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The Narratology of Leaks, Part Two: Schooling William Welch

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Let me just say I do not relish seeing William Welch making precisely the point I have made in one of his filings. When you read this,

That Mr. Feldstein’s opinions are unreliable and based on no method at all is underscored by their internal inconsistency. He opines that “all statements in Chapter Nine that seem to indicate the potential identity of sources must not be taken at face value,” Attachment A at 3. Yet at the same time, he also concludes that “taken at face value, Mr. Risen had multiple sources” for Chapter Nine, including multiple human sources and documentary sources. Id. Moreover, because such testimony has a substantial likelihood of confusing the jury, it is also inadmissible under Rule 403.

You’d almost think Welch had read this,

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

Say, Bill Welch? In case you’re reading this post, you made almost as stupid an error in your request to preclude the defense’s use of narratology at the Jeffrey Sterling trial as the defense did in trying to have it both ways. You try to argue that the typical juror would understand this stuff already. Trust me, I’ve taught this subject to literature majors and honors students at a good state university, and it is not commonly understood, even among uncommonly smart people.

But even funnier is the way you make this argument.

In addition to inadmissible speculation regarding sources, the defendant also intends to call this expert to testify regarding the fact that State of War is written in the “third-person omniscient narrative style.” Attachment A at 1-2. The concept of a narrative voice, including the “third-person omniscient” narrative voice, does not require expert explanation. It is a common feature of high school reading curricula. See, e.g., English Standards of Learning in Virginia Public Schools 2 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english/ 2010/stds_english9.pdf; English Standards of Learning Curriculum Framework 2010: Grade Nine 12 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english /review.shtml. Because the concept of “point-of-view” is within the common knowledge and education of the average juror, it is inadmissible and properly excluded.

First, here are the correct links, in case Judge Brinkema wants to see the original references and gets lost by the 404 errors the URLs in the filing pull up.

But what the curriculum document you’ve linked to–and you yourself–are referring to is “point of view,” not “third person omniscient” narrative.

The student will read, comprehend, and analyze a variety of literary texts including narratives, narrative nonfiction, poetry, and drama.

e) Explain the relationships between and among elements of literature: characters, plot, setting, tone, point of view, and theme.

i) Explain the influence of historical context on the form, style, and point of view of a written work.

Neither the word, “omniscient,” nor the phrase “third person” appears in that curriculum document.

As even Wikipedia will tell you, “point of view” and “narrative voice” are different things. Both a first person and a third person narrative can use the same point(s) of view. The points of view (actually, focalization) James Risen used in the chapter in question is generally that of the Russian scientist and the case officer. We don’t, for example, get access to the feelings of the “senior CIA officer,” who might have been thinking that the “case officer” was being a big wuss about the doctored nuclear blueprints and should just suck it up and go on with the operation; we only get that person’s statements. And in spite of the fact that Risen uses some fairly interesting narrative techniques to convey the thoughts of the Russian (as I noted in my last post), this is not told in a first person narrative in the voices of the two: we (generally) get not only the narrator’s description of who said and thought what, but also a great deal of background about things like the IAEA, Russian nukes, and Nunn-Lugar that Risen is pretty damn knowledgeable about all by himself.

In other words, in the passage of the filing claiming that this stuff is known to VA’s high school freshmen, Welch makes an error, incorrectly conflating two aspects of narrative (and frankly, the two that would need to be distinguished for anyone, government or defense, to make an argument at trial about what the style of Risen’s text means about his sources).

Apparently, your average VA juror can be expected to know this stuff, but not a fancy government lawyer with degrees from Princeton and Northwestern.

Now, as I’ve said, I think this use of narratology in the court room is inappropriate, regardless of whether the defense or the prosecution attempts to use it (and both are trying to do so). I hope the defense responds to this filing by counter-filing that if their expert is precluded, the government should also be prevented from presenting their claims about what Risen’s narrative techniques mean, since the lawyers involved are obviously incompetent to do so.

