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Thursday, December 07, 2006

GOP Frivolous Defenses

Mark Corallo and Barbara Comstock have an easy checklist to follow. Ref

Here's a checklist to monitor the likely defenses the GOP could use to defend against alleged war crimes, constitutional violations, oath of office violations, or other illegal conduct related to
- war crimes
- illegal warfare
- rendition
- FISA-NSA abuses
- Illegal interrogations
- Malfeasance
- Refusal to assert oath of office
- Unconstitutional conduct

[ May be updated without notice]

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Choose Your Frivolous Legal Strategy

Here's a handy checklist you can use to monitor whether the GOP defense counsel is using a credible defense; or something that is as absurd as the original reasons given to violate the law.

___ How close are these approaches to what Corallo-Comstock use

___ Were you surprised

___ What did they leave out

___ Did they impress you

___ Would you hire them

___ Would you, next time, accept your punishment before you hired them

___ Would you reconsider hiring someone who was in public relations, and not focused on litigation

___ Would you pay more for a more colorful media strategy, even if it merely delayed the inevitable

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Alleged Legal Malpractice

___ Have clients adequately considered the possibility that defense counsel, because of their alleged involvement-knowledge of illegal activity, may be implicated in future alleged conspiracies and not available for your defense?

___ Any evidence the attorneys are violating the attorney standards of conduct?

___ Are their public releases raising questions of 4.1? Ref

___ Have the alleged violations of professional conduct -- which they may have committed while working for DoJ permitting illegal activity, and not reporting it -- been fully factored into whether they can objectively provide legal advice, and not become a defendant? Ref

___ Can counsel credibly argue they were uniformed as DoJ public affairs personnel; but now have sufficient knowledge of the facts to adequately defend counsel?

___ How can the same counsel be both aware and unaware of the same legal issues?

___ Did counsel, while they were assigned to the DOJ, properly report alleged misconduct to DoJ OPR that they knew, or should have known violated the Attorney Standards of Conduct?

___ Did counsel, while working for DOJ, properly remove themselves from alleged illegal activity that they knew, or should have known, violated the US Constitution, Geneva Conventions, laws of war, or public statute?

__ What is counsel's position on the Title 28 and Title 50 reports which the Attorney General and President allegedly did not properly provide to Congress in writing as required by statute on matters related to illegal activity, rendition, prisoner abuse, and NSA-FISA violations? Statutes

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Opening: Assert the Opposite

___ Deny illegality

___ Assert lawfulness

___ Deny the misconduct

___ Raise an irrelevant question having no bearing on the law, fact pattern, or elements required for conviction

* * *


___ Waive a right, and delay a legal decision

___ Pretend your client cannot be impeached multiple times Ref

___ Incorrectly assert the State Attorney Generals have no role in enforcing the law against US government officials Ref

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___ Cite irrelevant precedents

___ Use meaningless assertions as concussions of law; refuse to consider conclusions to the contrary;

___ Create a meaningless exception; then assert the prosecution or other personnel have done the same

___ Ignore prohibitions on the results

___ Ignore the fact that the law prohibits the illegal activity, regardless the circumstances

___ Fail to distinguish one set of results from this case

* * *


___ Suggest if the law were applied as the grand jury suggests it should, it would lead to absurd results; ignore the law, and assert the absurdity prohibits enforcement of the law

___ Assert the justice system is more corrupt than the GOP that corrupted it, destroyed it, and perverted

___ Imply there are dark forces afoot, doing things to undermine the very system the GOP has already ignored, not supported, or overtly undermined

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Redefining Reality

___ Assert the legality of the unlawful results

___ Ignore partisan nature of illegal activity

___ Assert the conduct, when properly framed, could be justified in the circumstances

____ Create an (irrelevant, speculative) nexus where the illegal conduct cannot be prohibited

____ Redefine normal operations as something that is well within the scope of this supposed illegal activity

___ Create a nexus where the illegal activity is recast as something that is permissible

___ Pretend the conduct is something that everyone was doing, and well known, but the fault of the prosecution or those who had no power to prevent the abuse

___ Create the illusion of a crisis or error where there is more to the story to reasonably explain the smokescreen

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Evidence: Framing

___ Narrowly argue the law without considering the other evidence and legal standards permitting prosecution

___ Narrowly define the conduct to something that is not relevant to a prosecution; argue the law, not the facts

___ Redefine the facts in terms of the ambiguously defined nexus; ignore the prosecution-grand jury conclusions of what the law is, how the facts stack up to the law – merely assert ambiguity

