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Judge DeLaughter’s Motion Barrage, Part Two: Mail Fraud Digression

From ghoulies and ghosties
And long-leggedy beasties
And things that go bump in the night,
Good Lord, deliver us!

-Traditional Scottish Prayer

Second, the Court must not, by giving the language of §§ 1341 and 1346 an expansive interpretation, violate the prohibition on federal common law crimes, “a beastie that many decisions say cannot exist.” United States v. Bloom, 149 F.3d 649, 654 (7th Cir. 1998).

-Judge Delaughter’s Motion to Dismiss Counts Two, Three, and Four

Whoever wrote the motions Judge DeLaughter filed yesterday is a writer after my heart.  They may not achieve the optimal result, but they’ve made an interesting effort.

I’m now wondering if there’s a whole Lost Cause thing to some well-drafted defense motions in criminal cases that’s intrinsically appealing to certain kinds of white southerners (try as we might to leave that past behind) and here’s a lawyer from Chicago pushing those buttons.   Of course, presumably, he’s not going to particularly appreciate being seen as advocating (in however aesthetically interesting a way) a lost cause.

I can’t leave this lie without another quote, this time Faulkner in Intruder in the Dust:

For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it’s still not yet two oclock on that July afternoon in 1863, the brigades are in position behind the rail fence, the guns are laid and ready in the woods and the furled flags are already loosened to break out and Pickett himself with his long oiled ringlets and his hat in one hand probably and his sword in the other looking up the hill waiting for Longstreet to give the word and it’s all in the balance, it hasn’t happened yet, it hasn’t even begun yet, it not only hasn’t begun yet but there is still time for it not to begin against that position and those circumstances which made more men than Garnett and Kemper and Armstead and Wilcox look grave yet it’s going to begin, we all know that, we have come too far with too much at stake and that moment doesn’t need even a fourteen-year-old boy to think This time. Maybe this time with all this much to lose and all this much to gain: Pennsylvania, Maryland, the world, the golden dome of Washington itself to crown with desperate and unbelievable victory the desperate gamble, the cast made two years ago….

(aside:  I am reasonably certain that for the last 25 or 30 years, Southern boys aged 14 or so would have no earthly idea what this quote was about, and that’s a good thing, I think.  Something has been lost, but then something gained at the same time).

What was I talking about?  Oh, right.  Judge Delaughter filed a motion to dismiss counts two, three, and four of the indictment.

In this motion, DeLaughter is making a stronger (that is, more forceful) version of his argument that there is no quid pro quo, arguing that he got nothing whatever of value.    To achieve that, he makes the argument that a lawyer recieving a call from a United States Senator that he’s being considered for the federal bench is worth exactly nothing– no lawyer would pay anything for that.  More about that and the rest of his arguments in an upcoming post…

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