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Why No Charges For Schlozman?

Given that the DOJ Inspector General's report found that Bradley Schlozman broke the law in making politicized hiring decisions, and lied about it to Congress, why and how did the US Attorney's office make the decision to decline to bring criminal charges?

We got a bit more information on that question from Patricia Riley, special counsel to the US Attorney for the District of Columbia, which conducted the investigation.

Riley told TPMmuckraker that her office was only asked by the Inspector General's office to look into the possible perjury charges stemming from Schlozman's congressional testimony, rather than the underlying hiring decisions. She said that six career prosecutors, with between 10 and 21 years experience, conducted the investigation, reporting to Assistant US Attorney Channing Phillips (US Attorney Jeffrey Taylor recused himself from the probe).

The investigation continued until last Friday, said Riley, and included interviews with witnesses who were not contacted by the IG's report. Based on that investigation, a decision was made not to bring criminal charges.

Riley declined to say what specific information uncovered in that probe determined the decision.

We also asked the office of Sen. Pat Leahy, when they first learned that the OIG report had found that Schlozman lied to Leahy's committee. A spokeswoman responded in an email:

We received this IG report this morning, shortly in advance of the hearing, as is the usual practice of the IG's office.



34 Comments

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Well that explains nothing.

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Keep asking questions and pursuing the charges on Schlozman. We need to return this country to a land of laws.

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Ask Sen. Leahy if they plan to take any further action.

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Perjury certainly is grounds to revoke his license to practice law. If it can be proved that he lied under oath whatever state and federal bars he is admitted to should be alerted and an action taken.

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You really need to clarify the article, or have them clarify it. The article states that: "The investigation continued until last Friday, said Riley, and included interviews with witnesses who were not contacted by the IG's report. Based on that investigation, a decision was made not to bring criminal charges."

Several questions: (1) did the USA see the emails as well? (2) Was there a true overlap with the IG witnesses? In otherwords, the way they issued this statement, they could be saying: "Our investigation included interviews of people the IG did not talk to--for example, Barry's mom and brother think that he did nothing wrong." Or the alternative: "We talked to everyone that the IG spoke to, plus a few that the IG didn't. We can't bring a case."

I don't understand this decision (legally). There is unequivocal documentary evidence, plus evidence of what was going on at the time at the justice department, plus the defendant's own statements to other employees. That sounds like a prima facie case to me. Let him try to explain that he was "just blowing off steam and he's entitled to his views." Can anyone that knows more about perjury/lying to congress trials explain this? (Or are you gonna make me do my own (#$*ing research?)

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So much for justice.
And change?????????

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One other thought: if you do prosecute him, who does he give up to save his own tail?
(Non-legal question as to why no prosecution answered)

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Pipsqueak lied his buns off. He made A. Gonzo look like an honest man. If perjury was the only thing they were asked to examine, it would appear they'd have plenty to work with.
This is a pathetic miscarriage of justice, but that's become standard m.o. hasn't it?

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The first time Obama sneezes, the Republicans will call for his impeachment.

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Just so I have it straight: Clinton tried to "lie" about a private affair between two consenting adults, and for that Congress was tied up for years and eventually impeached him.

The Republicans commit treason, obstruction of justice, lie directly to Congress and to the American People, and nothing happens.

Ok, now that we have that settled.

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I seem to remember that about 10 years ago the Republicans were all over perjury by a certain public servant and considered it a very serious matter.

Any bets on a repeat performance? Or will it slide as part of "moving forward"?

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Perjury.

Grrrrrrr!

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I think it is worthwhile to note that a lot of this crap - various bad doers getting off, failure to investigation the Bush Admin - this is the result of the country's failure to make Nixon accountable. To make Reagan accountable. And now Bush. It's for the 'good of the country.' 'We need to be united, not divided.'
It gets worse with each iteration. And guess what?
The next iteration doesn't have much more to go to reach that blessed nervana the brownshirts have always craved.

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Whenever I watch a video with my kids we are subjected to a threat by the FBI and Interpol of a $250,000 fine if we copy the movie. Apparently parents pirating movies for their kids is far more offensive to DOJ, and a greater national security threat, than an important government employee breaking the law and then lying to congress about it.

If citizens are not going to be encouraged to take every opportunity to evade laws due to the continual and complete disdain shown for law by guv'munt bigwigs, then I think a suggestion by a farmer I know is appropriate. Congress should have a two gallon jar on the podiums of the House and Senate chambers, and at the front desk of every guv'munt agency. Filled with testicles.

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Because we're looking forward rather than backward. You see, unless you prosecute WHILE THE CRIME IS BEING COMMITTED, the crime occurs in the past and we must look forward rather than backward.

When you don't live by the RULE OF LAW, President Elect Obama, it doesn't matter WHAT LAWS YOU PASS. You've already demonstrated your willingness to DISREGARD THE LAWS.

