Onthedocket.org has a summary of the issues here. The one paragraph Per Curiam opinion remanded the case to the Supreme Court of Virginia ”for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).”
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Here is the Washington Post story on AG Holder’s decision to launch a preliminary investigation of alleged CIA torture. Career AUSA John Durham of Connecticut, already probing destruction of CIA interrogation tapes, gets the nod for this assignment. The District of Connecticut OUSA is the office of choice for special prosecutors these days.
Here is Justice Scalia’s majority opinion in Melendez-Diaz v. Massachusetts. This is one of the 2008-2009 Supreme Court Term’s great decisions, applying the Confrontation Clause to lab reports.file://C:\Documents and Settings\Administrator\My Documents\Caselaw Crawford\Melendez-DIaz.pdf
Professor Ellen Podgor over at White Collar Crime Prof Blog has this excellent and detailed post discussing Judge Sonia Sotomayor’s approach to white collar crime cases. Ellen sees Sotomayor as decidedly pro-government. Not surprising when you think about it. Most judges from politically liberal backgrounds tend to be pro-government and anti-business. It is only natural that this attitude would flow over into and affect their views on corporate crime. Sotomayor was, in my view, on the wrong side of U.S. v. Rybicki, the Second Circuit’s major private sector honest services fraud case. I agree with Ellen that Sotomayor’s attempt to bring coherence to the various case law defintions of “willfull” criminal conduct in U.S. v. George was both scholarly and impressive. At any rate, you should go read Ellen’s entire analysis. I highly recommend it.
Scott Greenfield over at Simple Justice has another excellent post here concerning the Supreme Court’s recent overruling of Michigan v. Jackson. Will prosecutors still be barrred from interviewing, or directing cops/agents to interview, represented suspects under state ethics rules? Under most such rules you cannot speak to a represented person unless his lawyer gives you permission or unless “authorized by law.” I believe that most, but not all, jurisdictions construe “authorized by law” to include constitutional law decisions by the Supreme Court, but I haven’t researched it recently.
According to this WSJ piece by Evan Perez, DOJ’s Office of Professional Responsibility (”OPR”) is likely to call for state bar sanctions, rather than criminal prosecutions, against John Yoo and Jay Bybee, the former Office of Legal Counsel (”OLC”) attorneys who wrote or signed legal opinions (the so-called “torture memos”) authorizing harsh interrogation techniques against detainees. Amazingly, former OLC Chief Steven Bradbury, who “signed some of the memos,” was “allowed during the final weeks of the Bush administration to comment on drafts of the internal probe’s report in his capacity as a Department of Justice official.” Senators Dick Durbin and Sheldon Whitehouse find this inappropriate since Bradbury was “a target of the probe.” Well, duh! DOJ has responded in a letter to the Senators that Bradbury’s participation, which happened during Marshall Jarrett’s watch as OPR chief, was okay since it “was transparent.” Oh, come on. Am I missing something here? How often does the target of a probe get to comment on drafts of the offense report? How about never! Of course, I’m talking about in the United States, not Russia or Venezuela. Can you imagine Mike Shaheen putting up with this kind of interference when he ran OPR? Note to the Attorney General–OPR needs a little more insulation than this. Will you provide it?
Carrie Johnson of the Washington Post reports here that former Bush White House and Bush DOJ officials have been working behind the scenes to soften the OPR Report. They have apparently argued that even referring Bybee and Yoo to state bars for possible disciplinary action sets a dangerous precedent. To me, the danger of any precedents will be dependent, to a significant extent, upon the report’s factual findings and legal analysis. Let the investigatory process be dispassionate and fair and focus on the possible violation of U.S. criminal law–nothing more, and nothing less. Let the chips fall where they may. Then, assuming probable cause that laws have been broken and a winnable case, let AG Holder and/or President Obama make the prudential decision whether to bring charges. I may not agree with that decision, but it is ultimately the AG’s and the President’s (actively or passively) to make. They call it prosecutorial discretion.
Here is New York Times Columnist Frank Rich’s latest take on the Bush Administration’s authorization of torture or extremely harsh interrogation methods, depending upon your point of view. Rich (echoing Senator Carl Levin) thinks that “it’s time for the Justice Department to enlist a panel of two or three apolitical outsiders, perhaps retired federal judges, ‘to review the mass of material’ we already have.” He wisely eschews the idea of a truth commission: “We don’t need another commission. We don’t need any Capitol Hill witch hunts.” But then Rich goes too far too fast: “What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.”
Aren’t you jumping the gun there a little bit, Frank? Don’t we need to first ascertain whether there was even a crime cognizable under federal law, and, if so, who committed it? And then, don’t the prosecutors need to determine, in their professional judgment, if the case is winnable? And finally, doesn’t Attorney General Holder (or a Special Counsel, if President Obama and AG Holder have deemed that one is appropriate) need to exercise his prosecutorial discretion as to whether prosecution is appropriate under all of the circumstances? That’s the way it is usually done and the way it should be done here. We don’t need no stinking Truth Commissions and we don’t need any left-wing screechers trying to bully DOJ. We have already had too much political pressure on DOJ in recent years.
As for “a panel of two or three apolitical outsiders, perhaps retired federal judges,” I don’t know of many: 1) successful prosecutions run by a panel; 2) apolitical retired federal judges; or, 3) retired judges who are qualified to lead an investigation at the operational level. How about picking a current well-respected career prosecutor? There are plenty of those around.
According to this Karl Vick piece in today’s Washington Post, former DOJ Office of Legal Counsel chief Jay Bybee, now a judge on the Ninth Circuit, regrets his role in signing the infamous “torture memos.” Since he is a sitting judge, Bybee is not commenting directly, but the article could not have been written without input from his friends. Vick’s story is balanced but short on substantive analysis of the memos in question, and notes that Bybee is friendly and admired by ideological friend and foe alike. I can attest to Bybee’s friendliness. We worked together in DOJ’s Office of Legal Policy in the 1980s and he was a consummate professional who did not appear to have a mean bone in his body. Calls for Bybee’s impeachment, based on conduct occurring before he became a judge, appear premature to me.
On the other hand, if DOJ professionals can make a reasoned argument that certain Bush-era legal memos sought merely to cover obviously illegal activities, let the investigations begin. After all, we investigate (and sometimes even prosecute) lawyers for fraudulently legitimizing tax fraud schemes with dubious letters of legal advice. I don’t see why dubious torture memos warrant different treatment. Just keep the politicians away. We don’t need any of Senator Leahy’s Truth Commissions.
This is a White Collar Blog, but America is our beat. And so, here we bring you a thoughtful op-ed from today’s Chicago Tribune by Constitutional Law expert Ron Rotunda. Rotunda argues that one key element of the American Recovery and Reinvestment Act (aka, the Stimulus Plan) is clearly unconstitutional.