Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, October 15, 2005

Fitzgerald and Delay Grand Juries: The scope of the inquiry broadens

One thing that surprises people is how wide a grand jury inquiry can go.

The Delay and Fitzgerald grand juries are no different.

Some in the DNC have requested Prosecutor Fitzgerald release all the grand jury indictments to the American public.

I would hope that this request for "public disclosure" is made with the best intentions.

We can ill afford to rush the release of allegations of criminal conduct. It would be a shame, after all these years of abuse and turmoil, for the work to be compromised.

I would hope that the disclosure, if it is made, is made at the same time.

My concern is that this Congress and Executive Branch have demonstrated a consistent pattern of leaking information.

It is ironic how easily information can be gleaned when "Congress really wants to know," but out of the other side of the mouth, Congress whines that "it was mislead about the WMD."

This appears far too convenient.

I am also concerned that, for whatever advantage, some in the Congress may choose to selectively provide advance information to selected personnel.

We have seen this happen before. Of late, there is an advantage for Congress to release information, especially when there is a political advantage.

But there is also an advantage related to campaigns. Those media outlets that have the best connections may use their access to get advance notice of what is to be released.

In turn, I suspect the Congress is calculating how to use this information to their best advantage.

But let's consider how Congress is actually using the information it currently has at its disposal. Has the information provided in re Louisiana and DHS before Katrina translated into a better result? I think not.

Rather, unless there is a credible showing that justice will be served or advanced, I'm more inclined to keep the information private until it is safely preserved and can withstand the muster of the court.

There is little reason to demand quick and speedy disclosures when the Congress, as of late given the inconvenient weather, has done little to mandate this requirement.

Indeed, some would like to say that in the vague "public interest" we "need to know." Surely, the Congress would not dare to cloak themselves in the flag of "public interest," only to use that opening to then provide their favorite media some special favor.

I would also hope that given these imminent disclosures, the public take careful note of who is citing "unnamed sources" from the Congress.

We have every reason to demand they cite their sources. Recall, this case is about smearing; let us not then turn our backs on the underlying cause of action, only to justify more smears based on, wait for it . . . leaking of information.

It is problematic when there are ongoing investigations, and those results are prematurely released.

One could reasonably ask what the purpose of these disclosures are. If they are not to serve justice, and contrary to the Grand Jury rules, then how can we say that the "public interest" commands the release?

Clearly, given the Grand Jury rules to the contrary, that the actions are to remains secret, and then Congress has already stated what the "public interest" is: That the information remain secret until there is a lawful requirement that it be disclosed.

Now is not the time to change horses; nor is it the time to ask for special privileges that are not within the existing statutes. Indeed, it may be desired to have access to that information; but when Congress has not imposed that requirement, there is no public "right" to be part of a legislative process.

The only "due process" the public has is in a judicial one. We are not there, yet.

Thus, to suggest that the "due process of public interest and rights" commands that some disclosure occur . . .that is all very interesting, but somewhat devoid of legal foundation.

I find it curious, in the absence of a disclosure, how any defense attorney can credibly say what did or didn't happen before the grand jury. Supposedly those proceedings are to be secret.

Given the leaks and public discussion of ongoing investigations, I speculate to the credibility of the sanctions on those who have access to this information. Either the grand jury can have the free reign to move without fear, or they cannot.

If there are leaks, then they should be sanctioned.

If there are no sanctions, but the leaks are real, then I have reluctance to tip my hand in favor of the grand jury process or the Congressional direction that the grand juries fall under specific rules.

Congress has created these rules for a purpose: So that Grand Jury Members can deliberate without fear or favor.

I assure you, given these leaks and alleged statements that testimony and evidence was or was not probative, I have doubts about the assurances that I as a Grand Jury Member could in the future freely deliberate on an issue.

This is not my problem. It is a defect in the system. It is a fault which needs to be remedied.

Either the grand juries are going to exercise discretion; or they are not.

Either we as the public, when serving on a grand jury can trust that our deliberations are secret, or they are not.

The rules are clear.

What is not clear is why, despite these secrecy rules, Grand Jury members are not speaking about information, evidence, and other matters.

