DOJ Bigfoots Over A Bridge Too Far On Loughner Indictment

Friday, at 12 noon local time, the Arizona United States Attorneys Office held a press conference to announce new charges against Jared Loughner in the Gabby Giffords shooting spree. From the official press release:

“This was an attack on Congresswoman Giffords, her constituents, and her staff,” said U.S. Attorney Dennis K. Burke. “We will seek justice for the federal officials, Judge Roll and Gabriel M. Zimmerman, and for Dorothy J. Morris, Phyllis C. Schneck, Dorwan C. Stoddard, and C-T G. These final four Arizonans’ lives were extinguished while exercising one of the most precious rights of American citizens, the right to meet freely and openly with their Member of Congress. The deceased are not the only ones whose rights are being defended. Those citizens who were peaceably assembled to speak to their Member of Congress are also named victims in this indictment. This indictment involves potential death-penalty charges, and Department rules require us to pursue a deliberate and thorough process. That process is ongoing, and we will continue to

work diligently to see that justice is done.”

The press release, at the end, contains a nice summary chart of the various crimes charged and potential sentences. What is notable is that the new superseding indictment, although the press release is somewhat vague about it, is that the federal government has effectively seized jurisdiction of the entire case, including on the presumptively state law victims. As the Washington Post describes it:

But, employing a novel legal argument, prosecutors persuaded a federal grand jury to indict him on 46 new charges, on the theory that the shootings occurred on protected federal ground, as if it happened in Congress. Six people, including a chief federal district judge, were killed, and 13 – including Giffords – were injured.

U.S Attorney Dennis K. Burke told reporters in Phoenix that he wants to seek justice for all the victims and make no distinction between those who were federal employees and those who were merely attending the congresswoman’s event.

“These victims were exercising one of the most precious and fundamental rights of American citizens: the right to meet freely, openly and peaceably with their member of Congress,” Burke said. “It is a civil right. And their safety in participating in this federal activity is protected by federal law.”

“Novel legal argument” is one of the larger understatements of this still young century. A better description would be overreaching rubbish. This is something you are not likely to see often, but I am in complete agreement with Andrew McCarthy, who opined at the NRP Corner:

I think the Justice Department’s strategy in the Loughner case is legally suspect (to say the least) and tactically foolish. There are federal charges that apply to the shootings of the federal officials. That’s the federal case here. To the contrary, shooting people who are not federal officials in a mall is not a federal offense — such shootings are state crimes, for which Arizona provides very severe sentences, including death if death has resulted.

Justice is hanging its jurisdictional hat on the “federally protected activity” aspect of the civil rights laws. The purpose of this provision is to give the feds a vehicle to go after people who purposely try to stop someone from enjoying the benefits of a federal program. So if some misguided soul tried to vent his disagreement with, say, the “cash for clunkers” program by standing outside the car dealership and intimidating would be participants, he would be interfering with a federally protected activity even though this sort of menacing, ordinarily, would be a state offense, not a federal offense. The idea is to protect obvious federal interests. The idea is not to create federal cases whenever the commission of a state crime has some incidental, attenuated federal consequence.

That is exactly correct although, again, it is somewhat of an understatement. What is going on here is a power grab, pure and simple. And not just in the Loughner case, but in a much broader federal versus state sense. As McCarthy intimates, this reading of the law behind the DOJ power grab would make just about any activity attachable under the federal penumbra. It is absurd and, frankly, troubling.

I also agree with Andrew that it is a tactical mistake. A huge one. Which makes this an across the board assessment, as McCarthy is a former AUSA prosecutor and I spent the better part of a career in and around criminal defense. I can flat out tell you, what the DOJ has done here is a defense lawyer’s wet dream on a tough case. If your client is dead to rights guilty, you get on your knees and pray for bunk like overreaching, overcharging, legally disingenuous trickeration and abuse of authority from the government. This plays right into the hands of a defense attorney trying to garner some sympathy from a jury for a diminished mental capacity defense. Toss onto all that the fact that Arizona, without question, has a much tougher, narrower and harder to obtain insanity defense than the federal one. In fact, it is effectively nearly impossible to win on insanity under Arizona state law. And for those interested in the death penalty (I am not particularly), AZ has, by light years, more experience in seeking, obtaining and, erm, executing it than the federal government does (the federal government has executed a grand total of three people in the last fifty years).

The statute the DOJ has twisted to reach this result in Loughner is 18 USC 245 and it is was created and designed to provide a mechanism for federal prosecution of suspect class related and other civil rights violations. The operative part of the statute being relied on here by the government is 18 USC 245(b)(1)(B) which provides:

(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—

(1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from—

(B) participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

But do take a look at the whole statute, and you will quickly see the hard civil rights nexus of the legislative intent. As opposed to the wild stretch made in Loughner. It is a critical and unnecessary expansion of the federal domain in criminal law, and at the direct expense of presumed state jurisdiction. As McCarthy intimated, if you become a federal protectee simply because you are in the vicinity of a Congress member, even in the curtilage of a supermarket, then about anywhere is good enough for the federal government to seize jurisdiction of. It is an unwanted and unnecessary expansion of Executive Branch power, something that has become more than a distressing trend with Mr. Obama and his administration.

It is not the only area of the Loughner case where brother Fed has belligerently spread its wings. No, as Josh Gerstein has reported (see here and here), the DOJ has sought to seal the autopsy records and gag the Pima County coroner as to the deceased Loughner victims. There are two problems with this. First off, there is no compelling reason for it. Secondly, it flies directly in the face of Arizona’s public records law and state case precedent. As Josh explained, so far the Loughner judge, Larry Burns, has been non-plussed with the attempt.

There is, of course, no federal law on secrecy of autopsy records, the government just decided that is what they would do because it felt good and some of the victims’ families said they would prefer it. With all due sympathy to the families, of course they would; most all crime victims would love to not have any of the details of the crimes that made them victims be put on public display. But that is not how America works; public records are presumed to be just that – public. That is how the citizenry keeps an eye on what elected officials, civil servants, police, prosecutors and courts are doing in their name. But DOJ just decided to step on Arizona’s presumptive openness of autopsy records as public records and opt instead for secrecy.

And, of course, there still exists the very germane issue of the chance, if not likelihood, that DOJ ginned up the scenario that Judge John Roll was “in the course of his judicial duties” when he casually stopped by the supermarket by his house on the way home from church to say hi to Gabby.

Which leads back to the bigger question – why is the federal government so aggressively and completely bigfooting on the State of Arizona in the Loughner case? Why is the DOJ just grabbing and dictating everything in sight on what is truly, at heart, very much a state and local crime? Because they can and they undoubtedly see it as an easy and glossy win. The Loughner case is very much a local affair in Arizona, but the Obama DOJ is willing to grab that ring, even if it doesn’t make legal, tactical or moral sense.

