The Government’s argument–that Zach understood the 404(b) proof and wasn’t mislead about it, as evidenced by his own pleading– is really more about the merits of the petition itself and less about the disqualification issue. But it’s a strong argument about the merits of the petition. Add that the my reaction to this issue from his summary judgment motion– that, rather than push for a hearing on the 404(b) issue after his father and Backstrom entered pleas– and this issue starts to look less stellar.
The response makes a few quick points: That the suggestion that Norman and Dawson mislead the grand jury by not correcting Balducci’s mistaken testimony about the November 1st meeting is a red herring (essentially) because the only question would be whether, absent that mistaken testimony, was there still enough evidence to indict; that it is simply not true that “most fundamentally, in 2008 Mr. Norman admitted that the bribery case against Zach Scruggs is not supported by probable cause;” that the Justice Department guidelines “permit the United States Attorney to authorize variances from those guidelines. In this case the United States Attorney specifically approved the plea to the lesser charge” and confer no right on the defendant.
The response concludes by arguing that the rule that about an attorney-witness should not apply to post-trial proceedings but only at trial