The purpose of this note is to outline for the House Judiciary and TPMM a line of inquiry to examine the White house involvement with the FBI interviews of Wecht jurors. This forms the basis for the House Judiciary to ask the US Attorneys Office to comment why a grand jury has not been empanelled to review these issues. No exception relevant to DOJ IG or DOJ OPR would warrant the President invoking state secrets to block an investigation of these issues; nor justify White House involvement with FBI interviews of jurors.

This comment is organized into two sections:

1. Background information about DoJ Activities requiring coordination with external personnel;

2. Discussion Questions

PART I: White House Coordination With External Entities

There are many issues which point to the common elements within the White House legal office and President. These factors relate to stovepiping of information within DOJ; and the public lessons of the US Attorney firings, and how the White House learned, in the wake of the Congressman Jefferson raids, what the FBI must do to get information from another branch of government.

This section shows the difficult of quickly moving FBI agents, and sharing information within the DOJ, unless there were decisions about the DOJ AG to coordinate this planning and information exchange with personnel in the Judicial Branch of government.

DOJ Operating Guidelines

The House Judiciary has opened an investigation into alleged improper FBI contacts with Wecht jurors. One issue of concern is the means by which FBI agents gained access to the Juror's names. The Jurors are not employees of the President or Executive branch, but were public citizens assigned to a jury pool in a separate branch of government. The Committee would like to know not only who made the decision behind these FBI contacts, but also how FBI agents gained access to this information. It appears the White House was involved. This comment outlines the basis for the allegations, and the lines of questions TPMM and Congress may wish to discuss.

It's been reported FBI agents have contacted Jurors for the Wecht trial. Before directly addressing their true motivations for contacting the Jurors, it's appropriate for the Committee to review how FBI agents work under Special Agents in Charge, and the relationship between the FBI, US Attorneys, and the Judicial Branch.

FBI Access To Judicial Branch Information

For the sake of discussion, one problem with the FBI contact with Wecht Jurors is the issue of how the FBI agents, working in the Executive Branch, had access to secret information, supposedly only known to the Judicial Branch. Supposedly the Juror's names are confidential, carefully guarded, and under the Court Administration Control. We've learned with the Congressman Jefferson case that the FBI does not have free license to walk into a separate branch of government, demand information, and walk out the door. Either the FBI provided an explanation to the Court Administrators in re the Wecht Jury, and acquired access to the Juror's names; or someone inside the Judicial Branch gave the FBI agents these names. It's less important, for now, to review how or why this happened until we confront the major issue: The FBI, despite the smackdown in re improper access to Congress, appears to have gained access to the Judicial Branch files.

FBI and US Attorneys

Turning away from the apparent internal control problems within the Court Administration, let's focus on the FBI's relationship with the US Attorneys office, and FBI leadership. This analysis will show, because of the horizontal and lateral stovepipes, that the most likely direction for the FBI access to and interviews of the Wecht Jurors has less to do with internal FBI or DOJ decisions, but direction from the White House.

First, the relationship between the US Attorneys Office and FBI deserves some attention. The FBI is not an employee of the US Attorney or prosecutor. The FBI and Office of US Attorneys are separate, vertical stovepipes within DoJ. The FBI does this which the US Attorneys do not necessarily know about. Conversely, the US attorney may ask FBI agents to do things, and the FBI agents may refuse. The US Attorneys do not control, direct, manage, or guide the FBI agents. The FBI is merely an investigative branch.

FBI SAC Management

Second, let's consider the internal workings of the FBI and the relationship with the Special Agents in Charge. Special Agents in Charge are busy people. They can have many hundreds of agents and personnel assigned. On a given day they may have many reports, intelligence briefings, and other classified activities. They have a hard enough time managing the day to day affairs to believe that "out of the blue" a group of FBI agents "on their own" interviewed the Wecht jurors. Rather, before any FBI agent would interview the Wecht Jurors, there would have to be direction, permission, or guidance from the Assistant SACs and SACs. Getting a single FBI agent to investigate a specific issue isn't a matter that someone can just pick up the phone, and call an FBI agents. That manning allocation needs to be reviewed, then an agreement that multiple FBI agents must be assigned to accomplish a specific objective.

In the case of the Wecht interviews, we know a few things happened. A single FBI agent did not act, indicating that a group of FBI agents worked, with ASAC and SAC concurrence. Also, we know the US Attorneys may or may not find this unusual.