But I will say I’m having a bit of fun watching the debate about it.

William Welch & DOJ’s Dishonest Intelligence Witness Against Jeff Sterling

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In a comment to Marcy’s The Narratology of Leaking: Risen and Sterling post yesterday, MadDog related this nugget regarding the Sterling case from a Steve Aftergood article in Privacy News:

I know EW’s post’s focus was on Sterling’s defense team’s strategy, but I’d be remiss in not commenting on this tidbit from Steven Aftergood’s post:

“…In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were “a mistake on his part.” As a result, prosecutors said (8 page PDF), Mr. Risen himself is “the only source for the information the government seeks to present to the jury.”…”

I wondered just what this paragraph meant. Did it mean, as I assumed, that one of the prosecution’s key witnesses, a former intelligence official, had in fact recanted the former intelligence official’s grand jury testimony?

Here is just what the prosecution blithely said on the matter from page 5 of their supplement (8 page PDF):

“…Fifth, the testimony of the “former intelligence official” referenced in the Court’s Opinion has changed. The former official will now only say that on one occasion, Mr. Risen spoke with him about the defendant and stated that the defendant had complained about not being sufficiently recognized for his role in Classified Program No. 1 and in his recruitment of a human asset relating to Classified Program No. 1, and that on a separate occasion, Mr. Risen asked him generic questions about whether the CIA would engage in general activity similar to Classified Program No. 1. This former official, however, cannot say that Mr. Risen linked the second conversation with the defendant, although both conversations occurred within several months of each other. The former official termed his grand jury testimony, which linked the two conversations together, as a mistake on his part. In addition, the former official further modified his testimony to say that although Mr. Risen had acknowledged visiting the defendant in his hometown, Mr. Risen’s trip to see the defendant was not the main purpose of his travel, but rather a side trip.

The testimony of this former official had been cited by the Court as providing “exactly what the government seeks to obtain from its subpoena [to Mr. Risen]: an admission that Sterling was Risen’s source for the classified information in Chapter Nine.” Memorandum Opinion (Dkt No.148) at 24. The former official’s testimony will not now provide such a direct admission, further underscoring the government’s contention that for the reasons discuss in its Motion, Mr. Risen is the only source for the information the government seeks to present to the jury…”

So, that got me thinking, what is the status of the “former intelligence officer” in question? Is he still on the witness list? Who is it, and why is he “former”? Has he been charged with false statements to a government officer under 18 USC 1001? Has he been charged with perjury under 18 USC 1623? Is there a criminal investigation regarding the duplicity underway? What is being done?

Because, giving the government’s prosecutors the benefit of the doubt that they did not misrepresent or puff the “former intelligence officer’s” statements and testimony to start with, which is a pretty sizable grant for a William Welch run show, then it seems pretty clear that the “former intelligence official” is now saying that he either testified to things he did not, in fact know at the time, or he embellished/lied to the grand jury and the attending prosecutors.

The problem with the above is, the “former intelligence official is not entitled to any protection or benefit of the doubt for a “recantation” under 18 USC 1963(d). Here is the relevant portion on Read more →

Judge Brinkema Cites Espionage Act to Protect Reporter’s Privilege

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Charlie Savage tells the headline story from Leonie Brinkema’s opinion on whether or not James Risen must testify in Jeffrey Sterling’s leak trial.

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” wrote the judge, Leonie Brinkema of the United State District Court in Alexandria, Va.

But I’m just as interested in a few other things she says. First there’s the way she dismisses the government’s claim that two of the people who testified to the Grand Jury–Jeffrey Sterling’s ex-girlfriend and a former CIA officer with knowledge of the MERLYN operation–would be unable to testify at he trial.

The government had argued that the girlfriend was protected by spousal privilege and that the former CIA officer would be hearsay.

