DOJ Circumvents Judge Walker; Attempts To Further Correct Previous Falsities

In what can only be described as a curious filing, the US Government, through the DOJ has submitted a pleading to the 9th Circuit Court of Appeals in the previously terminated al-Haramain appeal originally filed in 2006. In this appeal, on November 16, 2007, the 9th generally upheld the government’s state secrets assertion, but remanded the case to Judge Walker “to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” (Walker has so ruled and those proceedings are indeed ongoing and awaiting the Court’s decision of Plaintiffs’ Motion For Summary Judgment). The 9th Circuit’s mandate issued on January 16, 2008.

The new submission filed in the 9th Circuit is nothing short of a brazen attempt to subvert Judge Walker’s trial court authority and jurisdiction by an end run, and is entitled “NOTICE OF LODGING OF IN CAMERA, EX PARTE DECLARATION OF DIRECTOR OF NATIONAL INTELLIGENCE”

The Government hereby respectfully notifies the Court and counsel that it is lodging today with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of the Director of National Intelligence, Dennis C. Blair.

We are making the lodging because an issue arose regarding an inaccuracy in an earlier Government submission in the district court that was part of the record before this Court in an interlocutory appeal in this matter bearing the above caption. The case has been remanded to the district court and an appeal is no longer pending before this Court. The lodging does not call for any action by this Court but is intended to ensure that this Court is informed of the earlier inaccuracy and has available to it classified details with respect to the issue. The Government has informed the district court of the issue, has offered to make available to that court additional classified details in camera, ex parte, and is informing that court that the Government is making the lodging in this Court.

Here is the document. Now the government had just submitted an unclassified declaration of ODNI Blair to the trial court in September, and references said declaration in their new little filing, but does not seem to attach it. Instead, they submit a new classified ex parte declaration from Blair.

Because the inaccuracy was in an earlier Government submission that was part of the record when the case came before this Court on interlocutory appeal, we are today lodging with the Court Security Officer copies of an in camera, ex parte classified declaration, dated November 8, 2009, of Director of National Intelligence Blair. That declaration provides additional classified information regarding the matter. As noted, the lodging ensures that this Court is informed of the issue and has available to it classified details concerning the issue.

Well now, it would seem that Jon Eisenberg has struck a raw nerve with his putative entry into the Horn v. Huddle case as an amicicus urging Royce Lamberth to leave his opinions in place and in force. After having been blistered by Royce Lamberth, former Chief Judge of the FISA Court, for dishonesty in state secrets assertion declarations, the government is not only trying to wipe that away in Horn v. Huddle, but suddenly seems to be somewhat apoplectic about their acknowledged “inaccuracies” in their previous state secret submissions to Judge Walker in al-Haramain.

Funny how after Eisenberg included a little footnote about the ever slow dribbling out of corrections of “inaccuracies” by the recalcitrant government in al-Haramain in his reply brief on Motion For Summary Judgment:

In addition to the gradual public disclosure of non-classified evidence of plaintiffs’ electronic surveillance, something else of note has happened since the Ninth Circuit proceedings: On February 27, 2009, defendants filed classified declarations with this Court purporting to “address an inaccuracy contained in a prior submission by the Government, the details of which involve classified information that cannot be set forth on the public record.” Government Defendants’ Report On Declassification Review at 2, Doc. #78 at 2. This “inaccuracy” remains a mystery to plaintiffs, who have not yet had access to those classified filings. But if the inaccuracy amounts to a misrepresentation, the Court should find that defendants have forfeited judicial deference to their assertion of the state secrets privilege. See Horn v. Huddle, ___ F.Supp.2d ___, ___ (2009 WL 2144131 at *4) (D.D.C. July 16, 2009) (court refuses to give “a high degree of deference” to of government’s “prior misrepresentations regarding the state secrets privilege in this case”).

the government is all of a sudden beside themselves and running to settle Horn v. Huddle, trying to clean up their dishonest mess in their al-Haramain declarations and desperately trying to circumvent Vaughn Walker. Kind of makes you wonder what the inaccuracies are, and how egregious they are, to motivate such clumsy tap dancing by the DOJ.

