Thursday, March 15, 2007

I do not have a policy of linking to every post at Really

Mark Kleiman asks

"If a politician puts pressure on a prosecutor not to pursue a case, that's pretty clearly obstruction of justice. But what about the reverse: where a politician puts pressure on a prosecutor to pursue a non-case, or to indict by some arbitrary date?"

He wonders if 8-gate "injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties"
asking "Is getting someone fired from his job "injuring" him in his "person or property"?"

I am quite sure that firing is generally not considered injuring in the USA (it ranks as a much more severe injury than say 6 weeks detention without trial in Italy). The US attorneys don't get their paycheck, but they have more free time. Under US law that is generally considered a fair deal. Worse, there is no qualifier to "performance" such as "proper performance" or "due performance". Thus the law would ban firing US attorneys for "performance related issues" (as claimed by McNulty). Clearly we have a non starter here.

However, it seems to me clear that pressing an attorney to"pursue a non-case, or to indict by some arbitrary date" is abstruction of justice. To me the magic word is "influences" in

"or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice,"
which logically implies that " any threatening letter or communication, [that] influences,or endeavors to influence, the due administration of justice" constitutes obstruction of justice.

The inclusion of "influences" in addition to "obstructs" and "impedes" seems designed to make sure that pressure for excessive or misdirected zeal is as clearly banned as pressure for undue forebearance.

I'd say that, by the text of the law, Domenici, Wilson and Doc Hasting's chief of staff are nailed.

Don't know anything about precedents though.

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