Court Denies Scott Bloch & DOJ Collusive Attempt To Withdraw Plea

As you will recall, former former Bush/Cheney Administration Special Counsel Scott Bloch destroyed evidence by wiping government computers clean, lied to Congress about it and conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal. Then, outrageously, when the court indicated it was inclined to impose the mandatory minimum month in jail, which was mandated by the statute Bloch pled guilty to, Bloch and the DOJ conspired to get the plea, which had already been accepted and entered by the court, withdrawn.

When Bloch and DOJ both worked together to get the plea withdrawn, and frustrate justice, the egregious nature of the attempt was documented here in a fully argued and supported post published on Tuesday March 1, 2011. Subsequent to that post, the court also found questions with the attempt to withdraw the plea and ordered Bloch to file a reply supporting the attempt.

Seeing the specious nature of Bloch’s reply filed on March 3, 2011, the Emptywheel blog got involved and initiated a formal filing with the court. We combined much of the material from the previous blog post on March 1 with new argument directly responsive to Bloch’s Reply, and additional general argument, into a formal sentencing recommendation and filed it with the court. The document was lodged on March 4.

Late last night, after consideration of the various pleadings related to the attempt to withdraw Bloch’s plea, the court filed its decision on PACER. Scott Bloch’s motion to withdraw from his plea, despite the collusive help from the DOJ, is DENIED!

For all of the foregoing reasons, the court finds that Defendant, at the time he pled guilty to a violation of 2 U.S.C. § 192, was well aware that he could have been sentenced to a period of incarceration of up to one year. His assertion, through his affidavit, that he would not have pled guilty had he “been informed” that he would not receive probation is, simply put, not entitled to credence. This court–like the Circuit, when confronted with a comparable contradiction between the defendant’s answers under oath during the Rule 11 colloquy and the affidavit in support of his motion – finds that “[Defendant’s] argument – if not his affidavit – amounts to a claim that the defect in the taking of the plea consisted of his committing perjury, when, under oath, he acknowledged the truth of the factual recitals in the plea agreement and in the government’s proffer. Lying to a court is not a ‘fair and just reason,’ Fed.R.Crim.P. 11(d)(2)(B), for allowing a plea to be withdrawn.” (emphasis added)

The entire ruling by the court is 20 pages long and takes apart every argument Bloch makes limb by limb. As it should have been. Perhaps the best line of Judge Robinson’s decision, and a point we argued strongly, is:

Confidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.

Boy, the court sure got that right. Not to mention that confidence in fair and honest government is undermined when the DOJ is willing to not prosecute and/or minimize clear crimes committed by other Executive Branch officers. They tried to soft walk Scott Bloch out of this, and it is still awfully small punishment considering Bloch’s crimes, but at least they did not get away with further obfuscation and frustration of justice. Now let’s get the Obama DOJ to get some more prosecutions for all the other egregious Executive Branch crimes of the previous administration going. It is about time.

Bloch’s sentencing is set for this afternoon at 2:30 pm at the E. Barrett Prettyman Federal Courthouse.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
  1. jdmckay0 says:

    the Emptywheel blog got involved and initiated a formal filing with the court.

    Didn’t know that… GOOD FOR YOU!!!

    Sure does seem like a lot of sniveling 2-do over a lousy 1 month though… sheesh. Lie about a blow job, get impeached. Lie to congress, destroy the evidence, well…

    Sure would enjoy seeing Ken Starr weave & bob around this one.

  2. radiofreewill says:

    Oh my stars! A Court of Law is ordering the Executive Branch to comply with the Rule of Law!

    So, I guess the next step is for Obama to declare Bloch’s activities a state secret…

    Great job following this story, bmaz!

  3. Peterr says:

    I’d love to see a liveblog this afternoon from the Prettyman Federal Courthouse.

    Kind of like old times . . .

    (OK, and I’d like a pony, too.)

