READER COMMENTS ON
"Did DoJ 'Drop' Case against GOP NH Election Phone-Jammer Tobin as is Being Reported?"
(8 Responses so far...)
COMMENT #1 [Permalink]
said on 5/27/2009 @ 6:27 pm PT...
Well, you see, Brad, there is more than one appeal in the First Circuit entitled US v. James Tobin.
In appeal no 09-1359, the government dismissed the appeal without filing any briefs on May 18,2009. That sounds like the Obama DOJ dropping the appeal, and just in time for those news stories. So it's MSM 1, Brad 0. Technically, that is. Heh-heh. Of course, we don't know what that appeal was about. There might have been nothing to it.
Appeal no 08-1238 is the one with the opinion in it. The government's briefs were filed by the Bush DOJ and the opinion came out on January 7, 2009.
The last sentence of the appellate court's opinion reads:
"If the government claimed that it had evidence that Tobin had a purpose to harass, it would likely be entitled to a trial on the issue--subject always to the risk of directed verdict after it closed if the evidence were insufficient. But the government has conceded in its brief--and plausibly so--"that harassment was not [Tobin's] subjective purpose," and we accept its concession that assuming the statute requires proof of purpose (and we so hold), "Tobin prevails, and this case ends."
Hmmmmmmm..... now does that sound like the DOJ throwing in the towel --- saying they don't want to go to the trouble of showing that Tobin jammed the phones because his purpose was to harass the Democrats, and that's just too hard to prove, so if they have to prove that, the appeal is over??"
Unfortunately, unlike the district courts, the First Circuit Court of Appeals doesn't have any of the briefs on line --- the Ninth Circuit just started its efiling system January 2009, so we can't tell how feeble a job the Bush DOJ did.
As far as the Siegelman case, this isn't a case where the Bush DOJ screwed it up so badly that the Obama DOJ had to drop it, because the Court of Appeal affirmed Siegelman. How does the Obama DOJ drop the case after they've already won it on appeal without looking like it is some big corrupt political favor for a fellow Democrat?
COMMENT #2 [Permalink]
said on 5/28/2009 @ 3:33 am PT...
I got something totally off topic, but extremely important.
Ever since I started hangin out on Bradblog, I have become more and more concerned about what our government is doing at local, state, and federal levels (and the other rotten agencies)
I first noticed this problem back when I had to deal with the Secretary of State in California.
The problem is PDF files!
They are presenting hell of problems for the public.
I will name some of these problems that I have had to deal with.
PDF wrapped Graphic files, basically it makes the document completely freaking unsearchable. No cut and paste either. Gee are we trying to hide something?
Wait bad example, the REPORT IS MISSING!!
There we go, totally unsearchable garbage. Not to mention 2008 is missing, and all financial report documents were published on the same date/time. (I am working on them now about this.)
Ex #3: http://www.humanevents.com/article.php?id=30700
You DO remember the stimulus bill? Promised not delivered, and unsearchable.
Five hundred parts of one report in a up to 31 different languages, filenames, inconsistent URL locations, and sometimes different domains. Not even a search engine can re-assemble it.
Inconsistent numbering, lettering, or naming of files.
ex: (I don't have a url but I know you have to have run into this nonsense)
No date, No description, No pattern, no rhyme, no reason.
Size. Gee let's make the document 2000+ pages and jam all the crap in at the end. Maybe wrap it like in problem #1 above to add more problems, or not even link it up. Go ahead print it bay-bee!
Unlinked documents. Sure we published it, good luck finding it. Search engine failure, keyword failure, link failure, 404 error, access denied, root index fail.
Security. PDF is a proprietary format. For awhile there, there was an exploit with no fix.
Is the document I am reading really the document?
Not sure what to do about this problem, but it needs to be nipped in the bud.
I am not the only one
(thanks for your attention)
Back to the phone bank jammer and department of just us. I bet all the DOCS are in PDF!! o;)
COMMENT #3 [Permalink]
said on 5/28/2009 @ 5:56 am PT...
This smells like yet another example of the Bush-era DoJ "losing" (read: botching) a case against a putative ally.
COMMENT #4 [Permalink]
said on 5/28/2009 @ 7:37 pm PT...
This reminds me of the Spanish Inquisition of the Bush 6 for torture. Our fascist corporate media ran stories that the prosecutors "dropped it", too. Then, stories came out that they didn't drop it at all. Remember that? Now, they may not have prosecuted yet, I don't know what's going on there now, BUT...when our media said they "dropped it", they didn't! I detect a pattern here. Report "wishful thinking"???
