In white collar cases, prosecutors often stress the signs or "indicia" of fraud inherent in a given defendant's conduct. In the FBI/DOJ investigation of Secretary Clinton we have several signs of incompetence and/or highly irregular conduct on the part of those in charge. The one that stands out most clearly to anyone who practices white collar criminal defense was the decision to allow Cheryl Mills to attend Secretary Clinton's FBI interview. Competent prosecutors do not allow a key witness to participate as an attorney in an FBI interview of the main subject. It just isn't done. It isn't a close question. It is Baby Prosecution 101. Director Comey's attempt to justify this decision during yesterday's House Judiciary Committee Oversight Hearing was disingenuous and disgraceful. According to Comey, the FBI has no power to control which attorney the subject of an investigation chooses to represent her during an interview. This is literally true, but irrelevant and misleading. Prosecutors, not FBI agents, run investigations. Any competent prosecutor faced with the prospect of Ms. Mills's attendance at Secretary Clinton's interview would have informed Clinton's attorneys that this was obviously unacceptable and that, if Clinton insisted on Mills's attendance, the interview would be conducted under the auspices of the federal grand jury. At the grand jury, Secretary Clinton would not have enjoyed the right to her attorney's presence in the grand jury room during questioning. In the event Clinton brought Ms. Mills along to stand outside the grand jury room for purposes of consultation, competent prosecutors would have gone to the federal judge supervising the grand jury and attempted to disqualify Ms. Mills. In all likelihood, such an attempt would have been successful. But of course, it never would have gotten that far, because Secretary Clinton will do anything to avoid a grand jury appearance. So, Director Comey's response was a classic dodge, one of several that he perpetrated during yesterday's hearing. As noted above, the decision to allow Ms. Mills to attend Secretary Clinton's FBI interview was only the clearest example to date of irregular procedures sanctioned by the prosecutors in charge of the Clinton email investigation. More to come on that in a subsequent post.
Tag: Corruption
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The Ninth Circuit Court of Appeals vacated a defendant's conviction and remanded the case for a new trial as a result of violations of Brady/Giglio. (USA v. Victor Kohring opinion) The defendant "Victor Kohring, a former member of the Alaska State House of Representatives, was convicted in federal district court on three counts of public corruption felonies: conspiracy to commit extortion and attempted extortion under color of official right and bribery under 18 U.S.C. § 371 (Count 1), attempted interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a) (Count 3), and bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B) (Count 4). Kohring was acquitted of Count 2—interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a)." The Ninth Circuit court held: "We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring’s conviction and remand to the district court for a new trial."
Addendum – Court stated "On remand, the government disclosed, for the first time, several thousand pages of documents, including 'FBI 302 reports,' undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda, and police reports."
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At the end of this past year, the Statewide Grand Jury in Florida issued its first Interim Report – Statewide Grand Jury Makes Anti-Corruption Recommendations in First Interim Report. (Report is here) According to the press release issued at that time –
"Key recommendations of the Statewide Grand Jury include:
– Expanding the definition of public employees to include private employees contracted by government entities that perform government services;
– Creating sentencing enhancements for offenses committed by officials who use their public position to facilitate their crimes;
– Creating an independent State Office of Inspector General, responsible for hiring and firing agency Inspectors General;
– Expanding definition of criminal bid tampering to include bid-rigging schemes; and
– Authorizing the Ethics Commission to initiate investigations with a supermajority vote of commission members."This report comes at an interesting time, as the American Law Institute is gearing up for a new project called Principles of Government Ethics.
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