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Lanny Breuer Rewards DOJ Lawyers for Winning Impunity for Prosecutorial Misconduct

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I always like reading DOJ’s various expressions of their investigative and prosecutorial priorities–because they usually show a disinterest in prosecuting banksters, a thorough waste of resources on entrapping young Muslims, and an ongoing fondness for Anna Chapman.

Lanny Breuer’s choice of DOJ lawyers to recognize yesterday was, in some ways, an improvement over the trend. I’m happy to see prosecutors rewarded for taking down the “Lost Boy” website. Rather than fixating on Anna Chapman and entrapping young Muslims, Breuer recognized prosecutors who entrapped older Muslims who attempted to smuggle someone they believed to be a Taliban member into the US. And Breuer even celebrated the rare prosecution of a bankster, Lee Bentley Farkas.

And while Breuer’s multiple awards to people seemingly making it easier to shut down the InterToobz in the guise of IP violations concerns me, it’s this bit that I found disgusting.

The Assistant Attorney General’s Award for Distinguished Service was presented to Kirby Heller and Deborah Watson of the Criminal Division’s Appellate Section for their exceptional work in the successful appeal of sanctions imposed upon federal prosecutors in the case of Dr. Ali Shaygan.

Effectively, Lanny Breuer is rewarding two appellate section lawyers for winning an 11th Circuit Court decision overturning sanctions imposed on DOJ for gross prosecutorial misconduct. Breuer’s priorities, it seems, include ensuring that DOJ pays no price when it abuses its prosecutorial power.

The case goes back to February 2008, when Ali Shaygan was indicted for distributing controlled substances outside the scope of his medical practice; one charge tied that distribution to the death of one of Shaygan’s patients. Shaygan ended up hiring a defense team that included one attorney who had had a run-in with the prosecutors in his case. In addition, the lead prosecutor, Sean Paul Cronin, was admittedly buddies with the lead DEA Agent, Chris Wells. After Shaygan’s lawyers attempted (ultimately, successfully) to suppress a DEA interview with Shaygan on Miranda grounds, Cronin threatened the team.

AUSA Cronin warned David Markus, Shaygan’s lead attorney, that pursuing the suppression motion would result in a “seismic shift” in the case because “his agent,” Chris Wells, did not lie.

Nine months later, during the trial, one of the prosecution’s witnesses alluded in cross-examination that he had tapes of conversations–failed attempts to bribe Shaygan’s lawyer–at home.

During the cross-examination of Clendening on February 19, 2009, Shaygan’s counsel, Markus, asked Clendening if he recalled a telephone conversation in which Clendening told Markus that he would have to pay him for his testimony, and Clendening responded, “No. I got it on a recording at my house.”

This revelation led to exposure of the government’s collateral, failed investigation of Markus for witness tampering, as well as a significant number of discovery violations. In short, it became clear the government tried, unsuccessfully, to catch Markus bribing witnesses for favorable testimony and then hid all evidence they had tried. The prosecutor in the case was not properly firewalled form that investigation and even personally claimed to give authorization to tape the conversations. And in the days before the trial, the prosecutor checked in on the witness tampering investigation, apparently hoping to force Markus to withdraw from the case just as it went to trial. In the end, Shaygan was acquitted of all 141 charges against him.

After the trial, Miami District Court Judge Alan Gold held a sanctions hearing against the government for its gross misconduct. He held the government in violation of the Hyde Amendment. He had them pay all reasonable costs after a superseding indictment he judged was filed as part of the “seismic shift in strategy.” And he publicly reprimanded the prosecutors involved in the case.

Now, the government admitted that it committed significant errors.

