UNANSWERED QUESTIONS REMAIN CONCERNING FISA ABUSES

[Photo from wikipedia]

Many questions remain concerning the alleged abuses of the FISA court process by top DOJ lawyers and FBI agents during the 2016 presidential campaign and thereafter.

For example, will Attorney General Jeff Sessions appoint a special prosecutor to investigate this abuse of power? In an interview yesterday with Fox journalist Shannon Bream, Sessions again indicated that the FISA abuses would be investigated and that he has also appointed an experienced DOJ attorney from outside Washington to look into it.

How does the FISA Court feel about reportedly being abused in this manner?

But I also wonder how much information was obtained by federal agents?  How far did this corruption extend, after they allegedly abused the FISA court to spy on the opposition candidate during an election year, while using opposition research paid for by the Clinton campaign and the DNC? In other words, has anyone investigated how many tape recordings were made and with whom, or how many emails were tracked, and on whose private conversations did agents eavesdrop?

Many questions remain and yet there are so few answers! Here's hoping that somebody, perhaps the Inspector General or maybe Mr. Session's unnamed attorney friend, will shake some trees and get some answers!

DOJ AND INSPECTOR GENERAL TO INVESTIGATE FISA ABUSES

Did you hear the news? Attorney General Jeff Sessions has confirmed today that the Department of Justice, through its Inspector General, will investigate the alleged abuses involving the FISA applications submitted by senior members of the Obama D.O.J. along with their cohorts in the F.B.I.

We have all had time, now, to digest the "Schiff memo," released on Friday.  In it, the attack dog Democrat Congressman did his best to defend those who had submitted the questionable FISA applications. 

But incredibly, even after the Schiff memo, the undisputed facts appear to be that partisans in the D.O.J. and F.B.I. did not disclose, in the FISA applications, that the "salacious and unverified" Trump dossier had been paid for by the Clinton campaign and the Democratic National Committee.  

In short, incredibly, we have witnessed the weaponizing of our nation's spy tools by one candidate to spy on an opposing party during an election year!

As a former federal prosecutor, I would never have imagined not disclosing such salient facts to the Court! 

If these allegations are proven, heads will surely roll! What do you think?

REACTION TO THE FISA MEMO

[Photo from wikipedia]

Have you read the FISA memo, which reportedly exposes alarming bias and abuses of authority
by a few top leaders in both the FBI and DOJ? What is your reaction?

As reported, the memo reveals that former FBI Director James Comey and others in his agency
and top leaders at DOJ utilized and politicized our nation's spying tools to spy on an opposition political party and an incoming president in an election year.  How frightening that is!

As a former federal prosecutor, I reviewed countless search warrant and Title III applications. I would never have participated in deceptions as described in this memo. Also, I never saw any of the fine FBI agents I worked with pull a stunt like this! And I am shocked and appalled to learn that, in this case, a few misguided lawyers and agents, in an election year, would apply for a FISA warrant utilizing the dirty dossier, when they reportedly knew it was bogus, and also without disclosing to the FISA court that the dossier was actually opposition research bought and paid for by Clinton and the Democrat Party. If proven, this will go down as one of the biggest political scandals in American history.

Many questions still remain:

• Will a new special counsel be appointed to clean up this mess?
• Will there be other revelations of corruption by this small group?
• Will the FISA court take action against any culprits who allegedly abused the FISA process?
• Will the main stream media ever even acknowledge any of this corruption?  

Before closing, I want to emphasize that I proudly worked, side by side, with countless outstanding FBI special agents for over twenty years. They are not to blame. The reported corruption in this situation clearly exists only at headquarters and not in the field.

What is your opinion of this colossal mess?

UPDATE REGARDING FISA MEMO

[Photo from wikipedia]

Here's a tart response today to the FBI and DOJ complaints about the FISA memo's release from the House Intelligence Commitee Chairman Devin Nunes at the House's website:

“Having stonewalled Congress’ demands for information for nearly a year, it’s no surprise to see the FBI and DOJ issue spurious objections to allowing the American people to see information related to surveillance abuses at these agencies. The FBI is intimately familiar with ‘material omissions’ with respect to their presentations to both Congress and the courts, and they are welcome to make public, to the greatest extent possible, all the information they have on these abuses. Regardless, it’s clear that top officials used unverified information in a court document to fuel a counter-intelligence investigation during an American political campaign. Once the truth gets out, we can begin taking steps to ensure our intelligence agencies and courts are never misused like this again.” 