Despite the extra notoriety of the crime because Gabby Giffords was a US Congresswoman, everything about this case is really local in nature. Loughner did not set out to shoot Giffords because of profound policy disagreements or out of partisan zealot factors; no, he went after Gabby because he felt she snubbed him on a basically non-political metaphysical nonsense question he tried to ask her nearly four years before his January 8 shooting spree, and his hatred and anger toward Giffords metastasized over time. The rage focused from his deteriorating world and mental condition could have focused on any number of people – a friend or girlfriend who dumped him, a teacher or school official, or even one of his parents. It just happened that it was Gabby Giffords.

This was a local crime. The uncontroverted evidence to date is the attack was the act of a single individual, Jared Loughner, a 22 year old disaffected youth from Tucson. He was not particularly politically motivated. All victims were, at root, citizens and residents of Tucson. The act took place in Tucson. Most all of the initial primary investigation was done by the Pima County Sheriff’s Office. Loughner was arrested on the spot, booked into jail and properly within the criminal process of the Pima County court system, which has a very good record. Pima County could easily and properly prosecute Loughner for all the crimes, against all the victims, and do so without disingenuous contortion and stretching of nearly arcane, little used and inappropriate civil rights provisions. It could be done without propagating a giant and wild jurisdictional power expansion by the federal government.

So why are we where we are?

Because the Obama/Holder DOJ has taken a lot of lumps in high profile legal matters such as their feckless indecision about what to do with the Guantanamo detainee due process rights and trials and the near acquittal of the defendant in the Ghailani terror trial (unlike the Gitmo trial issue, the blame on Ghailani is completely misplaced). They could use some good publicity on a huge legal case, that is a sure fire conviction, and that captures the public’s interest and passion. And, of course, there is an election coming.

The Giffords shooting case has squarely captivated the American public in a visceral way and, for all the shouting, appears to be a strikingly simple crime at its root. Disaffected local youth buys gun, shoots up a public place. It is an easy “win” for the Federal government to glom onto. But it is hard to imagine that Gabrielle Giffords, born and bred in Tucson, would want this matter sucked into a Federal preening show so the DOJ can score some PR points. Same goes for John Roll, who was nearly a native, having moved permanently to Tucson nearly 60 years ago as a child, and spent a career as a prosecutor and judge in the local state court system prior to joining the Federal Bench. These leaders would almost certainly want all their fellow Tucsonian victims to be addressed and considered in the prosecution without stretching the law into a huge federal power grab from the states, and without giving Loughner a better defense mechanism.

But, sadly, there really appears to be no other equally compelling explanation for why we are where we are after the astounding superseding indictment filed last Friday in the Loughner case. There was a better, and higher road the DOJ could have, and should have travelled. But the DOJ did not; they so rarely do anymore.

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  1. dakine01 says:

    So in order to have an excuse to avoid going after banker fraud and other legitimate federal crimes, the Obama/Holder DoJ feels that they can give them an excuse by taking on state level crimes.

    Why does it seem to me that if they are successful, a future DoJ will use the precedent to completely preempt all local law enforcement and make all crimes federal in nature? /tin foil

    • bmaz says:

      It is not something I see as a problem for day to day criminal cases, but it sure provides a vehicle for politically motivated and/or grandstanding usurpation by the federal government.

      And, by going to such extremes in stretching the civil rights statute to glom onto Loughner, DOJ stepped right back into the shit on the conservative noise machine snit on the New Black Panthers matter. That thought fleetingly crossed my mind when I first started reading the superseding indictment Friday, and whatta ya know, I was not the only one. McCarthy has already taken it up and started the complaining on this ground. Now, the New Black Panthers thing is pure crap, but I sure see where this move by DOJ is going to be brought up to carry it on.

    • waynec says:

      dakine01,
      After reading the post, my thoughts exactly.

      By superceding states rights, the doj would set precedents in protecting the MOTU

  2. orionATL says:

    this is a very well-written informative essay.

    it sounds to me like someone in doj wants to fail in the loughner prosecution;

    could this “novel” approach possibly lead to a judicial dismissal of charges somewhere between fed district ct and supr ct?

    but then, again, doj has been over-reaching for the last decade on political indictments, in suspect “national security” matters, in its relentless abuse of “state’s secrets”, in its obsession with pornography, and, of couse, in a negative direction, in cleaning up professional, lawyerly corruption within the dep’t.

    so, horn in on local jurisdiction? why not?

  3. PJEvans says:

    I’m wondering what they think they can hide by doing this. Or who they’re intending to benefit, because I see the jury as going ‘F- you, it’s not a federal crime in our view.’

    • mattcarmody says:

      It isn’t up to the jury to decide whether it’s fed or state jurisdiction. They decide on facts of the crime as presented and rebutted. It’s the judge who should be pitching a bitch, I believe.

      • PJEvans says:

        That would be a lot better for everyone (except possibly the DoJ people). Generally speaking, I prefer that the jury not decide to take the law into its own hands.

        • thatvisionthing says:

          Whereas I’m with this guy:

          Explicitly acknowledging jury nullification, the first Chief Justice, John Jay, wrote: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy”.[3]

          and this one:

          JOHN ADAMS (1771): It’s not only ….(the juror’s) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.

          and this one:

          ALEXANDER HAMILTON (1804): Jurors should acquit even against the judge’s instruction….”if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong.”

          which must have something to do with why this guy said this:

          THOMAS JEFFERSON (1789): I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

          If you look at the DeChristopher case (Bidder 70, who bid on Utah land leases to protect the land) over in MyFDL, you’ll see that before the jury ever heard his case, the necessity defense was X’d by the judge, and the judge also did not allow DeChristopher to tell the jury that his payment was refused by the BLM and that the auction was voided afterwards (and before he was charged) because the BLM hadn’t followed the rules, and though DeChristopher was allowed to tell the jury his thinking, he wasn’t allowed to substantiate his thinking with facts. See link.

          You call that a trial? Really? Really? I call it unconstitutional suckitude. DeChristopher can be sentenced to 10 years in prison for saving that land, while BP . . . . . . . crickets.

  4. emptywheel says:

    The thing that bothers me about this big-footing is it threatens to delegitimize the very important use of federal intervention in AZ, on the anti-immigrant legislation. It’d be one thing if the govt had evidence that everyone–including the criminal justice system outside of Arpaio–would interfere w/justice.

    But there’s no evidence of this in this case.

    Furthermore, as you’ve pointed out, given the potential conflict problems with a federal judge hearing this case (bc of Roll), it seems safest, tactically to try the “local” murders locally.

    • earlofhuntingdon says:

      Yep, big-footing where it’s easy and illegitimate, avoiding the hot potatoes where it’s legitimate, necessary but requires paying a political price. Sounds a lot like our advocate for change in the White House, but only when it’s safe and politically convenient, preconditions his forebears would dismiss as fraudulent.

  5. Teddy Partridge says:

    It is absolutely no consolation that this blog called Holder for what he has become immediately upon his nomination. A more political Attorney General more supine for the Executive we have never had, and (after AGAG and AGJA) that is saying something.

    • bmaz says:

      Someday, when the Shit Square has had a few margaritas, he is gonna do a tally of things like that. And you are right, it is pretty meager food for souls forgot.

