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January 25, 2024
Federal judge sentences Peter Navarro to 4 months of imprisonment for contempt of Congress
As reported in this Fox News piece, "Peter Navarro, who served in the White House under former President Donald Trump, was sentenced Thursday for flouting a House Jan. 6 committee subpoena. U.S. District Judge Amit Mehta sentenced Navarro to four months in prison and ordered him to pay a fine of $9,500." Here is more:
That's two months shorter than the six prosecutors had sought, but Mehta drastically reduced the whopping $200,000 fine sought by the Justice Department.
A former adviser to the president on trade and manufacturing policies, Navarro was convicted in September of two counts of contempt of Congress for defying a subpoena for documents and a deposition from the House select committee investigating the Jan. 6, 2021, riot at the U.S. Capitol. The subpoena required Navarro to appear and produce documents in February 2022, and sit for a deposition in March 2022, but Navarro refused to provide the materials and testify. As a private citizen, he was indicted on June 2, 2022....
Mehta on Thursday had gone through a tedious recounting of the sentencing guidelines and came to the conclusion that there is a "zero to six months range," of imprisonment in this case, as well as a fine range of $500 to $9,500. Sentencing guidelines are only a suggestion, and the judge could have sentenced Navarro to a longer sentence if he saw fit.
At the sentencing hearing, Navarro spoke in his own defense, saying he defied the subpoena because he believed in "good faith" that Trump had invoked executive privilege. "When I received that congressional subpoena, the second, I had an honest belief that the privilege had been invoked, and I was torn. Nobody in my position should be put in conflict between the legislative branch and the executive branch. Is that the lesson of this entire proceeding? Get a letter and a lawyer? I think in a way it is," Navarro said. "I am disappointed with a process where a jury convicted me, and I was unable to provide a defense, one of the most important elements of our justice system."
Navarro's defense attorney said the court of appeal will determine if executive privilege applies. The judge noted how in citing executive privilege, another White House adviser, Kellyanne Conway "had an (DOJ Office of Legal Counsel) OLC opinion she could rely on," but Navarro had no such opinion and didn't hire representation.
"I have a great deal of respect for your client and what he accomplished and that makes it more disappointing," Mehta said, also noting that Mark Meadows, who also faced a Jan. 6 committee subpoena, "produced documents, produced texts, he didn’t testify, but at least he did something." ...
Prosecutors had asked the judge to sentence Navarro to six months behind bars and impose a $200,000 fine. The Justice Department has previously noted that each count of contempt of Congress carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of up to $100,000....
Navarro was the second Trump aide to face contempt of Congress charges. Former White House adviser Steve Bannon was convicted of two counts and was sentenced to four months behind bars, though he has been free while appealing his conviction.
January 25, 2024 at 01:24 PM | Permalink
Comments
This judge is a POS. And it shows the utter corruption of the DOJ. If Eric Holder got to defy Congress, Navarro should be able to as well. This is politicization of justice. Mehta deserves the calumny of all freedom loving people.
Posted by: federalist | Jan 25, 2024 1:36:35 PM
federalist, your ranting is quite tiresome.
Posted by: anon | Jan 25, 2024 2:29:18 PM
Awwww, poor baby. Please show how I am wrong. Eric Holder, a public official exercising enormous power thumbed his nose at the people's right, exercised through Congress to oversee the DOJ. The J6 Committee, established completely outside normal procedures, went on a vast and intrusive fishing expedition. Of the two, which official, objectively, should have been prosecuted? The question answers itself. So what this is--partisan justice. In other words, tyranny.
So stick it, anon.
Posted by: federalist | Jan 25, 2024 3:02:13 PM
https://www.realclearinvestigations.com/articles/2024/01/24/all_about_the_prospective_lenient_sentence_for_this_anti-trump_leaker_of_thousands_of_tax_returns_1006838.html?mc_cid=d1718d4b46&mc_eid=7715ce2960
And looky here---interesting to compare and contrast the government's recommendations. This guy should get LWOP--yes, you heard me right.
Posted by: federalist | Jan 25, 2024 4:27:19 PM
federalist, if I am reading the press reports right, DOJ asked for the top of the applicable guideline range for Navarro and is asking for 6 TIMES the top of the application guideline range for the tax return leaker. Or, stated another way, DOJ asked for 6 months for Navarro and 10 times as many months (60) for the tax return leaker.
Posted by: Doug B | Jan 25, 2024 6:02:35 PM
Doug: of the two, if you're only going to prosecute one, whom would it be, Navarro or Holder?
As for the tax leaker--they let him plead guilty to a solitary count, which gives the game away--there is no way that this judge is going to max this guy out, and they have set it up so that the judge doesn't have to. You don't need to be a weatherman to know which way the wind is blowing. And why were they so lenient here? This guy did this to influence an election. I thought that was treason.
Posted by: federalist | Jan 26, 2024 9:34:47 AM
federalist, I have never been a prosecutor or worked at DOJ so it is hard for me to speak knowledgeably to all the prosecutorial discretion issues your questions raise. I assume there are reasons federal prosecutors would be disinclined to prosecute a cabinet official, but maybe Bill can report whether DOJ has any special prosecutorial rules on this front.