OUCH!!  It's getting hotter in D.C. and the memo hasn't even been released yet! What do you think?!

SHOULD THE FISA MEMO BE RELEASED?

[Photo from wikipedia]

Should the controversial FISA memo be released to the public? According to news reports, the four page memo outlines FBI and DOJ abuses of their surveillance powers, in order to spy on the President's campaign and transition teams.  In a nutshell, the allegations are that agents sympathetic to the Clinton campaign utilized the largely unsubstantiated Russian "dirty" dossier, paid for by Clinton and the DNC, to apply for FISA warrants to spy on an opposition candidate (and new president) during an election year. If that happened, then this would clearly be one of the largest political scandals in American history.

The House Intelligence Committee has already voted for its release.  But the FBI and DOJ have reportedly objected to its release.  FBI Director Christopher Wray has even complained that the memo is inaccurate. However, House Speaker Paul Ryan has gone on record stating that the memo should be released in order to help "cleanse" the FBI and DOJ.

It is now up to the President.  He is reportedly having the memo reviewed, but last evening, after his State of the Union speech, he promised its prompt release.

What is your opinion? Should it be released? As a former federal prosecutor, I say let the cleansing begin!

A Rant About the U.S. Department of Justice, Prosecutorial Priorities, and Small Potatoes

[U.S. Department of Justice photo from wikipedia]

As a former federal prosecutor for over 20 years and, currently, as an Augusta, GA criminal defense lawyer who regularly handles federal criminal cases, I have seen a number of changes in federal court over the years. Most of them are good. By and large, I still maintain that most federal prosecutors do a good job and that DOJ generally does an effective job of handling the prosecution of federal crimes. In short, I am still proud of my career as an AUSA and the fine job they do!

But I have noticed one disappointing trend which I wanted to blog about today. This trend involves some U.S. Attorney's Offices focusing more and more on "adopting" relatively small state criminal cases and "taking them federal," i.e. prosecuting small cases in federal court that do not belong there. In other words, in my opinion, generally, in the past, the feds focused more on larger, more complex federal cases. Today, on the  other hand, I believe some U.S. Attorneys' Offices are handling more and more relatively smaller criminal cases. Why is this so?

In my opinion, there are a number of reasons for this troubling trend. For example, some federal prosecutors find it easier to adopt and indict relatively simple state cases, instead of handling more intense federal grand jury investigations and putting together more complex federal cases from the ground up. Having handled a number of "mega" federal fraud and public corruption investigations and cases, as a former career federal prosecutor, I know fully well how difficult and time-consuming they can be to put together. But that is no excuse for AUSAs not to focus on them!

Another reason for this change in focus, in my opinion, toward smaller federal cases, originates with DOJ in Washington, D.C. In short, the Executive Office of U.S. Attorneys generally grades each U.S. Attorney's Office performance based upon the number of criminal cases prosecuted, instead of the size of the cases prosecuted. As a result, in my opinion, the various U.S. Attorney Offices around the country are, in effect, encouraged to take on more smaller, quicker prosecutions than on the more labor-intensive "mega" cases. But, in my opinion, one "mega" fraud case, which can yield millions in fines and restitution for federal programs, is often worth more than fifty "small potato" prosecutions!

Shouldn't the feds focus more on the "mega" fraud cases and leave the smaller potatoes for the states to handle? What do you think?

HSBC Banking Company Settles With DOJ

[Photo of HSBC's London Headquarters from wikipedia]

Although I am a former federal prosecutor, (and also, currently, an Augusta, Georgia criminal defense lawyer), I have also taught criminal justice courses part-time at a local university. One of the topics which we recently discussed in my course about White Collar Crime dealt with whether or not some white collar corporate defendants in some cases can unfairly avoid criminal liability -- for the corporation and/or its officers -- by simply paying a fine. In other words, do some white collar criminals get away with fraud and corruption with just a slap on the wrist in the form of a monetary penalty?

