DoJ's written responses strangely side-step similar issues DOJ sidestepped in the Wecht trial.  Think, "Sinking tugboat attempting to salvage the oil-leaking Exxon Valdez."

The key similarity between the responses to the Siegelman and Wecht cases are the government's convoluted arguments as a smokscreen from the improper prosecutions.

The motion mirrors the finding there is a muckrakable relationship between the Siegelman and Wecht prosecutions; and the the White House applied lessons of Siegelman to the Wecht prosecution.

The government response to Siegelman mirrors similar patterns of convoluted statements re Wecht. This common pattern strengthens the link between (a) the White House's political objectives; (b) the White House role in (1) the DOJ, and the (2) Siegelman/Wecht prosecutions.

With this many common elements between the two prosecutions, the still-unanswered question remains: To what extent did the White House interfere with the investigations into this alleged misconduct, as the Texas Grand Jury alleged AG Gonzalez did with prison abuse in Texas.

The common elements between the Wecht and Siegelman prosecutions is the government's convoluted non-sense. This is a failed attempt to distract attention from the flawed prosecutions.

The response is an excellent case study in government parsing to create misleading impressions about the connection between the prosecution and partisan objectives. If the government's hands were clean, there would be no reason to ignore issues, parse the language, and side-step key questions of relevance and timelines.

The Wecht case is marked by alleged improper prosecutor statements through the media about jury deliberations.  Rather than confront the prosecutor misconduct issues in Siegelman, the government says the claims and evidence about the prosecutor are irrelevant. With a sweep of the hand, the government says the allegations (magically) go away. Which police union is the DOJ Staff taking lessons from?

Government Fails To Deny Political-Prosecutor-DOJ Communications Outside Trial

12 of 17 sidesteps the issue of recusal, and asks that we believe prosecutor non-trial involvement should be ignored. This fatally ignores what DOJ has implicitly admitted: There were non-trial interactions between a US Attorney and the prosecution team.

Going one step further, there's nothing stopping this "somewhat recused" prosecutor from talking to someone else outside the trial, ergo: The claim of political prosecutions. Rather than close this loop in their "argument," the government attempted to untie the knot after the sinking Exxon Valdez dragged the tugboats to the bottom of the Alaskan coastline.

Sidestepping

7 of 17: States there were "hearsay" issues on the emails, but avoids discussing the visits and communication between the "recused" US Attorney and the prosecution team in the context of the politically-driven prosecutions. Whether the emails are or are not hearsay does not address the alleged misconduct issue: That there were apparent issues which DOJ OPR should have investigated.

Putting aside what the government has or hasn't done on the Siegelman prosecution, the question is what DOJ OPR has or hasn't done; and whether any DOJ Staff, aware of this alleged misconduct, did or did not do what they were required in reporting this information to DOJ OPR.

Misconstruing Defendant Motions

7 of 17: at 3a. The  government suggests the  information does not prove political motivations. That's  missing the point.   Siegelman was not solely attempting -- by using the email -- that the prosecution was or was not political; but narrowly showing the prosecutor's email shows they were not recused, but involved with the prosecution.

The government response has not adequately addressed these non-trial communications raising questions of political prosecution..

The government then suggests that the information -- supposedly sent "after" the indictment -- is unrelated. This (again) misses the point: Some information of relevance to the prosecution's motivations could foreseeably surface after the original alleged improper official act.

Government Smokescreen

8 of 17: Whether the government did or did not respond to the email sent to the prosecutor in no way addresses what the "recused" prosecutor was alleged to have sent via email; or communicated outside trial.

Again, the "response," does not close the loop on what the political discussions were between the White House, GOP political arms, and the "recused" prosecutor. The failure to address these issues suggests the government's silence is indicative of other issues warranting expansive DOJ OPR review.

Government Fails To Bridge Cited Case To Dubious Point (Citation Problems)

937 F. 2d 288-citation does not include the relevant language, nor a summary; but asserts the case supports their interpretation of the cited case law. The cited case does not include the language "extra-material", raising reasonable questions about the claim the government made relying on this case; raising the prospect the intended extraction (of whatever language they might be cherry picking) is inapposite.

DOJ has attempted to span a bridge wider the the financial bridge available for the auto companies. At best, the cited case undermines the government's case, because the IRS in the cited case failed to do something:

On appeal, the IRS relies neither on the position that it took below or on the analysis of the district court, which it concedes was incorrect. It has, instead, created a new theory in support of its claim that it has a lien on the three parcels of land.

The above, even if relevant, is not information the government in the Siegelman "response" has adequately shown is relevant to it's argument, response, prosecution, or current salvage operation.

Government's Excuses Are Fleeting

To further add insult to the DOJ "response" is the language in the cited case which expressly opens the door to permit what Siegelman says should be done: To hear the issue.

