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U.S. Attorney Declines Request for Contempt Prosecution:

Via Law.com comes an interesting wire story about a U.S. Attorney declining a federal judge's request to prosecute a lawyer for criminal contempt.

The U.S. Attorney in Birmingham, Ala., on Wednesday declined a federal judge's request to prosecute prominent Mississippi attorney Richard F. Scruggs and his law firm for criminal contempt in a Hurricane Katrina insurance dispute.

U.S. Attorney Alice Martin said in the letter to U.S. District Judge William M. Acker Jr. that "following a serious and thorough review of the facts surrounding this indirect criminal contempt, I respectfully decline to prosecute Mr. Scruggs or his firm."

In his June 15 request, Acker said he would appoint another attorney to handle the prosecution if Martin declined the court's request.

Dave N (mail):
Does a federal judge have the inherent authority to appoint a special prosecutor? I am not being snarky, I am actually curious.
7.27.2007 11:31am
uh clem (mail):
Jeez, you really expect a young up and coming attorney with a long career ahead of her to jeopardize it by prosecuting Trent Lott's brother-in-law?

That's pretty unreasonable, if you ask me.
7.27.2007 11:34am
ChrisIowa (mail):
and where would the funding come from?
7.27.2007 11:35am
Crust (mail):
Declining requests for contempt prosecutions, huh. Where else have I heard about that lately?
7.27.2007 11:40am
Lloyd George:
Obviously, Judge Acker is one of those activist judges. Impeach him!
7.27.2007 11:51am
paul lukasiak (mail):
This looks like a pretty open-and-shut case of contempt to me. Trent Lott's brother-in-law was ordered to turn over documents to the defendants in the lawsuit. He didn't do so.... instead sending them to the state AG's office (I can't figure out why that was done...)

Under ordinary circumstances, I would probably give Martin the benefit of the doubt, and assume that she decided that the infraction was minor, that the defense did get the documents eventually, and that prosecuting Scruggs would be a waste of Dept. Resources even though he was obviously guilty.

But thanks to the US Attorney's Scandal, and the presumtion that Martin's six year tenure as a USA under Bush puts her into the "loyal Bushie" category, one must suspect that something else is going on here...
7.27.2007 12:17pm
NKott (mail):
According to the U.S. Attorney's manual a U.S. Attorney may decline to proceed with a criminal contempt prosecution. Though their consideration is generally supposed to be a formality and perfunctory.

link

The judge does have the power to appoint a prosecutor. This is done most commonly where their is a conflict of interest between the U.S.Attorney and the accused. The only limit is that a party in interest may not serve as the prosecutor. If A is suing B civilly and the Judge accuses A of criminal contempt the judge may appoint a special prosecutor but the judge may not appoint B.

NK
7.27.2007 12:19pm
neurodoc:
How about those $150K/year "consulting" contracts that Scruggs gave former claims investigators Cori and Kerri Rigsby? (And what about sister Eleanor?) Anyone detect a slight odor, like sewer gas, to that?
7.27.2007 12:19pm
jt:
Apparently this USA is known to be quite partisan, and has is held in fairly low esteem by the career professionals in her office; could this be a set-up to generate some recent precedent about USA's declining to prosecute contempt cases?
7.27.2007 12:21pm
Henri Le Compte (mail):
Paul Lukasiak:
You admit that under "ordinary circumstances," prosecuting this case would be seen as a "waste of Dept resources," since the offense was minor, and the effect was minimal-- the records got to the right place.

But then you (and everyone else on this thread) turn around and insist that the mitigating circumstances you just cited have nothing to do with the failure to prosecute. Why? Didn't you just establish that prosecuting under these circumstances would be pointless, and a waste of everyone's time and money? That if Scruggs were not Trent Lott's in-law, the idea of prosecuting would have in all liklihood been dismissed? So... doesn't that lead to the opposite conclusion that most here have come to? That prosecuting Mr. Scruggs is actually being pursued because of who he is, and not what he did?

Also, it sounds like Mr. Scruggs has plenty of resources and skill to force the state into a very lengthy and costly investigation/prosecution. And for what? To adjudicate a minor "process crime" that caused no significant consequences to anybody? And, taken all together, you see this case as an argument to condemn Martin and Scruggs, but not Judge Acker? Because...? Because Mr. Scruggs shouldn't defend himself? Because Ms. Martin should indulge in pointless prosecutions just to avoid the appearance of impropriety? Is that how we want US Attorneys to behave? To filter everything through the lens of politics? But I thought that US Attorneys were supposed to be kept squeaky-clean from all politics, right?