Separate and apart from Risen’s concession regarding the admissibility of his grand jury affidavit at trial, see Mot. p. 45, other evidence relied upon by the Court in its Memorandum Opinion similarly would be inadmissible at trial. For example, the grand jury testimony of the witness cited by the Court at page 7 of its Memorandum Opinion would be inadmissible under Rules 801(c), 802 and 803 of the Federal Rules of Evidence and United States v. Acker, 52 F.3d 509, 514-515 (4th Cir. 1995)(availability of spousal privileges to testifying and non-testifying spouses). The grand jury testimony of the witness cited by the Court at pages 7, 9, 10, 20, and 34 of its Memorandum Opinion – testimony that this Court deemed one of the key facts in its conclusion – is inadmissible hearsay on its face absent some exception; yet Risen treats the admissibility of the testimony of both witnesses as a foregone conclusion.

But as Risen’s lawyer Joel Kurtzberg pointed out during the hearing on Risen’s subpoena, she’s not his wife!

They actually cite in their papers as to the testimony of Mr. Sterling’s ex-girlfriend, suggest that it wouldn’t be admissible because they cite to a Fourth Circuit case about the marital privilege.

And in fact, if you look at the case they cite, the case holds the exact opposite. It holds that if you are not married, even if you have been living together I believe for 26 years in that case, the marital privilege doesn’t apply.

Here’s how Brinkema dismisses this William Welch gimmick.

Although the government argues that the spousal privilege would prevent this witness from testifying, nothing in the record indicates thta Sterling and the witness are married now or were married during the time of Sterling’s alleged statements.

More interesting still is the way Brinkema dismisses the government’s claim that the CIA officer’s testimony would be inadmissible hearsay.

Brinkema starts by citing Federal Rules of Evidence describing the exception for a statement against interest.

A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker’s penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.

After noting that Risen’s testimony would be unavailable if she found that reporter’s privilege prevented his testimony or if he refused to testify, she then invokes the Espionage Act.

Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e); see U.S. Sentencing Guidelines Manual 2M3.3 (providing a base offense level 29 for convictions for the “Unauthorized Receipt of Classified Information.”). 6

6 The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.

Brinkema uses the overzealous interpretation of the Espionage Act the government itself has been floating lately as a way to force the government to have the former CIA officer testify, which I suspect they’d much rather not do.

And note that footnote about immunity. I’m not sure whether we knew the government had discussed offering Risen immunity or not, but particularly given claims they’re pursuing his testimony so aggressively as a way to jail him for protecting his sources, it is an interesting revelation.

Finally, there’s one more passage I find telling. In the middle of a passage discussing whether the government has access to the information Risen would testify to via other means, she notes,

The government has not stated whether it has nontestimonial direct evidence, such as email messages or recordings of telephone calls in which Sterling discloses classified information to Risen; nor has it proffered in this proceeding the circumstantial evidence it has developed.

In a case in which the government has pointed to records of emails and calls, Brinkema notes, the government has never said whether or not it has the content of those emails and calls. Given that this statement is a non sequitur (it appears amid a discussion of circumstantial evidence), and given that Brinkema knows the government may have improperly accessed Risen’s phone records in the warrantless wiretap case, I find her comment mighty suggestive.

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?

Plea Bargain a Concession that DOJ Indicted Thomas Drake for Unclassified Information

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There’s something that’s missing from the coverage of the Thomas Drake plea bargain. Yes, this is a huge victory for Drake. A huge victory for whistleblowers. Yes, it proves that William Welch is an even bigger hack than the failed Ted Stevens case showed him to be.

But what about the two other charged documents?

Remember, what reportedly sunk DOJ’s case was a ruling from Judge Bennett that the government had to provide descriptions of one of the technologies they used to collect telecommunications; the government withdrew–in part or in whole–three of the charged documents in response. But the government originally charged Drake with illegally keeping five documents. The other two were described in the indictment as,

  • A classified email entited “What a Success”
  • A two-page classified document deemed “the Regular Meetings” document

If the charges built on these two documents were halfway decent, Drake wouldn’t have gotten his misdemeanor plea bargain.

But of course they weren’t even halfway decent.

