Whistleblowers Concerned that DOJ Refuses to Jail Scott Bloch, Too

Last week, bmaz (with my kibbitzing) noted how outrageous is it that the federal government is fighting to prevent a government employee who destroyed an entire hard drive of evidence from spending even one day in jail.

But given the record of this Administration–from the mantra of “look forward” to the refusal to charge Dick Cheney for illegal wiretapping Americans to the refusal to charge Jose Rodriguez for destroying evidence of torture–I think it’s just that they refuse to send an official–one of their own–to jail. They cannot uphold the law, because the law might be upheld against them.

So, back to I guess he won’t see a cell Bloch Scott. Is DOJ really saying that a guy who wiped his hard drive shouldn’t go to jail? Yes, and they are willing to fight for him and with him to see that such is indeed the case. First the government filed a Motion to Reconsider dated February 7, 2011 regarding Judge Robinson’s 2/2/2011 ruling discussed and linked above. The Motion to Reconsider was basically five pages of whining that there was compelling authority to the effect the criminal they were prosecuting did NOT have to serve jail time. Yes, that is one hell of a strange argument for government prosecutors to be making.

Then, the willingness of the government prosecutors to fight to keep the criminal Bloch from serving one lousy second in jail goes from the absurd to the ridiculous. A mere four days after having filed the whiny Motion to Reconsider, and before it was substantively ruled on, the government, by and through the ever ethical DOJ, suddenly files a pleading encaptioned “Governments Motion To Withdraw Its Motion To Reconsider The Court’s February 2, 2011 Memorandum Opinion“. In this pleading, the government suddenly, and literally, admits their February 2 Motion to Reconsider was without merit.


Let me put that bluntly for you: the DOJ is helping a guy they have already convicted by way of guilty plea – that has already been accepted by the court – get out of that plea conviction. And they are already negotiating a different deal with the defendant, Bloch, to insure he doesn’t serve one stinking day in jail.

Turns out bmaz and I aren’t the only ones who find it utterly unbelievable that the government is engaging in embarrassing legal tactics to try to prevent a criminal from doing jail time. So do the whistleblowers whose lives Scott Bloch made hell. (h/t POGO)

We, the undersigned, wish to bring to your attention an important issue: the effective and ethical prosecution by the Department of Justice of Scott J. Bloch, a man who has gravely damaged the federal civil service.

As you undoubtedly know, Mr. Bloch began his tenure as head of the U.S. Office of Special Counsel, in 2003.  The Office of Special Counsel’s primary purpose is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.  However, until his abrupt resignation in 2008, Mr. Bloch eroded workplace discrimination protection on the basis of sexual orientation, conducted a political purge of his own employees, attempted to intimidate subordinates from cooperating with outside investigators, deleted computer files and destroyed whistleblower cases, and made false and misleading statements under oath to Congress.  After arrest by the Federal Bureau of Investigation and arraignment by the Department of Justice (DOJ) in 2008, Mr. Bloch pled guilty to criminal contempt of Congress in exchange for probation in sentencing.  The prosecuting attorney, Glenn S. Leon, Assistant U.S. Attorney for the District of Columbia, supported the defendant’s request in United States v. Scott J. Bloch through several court hearings and pleadings.

They argue the prosecutor, Leon, could not now, after having spent so much time helping Bloch avoid jail time, honestly represent the government’s interest in prosecuting him in court.

We are concerned, however, that Mr. Leon’s official conduct up to now has rendered him unfit to prosecute the defendant.  Rule 1.3 of the Model Rules of Professional Responsibility, Comment 1, states that “[a] lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  (Emphasis supplied).  In the instant case, Mr. Leon would have to contradict almost a year’s worth of arguments in support of the defendant, and state the exact opposite in front of a judge or jury.  This would erode his credibility and impartiality in the public light, as one would not reasonably expect that he would be able to zealously advocate the government’s position given his track record.  The government runs the risk of getting something less than his full effort, which warrants recusal.

And so they’re asking the government appoint a special prosecutor for the trial.

Attorney General Holder, we have long waited for Mr. Bloch to be held accountable in a court of law.  For too many of us, the erosion of the rule of law and ethical conduct in government came with a heavy price.  With our whistleblowing activities, we sought, and continue to seek, a government of laws, not of men.  Please help us restore this noble and long-standing principle by appointing a special prosecutor to lead United States v. Scott J. Bloch.

After all, that’s what this is about: the government’s refusal to have even the most pathetic–but blatant–abuse of power be punished with jail time. A number of the people signing this letter (like Bradley Birkenfeld, whose efforts to expose rich tax cheats led to jail time for him but none for the cheats he exposed) have or are still doing jail time for their efforts to expose corruption.

It’d be nice to see one of the real criminals in our government join them.

  1. Gitcheegumee says:

    Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen… If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

    Justice Louis D. Brandeis

  2. scribe says:

    They should be sending this to the trial judge, not Holder. Sending it to Holder is sending it to the wellspring from which this poison flows – it will have no effect.