What a shock, the government now wants to clean things up a little more when, but only when, their ass is in the wringer. So worried in fact that they decided to bypass, and completely insult, Judge Walker, and the attendant possibility that he would take a cue from Judge Lamberth, be taken aback by the DOJ contrivances and shenanigans, and order disclosure to al-Haramains’ attorney Eisenberg. Instead, they contrived the disingenuous artifice of going straight to the 9th. A court that has no current jurisdiction. In a 2006 appellate case that has been long closed.

Eisenberg, on behalf of al-Haramain, is having none of it, and has already filed a Motion To Strike the government’s filing.

This Court should not allow a filing or lodging in a case where the Court’s appellate jurisdiction is terminated.

Even more significant is the dead on description of what the government is trying to pull with their stunt:

Another reason why this Court should strike DNI Blair’s secret declaration is that it is not currently before the district court, as Judge Walker has not yet ruled on defendants’ request for permission to submit the declaration in the district court ex parte and in camera. In effect, by lodging the declaration in this Court now, in advance of the appeal that is sure to follow Judge Walker’s final judgment in thiscase, defendants have unilaterally enlarged the future record on that appeal to include material that is not yet and may never be before Judge Walker. This maneuver violates the general rule precluding enlargement of the record to include material that was not before the district court.

By lodging DNA Blair’s secret declaration in this Court at this time, defendants are attempting to perpetrate a subterfuge by which they would bypass Judge Walker, subvert his June 5, 2009 order that further secret filings by defendants will be disclosed under a protective order to plaintiffs’ security-cleared counsel, and create a bizarre situation where this Court would have exclusive access to evidence not presented to Judge Walker or accessible to plaintiffs’ security cleared counsel pursuant to Judge Walker’s order. This Court should not countenance such gamesmanship. (Citations omitted)

Indeed, the 9th Circuit should definitely not countenance such raw and disingenuous gaming of the courts by the government. And neither should Judge Vaughn Walker.

The too cute by a half games and hide the ball schemes by the Department of Justice, whether under Bush or Obama, just never stop. If it were not for disingenuous lawyering, the DOJ would have no lawyering at all it seems.

49 replies
  1. MadDog says:

    Man bmaz, this takes the fookin’ cake!

    And I’m most appreciative of your perceptive analysis.

    I would note (for the record as the saying goes *g*) that Coppolino is not the submitter, but instead Deputy Assistant Attorney General Beth S. Brinkmann is, so the muscle that is being employed here comes from the highest decisionmakers at DOJ headquarters.

    And yes, I have no questions any more on Holder and Obama. *g*

    • lawordisorder says:


      Lets play with the idea of perception for a minute here your the lawyer swahili boys so you tell me if im wrong.

      Im looking at this as a case of “intensionally fumbling” if you get my idea.

      the top honcho’s in DOJ sympatize deep down with the “other side” but for several reasons they cannot come out and say so. They sorta need Lamberth decision to stand but also needs to be percived as being opposed.

      Was is the best way of makin sure that you loose a case? you piss of the judge by pulling a fast one that you know he’s gonna catch no? in a fast and loose WHOOOOOOOOPS kinda way no?

      Would it be possible that they need that decision and whant to let it stand?

      Remember the heresford boys?

      Just my five cents worth

  2. anwaya says:

    I must say that Mr. Eisenberg is too generous when he calls the government’s activities “gamesmanship”. They do not reach the sophisticated shallowness of Stephen Potter’s gambits.

    If the DOJ needs assistance with achieving true gamesmanship, they should seek to engage Mr. Odoreida of the Lifemanship Correspondence College, Station Road, Yeovil (who, if he existed, would probably not co-operate, while appearing to be the only person who could help).

  3. Funnydiva2002 says:

    OT (sorry, Bmaz)

    Rachel Maddow was all over Petey-Pete Hoekstra this evening…pointing out all his stupidities, just like Marcy did this morning!

    Back to read Bmaz’s most excellent post!