The “What a Success” document was declassified by the government in July 2010, just months after the government indicted Drake.

The “Regular Meetings” document not only was never formally classified–though the government says it should have been and Drake should have known that–but the government tried to withhold from Drake evidence that the document was published on NSANet as an unclassified document.

It is disturbing that the government did not produce the March 22, 2010 memorandum [showing that NSA’s lead investigator had found the document to be posted on NSANet as an unclassified document] to the defense until February 4, 2011, ten months after the Indictment was issued. The information in the memorandum is undisputedly Brady material, and the government should have disclosed it many months ago. None of the documents found in Mr. Drake’s home was marked classified. For some of these documents, the government claims that Mr. Drake had received them originally with classification markings. The significance of the March 2010 memorandum is the government’s concession that the “Regular Meetings” document was published as “unclassified” and had never been deemed “classified” until after it was recovered from Mr. Drake’s home.

Under the Due Process Clause of the Fifth Amendment, the prosecution is required to disclose exculpatory evidence to a defendant in a criminal case. See Brady v. Maryland, 373 U.S. 83 (1963). Here, there can be no dispute that the information in the memorandum is exculpatory. In the Indictment, the government charges that the “Regular Meetings” document is “classified.” See Indictment ¶ 17. The fact that the document was marked “unclassified” and was posted on the NSA intranet as “unclassified” directly contradicts material allegations in the Indictment. See id.; see also id. ¶ ¶ 2, 3, 3 [sic] (“Classified information had to contain markings identifying the level at which it was classified.”); ¶ 8 (alleging Mr. Drake retained and disclosed “classified” documents). In addition, the government clearly seems to be of the opinion that, if a document is classified, this fact supports a successful prosecution under 18 U.S.C. § 793(e) (an opinion with which the defense disagrees). It necessarily follows, therefore, that a memorandum indicating that a document was marked “unclassified” and posted on NSA’s intranet as “unclassified” is potentially exculpatory to a defendant who is alleged to have violated § 793(e).

For this reason, the prosecution was under a constitutional obligation to disclose the memorandum to defense counsel, yet chose not to do so. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). What makes the government’s actions even more disturbing is the fact that defense counsel had to specifically ask the government for any evidence that the “Regular Meetings” document was posted on NSANet. This request came months after our initial request for all Brady material and the prosecution’s representation that it had produced all Brady material. It was only after our specific inquiry about a central document in the case that the government produced the March 22, 2010 memorandum. The government’s failure to turn over this exculpatory evidence at the beginning of the case is indefensible. And its decision to charge Mr. Drake with retaining a “classified” document clearly marked “unclassified” is, at a minimum, wrong. [my emphasis]

In other words, the government learned a month before they indicted Drake that this document wasn’t actually classified. But they indicted him for it anyway, and simply didn’t provide him evidence showing that fact until 10 months after they indicted him.

So in addition to dropping charges related to the evidence the government withdrew, the government also vastly restructured charges pertaining to these unclassified documents. Mind you, these documents are what the plea information describes (Drake would have collected the other documents pertaining to the IG complaint before 2006).

From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

But what they had originally charged as “classified” information became “official NSA information” in the ultimate plea agreement.

Mark Benjamin is right to focus on William Welch’s role in the collapse of this case. But we also ought to be asking why the government indicted a person for leaking “classified” information when it knew that it was not classified.

Thomas Drake to Government: “Bring It”

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Apparently, the government is scrambling in the Thomas Drake case.

According to Ellen Nakashima, they offered him two plea bargains yesterday, both involving no jail time. He rejected both.

Drake has repeatedly told friends that he will never “plea bargain with the truth.”

Drake turned down a deal to plead guilty to unauthorized retention of classified documents. It was a deal similar to the one accepted in 2005 plea by former national security adviser Samuel R. “Sandy” Berger after he removed and shredded classified material relating to the Clinton administration’s record on terrorism from the National Archives.

