Lawyers for former Bush administration whistleblower protector Scott Bloch today formally asked a Washington federal judge to reconsider her refusal to allow Bloch to back out of his guilty plea to a misdemeanor contempt charge.
Bloch asked to withdraw from the deal, which called for probation, community service and a fine, after Magistrate Judge Deborah Robinson said the crime of contempt of Congress carries a one-month mandatory minimum prison sentence.
Bloch, who ran the Office of Special Counsel under President George W. Bush, said in a recent affidavit that he would not have pleaded guilty had he been informed the charge is not probation-eligible.
Robinson’s ruling in February came nearly a year after Bloch pleaded guilty in U.S. District Court for the District of Columbia. Last week, Robinson refused to allow Bloch to withdraw his guilty plea, saying he was fully aware of the provision in the law that said the charge requires a mandatory stint in jail.
A lawyer for Bloch, Winston & Strawn partner William Sullivan Jr., said in court papers (PDF) today that Robinson failed to tell Bloch that contempt of Congress carries a mandatory-minimum prison sentence. Judges are required to tell defendants about any mandatory-minimum term of incarceration.
Robinson took an “exceedingly rare path” in refusing to let Bloch withdraw his guilty plea, Bloch’s attorneys said.
The defense lawyers point to an opinion in 2003 from Chief Judge Royce Lamberth of Washington’s federal district court in which he said a defendant “almost always” should be allowed to withdraw if the plea colloquy between the defendant and the judge was not in “substantial compliance” with federal rules.
Sullivan said the defense and prosecution never told Bloch that he would receive probation—only that the charge is probation-eligible. Bloch’s lawyers said their position stems in part from the handling of two high-profile cases in Washington in which the defendants received probation for contempt.
Bloch’s lawyers today questioned Robinson’s “complete failure” to discuss those two cases, including the recent prosecution of baseball star Miguel Tejada, whose charge stemmed from the congressional investigation of performance enhancing drugs in Major League Baseball.
Sullivan said Bloch’s belief that probation was a realistic possibility was central to his decision to plead guilty in the first place.
Robinson today in court set Bloch’s sentencing for March 30, giving the lawyers a chance to file more court papers addressing why Robinson should let Bloch start over. Prosecutors have not opposed Bloch’s effort to withdraw his guilty plea.
Bloch’s attorneys face one other hurdle: convincing Robinson that she has the authority to even entertain a motion asking her to reconsider her ruling.