Investigations Are Different Than Trial Case Management

The Office of US Attorneys and prosecutors litigate cases. FBI agents have no role in managing the litigation files. The role of the FBI is to manage investigations. The US Attorneys do not direct the FBI agents on a day to day basis; nor do the FBI agents only work on specific US Attorney cases. When we talk about an FBI investigations, we're not talking about US Attorney-directed efforts to support a specific case. The two are different. Someone above the FBI and US Attorneys office would have to organize this effort.

The question in re Wecht is: What factor would, out of the blue, inspire the Prosecutors to ask questions about the Wecht Jury members? The issue has to do with litigation preparation. One aim of the FBI agents in interviewing the Wecht Jurors appears to understand the internal deliberations of the Jury. Whether the prosecutors in the US Attorneys sought this out is secondary to the core issue: FBI agents were discussing this issue not with mere civilians, but with people only assigned through the Judicial Branch.

Required Coordination Above DOJ AG

Someone would have to do the following:

- Identify a requirement to contact the Wecht jurors

- Get SAC and ASAC concurrence to use FBI agents

- Assign a group of FBI agents to interview the Wecht jurors

- Correctly identify the key Office of Administration employee in the Judicial Branch with access to the Wecht Jurors names

- Coordinate the movement of the FBI interview information from the SAC to the receiving organization, presumably the US Attorneys Office, DOJ, and higher

Explaining US Attorney Direction To Independent FBI

Recall, we've stated that the US Attorneys and FBI agents do not have a hand-in-glove relationship. Someone with some perspective of the legal issues, not just this case, would have to decide there needed to be an effort to understand the Wecht Juror's views. The issue is to explain how the US Attorneys, with this indirect relationship, could convince the FBI, this quickly, to agree to a discovery plan, mobilize a group of FBI agents during this "oh, we're so busy chasing terrorists information"-era; then organize both the FBI, and US Attorneys to coordinate with the Judicial Branch, correctly identify the case, identify the Jurors names, and provide this information to the FBI; then take the interview files from those FBI interviews, coordinate them with the US Attorneys, and keep the Judicial Branch happy.

It defies reason to believe that anyone below the DOJ Staff level was not involved. As we saw with the US Attorney firings, the e-mail within DoJ clearly shows which DoJ Staff workflows required White house involvement. It appears what's happened is the White House trumped the Attorney General, directly directed the DOJ Staff to work with the Judicial Branch, and through the US Attorneys, organize with the FBI a plan to do the following:

- Identify the legal issues which the Wecht Jurors had trouble;

- Coordinate a clean plan to secure the Wecht Juror names from the Judicial Branch, and provide those to the FBI

- Ensure the FBI findings adequately met the litigation requirements of prosecutors; and served the political interests of the White House.

Lessons Of FBI Raid on Congressman Jefferson Office

Let's consider the arguments against the above, and start with the obvious: White House involvement. Unless the White House were involved, especially in the wake of the Jefferson Office intrusion, the FBI would have a problem: They would have impermissibly associated with personnel in another branch of government. This defies reason. It makes more sense, in light of the lessons of Jefferson, that the FBI would be more sensitive to political cover from the White House, and ensure that the FBI agents were "appropriately" acting in a way that the White House could indirectly support, defend, and justify. The public plan may be to distance the FBI from the White House on the Wecht Juror situation. however, the lessons of Jefferson suggest the opposite is more likely.

The other issue is the assertion the FBI agents did this on their own. That defies reason because FBI agents, during this "war on terror" are not in the offices sitting around with nothing to do. Rather, there' so busy, that they must rely on reserve, civilian law enforcement to complement the JTTF. They are very busy people. FBI agents on their own do not agree as a group to interview Wecht Jurors unless the ASACs and SACs, as a minimum, were involved; and the FBI agents had information from legal counsel outside DoJ.

Indeed, the problem with stopping at the SAC-level goes to the US Attorney-FBI agent relationship: They're independent. FBI agents are not there to conduct litigation analysis, but to gather evidence and intelligence related to criminal activity. Someone above the FBI, with power to influence both the litigators (receiving, requesting the information) and the FBI leadership (tasked to conduct the interviews).

Some may argue that this is a rogue US Attorney action, directing the FBI agents. That defies reason because the US Attorneys do not control the FBI agents. Rather, what's more likely tis the US Attorneys assigned to the DOJ Staff developed for the FBI the interview questions so the US Attorneys would have the litigation material needed. This would imply direct US Attorney-FBI collusion behind the DOJ AG back. That is unlikely.