    My kid (who has been studying the three branches of government in his third grade class) asked me over breakfast why I had this big grin on my face, and I told him “It’s because the courts work.”

    He gave me a big high five.

  4. Mauimom says:

    conspired with the DOJ to minimize the conduct and slough it off with a sweetheart plea deal.

    Marcy & bmaz, forgive my ignorance, but is the DOJ that Bloch conspired with the Bush or Obama one?

    Not, of course that it makes much difference, since it’s so hard to distinguish between them.

  5. PeasantParty says:

    EW and Bmaz! This is the awesome!

    Bloch is an attorney for Pete’s sake! Can’t wait for this afternoon to hear the sentence. Bmaz, thanks so much for your legal nose. Keep it in good shape and sniffing all those dirty deeds out.

    Bloch just thought he was so damned special, like the rest of those DC-ers he would never spend one hour in a cell.

    • croghan27 says:

      Bloch is an attorney for Pete’s sake!

      Will this effect his standing as a lawyer-person? I understand that lawyers do not look kindly upon having convicted peeps in their ranks.

  6. bigchin says:

    That would be the OBAMA DOJ.

    OBAMA IS A FRAUD.

    DE-ELECT THIS HORRIBLE PRESIDENT.

    FIRE THE DEMOCRATS AND THE GOP.

    VOTE PROGRESSIVE THIRD PARTY.

  7. Margaret says:

    So I guess next the Obama Do”J” will insist on choosing the “prison” in which to hold him, which will turn out to be a mansion in DC or Northern Virginia, where Bloch has check in once a week, (a phone call will do), anything to keep him quiet. This administration is worse than the last one.

    • Kassandra says:

      Meanwhile, Bradley Manning……………….exposing truth in America is the real crime. see you all in the camps

  8. Kassandra says:

    It’s been apparent form the beginning that Obama admins would protect the outrageous lawlessness of the Bush crime syndicate so they could perpetuate it.
    But who’s going to pay attention to Bloch and a month in jail?
    This shows how far they are willing to go to avoid exposing a virtual wine stain on the tablecloth of the Bush syndicate

  9. JohnJ says:

    Well, any (for entertainment purposes only) speculation on whether the court is pissed enough to UP the sentence from the desired month?

  10. hcgorman says:

    Excellent work. Every once in a while it is nice to be a lawyer.
    I went on pacer to see who the scumbags were in the DOJ that are handling the case and was surprised to see the entire case in under seal….I guess that is so Bloch’s reputation in not too terribly damaged? sigh.

    • pdaly says:

      Good to see you here again.

      Hope you don’t mind, I’ll highlight your contributions to the effort of retaining the rule of law– for readers new to FDL

      In hcgorman’s own words:

      As many of you know I first became involved in the Guantanamo litigation in 2005 when I took on the representation of one man being held there. Shortly thereafter I took on the representation of a second man. Soon Guantanamo and everything that it symbolizes literally took over my life….to the point that I closed my law practice and solely focused on my two guantanamo clients and the institution itself.

      I have been an attorney now for almost 30 years and when I started on this probono project I thought two things “how hard could it be?” and “this will probably last about a year.” Both of those questions were really point on…because this litigation should not have been hard and it really should have been over in a year—years ago.
      But I did not realize just how dishonest the department of “justice” had become and I did not realize how readily our once commanding judicial system would acquiesce its role as the independent arbiter.

      http://gtmoblog.blogspot.com/

      • NMvoiceofreason says:

        Too bad our software here doesn’t support “badges”, like at Huffpo. “Defender of the Rule of Law”. “Tireless Researcher”. “Legal Beagle”.

        Thank you, hcgorman and pdaly. Thank you EW and bmaz. Thanks to everyone who comes here.

  11. perris says:

    bmaz, if the plea were allowed to be withdrawn, wouldn’t that mandate a new trial?

    wouldn’t that new trial likely bring a more harsh sentence?

