August 12, 2008

More on Mary Beth Buchanan's (US attorney) improper legal behaviour

Improper FBI Access to Wecht Juror Files Taints Prosecutor Reviews of 9-11 Investigation

[Ethics, anyone? Not likely it seems when the US Department of Justice wants to defocus from its own crimes, as evidenced, in the Wecht case as well as the Seligman and the firing of US attorneys. They and the White House think they really are above the law. So here we go! Let's those of with an eye to justice keep investigating the official "investigators"/prosecutors in the US DOJ. - V]

By testing - from TPM Muckraker
Government Fails To Address Why FBI Agents Had Access To Wecht Jury Lists

The rest of the story behind the Wecht Jury lists relates to the emails and the files. The Western District of Pennsylvania was brought into conduct a review of a high profile terrorism case. The improper FBI access to those juror names would show the prosecutors -- providing an "independent" review of the District's attorneys -- were not impartial, as required.

The questionable FBI access is only part of the problem. The question is how long Buchanan has known about the questionable file access; and why she didn't ensure her office recused itself from the 9-11-related misconduct investigation. The public needs some assurances from the Buchanan-DOJ camp on what they were really doing with the files containing the Wecht Juror names.

There is no reasonable explanation for why the names of the prospective or seated jurors were released to anyone outside the counsel. There is no language permitting anyone other than the government counsel to have access to these seated juror names. Critics have said that the court orders permitted changes or disclosures. That language does not exist.

The 3d Circuit reminds us what legal standard applied to the Wecht Juror names: There was no provision to to permit anyone other than counsel to have access these lists:

3rd Circuit (Citations omitted):
"The order further provided that “any and all juror lists generated by this Court for use in the jury selection process shall be deemed confidential and property of the Court and shall not be removed from the Court at any time.” . . .

The jury selection lists used during the jury selection process were only available to counsel. Critics have provided no language permitting anyone other than counsel to have access to the prospective or seated juror lists:

3d Circuit: "The juror lists were available only to counsel who were required to execute a receipt for the list and to return it upon completion of jury selection."

There is no language permitting anyone other than counsel to have access to the lists. The 3d Circuit made changes to how the media would be notified of the jury names, but there were no changes to any rules in how the juror names were or were not available to counsel.

This language has no relationship to how the FBI agents got access to the seated or prospective juror names:

"Schwab, however, released jurors' names in a list that did not differentiate from those who actually served and those in the overall jury pool. He also redacted the actual jurors' names from the transcript of the jury selection process."

There is no adequate explanation for how the FBI agents got access to the information only provided to the counsel. Critics have pointed to no language or court order which specifically authorized non-counsel to get access to these prospective or seated juror names. We've shown the method to supposedly "derive" the names of the seated jurors from the list of prospective jurors is inadequate.

The FBI agents, in defiance of the court orders, had access to information they were not authorized access. The government's explanations have not provided a coherent reason why the FBI agents were doing what they were doing.

If the FBI agents were doing nothing wrong, then the government should not have said the FBI agents were "scheduling" appointments. There is no evidence the US Attorneys office was using the FBI agents for a scheduling function. The US Attorneys office has not explained why counsel did not participate in the FBI-Wecht Juror home meetings.

Jury polls are judicial actions. FBI agents are not part of the Judicial Branch. Whether a jury poll was or wasn't done during or after the Wecht trial is unrelated to whether executive law enforcement can or cannot access information the court has sealed from non-counsel. Even if the court "failed" to do a final jury poll, that has no relationship to whether that judicial failure would trigger an executive branch action or follow-up.

Critics have not adequately discussed how long the prosecutors have had a formal process to review systemic trends across general cases. The prosecution would have us believe that a focused review on a specific defendant, not case-type, was appropriate.

No one has provided a copy of the e-mail, policy, or other controlling language establishing these non-prosecutorial reviews; or justifying why the FBI agents should be involved with a specific case or specific defendant.

Critics have failed to point to a specific date when the prosecutors had either a formal or informal process to review general case trends with classes of case types. It is misdirection to argue that the jury polls are the same as post-trial prosecutorial assessments; or that these prosecutor reviews have always been done.

- How long have the prosecutors been doing these post-trial reviews; where is the copy of the email or policy which established this specific review procedure?

- Have the post-trial reviews always been mandatory; or were there some reviews which were discretionary?

- Was there a reason some classes of cases were not reviewed?

- Who said FBI agents gather information to do a risk assessment of adverse prosecution trends?

- Why is the Wecht-defendant targeted for this post-trial review; but other reviews have not focused on a specific case-defendant, but on a general class of cases?

The US Attorneys office has issued inconsistent statements. There problems were identified in the DOJ IG report, and raise doubts about Buchanan's credibility. The government and Buchanan have not adequately explained why Buchanan omitted important information, or why she was not investigated for deception through omission when she testified before Congress, and as reported by the DOJ IG into their investigation.