Higher Coordination, Outside DOJ Required

Most likely what happened is something very similar to the alleged collusion over the US Attorney firings: Someone within the WH Political office worked with the DOJ OLC and legal personnel to identify a requirement, and close the loop on the perceived problems in the Wecht case. Those perceived hols are less important than the larger issue: Who would have a political and legal interest, outside an independent, mock jury, to find the specific reasons this Wecht Jury was or wasn't convinced; and what problems the Jury had with the Wecht prosecutor's arguments. Someone would have to know about mock juries, reject that approach, and convince someone to go directly to the Wecht jurors.

The White House does not necessarily have a bee-line access to Wecht defense legal counsel. All they have access is to the US Attorney working papers, and, now, the internal Jury deliberations responding to plaintiff and defense counsel arguments. Defense counsel provided their arguments in open court. Something within the internal deliberations appears to have prompted someone connected with the White House to organize DOJ resources, coordinate with the Judicial Branch, and conduct these interviews. Until the House Judiciary understands clearly the real people behind these FBI interviews, they'll not get straight answers on what was going on, why things were happening, or who did or didn't make a decision.

Unresponsive DOJ AG

For the sake of discussion, in light of Mukasey's comments about DOJ OLC memoranda still being operative, and DOJ AG's refusal to expressly enforce Geneva, it appears reasonable that the House Judiciary is not going to get a timely straight answer from the DOJ AG on what decision he made, the legal basis for the FBI involvement, or how information flowed from the Judiciary into the DOJ and landed at the FBI desk.

Part II: Questions

Given the DOJ OPR involvement with similar legal issues, it would be appropriate for the Congress, DOJ IG, and DOJ OPR to glean the lessons from the US Attorney firings, and apply them to this case: Broadly assume the FBI agents were acting under orders above the SAC level; and someone within the White House, in re Jefferson, would have been knowledgeable of the FBI plan to approach the Judicial Branch and Jury Members.

With the above in mind, let's consider a line of questions for Congress, DOJ OPR, DOJ IG, and TPMM:

1. Who in the White House political office was aware of the Jefferson intrusion efforts, and ensured the same political and legal cover was applied to the FBI access to the Judicial Branch?

2. What legal basis did the Executive Branch through DOJ OLC give to the Judicial Branch to justify getting access to these Juror names?

3. After the FBI received their information, who on the DOJ staff worked with the White House legal personnel to ensure the incoming FBI notes and transcripts were then matched with prosecutor/litigator objectives, then farmed out to outside counsel to prepare future litigation and media strategies?

4. Once the FBI completed their reviews, who on the White House staff coordinated the information through DOJ between the FBI and US Attorneys?

5. Once litigators reviewed the responses, who were follow-up questions from the US government-connected counsel then forwarded through the White House and DOJ Staff and SACs to the FBI agents?

6. How did the Juror names move from the Court Administrator's office, through DoJ, to the FBI agents; then back to the litigators and White House?

There are too many stovepipes involved, involving too many coordination points, for the White House not to be aware and actively involved with what was going on. This is the same crew who has not been able to coordinate a response to simple reconstruction in Iraq or Katrina. An inability to effectively organize is one key characteristic of the legal counsel connected with this White House and Department of Justice. They require careful supervision from the White House legal and political office leadership: The President.

The above answers from the White House, DOJ AG, DOJ OPR, DOJ IG, US Attorneys Office, FBI agents, DoJ Staff, DOJ OLC, White House legal staff, White House political office, White House public affairs office, and Judicial Branch employees in the Administrators Office for the United States Court must address:

- Use of FBI agents to gather information not otherwise available in the Judicial Branch;

- The appropriateness of disclosing Judicial Branch information in the Office of Administration to US Attorneys and FBI agents

- The DOJ Workflows used to coordinate the information transfer, questions, and litigation preparation notes before, during, and after the FBI interviews

- The lessons of the Jefferson Office access, and who within DOJ OLC and the White House staff would have ensured this DOJ approach to the Judicial branch did not make the same mistakes

- Why anyone should believe the FBI asked for, on their own, this information; yet the inexplicable questions which suggests the FBI agents had an unusual interest in non-criminal matters, but more with litigation -- motions, trial arguments, factors affecting the jury jugement, and case management -- issues which the US Attorneys, not FBI agents, should be primarily organizing.

