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 |  Subject: EXCELLENT: Justice Department dropped case charging threats to Barack Obama  Wed Apr 04, 2012 5:35 am | |
| The Justice Department has quietly given up on a criminal case involving alleged death threats against Barack Obama during the 2008 presidential campaign, leaving in place a legal precedent that the department's own lawyers predicted would have far-ranging repercussions by encouraging threats against political candidates and complicating the work of the Secret Service.
Earlier this month, the deadline passed for the Justice Department to seek Supreme Court review of a federal appeals court's ruling last year throwing out convictions of La Mesa, Calif. resident Walter Bagdasarian over what the government charged were racist threats posted on an online financial bulletin board in October 2008.
"Re: Obama, fk the niggar, he will have a 50 cal in the head soon,” Bagdasarian wrote in one post. "Shoot the nig," he said in another.
Bagdasarian didn't dispute posting the remarks, but said he was drunk at the time. After a bench trial, a federal judge in San Diego convicted him of threatening to kill or do bodily harm to a major presidential candidate.
However, last July, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit overturned the convictions, saying Bagdasarian's statements did not amount to "true threats" prohibited by law. Prosecutors asked the Ninth Circuit to assign an 11-judge panel to rehear the case.
"The majority’s erroneous evaluation of the evidence in this case thus has far wider ramifications than the reversal of one isolated conviction," prosecutors wrote, warning that the decision "will in future encourage anonymous threats of violence, chill the full political participation of worthy candidates – and make the job of protecting such candidates all the more difficult."
Despite the grave warnings, after the Ninth Circuit turned down the rehearing request in December, the Justice Department did not ask the Supreme Court to take the case. As a result, the appeals court's ruling is binding precedent in nine western states, which contain about 20% of the U.S. population—and could be looked to for guidance by courts in other states as well.
A Justice Department spokeswoman had no comment on the decision not to petition the Supreme Court to consider the case. Decisions about what cases to take to the justices are made by Solicitor General Donald Verrilli Jr.
A former prosecutor who helped oversee the prosecution of Bagdasarian said the Ninth Circuit ruling is a problem not only for those who protect candidates, but a danger to sitting presidents as well.
"The Secret Service takes threats against the president extremely seriously. They will do everything they can to be able to keep the president safe, but they have to follow the law," John Owens, former chief of the criminal section at the U.S. Attorney's Office in San Diego and now a partner at Munger, Tolles & Olson in Los Angeles, said in an interview. "This opinion remaining on the books unchecked makes the Secret Service's job more difficult.”
Legal experts said one result of the decision could be that a person who made arguably threatening remarks about the president or a presidential candidate while in the eastern or central United States could face arrest and prosecution, while someone making the exact same statements in the nine Ninth Circuit states might get off scot-free.
A Secret Service spokesman said his agency will continute to investigate all potential threats. "We follow up on all information that's brought to our attention," spokesman Ed Donovan said. He added charging decisions are made in consultation with prosecutors, who would be the ones to make judgements about the impact of court rulings.
Another former federal prosecutor said that, despite the government's warning's about the implications of leaving the appeals court ruling in place, the case simply wasn't a good one to take to the Supreme Court. The justices usually only take cases where appeals courts have differed about the law (a so-called circuit split) or where the case itself is of extraordinary significance. The Ninth Circuit's decision doesn't really fit those categories because what the government mainly objected to was how the judges interpreted the facts, not their understanding of the law, said Daniel Saunders of Bingham McCutchen in Santa Monica, Calif.
"What you have here is basically a factual dispute" over whether Bagdasarian's statements were threatening, Saunders said. "There's really no new law, or little new law, that the opinion sets out."
But the decision could still have a significant impact, as the government petition for rehearing noted, because the ruling effectively "immunizes" statements similar to Bagdasarian's--at least when uttered on or near the West Coast.
The Ninth Circuit opinion last July (posted here) was written by Judge Stephen Reinhardt, a Carter appointee and liberal stalwart, and joined by Chief Judge Alex Kozisnki, a Reagan appointee who's one of the federal bench's best-known libertarians. Judge Kim Wardlaw, a Clinton appointee, was the dissenter.
"The threat statute...does not criminalize predictions or exhortations to others to injure or kill the President," Reinhardt wrote. He pointed to a 1969 Supreme Court ruling that dismissed as hyperbole an anti-war demonstrator's statement that "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. [President Lyndon Baines Johnson]."
The ruling could even have implications for some terrorism-related prosecutions. In recent years, federal prosecutors have used threat statutes to go after Islamic radicals accused of promoting terrorist activity. In some cases, like those involving alleged threats against creators of the South Park television show (see here and here), the remarks at issue were similar to those posted by Bagdasarian in that they could be read literally as predicting or urging violence rather than declaring a personal intent to carry it out.
http://www.politico.com/blogs/under-the-radar/ |
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