    • bmaz says:

      Nope, Bloch and DOJ had already, behind the scenes, agreed to enter a plea to a different, and lesser charge (I don’t know which one exactly) that would allow them to stipulate to no jail time.

      • earlofhuntingdon says:

        The “awful” precedent of seeing an administration lawyer go to jail – severer punishment than the convicted felon Lewis Libby received – must send shivers down the necks of a few hundred members of the bar and of this and the prior administration. The MOTU are not supposed to have consequences for their behavior. Those who rob the poor of their tithes are made bishops; only the poor who steal loaves and fishes go to prison.

        I imagine if Bloch is privy to any untoward secrets beyond his own criminal conduct, suggestions that prison time might loosen his lips (if not other body parts) will undoubtedly persuade the DoJ to outperform itself on appeal. I wonder if Holder himself will make the appellate argument.

        • bmaz says:

          Right, and even this lame ass little time would send serious shockwaves to exec branch officials and lawyers. That is why it was, and is, so important of a case.

          • earlofhuntingdon says:

            I’d like to see the court impose a 6-month sentence. Twelve might seem like retribution for, oh, contempt illustrated in Bloch’s attempt to withdraw from his plea. Six months is smack in the middle of the 1-12 month incarceration permitted under the guidelines. It’s real time in the hokey.

            One month is like a bad Club Med vacation; it’s the sort of punishment one might get for egregious contempt, for a hundred unpaid parking tickets. He’d get more time for slapping a Congressional intern. Here, Bloch has slapped with seeming impunity and approbation by his peers the Constitution, Congress, the rule of law, his oath of office, the vulnerable employees dependent on him to restrain a punitive government that seeks to hide its wrongs, and his professional duties as a lawyer, none of which has he shown the slightest respect for.

  12. nomolos says:

    Bloody well done you guys. If I hadn’t already become a member I would do so today. Now if you could just solve a few other problems…Libya, Wisconsin, Ohio, Yemen, Oman, Bahrain…..

  13. cbl says:

    hope by now firedogs have figured out empty and bmaz were fully aware of the hyper-petty, thin skinned nature of the folks they were dealing with and the possible repercussions in pursuing this matter – I swear, I will sell a kidney if a DEFEND FDL link appears on the front page sometime in the near future

  14. bittersweet says:

    Bmaz,
    I think this is wonderful. One small spot of good in a field of muck!
    But not knowing enough about our legal system, I am confused.
    How is it you were able to submit a formal court filing? Is there no standing requirement? Obviously you did not give your argument to the DOJ prosecutors, or the defense team. How is it that an outside attorney can give something to a judge?
    Thanks for explaining. I find this fascinating!

    • NMvoiceofreason says:

      In most court proceedings, only the parties can join in on the fun. Once a case has been appealed, there are often Amicus briefs provided by outside parties to help inform the court (very common in ACLU cases, for instance). There have been changes to this, since some Republicans were paying an army of Amici to deluge the courts with briefs. Now you have to state your relationship and any financial ties.

      Sentencing, however, is a free for all. Since the court can rely on hearsay (forbidden in normal proceedings), the standards for what is allowable are far lower. Almost any interested party can try to inform the court of their position. In this case, the letter reminded the court of what it already knew, in a forceful and vigorous way (legally speaking).

  15. SadButTrue says:

    “Simply put, not entitled to credence.”

    That’s a keeper! I’ll have to remember that phrase the next time I need to call someone a big fat LIAR in the nicest way possible.

  16. KrisAinCA says:

    I just had to pop in here and say WELL DONE!

    Marcy, bmaz, and anyone who may have been involved in drafting the formal sentencing recommendation. This is citizen activism at its best!

  17. Tom in AZ says:

    One can only hope that the judge is more than a little miffed at Bloch’s ‘lack of credence’ and gives him a year flat. In general population, with the good food, great company, and overall wonderful life changing experience that it entails….

  18. orionATL says:

    god damn, bmaz!