- The timelines White House, DOJ OLC, DOJ Staff, US Attorneys, FBI agents, and Judicial personnel were on to coordinate this effort, provide information, discuss options, outline questions, conduct interviews, assess initial responses, and then provide a final package for the White House and outside counsel to prepare for the next litigation

- Who within the US Attorneys Office agreed to work with the FBI on these interviews; and the information, questions, and issues they were given, from whom, to provide confidence to the President and DOJ OLC that these issues were resolved;

- Where DOJ AG was during this entire timeline

- When the SACs, ASACs, and FBI agents met, agreed to cooperate, conducted the interviews, then waited for follow-up questions funneled through DOJ Staff

- How the results of these interviews changed White House, DOJ OLC and outside counsel's case preparation

- Where are the workflows within DoJ, how were these workflows organized

- What issues from the US Attorney firings (alleged DOJ AG improper discussions with legal counsel) are we seeing again

- What discussions within DOJ OLC, DOJ AG, and other DOJ Staff occurred after the House Judiciary Committee disclosed their plan to review these matters

- Who provided the names from the Judicial Branch to the FBI; and who within the White House and DOJ OLC discussed and approved the exchange of this information, and subsequent use by legal counsel.

testing, I like your passion on the issue however I had to provide a contrary opinion based on the facts. You are attempting to put blame where it is not. Central DOJ is not the issue in this case. The issue is you have a US Attorney that has gone way off reservation and has unlimited resources at her disposal. These resources include the FBI among other agencies.

The comments in this comment respond to the invalid assertions here.

[Numbers have been added for reference only, not part of original]

The analysis and responses are defective and inadequate to justify confidence in your assertions. You have failed to make your case here, or the information showing the White House has been implicated in the effort to direct FBI agents at Jurors. The point you're missing is the media article is non-sense. The basis for your assertions is a flawed news article. You don't really believe this:

Imprecise: 1. Testing, I have attempted to answer your viewpoints with fact and links to the news article.

It is incorrect to make the conclusions you did. Your analysis fails. You are unable to make coherent arguments. Re-read the responses. The issue you're missing. Your analysis doesn't work (added text):

Imprecise Analysis: 2. Basically, I have (unsuccessfully) tried to fill in the holes in your analysis that results from you not reading the articles on the case or understanding the process in relation to a hung jury. I do not mean to offend; however at this point perhaps bluntness is best.

This is not correct, in that FBI agents do not report to her; they are assigned to the FBI, not the US Attorneys Office. You're free to believe otherwise:

Dubious "Fact": 3. The simple fact is US Attorney Mary Beth Buchanan is the head of the DOJ for the Western PA District. All members of the DOJ report to her in that district as well as Washington.

Putting aside whether this is or isn't true, this is something which doesn't address how did the FBI agents know, this quickly, which questions to ask: and who organized the effort within the DOJ to gather the information. Even if your assertion is true, you cannot explain the speed of the FBI action, their ability to quickly organize litigation related information. The problem you have with this assertion is you later contradict yourself, at 6:

Dubious Facts: 4. The second fact is the jurors names were provided to both the defense and the prosecution at the onset of the trial.

Whether the law permits this or not, has no bearing on why the FBI agents when to their homes:

Red Herring, WMD: 5. After a hung jury, the defense and the prosecution is allowed by law to interview the jury to poll them on the case.

This shows you're not sure about the Jury names or contact information; or how someone working for the President (Article II, Executive Branch) was able to walk to the court, get secret information from the Judicial Branch, Article III, and nobody would say anything.

Doubt: 6. The addresses were already provided to the court and were surely released to the defense and the prosecution after the verdict.

This is the eligible pool, not the lists:

Protected, Personal Information 7. If you go to federal court house and look at the public record, you get all the names and addresses of the jurors on the case.

You're free to go there and demand to see home addresses of voters. To get access to that information, this quickly, especially in transferring the information from the Court/Judicial Branch to the FBI/Executive Branch is stunning. The problem is your assertion, that a "media report" is fact, when it is merely what the DOJ wants the public to believe. It appears you're confused, making arguments to believe non-sense, or not challenging the information using coherent arguments. Look at your analysis at the original link: You've made a sweeping assertion; and you've provided nothing.

