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• Wednesday, January 7, 2009 12:01 PM

  GG

  Glenn, while I generally agree with most of your points in this piece, and am also fairly sympathetic to Tamm's plight, I take issue with a couple of your points:

  First is that you note the recent date of the December 31 letter and say that "it demands an answer from Tamm by January 7 -- just under two weeks before Obama is to be inaugurated --..." I take your implication to be that DoJ is somehow trying to quickly indict Tamm before the Bush administration leaves office.

  However, the Newsweek article specifically states the opposite:

  Paul Kemp, one of Tamm's lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm's case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office.

  You go on to say that the DoJ letter "then threateningly warns: "if I do not hear from you by that date, I will assume that Mr. Tamm is not interested in submitting to a voluntary interview or testifying before the Grand Jury": an obvious threat that he may be subpoenaed and compelled to do so."

  I could be wrong about this, but as a prosecutor this sounds to me as if DoJ has moved from regarding Tamm as a possible defendant to a potential witness.

  I try to keep my defendants out of the grand jury because they get to explain what they did and often you will have jury nullification - they will dismiss the case (and there's nothing the prosecutor can do about it) if they think if they think the defendant was right to do what he did, even if he did break the letter of the law. I much prefer to build my cases on other witnesses' testimony.

  Also, I don't see the inclusion of the word "voluntary" in the letter (that you bolded) quite as sinister as you appear to. Obviously, he can't be compelled to incriminate himself in the grand jury. He can, however, be compelled to testify (if a judge agrees he is a material witness to a crime) but only if he is granted immunity.

  Also, you say DoJ hounded Tamm to the point of depression, but the Newsweek article makes it pretty clear that Tamm and sunk into a pretty serious depression by the time the investigation really got rolling, after just one phone call from Agent Lawless that Tamm refused to take.

  In sum, I agree that the whole fact that he is being investigated is wrongheaded and with the ire you express towards the ones I consider real cuplrits here - spineless Congressional Democrats - but think you somewhat unfairly characterize the investigators as more overzealous and abusive than I believe they are. But then, I only have the Newsweek article to go by; you're in touch with Tamm personally, and probably know a lot more.

  More typical nitpicking from Jestaplero, I know, but it's what I do.

  —Jestaplero Read Jestaplero's other letters
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