  4. Peterr says:

    So worried in fact that they decided to bypass, and completely insult, Judge Walker, and the attendant possibility that he would take a cue from Judge Lamberth, be taken aback by the DOJ contrivances and shenanigans, and order disclosure to al-Haramains’ attorney Eisenberg.

    It seems to me this is an insult to the 9th Circuit Court of Appeals as well, as it says “we think we can pull a fast one on Walker and that you won’t even notice us doing it.”

    If the 9th Circuit reads it that way, their notice rejecting the filing as premature should be rather tasty to read.

  5. earlofhuntingdon says:

    “Gamesmanship” is, indeed, too fine a word. I hope Judge Walker or the 9th Cir. is more direct and calls this what it is: unethical lawyering.

    The 9th Cir. should reject the proffered filing because it has no jurisdiction to receive it. Given the history of this and related cases, of which Judge Walker can take judicial notice, he should sanction the DoJ lawyers who made that filing for contempt and report them to their state bar associations.

    Mr. Holder’s DoJ, like Mr. Mukasey and Mr. Gonzales’ before him, is giving the criminal defense bar a bad name. It is also neglecting the people’s business in using so much of its limited resources attempting to hide their unethical practice and their client’s false statements to federal courts. The chore is for the 9th Cir. and Judge Walker to construct their decisions as tightly, fully and directly as possible. There’s no doubt that this will end up before Scalia, Alito and the rest of the gang.

    • MadDog says:

      …There’s no doubt that this will end up before Scalia, Alito and the rest of the gang.

      In reply to you EOH as well as Peterr, one could easily imagine that this is a deliberatively provocative move on the DOJ’s part.

      I’ve made the comment previously that more than anything, the DOJ desperately wants to move this case out of Judge Vaughn Walker’s hands to at least the 9th, and more likely, to a far more deferential and accommodating Supreme Court.

      I would not put it past the DOJ to try most anything to make this happen.

      • earlofhuntingdon says:

        I think that’s right. Which is why Judge Walker and the 9th Cir. need to be so deliberate in their rulings. A whiff of prejudice, for example, on Walker’s part and Holder’s bull dogs will demand that Walker recuse himself for no longer being impartial.

        This is a no holds barred, death match. Whatever Holder is hiding, it must be ugly. It must have the ability to affect other major cases, and have the potential to create career limiting fall-out for more than one politician. Which means that Rahma & Obahma are all over this, too. All the more reason for Walker and the 9th to stay cool and do their jobs, for which we should profusely thank them.

      • Peterr says:

        Given the manner in which SCOTUS sends things back that are “not ripe” for decision, how welcoming do you think they would be to a DOJ that plays fast and loose with the procedures of the Judicial Branch?

        • earlofhuntingdon says:

          Scalia actually might not like it. Sadly for our legal system, Roberts, Alito and Thomas would probably react to this case like Brer Rabbit being thrown in the briar patch.

        • Peterr says:

          I’m sure Nino’s written some scathing comments about premature filings. I’d love to see the Ninth Circuit put a few of them into their reply.

        • MadDog says:

          With the current SCOTUS lineup heavily favoring the Executive, I’d bet on Roberts, Scalia, Alito, Thomas as already being in the bag, so the DOJ would only need one more. Kennedy? Maybe even Sotomayor.

  6. Peterr says:

    A question for the lawyers about in camera filings:

    Under an ordinary circumstances, when a judge in one case is faced with parties who claim that another case is applicable to their arguments, the judge can go to that other court and read the decisions, or even (if necessary) go through the court records to determine how applicable that other case is to the one pending in his or her court. Even if the parties don’t raise that other case, the judge could go look at the decision and records on his or her own.

    However . . . (and here’s the question) . . .

    When that earlier case contains an in camera filing, can the judge in the pending case get access to that filing? If so, is it simply a matter of going to the first judge (or court, if the judge is no longer on the bench), or must the judge go through the DOJ to get a copy of the in camera filing?

    At this point, it’s an academic question on my part, but yes, I’m wondering if it is possible for Walker to get filings from Lamberth, if he felt they would be helpful.