  6. donbacon says:

    Perhaps Loughner, like Petraeus, could just accept responsibility and apologize — case closed? /s
    news report:

    Rep. Gabrielle Giffords of Arizona was shot in the head Saturday when an assailant opened fire outside a grocery store during a meeting with constituents, killing six people and wounding 13 others.

    Clearly a case can be made, and the U.S., has made it, that a congresswoman, an agent of the US government, meeting with constituents, is a federally protected activity. “These victims were exercising one of the most precious and fundamental rights of American citizens: the right to meet freely, openly and peaceably with their member of Congress.”

    Attacking an agent of the US government, seems to me, is a federal case just like attacking a state official would be a state case. This was not cash for clunkers.

    • bmaz says:

      So just because it CAN be charged by the feds, who really only have jurisdiction on five out of the 22 victims understand you, and maybe only four as I am pretty sure that the case that John Roll was in the course of his judicial duties is a complete crock of shit, you think the feds SHOUL bogart the whole prosecution even though it would be far more logical, efficient and legally sound to do it as a state prosecution??? That is somewhat mind boggling.

      • earlofhuntingdon says:

        I read too fast and missed that the feds included the assault, attempted murder, etc., charges on all the victims. That makes the arrogance stellar, and will make it much harder for the state if it has to retry the cases later because the feds lacked jurisdiction. No wonder there’s so little love lost sometimes between federal and state law enforcement.

        I wonder if some of the FBI and DoJ resources being used here to investigate what are common state law charges could be retasked to work on bank fraud. I’ve heard there are a few cases that need investigation, and that it isn’t being done because the feds claim it’s too hard and they haven’t the time, money or resources to tend to them.

        • thatvisionthing says:

          Can Arizona challenge this? Or do a dual-track prosecution, the four to the feds, the rest to Arizona?

            • bmaz says:

              Yes, Judy Clarke could file a motion to dismiss. In a way though, if I thought I was going to trial, I would give serious consideration to just leaving it be and beating the shit out of the prosecution with it in front of the jury in order to lay a path to a claim of oppressive overreaching when I argue insanity.

              Which is the other factor here, it in far easier to win on an insanity defense if federal court that in Arizona state court. Like I said in the post, if I am Loughner’s attorney I am salivating at this horseshit.

              • earlofhuntingdon says:

                Was the outcome in Ted Stevens’ case, for example, a matter of inadvertent prosecutorial incompetence or a welcome outcome that avoided convicting a longtime Republican pol of multiple felonies?

                Even if it were the latter, it’s hard to see how the same dynamics apply as do here. This is not a case where a Republican president and Republican appointees in the DoJ want to tread lightly on the retirement years of a corrupt conservative politician.

                Obama has every reason to want to see that this case does justice and is seem to do justice. That seems especially true in a state much of whose population dismisses the legitimacy of his election and his right to hold office, and which is so addicted to the unregulated use of weapons that it threatens to regularize rag tag vigilante militias into a governor’s praetorian guard.

                Federal overreach on collateral state prosecutions – that need have no bearing on the successful conviction of an alleged multiple murderer, but which may taint it – would not seem to be a thoughtful, professional, honorable, effective or practical way to achieve legitimate federal ends. It also seems unlikely to be the choice of an overzealous USA. These charging decisions must have been approved by Holder’s office, by Bill Daley in the White House or by both.

                • bmaz says:

                  Oh, they will get him convicted up. It would just all be easier, clean and tidy, for all victims, in state court. And then the feds have the specialty statutes for attempted assassination etc. available as a backup. And the witnesses, living victims, families and people of Arizona are taken into consideration because the case gets tried in Arizona, probably Maricopa County, which is not far from Tucson. With the Feds, they have already made clear they are going to move it to San Diego, which is totally bogus.

              • thatvisionthing says:

                Well now I’m torn. You all know that I think the DOJ, and Eric Holder specifically, has dirty hands. (If anyone doesn’t know what I’m talking about, just do a search here on “Eric Holder sucks” or “Trentadue.”)

                If Clarke goes after the DOJ, then I can hope this could be like the OJ trial, if the jury acquittal of OJ meant a conviction of LA police department dirty practices. A working check and balance. And I’m all for exposing and condemning a dirty, unchecked DOJ — but it doesn’t do much for justice for the victims.

                Loughner looks to me — and truly I have not followed this case — superfically at least like a typical target of a DOJ entrapment where they go casting for right-wing terrorists. Maybe that’s why they’re taking over the case, it’s their kind of story, they need to jump in and play their role in homeland security terror theater.

                But a curious detail to me is the hidden autopsies. A falsified autopsy on Kenney Trentadue is part of what then-Deputy AG Eric Holder’s Trentadue mission covered up. Kenney Trentadue was beaten to death in federal prison, I think by FBI investigators (although Jesse Trentadue’s FOIA trail finally ended in “state secret” and CIA involvement), and great pressure was brought to bear to have Kenney’s death called a suicide by hanging. See James Ridgeway’s article in Mother Jones, In Search of John Doe No. 2. Ergo, I wonder can it possibly be that Loughner himself is a victim or patsy in some way of the DOJ?

                All in all, it would be so much better to have a clean and unpoliticized DOJ. I dream.

          • earlofhuntingdon says:

            Bmaz would know more. I suspect any dual track prosecution, though permissible, would confuse more than help. It would also be pragmatically hard, since the feds would assert sole control over the available evidence.

            If the federal appeals courts accept the DoJ’s assertion of jurisdiction over these traditionally state law crimes, it would also arguably amount to prohibited double jeopardy. That would provoke an unnecessary argument over whether the crimes are suitably identical. That is, whether the federal crimes of denial of civil rights are sufficiently legally distinct from state law crimes for murder, attempted murder, assault, etc.

            It would lead to a greater waste of resources, possible unfairness and chaos, avoiding all of which would be a legitimate, but insufficient reason for the feds to assert complete jurisdiction in the first place.

      • donbacon says:

        I believe the claim is not that each individual was federally protected but that the event was.

        • earlofhuntingdon says:

          Federal jurisdiction would follow the Congress person, but not apply to each and every place s/he traveled or to everything that happened to every person in her vicinity. The penumbra of federal jurisdiction ends with Ms. Giffords and with each federal employees harmed while peforming their federally prescribed duties.

          Sexual assault by one audience member against another, for example, even in a Congressperson’s presence, hardly seems a federal matter. Likewise, had shots carried another 100 feet and killed shoppers in Victoria Secrets, a multiplex or a Borders Books.

          Loughner allegedly attempted to kill a member of Congress. He didn’t care how many in her audience or nearby were killed in the process, or about which laws he violated.

        • bmaz says:

          Uh, yes, and the ONLY way to get to that position is through a grotesque contortion of a statute that was not designed for that purpose. Quite frankly, that position is just full of dung, and when people from every end of the legal spectrum basically agree that it is a wild overreach, then ya gots yourself a wild overreach.

    • bmaz says:

      I hear she really is doing as well, or better, than the press reports, but that she still has a long way to go. But, honestly, I don’t know much more than what is in the press.

