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.
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.
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