Critics have not adequately discussed the timing of the emails, or what risks there might be if the Western District of Pennysylvania's Attorney's Office was involved with any improper file transfers. It would be a problem, while the FBI agents were given improper access to the Wecht Juror names, for the government to use the US Attorneys office to investigate in a separate case the DC office for improper file transfers. The government has not adequately discussed the implications of improper file transfers in Pennsylvania; and how they might relate to required recusals for other investigations.

The public needs assurances about the file reviews the Western District did; and receive confidence Buchanan was not aware of any improper file transfers that would taint her office's investigations in other high profile cases. It would be a shame to learn, adding insult to injury, for the 9-11 victims to learn the government improperly conduct an investigation into prosecutorial misconduct related to the 9-11 prosecution.

- How long has Buchanan known about the problems with the file transfers; and the questions this would raise about whether her office was or was not adequately tainted on problems with file transfers?

Incomplete Buchanan Denials Mirror Rove

Critics have not adequately addressed the failure of the government to broadly deny that anyone was involved with any direction to engage in any politically-related prosecutions. As with Rove's incomplete denials, Buchanan's incomplete denials did not exclude the possibility the President was providing direction.

The public needs a definitive statement of complete denial from Buchanan -- in her own words, not coordinated with DOJ -- that she is not aware of anyone -- including the President, of -- providing any direction or leadership to prosecute anyone for political reasons. Her statement needs to adequately explain why, despite this denial, Republican lawyers have provided affidavits discussing what they overhead about White House influence.

Buchanan's denial must broadly include the DoJ-DoD military analyst program, and adequately deny that she was aware of any communication, discussion, or meeting involving the military analysts, DOJ personnel, or anyone else connected with the White House in making any prosecutorial decision related to Wecht.

Public Statement Shows Non-Independence of DOJ

Buchanan has failed to explain why the language within her denial -- supposedly evidence of her independence -- matches language within a DOJ press release. It would be a problem if the US Attorney, through outside counsel, issued a statement designed to mislead the public about who was directing the political prosecutions. The DOJ IG raised a similar concern.

It would also be a problem if her counsel, as a government attorney, had previously issued a public statement designed to show independence and a commitment to reform, but that public statement substantially matched language from a previous US prosecutor. This would show, contrary to Buchanan's assertions, that the public statements were not linked with one office, but driven from the Department of Justice.

Buchanan, when she provides the statement, must disclose who provided input to that final release; whether she had any help from outside counsel; and what input, if any, she had from the DOJ, White House, or GOP staff in crafting this statement of denial.

Buchanan's Conduct Subject To Similar Admonishments

It would be a problem if the US Attorney was connected with anyone who previously made statements about the responsibility of US prosecutors to do things, but Buchanan is not adequately showing she is fully complying with these reasonable requirements.

It would also be a problem if Buchanan would have us believe that her incomplete statements to the DOJ IG were acceptable; but her counsel was linked with earlier admonishments against uncooperative witnesses. Buchanan and her private counsel need to explain why something less than full cooperation with the DOJ IG is acceptable; but her counsel did not agree on another legal issue.

Buchanan must address why her counsel would have one standard of cooperation for one class of investigation targets; but a different standard when it comes to Buchanan appearing before Congress. Cooperation should require a cooperative agreement on what cooperation means; not selective parsing for one audience or administration over another.

- What do Buchanan and her counsel think "cooperation" means today?

- Why is there a moving target on where incomplete cooperation is or isn't admonished?

US Attorneys Office Tainted By Improper File Transfers

The objective of Buchanan and the FBI re the Wecht jury names is to deflect attention from the emails showing that there was a problem with improper file access. This is a smokescreen from the integrity problem of asking the Pennsylvania prosecutors to conduct an investigation of
misconduct in DC that the prosecutors in PA were engaged: Improper file transfers.

It would be a problem if, when the FBI had improper access to the Wecht Juror names, the US Attorneys office in Pennsylvania was conducting a review of the DC office on improper file transfers.

Buchanan must explain what her concerns are with the FBI improperly accessing information; which cases would be jeopardized if the US government improperly transferred key evidence or files during any prosecution; and how this misconduct would jeopardize other high profile cases of interest to the United States.

It does not follow, in this supposed "war on terror," for the US Attorney to do nothing about Geneva violations; but then claim she is concerned about judicial independence. Her actions do not match her words, as the DOJ IG warned us. It would be a sham, on top of the failed combat operations in Afghanistan, to discover the prosecutions are at risk because legal counsel decided to cross the line on what evidence or files should or should not be transferred in defiance of court orders.

- Which terror-related cases are at risk because of improper file transfers?

- Which audits did prosecutors do that need to be re-accomplished?

- Which reviews is Buchanan aware that must be reaccomplished because her office didn't follow the court orders, and this conflict taints her office on whether they can or cannot independently review other reports of prosecutorial misconduct?

- Why wasn't the DOJ OPR and DOJ IG, rather than the Pennsylvania office, brought into the nexus to review the prosecutorial misconduct and improper file transfer?

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