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May 11, 2007


Is there any evidence that this anything more than Geragos blowing smoke? Would he like to name the TV reporter (or is this some sort of reverse source privilege argument)?

Well, it's interesting. The SD AUSAs are arguing that Geragos can't have his own investigation into the leaks because Main DOJ (yup) is already investigating them. But Geragos claims he wants to call the journalists and make them reveal their sources. Though, as the govt's most recent filing pointed out (see my last post), the critical leaks (this one and one suggesting Lam was timing the indictment to precede her departure) were never published. Which would mean Geragos would have to reveal his sources before they had to reveal theirs in turn. The govt asked--and has asked Geragos for the identity of these journalists, but he has not, AFAIK, told them those identities.

So yes, it could be Geragos and smoke. But I doubt it. Not least bc Foggo's lawyers said they got a leak of indictment particulars, too.

Shades of Plame. Use the press to hide administration wrongdoing. Especially since no press reported the "leaked" story, so it sounds just like a straight leak out of main DOJ to coordinate with defendant's counsel.

The good news--If this one can get worked up the chain, it sounds like obstruction of justice to me. Looking for that evidence chain. Maybe on the RNC servers.

More than attempting to hide stuff -- I think this administration is committed to breaking the system. When you destroy the reputation of the Justice Department, you cast into doubt all the oversight and all the prosecutions. And to those who want to shrink government to a size where it can be drowned in a bathtub, it doesn't matter if breaking down the rule of law on one case spreads to the entire system -- on the contrary, it's exactly what they hope for.

I felt like a paranoid saying that a few years ago, but I now firmly believe that is the game plan -- or at least that this administration would shrug their shoulders at collateral damage to the system. That's why Gonzales and his superiors are so willing to appear as inept, bumbling idiots. That's how they want the average citizen to think about people in government.

EW -

I have not feen following the Lam part of the USA firing story as much as I have followed the other parts of it - so forgive me if you already know this.

Are you aware how Mark Geragos operates? Full of puffery would be a polite way to describe him. I can think of many snarky adjectives that may describe him better. He seems to throw the spaghetti up at the ceiling to see what sticks.

I followed the Laci Peterson murder trial - Geragos represented her husband Scott. Scott is currently on Death Row.

I doubt any lawyer could have gotten Scott off, since he was guilty as hell, but a competent lawyer could have probably kept the death penalty out of the equation. To call Geragos incompetent would be an understatement. He filed motion after frivolous motion, all full of BS. In his opening statement, he actually prmosied the jury that he was going to present evidence that would exonerate his client - that the jury would find him "stone cold innocent." Given that there was no exculpatory evidence, he set the bar needlessly high, and then he failed to deliver on his promises. Not only did he not present exculpatory evidence, he did not even produce witnesses that he said he would call to testify. He also did something that was a blatant attempt to taint the jury and cause a mistrial (it back-fired). I think he was referred to the California Bar for that stunt. To top it off, he did not even prepare for the penalty phase of the trial. He had to ask for a continuance in order to pull together mitigating witnesses for the penalty phase. I do not think anything he did rose to the level of ineffective assistance of counsel (or whatever the standard is), but he is a piece of work. If I were a lawyer or judge in California, I would have absolutely no respect for his legal skills.

The real pressure from within the judicial system will come when a USattorney is disbarred for pressing a fraudulent claim in a US District Court.

this is the old "kill your parents then ask for mercy because you are an orphan" defense

I kinda think the Court is familiar with this sort of tactic


Yeah, I'm somewhat aware, though I didn't follow the Peterson trial. Geragos' other stunt is even more questionable. He's refusing to get a security clearance, and on that ground, saying CIPA is unconstitutional bc it prevents his client from choosing the lawyer he wants.

J. Thomason:

that would be biskupic

Who is the interim USA in SD? Or is there a permanent replacement?

ab initio

Karen Hewitt, who was a top assistant AUSA under Lam, so she's a career employee (though both Jeff Taylor and Rachel Brand went through SD so they may know how to pick a politically connected AUSA).

BUt she really doesn't seem actively involved in this, at least not the filings.