    • pdaly says:

      bmaz, what’s the scuttlebutt in AZ regarding Rep. Giffords’ prospects for recovery? I do hope she does not follow in the footsteps of Phineas Gage. Such a loss would be truly tragic.

      and bmaz @13

      Phineas Gage’s tamping iron had a tapered end that entered his skull first. That taper probably help spare his life, by “gradually” pushing the brain apart as the rest of and wider part of the tamping iron completed its journey through his skull and landed on the ground several feet away. Not sure how the bullet that entered Giffords’ skull compares in damage, but I’m hoping it was a narrower path.

      It is encouraging that Giffords is recovering from such a horrific accident. And it is a relief that Congress has not tried to vote her seat “vacant.”

      But while she recovers, with everyone’s blessings, her constituents are taxed but are not represented in the House. Should they get a tax refund? (I’m only half kidding) Maybe they could redirect their taxes, if they so wished, to taking care of Giffords?

      • bmaz says:

        Her office is completely open and operating on all fronts, including constituent services, from my understanding (and she supposedly has a very good office). Her district is, of course not voting on the floor, but it is still less than two months. I think she is entitled to a few months to see what the prognosis is, and I am pretty sure a solid majority of her district agrees.

        • earlofhuntingdon says:

          There are quite a few examples of Congresscritters being absent for extended illnesses, including drug and alcohol rehab, strokes, etc. Not to mention, there are a number who simply don’t do their jobs. I agree that Ms. Giffords deserve more time to consider her options and how well she can continue to represent her district. To state the obvious, as with Congress’ superb health care, it’s not an option most American workers would ever have.

      • pdaly says:

        noticed this on rereading and fixed it:
        It is encouraging that Giffords is recovering from such a horrific accident crime.

  7. earlofhuntingdon says:

    The gross federal overreach here – attempting to make federal quintessential state law murder allegations – is a thread in the larger weave of federal overreach. Fusion centers are another, where federal-state “cooperation” is rather like Daimler Benz’s claim that its acquisition of Chrysler was a merger of “equals”. Ditto other forms of local-federal cooperation in fighting ordinary crime, and local law enforcement’s growing dependency on federally financed toys, weapons and operating budgets.

    The Arizona USA’s claim might be especially to the feds now, in the run up to a probable attempt to federalize something quite different – the settlement with the banksters over their massive mortgage frauds. That would simplify things mightily for the banksters, who are hoping and paying to deal only the much more cooperative feds, who would like them to pay a pittance for their crimes – amounts similar to annual bonuses in exchange for skipping liability on trillion dollar losses to states, families and the national and global financial systems – without being forced to change their managements or business models and practices.

    The federalization in the Arizona cases also threatens to give the case, at least the parts of it involving the state murders, a Ted Stevens outcome. If the feds are later found to have not had the required jurisdiction to try the state murder cases, then even if the feds obtain convictions, they would be thrown out. Without what’s called subject matter jurisdiction, the court would have had no power to try the defendants.

    That, in turn, would present the unnecessary problem of defending a double jeopardy claim, the defendant’s argument that he can’t be tried again in state court. That should fail, because if the court lacked jurisdiction, the defendant would never have been in jeopardy. But considerable time would have passed, evidence would go stale and jury pools would be affected. And unfair things would still have been done, costs would have been unfairly incurred and scarce tax dollars wasted, without justice being done or being seen to be done.

    That’s neither effective, nor productive. It’s an attempt to monopolize a legitimately complicated, two-player process. One actor wants to steal the show, no doubt with November 2012 in mind, to the detriment of all concerned.

    • bmaz says:

      Yes, exactly. This sets a precedent that bleeds into so many potentially pernicious areas in this day and age of terroristic fear that it is really kind of scary.

  8. earlofhuntingdon says:

    Here is a little OT that ironically relates to Bradley Manning (emphasis added):

    The revelation that Americans infected Guatemalans with syphilis is a terrible reminder of experiments on blacks, prisoners and the mentally ill, and Obama is demanding action.

    Shocking as it may seem, US government doctors once thought it acceptable to experiment on disabled people and prison inmates. Such experiments included giving hepatitis to mental patients in Connecticut, squirting a pandemic flu virus up the noses of prisoners in Maryland, and injecting cancer cells into chronically ill people at a New York hospital. At one point, pharmaceutical company officials said they were using prisoners for testing because they were cheaper than chimpanzees.

    Much of this horrific history is at least 40 years old
    , but it was the backdrop to a meeting in Washington last week of a presidential bioethics commission. The gathering was triggered by the government’s apology last autumn for federal doctors having infected prisoners and mental patients in Guatemala with syphilis 65 years ago. US officials also acknowledged there had been dozens of similar experiments in America, which often involved making healthy people sick.

    Odd how Mr. Obama can demand action to address wrongs decades old – presumably, because he calculates he need pay no price for it – but can’t fathom how anyone could think it right and proper that he act to prevent such things from happening now, such as the intentional abuse of Bradley Manning.

    Obama is willing to address problems decades old, to be seen as a man of honor, principles and courage. He’s willing to deal with a possible shortfall in Social Security’s funding that won’t happen for 25 years, by making sure that its benefits are cut today. He’s like Navy pilot who makes the best take-offs and landings in the fleet, but will never leave his ship’s sight in order to fight the enemy.

    • earlofhuntingdon says:

      From the same article. Note the expression of American exceptionalism and the convergence in the growth of unethical experiments with the growth of the US pharmaceutical industry:

      The prosecution of Nazi doctors in 1947 led to the “Nuremberg Code”, a set of international rules to protect human test subjects. However, many American doctors ignored them, arguing that they applied to Nazi atrocities, not to US medicine.

      The late 1940s and 1950s saw huge growth in America’s pharmaceutical and healthcare industries, accompanied by a boom in prisoner experiments funded by both the government and corporations. By the 1960s, at least half the states allowed inmates to be used as medical guinea pigs.

      I especially liked the special pleading. The Nuremberg Code – a forward looking set of rules meant to apply ethical standards of patient treatment in new medical research – applied only to Nazi experiments and experimentalists, not to vaunted US medical researchers and their research.

    • earlofhuntingdon says:

      In widely covered congressional hearings in 1973, pharmaceutical industry officials acknowledged they were using prisoners for testing because they were cheaper than chimpanzees.

      Today, 50% or more of drug testing for effectiveness and side effects takes place in the developing world. Federal regulators assess fewer than 1% for compliance with standards and federal guidelines, though Republicans argue that any resulting FDA approvals should bar companies from liability for damages from anticipated use of such drugs.

      Mr. Obama is right to be concerned about prior gross ethical violations in federally funded programs. He should also be concerned about preventing future ones, and those going on now. Chimpanzees are not supposed to have more rights than some federal prisoners, even if they prefer to sleep naked.

      • mzchief says:

        I have a real problem with an industry trying to avoid its obsolesce on the backs of anybody/everybody. This crony, fantasy-of-infinite-growth capitalism is consuming itself and will only take many more people with it. Now would be a really good time to stop the madness.

  9. PeasantParty says:

    Bmaz,

    Thank you for all your work on this and keeping us informed in the Arizona sentiment. There is a line between where the Feds and the State should be on this and the DOJ seems to be crossing in many places.