As for the tax leaker deal, I surmise the guideline range would have been the same no matter how many counts were part of the plea AND that the guy would have sought to exercise his right to trial had his sentencing exposure been a decade or longer. Given anti-Trump sentiments in DC, one might speculate that DOJ may have feared it could not get a unanimous jury to convict on multiple charges. And, of course, even if it did, the judge would still have complete discretion to give a lower sentence. Again, Bill, who I know if a fan of DOJ;s plea powers and has experience with how DOJ typically uses it, might have additional thoughts about DOJ practice here.
If you think the judge should give the guy 60 months --- which is what DOJ is seeking --- you ought to write an op-ed to explain why you think a max sentence is justified under applicable sentencing laws. You have probably missed the window of time in which you might have submitted an amicus brief, though I am unsure of local rules on this matter.
Posted by: Doug B | Jan 26, 2024 10:18:14 AM
Doug, anyone, and I mean anyone, who believes that Navarro's transgression was worse than Holder's is a partisan hack.
Convenient re: leaker.
Posted by: federalist | Jan 26, 2024 1:46:29 PM
federalist, I never asserted or suggested the relative seriousness of their behaviors. You asked who I would prosecute, and I explained some factors I think prosecutors consider. I have not served in DOJ, have you? I know Bill has, which is why I would be eager to hear his perspective. I have also been seeking his perspective on your claims that DOJ is and has been corrupt (for decades?).
And yes, I fully agree that plea bargaining is very "convenient" for prosecutors. That why I continued to be puzzled you do not want a Prez to pledge to reduce the footprint of DOJ, which secures 98% of guilt verdicts from pleas and surely feels extra pressure to cut deals because it takes on so many cases.
Posted by: Doug B | Jan 26, 2024 2:13:59 PM
It is convenient. The crime is appalling. The IRS requires people to hand over personal and financial information, and then this Dem donor leaks info to improperly influence an election, and he gets to plead to one count in front of a friendly judge. My guess--he gets a six month sentence. And the DOJ helped him along.
Your agnosticism re: Navarro and Holder is interesting. The DOJ stinks to high heaven.
Posted by: federalist | Jan 26, 2024 2:37:03 PM
Again, I am disinclined to try to argue against your claims that "DOJ stinks to high heaven." That's why I'd be eager to have a Prez candidate pledge to cut their criminal work in half. But you continue to not want to endorse this relatively modest reform (since DOJ at 50,000 cases/year would still be much bigger than the Reagan years), and that continues to suggest to me that you lack the courage of your anti-DOJ convictions. Sack up and call for real change to DOJ if you really think it is such a corrupt place.
I have been advocating for decades for an array of reforms to limit the powers of, and to bring more transparanecy and accountability to, DOJ. It's great you now get why big reforms are needed and that DOJ toadies have been harming us all. But have the guts to urge a Prez to pledge to do something significant on this front. It is easy to name call about DOJ, harder to endorse the work to do better.
Posted by: Doug B | Jan 26, 2024 7:11:13 PM
Doug --
"I fully agree that plea bargaining is very 'convenient' for prosecutors. That why I continued to be puzzled you do not want a Prez to pledge to reduce the footprint of DOJ, which secures 98% of guilt verdicts from pleas and surely feels extra pressure to cut deals because it takes on so many cases."
Since plea bargaining is so bad, and merely a prosecutorial convenience, will you join me in calling for a one year moratorium on plea bargains? During that year, any AUSA who offers a bargain will lose a six months' pay, and any defense lawyer who seeks or accepts one will be referred to the state bar for unprofessional conduct.
I mean, if we have a big problem here, we need a big solution, no? So will you join my call for a moratorium with sanctions? Time to put those evil prosecutors and their conniving pals in the defense bar in their place!!!
Posted by: Bill Otis | Jan 27, 2024 12:08:21 AM
Bill: I would be eager to experiment with a moratorium on plea bargains. (And, remember, I've not stated or suggested DOJ prosecutors are evil; federalist is the one who keeps saying they are "corrupt," a contention you've not contested.) I suspect a moratorium would lead to fewer indictments with fewer charges and more of a focus on (and longer sentences for) the worst offenders. But maybe you have a different view of what might happen.
But, of course, defendants must still be allowed to plead "open" without any deal, and defense attorneys must be allowed to inform defendants about the likely consequences of doing so (or failing to do so). I do not think sanctions are necessary to make this work, we'd just need some judges to refuse to accept/enforce the terms of any plea deals.
Among many other possible benefits, we'd get rid of appeal waivers and other problematic terms that have become boilerplate in many plea deals.
Posted by: Doug B | Jan 27, 2024 3:41:50 AM
Doug --
"But maybe you have a different view of what might happen."
Not different so much as additional. Fewer criminals would be called to account, yes, much to their and the Left's delight. But what you neglect to mention is the the defense bar would raise holy hell, because (a) it lives off plea bargains, as I'm sure you know, and (b) it would then lose the ability to settle the case for a fraction of what the client would get if he want to trial.
