Legal experts question US Attorney's decision not to prosecute Obama 'assassination plot'
Brad Jacobson
Published: Friday October 31, 2008


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Interviews with numerous legal experts suggest that Colorado US Attorney Troy Eid misled reporters and diverged from state law when declining to prosecute any of the three men arrested in Denver for threatening to assassinate Democratic presidential nominee Barack Obama.

Eid, who was appointed by President George W. Bush in 2006, declined to prosecute the three men on charges of threatening to assassinate Barack Obama during his acceptance speech at the Democratic National Convention, saying that the suspects were "just a bunch of meth heads" and their words failed to meet the legal standard for "true threat."

"When you talk about threatening presidential candidates, there's a legal standard you got to meet," Eid told reporters. "It's got to be a credible threat as defined by the law. And that means that someone has a way to carry it out. And at this time we don't have sufficient evidence that there was a true threat."

He added, "They didn't reveal a plan" and characterized the alleged threats and assassination plot as merely "the racist rantings of drug users" and "one meth head talking to another about life."

But multiple legal experts interviewed by RAW STORY -- including criminal and constitutional law scholars, former Assistant US Attorneys and Denver-area defense lawyers also familiar with Colorado state law -- agreed that voluntary intoxication is not exculpatory and that such a claim, especially for a prosecutor, is unorthodox. While it may be presented in an effort to reduce a sentence after a conviction, experts say it is normally the domain of defense counsel.

"It's very unusual," says Scott Horton, a Columbia Law School professor who also writes for Harper's Magazine. "Basically, you have a US Attorney trotting out the sort of arguments that defense counsel makes on a plea for reduced sentencing."

Legal experts say that Eid's definition of true threat directly conflicts with the statute covering threats to presidential candidates, 18 U.S.C. 879, which defines the threat as "whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate."

While noting the statute must be weighed against First Amendment rights, they argued that because voluntary intoxication is not a viable defense the First Amendment does not protect a speaker's threatening speech.

George Fisher, Stanford Law Professor and one of the nation's top scholars of criminal law and evidence, explained, "Certainly when there's a state of mind requirement in a crime, 'knowingly,' for example, you could say as a logical matter that somebody can't do something knowingly while under the influence. But there are these other laws, sometimes in the form of statutes and sometimes in the form of case law, that will say, 'But voluntary intoxication is no defense.' And the Supreme Court many years ago upheld those laws as not being a violation of due process."

Colorado defense attorneys agreed. They said Colorado state law does not differ from the Supreme Court's ruling on voluntary intoxication.

Thus, legal experts agreed that a verbal threat alone, intended by the speaker to be taken seriously, and said willfully and knowingly, is all that is necessary to satisfy the legal requirement for true threat. Contrary to what Eid told the press, a prosecutor in this case would not have to prove a plan existed or the viability of any such plan, only that a threat was made and understood by the speaker and receiver of the words to be said in earnest.

Adolph "not your normal criminal"

According to a federal affidavit, one of the men arrested, Nathan Dwaine Johnson, said that another in the group, Sean Robert Adolph, had come to Denver to shoot Obama during his DNC acceptance speech. Johnson told the Secret Service that Adolph said "it wouldn't matter if he killed Obama because he was going to jail on his pending felony charges anyway."

Vicki Harbert, an investigator at the Weld County, Colo., sheriff's department, who had pursued Adolph since 2006, told RAW STORY, "It's very easy to see Adolph saying something like that. He had nothing to lose. With his criminal history, he was going to jail for the rest of his life." (Adolph has an extensive rap sheet, including aggravated motor vehicle theft, burglary, larceny, habitual criminal, skipping on a $1 million bond and was on the Weld County sheriff department's "Most Wanted" list at the time of his arrest.) Harbert also feared he would wind up shooting a police officer before he was captured, saying Adolph would've had "no problem shooting a cop." She asserted that he "was not your normal criminal" and added that he was "very sophisticated, very cunning, very intelligent, very street smart and a professional criminal."

The affidavit goes on to detail Johnson admitting to a Service Service agent, "Adolph had in fact threatened to kill Obama on a prior occasion [as well]." Johnson further related that Adolph said that he wanted to kill Obama on the day of his inauguration [should he win the presidency] and additionally stated that Adolph said he would specifically use a 22-250 sniper rifle and high-powered scope, and find high ground to set up and shoot Obama."

Johnson also "stated that he believed that [Tharin Robert] Gartrell was also present in Denver, CO to assist Adolph in killing Obama."

But based on the affidavit, which RAW STORY corroborated with a source close to the investigation, Gartrell never verbally expressed to Johnson a desire to kill Obama. Therefore his actions would not legally constitute a true threat. But experts said Adolph's statements do.

Prosecutorial Discretion or Different Standards?

A recent North Carolina case suggests Eid employed a double standard when opting not to prosecute any of the three men.

On Aug. 1, North Carolina resident Jerry Blanchard was arrested and eventually charged with "threatening to kill, kidnap, and inflict bodily harm upon U.S. Senator Barack Obama, a major candidate for the office of President of the United States." He was indicted Aug. 28, four days before the suspected plotters in Denver were arrested. His criminal complaint alleges only verbal threats. According to the indictment, Blanchard suggested he might purchase a firearm but owned none and never expressed a specific plan or date on which he would to carry out the alleged threat.

Blanchard's lawyer, Lawrence Hewitt, said he was "mystified" as to why his client was charged and the Colorado men were not.