Thank you, EW for another great piece.

BTW: your email is "inoperative" I had sent an email to the address on your home page and it was bounced back.....

Albert Fall and EW - Can justice obstruct itself? I am not trying to be cute here; there is a decent logical argument that if the action is coming out of the direct prosecutorial chain, it is not obstruction but an exercise of prosecutorial discretion. I am not saying that is what I believe, just pointing out that some of these scenarios present pretty difficult and complex issues. This is also exactly the pervasive evil that results from any tainting and/or corruption of the justice system. I have stated my thoughts on the CIPA challenge before so no reason to go over that again; but if Geragos' argument is predicated upon the fact that he won't/doesn't have security clearance, as opposed to a Constitutional confrontation clause challenge, well that is just absurd. This leak crap, though, is much ado about nothing. Properly pled, it might be a partial basis for venue change, but even that is pretty remote. The burden for the motion to dismiss has to be actual substantial and material prejudice to the Defendant's ability to defend himself against all of the charges alleged. I have seen nary a fleeting mention of prejudice; nor can I see what such a basis could possibly be. Although Geragos is a little better than Cricket described, this particular avenue of argument is pure bunk.

All I can figure, bmaz, is that 1) Wilkes has just decided the case is rock solid, so why not try gimmicks, or 2) someone, at some point, is going to come through with the promised save, so why worry too much about the seriousness of your defense.

I'm mostly interested in this leak on the assumption that Geragos is not totally talking out of his arse. If he's not, it's a very curious leak on DOJ's part. And I would very much like to know the name of the journalist.

After reading the previous post on this topic, it sounds like it came out of the Rove Dirty Tricks Department... Blow or at least hinder the investigation through various leaks so that the defendant can claim all kinds of things.

The sad thing about all this is that a trusted justice system relies on integrity to serve the people. The one we have is being used to enhance the power of some sick individuals who perceive themselves to be doing the will of the people. Instead, they are just...sick and seriously dysfunctional.

Yes bmaz, justice can obstruct itself when it is corrupted.

EW - Maybe, but I am not convinced of that. In the first place, very few public corruption cases are "rock solid" from a defense standpoint. This one has national defense and CIA stuff to convolute and hide behind. This one also, thanks to the Bushies, has every biased prosecution argument imaginable to throw around. There are a whole host of goofballs, starting with co-defendant Foggo, to point the finger at. There may be problems on admissibility of key evidence for the government. You could cut a cooperation deal. I am not saying any or all of these would work as a defense (they probably won't), but the case is certainly nominally defensible. I think this is just the normal Geragos goofy pleading; it may or may not have any further import. Geragos is no Roy Black, Abbe Lowell or Gerry Spence; there is not necessaril a method to his madness. Or maybe there is.

What sparks my interest here is that there are “leaks” to the press but no stories.

Think back to the Plame case, where the story was planted with multiple journalists, in the expectation that (1) the story would surface but (2) that the journalists would not reveal that it was Rove or Libby who planted it.

On these boards, we are all trying to connect the dots, with less information than the prosecutors or Congressional committees have, so sometimes we are Sherlock Holmes and sometimes we are Mr. Tin Foil Hat Guy.

Sometimes Karl Rove is Prof. Moriarty, and sometimes he is that fat Mayberry Machiavelli who got his ass handed to him in the 2006 elections.

That said,

--if Wilkes/Foggo cut truly close to the administration (Cheney contract, Southern California Congressional corruption generally), and

--if USAs promptly apprise main DOJ of case developments on political corruption cases (they do), and

--if main DOJ leaks information back to WH/Rove (think Sen. Whitehouse chart)

THEN, it is not a great leap to ask “what if Rove repeated the Plame leak playbook to try to mess up Wilke/Foggo procedurally?”