  7. earlofhuntingdon says:

    Any “corrections” of course, must be made available to the plaintiff’s counsel, who has the requisite security clearance and an obvious “need to know”. He must have an opportunity fully to brief the court on his objections and counter-arguments so that the 9th Cir. and the Sup. Ct. have as full a record as possible, and so that all issues that should have been raised and all comment on them should have been made in a timely fashion.

    Among other things, Holder’s DoJ is attempting to sever Judge Walker from his role in this case and from his job of preparing the materials to be presented to the 9th Cir. in connection with any appeal of an appealable decision he may make. Holder’s DoJ is attempting, therefore, to sever the Government’s “corrections” from their proper context. Presumably, it takes this unethical course in order to limit the damage that would ensue if Judge Walker were to put these corrections in their proper context and make rulings in light of it.

    Something is rotten in Mr. Holder’s DoJ, and it’s been there, spreading the rot, for quite a while.

    • mattcarmody says:

      That something would be Mr Holder and the chief executive to whom he answers.

      Holder showed the extent of his contempt for ethics in his dealings in the Marc Rich pardon when he was part of Clinton’s DoJ. Maybe the fact that he was ethically challenged is what made him so appealing to Obama. I personally think Dawn Johnsen would have made a better AG but I don’t think she would have been quite as malleable as Mr Holder has proven to be.

  8. Peterr says:

    My favorite line in that “notice of lodging” is on the first page:

    GEORGE W. BUSH, President of the
    United States, et al.,


    It has a nice ring to it. It certainly makes clear that there are things for which Bush et al. must answer.

  9. Peterr says:

    On that notice of lodging, it was signed by Beth Brinkmann, DAAG for the Civil Division’s appellate staff. I haven’t noticed her name here before — has she only recently been added to this case, or did I just overlook the name?

    From her wiki entry, she seems to have (unlike Holder) a strong appellate background, and that makes this attempt at an end run around Walked that much odder.

      • Peterr says:

        Sorry about that — don’t know how I missed it.

        And I will add to your comment that Brinkmann is no BushCo holdover, either. This is yet another item to add to bmaz’ growing list of how the Obama DOJ is not merely picking up where the Bush DOJ left off, but aggressively defending all the Executive Prerogatives they can get their hands on.

  10. Peterr says:

    Oh, this is a gem from Eisenberg (citations omitted), noting that there is one way the Appellate Court court re-instate their jurisdiction in the case at this time:

    There is, of course, a procedural mechanism available to defendants for properly lodging DNI Blair’s secret declaration with this Court now – a motion to recall the Court’s mandate of January 16, 2008, which would restore the Court’s appellate jurisdiction. This Court may choose to treat defendants’ lodging as a motion to recall the mandate. But the Court’s “authority to recall a mandate is to be ‘exercised only in extraordinary circumstances’ and ‘the sparing use of the power demonstrates that it is one of last resort, to be held in reserve against grave, unforeseen contingencies.’” Defendants have made no showing of extraordinary circumstances requiring the lodging of DNI Blair’s secret declaration in this Court, upon recall of the Court’s mandate, prior to Judge Walker’s ruling on whether the declaration will be filed in the district court. Plaintiffs recognize that there may, in fact, be an extraordinary circumstance here justifying recall of the Court’s mandate, to the extent that the so-called “inaccuracy” in the prior secret filings addressed by DNA Blair’s secret declaration may amount to the perpetration of a fraud upon the Court, which is a basis for recall of the Court’s mandate. If defendants’ purpose in lodging DNI Blair’s secret declaration with this Court is to disclose a fraud upon this Court, plaintiffs agree that the Court should recall its mandate so that the fraud may be disclosed expeditiously.

    Shorter Eisenberg: “If the DOJ wants to admit to perpetrating a fraud upon the court, we have no objection to you accepting that admission.”