Have you read about the case involving HSBC, one of the world's largest banking companies, which is headquartered in Great Britain? According to various news reports, HSBC has been under investigation by the U.S. Department of Justice for allegedly laundering or transferring funds from Mexican drug cartels and for allegedly transferring funds to benefit Iran, in alleged violations of various sanctions. While everyone is entitled to their day in court, and while everyone should be presumed innocent until proven guilty, these are some pretty serious allegations, don't you agree?

Today, according to various news reports, HSBC is reportedly entering into a "deferred prosecution agreement" with the U.S. Department of Justice, whereby prosecution of HSBC and its executives will apparently be deferred, or avoided, and HSBC will simply pay a whopping $1.9 billion penalty.

Look, let's be fair: no one here is saying that any particular individuals in that situation should be prosecuted. We do not know all the facts. And no one should be judged based upon some news reports. And no one can fairly claim that $1.9 billion is merely a slap on the corporate wrist.

But the question still remains, as we discussed in my college class: Generally, do you believe that, in some criminal cases, (without focusing on that one), some corporations and corporate executives can avoid jail time by simply paying their way out of problems? Are there different standards or considerations in white collar crime, as opposed to street crime? What is your opinion?

DOJ Strikes Out at Second Roger Clemens Trial

[Photo of Roger Clemens from wikipedia]

It appears that, following the not guilty verdict in the John Edwards trial, the Department of Justice has struck out yet again in another high profile criminal trial. This time, it is the Roger Clemens trial. 

Today, various news reports indicate that Clemens, the former professional baseball pitcher, has been found not guilty on all counts by a federal jury in Washington.  As you will recall, Clemens was charged with allegedly lying to Congress in 2008 about his alleged lack of steroid use while a pitcher. You may also recall that an earlier trial of Clemens, last year, ended in a mistrial, after government prosecutors offered inadmissible testimony.

Now, following two trials, and following the expenditure of millions in taxpayers' dollars, another high profile defendant has been acquitted.  As a former federal prosecutor, and, currently, as an Augusta, Georgia criminal defense lawyer, I don't know exactly where the government went wrong, but it surely is a shame to see such a waste of scarce tax dollars on criminal cases which probably should never have been brought in the first place! Don't you agree?

OPR: The Office of Professional Responsibility and Why DOJ Attorneys Fear It

[Photo of DOJ Seal from reactf.org]

As a new federal prosecutor, years ago, I quickly learned that most federal prosecutors shake in their boots at even the thought of being investigated by the Office of Professional Responsibility, ("OPR").  Here is why, in a nut shell!

You see, OPR is, for federal agents and prosecutors, what an internal affairs unit is for police officers.  In other words, OPR is the arm of the Department of Justice, ("DOJ"), which is entrusted with the responsibility of investigating and, in some cases, disciplining, federal agents and prosecutors who have been accused of misconduct related to their cases.  Each year, OPR investigates hundreds of complaints made by citizens, or referred to them by federal judges and others.  It is my understanding that OPR employees actually even troll across the internet looking for reports of alleged prosecutorial misconduct.  In short, if they catch you, OPR can get you fired! 

According to the DOJ website, OPR was created in 1975 in response to allegations of prosecutorial abuse committed by DOJ employees during the infamous Watergate scandal.

Fortunately, for me, during my 20 year career as a federal prosecutor, I never had to endure any OPR investigations!  But I knew or heard about federal employees who did.  And trust me, I don't believe it was a pleasant experience!  But I'll bet you will agree that OPR serves an important role in ferreting out government misconduct.

Of course, OPR is not the only vehicle for raising complaints about prosecutorial misconduct.  For instance, complaints can also be raised with state bar associations and with federal judges, in appropriate cases.  But   these are all matters which you should carefully discuss with your own criminal defense attorney.

As for me, now that I am an Augusta, Georgia criminal defense lawyer, and no longer work for DOJ, I no longer have to worry about receiving a call from OPR to "come on down, you are the next contestant!"