"Among many other possible benefits, we'd get rid of appeal waivers and other problematic terms that have become boilerplate in many plea deals."
I would never have invented the appeal waiver if I could trust the defense not to try to back out of what they full well understood was to be the end of the case. But over the years I learned better than to expect the defense bar to be honest. Still, having invented the waiver, I'm gratified that it's been approved by every circuit, has made justice more expeditious, made courts' dockets more manageable, and has saved tons of taxpayer dollars. Do you agree with me that these things are important benefits?
(But I'll tell you a story: When I first created it, Main Justice gave me an ear full, although they never ordered me not to do it. I think it was five years later, or maybe six, that they gave me an award for it).
Posted by: Bill Otis | Jan 27, 2024 5:26:32 PM
Doug --
You today (emphasis added): "And, remember, I've not stated or suggested DOJ prosecutors are evil; federalist is the one who keeps saying they are 'corrupt,' A CONTENTION YOU'VE NOT CONTESTED."
You two days ago (Jan 25 6:46 pm): "Bill, do you really view every failure to object and silence as an endorsement?"
Far out. Just far out.
Posted by: Bill Otis | Jan 27, 2024 10:34:48 PM
Yes, Bill, I am highlighting YOUR double-standards. You assail folks for not taking issues with delzell's off-topic slurs/rantings, and yet you have not taken issue with federalist's repeated rants about DOJ corruption. I do not assail you for not wanting to engage with federalist's "DOJ is corrupt" hobby horse, and I do not think anyone should assail others for having no interest in engaging with delzell claptrap. Silence should be viewed just as silence, especially in blog comment fora.
Back to the topics at hand:
1. Defense attorneys are duty bound to pursue their clients best interests, so if DOJ prosecutors are handing out sweetheart deals, defense attorneys must pursue them. But as federalist rigthly notes, it is prosecutors (and only prosecutors) who control these deals and they alone can stop giving these deals. Defense attorneys will still have plenty to do advising about open plea options and making sentencing arguments to judges. And that another virtue of a deal-free system: sentencing arguments should be made to a judge in open court applying applicable law and subject to review as Congress provided. Plea deals serve to shift a lot of sentencing decision-making to unaccountable and hidden DOJ prosecutors, who might be pursuing all sorts of suspect or untoward agendas. We do not know about the DOJ decisions because nothing is on the record, which in turn can make folks like federalist suspect that corrupt motives may be driving/influencing (some? all?) DOJ deal-making.
2. Speaking of hidden DOJ activity, I never knew you invented appeal waivers until you bragged about your law-making work here. Is your law-invention history documented anywhere so the public can know the full story? Are there any memos of other materials that explain why "Main Justice gave [you] an ear full"? I'd guess it had something to do with the fact Congress passed a law, 18 USC §3742(a), signed by Prez Reagan, that gave defendants the right to appeal ther sentence except for fixed sentence pleas under 3742(c). But then Bill Otis, hidden member of DOJ workforce, decided he didn't like defendants having the appeal right Congress provided so he invented a plea term to circumvert that right. Did Main Justice give you an earful because it once through DOJ’s job was to follow the laws passed by Congress, not invent work arounds that undermine the goals Congress sought to advance?
If you and/or DOJ thinks sentencing appeals have more costs than benefits, the proper way to advance reform is to urge Congress to revise 18 USC §3742, not to push plea deal that functionaly alter the statutory law that Congress enacted. But maybe there are documents/materials you could provide that I could review about how you and DOJ studied the costs and benefits of sentencing appeals before you advanced your efforts to nullify them. Was any research or data collection or hearings involved in your work to circumvent the law Congress enacted? Could I seek to get them from DOJ or might you have copies you could share?
Posted by: Doug B | Jan 27, 2024 11:35:49 PM
Doug --
A few things.
-- You could block Mr. Delzell and his racist trash anytime you want. That would not be my preference, but my preferences are irrelevant in running this blog, which you own. The decision to allow his stuff is up to you alone.
-- What you were doing, as is perfectly clear from your own words (which I didn't massage to suit my purposes and instead quoted verbatim) is employ YOUR OWN double standard, in which a failure to object to X either is, or is not, revealing, depending on which at the moment favors your argument.
-- "Defense attorneys are duty bound to pursue their clients best interests, so if DOJ prosecutors are handing out sweetheart deals, defense attorneys must pursue them. But as federalist rigthly notes, it is prosecutors (and only prosecutors) who control these deals and they alone can stop giving these deals."
That's exactly why I proposed that you join me in proactively calling for a moratoriums on plea deals, with punishment for either prosecutors who push them or defense lawyers who seek or accept them.
-- "Plea deals serve to shift a lot of sentencing decision-making to unaccountable and hidden DOJ prosecutors, who might be pursuing all sorts of suspect or untoward agendas."
