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October 06, 2007


While channel-surfing this morning I caught a segment on Faux News in which two extremely blow-dried anchors complained about Matthews's comments, suggesting that they disqualified Matthews's from moderating the Republican debate next week. (Pot, meet kettle.) In particular, they took umbrage at the word "criminality" -- even though, at a minimum, Matthews's remark included a reference to Scooter's perjury. I suppose the "journalists" at Faux no longer consider Scooter a criminal in light of Bush's clemency order, even though it did nothing to erase Scooter's conviction -- he remains a convicted felon.

I think that Matthews's remarks also encompass the Bush Administrations' tortured attempts to justify torture. After all, his dinner remarks followed on the heels of the New York Times's revelation of two secret 2005 OLC opinions which sanctioned the very sort of "aggressive" interrogation techniques that Jack Goldsmith's opinion had deemed "abhorrent" in 2004. But that's just a guess on my part.

I'm sure Tweety still loves the cut of Dubya's jib in a flightsuit, though. Not clear whether he's still hung up on Fred Thompson's manly aroma of English Leather and Acqua-Velva -- his performance on the campaign trail suggests that he smells more of mothballs.

if chris matthews doesn't stand up and address this admins criminality, who will.. certainly not the blow-dried anchors from faux news, or mosty others for that matter as they are busy trying to secure a place on the payroll more then anything else. good for chris matthews.

You say that Matthews talked about the Bush administration finally being caught in their criminality might be about Libby being convicted of lying about his conversations with Russert. The article also mentioned that at the 10th anniversary party for Matthews's show Hardball, Alan Greenspan and his wife Andrea Mitchell were there . I don't know how many people know that Libby and his wife are good friends of Greenspan and Mitchell and actually celebrate Thanksgiving together every year. I read it a while ago. I waited and never heard Andrea Mitchell mention her relationship with the Libbys while she was reporting on the case.

You know, I should come back here more frequently. This post reminds me that even when people disagree on on policy, it's helpful to see things from a different perspective.

But then again, I can't say that I disagree with anything in your post. Perhaps fact-based analysis knows no party lines.

Since you mentioned Libby, I wonder if I could insert a Fitzgerald question without going too far afield.

During the run-up to the Libby trial I mentioned (over on JoM) a court case wherein Fitzgerald sought, and received, a conviction for obstruction of justice when the defendant refused to testify before a grand jury.

Well, he's using those famous cross-referencing provisions in the sentencing guidelines to argue that the defendant deserves life in prison as a result. After all, the guy could be covering up multiple acts of murder.

At the time, I recall making the suggestion that the imposition of life sentences was a logical extension of Fitzgerald's approach.

I didn't think he'd actually do it, though.

Here's an article by Josh Gerstein of the NY Sun discussing the case.

I support the criminal contempt charge and conviction. The obstruction of justice charge and the cross-reference to unconvicted offenses seems a bit over-the-top to me.

I can't decide if it is better or worse that Fitzgerald actually charged him with the underlying crime referenced in the sentencing hearing, since the defendant was acquitted at trial.

To be fair, it is Fitzgerald's office rather than him personally making these arguments.

(Lifted shamelessly from my comments at JoM.)

I don't mean to annoy--if this is excessively off-topic or otherwise uninteresting, feel free to delete &/or ignore.

Walter - I don't know what you are apologizing about, I think that is a fascinating situation and question. I may be about to engage in some hypocritical threading of the needle; maybe not, that is for others to decide. But... I have issues with this situation here. First off, I agree and am very uneasy, from a due process standpoint, with using acquitted conduct as a substantive basis for cross reference enhancement. I do, however, distinguish this situation from Libby where the cross referenced conduct was not only not the subject of a not guilty verdict, the reason the conduct could not be viably put to the jury was, in fact, substantially Libby's obstructive and disingenuous conduct. I suppose the Fitz crew on Ashqar are also arguing that the lack of a conviction is still due to the defendant's guilty conduct; but I draw the line, rightly or wrongly, where it is charged and acquitted.

Secondly, just because there is no designated upper guideline does not mean that an absurd sentencing result should occur. However bad of a guy Ashqar may be, I am offended by a discussion of a life sentence on this. Without doing some type of rudimentary guideline calculation (hey, its Saturday night, football and baseball on, and I don't care THAT much right now), I can't see how you get more than 10, maybe 15 years, at the most.

Lastly, and I did not get enough procedural and historical facts to really express an opinion on this, but I see a puzzling 5th Amendment issue here; not just on the use of Ashqar's recalcitrance for sentencing purposes, but maybe even to the actual charges of contempt and obstruction themselves. Did they give him immunity or something (I don't see how since they tried him on the conspiracy)? Use immunity? How the hell did they get these charges and still honor Ashqar's 5th rights?


If I kept up with the site, I would have noticed EW's disagreement with Fitzgerald a few posts back. Would have been far more topical there.