"Given the fact that the IRS was never given the opportunity to make its argument below, a remand would normally be the appropriate remedy once we had determined that the court's initial decision was in error." [ 937 F.2d 288 ]

Specifically, the following government assertion not only lacks a cited legal foundation, but also contradicts the very information the government cited:

12 of 17: "To the extent Siegelman seeks to raise a new claim of alleged juror misconduct, he must first raise that claim (or attempt to) in the district court, not this court."

The government says "must" without citing any legal authority.

With Siegalman, the government's cited case discloses the possibility that the government believes the initial decision was in error. If that is the case, then the government's response has not adequately confronted the court's initial decision. Rather, the government sidestepped the court (possibly government-corrupted) decision, and focused on the defense representations of what the government has not adequately explained, discussed, or fully disclosed.

Government Attempts To Disconnect Wagon Midstream

Specifically, the following government assertion not only lacks a cited legal foundation, but also contradicts the very information the government cited:

12 of 17: "To the extent Siegelman seeks to raise a new claim of alleged juror misconduct, he must first raise that claim (or attempt to) in the district court, not this court."

The government says "must" without citing any legal authority.

Moreover, Chandler opens the door to the opposite, attached to the case the government cited: That claims do not always have to be raised at the district court; and that the Appeals court can review new information in some cases.  Here is the possible exception, which the government conveniently ignored with a broad brush:

"Normally, we will not consider claims not properly raised below. . . In this case, however, we choose to decide the fully-briefed issue." [ 937 F.2d 288 ]

Chandler 813 F.2d 773 is referenced not as an absolute, but something the appeals court exercises discretion (citation omitted). 

The government failed to reconcile this; nor form a reasonable basis for asserting that something 'must" be done; or that the alternative is impossible. It might be desirable or undesirable for the government; but the question of whether it is or is not impossible is not because of the government's argument, but a matter of judicial review.

Whether this discretion from the government-cited case does or does not apply to Siegelman is something the government glossed over. This is not a mess for Siegelman or TPM muckrakers to resolve, but one for the Attorney General and his stall to discuss with the Congress.

The government failed to attack Siegelman's claims on these narrow grounds; and has not adequately justified confidence that anything "must" or "must not" be done at the district court. It might or might not be, but not because of anything in the government's motion.

The government cited a case fatal to the government's position: It's opened the door for the defense to use this language related to Chandler to focus on the government's "response": that it too is linked with political objectives.

It's one thing to suggest a case proves the defendant is or isn't doing something; quite another for the government's citation to further undermine the merits of that legal theory. We saw the same with the FISA-Geneva issues.

We have no adequate information from the government response what aspects of the cited case they are relying: There's no textual analysis within the government motion.

We can only guess what they might be referring to. Despite this flaw with the government "response," and assuming that this is the possible reason the government cited this case, the referenced material related to the above further muddies the waters.

Indeed, rather than focus on the briefs and the earlier court decision related to the briefs, the government is asserting -- without a credible argument -- that the evidence in the brief is is isn't related. That's not an argument, but an assertion: The same problem with the entire prosecution -- assertions; not (a) credible arguments; or (b) independent-non partisan, reasonable conclusions.

The government is doing more in this response what Siegelman (rightfully) alleged was done with the original prosecution.  Think, "Multiple Russian dolls connected with the sinking tugboat, caked in oil, adjacent to the oil-leaking Exxon Valdex."

Incoherently Projecting Government Flaws Onto Defense

Another key to the government's flawed "response," not just prosecution, is the space focused on the sentencing. In general terms, once the government's excuses related to the original prosecution fall apart, the issues of sentencing become moot.

But the government did the opposite. It first spent cursory time making a fleeting attempt to challenge Siegelman's core legal objections; but then would have us believe (despite that initial failed attack) that the sentence should can be better defended. That defies reason.

The government's position is a smokescreen and projecting onto Siegelman the inherent flaws of the government's position. For example, this comment:

11 of 17 (line 9): Siegelman's decision to attack the prosecutors rather than to critizque the district court's actual ruling betrays the weakness of his sentencing claim.

could be rewritten to correctly reflect the above government flaws:

Rewritten: "Siegelman's The government's decision to attack the attack on the prosecutors rather than to critique the district court's actual ruling betrays the weakness of his sentencing claim the government's position."

Concluding Comments

The government's response is a blatant smokescreen.

Justice isn't just about proving the defense's defense is invalid, but for the government to prove its case; and for there to be an appearance of justice, without political tampering. The government "response" to the Sigelman motion does not adequately serve the interests of justice, but raises reasonable questions in the minds of the public that the political deception continues.

Further Analysis

TPM readers are encouraged to revisit the original claims Siegelman made; and compare those with how the government has selectively parsed their arguments in this response. In a classic dodge, the government is arguing the wrong point. They did the same in the Wecht trial on questions about the post-trial jury tampering.