    • freepatriot says:

      Shorter Eisenberg: “If the DOJ wants to admit to perpetrating a fraud upon the court, we have no objection to you accepting that admission.”

      uhm, I would have an objection

      If the DOJ wants to admit to perpetrating a fraud upon the court, I WANT SOME FUCKING NAMES ATTACHED TO THE FUCKING LIST

      TITLE 18 of the US Code, Section 1001, It is a FELONY to provide false information to ANY FEDERAL AGENCY

      so, for now, lets pass up the perjury and all the court niceties here


      if the DOJ wants to include an admission that some of their employees lied to a judge, I want a list of names, and a plan for appointing an independent prosecutor to proceed with criminal proceedings against any DOJ employees who provided said false information

      I fail to see how the DOJ could admit to lying in a court of law, and everybody seems to think the DOJ is allowed a “Do-Over”

      that ain’t the way our criminal justice system works

      what, I robbed a bank ??? well, let me return the money and try that again ???


      you wanna admit to a crime, you DO THE FUCKING TIME PAL

    • BayStateLibrul says:

      How about…

      “Come into my chambers boys, let me read you the abuse of process (riot) act:”

      n. the use of legal process by illegal, malicious, or perverted means. Examples include serving (officially giving) a complaint to someone when it has not actually been filed, just to intimidate an enemy; filing a false declaration of service (filing a paper untruthfully stating a lie that someone has officially given a notice to another person, filing a lawsuit which has no basis at law, but is intended to get information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. Some people think they are clever by abusing the process this way. A few unscrupulous lawyers do so intentionally and can be subject to discipline and punishment. Sometimes a lawyer will abuse the process accidentally; an honest one will promptly correct the error and apologize.

  11. Jim White says:

    OT on FISA doc dump.

    I’m now on doc Office DNI 81-2. On pages 8-9 of 66 there is an email exchange between my new “meanest woman in the world” Kathleen Turner and the legislative director for John Cornyn, Russ Thomasson on March 13, 2008. Kathleen to Russ:

    Russ: Can you have Sen. Cornyn reach out to Rep. Nick Lampson, (D-TX-22nd), who is a Blue Dog Democrat and ask if he will be voting against the HOUSE FISA Blll–on the floor today: He needs to tell them the House Biil is very bad and does not advance the process at all and to vote against it. I have attached the DNI-AG views letter on this Bill.

    The response:

    Sorry, it wouldn’t help hearing from Cornyn…in fact, it would probably do more harm…

    Ha ha ha ha ha! Lampson may be a Blue Dog, but at least he’s smart enough to be known for running the opposite direction from anything Cornyn wants.

  12. BoxTurtle says:

    I’m not sure the government could get any higher on Walkers shitlist, so there’s likely no loss there. My prediction: The 9th will reject the pleading and tel them it should have been filed in Walkers court. Walker will continue to put together what I hope will be a very definative ruling cutting the government to shreds, which the 9th will uphold decisively, though not unanimously.

    The DOJ’s only chance is the supremes. But it’s not that great. Thomas and Roberts will blindly back the executive and I think Sotomeyer will support the person who appointed her. I disagree that Alito and Scalia are guarenteed votes, both seem to me to be strict interpretation types and that would lead them away from the Governments position.

    The government is going to have to actually makes a case in front of the supremes, they can’t count on ideology to win the day.

    Boxturtle (Disclaimer: predicting the supremes is much tougher than handicapping horses)

    • bmaz says:

      Keep in mind that Sotomayor has no civli libertarian when it comes to law enforcement issues, a class I think a state secrets determination would fall into. And “the person who appointed her” will be leaning heavy on her to uphold state secrets and toss out al-Haramain.

      • BoxTurtle says:

        Yep. I give ObamaCo three solid votes before the paperwork is even filed. But I also give AH 3 votes: Kennedy, Stevens, & Breyer. It’ll be a very close vote.

        Boxturtle (Quibble: Obama doesn’t do “lean on” personally. Rahm will handle that)

  13. Mary says:

    Brings a smile.

    The catch-22 for the gov lawyers is that they have that ongoing duty to correct the record – a duty not subject to SOL – before the tribunal if they (or their predecessors in the case) perpetrated fraud on the court. So since their old, untruthful declarations were part of the record originally sent to the Ct Appeals, they have a duty to correct that record.