    “…the emptywheel blog got involved and initiated a formal filing with the court…”,

    and the court acknowledged the heart of your argument.

    way to go.

    and here i thought all you did all day, every day was help known criminal types get off

    “scott” free .

  19. orionATL says:

    re: hcgorman

    [email protected]

    thank you fo acknowledging ms gorman’s courage and determination.

    i’m with [email protected]

  20. orionATL says:

    unless i am mistaken, and i often am,

    it sounds like attoney leon and the doj were making the same circular, tautological arguments that they routinely make in “state secrets” cases, argumens that stike me as intellectually dishonest in the extreme.

    i can never understand why ANY intellectually sentient judge would not

    respond as judge robinson responded,

    to whit, in polite legalese, ” bullshit”.

  21. tejanarusa says:

    Skipping from opening graf straight to comment box – Yay!

    A piece of good news at last!

    More like this, please. And rusty though my skills may be, if you ever need help in research or writing, please don’t hesitate to call on me. (in a couple of days, when a paycheck hits, I shall be, ahem, a Founding Member.)

  22. juliania says:

    Blessings on all at FDL – I cannot praise you enough. Similar initiatives used to prevail over at talkingpointsmemo, when indefatigable researchers dug into the US attorney scandal (which Obama has done nothing to remediate as we fully expected he would). The judicial truth to power issues are so important, from the 2000 Supreme travesty on. Thank you, thank you, thank you!

  23. yellowdogD says:

    Here’s hoping the judge rewards Bloch’s mendacity with the maximum one year incarceration.

  24. Gitcheegumee says:

    Evidently Judge Robinson failed to condone the “contumacious conduct” either. Bravo!

    This is the best news I have had in quite a while .

    Medals of honor are defintely in order for Bmaz and EW,et al.Just a simply magnificent and inspiring endeavor!

    (Bet Sara is smiling right now!)

  25. speakingupnow says:

    Just want to add my thanks to Marcy and bmaz for their efforts on this matter. We need more people in this country such as yourselves who are willing to take a stand for justice and the people (standing up and clapping)

  26. surfer says:

    My first read in the morning is FDL and I always linger in Emptywheel’s corner, although I rarely log in. However, this news is worthy of a celebratory log in.

    Not to mention a well deserved “thank you” for continuing to provide a ray of hope in a dark landscape!

  27. JohnLopresti says:

    Historically, there was an article on July 20, 2010 about the case, written by Scarcella. The same writer posted an article in the end of September 2010, also. The first-linked piece mentions some of Bloch*s expertise in employment law. The case has been ongoing a long time.

  28. earlofhuntingdon says:

    It will be interesting to see the post-sentencing motions and the bases chosen for the inevitable appeals, as well as what role the Dept. of Justice [sic] plays in the appeals process. It became a criminal defense firm during the Cheney administration; it hasn’t changed its stripes since.

  29. bluewombat says:

    Bloch’s sentencing is set for this afternoon at 2:30 pm at the E. Barrett Prettyman Federal Courthouse.

    A major league “Attaboy!” (am I allowed to say “Attagirl”? “Attaperson”?) to Emptywheel!

  30. bmaz says:

    Well, crikey. At the court appearance today, the court continued Bloch’s sentencing until Monday the 14th. From the Blog of the Legal Times:

    Robinson this afternoon rescheduled Bloch’s sentencing hearing for March 14. Sullivan is expected to file a motion urging Robinson to reconsider her decision denying Bloch’s request to withdraw his plea.

    In court today, Sullivan argued Robinson had ignored “crucial precedents” that informed Bloch and government prosecutors during plea negotiations. Sullivan pointed to two cases, including the prosecution of baseball star Miguel Tejada, in which defendants in Washington were sentenced to probation for contempt of Congress.

    • earlofhuntingdon says:

      No doubt the PTB are having conniptions and expressing in their subtle, indirect, but unmistakable way what an error it would be for Judge Robinson to impose jail time on this excusably errant [sic] member of the bar.

