Chilling Effects: “In case you were thinking of leaking to the press, think again”

In another stroke of irony, an article relating the events resulting in the dismissal of charges in the Ruehle matter was circulated by email to the attorneys in the United States Attorney’s Office on December 15, 2009, by First AUSA Mann with the notation: “In case you were thinking of leaking to the press, think again . . . A case in California was dismissed for prosecutorial misconduct after the AUSA admitted leaking among other problems.” ~ US District Court Judge Kurt Engelhardt

Well folks, being in Team Unwashed Masses has its benefits as Jan Mann and Sal Perricone evidently preferred Legitimate Media™ types for their leaking, not that there is anything wrong with that as rumors are swirling and the Wino, in a drunken stupor mentioned “the chilling effects” Kurt Engelhardt’s order is having on the discussion, even in the depths of the gutters at Lafayette Square. In fact, observing the social chatter in the local media congroovancy bears out that fact, due to the new 500 pound gorilla in the room.  Judge Engelhardt explains:

With regard to the Rule 6(e) issue presented in this matter, the Court has reviewed the Fifth Circuit’s guidance set forth in In Re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir. 1980). In Lance, the Fifth Circuit discussed the analysis required when a district court considers an allegation of a violation of Rule 6(e) based upon news media reports. First, there must be a clear indication that the media reports disclose information about “matters occurring before the grand jury.” Secondly, the article or articles must indicate the source of the information revealed to be one of those prescribed by Rule 6(e), which prohibits disclosure by attorneys for the government. Third, the Court must assume that all statements in such news report are correct. Fourth, the Court considers the nature of the relief requested and the extent to which it interferes with the grand jury process. Fifth, the Court must weigh any evidence presented by the government to rebut the assumed truthfulness of reports which otherwise make a prima facie case of misconduct.

In this case, the Court finds that the first factor is satisfied, and the second factor has been met pursuant to Lance, which referred to the phrase “sources close to the investigation” to find an inference that the source of the information disclosed is the Justice Department, or the attorneys conducting the grand jury investigation, since they are the persons most likely to know when the presentation of evidence will be completed, and when a proposed indictment might be voted upon by the grand jurors. As to the third factor, the undersigned assumes that all statements in the news reports cited by defendants are correct. The fourth factor, which requires the Court to consider the nature of the relief requested and the extent to which it interferes with the grand jury process, is practically moot. In this case, the grand jury has completed its work and returned an indictment against these defendants (and those that entered guilty pleas to lesser charges), such that any relief granted herein would not interfere with the grand jury process at all. As to the fifth factor, the Court has not been provided with any affidavits or acceptable rebuttal evidence other than the tainted June 27, 2012 Report of Inquiry from former First AUSA Mann. The Report, however, does not contain sworn denials set forth in an affidavit, or any other testimonial refutations to contradict the prima facie case of misconduct. See Lance, 610 F.2d at 219-220.

Under these circumstances, the Court cannot rule on the defendants’ motion for new trial until the DOJ rectifies the present inadequacies. Prosecutorial misconduct in this case is a very near and present thing; however, the possibility of it ripening into grounds for relief remain somewhat distant. At this juncture, the Court is unwilling to find that Defendants have met their burden; but it is also unwilling to find that Defendants will not be able to meet that burden. In the meantime, the Court intends to follow the advice of Washington himself: “There is but one straight course, and that is to seek truth and pursue it steadily.”

And this is why I happily get all my leaks from the gutter because we’re truth seekers here at Slabbed too and if we were seeking the truth in this matter, a good way to get to the bottom of things would be to ask the media where they got their information.  Even better, if you are an inquisitive type that sports a badge…..Judge Engelhardt explains:

Considering the foregoing, IT IS ORDERED that:

1. The Department of Justice shall recommence the investigation sought by the Court at the June 13, 2012 hearing, and as originally submitted by former First AUSA Mann on June 27, 2012. The new report shall be in compliance with the guidance set forth in In Re: Grand Jury Investigation (Lance), 620 F.2d at 219-220 (5th Cir. 1980), and shall be submitted to chambers within thirty (30) days of the date of this Order. In accomplishing this task, the government shall inquire of the recipients of information regarding the plea of cooperating defendant Michael Lohman the identity(ies) of the source(s) of such information; and should the government elect not to so question those recipients, it shall state in writing, on the record, the reason for its failure or unwillingness to do so.

This adds an interesting twist because if the leakers in officialdom do not come clean or the DoJ refuses to let Judge Engelhardt guide them then it is very possible the Danziger Bridge defendants will walk.  The practical effect is the defendants that fell on their swords, came clean and copped a plea will do their hard time while those the government tells us had the most culpability will walk.  If this sounds like the same disaster that has been visited upon Mark Titus it is because it is indeed the same disaster, just in a different part of the overall process.

Conversely if the DoJ were to convene a grand jury and issue subpoenas to media folks like the T-P’s Gordon Russell, Lance makes clear the media has no shield in this circumstance thus it is either disclose or face the consequences.  The specter of that has caught everyone’s attention thus rumor mill and I’d be lying if I didn’t say Slabbed has been mentioned in those rumors since my gabby cousin Slabb O’Leak specializes in grand jury material.

Is it time for everyone in the Slabbed Nation to panic??? No way. In fact, I had several people notice I put the pedal to the metal here at Slabbed after this news broke and I did so because I sense journalistic opportunity.  And I am not worried about getting subpoenaed because the transparency blog has nothing to hide. ‘Tis a wonderful place to be, hanging with Gutter Punks and the Unwashed Masses.

That said this is one “fine mess” Sal and Jan created playing on the internet and I do not expect this post will have the magical effect of getting the drunks talking again, at least not in the short-term, but by putting the proverbial peddle to the metal maybe I can demonstrate how the discussion easily continues unabated and trust me when I say we have lots to talk about.

I would highly urge everyone to read Judge Engelhardt’s entire 50 page order and reasons to see first hand what a mess liars that continue to lie can make.  BTW, before everyone clammed up the Wino did tell me she thinks Fred Heebe has another hole card to play.  All I can say is get the pop corn ready ’cause if that’s true, then we have more episodes of Beavis and Butthead coming.