The facts in this case were what originally intrigued me. As reported (I haven't seen the transcripts), the obstructive conduct consisted of refusing to testify before the grand jury when immunized. Again, I completely agree with criminal contempt charges. I just didn't understand how making no affirmative statements or actions could possibly be construed as obstruction of justice.

I haven't done the calculations either, but I assume they got there by aggregating the multiple unrelated murder/terrorism/money laundering charges under investigation and subtracting six levels.

I draw the line, rightly or wrongly, where it is charged and acquitted.

See, this is why I'm not certain whether it's more or less appropriate in these circumstances. If we draw the line at charge and acquittal, and we can sentence for the crime (-6) only if the prosecutor convicts on obstruction but doesn't charge the substantive offense, don't we create a perverse incentive for prosecutors to pursue obstruction charges and prove the substantive charges (or investigation thereof) to a judge by a lesser standard?

We can hope that Gall resolves this conundrum, but I can't see the guidelines completely disappearing under any plausible line-up in that case.

Walter - If you gather up any of that stuff, or any info on this that is particularly interesting, would you be kind enough to drop a link or cite here? I am intrigued by this one. I assume it had to be use immunity; but if they listed "murder/terrorism/money laundering charges" as overt acts under the conspiracy count (which, so far, it sounds like they did); this still sounds like a clusterfuck in several different directions (and I still have questions on the 5th implications) to me. I fully assume that there are facts I am unaware of taking my 5th concerns out of play, but I would like to see them if you know what I mean. In some potential defense of the prosecution team here, including Fitzgerald, the call may well be being made by DOJ Main; it sure would not surprise me. Wouldn't surprise me if it was Fitz either; in addition to a reputation for honesty and ethics, he is known for being tough as nails and the king of hard leverage..... Fascinating case and facts.

Heh heh. I don't see much hope for US v. Gall resolving this situation; more likely it will muck it up more. And yes, I understand your thought on my knee jerk acquittal bright line. Neither I, nor my line, may be particularly bright there; I dunno, but I will stick there for the time being at least. Thing is, as with so many things in the law, especially criminal due process law, there are no perfect rules. It still at some point boils down to sound prosecutorial discretion and a fair tribunal. Heh; told you I might engage in some hypocritical threading of the needle.... Marginally uninformed threading too, at least so far, I might add.


Maybe Matthews means someone was caught by a Traffic Light Camera running a light.

Commissioner Gordon calling Freepatriot.......


It's a questionable site, but here's a link to some articles about the case. From what I recall when the sentence was first handed down, they haven't messed with the original articles.

Turns out the Feds may also have had some illegal wiretaps they couldn't use at trial. What would you bet that they somehow made it into the PSR and the government's sentencing briefs?

Pretty decent odds. About 100% that the info was at least related to the PO PSR writer. Although, and maybe I do wear rose colored bi-focals on Fitzgerald, I don't think he would have submitted poisonous fruit, even for sentencing; DOJ Main would do it in a heartbeat however.

You two have kind of already hit on this issue, but I'd like to make it explicit: the PO recommended the life sentence (from Gerstein):

prosecutors filed a legal brief Wednesday arguing that a probation officer's recommendation of a life sentence for contempt was "correctly calculated."

On the general matter--I do think you need to retain the cross-reference, but I suspect (need to read more) this is the kind of idiocy that results from treating terrorism as a super special crime, which Fitz is definitely not immune from.

Then again, I'm less troubled by the 5th Amendment implications of this.

I think Tweety, and the rest of the Cocktail Weenie set, have heard that Bush has gotten Caught - red-handed and iron clad - Deceiving US over Torture.

I wonder if there's an internal, documented, Case of a Detainee dying after Feb 05 due to an 'Enhanced Interrogation Technique' - such as the "Simulated Drowning" (otherwise known as Waterboarding) - referred-to in the Feb 05 OLC Memo - that Bush authorized 'secretly' while telling the world publicly 'Torture is abhorent?'

Done in Secret, it might be both Murder and a War Crime.

Does Bush have the Blood of Torture on his hands, and are The Beltway Pundits, like Tweety, about to come out and claim Battered Press Syndrome in defense of themselves?

calvin is beginning to wonder if he has a filter on his computer that filters out news about Tweety's amazing interview on his show last week. After he got scorched by Stewart on TDS, Mrs. Tweety was invited to interview him about his marvelous and ever so serious book, Life is a Campaign. Ah, a real heavyweight that Tweety. Got a tough interviewer to fire some really tough questions at him. Intellect that he is, he nailed them all. Didn't dodge a single question. Was not challenged on any of his answers. Amazing journalism in action.

Who at MSNBC could ever have approved that? If he was trying to improve his credibility, I think he should move his game piece back to START and not collect his book advance.

What's even more incredible is that calvin hasn't seen a single reference to this interview ANY PLACE.

And to think that calvin used to maligned Ted Baxter as not being believable.

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