There is no plea deal -- none -- unless the defense lawyer agrees. And deals are negotiated, not simply imposed. You keep making like defense lawyers have nothing to do with it, which you can't help knowing is wildly incorrect. And prosecutors, being public officers, have lots more accountability than defense lawyers, who answer only to their (child molesting or cash swindling or car jacking, etc.) clients. Nice group there.
Don't like the prosecutor? Fine! At the next election, get rid of Fani Willis or Marilyn Mosby, etc. What elections do we have to make the Public Defender accountable???
-- You keep implying, without evidence, that there was something shady about appeal waivers. The courts of appeals, however, have ALL approved them, and have done so FOR MORE THAN 30 YEARS over every argument (e.g., frustrating the purposes of 3742) you have advanced. Now maybe all these courts are all corrupt/ignorant/lazy, but I don't think so. But even with all the precedent on my side, any defense lawyer who cares to can ding the waiver can do so BY SIMPLY REFUSING TO SIGN THE DEAL THAT CONTAINS IT.
There, ain't that easy?
-- Unlike Trump and Biden, both of whom lawlessly took government documents with them when they left office, I didn't. So I don't have any. I doubt there are any about appeal waivers, but if there are, ask Merrick Garland. I'll be happy to tell him that I have no objection whatever to DOJ's releasing them to you. (I do think there's something about them in the US Attorneys Manual. That is publicly available, so if you want to have a look, feel free).
-- "Did Main Justice give you an earful because it once through DOJ’s job was to follow the laws passed by Congress, not invent work arounds that undermine the goals Congress sought to advance?"
No, it gave me an earful because big, fat bureaucracies at least initially resist innovation. And as I said, later on it recognized the error of its ways and replaced the earful with an award. This was during the Clinton years.
-- "If you and/or DOJ thinks sentencing appeals have more costs than benefits, the proper way to advance reform is to urge Congress to revise 18 USC §3742, not to push plea deal that functionaly alter the statutory law that Congress enacted."
Let's try to get our thinking out of the last century and into the present one. In other words, let's try this: "If you and/or the defense bar thinks sentencing appeal waivers have more costs than benefits, the proper way to advance reform is to urge Congress to revise 18 USC §3742 to ban them."
Go right ahead. I think we both know what the result would be.
Posted by: Bill Otis | Jan 28, 2024 4:01:04 AM
Gads, Bill:
1. I am applying YOUR silence standard. I never thought to attribute significance to your silence in the face of federalist's many (on-topic) rants about DOJ corruption (or, say, Master Tarls' criticism of ID checks) until YOU attributed great meaning to others' silence to delzell's off-topic ravings. For clarity, please explain YOUR standards for silence --- is it "silence = violence"? --- and I will try to fairly apply it to you. (I am also consistently applying my standards for not deleting non-criminal, non-harrassing comments absent thoughtful requests to do so).
2. I did join your plea deal moratorium call, have you not been paying attention? Maybe you aren't, because we are not talking about local-elected prosecutors, we are talkng about DOJ career attorneys who are not subject to elections (and who, in another thread, you suggested were not to even subject to real control through Prez elections). I agree that DOJ prosecutors have more accountability to the people than defense attorneys, as they charges and propose deals in the name of US people. That's why federalist rightly complains about DOJ prosecutors when he sees federal charging/bargaining he dislikes, and it's telling how you wish to shift blame to avoid taking responsibility for prosecutors' primary role in our plea bargain system.
3. I don't know if there was something shady in your invention of appeal waivers in plea deals because you did it behind closed doors and perhaps without documentation or public explanation. Do you have way to show Main Justice balked only because "fat bureaucracies .... resist innovation"? Was it career DOJ lawyers or Clinton-appointed ones who balked and then flip-flopped (or both)? You say you "doubt there are any [documents] about appeal waivers" that the public can view to assess the process --- which sounds pretty shady --- and I am left to wonder whether seeking reform in Congress (or the US Sentencing Commission) was contemplated. Other than giving you an award, did any DOJ career or political appointees provide any guidance (private or public) to you or to other DOJ lawyers about when and how efforts to quash statutory appeal rights should appear in plea deals? Were any other stakeholders included in the law-invention process? Again, you keep making notable representations about all this --- not sure you invention or Main Justice balking has even been know --- but how can anyone know whether the process was shady or sound if it was done with no transparency and no means of accountability and apparently no public or private documentation? I hope the process was sound, and I'd love any more information about how DOJ lawyers, secretly behind closed doors, contemplated changing federal sentencing law through plea deal terms that are still shrouded in mystery.
4. In the end, since the current text of § 3742 clearly provides for appeal rights and carves out only one type of plea deal to make issues unappealable, the debate here concerns who is being faithful to the text of the law Congress passed and who devised clever ways to nullify statutory law. In this arena, Bill, you resemble the progessive prosuctors you like to assail by seeking not to follow a law you dislike for policy reasons. Only you never had to account to the people directly (and the process remains mysterious). Krasner et al. run for office saying they view certain applications of certain criminal laws to produce more costs than benefits, and they then implement their philosophy only if elected and can be kicked out by voters thereafter. You, Bill, got hired as a career DOJ lawyer (by other career DOJ lawyers?), and in that role you (in a hidden process) sought to circumvent a criminal appeal law that you thought produced more costs than benefits. And we have, it seems, no way of knowing just how this came to pass or any details on Main Justice's flip-flopping to embrace your nullification "innovation." And it impacts tens of thousands of federal defendant each year, though when and how is itself still a mystery as Main Justice and individuals USA offices never account for when and how it seeks to use this statutoy appeal nullification tool.
