial misconduct in the past few years, THIS is the one that gets all the attention. I wonder why. (Can you say Liberal Media, kiddies? I thought you would.)
posted by oneswellfoop at 11:53 AM on November 25, 2011 [3 favorites]

Man, this is an editorialized post.

You might as well have written that the same process guarantees which would have protected Stevens from being held accountable for his corruption also protected those who prosecuted Stevens.
posted by klangklangston at 12:04 PM on November 25, 2011 [2 favorites]

Lawful Evil.
posted by srboisvert at 12:06 PM on November 25, 2011 [2 favorites]

It's too bad these interesting links are tied to such a lazily-written, editorialized, and flat-out inaccurate post.
posted by brain_drain at 12:18 PM on November 25, 2011 [3 favorites]

This is clearly an FPP from a parallel universe where the DoJ did not ask a judge to overturn the charges against Stevens.

"Yes, I robbed a bank. But I gave back half the money, so we're even, right?"
posted by Etrigan at 12:20 PM on November 25, 2011

It really sounds like the Steve Martin defense:

Oh, I forgot. I forgot it's illegal to do that stuff. Well excUUUSE ME!
posted by Kirth Gerson at 12:27 PM on November 25, 2011 [1 favorite]

I guess it makes me a hypocrite, but I'm not all that outraged about breaking the law in order to send politicians to jail.

WTF? Ted Stevens was a corrupt bastard, but the specific crime he was charged with he wasn't guilty.
posted by delmoi at 12:41 PM on November 25, 2011

Based on the link, I think the result is correct.

The prosecuting attorney here (is he a special appointment? I can't tell from the article) is not saying that what the DOJ prosecutors did was fine and dandy. He is saying it was fucked up and an egregious violation of basic civil/ethical principles, but nonetheless, absent additional evidence, it's unlikely that, in a criminal case, the DOJ attorneys' guilt could be proved beyond a reasonable doubt. It's not a "they aren't guilty", it is a "we are so unlikely to succeed at a criminal prosecution that I do not believe charges are warranted". This ruling doesn't seem to shut the door on civil charges.
posted by HabeasCorpus at 12:48 PM on November 25, 2011 [3 favorites]

There is something very wrong in all this that no one-- least of all the gutless Obama DoJ-- is willing to touch.

Stevens was a key Republican senator prosecuted by a Bush US attorney (recall all the controversy prior to the Stevens case when Bush purged his own previously appointed Republican US attorneys who wouldn't play ball by initiating politically motivated cases) for essentially trivial corruption, and it is simply barely conceivable that the Republican establishment wasn't trying to get rid of him for some reason.

Then he dies in a plane crash after being exonerated, and one of the prosecutors involved commits suicide (thanks for that information, ClaudiaCenter).
posted by jamjam at 12:56 PM on November 25, 2011 [6 favorites]

I don't know that the DOJ attorneys' guilt could not be proven beyond a reasonable doubt. Seems pretty clear cut to me, and there should be plenty of evidence to warrant a jury trial. . Prosecutors routinely take on much weaker cases. Let a jury decide. I dare them. I double-dare them.

I strongly, strongly suspect this is a case of the prosecuting attorney finding that going after his own to be too distasteful.
posted by Xoebe at 1:01 PM on November 25, 2011

Man oh man, if only I had not stayed home in 2008, if only I had swallowed my pride and voted for a democrat even if he doesn't represent my views fully, then we wouldn't have another lawless replubican running the DOJ who believes their administration above the law...

oh wait.
posted by Shit Parade at 1:02 PM on November 25, 2011

Welcome to America
posted by growabrain at 1:24 PM on November 25, 2011 [3 favorites]

...because they were not explicitly told not to break the law.

Sounds legit.
posted by DU at 1:32 PM on November 25, 2011

Reminds me of when the CIA destroyed evidence about terror suspect interrogations demanded by the 9/11 Commission and a judge gave them a pass on it because they essentially promised not to do it again.

One rule for me, another rule for thee.
posted by dragoon at 1:33 PM on November 25, 2011 [5 favorites]

Hi, I'm from the government and I am here to...FUCK YOU!
posted by Samizdata at 1:34 PM on November 25, 2011

It's not a "they aren't guilty", it is a "we are so unlikely to succeed at a criminal prosecution that I do not believe charges are warranted".

Amazing how this is always the case for prosecuting attorneys and the police. But they can always find something to charge normal citizens with. Almost like an entirely separate set of laws for us and them.

This is one reason the OWS focus on police brutality is important.
posted by formless at 1:40 PM on November 25, 2011 [7 favorites]

Oh man, the division responsible for the prosecution and cited for contempt of court was the Public Integrity Section. The Onion is facing a lot of competition these days.
posted by formless at 1:48 PM on November 25, 2011 [1 favorite]

"Because the court accepted the prosecutors' repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law," Sullivan wrote, explaining his rationale for not explicitly ordering the government to provide exculpatory evidence to the defense.

Absent such a "clear and unequivocal" court ruling by Sullivan, it would not be possible to prove criminal contempt beyond a reasonable doubt, Schuelke determined. However, his report described “concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed,” Sullivan wrote.