Say hello to the new boss, same as the old boss.
Changed we were deceived in.
To think I had the audacity to hope that Obama would be different.

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For one thing, Obama won't be president for another 6 days 20 1/2 hours.
Until then, it's still Bush's maladministration.

Put the blame where it belongs, please.

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Maybe you are correct. Maybe Obama won't be true to his word about looking forward rather than backward just like he wasn't true to his word about FISA.

Why can't we just elect people like Bernie Sanders or Dennis Kucinich or Russ Feingold who will actually be progressive? Why is it ok to elect far right nut jobs who make no apologies about being right wing and make no attempt to be "middle of the road" but we can't do that for progressives?

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When it comes to "middle of the road" I always remember Jim Hightower's wonderful book title:
"There's Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos"

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So am I correct in understanding the US Attorney was told by the IG not to consider prosecuting the Schloz for violations of the Civil Service Reform Act and other federal regulations? Is it at all possible to for the Obama DoJ to revisit this?

On a different note, this pissed me off when it was done to Bill Clinton, so I will extend the same courtesy to Schloz. [Not that the "RTA's" would ever extend the same consideration.] When Robert Ray concluded OSC's work he made public statements to the effect that Bill Clinton committed perjury and obstruction of justice...with the non-trivial caveat that he didn't have sufficient evidence to prove it or recommend prosecution.

So now we have a report that emphatically claims Schloz broke a host of laws...yet there's no prosecution. How is it logical or fair for a prosecutor to make these unequivocal public accusations and then decline to do a damned thing about it?

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How is this man not disbarred from practicing law?

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Well... it needs people to file complaints. I hope that will happen.

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NO ONE IS ABOVE THE LAW! WE ARE A NATION OF LAWS! Except if you work as a political appointee. Schlozman should be prosecuted just because he looks and talks like a dick.

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There is a conclusion to be drawn from all this.

The United States is a nation of laws, and those laws have no connection to the concept of justice.

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I was very curious myself to see why there would be no prosecution in this case, because it seemed at first glance to be a no brainer. But, the issue here is whether the government can prove perjury (intentional lying) and prove it beyond a reasonable doubt. If you take close, hard look at the case for a successful perjury conviction against Schlozman, you see that it is a weak case.

Looking at the OIG report, their first grounds for perjury is that Schlozman lied when he testified that he never violated the Hatch Act. Even if Schlozman did violate the Hatch Act (which would be it's own separate trial), the issue is really that this question is asking Schlozman for his own opinion of what he did. The question effectively is, "Do you believe you violated this civil service law?" Answer: "No." It is hard to convict someone for perjury when the gist of their comment is to express their own opinion that they did not violate the law. To convict, prosecutors would likely have to prove BOTH that (a) Schlozman himself believed that he had violated the Hatch Act and lied about it; AND (b) that he actually did violate the Hatch Act. May be true but tough to prove!

Next, is Schlozman's written answer to a question about whether he considered applicants' party affiliation, ideology, etc. in hiring decisions. But his written answer is sufficiently vague here to make it hard to prosecute. In the first paragraph, Schlozman doesn't answer the question at all, saying only generically that applicants' were not hired "based on" party affiliation, membership in a specific nonprofit org, or loyalty to the President. To begin, he skips over the question about "ideology" at first and comes back to it. Then he never directly answers the question as to whether he "considered" these factors. Rather, he says that applicants were "not hired based on" political party, etc. As for ideology, Schlozman kind of actually *admits* that he may considered a candidate's ideological views in hiring. But that admission, makes a perjury conviction really tough. He more, or less, admits to considering ideology. However, hiring based on ideological beliefs is not a violation of the Hatch Act (only politically affiliation is). So it's a slimy answer, for sure, but since he doesn't really answer the question asked, and the admits to something that is technically legal, it becomes hard to convict him for perjuring himself on it. I'm not saying it would be impossible to convict here, just very very difficult.

Next comes the issue of Schlozman denying, under oath, that his decisions to transfer attorneys out of his section were not made to fill positions with others who would adopt more conservative view. All the testimony here comes from witnesses. Very "he said" vs. "she said" stuff. Written memos or e-mails in Schlozman's own words makes an easy case to prosecute. Hearsay (even if admissible as would be in this case) is unreliable to make a good perjury case stick on a point like this. Remember, the people who would likely testify against Schlozman probably hate his guts, probably have told lots of people that they hate Schlozman's guts, and *would probably have to admit it* under oath in front of a jury. It is hard to convict someone of perjury when all you have to prove he's a liar is the testimony from witnesses who hate the defendant's guts. Just sayin'.

Last issue is about a similar statement about considering political affiliation while Schlozman was a US Attorney. However, Schlozman's perjerous statement made during oral testimony got "covered" in is written answer. The OIG report concedes defeat on this point saying that Schlozman's did not make a "false statement" but that the response may have been "misleading." Would be practically impossible to convict on perjury on this point.