Posted by: Doug B | Jan 28, 2024 7:40:11 AM
Doug --
-- My basic discussions with DOJ were short and sweet. Their view was that it was an open question that I could win. My response was that I had won a lot of cases in the Fourth Circuit and I was quite sure I'd win this time too. Moreover, the taxpayers (our clients) had a lot at stake in defeating the defense bar's plans to litigate the (then new) sentencing system into the ground with zillions of (mostly silly but time-consuming) appeals. So they said, OK, go ahead, but you have the laboring oar. The result was US v. Wiggins, 905 F. 2d 51 (4th Cir. 1990)(available here: https://scholar.google.com/scholar_case?case=4967625770228609947&hl=en&as_sdt=6&as_vis=1&oi=scholarr). As you know, over the years, all the other circuits agreed with Wiggins and the arguments I presented there.
Why are you so resentful of my success and the courts' agreeing with me? That's not like you.
-- Basically, you present a bunch of arguments my opponents could and did make in the circuits, repeatedly, and lost repeatedly. This is like the defense lawyers who make losing arguments in SCOTUS about the death penalty, and then get on the Internet and make them again to a more admiring audience. But the Internet, for all its virtues (and vices) is not court. Just repeating arguments that lose in court strikes me as childish, something from Sore Loser Land.
Still, if the appeal waiver bothers you this much, team up with someone in the defense bar (you know plenty) who wants to launch a challenge and have at it IN COURT. Maybe Merrick Garland will bring me back for a repeat performance (although somehow I doubt it).
-- On your questions about how the appeal waiver was developed: I told you, unlike Trump and Biden, I didn't take government papers with me when I left. If you want to explore this matter, it's fine with me, file a FOIA request with DOJ.
Of course I've already given you the basics above. I knew the defense bar was going to try to absorb gobs of government resources by inundating the system with thousands of mostly absurd sentencing appeals (they were quite open about saying this). I thought this would be bad for public safety, the public fisc, the courts, and my employer (DOJ). So I said to myself, there's a way to counteract this plan, to wit, offer them some goodies in the plea deal for a sentencing appeal waiver. Since defendants and defense lawyers like goodies -- and knew their chances in a sentencing appeal were slim to none anyway -- the great majority of them were (and are) happy to go along.
Why this strikes you as nefarious is a mystery. My guess is because you're an academic rather than a litigating lawyer with actual clients -- clients who, by the thousands, gain more than they lose by bargains containing the waiver.
-- At the end of the day, you gin up questions about process because the anti-waiver side lost again and again on substance, so what's left? This is both unworthy and, at this late date, very, very stale. Still, I don't want to stand in your way if you want to do this. Not only can you do a FOIA request, you can convince your pal Dick Durbin, Chairman of Senate Judiciary, to have a great big hearing on it! Political grandstanding when you lose in court is not exactly a new trick in this town.
Posted by: Bill Otis | Jan 28, 2024 12:18:33 PM
Bill, sounds like you and DOJ only debated whether you could "win," not whether your innovation was a sound advancement of the statutory text and goals of the SRA. Congress gave defendants and prosecutors the right to appeal sentencing decisions, you decided that was bad policy ("I thought this would be bad ... so I said to myself ..."), and you cleverly invented a way to nullify that right. Courts have approved, under various rationales and with various exceptions, DOJ's efforts to circumvent the appeal rights Congress thought important. But that reality does not change the fact that DOJ, though a secret process you apparently led, has functionally rewritten a law Congress passed.
I acknowledge that courts (nor DOJ) are not likely to reverse course here. The more recent tendency of DOJ and courts to invent new (non-textual) limits on sentence reduction authority after the First Step Act is a recent reminder that "innovative" DOJ efforts to reduce the statutory rights of criminals always sells well. It is helpful to have you candidly explain why you thought plea deal "goodies" made good policy here and how you and DOJ prosecutors, as long as you could "win," did not find problematic advancing your vision of good policy by offering breaks to guilty criminals. So to recap: Bill Otis thought Congress wrote a bad law by granting sentencing appeal rights, and so he devised a way out of the extra work this law created by giving out (unjustified?) "goodies" to guilty criminals in order to get their help in evading application of a law he thought was bad policy.
Do you have any details on the number and nature of the "goodies" that have been given to guilty criminals for decades to get them to help circumvent the law? Do we know if recidivism rates are higher for the criminals who got those (unjustified?) goodies or whether federal sentencing law is worse because the appeals Congress authorized were circumvented? Do we know if DOJ has made any effort to assess whether your scheme of "goodies" to criminals to evade appeals have had more costs than benefits?