    Sending a letter to the trial judge, viz.:

    Dear Judge:

    We, the undersigned, were and are the victims of the criminal Bloch. As set forth in greater detail below, he perverted his office into one operated to persecute those who sought redress for wrongs, then destroyed evidence and lied about it, to cover his criminality. We sent a letter about this to the Attorney General, but we have no confidence he will do more than discard our letter and, as to those of us who are incarcerated, put us under more restrictive punishment.

    You get the idea.

  3. BoxTurtle says:

    Perhaps I feel cynical this morning, but I am reminded of Scooter Libby’s get out of jail free card. And ObamaLLP is so much like BushCo in so many ways.

    Boxturtle (I find Issa’s desire to investigate almost everything ObamaLLP does understandable)

  4. reglawyer says:

    Dear scribe,

    Thank you for the suggestion. Might I make a slight change and add a Petition from the American People to submit to the Honorable Deborah A. Robinson, the Federal Magistrate Judge who is presiding over United States v. Scott J. Bloch?

    Thank you for your support!


    David Pardo
    FAA Whistleblower and Attorney

    • scribe says:

      Knock yourself out.

      The thing is, the Magistrate Judge might not be the one you want to address it to or, rather, you may want to address it to both the Magistrate Judge and the District Judge.

        • bmaz says:

          There is no district judge, the parties consented to proceed in front of a United States Magistrate judge. Her name is Deborah Robinson.

            • tejanarusa says:

              I’ll take this one! Having once been a Magistrate’s clerk (before “Judge” was added to the title):

              Magistrates are a lower level of federal judge – they hear low-level criminal cases, especially those committed on fed property (here the bulk of his crim docket was traffic offenses committed on military bases), do arraignments for all federal crim charges, and hear whatever civil cases the Dist. Judges choose to refer to them.

              On those referred civil cases, the Mag does the research and writes a Recommendation to the D.J.

              They can conduct evidentiary hearings on referred cases and then do findings of fact and conclusions of law for the D.J.(I wrote a lot of those).

              Parties may also consent to proceed before the Mag as if it were the D.Ct; in that case, it isn’t referred and the Mag rules/decides.

              That’s what’s happening here. Hope it’s not too much info.

  5. tejanarusa says:

    Wait, forgive my confusion – haven’t been following Bloch case closely (there’s so dam much to keep up with!!) – has Bloch now withdrawn his plea and there’s going to be a trial after all?

    • reglawyer says:

      Dear tejanrusa,

      That’s a good question. While Mr. Bloch has withdrawn his plea, the DOJ has stated in its latest pleading to the court (in a footnote) that it is currently negotiating another plea bargain for a different offense.

      I hope this helps.

      • bmaz says:

        No, Bloch has NOT withdrawn his plea. Under Rule 11 of the FRCrP, since the plea was accepted on the record by the court, he cannot unilaterally withdraw; withdrawal can only be granted by the court for just cause. The court has not ruled on Bloch’s motion to withdraw, and his “just cause” is full of poo if you ask me.

        The charge and penalty Bloch was pleading guilty to was spelled out on the record in the plea proceeding. If you want to address the court on this, do so immediately and include an argument that Bloch was advised on the record what he was pleading to (and the mandatory month in jail is right in the charge 2 USC 192). Without pressure, my guess is Judge Robinson will allow Bloch to withdraw. If he is allowed to withdraw, the DOJ is conspiring with him to make sure there is a plea to an offense with no incarceration.

  6. quanto says:

    So, when it comes to prosecuting one of their own, we’ll just get another show trial like Ted Stevens. Instead of asking for a special prosecutor they should be asking for an honest prosecutor.

  7. JohnLopresti says:

    I think Bloch could be happy wherever he is lodging for the *mandatory 30 days* lockup or waiver thereof, if only he is permitted a laptop computer and a library of removable media. Perhaps Geeks On Call could design a cybercourseware study program for him to complete in the short span of that designated one month whereafter he would understand the principles of wiping data from a computer harddisk, so that in his future professional endeavors he might accomplish destruction of public records alone without involving outside contractor tech specialists; the courseware should be a sandbox environment which also includes a trojan which would unpack as soon as he actually attempted to run the util, with the white hat message going to, well, OSC, if he ever were to run it, during probation or thereafter. As for the political history, Republicans in congress were in full throated cry to isolate watchdogism around the time Bloch entered the OSC post. The *of course you*ve got inspectors general* conceit was common patter at hearings and in Republican press statements. No more independent counsel; lessen Bivens impact; forward patriot act. The lattermost remains an interesting element in the aftermath of the protectionist unitary executive view of administering government, however; with even Republicans now atwitter that they want to ease patriotact*s pressure upon privacy standards and due process.

    comment uploaded twice, computer froze.

    • tejanarusa says:

      Ah, so his defense (not the written one, of course) is “Hey, that’s what I was hired to do!”

      Which is probably true. Much like the regulators installed at the regulatory agencies were chosen for their likelihood not to enforce laws in their agencies’ purview.