Dubious Facts: 8. Here is the latest news story which outlines this fact: Link provided

You have no basis to exclude the White House from the involvement in orchestrating the FBI interviews at their home, with the US Attorney, DOJ, or the Judicial Branch. You're changing the focus from whether the White House was or wasn't involved with the FBI interviews; to whether or not the FBI was or wasn't involved with the case. Those are two separate, distinct issues.

Denial, Wrong Issue: 9. The White House is not orchestrating a case against a Pittsburgh Democrat.

This is an assertion, which Conyers still has not yet reviewed, and based on what little we know, there's little reason to believe your characterization of the events:

Dubious Assertion: 10. What you have is a US Attorney who has gone off the reservation in an attempt to curry favor with her superiors.

You may be correct that one US Attorney has gone "off" the reservation; but this can hardly explain why your arguments are imprecise. As with 9-11 and WMD, the public embraced red herrings. There is no difference here. Red herring are the same. Your request to not point out red herrings, or make comparisons to WMD and 9/11 are noted.

Invalid Demand, Prior Restraint 11. Please stop posting responses that say red herrings and talk about 9/11 and WMD. Such responses are beneath you and belittle your arguments.

Its proper to remind you and others that WMD and 9-11 have relied on dubious arguments, red herrings, and arguably reckless, retarded legal counsel memoranda. If you can get the US Attorney to testify under oath. The US Attorneys do not supervise FBI agents. When you read the entire comment, which you show evidence of having not understood, we'll talk about whether someone else should or shouldn't read something. Your comments about the issue show evidence you misrepresented or grossly misunderstood the argument. After you reconsider your remarks and the original comments, perhaps others might take your request to read information seriously:

Look in Mirror12. I ask that you please go and research the workings of the US Attorneys and the court system prior to pushing points as fact when they are not.

Curiously, you're "pushing" a news article as fact, but missing the point: Your arguments, and basis for criticism are imprecise. That is a flaw with your argument and analysis. The basis for your criticism must be precise. it is not. You're free to believe what you want. Your arguments are not persuasive. Your criticisms of the White House being involved are invalid. Your arguments are changing. That is a sign of a desperate argument within the arguably retarded DOJ Staff counsel to keep doing what they've been doing with the US Attorney firings. Your errors are linked with your apparent inability to read the argument implicating the White House:

Attorney Standards of Conduct, Dubious Assertion: 13. My concern is that when someone pushes things that are wrong in this type of argument, the result is the entire argument fails to gain support. In this situation, a review of the US Attorney in this case is surely warranted.

Indeed, the US Attorney must be reviewed, but in the context of the direction and coordination she made with DoJ Staff, White House counsel, and other staff who would have to know that a US Attorney and FBI were using information from outside the Executive Branch.

Your attack on that argument is flawed and imprecise. If you would like to make specific textual comments about the information provided implicating the White House, you are free to forward those to Conyers, post them on TPMM, or discuss them with others at the DOJ Staff counsel. Until then, until you provide a line-by-line analysis of the flaws with the original argument implicating the White House, you're in no position to argue that someone has or hasn't made a credible argument. Your imprecise analysis does not warrant a retelling of the original argument implicating the White House. You are free to explain why you keep asserting the FBI agents are under the US Attorneys control. You have failed to do that. You do your work, and maybe someone might take you seriously. You've got work to do. As does the arguably retarded DOJ Staff counsel.

Effort to clarify the relationship between the US Attorney and FBI agents: They are within DoJ, but are not in the same chain of command. US Attorneys do not supervise FBI agents.

Improper for Buchanan to conduct a DOJ OPR-like review.

Responses to red herrings, and imprecise analysis.

There's a common pattern, as with the Iraq WMD and 9-11 issues:

Dubious claims

Invalid arguments

Changing the argument

Failure to provide evidence

Assertions without any precise citation

Assertions that "articles prove something" without any citation of that article; nor any direct copy of any content which supports the assertion

Look at the common pattern of the links:

- Assertions the articles "prove" a fact about "what the law allows", but the cited article does not mention hung jury in the context of a statutory practice, or US Attorney manual custom

- Assertions that a particular articles proves a legal theory, but the cited article does not mention the law, that asserted legal theory, or the language

- Changing the argument from whether the US Attorney does or doesn't have control over FBI agents (they do not) to whether or not the FBI agents are or are not in the Judicial Branch (a misreading)

The comments within this comment respond to this.