Relative to all sorts of other matters, this is a small, technical and mostly hidden aspect of DOJ giving unclear "goodies" to (some) criminals in order to evade a law Congress passed. But it is telling of DOJ's general philosophy: we do what we like based on our view of good policy without regard to what Congress passed into law or who we need to bribe with "goodies," and if courts uphold our cleverness, no need to ever give a second thought to whether our circumvention actually benefits society or is consistent with our constitutional structure. I would NOT use the term "corrupt" to describe DOJ's actions on this front, but I certainly think we see on display a certain kind of DOJ chutzpah that has obviously been around for decades. And that this happens on a non-politicized issue like sentence appeal waivers makes me that much more worried about how DOJ functions on more politicized matters (which I think is federalist's main point when he says stuff like "DOJ stinks to high heaven").
Posted by: Doug B | Jan 28, 2024 1:23:14 PM
Doug --
"Bill, sounds like you and DOJ only debated whether you could 'win,' not whether your innovation was a sound advancement of the statutory text and goals of the SRA."
What winning in court MEANS is convincing neutral judges that your argument advances the law. So yes, that's the kind of winning I did. Guilty as charged.
"Congress gave defendants and prosecutors the right to appeal sentencing decisions..."
And the right not to, which is the part you keep walking past. Do you really think the courts, DOJ, and the huge majority of the defense bar has accepted appeal waivers for better than three decades because they're all corrupt and lazy?
"Courts have approved, under various rationales and with various exceptions, DOJ's efforts to circumvent the appeal rights Congress thought important."
Let's try that in a more fundamental form: "Courts have approved, under various rationales and with various exceptions, DOJ's efforts to circumvent the trial rights the Constitution thought not merely important but central (by writing them into the Sixth Amendment)."
So for decades (see Santobello and Brady v. United States) the Supreme Court has approved plea deals (ummmm, make that "prosecutors' dirty tricks") that bargained away the bedrock right to a guilt-or-innocence trial, but the lesser statutory right to appeal a sentence CANNOT be bargained away???
Hello!!
"I acknowledge that courts (nor DOJ) are not likely to reverse course here. The more recent tendency of DOJ and courts to invent new (non-textual) limits on sentence reduction authority after the First Step Act is a recent reminder that "innovative" DOJ efforts to reduce the statutory rights of criminals always sells well."
Now you're veering off into Keith Lynch-land, in which both courts and (Merrick Garland's among many others) DOJ are engaged in a massive, sleazy conspiracy to gut rights.
You don't actually believe that, do you?
"It is helpful to have you candidly explain why you thought plea deal "goodies" made good policy here and how you and DOJ prosecutors, as long as you could "win," did not find problematic advancing your vision of good policy by offering breaks to guilty criminals."
Ah, and there we have the nub of it. It's not just that you're against appeal waivers in plea bargains; is that you're against plea bargains AT ALL. What do you think plea bargains are, Doug? The last time I looked, every single one of them got done "by offering breaks to guilty criminals." You think criminals sign plea bargains because the prosecutor has a nice smile? NEWS FLASH: They sign them because they're dead meat at trial and it's the best option they have.
A bargain is, after all, a bargain. You give up something to get something. Do you think SCOTUS didn't know this when it approved plea bargains decades ago?
So let's try to re-cap. The Supreme Court stinks because it approves defendants' giving up paramount constitutional trial rights in your basic plea bargain. All the courts of appeals also stink because they approve defendant's giving up mere statutory rights in a waiver-of-appeal bargain. The Justice Department under administrations of both parties stinks because it pushes this charade. The defense bar stinks because it goes along with it merely to advance the overall interests of the client (which you have said elsewhere is the main if not the only thing they're supposed to do). The district courts stink because they accept thousands of these sleazy, statute-defying deals every year (admittedly at the request of both parties). And last and certainly least I stink, because "behind closed doors" (should I have had my office out on the street?) I was the engine behind it all.
Far out!
Posted by: Bill Otis | Jan 28, 2024 3:15:55 PM
Bill, this thread started because you proposed a moratorium on plea deals. I responded that this sounds like a grand idea as it would give us a sense of how our justice system functions without DOJ-concocted plea deal terms like appeal waivers. But now you are extolling the virtues of plea deals. Can you make up your mind, Bill, about what version of a DOJ-controlled federal criminal justice system you want?
As you know, it is federalist making the repeatedly claims that DOJ charging/bargaining has long been "corrupt" and that DOJ is "engaged in a massive, sleazy conspiracy." You are right that I do not make such claims (though I am still awaiting your account of whether your silence as federalist makes these claims should be thought to mean something).
I am making the more modest point that the appeal waiver story you tell serves as just one example of what I would call "DOJ chutzpah" in which DOJ advances its own view --- surely sometimes sound, but likely sometimes parochial and/or politicized --- of good policy without any transparency or much accountability.
