Political Animal says the indictment is a result of fairly crass local politics, and thus suggests it isn't serious stuff.
But you can decide for yourself, as I've just been sent a copy of the indictment. I haven't had a chance to read it myself; comments very welcome.
It seems that a South Texas grand jury has indicted Messers Cheney and Gonzales.
CNN, Cheney, Gonzales indicted for alleged prisoner abuse: Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers, Willacy County, Texas, District Attorney Juan Angel Guerra told CNN Tuesday.
The indictment stems from Cheney's investment in the Vanguard Group — an investment management company that reportedly has interests in the prison companies in charge of the detention centers, according to The Associated Press. It also charges Gonzales halted an investigation into abuse at the detention centers while he was attorney general.
You might think there are some federalism issues here. And there are. You might think there are some qualified/absolute immunity issues here, and there are. (Cf. In re Neagle, 135 U.S. 1 (1890) (creating federal officer immunity defense.)) But what you might not know is that there's a federal removal statute that deals with state criminal prosecutions, 28 U.S.C. § 1442(a)(1):
§ 1442. Federal officers or agencies sued or prosecuted
(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
So step one will be a removal to the federal District Court.
Incidentally, the Supreme Court approved the constitutionality of criminal removal jurisdiction in Tennessee v. Davis, 100 U.S. 257 (1880), and discussed the modern statute in Mesa v. California, 489 U.S. 121 (1989), where the court concluded that “Federal officer removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal defense.” (In other words, the defendant must be prepared to argue that acts underlying the charges were performed pursuant to his federal authority.)
Note that if the case is removed, state law continues to govern the substantive rules pertaining to the offense — but federal law supplies the procedural rules.
I missed this story from last week, but Dave Neiwert was on top of it, FBI Wanted Obama Plotters Charged, But A Rove Appointee Said No.
Isn't this sort of, well, serious?
The Florida judiciary often gets a bad rap. And sometimes it seems like it deserves it. But we have a pretty good, sometimes very good, state Supreme Court, and there's actually a lot of talent on the state bench. (I encountered this personally when I served on a state judicial committee staffed primarily by judges from all over the state.)
All this by way of preface to an opinion by Chief Judge Lee Haworth of Manatee County, which is a must-read for anyone interested in issues of indigent defense, the 6th Amendment, the Florida Constitution, the cruelty of Republican-dominated legislatures, or even basic due process.
The background goes like this: after selling the public on tax cuts, some as recently as the election a couple of months ago, and promising that there would be no cuts in anything (money grows on trees, right?), the Florida legislature is now in full panic mode. The schools are getting chopped. And so is everything else. About the first thing to go, even before the latest round of tax cuts I believe, was payments to lawyers for criminal defense work.
The Florida legislature decided that the most a lawyer should be paid for a non-capital case was $2500. No matter how many counts in the indictment. No matter how long the trial. They did make an exception for very extraordinary circumstances, where there were more than 20 prosecution witnesses, and the case took more than 75 hours: then the judge could double the fee. Only upon a finding that this payment would be “confiscatory” could the judge go above $5000, and even then for non-capital cases the maximum hourly fee available was $75/hour, well below the norm for the criminal bar. Plus, the fee determination would only be made at the end of trial — so the lawyer works only on spec without any idea what s/he'll be paid, has to front all the expenses (none of which are refundable by the state), and has to wait to see how long the state bureaucracy will take to actually pay out — sometimes months.
The purpose of all this was to screw trial lawyers, and even more to screw defendants by creating an overwhelming financial incentive to either cop a pleas or do a lousy job of representation.
Pursuant to the bill the Florida so-called “Justice Administrative Commission” prepared a contract that private lawyers could sign to be compensated for court-appointed work. The terms of that offer are amazingly bad, and not surprisingly very few lawyers have been willing to agree to them. Indeed, a very large fraction of the lawyers who formerly listed themselves as willing to accept court appointments for indigent defendants removed themselves from the list.
As a result, when relatively tiny Manatee County faced a giant multi-party conspiracy case, the number of defendants exceeded the supply competent and available lawyers. And the pool of competent but unwilling local lawyers consisted of sole practitioners who couldn't drop everything else to work for nothing and still make their mortgage. While it is accepted that courts can order an unwilling lawyer to represent the indigent, it is also settled law that you can't require a lawyer to bankrupt himself to do so. Yet, to pay what it would take to represent the unrepresented parties would bust the caps in the Florida statute. (And also would require progress payments were the case to drag on.)
In a careful opinion Judge Haworth bit the bullet and declared the Florida fee law as unconstitutional as applied to the facts before him, and entered an order allowing a quite modest but not confiscatory fee of $110 per hour for the involuntarily appointed lawyer in this — for Manatee County — extraordinary case. The authority for this ruling is given as the Florida State Constitution, Article V, Section 1 (creating courts, and inherently empowering them) and Article II, Section 3 (separation of powers).