“Why should you plead to something you didn’t do?” said Bill Binney, a friend and former colleague who, with Drake, tried to raise concerns about what they saw NSA corruption and constitutional violations. “That’s the whole point. People of character don’t do that.”

Let me just take this moment to remind everyone what a train wreck William Welch–the prosecutor who screwed up the Ted Stevens prosecution, among others–has been for DOJ. On the eve of prosecution, the evidence he has to prove someone illegally kept classified information are three documents thrown in the trash can, two other documents that are currently unclassified, and a bunch of people in government speaking openly about the information that appeared in the three trashed documents.

I guess it wasn’t such a good idea to put such a relentless, but incompetent, prosecutor in charge of your leak cases, huh Holder?

Why Can’t DOJ Investigate as Well as the Hapless Senate?

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There’s a lot to loathe about the current incarnation of the Senate, that elite club of millionaires where legislation goes to either get rewritten to serve corporate interests or killed.

What does that say about DOJ, then, that the Senate is doing such a better job at investigating crimes? In just one month’s time the Senate has produced two investigations that have left DOJ–and the SEC and FEC–looking toothless by comparison.

First there was Carl Levin’s investigation of the banksters, released last month. Matt Taibbi does us the favor of outlining the case Levin’s investigators made.

Here is where the supporters of Goldman and other big banks will stand up and start wanding the air full of confusing terms like “scienter” and “loss causation” — legalese mumbo jumbo that attempts to convince the ignorantly enraged onlooker that, according to American law, these grotesque tales of grand theft and fraud you’ve just heard are actually more innocent than you think. Yes, they will say, it may very well be a prosecutable crime for a corner-store Arab to take $2 from a customer selling tap water as Perrier. But that does not mean it’s a crime for Goldman Sachs to take $100 million from a foreign hedge fund doing the same thing! No, sir, not at all! Then you’ll be told that the Supreme Court has been limiting corporate liability for fraud for decades, that in order to gain a conviction one must prove a conscious intent to deceive, that the 1976 ruling in Ernst and Ernst clearly states….Leave all that aside for a moment. Though many legal experts agree there is a powerful argument that the Levin report supports a criminal charge of fraud, this stuff can keep the lawyers tied up for years. So let’s move on to something much simpler. In the spring of 2010, about a year into his investigation, Sen. Levin hauled all of the principals from these rotten Goldman deals to Washington, made them put their hands on the Bible and take oaths just like normal people, and demanded that they explain themselves. The legal definition of financial fraud may be murky and complex, but everybody knows you can’t lie to Congress.

“Article 18 of the United States Code, Section 1001,” says Loyola University law professor Michael Kaufman. “There are statutes that prohibit perjury and obstruction of justice, but this is the federal statute that explicitly prohibits lying to Congress.”

The law is simple: You’re guilty if you “knowingly and willfully” make a “materially false, fictitious or fraudulent statement or representation.” The punishment is up to five years in federal prison.

When Roger Clemens went to Washington and denied taking a shot of steroids in his ass, the feds indicted him — relying not on a year’s worth of graphically self-incriminating e-mails, but chiefly on the testimony of a single individual who had been given a deal by the government. Yet the Justice Department has shown no such prosecutorial zeal since April 27th of last year, when the Goldman executives who oversaw the Timberwolf, Hudson and Abacus deals arrived on the Hill and one by one — each seemingly wearing the same mask of faint boredom and irritated condescension — sat before Levin’s committee and dodged volleys of questions.

[snip]

Lloyd Blankfein went to Washington and testified under oath that Goldman Sachs didn’t make a massive short bet and didn’t bet against its clients. The Levin report proves that Goldman spent the whole summer of 2007 riding a “big short” and took a multibillion-dollar bet against its clients, a bet that incidentally made them enormous profits. Are we all missing something? Is there some different and higher standard of triple- and quadruple-lying that applies to bank CEOs but not to baseball players?

Then there’s the investigation of John Ensign. Scott Horton lambastes DOJ’s decision to indict Ensign’s cuckold but not Ensign himself.

