Last time we checked in on Dan Choi’s free speech case against the White House, the judge and Choi’s legal defense team both agreed that Obama had used “vindictive prosecution” against Choi—that is, the government singled Choi out and gave him a harsher punishment than usual just because he repeatedly chained himself to the White House fence in protest of “Don’t Ask, Don’t Tell.” In response, government prosecutors said that “vindictive prosecution” defenses could not be used in this trial because such defenses have to be entered during pre-trial motions and not during the trial, as was done in this case.
They’re right actually, but perhaps sensing that the “vindictive prosecution” defense won’t fly, Choi’s lawyers have filed 59-page legal brief that basically compares what’s happening to Nixon’s Watergate scandal. The only problem—they’re nothing at all alike.
The Washington Blade explains why the comparison fails:
[According to the brief,] “the paper trail of this government persecution of Lt. Choi led – like the Watergate tapes snaked their way back to President Nixon – directly to President Obama himself, who was/is not only personally opposed to gay equality, but was, as the self-described legacy of Dr. Martin Luther King Jr., deeply humiliated by being criticized by Lt. Choi and others for enforcing discriminatory laws (like “Don’t Ask, Don’t Tell”) against gay Americans”…
[Choi's lawyer] has argued that a chain of e-mails between former gay White House aide Brian Bond; the U.S. Park Police, who arrested Choi at the protest; and the Secret Service indicates that the White House may have been involved in orchestrating the prosecution. But no evidence has surfaced to show Obama was aware of the e-mails, and prosecutors say the charging decision was a legitimate, legal action made by Park Police.
Basically, Choi’s lawyers screwed up by not thinking of this defense earlier and now that the prosecution has filed a “writ of mandamus” asking a higher court to deny the tardy defense, they have resorted to a heretofore baseless comparison between Obama and Tricky Dick.
It ain’t gonna work, boys. And calling the President a 70s era crook ain’t gonna help things either.