    • Tom in AZ says:

      Well now, four days to try and get the fix in. If this asshole walks we’ll be one step closer to the torches in this country.

    • JohnLopresti says:

      The link to LegalTimes* blog (BLT) is to an article similar to a post a few hours earlier on the same day, which adds the precedent of Mr. Elliot Abrams.

      Interesting as well, is the mention of the evidentiary concerns in the Stevens debacle, as, BLT the next day discusses a somewhat related case in the same state, Alaska, regarding possible corruption by an elected public official, also an instance of what materials opposing counsel actually ought to share.

      The invocation of the Abrams matter was predictable. Maybe these Very Important Person hearings can work from the Judith Miller paradigm of an 85-day duration, not quite a determinate sentencing, but something about it seems similar, even though the reporter shield issue involved there is inapposite.

  31. shawnfassett says:

    http://legaltimes.typepad.com/blt/2011/03/bloch-sentencing-delayed-as-defense-lawyers-investigate-next-move.html

    Bloch Sentencing Delayed As Defense Lawyers Investigate Next Move

    The federal judge presiding over the prosecution of Scott Bloch, the former head of the Office of Special Counsel, today gave the defense lawyers more time to decide whether and how to challenge a ruling that denied Bloch’s request to back out of his guilty plea.

    Last night, Magistrate Judge Deborah Robinson refused to allow Bloch to withdraw his plea to the misdemeanor charge of contempt of Congress. Bloch’s attorneys said he would not have pleaded guilty had he known the offense was not probation-eligible. In February, Robinson ruled the charge carries a one-month mandatory minimum jail sentence.

    In Robinson’s decision yesterday, she said Bloch knew he could face a prison sentence of up to a year by pleading guilty. Bloch’s attorney, Winston & Strawn partner William Sullivan Jr., and assistant U.S. attorney Glenn Leon both told Robinson she has discretion to sentence Bloch to probation.

    Robinson this afternoon rescheduled Bloch’s sentencing hearing for March 14. Sullivan is expected to file a motion urging Robinson to reconsider her decision denying Bloch’s request to withdraw his plea.

    In court today, Sullivan argued Robinson had ignored “crucial precedents” that informed Bloch and government prosecutors during plea negotiations. Sullivan pointed to two cases, including the prosecution of baseball star Miguel Tejada, in which defendants in Washington were sentenced to probation for contempt of Congress.

  32. orionATL says:

    one question that needs asking is:

    who was the conniver within doj who first suggested bloch be prosecuted on “contempt of congress” grounds?

    among doj prosecutors, this surely was known as an almost a sure “never go to jail free” card because any sentence other than probation is rare.

    in fact, a major question is:

    why was bloch not charged with “perjury” by
    doj prosecutors rather than the archaic and effete charge of “contempt of congress”?

    could it be that good old boys of doj were greasing the way to freedom for good old doj boy bloch?

    (can you say this fast three times ?)

    • marymccurnin says:

      could it be that good old boys of doj were greasing the way to freedom for good old doj boy bloch?could it be that good old boys of doj were greasing the way to freedom for good old doj boy bloch?could it be that good old boys of doj were greasing the way to freedom for good old doj boy bloch?

    • bmaz says:

      My guess is the parameters were first discussed either with William Welch, the former head of the Public Integrity (PIN) section of DOJ, or someone under his direct supervision and control. When I say former, as you may remember, Welch disgraced himself leading the prosecution of Ted Stevens that turned out to be so tainted and unethical that the entire case had to be set aside and dismissed after the DOJ shamed itself and broke about every fundamental ethics rule in the book. And lied about it. Of course none of those from DOJ that were involved have been particularly disciplined, they were simply reassigned and left to go on their way by the OPR and the ever craven hack David Margolis. Well, all but one that is, AUSA Nick Marsh committed suicide, apparently out of shame (that is the best speculation. anyway).