    I agree that it is over the top. I also agree that the DOJ has overstepped boundaries, not just in this case but others. Until, I see Holder do more of his real job and not the chest thumping routine I have no respect for him.

    Judge Rolls duty has been noted not to have been official at the time. I just don’t know if the bulk of Arizonans agree that the case should be handled this way. Can you shed some light on that for us?

    • bmaz says:

      Well, most people do not really get into such intricacies. There are many folks in the legal community here that have similar thoughts including many in Pima County.

  10. JohnJ says:

    Thank you bmaz. You must be a thorn in the paw of a lot of the DOJ (come on, they have to see this stuff).

    And this:

    And for those interested in the death penalty (I am not particularly),

    makes you first class in my book.

  11. donbacon says:

    Again, the federal focus is on the event. Giffords and others were attacked during a meeting of constituents with a member of Congress, which DOJ is calling a federal activity. Makes sense to me. If Giffords is simply walking around the mall, that’s different. Loughner’s intentions are irrelevant, it seems to me. But now I’ll defer to those who unlike myself actually know something about the law.

    • PJEvans says:

      Only the congresscritter (and probably her staff) are covered by that statute (if that). It wasn’t a federal event for anyone else, because they aren’t federal employees.

      • donbacon says:

        Jeez, you kept me in it. How could it be one kind of event for some attendees but not for others?

    • bmaz says:

      Whether it makes sense to you is irrelevant; it is a bastardization of law that was not intended for that purpose. A fact you seem to be all too willing to ignore and completely incapable of contradicting.

    • earlofhuntingdon says:

      A Congresscritter’s presence does not confer federal jurisdiction over all people and things present around her, even if she is acting in performance of federal duties. The same is true for all other public employees who work for the federal government. Moreover, a federal judge gambling with friends doesn’t federalize the poker game, nor does the President attending a civil ceremony at a town hall federalize the marriage. At best, only their persons are protected by federal law, not those around them or the things going on around them.

  12. Mile23 says:

    Feds may think it’s such an open-and-shut case that they can make a political demonstration that the federal government provides better justice than the state. That would really suck if they thought that, because even if they didn’t, Bill O’Reilly will say it anyway.

  13. workingclass says:

    Lawyers will be the last people to understand that the law don’t mean shit anymore. Obama is the law. You can continue to make your case as you mount the gallows

    • thatvisionthing says:

      Well, the bright side is that it’s becoming clearer and clearer that “legal” is not “justice.” And unserved justice is a powerful customer. The more the government delegitimizes itself, well… there’s an arc to this, even if it’s long.

  14. greenharper says:

    Thanks, bmaz, for this. What I see in Title 18, U.S. Code, Sect. 1114 provides for federal prosecution ONLY of “Whoever kills or attempts to kill any officer or employee of the United States Government … while … engaged in or on account of the performance of official duties, or any person assisting such an officer or employee….”

    So, re federal jurisdiction: Rep. Gabby Giffords, while meeting with constituents, for the attempt, yes. Judge Roll, stopping by to say hello, for the murder, no.

    Constituents, absolutely not. The statute says nothing about them. It’s all about the federal officer or employee, and only re his or her official duties.

    But a federal desire to prosecute juicy murder cases is nothing new.

    When President Kennedy was assassinated in Dallas, the N.D.Tex. U.S. Attorney’s Office was at first certain that there was federal jurisdiction. There was not. It was a state crime: plain old murder. So, the DA’s Office got what glory there was to be had.

    Federal legislation protecting federal “officers and employees of the United States Government” followed.

    The purported extension of federal jurisdiction here is nonetheless disturbing for another reason. Unless they got it as state prosecutors before becoming feds, federal prosecutors nowadays on the whole have zero experience prosecuting murder.

    This is no case for a prosecutor who has never handled a murder before.

  15. mattcarmody says:

    It’s interesting that in the aftermath of Dr. Tiller’s murder, where there was a federal law, FACE, to address threats and harassment at abortion clinics no concerted effort by the Obama DoJ was launched to protect those places.

  16. NMvoiceofreason says:

    I’m going to disagree, not to be disagreeable, but just because the other side of the argument needs to be made. Not that I disagree with my friend BMAZ or his excellent analysis, either.

    Equal protection law, well tied to civil rights and 18 U.S.C. Section 240 et. seq. says that voting rights are fundamental federal rights protected by the federal statutes. In fact, all of the people in the line of fire at that supermarket were exercising federally protected rights, petitioning the government (through their representative), considering whether to vote for her next time, etc. Judge Roll was doing official business, discussing judicial appointments on the short bench in the 9th circuit and how to best get nomination, stalled in the Senate, back on track. In Case law, it is a functional analysis, not a time and place analysis. Were Gabby and her staff doing the official work of a congressional office? Yes, they were. Was Judge Roll doing the official work of the chief judge of the Arizona District? Yes, he was. Were the people, exercising their protected civil rights for voting, and first amendment protections operating within the functional equivalent of a congressional office? Yes, they were. Are these charges being charged federally an overreach? Yes, they are. Despite colorable federal jurisdiction, only the direct assaults and murders on federal officers should have been charged by the federal government. Traditionally, issues of comity have left such choices to be made by the State, who while they must stand in line behind federal pre-eminence, should nonetheless be given the chance to obtain justice on their own terms for their own citizens. If they do not protect the rights of their citizens, they would then be liable to 42 U.S.C. Section 1981 and 1983 claims. The federal officers are just as liable for failing to protect the civil rights of Arizona citizens, but prosecutors in both the State offices and the Federal offices have absolute immunity for their charging decisions. So where jurisdiction of the offenses is colorable to the federal government, judicial economy suggests only one set of proceedings is necessary, and the full panoply of rights will be protected, there is no reason to avoid asserting federal jurisdiction.

      • NMvoiceofreason says:

        We are all sinking. We must have all boats rise together, or bail each other out separately.

        • earlofhuntingdon says:

          That describes an American community of spirit that Norman Rockwell immortalized and that many in Main Street still prize. It keeps them afloat amid the rising waves generated by ruthless policies coming from Washington, from state capitals, and from the ruthless business leaders that support them. It is not a behavior or perspective shared by such leaders, however, and I think that’s something voters and purchasers of goods and services should take very much to heart.

    • earlofhuntingdon says:

      Your facts are all in question.

      Judge Roll was visiting a friend and political leader. The claim that he seriously intended to raise the heated issue of Obama’s failure to appoint or the Senate’s refusal to act on federal judicial appointments, or the issue of the House’s reluctance adequately to fund the judiciary, in a short conversation with a single Congresswoman making a house call at a shopping center in her district is, shall we say, a stretch.

      Being in the line of fire doesn’t make everyone in the shopping center a victim of a federal crime. Quite the opposite. It should be presumed to be a state matter until a specific federal statute legitimately makes it a federal matter. There is such law regarding the protection of federal employees conducting federal business. That applies to Ms. Giffords and her staff.