Rather than rely only the inherent power of the courts, I would have liked to see a citation to the Florida Bill of Rights, such as Article I, Section 2 (“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…”), Section 9 (“No person shall be deprived of life, liberty or property without due process of law…”), Section 16(a) (“In all criminal prosecutions the accused shall, … shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both…”), Section 21 (“Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”), but you can't have everything. And Chief Judge Haworth can hardly be blamed for relying on the court's inherent powers, since he was only following the lead set by the Florida Supreme Court in Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986).
I hope this starts a trend.
(Case spotted via Rumpole)
Two mistrials due to deadlocked juries. Slim evidence. An unconvincing case. But the government won't give up on the Liberty 7 —> 6. Details, such as they are, at Southern District of Florida Blog: Liberty City to be tried a third time.
I never thought the prosecution on the most serious charges should have been brought in the first place, so you'll not be surprised to know I think this is a travesty of justice.
It couldn't possibly have anything to do with the great fuss and froth this administration originally made about its giant terrorism bust, could it? Which turned out to be a bust.
There are very very few cases that deserve to be brought again after two mistrials due to deadlocked juries (as opposed to witness tampering, error, or something else). There is simply no way at all that this case is one of them.
Ordinarily calm and mild blogger David Markus editorializes in Southern District of Florida Blog: Sad day
Typically I try to blog objectively and just report what is occurring in our District.
Today I can't do that because what happened this morning in magistrate court should not have happened.
Ben Kuehne, one of the pillars of this community, was indicted on money laundering charges. (read indictment here)
The government's theory of prosceution is outrageous. According to Jay Weaver's article:
Justice Department officials allege that Kuehne broke the law in 2002-03 when he vouched for millions paid by one-time Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial attorney, Roy Black.
Kuehne's research gave Black the confidence — in the form of legal opinion letters — to accept payments totaling $3.7 million in fees and $1.3 million in expenses from Ochoa, according to several sources. Kuehne earned a portion of the expense payments — $220,000 to $260,000 — from Black for vetting Ochoa's payments.
**
Federal prosecutors face a formidable challenge in proving the case against Kuehne. They will have to prove that Kuehne knew Ochoa's money came from the sale of family assets to drug-trafficking associates…
This means that Ben had to have knowingly and willfully lied to Roy when telling him that the fee was okay. But what motive would Ben have for doing this? The money certainly wasn't enough to risk all of this. And Ben Kuehne of all people wouldn't have done these things for a million dollars. He's as ethical a person and lawyer as I know. I'll comment a lot more on the charges once I've had a chance to digest the indictment which was unsealed this morning in mag court.
We all know the real reason for this prosecution — to discourage lawyers from taking these kinds of cases.
I went to court to support Ben. Half of the legal community was there to show their support. (He was released on a $250,000 personal surety bond.) Watching this unfold really stuck in my gut. I am still in disbelief. I actually had a case in the past with the lead prosecutor from DOJ. I went up to him to say hello and he exclaimed without prompting: “This is a wonderful day for the government.” The comment was unnecessary and it sickened me.
I walked away from him thinking just the opposite. This is a terrible day for our country. Ben will be acquitted. But at what cost to him? And our justice system? Now, more than ever, it's critical to fight for our Constitution and our justice system.
In court, Ben commented to Magistrate Judge Brown: “since I am completely innocent of these charges, I am entering a plea of not guilty.'' He is represented by John Nields and Jane Moscowitz.
The indictment alleges that Kuehne, along with a Columbian lawyer and a Columbian accountant, falsified various documents to hide the tainted origins of the money. In their spinning to the press, however, nameless government prosecutors say rather that he should have known — which is not what the statute charging him requires.
In the Ochoa case, sources familiar with the probe said both federal and Colombian investigators have traced the source of his family's sales, determined the proceeds came from dirty money and that Kuehne should have uncovered it before he moved the money through trust accounts to Black. Under one money laundering statute, a lawyer cannot approve or accept legal fees from a client if the attorney knows the payments are from criminal proceeds such as drug trafficking. Congress, however, made an exemption for lawyers when there is uncertainty about the source of the proceeds — an exemption the Justice Department has never acknowledged.
You'd think if they had a better case, they'd say so. David Markus suggests that this prosecution — of a man known as a local ethics guru — is a shot across the bow of the criminal defense bar, a tactic designed to make everyone in town afraid to take big drug cases.
Assuming Kuehne is in fact innocent of knowingly aiding and abetting in the falsification of documents — and I agree with Markus that the wages of alleged sin seem low here — I can't help but wonder if it's not a twofer for the Bush Justice Department: a chance to do what Markus said, plus a way to ruin the career and reputation of a leading local Democrat. Kuehne, after all, was part of Vice President Al Gore's legal team. Perhaps the partisan prosecution of Democratic office-holders is moving on to new pastures?
How long before the radicalization of David Markus? Or the rest of us?
Jotwell Blenderlaw