Thank you for your commentary. Your arguments have failed. You need to provide a case citation or other controlling language form DOJ. The links you've provided are to news articles. You claimed those news articles supported/proved "facts", but you've failed to quote any text. However, those articles you posted as links do not include any text or quotes which support any of your assertions. This is your argument. Make it. Nothing you've said justifies confidence in your assertions.

Specifics

No citations, no case law, no statute citations:

Bushicide. I'm from Pittsburgh, I know the law,

Prove this, you keep asserting it, but provide nothing by way of the law, any quotes, or a reference to any article. You're asking the world to believe what you are saying on assertion alone. That's the same non-sense we had in re Iraq WMD:

I understand the administrative barriers between the DOJ and FBI, I know this case, and I'm sorry but the testing guy is flat out wrong.

This argument fails to make any headway. You're asking that someone believe your assertion -- that a review of this situation would ignore Buchanan -- this is absurd:

My biggest concern is because people such as testing are pushing so hard for this situation to be about the White House and Bush directly, they are going to let an extremely corrupt and dangerous prosecutor such as Mary Beth Buchanan have a pass. This lady is worst than Ashcroft and Gonzalez combined.

This doesn't address the legal issues, or the White House involvement:

The situation basically is that Buchanan saw the writing on the wall that Bush and Co. wanted to go after Democrats.

Nobody is saying ignore Buchanan, but you've misconstrued that assertion:

She then decided to start a string of cases which this Wecht case is apart of.

This is meaningless, TBD:

Now the case has blown up and she is using resources as best she can to attempt to patch things together.

You're contradicting yourself, again. You stated the opposite: That the law permitted this, it does not: The law does not expressly forbid things; but that distracts from the White House coordinated required to get this going:

Talking to jurors after a trial is not illegal at all.

The law may allow something, but the White House must be involved, this distraction fails. This argument has nothing (yet) to do with illegal activity, but whether the White House coordinated the effort:

Sending the FBI to do it is in poor taste and can be seen as intimidation, but it is not illegal.

This means the FBI agents are not assigned to the US Attorney. Key words is "request" which means that someone in DOJ had to coordinate her "request" with the FBI:

The local FBI can be utilized for the requests of the local US Attorney.

You have not provided any facts, only claims that articles (which are meaningelss) "prove" facts which you have not been able to justify:

I'm sorry that my opinions and the facts don't align with the great Bush witchhunt.

Look in the mirror, and your arguments fail:

I just do not wish to see people that are not informed push angles of a story that are not there and alleged assertions which are not fact that result in real criminals getting a pass.

You're not serious, and you don't really believe what you're saying.

Testing besides providing long winded rants, your comments have no case law, articles, or guidelines supporting what you are saying. All your links do is link a reader to another one of your comments that provides no basis for your argument. It is interesting that you now attack my comments on the same ground.

Defining A Jury Poll

Sometimes people have different ideas about hat definitions mean. This doesn't mean that they are wrong, or incorrect. It may suggest that some have a different, novel perspective of a common term.

Today's term is "Jury Poll". It appears there is not uniform agreement what this means, what's permitted, how it is done, or when it occurs.

Let's put aside the fact that we're not mentioning specific court rules or cases, and just focus on the generic concept of "jury poll". We're not asking you to explain the practice of jury polling, asking you to explain your definition of "jury poll":

I also do not understand why I must explain the common practice of POLLING A JURY.

We appear to be having a different view about what "polling" a jury means. Perhaps the following issues might assist:

Helping To Clarifty Terms

- Is it your view that a "jury poll" is something that only the court does; or is a "jury poll" something that attorneys and investigators do?

- Would you agree that a "jury poll" is something done after the trial?

- What phase of the trial is a "jury poll" conducted: In your view is the poll after the jury has given up; or is the poll done at another time?

- Is it your view that a jury poll is an interview done to exchange ideas?

- When you mention "jury poll" are you referring to information gathering about reasons the jurors made a conclusion of law; or are you talking about a poll that someone else might ask about speculative, future, unknowns?

- Do you view the jury poll as being a range of questions which are not regulated, conversational, and involve some give and take between the jury and others?

- When someone dues a jury poll, in your view, does that mean they can ask any question which the court cannot regulate; or does this mean that the court can narrowly define that subject of inquiry during the investigation?

- Do you view jury polling as something that there are not rules or guidelines governing those practices?