Strange, and very confusing.
7.27.2007 1:45pm
Redman:
There appears to be a separation of powers issue here somewhere. Can a federal judge appoint special prosecutor after special prosecutor until he finds someone who will discharge the Executive Branch duty that he desires?
7.27.2007 1:52pm
Ted Frank (www):
Mr. Le Compte suggests an interesting rule whereby it's alright for one to disregard court orders (and in this case so long as one has "plenty of resources and skill to force the state into a very lengthy and costly investigation/prosecution." I somehow doubt, however, that this is the optimal rule.

I for one disagree that this is a minor process crime: as Judge Acker noted, Scruggs used Jim Hood to use the documents, which State Farm was not allowed to see, to bully State Farm into giving Scruggs tens of millions of dollars. As State Farm is a mutual insurance company owned by its insureds, this is a direct wealth transfer from innocent customers of State Farm to Dickie Scruggs's pockets, aided and abetted by a violation of a court order.
7.27.2007 1:56pm
uh_clem (mail):
You admit that under "ordinary circumstances," prosecuting this case would be seen as a "waste of Dept resources," since the offense was minor, and the effect was minimal-- the records got to the right place.


No, that's not what he said at all. Go read it again. I'll wait.

Ok. Did you notice the part where he said:
Under ordinary circumstances, I would probably give Martin the benefit of the doubt, and assume that she decided that the infraction was minor...
(emphasis mine)

Way to twist words, Henri.

Paul did not offer any decision on the merits of the case, just that under normal circumstances he'd accept the USA's decision. But these are not normal circumstances, and only a fool would take one of Gonzales's goons at face value.

Sad that the rep of the DOJ has sunk so low, but there it is....
7.27.2007 2:05pm
Bruce Hayden (mail) (www):
The reason that I don't really see a separation of powers issue is that judges are given a fair amount of power to maintain the dignity of their courts. That is what contempt of court is all about - litigants blowing off the judges, etc.

I do think that there is a difference between this and what is going on right now between Congress and the Administration. There, we have a politically motivated attempt to grill the President's closest aides in a situation where no real crime has been alleged and he has determined that Executive Privilege applies. Arguably, a DoJ atty. couldn't prosecute the aides for contempt of Congress without both being insubordinate and violating DoJ guidelines.

In sort, that is a political question. Congress' real remedy is impeachment. The judge here doesn't have that option. He might be able to order the AUSA to prosecute, but that won't fly, as it would be, in essence, ordering him to violate DoJ regulations. So, his alternative is the one he is utilizing, hiring his own prosecutor.
7.27.2007 2:09pm
Andy Freeman (mail):
> In sort, that is a political question. Congress' real remedy is impeachment.

Congress can refuse to pay the US Attorney in question.
7.27.2007 2:14pm
jt:

There, we have a politically motivated attempt to grill the President's closest aides in a situation where no real crime has been alleged and he has determined that Executive Privilege applies.


Stop spouting Republican talking points. The whole point of this is that where the witnesses refuse to testify (or to even show up and make their claims of privilege), the investigators (Congress) are unable to determine whether United States Attorneys have been prosecuting (or not prosecuting) people for political reasons. What is political about that? Is it now political for Congress to engage in its oversight function where there are credible (even if you don't believe them) allegations of political manipulation of U.S. prosecutors? And how, exactly, is it political for members of Congress to expect witnesses to at least SHOW UP to make their executive privilege claims?
7.27.2007 2:34pm
Bob from Ohio (mail):

The whole point of this is that where the witnesses refuse to testify (or to even show up and make their claims of privilege), the investigators (Congress) are unable to determine whether United States Attorneys have been prosecuting (or not prosecuting) people for political reasons. What is political about that? Is it now political for Congress to engage in its oversight function where there are credible (even if you don't believe them) allegations of political manipulation of U.S. prosecutors? And how, exactly, is it political for members of Congress to expect witnesses to at least SHOW UP to make their executive privilege claims?



Stop spouting Democratic talking points.
7.27.2007 3:13pm
byomtov (mail):
a politically motivated attempt to grill the President's closest aides in a situation where no real crime has been alleged and he has determined that Executive Privilege applies.

Are you arguing that Congress' oversight function is limited to investigating possible criminal activity? Are you also arguing that the President has an absolute right to say the magic words, "executive privilege" and stop any Congressional investigation in its tracks?

That doesn't sound right.
7.27.2007 3:49pm
David Krinsky (mail):
My understanding that in many districts, there is a standing policy of having the U.S. Attorney's office decline to prosecute criminal contempt and having judges appoint outside counsel. The concern, I believe, is that the U.S. Attorney shouldn't be working, in some senses, to represent the court it spends all its time litigating before.

I don't know that this is political (or even unusual) at all.
7.27.2007 3:56pm
Anderson (mail) (www):
Given that this U.S. attorney is thickly implicated in the prosecution of Siegelman, I don't think "pursuing thin cases at great expense" is something she avoids on principle.

We defense-bar lawyers in Mississippi took great interest in the Scruggs referral ...
7.27.2007 9:16pm