Did Obama Speech Undercut Federal Case Against Loughner? (No.)
At last night's memorial service for the fallen victims in Saturday's tragedy in Tucson, Arizona, President Barack Obama spoke at length about the lives led by Jared Lee Loughner's victims, and shone a light on the extraordinary men and women who performed acts of valor during and after the event. But did Obama accidentally torpedo part of the federal case against Loughner? According to Josh Gerstein, concern troll, he totally did!
"Obama speech undercuts federal charge for judge's murder," is the basket case that Gerstein gives us in Politico and naturally, his entire case hangs on a detail so picayune that it would embarrass an ordinary writer. Essentially, here's the exact moment where Obama did all of this undercutting:
OBAMA: [Judge John Roll] was on his way back from attending mass, as he did every day, when he decided to stop by and say, 'Hi,' to his representative.
I know! Right away, you're saying, "Huh, what?" I guess this is the answer to that question:
In the complaint supporting Loughner's arrest, federal prosecutors argue that Roll wasn't simply seeking to pay a social call on Rep. Gabrielle Giffords (D-Ariz.) when he showed up at the community outreach event where the shooting spree took place Saturday. Prosecutors and the FBI insist that Roll "was engaged in official duties" because he wanted to talk to Giffords and her staffers about problems with a surging caseload in federal courts in Arizona, particularly along the Mexican border.
Loughner's alleged killing of Roll may only be a crime under federal law if Roll was on business and not merely stopping by to say hi to a friend.
And Gerstein's right about that! But what's also true is that President Obama was not submitting sworn testimony last night, he was speaking at a memorial service. His job was to say something nice about the victims, not to bore the audience with disclaimers and legal minutiae. But if you want that stuff, the actual criminal complaint delivers. Here is the relevant portion of the Statement of Probable Cause, in which the federal case is very solidly underpinned:
On or about January 8, 2011, in Tucson, Arizona, Congresswomen Gabrielle Giffords hosted a pre-announced event entitled "Congress On Your Corner," at a Safeway store at 7170 Oracle Road. Congresswoman Giffords represents the Eighth Congressional District in Southern Arizona. The office of Congresswoman Giffords has publicized the event in advance, including by e-mail and telephonic announcements. Your affiant states that Congresswoman Giffords' staff at the event included Gabriel Zimmerman, Rob Barber, and Pamela Simon, who are employees of the United States, all of whom attended to assist Congresswoman Giffords in her official duties. On January 9, 2011, your affiant spoke with U.S. Marshal David Gonzales, who stated that the Honorable John M. Roll, Chief Judge of the United States District Court for the District of Arizona, had worked with Congresswoman Giffords within the last several months to resolve issues related to the volume of cases filed in the District of Arizona. Judge Roll was notified about Congresswoman Giffords' event telephonically on or about January 7, 2011. having spoken to Pia Carusone, the Chief of Staff for Congresswoman Giffords in Washington D.C., U.S. Marshal Gonzales reports that Ron Barber, a staff person for Congresswoman Giffords who was present at the event, stated that Judge Roll attended the event and sought to speak to Congresswoman Giffords, and spoke with Mr. Barber about issues related to the volume of federal cases in the District of Arizona; Judge Roll expressed his appreciation to Mr. Barber for the help and support that COngresswoman Giffords had given. Your affiant reviewed a digital surveillance video depicting the events at the Safeway; in the video, Judge Roll is seen speaking for several minutes with Mr. Barber.
And at some point, chances are good that Judge Roll might have wanted to, in addition to all of the things that are affirmed by witnesses and surveillance videos, say "Hi" to Gabrielle Giffords. I guess it's a good thing that the criminal complaint exists, because for a minute there, I thought that Obama had totally blown the case, you know?
But since I've come this far, let's see how Gerstein concludes The Case Of The Memorial Service Anecdote:
As a legal matter, Obama's view (which tracks with the public narrative offered by Pima County Sheriff Clarence Dupnik) may be irrelevant, but it probably doesn't help to have the President of the United States emphasizing the social aspect of Roll's stop to see Giffords on Saturday, rather than the reason prosecutors claim drew him there.
It should be noted that Roll's killing is clearly prosecutable under Arizona law. The issue of the strength of the federal charge for his murder mainly affects the dynamic between the state and federal governments over which should go first in prosecuting Loughner.
As one of my colleagues points out, you've got to love an article that begins with a sensational claim and ends with two reasons why you shouldn't have bothered to continue reading about it.