Before giving a much-anticipated speech in which he would lavish attention on the smallest details of a horrific crime that is now the subject of his administration’s most closely watched federal prosecution, Pres. Barack Obama spent hours with his attorney general and trusted legal adviser, Eric Holder. Flying across the country together, preparing for their joint appearance at a University of Arizona memorial service (or was it a rock concert?), they had plenty of time to strategize about what he should say, to ensure that the speech would have no negative impact on the case.
What could go wrong?
Okay, okay, that’s not really fair. As it happens, the president gave a superb speech, the best of his presidency — though it wasn’t the gem the awed punditocracy seemed to think it was. Mr. Obama is graded on a generous curve whenever he comes within a ZIP code or two of doing the right thing, particularly by conservative pundits so anxious that America know they can rise above the riff-raff’s icky partisanship and give credit where credit is due.
The president, unwilling to give credit — or place blame — where it is due, opted for moral equivalence. Culpability for the poisoning of our discourse is, in his telling, shared by all of us. No need to mention that his lunatic base had spent days slandering conservative commentators as accomplices to murder and mayhem. Mr. Obama, moreover, still finds irresistible any opening to portray America as forever failing to live up to his lofty aspirations, rather than to embrace the greatness of the America that we have — an America in which last weekend’s events are so shocking precisely because they are so rare, and where the survivors survived due to the heroism of ordinary citizens.
In the scheme of things, though, these are quibbles. So is the observation that the president’s graciousness made such an impression because he has so often lacked grace. For a few moving minutes, at least, he was the president we hoped he would be, wedding intelligence and empathy with his unparalleled delivery. This time, no police had “acted stupidly,” no Republicans were told “they can come for the ride, but they gotta sit in back,” and Jared Loughner’s atrocities were not spun as somehow George W. Bush’s fault.
That is not to say the scene was not disturbing. The raucous throng gave an ostensibly solemn ceremony the air of the Wellstone memorial. The Obamaphilic electioneering by the university president was nearly as off-putting as the self-absorbed weirdness of that Chicano Native American, there to remind the world of Arizona’s heartless racism (i.e., its citizens want the immigration laws enforced). When it came Obama’s time to soar, though, soar he did. Blessed by fortune to break the news that Rep. Gabrielle Giffords had opened her eyes for the first time since being shot, the president was uplifting and, at times, inspiring. The families of those killed and wounded were clearly comforted. The president could have done no better thing, and nobody could have done it better than he did.
But there was one slip up. In a fitting sketch of John Roll, the chief federal district judge slain in the shootings, President Obama extolled the judge’s dedication to the law, his devout Christianity, and his civic-mindedness. Underscoring that last virtue, Obama said Roll had stopped by the Tucson mall simply to say “hi” to his congresswoman, Representative Giffords. That shouldn’t be a problem, but it is. Unfortunately, this is not just a tragedy to be eulogized. It is also a case to be tried.
Murder is a state crime. There are only a few narrow situations in which it can be prosecuted federally. One is the killing of a federal officer. That status, though, is not enough to invoke federal jurisdiction. The Justice Department must be able to prove beyond a reasonable doubt that, at the moment of the murder, the victim officer was performing his official duties. A federal judge’s official duties do not include saying “hi” to his representative in Congress — no more than doing so would be a part of your job.
By contrast, urging one’s congresswoman to do something about an overworked district’s heavy caseload is a quintessential duty of the district’s chief judge. Witnesses who spoke with Chief Judge Roll at the mall that fateful Saturday say that, while the judge surely wanted to greet Representative Giffords, he also had an agenda to press: more resources for his court.
What it all means is that the administration screwed up — not monumentally, but in a way that will make the job of federal prosecutors a bit harder than it should have been. While some Obama critics were quick to pounce, the president’s moving remarks about Judge Roll were not wrong, they were just incomplete — a license Mr. Obama was certainly entitled to under the circumstances. There is nothing inconsistent about Judge Roll’s wanting to greet Representative Giffords and his simultaneous desire to press her regarding the burdens on his court. The full account amplifies the president, it doesn’t contradict him.