More to the point, I have a problem when on one hand the Congress calls for rules to protect and insulate Grand Juries from pressure; but now the information from these grand jury deliberations it then brought as evidence of wrongdoing by the Grand Jury and prosecutor.

As I have said: Either the grand jury rules are there to be enforced, or they are ignored.

If a prosecutor, by relying on secret Grand Jury deliberations, can then use the reaction of a prosecutor to the Grand Jury decision, as a basis for a cause of action against a prosecutor for malicious prosecution, I doubt whether the rules are real, or that the deliberations are truly secret.

Again, either the Grand Jury deliberations are secret, and I can in the future move without fear or favor during these deliberations; or they are not secret, and I run the risk that what I may say, focus on, ignore, or openly state may be used as a basis to bring a cause of action against the prosecutor I am working for.

I do not appreciate being put in a position where I, if I dare to freely deliberate, run the risk of having "my reaction" used as the basis by defense to then go after the prosecutor.

That is not reasonable. If we, as a grand jury, have decided that the evidence swings against the defendant, then that should be the end of it.

I do not appreciate the fact that my deliberations, or the reactions of the prosecutor, during that grand jury proceeding, then becomes the basis for the defense to assert that the indictments are unwarranted, or that the prosecutor is engaging in malicious prosecution.

In turn, I am outraged that at a time when justice is turned upside down to justify illegal wars of aggression, these grand jury members then have their deliberations and the reactions of the prosecution turned into a public debate, and, in turn, a basis to throw the entire process out the window.

As I have said: Either the grand jury deliberations are secret and I can move without fear; or they are going to be exposed, and our decision as a grand jury is going to be the basis to then go after the prosecutor, who has no say in the indictment.

This is the work of the Grand Jury. It is appalling, despite the rules of secrecy, that the work of a grand jury can by undone, questioned, or publicly debated simply because defense counsel wants to throw a monkey wrench into it.

I ask that the Congress and courts come to a clear consensus of what you want the Grand Jury members to do:

Do you want us to worry about whether "our reaction" or "the reaction of the prosecutor" during these supposedly "secret deliberations" becomes part of the public record?

Does the Congress expect the Grand Jury members to "not think about" the prospect that their work will be second guessed by those who were not part of the deliberations?

Does the Congress want the prosecutor, who has no say in the grand jury indictment, to then have our deliberations or the prosecutors’ reaction to our deliberations, be part of a threat by defense to throw mud at the prosecutor with a claim of "malicious prosecution"?

Should we have rules that strictly bar defense counsel from relying on what may or may not have happened during the grand jury as a basis for a cause of action?

Should attorneys be specifically barred from using grand jury statements, deliberations, or prosecutor "reactions" during those deliberations and indictments, from being used by defense counsel to accuse the prosecutor of malicious prosecution?

At this juncture, I was under the impression that the prosecutor really didn't have a role in the indictment. It is the product of the grand jury.

Does this mean that the defense counsel, by relying on our secret deliberations, is then going after a convenient target not out of the interest of justice, but out of "no other mud to throw at the wall"?

I would prefer, as a grand jury member, to see the following:

Clear rules on whether the testimony, evidence, and deliberations are or are not part of the public record;

Whether the deliberations and prosecutor’s reactions to our indictments and deliberations are secret;

Whether it is permissible for defense counsel to use supposedly "secret" grand jury deliberations as the basis to go after the prosecutor, who has no say over what the grand jury does or doesn't conclude;

Whether the bar association should or shouldn't sanction defense counsel for going after prosecutors, when the real source of the indictment, the grand jury, is above the reach of sanctions;

At this point, if I were to serve on the Grand Jury, I might have some doubts as to what kind of mess I might be creating for a prosecutor who is simply doing their job.

Indeed, at this juncture, given the lack of public sanctions against anyone for leaking any secret information, I could conclude that the "disclosures" and "reports of what happened" and the "basis for accusing the prosecutor of malicious prosecution" are merely hot air.

On the other hand, if there are no sanctions against defense counsel for using this "secrete grand jury testimony, action, and deliberations" and counsel does bring a cause for action against the prosecutor for "malicious prosecution," then I doubt whether the grand jury "rule of secrecy" really means anything, or whether the Grand Jury secret deliberation process is truly above the threat of sanctions.