Alarmingly, the Justice Department not only failed to act against Ensign, it actually indicted Doug Hampton, Ensign’s former senior staffer, who was clearly a victim of Ensign’s predatory conduct and who had blown the whistle on him. The new report does suggest that Hampton may have engaged in improper lobbying activities, with Ensign’s connivance. But it also makes clear that Hampton’s statements about what happened were truthful and complete, whereas Ensign’s were often cleverly misleading, and sometimes rank falsehoods. In this context, the Justice Department’s decision—to prosecute the victim who spoke with candor and against his own interests, and let the malefactor who lied about his conduct go free—is perverse. It is also completely in line with recent Justice Department pubic integrity prosecutions, which have displayed an unseemly appetite for political intrigue and an irrepressible desire to accommodate the powerful.

And the NYT writes a more sheepish article featuring both an FEC official who apparently wouldn’t go on the record with his shock–shock! that there was gambling going on in the casino someone lied to the FEC.

An election commission official, who asked not to be identified while the case was pending, acknowledged that the commission took the senator at his word, whereas the Senate dug deeper. This official expressed anger to learn the true circumstances behind the $96,000 payment.

“I hate it when people lie to us,” the official said, adding: “If somebody submits a sworn affidavit, we usually do not go back and question it, unless we have something else to go on. Maybe we should not be so trusting.”

The NYT also cites several legal experts attributing DOJ’s impotence to embarrassment over the Ted Stevens trial (without, at the same time, wondering why William Welch is still at DOJ acting just as recklessly, only this time against whistleblowers and other leakers).

Several of these reviews of DOJ’s failure to act wonder why the understaffed Senate Ethics Committee or Levin’s Permanent Committee on Investigations–again, this is the hapless Senate!–managed to find so much dirt that the better staffed DOJ and regulatory bodies did not.

But Taibbi really gets at the underlying issue.

If the Justice Department fails to give the American people a chance to judge this case — if Goldman skates without so much as a trial — it will confirm once and for all the embarrassing truth: that the law in America is subjective, and crime is defined not by what you did, but by who you are.

These two Senate committees did an excellent job mapping out the crimes of the powerful. But unless we see action from DOJ, the committees will also have, by comparison, mapped out the stark truth that DOJ refuses to apply the same laws we peons abide by to those powerful people.

Government Claims Classified Information Procedures Act Also Applies to Unclassified Information

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The government’s making outrageous secrecy claims again, this time in the Thomas Drake NSA leak case.

As Steven Aftergood first reported, the government is trying to protect unclassified information using the CIPA process, basically making substitutions for information that its own expert says is not classified. They’re doing this by citing the National Security Agency Act, which protects National Security Agency information in civil cases; for precedent, they’re citing a bunch of civil cases, primarily FOIA. In other words, they’re trying to use civil standards to gain an advantage in a criminal case, using a tool the name of which–Classified Information Procedures Act–makes clear that it applies only to classified information.

Just as interesting as yet another example of the government abusing legal process to try to expand government secrecy is what appears to be their goal.

The defense explains that the government dumped this claim on the defense after the preliminary CIPA discussion happened, basically just informing the defense it would provide substitutions for unclassified information by actually proposing substitutions.

Of the government’s proposed substitutions, roughly a quarter of it substituted unclassified information.

Among the objections noted by the defense was the fact that the government had proposed a significant number of substitutions or redactions for unclassified information, a measure that CIPA does not permit or contemplate. This included information in the government’s own exhibit binder that its classification expert has deemed unclassified. The defense estimated that approximately 25% of the proposed substitutions were for unclassified information.

And it appears that the government is trying to obscure unclassified information in five documents that–the indictment alleges–Drake improperly retained.

The proposals included substitutions/redactions for unclassified information in the five allegedly classified documents charged in the willful retention counts.