Hindsight is always 20/20, and it would have been much better if the president had said Judge Roll had “decided to stop by, say ‘hi’ to his representative, and speak with her about the needs of Arizona’s federal courts.” Putting it that way would not have detracted from Obama’s portrait of Roll’s civic-mindedness — quite the opposite. And it would have avoided giving Loughner’s lawyers some grist for challenging the prosecution. Why this wasn’t done is a question best asked of Attorney General Holder. Presidential speeches are usually circulated among top administration officials before being delivered so that any potential problems are flagged. In this instance, the attorney general was with the president and is no doubt closely monitoring the Loughner case, including the charges filed last Monday. If what the president intended to say was going to be problematic for the prosecution, Mr. Holder should have seen that a fact-based tweak be made.
But these are the kinds of mistakes that happen in government, and anyplace else where there are not enough hours in the day to meet its demands. If I had a dime for my every unforced error that caused lots more work for me and other prosecutors, I could have retired in half the time and outbid Goldman for Facebook. This screw-up is not a hangin’ offense, and it would be plain silly to suggest that Obama’s speech badly damaged the government’s case.
No doubt, the defense will argue that the speech’s abridged version of events is the true one, and that, in order to shore up federal jurisdiction, prosecutors have fabricated an “official duties” purpose for Judge Roll’s meeting with Representative Giffords. This will get exactly nowhere. President Obama was not present at the relevant time and didn’t speak with the relevant participants — he spoke with his speechwriters. From a legal perspective, his speech at the memorial service is inadmissible hearsay, probably five times removed. By contrast, the relevant participants spoke with Judge Roll on the scene and can give testimony, admissible under the hearsay rules, about why he was at the mall.
Significantly, the accounts of these witnesses were recorded for posterity in investigators’ reports four days before President Obama’s speech. Clearly, Judge Roll’s purpose to seek resources for his court was not manufactured to make Roll’s murder a federal case. So while the trial court should allow the defense the make its claim, the president’s speech is too flimsy a basis to permit a fishing expedition into the chain of communications that led him to say what he said. It shouldn’t require the prosecutors to do much more work than I just did to win that argument — and they’re getting paid for it.
Finally, let’s pretend that Judge Roll really did just want to say “hi” and had no other agenda. Undeniably, that would be a problem for the government’s case, but not because of anything President Obama said in his speech. It would be a problem because, in fact, Judge Roll would not have been carrying out his official duties. Due-process rules require prosecutors to disclose information that indicates the defendant is not guilty — i.e., information that casts doubt on an offense element the government must prove. Thus, if our pretend version were true, the defense would have learned the information anyway. The speech would not have harmed the case in any way — prosecutors are supposed to lose when the facts cut against them.
Presidents are ultimately responsible for their administration’s enforcement of the law. It is common sense that they should avoid saying things that prejudice criminal cases. In late 2009, pressing his ill-conceived campaign to endow alien enemy combatants with enhanced constitutional protections, President Obama proclaimed that 9/11 architect Khalid Sheikh Mohammed would be “convicted” and given “the death penalty” at a civilian trial. That was a reckless thing to say, particularly for a Harvard-educated lawyer who later lectured on constitutional principles at a prominent law school. The KSM statement, made for purely political reasons, appeared to render a presidential judgment about the case. It risked tainting the jury pool and denying defendants exactly the rigorously fair trial that was the stated reason for using civilian courts in the first place. It wasn’t a fatal misstep — more work for prosecutors, yes, but nothing they couldn’t overcome. It was, however, amateur hour.
The president’s speech in Arizona was anything but. It didn’t violate anyone’s rights. It was well done, and for a high civic purpose. The laudatory remembrance of Chief Judge Roll was deserved and appropriate. That it could have been done with slightly more attention to the legal ramifications is a point, but a very small-minded one.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.