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The Strange Case of Scott Bloch

Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get the irony.

Anyway, by and by this attracted the attention of congressional investigators, who requested a transcribed interview with Bloch. During the interview, they asked Bloch about an incident where he had used an outside service, Geeks on Call, to perform something called a “seven level wipe” on certain computers at the Office of Special Counsel, including his own. The suspicion was that he wanted to remove evidence that would substantiate some of the allegations against him.

According to a later information filed against him, Bloch, “having been requested by the House Oversight Committee to provide information upon a matter of pertinent inquiry before the Committee, unlawfully and willfully did make default by refusing and failing to state fully and completely the nature and extent of his instructions that Geeks on Call perform ‘seven level wipes’ on [the computers in question].”

Bloch entered into a plea agreement, in which he agreed to plead guilty to a single misdemeanor count of contempt of Congress, 2 U.S.C. § 192. Under the plea agreement, the prosecution would not oppose “a sentence at the low end of the applicable Guidelines range,” which the agreement calculates as “0 to 6 months.” In other words, the prosecutors promised that they would not object to Bloch’s position that he should serve no jail time (although the actual sentence would be up to the court).

After Bloch pled guilty, however, the U.S. Probation Office prepared a presentence report that noted the minimum sentence for contempt of Congress is one month in jail. This did not require any lengthy legal research; the statute provides on its face that the offense is punishable by “imprisonment in a common jail for not less than one month nor more than twelve months.”

Nevertheless, both Bloch’s lawyers and the prosecution objected. They pointed out that the last two prosecutions for contempt of Congress had resulted in sentences of probation. In the most recent case, United States v. Miguel Tejada, 09-mj-077, the defendant, who pled guilty just a year before Bloch, was given probation and the Probation Office did not raise any objection.

The magistrate judge did not buy it. Not only did she conclude that the statute was clear on its face in requiring a one month minimum sentence, but she refused to allow Bloch to withdraw his guilty plea. She was clearly irked by the joint position of the prosecution and defense that Bloch should be allowed to negotiate a new plea deal in which he would plead guilty to a different offense (presumably one that would permit no jail time). Responding to this suggestion, she stated “[c]onfidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.”

Maybe so, but it seems to have escaped notice that Bloch could not have committed the offense to which he pled guilty. The contempt of Congress statute provides that “[e]very person who having been summoned as a witness . . . to give testimony . . .  upon any matter under inquiry before . . .  any committee of either House of Congress, willfully makes default, or who having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor. . . .”

Bloch was not “summoned as a witness.” He was asked to provide a voluntary interview. He did not appear before a committee. He met with congressional staff. He did not “willfully make default” (ie, fail to appear). If he had refused to answer one or more questions posed by the staff, it does not seem that he would have violated the statute (and it is not apparent from the information whether he actually did refuse to answer questions). What Bloch apparently did was to fail to provide accurate or complete answers to questions regarding the computer incident. This may have violated the False Statements Act, but it is hard to see how it constituted contempt of Congress.

This is not the first time that the contempt of Congress statute has been used to convert the felony of lying to or obstructing Congress into a misdemeanor charge. Nor has it been a secret. In 1988, when Robert McFarlane pled guilty to contempt of Congress, the New York Times pointed out that what McFarlane did was not actually contempt of Congress, but lying to Congress. Nevertheless, it noted that prosecutors used the “euphemism” of equating lying to Congress with a refusal to answer questions as a means of reducing the charge from felony to misdemeanor. This technique was also used in the plea bargains of Richard Kleindienst and Richard Helms.

Furthermore, even if Bloch had committed the offense to which he pled guilty, the court would not have had jurisdiction to convict him. The D.C. Circuit has held that a conviction for contempt of Congress is invalid unless the contempt has first been properly certified by the House or Senate (or, during adjournment, by the Speaker or President of the Senate) to the U.S. Attorney under 2 U.S.C. § 194.  Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). (Indeed, the reason that there is a minimum sentence for contempt is undoubtedly to ensure that the U.S. Attorney is sufficiently vigorous in acting on such a congressional certification). No such certification was made here.

In short, it appears that Bloch pled guilty to a crime that he didn’t commit in order to get a sentence to which he was not entitled from a court that was not empowered to pronounce one. Chief Judge Lamberth has now reversed the magistrate judge, finding that Bloch should have been allowed to withdraw his guilty plea. Judge Lamberth seems to have accepted the view that contempt requires a minimum one month sentence, however. Thus, it will be harder for this provision to be used as the basis for plea bargains in the future.

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