IN short, I question whether the basis for the claims against the prosecutor have any merit; and to recognize that they do have merit would undermine the public confidence in the system.

Bluntly, I can think of no credible reason why the courts have not already adjudicated on this matter in secret, and concluded that the issues raised are frivolous.

Thus, barring Congressional language that changes the existing Grand Jury rules, I conclude that the defense allegations about "what did or didn't happen" at the grand jury is based on inadmissible evidence, and should be sanctioned by the court as being a waste of time, frivolous lawsuit, and a motion that lacks merit.

Let me summarize my concerns.

Based on what I am seeing, I am reluctant to believe that the Grand Juries are free from public pressure. I am less inclined to believe that the Grand Jury members are free from forces that would make then reluctant or dissuade them from being involved with the Grand Jury process.

I would like to see greater assurances that the deliberations and events at the grand jury process are secret, and cannot in themselves be used as the basis for motions by defense in re malicious conduct.

There should be no public discuss about matters that are supposed to be secret. In my view, when a defense attorney makes a motion on the basis of that secret process, then the process is not secret, but subject to examination.

There should be no reason that any motion be accepted by any court when it relies on information that should be privileged before the grand jury: The deliberations.

Unless I see something that provides swift sanctions on counsel who use secret testimony and deliberations as the basis for "malicious prosecution claims," I have little confidence that the Grand jury deliberations are truly insulated or protected.

I find little to suggest there is any merit to any claim of "prosecutorial misconduct" give that the claim hinges on what is arguably secret and inadmissible information.

If these motions rely on information that is arguably not admissible, despite the apparent "inability to use that information for purposes of subsequent litigation, in that it is not probative," I would like there to be a better discussion with former grand jury members whether they would be reluctant to participate in future grand jury deliberations. Until I hear otherwise, I conclude given the present circus and arguably frivolous motions by defense that other grand jury members would be reluctant to participate in these proceedings. Further, I am less inclined to believe that these deliberations may not someday used by defense counsel as a basis for a subsequent cause of action.

If this is true, then I fail to see how the grand jury process can credibly be argued as being insulated, protected, or above the reach of outside pressures.

Further, once the grand jury returns indictments, it is unacceptable, barring specific Congressional language, that one group or party make political hay out of the process to suggest the "public interest" demands the release.

When these pleas for disclosure come from the very entities that are notorious for leaking the results of ongoing, unfinished, and still baking investigations, and this information is released to the media with the promise of remaining anonymous, I have doubts whether the grand jury process is going to remain above the political calculus.

Rather, if there are demands that the grand jury indictments be released in a manner or form that is contrary to what the Congress has specifically stated, then I question "why now" must we "bow to the pressure of the public" when the Congress, in their wisdom, has the opposite requirement: That the information and indictments be reported in a manner that may not fall within the bounds of what these subsequent pleas request.

I have my doubts if the information is first given to Congress, that it will not be leaked to special interests, prized allies in the media, or selectively leaked before the specified deadline. I believe that the request for a change in disclosure is partially related to a desire to have public relations, ratings, and jockey for positions for the sole purpose of granting to some special access to information, with the hopes that, for the special access, that these media outlets will return special favors to the sources of these leaks.

With time, we may come to understand to what extent, if any, outside media are or are not engaged in money launder; or have inappropriately filed 501(c)3 applications for the purposes of avoiding paying taxes on funds that would otherwise be reportable as direct or indirect contributions in the Federal Election Campaign process.

It does seem curious, despite these clear Congressional rules that somehow today we are asked to believe that something must change. I call on the public to be vigilant, and note carefully which media may be given special access to these results, and how the selective leaking of this information could be used to increase ad revenues, and subsequently translated into campaign contributions.

Moreover, I encourage the public to closely examine the coverage of those who are left out of the leaking; and compare it with those media outlets that claim special access to ongoing deliberations.

Your goal should be to examine whether the process has been compromised; whether the leaks are real; and whether the current sanctions on grand jury leaks are to be believed as being credible deterrents to meddling with Grand Jury proceedings.

The rules that currently exist need to be enforced, followed, and adhered to. Deviations from those rules need to be better understood.

Grand jury members need to know whether the information will be kept secret and clear in their own minds whether these rules and sanctions are going to be enforced to impose discipline, and used as a shield against outside meddling.