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Prosecutor, Grand Jury

___ Assert prosecutor is wrong on facts and law

___ Point to irrelevant failures of the prosecution

___ Blame the indictment, not the client

___ Assert illegalities without pointing to convictions

___ Imply or overly state the conduct was improper without a legal conclusion to that effect

___ Imply bad motives at odds with the interests of justice or national interests

____ Use irrelevant cases to suggest a prosecutor bias

___ Suggest a flawed approach based on irrelevant data, meaningless correlations

___ Assert bad intent or results without credible showing of relevance or truthfulness

___ Use balanced, favorable comments to argue for the opposite: That he conduct was not balanced, or the comments were saying the opposite and were disparaging; fail to make a case that the conclusion is reasonable or relevant about the opinion

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___ Create the impression that the case is weak, stretched, and desperate, not linked with facts or evidence

___ Imply problems with legal analysis using gaps, errors, and incomplete statements of the facts, analysis, or law

___ Use a misconstruction of the fact pattern to assert there is a problem where there is an illusory issue

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Flawed Arguments

___ Assert the wrong, irrelevant argument

___ Narrowly define legal argument

___ Misstate the legal arguments, then prove the incorrect standards are or are not relevant/satisfied

___ Assert problems without providing compelling reasons

___ Pretend that a belief of something is the same as an assertion that something is true

___ Assert something is a fact – when it is irrelevant, even if true – and pretend that this fact undermines the argument; fail to show that the irrelevant fact fails to defend or explain the illegal activity

___ Use opinions as facts; fail to cite discredited or irrelevant sources

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___ Assert that the defendant does not qualify as a defendant; or that the conduct, as the newly-cast defendant did it, was not strictly prohibited

___ Pretend that the defendants do not satisfy the elements of the statute

___ Lack of contrition: Fail to accept responsibility for the failure to enforce the law

___ Pretend that boisterous assertions are a good defense; fail to comprehend this approach may result in an upward adjustment of the sentence

___ Assert irrelevant facts, results as if they are a defense; fail to show that the assertion, even if true, is a credible defense

___ Assert unreliable testimony, and other evidence which has not been proven or is invalid, is sufficient to prove a valid defense; make no mention that the evidence proffered may be invalid, irrelevant, not meaningful, or is unreliable

___ As a defense imply vagueness; but as a pretext for abuse, assert there is precise language allowing illegal conduct

___ Assert that (irrelevant) things, because they were not done, means the client is innocent; ignore the fact that the completion or non-completion of this event or fact pattern has no bearing on the other evidence which substantially supports a conviction

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Media Relations

Have you contacted your malpractice attorney before you hired your regular attorney?

Ref Media Relations: Spotting the drivel in open sources suggesting the GOP Defense Team has been working overtime.

Other Checklists

Ref Share a checklist with your friends on GOP Media Strategy -- You'll be amazed what drivel they create.

Ref Practice: Get ready for the frivolous GOP defenses. Practice reading between the lines when the President's speech writers spew drivel. How closely does defense counsel coordinate their strategy with the goons in the White House?

Ref Generic list of abuses to hide, explain away, or celebrate as needed.

Ref Pretend the Member of Congress was drunk while they took an oath.

Ref Ignore these reasonable legal risks to your client.

Ref Ignore these war crimes related arguments to your peril.

Ref Pretend the client must be protected by rights that have been ignored, destroyed, or not uniformly enforced.

Ref Claim the client cannot be prosecuted, even through there is no law prohibiting the States from doing what the US government refuses to do: Hold the President to account.

Ref Pretend your colleagues on the DOJ Staff are not in harmony, despite the evidence on Intel Link showing they regularly communicated.

Invoke Brady despite denying it to others.

Rely on known defects in the FBI I-drive as a defense; but ignore comments FBI spokesmen may have given indicating things were just fine and dandy.

Feign concern with an issue while assigned to DoJ, but ask the court to believe that that concern was from "someone else."

Ref Ignore the evidence the European war crimes prosecutors have to your detriment.

Pretend illegal activity can be classified, even though classifying that illegal activity violates ORCON.

Ref Make excuses to pretend your client could not be lawfully executed if legally prosecuted by a war crimes tribunal at The Hague.

Make frivolous excuses to pretend the War Crimes Tribunal cannot have jurisdiction, despite US Congressional decision not to enforce the law. Pretend Yugoslavia is not relevant.

Ref Ignore the FOIAs your former DoJ peers have improperly processed, and remain outstanding.