Written Decision on Georgia Thompson Case Suggests That the Prosecution May Well Have Acted in Good Faith
An opinion issued today on the Georgia Thompson case suggests that the prosecution, while flawed, may well have been brought in good faith by Steven Biskupic’s office.
The other day, our AUSA guest blogger WLS had an informative post about the Thompson prosecution. WLS, who listened to the oral argument in the appeal, concluded that the judges didn’t think that the prosecution was “bogus.” Rather, the reversal indicated that, in the appellate court’s view, the prosecution had misapplied a complex line of cases relating to the applicable criminal statutes. As WLS said:
The outcome really points out how tricky it is to bring a case involving public corruption where the public official didn’t take money or something else of value in a quid pro quo. That doesn’t mean such cases are illegitimate — it simply means that the question of whether criminality is involved in the subjective motivations for the conduct is much more difficult to prove.
Today the Seventh Circuit issued its opinion in the case, and I think WLS’s view is vindicated. Here is the takeaway line from the opinion — one that, I predict, you won’t see on any lefty site:
Sections 666 and 1346 [the applicable criminal statutes] have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source.
(Emphasis added.)
This is quite different from the line the Democrats have been pushing: that the appellate court thought Biskupic brought an bogus prosecution in bad faith that could only have been motivated by politics.
For any rational person, this opinion demolishes the theory that the Thompson prosecution is evidence of misconduct by Biskupic, or is in any way relevant to the U.S. Attorney firing scandal.
UPDATE: I should add that I don’t think much of the Government’s theory, and I would not have brought this particular prosecution. But there is a difference between a lack of good faith and an arguably poor judgment. I think the prosecution was the latter, not the former.
TPM Muckraker had most of this before you. Or do they not qualify as a lefty site?
James B. Shearer (fc887e) — 4/20/2007 @ 6:31 pmWas the prosecution’s misapplication of “a complex line of cases relating to the applicable criminal statutes” made in good faith? Or did the prosecutor intentionally twist and stretch the law in order to bring a politically motivated case in which he had no other (legitimate) angle to pursue the defendant?
I doubt that every stretch of the law is made in good faith. Don’t prosecutors sometimes (often?) bring novel interpretations of a law in order to go after someone they otherwise couldn’t nail? (they’re always shown doing so on TV shows and I know I can believe what I see on TV).
Would anyone here ever argue that these envelope pushing prosecutors are never motivated by such crass considerations such as the desire to nail a political opponent? That pushing the envelope is only done for ‘good’ reasons?
I know that when WLS wrote, “the question of whether criminality is involved in the subjective motivations for the conduct is much more difficult to prove”, he was talking about the actions of the defendant.. but he could have just as easily been talking about the actions of the prosecutor?
stevesturm (d3e296) — 4/20/2007 @ 6:38 pmThey decided to remove the portion of the quote “with support in the case law”:
It’s harder to make this argument if you include the whole quote, as I did:
TPMmuckraker didn’t have the full quote before I did. Indeed, they didn’t have it at all. They elided a very important part of it.
Disappointing, even for a site that I fully acknowledge is a lefty web site. They’re usually a little more honest than that.
Patterico (5b0b7f) — 4/20/2007 @ 6:38 pmTPM Muckraker had most of this before you. Or do they not qualify as a lefty site?
He sure did a great job misrepresenting the decision in that headline.
Taltos (c99804) — 4/20/2007 @ 6:39 pmFor what it’s worth, the 7th Cir. asked me to ghost-write the opinion after reading my comments here.
WLS (077d0d) — 4/20/2007 @ 6:55 pmSections 666 and 1346 [the applicable criminal statutes] have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law.
Does this not also demonstrate that bad laws are being written which legal professionals have to strain to apply? Or that we may be losing the battle against corruption in government?
gm (9e9332) — 4/20/2007 @ 7:24 pmWLS #5:
Well, did you? Are you looking after being a staff attorney or magistrate?
nk (6415d7) — 4/20/2007 @ 8:43 pm“Written Decision on Georgia Thompson Case Suggests That Prosecution May Well Have[sic] Acted in Good Faith”
AF (9c6cd6) — 4/20/2007 @ 8:50 pmI’d be much happier if I could take it for granted that they were merely idiots.