      It doesn’t apply to the media in attendance or to shoppers. It doesn’t apply to her constituents, who would be aghast at the idea that the law of their home state suddenly ceased to exist in the immediate wake of a visiting politician. Federal law would have applied had Ms. Giffords or her staff illegitimately interfered in the exercise of her constituents’ rights to speak, assemble or petition. For example, had she adopted the common CheneyBush technique of shunting them to “Free Speech Zones” out of eye, ear and camera shot, or had them arrested for wearing colors or slogans that suggested they had not voted for Ms. Giffords. None of that applied here.

      Federal officers were not charged with enforcing Arizona state laws in the absence of an established pattern that state officials refused to enforce them in a non-discriminatory way. If present, they were there to protect the persons of Ms. Giffords and her staff while performing their duties as public employees.

      The reality here is that Loughner is alleged to have violently violated multiple state and federal laws. His alleged conduct could readily be dealt with via sequential state-federal or federal-state prosecutions. What the DoJ is doing here is common ordinary grandstanding. It is not enforcing civil rights because no one else will. It is not respecting federalism, federal law or the purposes for which it exists.

      • NMvoiceofreason says:

        Hear hear! Didn’t say that the argument wasn’t full of holes, just that someone needed to make it.

        The stuff about Judge Roll was from quotes about why he was there in the first place.
        Judicial emergency

    • bmaz says:

      That bit about Judge Roll I believe to be a totally manufactured crock of manure (from DOJ, not you). And I have friends in Tucson that were very close to him. Not to mention that Giffords has absolutely NOTHING to do with the judicial docket issue. Nothing. She is not in the Senate, doesn’t confirm judges; heck she isn’t even on the judiciary committee in the House. Nor is she involved in Appropriations Committee. She has nothing to do with the issue. It is disingenuous manufactured bunk. The judge, on the way home from Saturday Mass, was driving right by the Safeway at Ina and Oracle which is literally right by Roll’s house, and just decided to stop by and say hi to Gabby who he has known for quite some time. That’s it. Period.

      • NMvoiceofreason says:

        You know better than to accuse the DOJ of trumping up non-existent facts to support their ludicrous positions.

        • bmaz says:

          Heh, yeah, I have pretty thick skull on learning that don’t I? I just keep tilting away, cause I don’t like the alternative. Same as to the point you made in the previous comment, which is oh so true – DOJ just acts with impunity. There was a time when they actually earned a fair amount of deference, but that day is long, long passed.

  17. geoshmoe says:

    Good report,

    Here’s my question: couldn’t it be that it is all about undoing the rule of law?
    To back down the whole society from it’s strength in structure and the common held power of a nation that knows what is right and wrong, and can’t be pushed around.
    The people are used to a certain level, but not for long.

    Back when I worked in a union, we enjoyed work rules and practices that had been common practices for hundreds of years, not codified, but known to all, as second nature, not to be argued about. Like citizens know their rights, mostly.

    So the union contract came to be preeminent, and all quibbles and disagreements would be handed to the business agents and employer reps and arbitrated, with always a creep of interpretations and lengthy arcane language issues, way far away from what the workers…. (proles…) could be expected to grasp. Each and every condition eroded away, over time. Like citizens probably notice too, mostly maybe.

    switch gears.
    Back a few decades talk of business crusading into the iron curtain and Russia, And in particular China, was met with skepticism concerned with the “lack of rule of law” and that would make it unfeasable, I think I remember the argument.

    But when everwhere you look now there is such an amazing amount of slip shod adherence to law, coupled with revolutionary redrawing of lines of what has been expected practices, and not to really do it justice, at all: no enforcement, executive fiat, (unitary…?) and everywhere the lines are creeping and being pushed and obscurred from within the system, Hence: systems methods, verses benign chaos, or entropy like you are supposed to think.

    Take MERS and it’s assault on the system of private property record keeping. Above and beyond the seeming greed based reasons, is a much worse scenario, where property could be de facto grabbed (nationalized ) not by your friendly communist revolution… haha… but by corporations, who don’t even have any good marching music.

    Federal creeping in over the states has been going on for a long time, but I’m running out a steam.

    My point is : that it is a systematic grand plan all about undoing the rule of law, in the nutshell.
    That was the one thing that stood United States of America apart, from the others.

    Privatization, Law only for the new “citizens” the elite, all others there will be no law.

  18. becomingjohngalt says:

    I am no legal scholar and am not fit to comment on the legal theory and appropriateness of this approach. But what makes this any different than the act of taking a crime committed against a person of color and re-characterizing it as a “hate crime” or a violation of someone’s civil rights? In both cases, we’re saying the existing laws on the books are not sufficient to punish a crime against a certain class of victim, and thus over-reaching to crate new “crimes” that bear stiffer penalties.

    • earlofhuntingdon says:

      The examples you give are not the same. The Loughner situation is almost a reversal of the circumstances that led to creating federal crimes for civil rights violations.

      Existing state laws more than adequately deal with all the crimes Loughner is alleged to have committed. Existing federal laws deal with some of them only. The administration proposes taking exclusive jurisdiction over all of them anyway, through novel and needless extensions of laws not intended for such purposes, and doing so in a way that deprives Arizonans of having any say in policing events that happened in their own backyards.

      Civil rights violations were created as federal crimes as a way to promote justice – and to impose consequences for violent, lethal assaults – where states and leaders in them blatantly refused to apply state laws in an equal, non-discriminatory way.

      • becomingjohngalt says:

        Ok, I see your point. So are these federal laws still needed? Are you saying that states of the 21st century are still blatantly refusing to apply states laws in a non-discriminatory way? And that the federal government is right to usurp states’ rights in these cases?

        • NMvoiceofreason says:

          Yes, they are still needed. And the case law says that the federal government is also liable for the misbehavior of federal officers (with certain limitations). We are a contractural or Constitutional Republic. One of the earliest cases, Marbury v. Madison has a quote I still love:

          To
          what purpose are powers limited, and to what purpose is that
          limitation committed to writing; if these limits may, at any time, be
          passed by those intended to be restrained? The distinction between a
          government with limited and unlimited powers is abolished, if those
          limits do not confine the persons on whom they are imposed, and if
          acts prohibited and acts allowed are of equal obligation.

          People make mistakes. People go beyond their authority. People refuse to act when they should act to protect others. At least the rule of law allows us to try to sort that out. Justice doesn’t always happen. But at least we have the ability to try.

          • earlofhuntingdon says:

            Marbury v. Madison was an landmark early Supreme Court case. It established the principle that the federal judiciary had the power of judicial review. That is, it could decide whether actions by the federal legislature, and impliedly by the executive or judicial branches as well, could violate the Constitution and if they did, deem them void and unenforceable through the courts.

            It doesn’t apply to the Giffords case or its facts. There’s no constitutional issue at work here beyond federalism. The state is capable and willing to act, its courts are open, its law on the issues relevant here is clear and publicly available, it has concurrent jurisdiction over all these actual and attempted crimes. The feds have concurrent jurisdiction over some of them.