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Aargh,

You didn't bring up, or thought it was unnecessary or already covered by your 3 hypotheticals the perjury the Slozmann committed in announcing prosecutions over electioneering within 10 days of the general election contrary to the field manual for his office which he is required and admitted reluctantly to reading for his position. Shouldn't that be the most viable and negligent charge of gratuitous perjury than the others you stated?

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Where's the perjury there? I don't think he was testifying before Congress when he made that announcement and violating the Field Manual is not the same thing as perjury.

Arggh, I think proving your first example of perjury is easier than you suggest: "To convict, prosecutors would likely have to prove BOTH that (a) Schlozman himself believed that he had violated the Hatch Act and lied about it; AND (b) that he actually did violate the Hatch Act."

I'm sure you could show he had training on the Hatch Act and knows what it permits and does not permit. It's not like what Schlozman was doing was a remotely close case, and reckless ignorance is not a defense here.

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Arias wrote to me: "You didn't bring up, or thought it was unnecessary or already covered by your 3 hypotheticals the perjury the Slozmann committed in announcing prosecutions over electioneering within 10 days of the general election contrary to the field manual for his office which he is required and admitted reluctantly to reading for his position."

My 3 points were not "hypotheticals." They were the actual portions of Schlozman's testimony that the OIG itself said were perjury. I didn't evaluate other statements by Schlozman because the OIG didn't suggest they were falsehoods.

That is actually an interesting point though. Schlozman went on and on in his testimony that he was either directed by, or at least had permission from, DOJ's own non-partisan Election Crimes Unit to proceed with the ACORN indictments. It is interesting that the OIG failed to mention this in its report, or otherwise suggest that Schlozman's statements about it were false.

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This is (in a much longer and more thoughtful form) what I was getting at. To me, a lot of Schlozman's guilt depends on (1) the quality of the extrinsic evidence from witnesses and the extent to which their bias would make them not credible, and (2) the extent of the extrinsic evidence that one may bring in regarding the politicization of the DOJ generally. The defense is going to have a big relevance objection to prong (2).

Nonetheless, one of the DOJ's best shots at winning is to make the agency's conduct for the last eight years look like shit. That's a pretty obvious conflict. The nub of the case, however, turns on Schlozman's demeanor and credibility--not only before the trial court (he may or may not testify), but also before Congress--where it was abysmal.

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Actually, the more I follow this story, the more I am convinced that Schlozman feels he did nothing wrong.

First, his attorney says that Schloz took a polygraph test to prove he was telling the truth. That's interesting

Second, and more importantly, Schlzoman's lawyer takes great pains to point out that there is a difference between hiring based on ideology and political affiliation. The former is permitted, the latter is not. I think Schlozman is resting on the idea that he hired and promoted conservative thinkers (and hated liberals), but that as distasteful as this may be, it was perfectly legal.

Now if that is Schlozman's legal defense to Hatch Act violations, it sounds reasonable. He could still "lose" on that defense, but if it is a *reasonable* defense, then that means that Schlozman *reasonably* believed that he wasn't in violation of the Hatch Act. This, of course, means that he testified truthfully when he told the Committee that he never "crossed the line" in hiring partisans.

The point of all this is that it is notoriously difficult to convict someone of perjury. It is one of the hardest crimes to prove beyond a reasonable doubt. Doubly so if you are trying to prove that a person lied about their opinion at the time. You need a real smoking gun to prove that someone lied about their opinion. Like an e-mail just after the testimony fessing up ("Hey Bob, I told Congress that blue was my favorite color and they bought it. I love Yellow!!").

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It amazes me that the government wants to investigate steroid and HGH use in professional athletes as if it were a blot on America's image and a danger to its society, but this kind of corruption is seen as "all in the game." When will we take to the streets and demand justice over how the public has been shaven, shorn, buggered and ignored?

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Please be patient; justice will be with you shortly...

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It's amazing how much the sound of Slozmann's own voice makes and defines the man. The pure SOUND of his voice grates on the mind and has a way of broadcasting "I AM A LIAR NOT TO BE TRUSTED, SINCE THE PURE DIALECT AND PITCH OF MY VOICE OOZES "WEASEL" . Psy-ops is obviously not his strong suit and has done him no such favors.

It also seems that for him, he doth protest too much, and his choice by both his attorneys and his own vigilant, highly public defense of his actions might spell his demise.

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This is actually fine. There are a number of crimes I would like to commit, and it seems all I have to do is change my party affiliation to get away with them.

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Interesting that in a nation supposedly under the "rule of Law", that the actions and statements of one person (Schloz) can be parsed so much while the actions of hundreds of prisoners in Gitmo are parsed so little.

It would make things much easier if Schloz were declared an "Enemy Combatant" (enemy of the constitution) and transferred to a country - the USA (Naval base in Cuba) - where "Enhanced Interrogation" is practiced.

He is even more deserving that those prisoners since he has been working to destroy America from within.

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