    They’ve taken a run at correcting the record in the Dist Ct, but the judge there has the playbook and doesn’t believe you can use privilege to go lie to the courts, then use more privilege to keep opposing council from knowing how you lied to the court or arguing what impact your lies might have had in the case, and of course, it’s hard to refer you for bar proceedings if you can keep your professional misconduct under seal too, so they are trying to “fess up” with no consequences.

    BTW – this highlights why I think that the point of attack on the DOJ’s leap into depravity should be from the lack of candor to tribunals. The vaunted OPR report isn’t going to touch on this, even though “hard” examples are all over the place now for the program of systematic professional misconduct that was put into place at the uppermost levels of DOJ, all operating under the presumption that they would be free from consequences bc they are the prosecutors and they had the courts by the short hairs about ever discovering their frauds, much less taking any action on the “uber secret lies” if they were discovered.

    So – they are “damned if they don’t” on the filing. Let’s hope the courts hold them to “damned if they do” and require that they fill in sec cleared counsel for the plaintiffs with respect to their lies and also do what Sullivan did when he discovered that info about DOJ using the crazy guy secret witness without disclosing that he was a crazy guy (i.e., require DOJ go and disclose in any other cases at issue – and that they go disclose to Congress their misconduct as well). And, of course, consider sanctions.

    Think about what the prosecutors are finally admitting to doing. The context here is a civil case, but the underlying issue involves layers of misconduct, including felony violations of FISA. So the prosecutors are saying that, in addition to participating in a program of systematic commission of felonies (although they did get Democrats in Congress to help cover up that up and grant amnesty to boot – and while that amnesty may have limits, by the time that issue is resolved the SOL will have run on the DOJ assisted felony program), so that we truly have had a very public situation of prosecutors being “owned” by, and in the pocket of, a felonious President and industry felons – in addition to all that, DOJ has invoked a special relationship between their felonious clients and the courts, privilege, and used that relationship to perpetrate fraud on the courts in respect of their felony program.


    Anyone want to bet on how truthful those “briefings” to Congress were before the legislation passed?

    I’ve got to think that if it is public record now that DOJ has confessed to misleading the Dist Ct and Ct of Appeals – and we know they have been publically ruled to have committed fraud on the court in Lamberth’s case, the Judiciary Committees ought to be taking some notice. And if the Intel Committees are hearing that DOJ lied to the courts, maybe they need to confirm whether or not their briefings were on the up and up as well?

    I mean, esp as you are getting ready to sign off on legislation giving all kinds of unchecked power to DOJ to avoid courts altogether – wouldn’t a normal person want to know if DOJ has been busy committing fraud on the courts when there has been the check of court review? Wouldn’t that impact on a normal person’s decision to give more trust and leeway with less oversight and NO CONSEQUENCES (there are NO consequence provisions in the unconstitutional surveillance act) to the department? If the recent history of the office of the AG is to pocket the DOJ to protect a massive felony program and to assist in the commission of fraud on the courts – well, what about that should inspire confidence to give the AG MORE UNCHECKED power?

    • Peterr says:

      Anyone want to bet on how truthful those “briefings” to Congress were before the legislation passed?

      I’ve got to think that if it is public record now that DOJ has confessed to misleading the Dist Ct and Ct of Appeals – and we know they have been publically ruled to have committed fraud on the court in Lamberth’s case, the Judiciary Committees ought to be taking some notice. And if the Intel Committees are hearing that DOJ lied to the courts, maybe they need to confirm whether or not their briefings were on the up and up as well?


      Bmaz, Marcy . . . I think you’ve got another post to write.

    • klynn says:

      bmaz, great post.


      Your comment needs to be a front page FDL post after this bmaz post. Some solid content with solid questions we all need to press.

    • bmaz says:

      Agree with all. However, as to the govt’s continuing duty to disclose, they do have a duty to do it correctly, as Eisenberg points out, instead of just dropping their filing off like an abandoned baby on the 9th Circuit’s doorstep. If they misled the court, the mandate should be reopened/set aside and the issue submitted with due process rights to the adverse party.