            The issue is that the feds have attempted to assert jurisdiction over all of them and whether that would work an injustice to Mr. Loughner, the people he is claimed to have harmed or the state of Arizona. I think its asserting exclusive jurisdiction over all these crimes and prosecuting them in San Diego would.

            • NMvoiceofreason says:

              Actually, while often used to be the prima facie example of judicial review, the Marbury case was actually about a Mandamus. The statute that the Mandamus was based upon was found to be unconstitutional. Judicial review exists only in as much as things are within or outside of Constitutional scope.

              I was using Marbury to illustrate the point that regardless of who you are, you have to conform your actions to the Constitution. Except if you are a lawyer. Especially a DOJ lawyer. Especially in making a charging decision which is such an absolute reach that it shouldn’t be allowed. Except there is a colorable excuse and they have absolute immunity for charging decisions. Not reviewable, absolutely immune. Lets review: Marbury establishes that all government officers act within limited authority. Except DOJ lawyers who even acting Ultra Vires, beyond their authority, are absolutely immune. Stands Marbury on its head, doesn’t it?

              • earlofhuntingdon says:

                I applaud your reference to Marbury, but don’t think it applies here. As you say, Marbury is the original case to declare that the federal courts have the power to review acts of the branches of the federal government – [when they are ripe for judicial review] – to declare them to be within or outside their constitutional powers, and if the latter, to be void and unenforceable.

                I disagree with your implication that judicial review is obvious. When Marshall decided Marbury, it was not clear on its face that the right of judicial review was one of the powers of the federal courts. It was not listed as one of them in the Constitution, nor was it then or has it since become a power exercised by the courts in England, many of whose laws and traditions had been adopted into the new American federal system. Marshall was walking on untried ground.

                The details are helpful because judicial review is the the process outcome of Marshall’s decision. As you say, the issue was whether the Maryland financier Marbury, a supporter of Adams and staunch opponent of Jefferson, could bring suit in the Supreme Court and cause it to issue a Writ of Mandamus, a procedure used by courts to force an unwilling executive to act.

                In this case, it would have forced the newly-elected Jefferson to fulfill his opponent and predecessor Adams’ promise to make Marbury a justice of the peace, by requiring James Madison, Jefferson’s Sec’y of State, to deliver the requisite paperwork. Since Adams was no longer in office and his powers of appointment left with him, the effect would have been to force Jefferson to appoint a political supporter of his opponent to a judicial office. Unlike Obama, Jefferson was reluctant to give a patronage appointment to a bitter rival’s wealthy supporter.

                Marshall, who had been Adams’ Sec’y of State but who was now Chief Justice, decided against Marbury. His logic was that by its terms, the Constitution was supreme over all other laws, including ordinary Congressional legislation; the Court’s original jurisdiction was conferred by the Constitution; the attempt by Congress to change that jurisdiction through ordinary legislation was, therefore, legally insufficient. The legislation Marbury relied upon as authority to ask the Court for a Writ of Mandamus was unconstitutional. As a consequence, the Court had no power to issue the writ.

                We agree that the Justice Department’s attempt to assert control over the prosecution of all of Loughner’s alleged crimes is an example of prosecutorial overreach, that it is a continuation and worsening of the departments’ politicization, and that it and the government generally are becoming less respectful of and responsive to the needs of the states and ordinary Americans.

                  • earlofhuntingdon says:

                    Apologies for the length. Sometimes it seems important to describe how things happened rather than what happened. The personalities and political and economic conflicts were as relevant then as they are here or in Egypt today, as they were in lethal disagreements between papists and Elizabeth in Tudor England.

                    As Faulkner said about conflicts in Mississippi, the South and generally, “The past is never dead. It’s not even past.” That’s certainly how warriors still fighting the War of Northern Aggression feel, as do corporate leaders when talking about unions past and present. It’s why Europeans but not Americans can say, “workers’ rights”, without irony.

                    • NMvoiceofreason says:

                      No apologies ever needed to me for your wonderful arguments and comments. Even if we disagree. Which we don’t do here, but we might do elsewhere, and elsewhen, even if it seems we are disagreeing instead of discussing, which doesn’t actually involve the cussing either.

                • pdaly says:

                  Thanks for the summary. I’d like to know how Marbury got “standing” to go directly to the US Supreme Court to have his grievance heard. More of that please, US Supreme Court.

                  • earlofhuntingdon says:

                    Briefly, Adams attempted to appoint dozens of lower court judges and JP’s shortly before he relinquished his office to Jefferson. He appointed so many that his Sec’y of State, Marshall, didn’t have time to issue the necessary paperwork on all of them before Adams’ term was up. Everyone seems to have assumed Marshall’s successor, Madison, would just follow through on that. Jefferson, sensitive to the political ramifications, put a stop to it.

                    Marbury hadn’t received his paperwork, felt aggrieved and filed suit under the Judiciary Act of 1789, a federal statute that had attempted to expand the Supreme Court’s ability to hear cases in the first instance, to include suits involving writs of mandamus and their corollary, writs of prohibition, which involved attempts to force or prohibit action by federal officials.

                    Under the Constitution, the Court’s original jurisdiction was limited to cases where a state was a party and those involving ambassadors, consuls and the like. Its other jurisdiction and its primary work was as the final appeals court in the federal system.

                    The controversy wasn’t about Adams’ judicial appointments directly: the Senate had approved them. That was a background issue, as was the simmering conflicts between Jefferson’s and Adams’ parties. The controversy was about the validity of legislation authorizing the expansion of the Court’s original jurisdiction, and about Marshall’s reasoning in holding it invalid, his elaboration of the Court’s power of judicial review. Both were contentious. Jefferson strongly disagreed with it, for example, because he feared it gave unelected Supreme Court justices too much authority over the executive. Nevertheless, Marbury became and remains good law.

                    • earlofhuntingdon says:

                      Jefferson was no fan of judicial review as elaborated by Marshall, but I doubt he would have been a fan of allowing the federal courts to issue frequent writs of mandamus or prohibition to his officials. It’s hard to imagine Marshall liking it either.

                      The legislation authorizing that would have put the Court in the middle of frequent fights between the Congress and the president, and between the president and, typically, wealthy aggrieved members of the opposition party’s supporters. If that were my choice, I’d take the power of judicial review every day of the week and twice on Sunday.

                      I must say, though, during the Bush and Obama years, it would have been helpful to followers of the rule of law to have had a court system able to issue such writs against prosecutors unwilling to bring suit to enforce the law or to punish obviously illegal conduct. The resulting fights would have been at least politically bloody, which is one reason, I assume, Marshall took a different route. Whereas we might once have believed in the ability to alter the president’s and the Congress’s make-up via elections to right such wrongs, after Obama’s continuation and expansion of CheneyBush’s worst legal excesses, who knows.

                    • NMvoiceofreason says:

                      Mandamus still exists, 28 U.S.C. § 1361. All you need is a clear, mandatory, non-discretionary duty. Not many of those left anymore.

        • earlofhuntingdon says:

          What I am saying, and I think bmaz is, too, is that the federal laws making violations of civil rights a federal crime are exceptions. They were designed to deal with a once common, but radical circumstance: states refused to give some of their neighbors the law’s protection, because they were black or poor or otherwise not deemed by their white neighbors to be worthy. The overwhelming factor was the social and economic system generated by three hundred years of African Americans being owned (legally or practically) as slaves by whites.