The indictment describes those five documents this way:

  • A classified email entited “What a Success”
  • A two-page classified document deemed “the Regular Meetings” document
  • A four-page document “bearing the features of an email” titled “Volume is our Friend”
  • A three-page titled “Trial and Testing”
  • A five-page email titled “the Collections Sites”

Now, the fact that the government is trying to substitute information for unclassified information from these five documents is crucial to the way the other charges piggyback on the charges relating to each of these documents. In addition to four false statement charges and one obstruction charge that hinge on Drake’s claims about whether the information he took was classified, one of the false statement charges pertains to Drake’s claim that he only cut and paste unclassified information into a Word document.

As the defense notes (complaining that they had to reveal their defense strategy during the CIPA substitution hearings), they intend to cross-examine the government’s expert about whether this stuff is really classified.

During the four-day substitution  hearing, the defense continually noted its objection to the substitution of unclassified information considered “protected material” by the government. When asked by the Court to respond to the proposed substitutions, the defense was required to reveal its strategy, particularly as it relates to the cross-examination of the government’s expert, Ms. Murray. This, too, significantly prejudiced Mr. Drake and gave the government undeserved insight into defense strategy, which will not be reciprocated.

As it happens, when the defense first got the government’s binder full of evidence, it had Murray’s notes explaining the basis for her decisions on what was and was not classified.

On April 25, 2011, the government provided the defense with a binder of classified exhibits that it intends to introduce at trial. The exhibits in the binder contained both classified and unclassified information. Significantly, the government’s exhibits also contained numerous handwritten annotations by its classification expert, Ms. Catherine Murray, that reflect Ms. Murray’s opinion about which portions of the documents she deems classified and which portions of the documents she deems unclassified.

In other words, it seems the defense planned to (and did not object to the evidence in the binder based on that plan) to cross-examine Murray on the substance of her decisions about what was and was not classified in the documents Drake is alleged to have illegally retained and copied. It goes to the heart of the case against Drake. But the government wants to hinder the defense efforts by making sure that even things Murray decided were unclassified can’t be revealed in raw form to the jury.

It almost makes you wonder whether they hadn’t checked with their own experts before charging Drake, and belatedly discovered that much of it–according to their own expert–is not classified, and are now trying to endow that unclassified information with additional gravity by hiding it behind CIPA substitutions.

William Welch and DOJ’s Mojo Is Not Risen

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Who says fun things don’t come on Fridays? There is some nice little spooky news on the wire this afternoon. Jeffrey Sterling, a former veteran CIA agent on the Iran beat, was charged back in January with leaking classified information to a reporter. the reporter is widely known and accepted to be none other than the New York Time’s James Risen, and the material supposedly was contained in his book State of War. The prosecution, headed by DOJ leak hitman William Welch (disgraced supervisor in the unethical prosecution of Ted Stevens). For some unknown reason, Welch was installed by the Obama/Holder DOJ as head of their unprecedented crackdown on leaks to the media.

Looks like Welch may have gotten in front of himself again. From the Washington Post:

The government’s case against an ex-CIA officer charged with leaking classified documents to a reporter may not make it to trial because of potential issues with a witness, a federal prosecutor said Friday.

….

At a pretrial hearing Friday in U.S. District Court, prosecutor William Welch told the judge that “potential witness issues” will determine “whether the case goes to trial or not.” He did not elaborate.

Uh huh. What this really means is the court is not likely to change its mind about compelling Risen to testify – Judge Brinkema has already refused and quashed a subpoena once – and the DOJ’s own written guidelines make it hard for them to pursue that further. Oh, and they bloody well do not have enough admissible evidence to make their case without Risen. Makes you wonder just how, and how legally, the prosecution got much of their evidence.

Something you might would have thought a guy like Welch, who has made such an embarrassment of himself in prior big public cases, would have figured out ahead of time. Hey, who knows, maybe Welch can salvage his witchhunt against Sterling and Risen somehow; but you sure don’t see this kind of banter in open court when things are all nice and rosy.

William Welch’s mojo ain’t Risen.