Analysis of a smear job: Anti-Brownlee robo-call unethical, illegal, and invalid.

As I mentioned in the last post a set of anti-Brownlee robo-calls have been hitting delegates to the 2009 RPV convention this weekend. It’s being reported at most of the region’s blogs including here at the Star City Harbinger where a recording is available if you haven’t gotten the call already.

There is no doubt that the use of a toddler to spew political mudslinging is unethical. What’s also unethical is the clear obsfucation of the facts in the case being implicated to say nothing of the fact that the call doesn’t actually say what the case was about. There’s no question it’s illegal. As Salem Republicans writes on the Roanoke Valley Republicans blog, it’s in clear violation of 2 Virginia laws in black-letter fashion. JR Hoeft over at Bearing Drift raises questions in this blog post titled, “Anti-Brownlee Robocall – Unethical? Illegal? Valid.” We’ve already addressed the first two.

How about the 1 conclusive descriptor he did use? “Valid.” From his post:

Not having heard the complete call, I don’t know how “scurrilous” it is. If it had a child doing the calling, that is pretty appalling. Not having the dislcaimer is certainly unlawful.

But basing the call on the candidate’s record and bringing that record to light? Pretty valid.

Only if the record being brought to light is the complete one, unfiltered by the agenda clearly on display in the scripting of the call and, I might add, in the website Hoeft chooses to link to as his source material. In suggesting the identity of the case in question that generated the call material, he links to the site of a person clearly supporting one of Brownlee’s opponents. Brian Gentry’s is the definitive anti-Brownlee collection. His role in spreading the myth of Brownlee’s purported wrongdoing in actually doing his job as a US attorney while also serving in the Reserve is well-known in the GOP and his sloppy handling of the facts in that story should make anyone cautious about accepting his word in any other. Turns out this one’s no different.

Hoeft suspects the robo-call was in reference to a case Brownlee prosecuted wherein Ronald Blair Testerman was accused of illegally selling firearms to out-of-state residents and for selling firearms without a license. While Gentry claims, and Hoeft appears to accept on face value, that Testerman was just selling a few of his personal guns at a local swap-meet point the jury in that case most clearly didn’t buy the argument. While Hoeft appears OK with just linking to Gentry’s opinion piece on the matter, I went looking for actual court documents. This link takes you to the PDF file of a court opinion served up at the web site of the Virginia Western District  Courts. In it, the trial judge, Chief US District Judge James P. Jones, sets out his reasoning for the sentence he imposed on Testerman.

Now, Gentry’s site and the robo-call would have you believe that Brownlee callously went after some old man pleasantly engaged in a person-to-person sale of a couple of personally-owned firearms and that this shows Brownlee to be some kind of anti-2nd Amendment gun-control nut. The description of the case Gentry offers misses a couple of key points. First, the operation was done under the control of BATFE. Second, while the jury acquitted Testerman on the charges of selling the guns to non-residents, they convicted him on the charge of selling firearms without a license. But wait, says Gentry – you don’t need a license to sell personally-owned guns between private citizens. True. But you do need one to sell guns commercially and the jury found that Testerman’s assertion that he was only selling his personal guns to be unpersuasive.

It might have had something to do with Testerman’s admission that he “had used a friend’s federal firearms license number to purchase guns directly from wholesalers.” That, in itself, isn’t legal and, when you combine that with the ATF’s discovery of 75 guns at Testerman’s home, it makes a compelling case that he was selling guns commercially. Doing that without a license is illegal. Prosecuting illegal acts is the job of a US Attorney. It’s not a sign of him being anti-2nd Amendment at all. It’s a sign that he takes the law seriously, a quality you like to see in an Attorney General.

But you won’t find out any of this if you rely on Gentry’s one-sided telling of the story.

You also won’t find out that Brownlee’s attempt to get a 33-month sentence for Testerman wasn’t Brownlee being vindictive. Again, from the Judge’s opinion:

Based on the Presentence Investigation Report (“PSR”), I determined that Testerman had a Total Offense Level of 18 and a Criminal History Category of I, resulting in an advisory guideline range of 27 to 33 months imprisonment under the Sentencing Guidelines.

Emphasis mine. Brownlee was following the sentencing guidlines based upon the facts of the case, not on some capricious, anti-gun whim. And it’s not up to Brownlee whether that sentence gets applied or not, it’s up to the judge. Read the opinion document if you’re interested in what the judge ruled and why, but the fact is that Brownlee did exactly what we ask of our prosecutors: he followed the law and the guidelines without letting his personal likes and dislikes make his decision for him.

The use of an anonymous, ambush-style robo-call is a sign of desperation. Deliberately omitting key details out of what is alleged to be a reporting of the facts is a sign of desperation. We might not know who, specifically, is so desperate as to launch that robo-call, or for whom Gentry is really working but we know why they’re desperate. John Brownlee is the best candidate for the GOP nomination for Attorney General and most Virginia Republicans know it.

4 thoughts on “Analysis of a smear job: Anti-Brownlee robo-call unethical, illegal, and invalid.”

  1. You said, “Ronald Blair Testerman was accused of illegally selling firearms to out-of-state residents and for selling firearms without a license.” Riiiiiiight. So how is this prosecution constitutional if the federal government has no general police power? Simply because he sells to “out-of-state” residents without a license doesn’t make this a federal case.

    Brownlee had the power to do justice–he had the power NOT to enforce a silly and unconstitutional law. He didn’t. For shame. He can’t defend it. That a jury didn’t buy “the” argument is no surprise given the proclivity of the courts and prosecutors to control what the jury hears. And, simply because there’s a sentencing guideline? That’s your argument? Then why didn’t Brownlee argue against the sentence guidelines? He could have but he was concerned only with a conviction, not justice. But of course, you’d actually have to practice law to understand this.

  2. not only is brownlee the best choice for AG, he’s the most electable as well. what’s not to like & support? brownlee for AG.

  3. Anonymous Speech: “Simply because he sells to “out-of-state” residents without a license doesn’t make this a federal case.”

    Are you serious? By definition, crimes that deal with interstate matters – in this case the sale of a firearm from a resident of 1 state to a resident of another – is precisely what makes it a federal case. As far as it being unconstitutional, you’re implying that the federal government has no power to enforce federal law? That’s going to come as an interesting revelation to the FBI, BATFE, US Secret Service, Immigrations/Customs Enforcement, etc. Considering that actions of all of these agencies have been involved in cases that have come before the Supreme Court – you know, the group whose job it is to make an actual determination as to whether something is constitutional or not – and none of their “police power” has ever been ruled unconstitutional, I’d have to say your opinion on the matter seems to be flawed. Since your assertion that the law is unconstitutional is, well, less than compelling, your further assertion that Brownlee should have ignored it doesn’t follow.

    And yes, it’s my argument that a member of our law enforcement apparatus should be expected to follow the laws and guidelines we’ve laid out for them. You, on the other hand, seem to advocate our prosecutors indicting people or not based on their own assessment of whether they like the particular law or not. What, perhaps based on their “empathy” with the situation, hmmm?

    Get serious. The rest of us are and we can see Brownlee is the man for the job.

    Thanks for stopping by.

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