I suppose this was totally expected:
Mohamed Mohamud's defense team has asked a federal judge to put a muzzle on U.S. Attorney General Eric Holder.
The nation's top prosecutor has commented publicly at least twice in recent weeks about the criminal case against Mohamud. The 19-year-old Somali-American is accused of plotting to bomb thousands of Christmas revelers at Portland's Nov. 26 tree-lighting ceremony, a plot thwarted by an undercover FBI sting.
Let's take a look at the relevant ethical rules under the ABA Model Rules of Professional Conduct. First, Rule 3.6 states in relevant part:
Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
One of the official Comments to this rule notes that "Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech."
Rule 3.8 speaks specifically to prosecutors:
The prosecutor in a criminal case shall . . . (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
I've already questioned AG Holder's assertion that there was no entrapment because Mohamud allegedly had many chances to walk away. It seems like he likes to make these sorts of extrajudicial statements in high profile matters. With regard to the as-of-yet unfilled plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York, AG Holder declared that:
"What I told the prosecutors and what I will tell you is that failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result."
This sounds pretty lame -- "failure is not an option"? It's one thing to declare your belief in the government's case and leave it at that. It's another thing to declare that the result of the trial is foreordained. With regard to the Mohamud case, Holder most recently gave a speech in which he declared:
I make no apologies for the how the FBI agents handled their work in executing the operation that led to Mr. Mohamud's arrest. Their efforts helped to identify a person who repeatedly expressed his desire and intention to kill innocent Americans. As you may have read – and as the affidavit alleges – Mr. Mohamud chose the target location months in advance; provided FBI operatives with bomb components and detailed operational instructions; and repeatedly refused to change course when he was reminded that a large crowd – including children – would be in harm's way.
Because of law enforcement's outstanding work, Mr. Mohamud is no longer plotting attacks. He is now behind bars. And he will be brought to justice.
Those who characterize the FBI's activities in this case as “entrapment” simply do not have their facts straight - or do not have a full understanding of the law.
The defense may characterize this case as "entrapment." (Indeed, it's hard to see any other viable defense.) Does the defense not have its facts straight, or not have a full understanding of the law? That seems to be the implication.
(Ironically, the Oregonian's editorial page commended Holder's speech, arguing that Portlanders need to hear this "full-throated defense of the FBI's actions.")
Back to the Model Rules. Based only on the defense motion and without seeing the government's response, I think the defense has at least made out a reasonably good case that Holder's statements go beyond what is permitted in Rules 3.6 and 3.8. It certainly doesn't seem to fit within the safe harbor provisions of Rule 3.6(b).
Presumably the government will argue that the defense opened the door to Holder's statements by bringing up the entrapment defense in the first place, thus necessitating a response. To be sure, the defense doesn't appear to have asserted that it was entrapment. After the arraignment, defense lawyer Stephen Sady said that "a quite sophisticated government agency had been 'basically grooming' the individual and . . . there was 'potential for entrapment.'" Therefore, the defense might respond that it was not necessary to refute what was simply the identification of an issue.
What's especially interesting is that the defense motion targets only AG Holder. Perhaps that's because U.S. Attorney Dwight Holton has been circumspect, having not apparently issued any public comments since the end of November.