I am confident beyond a reasonable doubt that such a defense would not work for me, a lowly citizen. "But I am acting in good faith officer, I promise! And besides, you never told me it was illegal to do that! If only I knew... what? yes yes I am lawyer, what does that have to do with me knowing the law?"
posted by Shit Parade at 1:50 PM on November 25, 2011 [3 favorites]

Yes, it does make you a hypocrite, cmoj. The idea of breaking the law to send someone to jail is utterly anthethical to what we're supposed to be about, here in America. The law is supposed to protect everyone, from the weakest to the strongest. Some decades we've been better than others at actually reaching that ideal, but that's how it's supposed to be.

Thank you for explaining to me what I said I was aware of.
posted by cmoj at 1:52 PM on November 25, 2011

Mr. Schuelke bases his conclusion not to recommend contempt proceedings on the requirement that, in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. § 401(3), the contemnor must disobey an order that is sufficiently “clear and unequivocal at the time it is issued.” See, e.g., Traub v. United States, 232 F.2d 43, 47 (D.C. Cir. 1955). Upon review of the docket and proceedings in the Stevens case, Mr. Schuelke concludes no such Order existed in this case. Rather, the Court accepted the repeated representations of the subject prosecutors that they were familiar with their discovery obligations, were complying with those obligations, and were proceeding in good faith. See, e.g., Transcript of Motions Hearing, P.M., at 14-15, Stevens, No. 08-cr-231 (Sept. 10, 2008) (“THE COURT: I’m not going to write an order that says ‘follow the law.’ We all know what the law is. The government – I’m convinced that the government in its team of prosecutors is thoroughly familiar with the decisions from our Circuit and from my colleagues on this Court, and that they, in good faith, know that they have an obligation, on an ongoing basis to provide the relevant, appropriate information to defense counsel to be utilized in a useable format as that information becomes known or in the possession of the government, and I accept that.”) Because the Court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the Court did not issue a “clear and unequivocal” order directing the attorneys to follow the law.

Good grief. So, basically, if someone says "oh, we know you won't break the law because we believe you're acting in good faith", but they don't say explicitly "you should not break the laws, and you know what the laws are you shouldn't break", that's an excuse to keep from prosecuting them for their crimes?

If I'm ever arrested for drug possession, I'm going to use that as a defense. "Your honor, the presumption of innocence enshrined in our legal system implies that there is every reason to believe that I was acting in good faith and would not break the law. Because I don't have a direct court order telling me that I must obey drug laws, I believe the charges against me should be dismissed."
posted by hippybear at 1:55 PM on November 25, 2011 [5 favorites]

On the one hand, abusing and breaking the law to target ethically bankrupt and possibly corrupt republicans is against what liberals believe.

On the other hand, the GOP has gotten the whole damn country rather thoroughly covered in 'American Exception-ed from the Law' mud, so it is nice to see them getting a (temporary and almost immediately removed) taste of their own medicine.
posted by Slackermagee at 1:58 PM on November 25, 2011

This isn't good at all, not one bit. This is one more example of the rule of law not mattering, and without the rule of law we will live in a tyranny. It's fucking terrifying.
posted by Shit Parade at 2:00 PM on November 25, 2011

"Man oh man, if only I had not stayed home in 2008, if only I had swallowed my pride and voted for a democrat even if he doesn't represent my views fully, then we wouldn't have another lawless replubican running the DOJ who believes their administration above the law..."

Wait, in your universe this is Obama's fault?

Man, you people is crazy.
posted by klangklangston at 2:04 PM on November 25, 2011 [2 favorites]

[Comment removed and a night off for "go fuck yourself" Please let this post not be a self-fulfilling "MeFi can't do political topics" prophecy and try to be decent to each other. Thank you.]
posted by jessamyn at 2:11 PM on November 25, 2011 [2 favorites]

Looks like we found the part that oversees all this political fun. It seems small a withered.
posted by Chorian at 2:22 PM on November 25, 2011

a -> &
posted by Chorian at 2:23 PM on November 25, 2011

The idea of breaking the law to send someone to jail is utterly anthethical to what we're supposed to be about, here in America. The law is supposed to protect everyone, from the weakest to the strongest.

This is only true in the bad history we teach our children and the lies we tell ourselves. The law has never worked this way, from before the Constitution to the present day. The law has long been used as a tool of the powerful. The history of America is a history of determining who has access to the courts, whose grievances are valued over others, and who can speak publicly. Of course we should strive to be better, but we won't get there by pledging allegiance to some cartoon history of equality.
posted by allen.spaulding at 3:06 PM on November 25, 2011 [2 favorites]

Two deaths so far (one apparent suicide, one plane crash)... Part of me wonders if there is more to this case than meets the eye.
posted by el io at 3:11 PM on November 25, 2011

I object! Posting that exchange from A Man For All Seasons is generally my bailiwick. Dammit, I don't have very many jobs around here so I expect to be allowed to do the ones I have.

Also, the FPP was painful to read what with, the weird commas and such.

The law has never worked this way, from before the Constitution to the present day. The law has long been used as a tool of the powerful.