      • Mary says:

        Oh yeah, agreed. That’s what I meant by the catch-22. They have a duty to tell the courts they’ve lied to about the lies (notice how no one has ever corrected the Clement record in front of the Sup Ct even still?) and @23, Peterr excerpts a good part of Eisenberg hitting that issue.

        OTOH, the playbook doesn’t say you only have to tell the court – you also have to tell the adverse party. And it’s very clear that they don’t want to do that and that Walker hasn’t agreed in the Dist Ct to let them take that option.

        So here you have what is really a stark decision for the courts (and it ties a bit to the prosecutorial miscondut case currently before the courts). We already have the issue of things like FISA trumping states secrets and (and I’ll toss in my argument from before that the Keith case is actual precedent on the 4th trumping states secrets) and now you have the question of prosecutorial fraud trumping states secrets. Fraud on the courts.

        That’s a pretty big and stark decision for the courts – are you actually going to allow the Executive to use Exec privilege to make secret, fraudulent assertions to the court and then when the court is likely to discover the fraud committed on it (even without having the protection of the advocacy process that should have been in place initially), allow more invocations of privilege to cover up the fraud from the adverse parties and to tie the courts hands on consequences? If so – toss out everything. We have no system of justice at that point. Not that it looks as if we have much as it is.

        • freepatriot says:

          OTOH, the playbook doesn’t say you only have to tell the court – you also have to tell the adverse party. And it’s very clear that they don’t want to do that and that Walker hasn’t agreed in the Dist Ct to let them take that option.

          fuck that

          let them explain themselves in front of a GRAND JURY

          this ain’t a “mistake”, or an “accident”

          this is a federal felony perpetrated against the people of the United States

          fraud is a FUCKING CRIME folks

        • MaryCh says:

          I love this site, what with the diggers, the fine legal analyses and summaries (esp. Mary @35 and @40),l and folks like freepatriot to strip off the varnish/legal niceties.

          The whole SOL question really steams me though. Is there an argument for tolling the statute if the would-be defendant is self-helping by fraudulent, dilatory or other kinda-sorta abuse of process actions?

        • Mary says:

          Freep, I always feel better when you show up. It’s like at night when my German Shepherds go and lie down across the doorway. There’s a lot of comfort that goes with knowing someone is drawing their line and saying, this far, but no further.

  14. Jim White says:

    More goodies from DNI 81-2, page 49 of 66, an email November 1, 2007 from an SSCI staffer helping Durbin to Ben Powell and my new girlfriend Kathleen Turner:

    Ben and Kathleen,
    Senator Durbin and others are very interested in a classified meeting with representatives from telecommunications companies to follow up on some questions from the briefing we had earlier this week. I understand from Mike Davidson that one meeting with representatives from different companies is not possible, so we’d have to do back-to-back meetings.

    Very interesting: they definitely didn’t want the telcos to compare notes with one another. Is that because their indemnification agreements were different or because their spying assignments were different?

    [Aside: The copy and paste ability from this doc is not very good; before editing, the meeting copied as “crassified”. I should have left it that way…]

    • Hmmm says:

      Maybe there was some plausible-deniability reason why it was important for the telecoms to be able to say with a straight face that they didn’t know what other telecoms were participating? Make the USG (or a specific contractor) the only connecting point? Dunno.

  15. earlofhuntingdon says:

    Wouldn’t it be more appropriate for the Bush and Obama regimes to hire separate criminal defense counsel, and let the DoJ get back to doing the people’s business? There would, of course, be the small problem of getting them security clearances – and then establishing their need to know on a document by document basis. But we have government lawyers well-versed in such matters and ready to help on a tangential basis.

    Going this route would free up dozens of top lawyers, who could then ferret out the corruption in their own ranks, starting in Alabama and the Beltway. Should be more interesting viewing than a remake of the Prisoner, with Jesus as No. 6 and a magnetic villain as No. 2.

Comments are closed.