Scott Bloch walked into a federal courtroom in Washington last summer prepared to wrap up the government’s criminal case against him and begin serving a year of probation.
If only it had been that smooth. Ever since July, Bloch’s sentencing has been on hold because of a magistrate judge’s concern that the charge against Bloch — contempt of Congress, a misdemeanor — carries a one-month mandatory minimum jail stint.
Prosecutors and Bloch’s lawyers at Winston & Strawn banded together to try to convince Magistrate Judge Deborah Robinson that there’s no mandatory minimum.
The resolution of the prison question has implications beyond whether Bloch, the former head of the U.S. Office of Special Counsel, spends a month locked up, according to lawyers who are closely following the case. The ability of prosecutors to present a wide range of deals to people who lie to Congress will keep bargaining options open in subsequent cases, said Covington & Burling partner Robert Kelner, chairman of the firm’s election and political law practice group.
“If the court were to rule here that there’s a mandatory prison sentence, then it gives the prosecutor less flexibility in negotiating with future defendants,” Kelner said. “That’s why the government somewhat counterintuitively is arguing here that prison is not required.”
Last month, Robinson ordered Bloch to appear on Jan. 25 for sentencing in Washington’s federal trial court.
Bloch, who led the special counsel’s office from 2004 and 2008 was accused of retaliating against whistleblowers in his office and discriminating against gay and lesbian employees. He pleaded guilty in April to one count of withholding information from the U.S. House of Representatives Committee on Oversight and Government Reform. Committee staffers were investigating Bloch’s deletion of files from government computers.
Bloch, an employment lawyer of counsel to the Law Offices of C. Michael Tarone in Washington, declined to comment.
Contempt of Congress cases are rare. There’s little historical authority to guide judges overseeing such cases, according to Assistant U.S. Attorney Glenn Leon and Bloch’s lawyer, Winston partner William Sullivan Jr. Sullivan and Leon said in court papers that they’ve scoured records and cannot find a case in which a mandatory prison sentence was imposed. The statute says a person “shall be deemed guilty of a misdemeanor, punishable by…imprisonment in a common jail for not less than one month nor more than twelve months.”
“Punishable,” Sullivan said, means “capable of being punished,” not must be punished. “Because our Constitutional system empowers the legislature to define criminal offenses and punishments, the well-established plain meaning rule is at its most emphatic when the statute at hand is of a criminal nature,” Sullivan said via e-mail.
The U.S. Attorney’s Office for the District of Columbia declined to comment on the government’s position. Leon, the lead prosecutor in the case, acknowledged in court papers filed in September that the language in the contempt statute is not as clear as it is in other areas of the law, including for drug and firearm offenses.
Prosecutors and Bloch’s lawyers point to a recent case in the U.S. District Court for the District of Columbia in which professional baseball star Miguel Tejada, charged with contempt of Congress, was sentenced to a year of probation and ordered to pay a $5,000 fine.
A lawyer for Tejada, Vinson & Elkins partner William Lawler III, said prison was not a contested issue in the Tejada prosecution and that the question was not “closely reviewed.” There was no argument or briefing regarding whether prison was mandatory, Lawler said.
During a hearing in September, Sullivan and Leon argued for more than two hours that Robinson has discretion to sentence Bloch to probation. Robinson seemed to favor a mandatory jail term, citing language in a 2003 U.S. Supreme Court case, Price v. U.S., in which “punishable,” the judge said, is synonymous with “shall be punished by.”
After the hearing, Robinson noted in an order that the U.S. Sentencing Commission in July 2009 — in an overview of statutory mandatory minimum sentencing — identified contempt of Congress as a misdemeanor that carries a mandatory one-month minimum prison term. She asked the lawyers address the report.
Sullivan and Leon urged Robinson to disregard the commission’s briefing paper, saying that it is not binding on the court. Sullivan said the report did not include analysis or point to any authority to support a mandatory jail term.
A group of whistleblower lawyers in Washington, including Debra Katz of Katz, Marshall & Banks, said in a letter to Robinson in July that they oppose a sentence that includes only probation, calling that a “light sentence.” “We believe such a sentence would not appropriately reflect the severity of Mr. Bloch’s admitted actions and would represent a miscarriage of justice in this case,” the lawyers said.
If Robinson doesn’t impose a mandatory prison term, Kelner expects prosecutors to more widely use contempt of Congress charges in plea negotiations.
“It sure looks like Congress intended this to be a mandatory one-month prison sentence,” he said. “But whether the statute as written did that is a closer call that the court will have to resolve.”
Mike Scarcella can be contacted at firstname.lastname@example.org.