The DOJ chutzpah approach to law- and policy-making is not what I consider ideal for law and policy development in our constitutional democracy. And that's among the reasons I think your proposed moratorium on plea deals would be an interesting way to explore if we could do better. In this setting and others, perhaps DOJ chutzpah and collective fealty to DOJ's (mostly secret) decision-making is the best we can do. Maybe you can comfort federalist and other DOJ critics with that notion. But I am not sure that kind of executive branch devotion was what the Framer of our Constitution envisioned for their decendants.
Posted by: Doug B | Jan 28, 2024 4:10:38 PM
Doug,
“surely sometimes sound, but likely sometimes parochial and/or politicized --- of good policy without any transparency or much accountability.”
In an adversarial system, isn’t it the job of the defense bar to provide that transparency and accountability?
You are a huge part of what is wrong in this system and so-called “reform.” You act as if the accused has no agency. If he says no to an appeal waiver, it won’t be forced upon him. Hell, any plea bargain at all is not forced.
And Bill has a checkmate. If one has the right to give up a “fair trial,” he surely has the right to give up an appeal for a lesser sentence.
Your argument is not with Bill nor the DOJ. It is with Congress. If Congress wants to eliminate appeals waivers and plea bargains, pass a bill and send it to POTUS. You should be addressing them, not Bill.
Posted by: TarlsQtr | Jan 28, 2024 7:42:25 PM
I would make one more point about “transparency and accountability.” One can read the transcript of every time it was argued in a district court. That’s plenty transparent and the court held the DOJ accountable when they approved the waivers.
Posted by: TarlsQtr | Jan 28, 2024 7:45:44 PM
Master Tarls: In a case called Armstrong, the Supreme Court held that defendants/defense attorneys generally could not get discovery into DOJ charging/barging decisions even when claiming racism infused these decisions. Consequently, the law, as it has been interpretted, largely precludes defense attorneys, case by case, from seeking greater transparency and accountability on DOJ charging/bargaining decisions. And DOJ produces very little explanation or public documents to account for its choices. (For example, while obvious federal marijuana violations have grown dramatically over the last decade, we've gotten no real explanation from DOJ under three different administrations for exactly why federal marijuana prosecutions have seemingly dropped 90% over this period. I have lots of speculations, but there is no formal transparency and little accountability for DOJ effectively nullifying this part of the CSA.)
The accused certainly has plenty of agency, Master Tarls, and he often will take any deal to reduce his sentence and make DOJ's work load lighter. I suspect, for the right deal, many defendants would also give up their rights to attend to church and to have kids, but that reality would not make it right for DOJ to start asking for waivers of those rights in plea deals.
Understand, the fair trial right and the right to appeal a sentence are quite conceptually distinct. The trial right provides a means for contesting the goverment's proof of guilt, and a defendant admitting guilt (freely and voluntarily) through a plea (with or without a deal) takes away the reason for the trial. The sentencing appeal right that Congress created in the Sentencing Reform Act of 1984 provides a means for BOTH defendants and prosecutors to correct a legally incorrect sentence. If the parties agree to a fixed sentence, then the appeal goes away, as Congress provided in 3742(c). But if the parties do not agree to the "right" sentence ahead of time in the plea deal, Congress wanted to allow both parties to be able to appeal significant sentencing errors that might arise after the plea deal. My point has never been that defendant's cannot give up this right --- after all defendants are never REQUIRED to appeal, they can always forgo their right to a sentrnce appeal --- my point is that DOJ should not be in the business of bribing defendants to give up this right in cases other than through the fixed-sentence pleas that Congress provided for in 3742(c).
Congress already passed a bill in 1984 to provide for sentence appeals in all cases except when there is fixed sentence term. Prez Reagan signed that bill, and I would just like to see it operate as intended. That's where we started this round, with Bill advocating a moratorium on plea deals, and me saying that one benefit I see from that proposal is to eliminate the DOJ-concocted appeal waivers in plea deals that operate to nullify the statutory text of 3742. Without a plea deal, the law that Congress enacted would operate as intended rather than be persistently circumvented by DOJ through the terms they put in plea deals.
I understand these are subtle points and you may be just fine with DOJ circumvention of the law Congress enacted because you like the policy results. But that does not change the fact that Bill invented, and DOJ still embraces, a clever means to functionally nullify the sentencing appeal law that Congress enacted. Indeed, I suspect most folks are fine with DOJ evading the law when they like the results, and the "great" cost-saving result for DOJ and criminals and courts may make appeal waiver "great" policy in the eyes of many.
Posted by: Doug B | Jan 28, 2024 9:10:19 PM
Doug,
But it is not “circumventing” or “evading” the law. The courts, with explicit rationales for the decisions, have transparently said as much several times.
It’s on you to change the law, via legislative activism. It seems like you lost and want to admire the problem (as you see it) rather than fix it.
Posted by: TarlsQtr | Jan 28, 2024 10:16:53 PM
Master Tarls: Congress enacted a law providing that sentencing outcomes could be appealed by both parties to review possible sentencing errors. See 18 USC 3742(a) & (b). Bill invented a plea deal term that thwarts appeals of sentencing outcomes for possible sentencing errors outside those cases in which Congress made certain fixed sentence deals unappealable. See 18 USC 3742(c). Courts have said that appeal waivers can (sometimes in some cases) be enforced, but these rulings do not change the essential fact that sentencing appeal waivers serve to circumvent/evade the law Congress enacted providing for sentencing outcomes to be appealable by both parties to review possible sentencing errors (except in fixed sentence cases).