I just love the appellate court’s opinion (written, it should be noted, by Reagan appointee Frank Easterbrook). It’s a model of careful analysis and clear communication. This blog post, on the other hand, is a model of something else.
Did you skip the first ten pages of the opinion where the court discussed the specifics of this case? Did you miss the part where they described the prosecution’s line of reasoning as “preposterous”? Did you overlook how they said that it would “stretch the ordinary understanding of language” to go along with the prosecutor’s case?
This was as blunt and direct a smackdown of a US Attorney as I’ve ever seen in an appellate opinion.
It’s true that a closing paragraph also criticizes the way the law is written, saying that poor wording makes it “possible for prosecutors to believe … that a crime has occurred, and for both sides to act in good faith,” but the key word there is “possible.” There’s nothing in that paragraph – or in any other paragraph from the entire opinion – to suggest that the prosecution in this particular case acted in good faith. What the court is clearly saying is this: “We caught the guy who deliberately trespassed and, by the way, you might want to change your signs so someone else doesn’t accidentally stumble across the line.”
The court was clearly appalled by Biskupic’s prosecution. No amount of spin will change that.
Oregonian (e76bad) — 4/20/2007 @ 9:47 pmI’m a pretty good control example of a democratic leaning layman who thinks the Wisconsin case was a political lynching. Patterico has a little more credibility with me than… most other rightist websites, but if I follow Oregonian, he’s bashing TPM for ellipsing a quote, while he’s left out a solid ten pages of judicial opinion clearly stating that the prosecution was ridiculous.
To quote the damning passages from Oregonian:
Did you miss the part where they described the prosecution’s line of reasoning as “preposterous”? Did you overlook how they said that it would “stretch the ordinary understanding of language” to go along with the prosecutor’s case?
It’s true that a closing paragraph also criticizes the way the law is written, saying that poor wording makes it “possible for prosecutors to believe … that a crime has occurred, and for both sides to act in good faith,” but the key word there is “possible.
It sure sounds to me like you’re either accidentally or deliberately linking the Court’s footnote that the law could be clearer in general, as a defense of this particular prosecutor. You haven’t dealt with the damning language used by the judges against the prosecutor, and until you can explain that, you sound like you’re cherry-picking this decision to make bad faith sound like good faith.
glasnost (da6651) — 4/21/2007 @ 8:59 amOregonian misstates what the court said.
It did not describe the prosecution’s line of reasoning as “preposterous.” They used that word to describe a contention that the prosecution did not make:
But the prosecution alleged something more, that Thompson derived a private gain from that consideration of political considerations. The court said that the prosecution’s theory of private gain stretched the ordinary meaning of the applicable language, and I agree.
But it’s a misstatement to leave out that part of the analysis and simplistically assert that the court said the prosecution theory was preposterous. It did not.
Nor did they call the prosecution itself “preposterous” as TPMmuckraker claimed. That is, if anything, a bigger distortion.
I said that the court believed the theory was flawed, and I was right.
The passage re good faith, which also asserts support in case law (a part left out by TPMmuckraker and Oregonian both) is not a footnote, and it is bizarre to conclude that it was included to refer to other cases only. The whole discussion has to do with legal theory, and it makes the most sense to say that the confusion over legal theory occurred in this case and could occur in others.
Patterico (5b0b7f) — 4/21/2007 @ 10:05 amFor example, assume that you accuse Harry Reid of supporting the lifting of a land use restriction as a quid pro quo for a bribe. Judge Easterbrook disagrees. Here is the conversation:
Did Easterbrook just call your entire theory preposterous? No. You didn’t just say that Reid took a legislative action with political considerations in mind. You also alleged that he derived a private gain from it. Easterbrook disagrees, but he didn’t call your theory “preposterous.”
I think it *would* be fair to say that he believes your theory stretches the ordinary meaning of language. In other words, your theory is flawed.
It also seems fair to say that he has suggested or implied that your theory may well have been advanced in good faith, given the state of the law as written. He didn’t specifically *endorse* it as advanced in good faith, but he implied that it may have been.
This all may be worth a post later, given the distortions we are seeing from TPMmuckraker and Oregonian.
Patterico (e2c104) — 4/21/2007 @ 10:42 am