I urge the Fitzgerald Grand Jury to consider reviewing the information related to these requests for information; and examine whether they are made in good faith to get information, or whether, by disclosing the information in a manner that may be contrary to the existing rules, that you feel you are under pressure to arrive or not arrive at a specific conclusion.

I encourage the Grand Jury to have a say in the process of deliberations to examine whether these rules are being ignored, not examined, or selectively enforced for political gain.

Moreover, I would hope that the Grand Jury, should it consider the evidence related to these requests, not fear looking beyond the current political calculus and seek information on whether selective leaking of these disclosures is part of a pay to play program between the Congress and the media.

It does little to inspire confidence in the rule of law and grand jury process when leaks are occurring. But it is more disturbing when, the media also under those restrictions, chooses to afford itself immunity and continue to publish information with the hopes of carrying favor with targeted individuals and amass greater financial wealth which to turn back to those who leak the information.

I hope that the disclosures, when made, are made to all according to the rules of law and procedure, not according to the current excuses of the day.

The Grand Jury members, in my view, should be afforded the power to examine whether the proceedings have been compromised; and to what extent, if any, the rules have been ignored to carry favor for purposes of adverting, public relations, ratings.

Further, the Grand Jury should, in my view, be tasked with the power to review whether the disclosures about the deliberations are related to ongoing investigations; and to what extent a pattern of previous leaking and public disclosures was or was not part of an orchestrated effort to influence either the Grand Jury process or the public debate in making decisions about which media outlets are or are not to be regulated and sanctioned per the existing Federal Election Rules.

The grand jury should note efforts by the media to intimidate observers to not report allegations of kickbacks or money laundering;

Review allegations related to specific Congressional staff members who have engaged in leaks related to the Grand Jury deliberations;

Formulate in their own mind that pattern of conduct related to the leaks in other situations;

Use the existing relationships between the Congress and the media to understand what information was most likely leaked contrary to the Grand Jury rules;

Examine evidence of leaking information on the promise of "non disclosure" when no such promise could be relied upon, but that promise was then subsequently used as a "justification" to not cooperate with the prosecution in identifying the source of the alleged violations of the grand jury rules and pinpointing who and when the information related to an ongoing investigation was released;

Review the pattern of conduct that Congress has in interacting with the media;

To what extent the media transcripts are or are not available for Congressional staff to review prior to official release;

To what extent Congressional staff members are or are not involved in the dissemination of these messages and news articles prior to their official approved release time;

To what extent Congressional staff members have known that information has been leaked contrary to the Grand Jury rules;

To what extent the information provide to the media was made on condition that it be anonymous, in exchange for favorable public comments by Congressional staff members of those media outlets;

To what extent the promise of "not identifying the source" is protected, when the release of that information is contrary to Grand Jury rules or rules related to protection of sensitive information, agent status, or related to ongoing and uncompleted investigations in either the Department of Justice or by the Congressional Committees;

To what extent the charge of "prosecutorial misconduct" is based on information leaked from the grand jury, but this information is not probative, secret, and cannot be used as the basis for defense delays;

To what extent defense hopes to intimidate witnesses at the grand jury to not freely deliberate;

To what extent the Grand Jury members are dissuaded from freely speaking their mind because they fear the prosecutor, rightly or wrongly, will be targeted for actions only the Grand Jury can take;

To what extent the information for that motion before the court based on secret information that is not admissible, and warrants review as to whether the motion was actually an effort to obstruct justice, intimidate the grand jury, or otherwise affect the free and fair deliberations of the grand jury;

To what extent the defense action is most likely related not to a genuine defense, but unlawful harassment and retaliation against the Grand Jury; or is an effort to intimidate other grand jury members in the future from reviewing the evidence freely and fairly without favor or fear to what extent their deliberations may or may not be used outside the court to affect prosecutors;

To what extent the rules related to the "grand jury deliberations being secret" are being ignored, and defense counsel continues to use this information knowing the information is secret, and is doing so with the express objective of intimidating this and other grand juries; and

To what extent the conduct tends to inspire or undermine confidence the information will be protected, and the Grand Jury members feel free and clear of all outside pressure to do or not do what they have been lawfully charged to accomplish.