How to use small fish to catch a pres­i­dent

The Rus­sian in­ter­fer­ence probe is text­book prose­cu­tion

The Washington Times Daily - - OPINION - By Daniel Galling­ton Daniel Galling­ton served in se­nior po­si­tions in the De­part­ment of Jus­tice, the Of­fice of the Sec­re­tary of De­fense and as gen­eral coun­sel for the U.S. Se­nate Se­lect Com­mit­tee on In­tel­li­gence.

The grand jury is the pros­e­cu­tor’s best friend: If he wants to get rid of a weak, un­pop­u­lar or po­lit­i­cally in­cor­rect sit­u­a­tion, he does a “slow roll” to the grand jury and then says, “Well, the grand jury re­fused to in­dict,” and shrugs his shoul­ders. The case — and what­ever con­tro­ver­sies are as­so­ci­ated with it — sim­ply goes away and the pros­e­cu­tor washes his hands of it.

On the other hand, if he re­ally wants to in­dict some­one, he urges the grand jury to do it and most al­ways it hap­pens. This is why it’s of­ten said (by both pros­e­cu­tors and de­fense coun­sel) that a grand jury would “in­dict a ham sand­wich” if the pros­e­cu­tor wanted them to — this ac­cord­ing to the in­fa­mous quote from New York Judge Sol Wachtler, who, iron­i­cally per­haps, was later him­self in­dicted.

Con­clu­sion: If, for what­ever rea­son, Robert Mueller re­ally wants in­dict­ments in the Rus­sian in­ter­fer­ence in­ves­ti­ga­tions, he will get them. Like­wise, if he doesn’t want them, they won’t hap­pen. In short, and most of the time, the grand jury does ex­actly what the pros­e­cu­tor wants it to do. Do pol­i­tics and per­sonal am­bi­tions ever play a role in very high vis­i­bil­ity crim­i­nal cases? What do you think?

As a foot­note to this point, it’s prob­a­bly not help­ful — es­pe­cially if you’re one of Pres­i­dent Trump’s lawyers — that your client also fired the FBI di­rec­tor, even if the di­rec­tor should have been fired for the rea­sons spelled out in the deputy at­tor­ney gen­eral’s memo. Specif­i­cally, that FBI Di­rec­tor James Comey made pros­e­cu­to­rial de­ci­sions with re­gard to the Hil­lary Clin­ton in­ves­ti­ga­tions in­volv­ing the mis­han­dling of clas­si­fied in­for­ma­tion — and as such vi­o­lated ba­sic De­part­ment of Jus­tice pro­to­cols.

The next big deal: Re­call that Mr. Comey wrote a bunch of memos that he later gave to a pri­vate party out­side the Jus­tice De­part­ment with the in­ten­tion that the memos be leaked to The New York Times. It’s also re­ported that Mr. Comey re­lated his con­ver­sa­tions with the pres­i­dent to his se­nior peo­ple at the FBI — and that they also wrote memos. At some stage of this process, the memos them­selves will be­come an ev­i­den­tiary is­sue: Be­cause Mr. Mueller, in or­der to es­tab­lish that the pres­i­dent in­ter­fered with, or “ob­structed” Mr. Comey’s in­ves­ti­ga­tion, must show that the memos them­selves are cred­i­ble ev­i­dence.

Now, how does Mr. Mueller do that?

Easy, and the very process for it ex­plains the rea­sons for the memos in the first place. And, while this might not be a prob­lem for Mr. Mueller and the grand jury — be­cause many kinds of facts and tes­ti­mony can be used to in­dict some­one — it could be an is­sue in an ac­tual trial.

You see, to ac­tu­ally use these memos at a trial as “ev­i­dence” to prove the facts stated in them, the memos would prob­a­bly have to be ad­mit­ted into ev­i­dence as an ex­cep­tion to the hearsay rule, called “past rec­ol­lec­tion recorded.”

Now we get to the “why” Mr. Comey and his crew re­ally wrote lots of memos: Be­cause they in­tended to get them into ev­i­dence to prove the facts they put in them, so the more memos the bet­ter. Not only that — the memo-writ­ing process it­self be­comes a key part of how the case is put to­gether.

In other words, how Mr. Comey de­scribes his con­ver­sa­tions with the pres­i­dent be­comes crit­i­cal, and if the memos are ad­mit­ted into ev­i­dence the gov­ern­ment can es­sen­tially prove its case with the ev­i­dence it cre­ated. The memos were writ­ten by gov­ern­ment lawyers, some of them pros­e­cu­tors like Mr. Comey, who know what the “el­e­ments of the of­fense” of “ob­struc­tion of jus­tice” are. So we should as­sume that the memos will de­scribe a “prima fa­cie” case of it.

Fi­nally, this is both a very high-vis­i­bil­ity and a very po­lit­i­cal case. As a re­sult, there will be thou­sands of hours of in­ves­ti­ga­tion and wit­ness in­ter­views. Typ­i­cally, in such a com­plex case, a wit­ness in the “small fish” cat­e­gory will be dis­cov­ered to be in vi­o­la­tion of some tech­ni­cal or mi­nor of­fense — per­haps ly­ing to an in­ves­ti­ga­tor, tax eva­sion or some other tech­ni­cal or reg­u­la­tory in­frac­tion. This of­ten cre­ates the lever­age the pros­e­cu­tor needs to make a deal with the wit­ness in ex­change for in­crim­i­nat­ing tes­ti­mony against the main tar­gets of the in­ves­ti­ga­tion. These kinds of deals are made all the time and we can ex­pect to find out about them as the case pro­ceeds.

Con­sid­er­ing all the above, can Mr. Trump, his fam­ily and as­so­ciates get a fair shake in this town? Frankly, it doesn’t look like it — and this per­cep­tion gets worse with ev­ery news cy­cle. This be­cause the es­tab­lish­ment me­dia sim­ply does not like the pres­i­dent, et al., and never will. Nor do sev­eral se­nior past and present high-level bu­reau­crats and also some very prom­i­nent mem­bers of Congress.

Why? It’s sim­ple re­ally: Pres­i­dent Trump has knocked them off their power and in­flu­ence perches, and they don’t like it.

Can Mr. Trump, his fam­ily and as­so­ciates get a fair shake in this town? Frankly, it doesn’t look like it — and this per­cep­tion gets worse with ev­ery news cy­cle.

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