          Those laws still exist and should. Their origins arise from racial discrimination, which still exists, as do other harmful forms of discrimination. The Obama administration’s parlance that he or we live in a post-racial society is a fairy tale. Haley Barbour’s politicking alone proves that.

          Those laws are meant to cover gaps in the existence or application of state laws and narrow, more traditional federal laws. Those gaps don’t exist in the Giffords case. Where they don’t, where a state is willing and able to apply its own laws in a fair, non-discriminatory way to adjudicate violent crime, the feds should let it.

  19. orionATL says:

    [email protected]

    your comment makes a creative contribution to this discussion. i enjoyed reading it.

    nal, but it seems strange to me to use federal civil rights law to tackle murders when, e.g., arizona has state laws specifically designed and time-tested to tackle murder within that state.

    i could understand using federal civil rights law after a state trial if the outcome were similar to state trials of murdered civil rights leaders/workers in mississippi in the ’60’s.

    • NMvoiceofreason says:

      Thanks. I HATE having to argue for the DOJ’s position on anything, but if you can’t argue for your opponent, you can’t effectively argue for yourself, either. As I pointed out, DOJ should have prosecuted for the Fed victims, and let AZ prosecute for the other AZ victims. But ethics has never been DOJ’s strong suit.

  20. Nell says:

    They could use some good publicity on a huge legal case, that is a sure fire conviction

    But that’s what makes it so bizarre; conviction for the murder of a member of Congress and a federal judge would seem to be almost gimmes. Why isn’t that enough? How will they get better publicity for taking the cases of the Arizona residents out of state hands?

  21. Nell says:

    I meant attempted murder of a member of Congress and the murder of a federal judge.

    I appreciate NMVoiceofReason’s contributions, but still not seeing even the tactical advantage of preempting the state prosecution for the crimes committed against the other victims.

    And EW’s point in #5 makes it even harder to see an advantage; wouldn’t the Feds want to avoid pissing off the local law enforcement/justice system in this? Or is their thinking, in for a penny in for a pound — that is, we’re going to have to bigfoot on immigration law anyway (with a stronger legal basis) and piss them off, so let’s get it over with and reap the national political benefits?

  22. orionATL says:

    [email protected]

    i like that quote very much.

    i will add, parenthetical to this discussion,

    that i wish to god the federal district, appeals, and supreme court justices of our time

    had the courage to exercise judicial review of presidential and congressional actions on matters related to “national security” and diplomacy.

    judicial silence gives consent.

    persistent judicial silence on these matters is as corrosive of constititional democracy as hot sodium is of stainless steel.

  23. earlofhuntingdon says:

    Yep, do it all the time. FDL apparently chose a less expensive s/w for that section of the site. I’d say it was a false economy; I gather they’ve put it in the queue for improving.

  24. transparait says:

    “Here gimme that, I’ll fuck it up for ya!

    Thing is you see, we gotta get involved in everything these days, never know when we’ll need a precedent! If it happens over a bunch of murder victims bodies, including a 9 year old little girl’s – well so the fuck what! This is about winning the future!”

  25. Jeff Kaye says:

    Hey, these guys have careers to embellish. Why get on their case? Who cares what legal rights or personal sentiments they may step on? Promotion is the name of the game, as is a star on one’s resume (and something to boast about to the beltway groupies). Power is so attractive.

    Obama and Holder have to pretend to themselves they are mensches, and not the simple marionettes they are.

    • earlofhuntingdon says:

      Spoken like a guy from a town whose food, wine, and poetry mock those inside the Beltway as much as its progressive spirit mocks its careerism and corporatism.

  26. orionATL says:

    [email protected]

    re the tim dechristopher case, of which i had not heard before now:

    http://www.nytimes.com/2011/03/03/us/03leases.html?scp=1&sq=tim%20dechristopher&st=cse

    and here

    http://community.nytimes.com/comments/green.blogs.nytimes.com/2011/03/01/oil-auction-fraud-trial-begins-for-utah-man/?scp=3&sq=jury%20nullification&st=cse

    and this

    http://green.blogs.nytimes.com/2011/03/04/do-motives-matter-the-dechristopher-verdict/?scp=2&sq=tim%20dechristopher&st=cse

    and this

    http://www.nytimes.com/2011/03/04/us/04leases.html?scp=3&sq=tim%20dechristopher&st=cse

    and this

    http://green.blogs.nytimes.com/2011/03/01/oil-auction-fraud-trial-begins-for-utah-man/?scp=4&sq=tim%20dechristopher&st=cse

    need i add that i think this case,

    brought by the u.s. dept of “justice” in federal court in utah, and

    presided over by a jusdge clearly determined to guide the outcome,

    should get far more attention and discussion

    for the ruthless, abusive use of prosecutorial power

    by the doj, by the federal judge in the case, and by the corporate interests that almost certainly lay behind pushing the doj to maximize the case and the penalty,

    independent of any environmental concerns it raises.

  27. radiofreewill says:

    Excellent article, bmaz!

    And, great comment thread, too!

    Curtain call for eoh! Bravo!

  28. JohnLopresti says:

    I have not seen the superseding re-stated complaint. It was interesting reviewing the discussion of the tensions between the two CJ systems. The voting rights part of civil rights law, which I follow often, currently is under multi-state assault by the Republican party; in a strategy much like the coordinated Republican governors* agendas to weaken several key funding sources for the Democratic party, state worker unions, and unions in other sectors. Without wishing to appear too credulous, I can understand the scale of the new response by the AG and president, I believe. I would be reluctant to agree with Faulkner on much, with all due respect to that literary light. Yet, the folk movement, and its allied social wave, the civil rights efforts in very early times, reflected a similar scale of conscientious public concern; that is, there was something wide scale occurring among the respectivre disparate groups and interests. By the time there was actual unrest much of the scoping had been developing well longer than one decade. I am glad bmaz and EoH are adding to the procedural scrutiny the new turn of events deserves. But, I think political speech from the Palin spectrum merits this sort of repartee from Holder; not that it is technically eloquent; I will look for the government*s new court paper in the case. I met someone a senior in a New England institution of higher education, whose closest acquaintances were going, for some reasons which they thought somewhat clear, at the time, to what was then called something like a march to Selma in the spring of 1965. The person I knew did many calculations, the logistics, costs; but did not go.

  29. lysias says:

    When the federal government overrode Texas law and prevented the local doctors from performing an autopsy on the assassinated JFK, that was already federal overreaching.

    • bmaz says:

      But that involved a sitting President and an investigation that ws still quite active and controversial. Neither of which are present in the Loughner case.

  30. Mary says:

    bmaz – you are right in all respects, but please please please give me advance warning and Zantac before you write a post where I have to agree with McCarthy.

  31. JohnLopresti says:

    There was one sentence in the post concerning AZ law that led me to look at Clark v AZ (2006) 05-5966 from several perspectives. Souter.