I do not want to change to law that Congress passed, I just see virtue in allowing the appeals that Congress decided to authorize without having them thwarted by DOJ deal making. But policy-making by DOJ deal-making has mostly carried the day in court, and I doubt that will change. To again remind you how this all got started, I said I viewed one benefit of the plea deal moratorium Bill proposed would be that that we'd return to the sentencing appeal law as passed by Congress in the text of the US Code rather than having DOJ functionally rewrite its terms via plea deals. Still, I get that lots of folks may embrace having clever DOJ lawyers make up their version of the law when it suits their policy interests. Gosh knows, DOJ seems to get away with doing this in a lot of other contexts.
Posted by: Doug B | Jan 28, 2024 11:06:27 PM
Doug --
"Bill, this thread started because you proposed a moratorium on plea deals."
Yes, as a thought experiment. You and I both know it's not going to happen, in large part because the defense bar wouldn't tolerate it and would raise holy hell. Defense lawyers absolutely live off plea bargains -- a fact I'll happily swear to in court. Do you think I'd be committing perjury?
"But now you are extolling the virtues of plea deals."
Nope. I'm explaining their advantages. They also for sure have disadvantages. This used to called "balanced thinking," but in academia that's gone over the side of the boat in favor of whatever Woke comes up with. I went through the whole thing, good and bad, in my FedSoc debate with Clark Neily from Cato, https://www.youtube.com/watch?v=3i92-ojQ8to. I'd be happy to do one with you as well. Do they still have that giant portrait of you hanging outside the auditorium at Moritz?
"Can you make up your mind, Bill, about what version of a DOJ-controlled federal criminal justice system you want?"
Merrick will be happy to learn the he "controls" the system; he'll get a kick out of that. For my own part, I'd like a system that emphasizes substance over endless procedure, that understands that uncomfortable trade-offs are unavoidable, and that emphasizes first and foremost the suppression of crime and accountability for criminals. Guilty as charged on all that.
"I am making the more modest point that the appeal waiver story you tell serves as just one example of what I would call "DOJ chutzpah" in which DOJ advances its own view --- surely sometimes sound, but likely sometimes parochial and/or politicized --- of good policy without any transparency or much accountability."
Rule 11 hearings are models of transparency. We saw this most vividly in Hunter Biden's, where the vigilant judge, through smart questioning, sniffed out a half-hidden sweetheart deal and, not caring for the aroma, nixed it. And, as I was mentioning, the people running DOJ (political appointees, as I was at one point after being a career guy for years) have much more accountability than the defense bar ever wants or would tolerate.
"...perhaps DOJ chutzpah and collective fealty to DOJ's (mostly secret) decision-making is the best we can do. Maybe you can comfort federalist and other DOJ critics with that notion."
You've been trying for a while now to bring me into the exchanges you're having with federalist. I think I'm in enough debates for the moment, thanks. Federalist is a smart dude, knows lots of law, plays it straight, and has good instincts for where the Left is hiding the ball. He's a big asset to the comments section. He is, though, more toward the libertarian side than I usually tend to be. But one way or the other, your back-and-forth with him is, while educational and often entertaining, one I'm content to watch from the stands.
P.S. It really might be worth your while to take a look at the FedSoc debate. Clark was on his game and so was I, so a good time was had by all.
Posted by: Bill Otis | Jan 28, 2024 11:58:58 PM
Lots of reasonable points, Bill, though the scrutiny/disruption of the Hunter Biden plea deal was a real rarity AND resulted in large part from politicians/media bringing so much light (and heat) to the matter. And even there, we still know almost nothing about why the sweetheart deal was original proposed and whether/how politics influenced DOJ decision-making. (I believe DOJ has larely rebuffed effort by Congress to find out more.)
Without trying to draw you into a debate with federalist, I'd like to know if you think "corrupt" is the right suspicion for an outsider to have about DOJ original deal-making in Hunter's case. Whether it is or not, the fact that DOJ would try something that looks shady when it knows everyone is watching makes me worried about what DOJ may try when it knows few if any are watching.
I get that you are content not to defend DOJ from federalist's repeated accusations of "corruption." But I assume this also means you do not think anyone should assume your silence amounts to tacit agreement or support for his statements. That's the standard I am try to draw out --- do you think if proper to attribute great meaning to silence or should we generally assume silence is just silence? I am taking you to now to be accepting that, generally, silence is just ... silence.
P.S. I have watched and enjoyed your debate with Clark a few times. And I am always happy to share a stage with you, especially if you host at your Hawaii home this time!
Posted by: Doug B | Jan 29, 2024 12:45:10 AM
Doug --
Come on down! Bring the golf clubs and the whole family. Every day is the first day of summer. I can't believe I waited so long to get this place.
Posted by: Bill Otis | Jan 29, 2024 4:02:13 AM
