The Clemens’ trial – they failed on purpose?

by Jerry Bunkers

My conspiracy theory. It’s not that the DOJ is really stupid. In fact, they were amazingly brilliant. They lost on purpose. It’d make a great movie, perhaps written by John Grisham!

Something I discovered that I had not heard before, and it may explain a lot about the reasons the DOJ went to trial – and then lost:  the head of the Criminal Division of the DOJ (Lanny Breuer) had nothing official to do with the case.

Lanny Breuer, head of the Justice Department’s criminal division, recused himself from Clemens‘ trial because HE REPRESENTED CLEMENS! He was Clemens’ former attorney. He was the guy hired to help Clemens testify in front of Congress. To make sure he did not commit perjury!

Having your former counsel now being connected with your prosecution opens up a real can of worms. So It is easy to see Breuer’s recusal.

It may well have hurt Clemens for his former counsel to be the head of the DOJ criminal division. It might make it harder for the DOJ to drop the case or offer a plea bargain. By prosecuting a former client to trial without Breuer’s involvement, the DOJ shows ‘impartiality.’

And remember, Clemens was now being charged with lying in front of Congress, something Breuer would have had responsibility for. It would not help Breuer’s reputation for a client he advised in front of Congress to be found guilty of lying to Congress. His job was mostly to prevent that.

Clemens was charged with something that Breuer was supposed to make sure did not happen – perjury. A guilty plea would imply that Breuer did not do a good job protecting his client in front of Congress.

So, if Clemens is found guilty, it would hurt Breuer’s reputation. I would expect that normally, Breuer would be involved in Clemens’ defense since it directly went to Breuer’s expertise.

But he was now in a political position that made that impossible. Breuer could do nothing official with a case that would also affect him. That has to go to trial for political reasons.

Yet by having such a trial end in acquittal, a former client is exonerated. It’s a win-win for everyone – especially Breuer – but not the DOJ. 

That might explain why such a weak case was taken to trial and why the prosecution of the case was seemingly run by poor attorneys.

The best thing for Breuer and the DOJ might have been for them to look like they are pursuing Clemens very hard but to somehow make sure a former client was found innocent. And that is just what happened.

 

If the DOJ had dropped the case, there would have been questions about whether someone had influenced the case for personal reasons and not legal. Such a weak case might well have been dropped much earlier without the political considerations.

 

So you can not directly blame Breuer as he officially had nothing to do with the case. A case that just happened benefit everyone in the end.

But I wonder if he had anything to do with making sure the lawyers assigned to the case did such stupid things? Perhaps the seasoned attorneys knew NOT to take such a case as it would kill their promotions so only the most unlucky lawyers got the case?

Or perhaps it was the most brilliant of their lawyers? They would know without having to be told just what to do to help the DOJ seem impartial and also help a fellow lawyer’s reputation. They would know that acting stupid might be the smartest thing.

Because what they would have to do is prosecute a very weak case, opening themselves and the DOJ to ridicule, while also making sure that the verdict for Breuer’s former client was acquittal.

Maybe, in reality, it was the smartest DOJ lawyers simply acting so stupid.

How else to explain the lameness of the prosecutors and the prosecution. First causing a mistrial by showing video the judge has excluded – I bet they thought that would get the trial tossed with prejudice but the judge let them do a mulligan. Then they asked questions in court which got answers they did not want – I’m thinking of Andy Pettite’s testimony or that of Clemens’ wife.

 

It explains why the prosecutors took such a weak case to trial – only one real witness, one with easily demonstrated failings, and no hard evidence. Only by doing that could they protect the reputations of some guys in the DOJ.

And knowing how weak the case was, the big guys would not be unhappy that it did not end in a guilty verdict. So the big guys can keep talking about how their clients do not get convicted. 

And Breuer would not have a perjury verdict against a former client.

Sure, it hurts the DOJ by losing and makes us worry about how our money is spent but it would get a former client off. All while being recused.

What if they did all of this – including losing – on purpose?

 

Sounds just like a lawyer  ;-) Screw the DOJ. Screw the taxpayer. My client walked free. His reputation may still be tainted but he is never serving any prison time.

And Breuer can talk about how his clients walk, even when he is not directly involved. That has got to be a reputation enhancer.

Yep, a very good movie. I’m thinking Kevin Spacey as Breuer. Denzel as Holder. Both do ambiguously amoral people quite well. Clemens could be someone like Hugh Jackman. The lead prosecutor might be Ed Norton who can change from Good guy to Bad guy in an instant. 

Guess I need to get going on my treatment.

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