COMMENT #5 [Permalink]
said on 5/28/2009 @ 10:45 pm PT...
In its unfolding in the courts, the Tobin phone jamming case is quite complicated. A federal appeals panel vacated Tobin's 2005 conviction using a strained and narrow reading of the federal telephone harassment law, remanding the case for further review. The appeals court majority split hairs over what constitutes harassment and whether hang-up calls of the kind made by the New Hampshire GOP to five different phone numbers associated with the NH Democrats in the 2002 election, can be construed the same as completed calls in which the caller verbally harasses the person answering the phone, a violation of federal law. The appeals court found that that only the latter case was explicitly outlawed - that an incessantly ringing phone where the caller hangs up on the recipient does not meet the definition of "harassment," and that if Congress wanted to outlaw such things it could. You wonder what world these people live in.
On remand, the district judge, following the narrow reading of the federal telephone harassment law set out by the appeals court, reversed Tobin's conviction.
DOJ appealed this reversal to the same First Circuit and lost in January of this year. Meanwhile, federal prosecutors empaneled a grand jury in Maine where Tobin lives which indicted him in October 2008 for lying to the FBI five years earlier regarding the GOP's phone jamming scheme (which courts write about in these opinions in ways that suggest there is no doubt in anyone's mind that Tobin was involved). That case was dismissed, with the judge ruling for Tobin who argued the government was engaging in a "vindictive prosecution." The judge was persuaded by the fact that the government had reason to believe Tobin lied to an FBI agent years before but never charged him with making false statements in any of its earlier indictments.
It's not hard to see some incompetence on the part of federal prosecutors here.
The government filed a notice of appeal on March 17, 2009, and then voluntarily withdrew the appeal sometime after that. The appeals court then dismissed the case on May 18, 2009.
I think it is fair to say that the Obama DOJ dropped the recent case filed against Tobin for allegedly lying to an FBI agent. The question is why - what happened between March 17th, 2009, when federal prosecutors filed a notice of appeal, and May 18th, 2009 when the U.S. Court of Appeals for the First Circuit dismissed the case, writing, "Upon consideration of the government's unopposed motion, it is hereby ordered that this appeal be voluntarily dismissed pursuant to Fed. R. App. P. 42(b)."
It could be that a review of the case by the incoming administration didn't happen until after federal prosecutors filed their notice of appeal in March. A review probably strongly suggested the government would lose on appeal (that's my reading of the district court's opinion).
COMMENT #6 [Permalink]
said on 5/29/2009 @ 12:47 pm PT...
Two points seem to come to mind..
One, it's much more politically supportive to say "the opposition dropped charges". It makes it seem like it was political in the first place (which it [the charges] was not).
The second point is, there doesn't seem to be any solid laws by which people are blocked from interfering with elections in America. Sure, we have some laws that cover some other things, but clearly we have the ability to malign the "other party" with impunity since word games are the order of the day, not the spirit of the law, or the idea that someone did something "bad" but we haven't put it into the perfect words yet; hence no direct law violated.
On a partially related note, I got a ticket today for not wearing my seat belt.. So, we don't mind making sure we have oppressive, pro-corporate laws on the books, but we can't seem to get it right when it comes to going after those engaged in malfeasance with regard to our elections.
COMMENT #7 [Permalink]
said on 5/29/2009 @ 8:56 pm PT...
Thanks much for that, Lori! Have added an update to the article pointing to your cogent explanation of the entire fine mess. Much appreciated!
COMMENT #8 [Permalink]
said on 5/29/2009 @ 9:00 pm PT...
Paul McCarthy - Thanks also for your insight here. As to your question on the Siegelman matter, as to "How does the Obama DOJ drop the case after they've already won it on appeal without looking like it is some big corrupt political favor for a fellow Democrat?" Well, if it was a political prosecution, it was inappropriate (and illegal). Period.
Since the same Rove-connected Bush US attorneys was on the original case, and on the appeal, a review of their improprieties in the case, should lead them to dismissing/vacating the prosecution. Not unlike what occurred in the Sen. Ted Stevens case (even though in that case, unlike with Siegelman, the appeal had yet to go through --- still, it wasn't the Obama/Holder DoJ that fought the appeal in teh Siegelman case, that was underway long before Obama came to office.)