The United States acknowledges that it initiated a collateral investigation into witness tampering and authorized two witnesses, Carlos Vento and Trinity Clendening, to tape their discussions with members of the defense team in violation of United States Attorney’s Office policy; that, although there were efforts made to erect a “taint wall,” the wall was imperfect and was breached by the trial prosecutors, AUSA Sean Paul Cronin and Andrea Hoffman, at least in part, because the case agent, DEA Special Agent Christopher Wells, was initially on both sides of the wall; and that, because the United States violated its discovery obligations by not disclosing to the defense “(a) that witnesses Vento and Clendening were cooperating with the government by recording their conversations with members of the defense team, and (b) Vento’s and Clendening’s recorded statements at the time of their trial testimony.” Finally, the United States “acknowledges and regrets” that, “in complying with the Court’s pre-trial order to produce all DEA-6 reports for in camera inspection on February 12, 2009 (Court Ex. 6), the government failed to provide the Court with the two DEA-6 reports regarding the collateral investigation, specifically Agent Wells’ December 12, 2008 report (Court Ex. 2) and Agent Brown’s January 16, 2009 report (Court Ex. 3).”

After the sanctions hearing, the government agreed to pay some legal fees associated with their misconduct. They just objected, and appealed, to the public reprimand and the requirement they pay for all fees after the superseding indictment.

But the appeals court not only threw out the entire financial sanction, it also vacated the public reprimands of the lawyers.

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At Some Point, Lanny Breuer Is Responsible for William Welch’s “Judgment”

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Shane Harris has a long profile of William Welch, the thuggish prosecutor in charge of Obama’s persecution of whistleblowers. One of the things he did for the profile is review all of Welch’s cases as an AUSA; he found three of them that, while not major, exhibit the same kind of abuses he has committed on the national stage.

The Washingtonian reviewed every case that Welch worked on when he was an assistant US Attorney in Springfield, from 1995 until 2006. It was during those years that Welch earned his chops as a prosecutor. His biggest victories were in a string of city corruption cases that became his steppingstone to the Public Integrity Section at Justice.

Most of Welch’s cases in Springfield appear routine. But some raise questions. In three cases, defense attorneys filed motions claiming Welch hadn’t turned over exculpatory evidence, sometimes after a judge had directed him to do so. One attorney accused Welch of mounting a vindictive prosecution against a woman who had refused to cooperate with one of his investigations. One suspected Welch of trying to prevent a witness favorable to the defense from testifying—an allegation that would surface against the prosecution years later in the Stevens case. (None of these complaints resulted in a case’s being overturned.)

Perhaps the most telling part of the profile, though, is DOJ Criminal Division head Lanny Breuer’s effusive praise for the out-of-control prosecutor he put in charge of leak investigations.

Breuer, a prominent Washington attorney who once defended former national-security adviser Sandy Berger against charges that he’d stolen classified documents, looks to be Welch’s biggest fan. “Bill is absolutely tenacious,” Breuer says. “He’ll follow every fact and research every legal issue, and he will be absolutely dispassionate in his conclusions.”

Breuer sees Welch’s doggedness as an asset in the Obama administration’s efforts to stop national-security leaks, which rests on a complicated—some say dubious—interpretation of the Espionage Act. The administration has used the law to prosecute five people in leak-related cases, more than all previous administrations combined.

Breuer doesn’t seem bothered that his lead prosecutor is under investigation. “The fact there’s an allegation in and of itself is insufficient” to keep him from prosecuting, Breuer says. “In my mind, it would be absolutely unjust and crazy at this stage not to continue to let Bill Welch be the great prosecutor he is.” Breuer adds, “I’ve grown to very much rely on his judgment, his acumen, his intellect, and his sense of justice, which I think is terrific.”

What Harris doesn’t mention in his article–I’m sure the publication schedule made it impossible–is the speech Breuer made yesterday to a bunch of prosecutors in Sun Valley. (h/t BLT) Breuer, you see, is miffed that defense attorneys are calling prosecutorial abuse what it is.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations.   These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward.   And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago.   And I suspect that is true for many DA’s offices across the country as well.

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct.   This kind of gamesmanship is unfortunate.   The steps we have taken go further than what the Supreme Court requires.  And they go well beyond what any prior Administration has done.   That’s a fact.   Do we need to remain vigilant?   Absolutely.   At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

The time frame Breuer mentions–the two years during which DOJ has supposedly cleaned up its act–maps to the Ted Stevens case. So it’s pretty likely he had poor maligned Welch in mind when he made these comments (though ethics was a focus of the conference).