"True threat is simply the offense of making the threat," Hewitt said. "It's a bit mystifying to me that the men in Denver who made threats against Senator Obama and allegedly had body armor and weapons were not charged, but my client who is alleged to have merely made verbal threats is charged."

Assistant Colorado US Attorney Jim Hearty downplayed Eid's statements from his press conference and dismissed claims that any of the men should have been prosecuted on threat charges.

"It's not important what was said in the heat of a press conference," Hearty said. "We're only supposed to prosecute cases that we're certain we can gain a conviction." He also told RAW STORY that if it wanted to question the US Attorney's motives, "Then knock yourself out."

Eid and US Attorney spokesman Jeffrey Dorschner repeatedly maintained that there was never a credible threat due to the men's drug use and the lack of a viable plot. National media outlets printed the Colorado US Attorney office's claims without question.

Legal experts interviewed by RAW STORY agreed that, in general, a prosecutor reserves the right to "prosecutorial discretion." But some, particularly those more familiar with this case as well as Eid's history as US Attorney (Eid was appointed by President Bush during the height of Monica Goodling's tenure as Justice Department liaison to the White House), thought he might be hiding behind such discretion.

Horton, who has also written extensively about the US Attorneys scandal for Harper's Magazine and is very familiar with Eid's background and record as Colorado US Attorney, pointed out, "Pretty much any law professor is going to tell you that a prosecutor is entitled to discretion in making decisions. But that's not an absolute rule. The rule is they have to apply consistent standards across the board. And I think this is a clear-cut case where there's one standard [for Republicans] and another standard for Barack Obama. Do you think for a second if these people had uttered threats against President Bush that Eid would be doing this?" Horton added, "And by applying the standard in a way that's not equal across the board, they damage their own reputation."

Curious omissions from court documents

The federal affidavits, though summaries and not a full record of the sequence of arrests and what law enforcement officials and suspects said during questioning, also raise questions for what's missing from them -- specifically, any instance of federal authorities asking Adolph about the alleged threats and plans to assassinate Obama.

"From a reporter's perspective, the starting point for these documents is you'd like to know everything that's relevant to the case," noted Columbia law professor Daniel Richman. "The starting point for a prosecutor is to say as little as possible. They want to convey certain information and the question is not usually why they left something out, but what led them to put something in."

Horton, however, was more pointed about this omission, calling it "definitely strange" and confirming that law enforcement officials either asked Adolph this question and omitted his answer or they never asked him at all. He added, "This is one way: when they don't want a record that will establish something, they don't ask the question."

RAW STORY asked the Colorado US Attorney's office, the FBI and the Secret Service to explain this omission. All declined to comment.

One law enforcement official close to the case, who spoke to RAW STORY on the condition of anonymity, said, "I would think that question would be asked." This source also confirmed that the idea of a potential plot against Obama "was first raised by Johnson," not by authorities questioning him. Another law enforcement official close to the investigation told RAW STORY he was given strict orders not to speak to the media. Asked if he would have a lot to say about this case if he didn't fear speaking, he said, "Yes."

Physical evidence "tools of the drug trade?"

In downplaying the threat, the US Attorney's spokesman also characterized the physical evidence recovered from the suspects "including, along with methamphetamine, two high-powered rifles with scopes (one threaded with a silencer), 85 rounds of ammunition, a bulletproof vest, wigs, two walkie-talkies, three fake IDs, tactical pants and camouflage gear" as merely "tools of the drug trade." (FBI special agent and spokeswoman Kathy Wright admitted to RAW STORY that this physical evidence initially "sounded ominous," which is what compelled the FBI to obtain a warrant for search and seizure; yet contrary to reports in alternative media and the blogosphere, the FBI never sought to "charge" any of the suspects for threatening or plotting against Obama.) The implication was that all of these men were, at once, "just a bunch of meth heads" incapable of following through with any plan yet also hardened drug dealers, whose ownership of these items would be commonplace.

But according to narcotics experts, while the amount of methamphetamine recovered from Adolph's Denver hotel room legally constituted enough to charge him with intent to distribute, it does not suggest he or the other suspects are serious drug dealers or even drug dealers. Nor does it explain the kind of weaponry found on them.

One narcotics expert, a former senior DEA special agent who spoke with RAW STORY on the condition of anonymity due to his current consulting work, said that such a relatively small amount seems to point to either "very low level" dealing, the kind in which those involved are selling just to make ends meet, or an amount they simply planned on using themselves.

Michael Levine, one of the most highly decorated former DEA agents in agency history and an expert witness in over 300 federal and state criminal and civil cases, said of the amount of methamphetamine recovered in this case, "It's really not that much at all; that's roughly one ounce of meth. And one ounce of meth is what someone using might buy for himself or to share with friends. It was a small amount, still within the bounds of reasonable intent for use."

Levine also disputed the characterization of the weaponry recovered. "They are not tools of the trade," he said, explaining that while some drug dealers carry weapons, real evidence of drug dealing is the seriousness and amount of trafficking materials, primarily packaging materials, records of buyers' names and contact information, and evidence of witnesses who've said they've purchased from them.

The US Attorney's office has never clearly explained what the suspects were doing with the recovered weapons. During Eid's Aug. 26 press conference, he said, "I don't know what they were for," adding, "a bunch of meth heads get together, we don't know why they do what they do." The US Attorney's office told RAW STORY it couldn't comment further on this evidence. The FBI and the Secret Service also declined to comment.

 
 


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