What Upsets the Obamedia About 'Fast and Furious' Is ... the Leaking!

Suddenly, the Obamedia is incensed by, yes, leaking.

This is the same legacy press that was delighted by Justice Department and White House leaks when it came to driving Bush Attorney General Alberto Gonzales out of town; the same media currently ignoring a tsunami of leaks of classified national defense information by the Obama White House -- leaks designed solely to make the president look good for campaign purposes. Yet, in order to change the subject from the Justice Department’s oversight of the lamebrain Fast and Furious investigation -- in which arsenals of weapons were allowed to be transferred to violent Mexican drug cartels, and as a result of which a U.S. Border Patrol agent has been murdered -- the Obama campaign's media wing is now focused on whether Republican Congressman Darrell Issa has a “mole” inside DOJ who is giving him information that proves Attorney General Eric Holder & Co. have been misleading the House Judiciary Committee and the public.

The leaked information involves wiretap affidavits. Fast and Furious used electronic surveillance as an investigative tactic. As I’ve detailed elsewhere, this is bound to leave an inconvenient paper trail for DOJ. Federal wiretap law requires the attorney general or his designee (a high-ranking DOJ official) to approve wiretap applications before they can be submitted to a judge. One of the things the law requires the application to contain (and thus requires the Justice Department to approve) is an assessment of what investigative techniques other than wiretapping have been (or could be) used to obtain evidence. Consequently, the wiretap applications -- which Holder refuses to release, despite Committee demands and subpoenas -- must have described the fateful “gunwalking” tactic. Therefore, their public release would almost certainly show that top Justice Department officials knew about it -- if not, then those officials were indefensibly reckless in approving the wiretap applications, which would also be scandalous.

"What did they know and when did they know it?" has been the media's rally cry for 40 years. Leaking, moreover, is the press’s stock in trade. Never does the press get exercised over it, and always does the press defend the honor of “whistleblowers” ... except when the leaking hurts Democrats or helps Republicans, in which case it becomes a hanging offense -- think Valerie Plame, think Linda Tripp, etc. So, in darkly reporting that Rep. Issa has a DOJ “mole” helping him combat Holder’s stonewalling, The Hill dutifully found two “former prosecutors” who told the paper that, oh yes, the leaks of sealed wiretap information from DOJ to Congress could endanger hard won convictions by giving defense lawyers “justif[ication]” for “seeking a mistrial.”

Anyone want to bet me that these two former federal prosecutors that The Hill just happens to have on speed-dial are now themselves defense lawyers and active Democrats? In any event, the claim that the GOP investigation of Fast and Furious is now raising the specter of violent criminals getting their convictions reversed is about as frivolous as it gets.

Let’s begin at a very high level of generality. Defense lawyers will use anything as a pretext (or what the Hill portrays as a justification) for seeking a mistrial. Once your client has been convicted, what have you got to lose? The mistrial motion does not need to have any real merit to it in order for it to be filed. It is cost-free -- except what you may have to pay a defense lawyer to prepare it (and most such “habeas corpus” motions are filed by defendants without the assistance of counsel -- i.e., "acting pro se,” as we say in the biz). From the defendant’s perspective, the worst thing that happens (and it always happens) is the judge denies the motion. Nothing changes.

But now, let’s get to a more specific analysis. There is a mistrial motion available in the law -- one the Supreme Court made up out of whole cloth -- for what is known as "outrageous government misconduct." But it is limited to outrageous conduct in the evidence-gathering process by the investigative/prosecutorial authorities. Best example is probably the case that started it all: Rochin v. California. Los Angeles deputy sheriffs, who did not have a warrant, broke into the defendant's home and saw him grab and swallow the illegal narcotics they suspected he had. They proceeded to drag him down to the hospital and have his stomach pumped so they could recover the drugs -- again, without a warrant.

Nowadays, the case would just be decided on the exclusionary rule: the warrantless arrest and search would be deemed illegal, and the drugs suppressed as "fruit of the poisonous tree" -- a sort of due process gloss the courts added to the Fourth Amendment guarantee against unreasonable searches. But back when Rochin was decided in 1952, the Supreme Court had not yet applied the exclusionary rule against the states. (That happened in the 1961 Mapp v. Ohio case.) So if Felix Frankfurter and his fellow justices wanted to invalidate the very unattractive Rochin case, they had to come up with some other reason. So, as often happens, they manufactured one: a vague new due process right to seek to have an indictment dismissed if the government conduct is so outrageous as to "shock the conscience” of the court.

As night follows day when courts make this stuff up, they spend the rest of their lives having to cut back on it because every clever defense lawyer argues that, in his client's particular case, some minor police or prosecutor error is so monumental as to be “shocking” and thus to demand that the indictment be dismissed. The motion never succeeds because the dimension of "shock" we're talking about never happens -- and because, now that the exclusionary rule is fully applicable against the states, if you find yourself without an illegal search argument, and you're reduced to claiming "outrageous government misconduct," you're basically out of luck (I want to say “SOL,” but this blog called is Ordered Liberty for a reason!).

The whole thing is pretty silly, but that doesn't stop defense lawyers from feeling, as The Hill puts it, "justified in seeking a mistrial" -- even though they know the mistrial motion doesn't have a prayer.

Yes, if someone at DOJ leaks to Congress wiretap information that did not get used in a defendant's case, that may be a bad thing to do. If they catch the leaker, he can be fired, disciplined, or even prosecuted if the leak is serious enough. But the leak has utterly nothing to do with the evidence-gathering process by which the wiretap defendants were investigated, prosecuted and convicted. It has nothing to do with the way the case was presented at the trial (assuming there was a trial). So there is obviously no colorable motion that the defendant has been prejudiced by "outrageous government misconduct."

In fact, even if the information we’re talking about had gotten leaked during the defendant’s trial -- i.e., during the time when it actually could have unfairly prejudiced the jury against the defendant -- it is still highly unlikely that there would have been a mistrial. These things happen a lot. A trial is a very human process, and there are no perfect ones. The way the system deals with inevitable error is to have the trial judge give the jury a “limiting instruction” not to consider information to which they should not have been exposed. The law assumes that juries follow these instructions, and in my experience the jurors are generally conscientious in doing what judges tell them to do. In any event, it is exceedingly rare for unfairly prejudicial information to result in a mistrial.

Of course, if the leak does not happen until after the trial, there is no chance that it could have affected the jury. Thus it is frivolous to suggest that leaks of wiretap information to Congress by a DOJ mole could result in dangerous criminals having their convictions reversed.

The interesting question is: Will Holder, in order to change the subject from the embarrassing Fast and Furious fiasco, launch an investigation of his own department for whistleblower leaks to Congress while turning a blind eye to the far more damaging Obama administration leaks of national defense information for the New York Times’ recent contribution to the president’s re-election campaign?