Fine. Breuer thinks William Welch is the shit. Maybe then Breuer will also take responsibility the next time Welch puts aside all prosecutorial judgment to pursue a minor case?

Jon Kiriakou: Libby Knew Plame Was Covert

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Jason Leopold has a long article and videotape of an interview with Jon Kiriakou that you should check out in full. I’ll discuss their conversation about Abu Zubaydah’s torture (and, more interestingly, Kiriakou’s knowledge about who Abu Zubaydah is) later. But I wanted to look more closely at Kiriakou’s description of a June 10, 2003 meeting at which (Kiriakou says) Scooter Libby made it clear that he knew of Plame’s identity.

Kiriakou said he was the “note taker” at this meeting, which took place on June 10, 2003, when I. Lewis “Scooter” Libby, former Vice President Dick Cheney’s chief of staff, “entered the room furious, putting on a big show, arms flailing around, swearing and demanding to know why nobody at the CIA told him that Valerie Plame was married to Joe Wilson.”

Kiriakou said it was clear to him that when Libby “entered the room” on June 10, 2003, he had already known that Plame was an undercover operative.

Now, it always pays to approach Kiriakou’s statements with some skepticism. And his description certainly doesn’t accord with what Grenier testified to at the Libby trial. But for the moment, let’s look at what Kiriakou’s description would mean for the chronology of the week of June 8, 2003.

After a break of several weeks after Nicholas Kristof first reported Joe Wilson’s allegations, the allegations returned again on June 8, 2003, when George Stephanopolous asked Condi Rice about the allegations. Apparently first thing on the following day, June 9, 2003, President Bush expressed to Libby in some way his concern about the allegations. And that seems to have been what set OVP into overdrive trying to learn about the source of the allegations. Later that same afternoon, John Hannah had already completed a briefing for Cheney on the issue.

According to Kiriakou’s story, Libby had his furious outburst on June 10. That would probably mean it happened at the 12:45 NSC DC [Deputies Committee] meeting, four hours before Kiriakou wrote his email requesting more information. Though note, the content of the Kiriakou email we have–which asks for very specific information for John McLaughlin in anticipation of a meeting with Cheney the following day and doesn’t mention the meeting itself–doesn’t match the description he gave Jason:

After Libby’s outburst, Kiriakou said he “went back to headquarters and I wrote an email to all of the executive assistants of all the top leaders in the agency saying, this meeting took place, Libby is furious, we believe that he was conveying a message from the vice president. I wanted to know when did we know that Valerie was married to Joe Wilson, sent it around, nobody ever responded to my email.”

That says, if Kiriakou’s narrative is correct, Libby probably learned of the tie between Plame and Wilson between June 9 and June 10, if not earlier. Which might explain why the date on Libby’s note record learning of Plame’s tie to Wilson appears to be written over. One possibility, for example, is that the note originally read June 9, not June 12.

This is where Kiriakou’s story begins to conflict with Robert Grenier’s and Marc Grossman’s. Marc Grossman testified he told Libby, probably at a DC meeting on June 11 or 12, that Wilson’s wife worked at the CIA (based on the INR memo). And Grenier testified that Libby asked him for information on a phone call on June 11, at which point, Grenier claimed, he “had never heard of [Wilson’s trip] before.” Both claims would be false if Libby had blown up in the June 10 meeting.

Now, both Grossman and Grenier’s testimony is problematic on a number of other levels, so we can’t use their testimony to dismiss Kiriakou’s story out of hand.

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“Humane Societies … Pursue Justice”

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One of the most important ways in which humane societies struggle to deter outbreaks of mass violence is by working to pursue justice, so that would-be war criminals might think twice about their actions after seeing that perpetrators of such crimes are being aggressively pursued and held to account for their crimes.

DOJ Criminal Division Chief, Lanny Breuer, boasting of the formation of the Human Rights and Special Prosecutions Section at DOJ, while speaking at a Holocaust Remembrance Program held by the Jewish Community Relations Council of Greater Washington.