Just out at TPM: New charges in Wilkes case


Albert Fall - There is nothing tin foilish about those thoughts. But the thing I keep coming back to is, that unless you have a Federal District Court Judge wrapped up in the scheme, this is just not a valid scheme. Simply because Geragos filed this motion, people assume there is some merit to it and think that these "leaks" could some how quash the prosecution. But the standard, or burden of proof if you want the legal term of art, is a factual showing by the defendant that any said leaks constituted prosecutorial misconduct that has so substantially and demonstrably prejudiced the defendants ability to defend himself, or has irreparably violated his ability to receive Constitutional due process, that dismissal is the only valid remedy. I am here to tell you this is an incredibly high threshold. It was leaked that he was going to be indicted. Well, he was indicted. How has this prejudiced his basic ability to defend himself? It hasn't. The only time I have ever seen a motion of this nature actually granted is when the prejudicial conduct complained of resulted in the destruction of potentially exculpatory evidence. Don't get me wrong, I think these low down pricks are twisting, corrupting and gaming the system every bit as much as you do. I am just saying that if this is their plan to spring Wilkes and Foggo; they need a better plan because this one is going nowhere fast.


Agree with you regarding the merits.

But if the goal is to delay, or even just win the news cycle, in the expectation that your control of government makes the merits irrelevant, I could see this being a play directed out of WH.

Dear NH I sent this to Move on:
Kos,FDL,Next Hurrah,TPM and other blogs keep exposing more Bush administration and Republican crime against the People of the USA. The public trust is in shambles. It is time for a new contract with America, The US Constitution. No more rule by Faith based values that the Bush Cabal and the Oligarchy are hiding behind. Those values are long tarnished by missing virtue. The media is not telling the story. They have spent our International political capital and world credibility. We no longer have a credible military detente in the Middle East. Our National treasury has been given to the corporations that supply the war machine. Our domestic policy is neglected and basic FEMA due diligence does not exist for our Nation. There is great reason for republican Congress people to join you. They are in peril of losing more seats in Congress. Some may care more about their country than their party. The Impeachment will hold their feet to the fire in front of the American people.

The rule of law is ignored. While in The Color of Law
Police officers, prison guards and other government officials who improperly abuse the rights of individual Americans have long been recognized in federal law as a threat to society as a whole. That's why, immediately after the Civil War, Congress approved Title 18 USC 242 -- a statute making it a crime to deprive any person of their rights "under color of law." (Habeus Corpus)

On this basis alone Bush, Cheney and the rest of the rat pack that comprises the administration must be relieved of command. Bush like any other commander has culpability for the abuse of war powers.
As chief Federal law enforcement Officer AG Gonzales must be Impeached next week for Contempt of Congress as well as Condelezza Rice for snubbing Congress. Bush like the Enlightened Despots of Europe has usurped the Sovereignty of the People and must be relieved of command as well as Cheney immediately. The window of opportunity is a fleeting chance and must be used now.
Congress has the podium and must reveal the offenses this administration is engaged in. Please Move On this important concern.
Thank You,
Al Barrow, President, Citizens for Affordable and Safe Environment


I just realized the different perspective you and I were looking at this from. I don't doubt this will be laughed out of court. So my interest is not whether it's a good legal strategy. My interest is in WHY someone at DOJ would be making completely BS leaks to a TV reporter around the time they were trying to prevent Lam from testifying and around the time they were trying to rush her out the door. I'm interested in it for the way it reflects back on Main Justice, and only secondarily for the way it will affect the case in CA.

Oh, I agree with the curiosity as to identity and motivation of the leakers. It just seemed that many people were getting the thought that this was another brilliant plan by the Bushies and that this motion might cause the case to disappear. Unfortunately, my thinking doesn't divorce from legal strategy to well. On the other hand, the Bush theocrat implants in the DOJ have never been married to sound legal strategy; pretty much nary a one of them has any real experience that could provide such knowledge. I don't care if you get your law degree from Harvard (Gonzales) or Regent (Goodling), the only way to know your ass from a hole in the ground about functional trial law is to do it in a substantial setting for a good period of time. This also makes figuring out what they are doing in regards to things like these leaks and other tactical actions extremely difficult.

Kind of a tangent to this particular entry, but:

Has any committee asked Michael Elston just who he meant when he said that Lam's quick departure date was "coming from the highest levels of the government." ?

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