This is an extremely cynical and not necessarily true point of view. The law is sometimes used as a tool of the powerful. The powerful strive ceaselessly to make it so. But it has also been one of the greatest tools of the powerless in human history. Is it perfect? By no means. But to simply write off the great advances of the rule of law is just wrong.
posted by Justinian at 3:46 PM on November 25, 2011 [1 favorite]

I think that a lot of people are conflating two separate things. First, the prosecutors violated Stevens's constitutional rights under Brady v. Maryland to have potentially exculpatory evidence turned over to him. That's a civil matter, and prosecutors have very broad immunity from civil lawsuits based on acts committed in the course of their duties. I believe that immunity should be rescinded in cases of bad faith, but current U.S. law disagrees with me on that, so the prosecutors here are immune. But even if a civil claim were possible under current law, the next step towards an appropriate remedy would be a civil lawsuit filing by Stevens or his estate, not a criminal prosecution by the federal government.

Second, the potential criminal charge associated with the prosecutors' conduct would be contempt of court. That applies in cases where a judge explicitly tells someone to do something, and then he chooses not to do it. In order to be convicted of criminal contempt, you don't just have to do something bad or wrong. You have to do something bad or wrong that a judge specifically told you not to do. Otherwise, ambitious prosecutors would just be able to tack criminal contempt charges onto every prosecution they bring by arguing that the defendant did a bad thing and broke the law and should be punished. But thankfully, contempt is much more narrow than that and applies only to disobeying a legally binding instruction from a judge. So yes, "the judge never told me not to do the bad thing" would be a defense, and a pretty good one at that.

When the special prosecutor says that he's declining to bring charges, he's not saying that the attorneys didn't do anything wrong, nor is he saying that he agrees with what they did. What he's saying is that what these prosecutors did doesn't match up with the only criminal statute that might plausibly cover it. If you want to make it a crime for prosecutors to violate people's constitutional rights, or if you want to rescind prosecutorial immunity from civil charges, I'd love to read your proposed statutory language, because this is an issue that makes me really angry. But you can't prosecute people when there's no law on the books at the time of their acts that criminalizes what they did. That's what the rule of law means, and it's what separates a legal system from a lynch mob.
posted by decathecting at 3:48 PM on November 25, 2011 [12 favorites]

At the time I thought it was pretty apparent that the DOJ intentionally threw their case against Stevens.
posted by rhizome at 4:06 PM on November 25, 2011 [2 favorites]

Stepping back from this for a moment, are we really seriously suspecting that someone assassinated the guy who gave us the "it's a series of tubes" and "bridge to nowhere" memes? Try to come up with a motive where you first let him know he's displeased the secret masters by prosecuting him, then the conviction is overturned by the new administration much to said secret master's chagrin and then, a year later, after he's had all the time in the world to talk (or hide copies secret memoirs revealing the truth all over hell and gone) you whack him? And whack one of the asses who bungled his prosecution for good measure?

Ask yourself, "Cui Bono?" Or maybe ask yourself "Has someone laced my coffee with something?"

If I were writing this as a movie, it would be about an ancient and secret society which guards the internet with an iron hand and the assassins would be Cory Doctorow (with his invisible blimp), Richard Stallman (with a samurai sword) and Al Gore (with, uh, a really convincing slide deck) and two others (so that there's all kinds of room for dramatic tension -- and even more action figures).

It would be a pretty bad move, but I'd probably buy the action figures anyway.
posted by Kid Charlemagne at 4:58 PM on November 25, 2011

MetaFilter: Utterly anthethical to what we're supposed to be about

Anthethical. Anthethical. Anthethical. Man, if you say it enough, it just sounds like nonsensical noise. Anthethical.
posted by Sys Rq at 6:12 PM on November 25, 2011

let's not forget that criminal obstruction of justice charges are still a possibility here. as decathecting astutely pointed out, criminal contempt of court is its own special thing.
posted by facetious at 6:33 PM on November 25, 2011

Uh, not to detract, but the word is antithetical.
posted by Minus215Cee at 6:50 PM on November 25, 2011

I know. That was the joke.
posted by Sys Rq at 7:55 PM on November 25, 2011 [1 favorite]

Two deaths so far (one apparent suicide, one plane crash)... Part of me wonders if there is more to this case than meets the eye.

Highly unlikely. Four people survived that crash and the NTSB ruled out mechanical problems. It appears that it was a problem with the pilot, who previously had a stroke in 2006 and was grounded for two years. An Alaska Dispatch article says:

Smith's health is a key part of the investigation. He had a family history of stroke and his wife suspected he might suffer from sleep apnea, according to NTSB records.

Sleep apnea has been linked to increased odds of stroke. A third autopsy of Smith performed by the Armed Forces Institute of Pathology looked specifically for anatomic indications a stroke might have caused the crash, but found none. The NTSB summary of the medical report does not, however, rule out the possibility of problems related to stroke. It notes that after Smith's 2006 stroke he reported "his performance subpar...in the (flight) simulator...would feel like he was having to work unusually hard...situational awareness in the car was off."
posted by D.C. at 10:25 PM on November 25, 2011