I don’t, in any way, mean to equate the war crimes committed by our own government in the last decade with the Holocaust. I do, however, mean to remind those in a position to do something about “pursuing justice” that more recent war crimes remain virtually unexamined.

From the Department of Ironic Reorganization

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It seems Assistant Attorney General Lanny Breuer wants to do a more effective job of hunting down human rights abusers.

Assistant Attorney General Lanny Breuer has proposed combining the Criminal Division’s Domestic Security Section and the Office of Special Investigation. If approved by the Office of Management and Budget, the merger would represent the first major structural change in the division since Breuer took office.

The mandates of the sections have grown closer in recent years. OSI, created in 1979, has reshaped its mission from ferreting out Nazis living on American soil to hunting human rights violators who fled all corners of the world, from Rwanda to the former Yugoslavia.

DSS, established early in the Bush administration, targets human smuggling rings, immigration fraud, certain violent crimes and gun offenses, and international human rights violations. The section also has jurisdiction over crimes committed oversees by “individuals employed by or accompanying” the U.S. military.

The new entity would be called the Human Rights and Special Prosecutions Section. Meshing the resources of DSS and OSI could give the Criminal Division a competitive edge over U.S. Attorneys’ offices and other agencies vying to prosecute major human rights cases.

Rather than rearranging the deck chairs, maybe Breuer should just head to Alexandria and Mclean, VA to pick up Addington and Cheney.

Back to Breuer’s Claims about Future Investigations

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Lanny Breuer, he of the potential conflict, has argued that DOJ must keep Dick Cheney’s CIA Leak interview secret because, if it doesn’t, then senior White House officials may not cooperate with DOJ investigations in the future. 

Moreover, if interviews of senior-level White House officials become subject to routine public disclosure, the White House official may agree to talk only in response to a grand jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules of Criminal Procedure.

And if senior White House officials don’t cooperate with DOJ investigations, it may deprive investigators of information about the underlying White House policies tied to alleged crimes. 

In any such investigation, it will be important that White House officials be able to provide law enforcement officials with a full account of relevant events. Any such investigation may delve into or require a full accounting of internal White House deliberations or other government operations. Questions may cover, for example, conversations between the President or Vice President and senior advisors, the decision-making process on specific policy matters, advice given to the President or direction provided by the President, and internal discussions relating to White House interactions with other Executive Branch entities and with Congress.

Writing just one week after Breuer’s boss, Eric Holder, announced an investigation into torture that may ultimately consider White House deliberations (or at the very least, OVP machinations), I’m sympathetic to Breuer’s claimed concern with obtaining such high level cooperation.

But I think nothing undermines Breuer’s argument that DOJ’s efforts to keep Cheney’s CIA Leak case interview secret will enhance cooperation in the future more than Dick Cheney’s suggestions that he’s not going to cooperate with the torture investigation, regardless of what happens.

WALLACE: If the prosecutor asks to speak to you, will you speak to him? 

CHENEY: It will depend on the circumstances and what I think their activities are really involved in. I’ve been very outspoken in my views on this matter. I’ve been very forthright publicly in talking about my involvement in these policies. 

I’m very proud of what we did in terms of defending the nation for the last eight years successfully. And, you know, it won’t take a prosecutor to find out what I think. I’ve already expressed those views rather forthrightly.

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Lanny Breuer’s (?) Conflict

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Several weeks ago, I asked whether Lanny Breuer had a conflict in CREW’s FOIA suit to get Cheney’s interview in the CIA Leak Case. As I reported, Breuer represented John Kiriakou, who back in 2003 responded to Cheney’s request for information on Joe Wilson’s trip during the week when Cheney learned (from the CIA, Libby testified) of Plame’s identity. Given that two of the things DOJ is trying to protect by refusing CREW’s FOIA pertain to Cheney’s discussions with CIA, it seemed wholly inappropriate, if not an ethical violation, for Breuer to represent DOJ in its efforts to withhold Cheney’s interview.

After some persistence, I got DOJ to respond to my questions about the issue.

The two year window

Just about the only thing the Criminal Division spokesperson could tell me is that Breuer’s submission of an affidavit was not a conflict because it was submitted more than two years after his relationship with Kiriakou ended (the federal guidelines now prohibit lawyers from involvement in an issue pertaining a client they have represented in the last two years).

Before I get into what else DOJ did not tell me (or Covington & Burling, after equally persistent efforts), let’s note the timing.

As I note in a post subtitled "more than 2 years," the DOJ was making this argument almost exactly two years after Bush commuted Libby’s sentence. In fact, Breuer’s declaration was signed on the last day of the two year anniversary of Libby’s commutation (Libby’s sentence was commuted on July 2, 2007, and Breuer signed the declaration on July 1, 2009, just meeting a deadline set by Judge Emmet Sullivan). So the timing is all very close to the "end" of the Libby matter (the trial, obviously, ended much earlier, Libby dropped his appeal later). So, two years, but not much more than two years.

That’s all pretty neat timing, particularly since DOJ would not tell me the precise dates of Breuer’s representation of Kiriakou. They told me to talk to Covington & Burling, which I had already done and have done since. Covington & Burling’s spokesperson claimed–utterly implausibly–that she "hasn’t been able to find anything on that yet."

Breuer’s suitability to submit this declaration

I asked DOJ two more general questions: Whether Breuer had told the people in the Civil Division on behalf of whom he submitted this declaration that he had represented someone involved in the CIA Leak Case. Read more →

Does Lanny Breuer Have a Conflict in the Cheney Interview FOIA Case?

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Assistant Attorney General Lanny Breuer’s background has been a key topic of discussion in CREW’s lawsuit to force DOJ to release Dick Cheney’s interview with Patrick Fitzgerald. The problem is, DOJ forgot to reveal that Breuer had represented one of the people involved with issues directly related to Cheney’s interview.

DOJ needed an expert on investigations of White House officials–so they got Breuer

During a hearing on whether or not DOJ should release Dick Cheney’s interview with Patrick Fitzgerald back in June, Judge Emmet Sullivan suggested that DOJ ought to have someone with actual experience in investigations of high level White House officials make their argument that releasing Cheney’s interview would make such investigations more difficult in the future.

MR. SMITH: In this case I don’t see — the law enforcement issue here is very unique and it’s very different than I think in Sussman and in most other cases. It’s an interest, it’s basically a chilling interest that if the Vice-President’s interview is released, that could have a chilling effect on future senior leadership.

THE COURT: Says who?

MR. SMITH: Says the Attorney General Mukasy [sic], that was his conclusion.

THE COURT: He didn’t file a declaration. Mr. Bradbury filed a declaration. He didn’t base it upon any experience, he didn’t base it upon anything. He didn’t articulate the bases for his declaration. Other than he was designated to follow declaration. So it wasn’t Mr. Mukasy [sic] who filed the declaration which arguably could have carried great weight. If the chief law enforcement officer says based on my experience and experience of others in law enforcement, it could have but that’s not the case here. Bradbury was a political appointee. I don’t know what his experience was. He was appointed to, maybe he was appointed to file this declaration. I don’t know what else he did. He’s no longer there at OLC. And essentially the government in footnote says I should defer to his declaration.

This is not a deferential review. I want to be clear I’m not suggesting that the Attorney General should sign a declaration. I’m not ordering, certainly not ordering him to do anything, but I’m just saying in response to what you just said arguably it could have carried greater weight for such a declaration to come from a law enforcement official based upon his or her experiences with respect to this chilling effect. Otherwise, it’s just an assumption this man makes based upon nothing he can point to. [my emphasis]

So rather than have the discredited Steven Bradbury submit this declaration, DOJ got Breuer to do so. After Breuer submitted a statement arguing that release of Cheney’s interview will present some new disincentive for high level White House officials in the future to cooperate that thirty years of routine release don’t already present, CREW questioned what basis Breuer had to make that claim.

The only experience plaintiff is aware of Mr. Breuer having with law enforcement investigations involving the White House is his tenure as special counsel to President Clinton during the Independent Counsel’s “Whitewater” investigation. Read more →