- Is it your view that polling a jury is the same or different than conducting an investigation?

- When we poll a jury for information, in your view, are we interested in asking for information about prospective, speculative things; or are we asking for certain, concrete, retroactive things?

There are several reasons for asking for clarification of what someone means when they talk about "jury polling". There are some important factors which need to be considered.

Until we get a clear idea of what someone may be defining as a "jury poll," we're not in a position to assess their comments about other issues. It's a simple question to ask someone to clarify their view of what jury polling means. Until that clarification occurs, it does little good to review their analysis -- premised in an inconsistent, possibly invalid definition of "jury polling" -- about whether or not the attorney or investigator conduct is or isn't proper; or whether they have credible views on who else would have to coordinate on these FBI interviews with jury members.

It is important that some have (apparently) deliberately confused the words "jury poll" and "attorney interview" and "FBI interview". Once we get some clarifications from them on their definitions, we'll get a sense of what misrepresentations DoJ Staff counsel and others may be deliberately planing in the media to muddy the waters. It appears as though there is some deliberate misinformation surfacing with one goal: To make it appear that impermissible conduct affecting jury independence is being explained away as a "common" practice, when, in fact, the real conduct is not common. What is common is one type of jury polling; what is not common is a separate, different practice: Interviews.

The questions which seek clarification on jury polling are designed to test and determine the following:

- What is the definitions someone is using on jury polling;

- Where might their information be coming from;

- Is there only media-sourced information related to what is "common" practice;

- Why are people asserting they are "familiar" or "know" the law unwilling, unable to cite specific case law, law reviews supporting their assertions about what jury polling is or is not?

It's not our job on TPMM to do the staff work for the DOJ OLC; nor is it to provide feedback to DOJ OLC on which media messages they need to correct so that we are deceived. The US Attorneys office has a job: To prosecute. The question, as was the case with the US Attorney firings and Iraq WMD: To what extent is dubious information, under the guise of authority, being planted in the media, taint the public debate, and achieve objectives that are contrary to legal requirements, ethics, or other standards of conduct applicable to government officials, legal counsel, or members of the information pipelines.

At this juncture, given the time that's lapsed, DoJ OLC appears to have several problems:

1. There's been a credible allegations that the White House has been implicated with this FBI interview of jury members;

2. The basis to refuse those allegations have, at best, backfired or at worst, raised more questions than the DOJ OLC is prepared to answer, as was the case with the FISA issues;

3. There's been no adequate explanation for why there is apparent confusion between "interviews" and "polls"

4. DOJ OLC has not adequately worked with DOJ PA to resolve concerns about apparent DOJ Staff counsel planting misleading, unreliable, or confusing information with the media.

As with the US Attorney firing issues, FISA, and Iraq WMD, the initial responses are not consistent with a clean story. Rather than resolve issues, the small nuggets in the media are, at best, creating confusion; at worst, that confusion, not the alleged White House involvement with those improper FBI interviews of jurors, is getting the attention. The concern is that each argument to deflect attention from the arguments for White House involvement are based on faulty reasoning, incomplete analysis, misrepresentations, and lack of precision. If there was something regular, proper, or appropriate, then we should have a resolution, not more confusion.

None of the issues raised -- about the apparent White House involvement in the alleged improper FBI interviews of jurors -- has been adequately refuted with coherent objectives, valid criticisms, or precision, but the opposite: They've been treated with a broad brush. That is not adequate. This bolsters the case, especially this far into implicating the White House, that there's a reasonable argument to be made that the White House involvement is real, direct, and something many would not like to openly acknowledge. However, the facts as they appear tend to support, and not adequately refute this assertion about the apparent White House involvement.

We judge the following:

- DOJ Staff counsel -- working in concert with the PA US Attorneys office, DOJ OLC and White House counsel -- have discussed on background with media various confusing media messages by design to deflect attention from improper FBI interviews to creating the false impression that "jury polls" and "attorney interviews" are the same as "FBI interviews"

- The DOJ OLC and US Attorney know there is no case law supporting any assertion they've asked th e public to believe that "jury polls" are the same as "attorney interviews" or "FBI interviews"

- DOJ Staff have impermissibly left the impression through the US Attorneys office that something that improperly affects jury independence in the judicial branch is something that the Executive Branch can assert as a power, when it cannot;

- The DOJ staff would like to distract attention from the Supreme Court recognizing that no defendant has a right to demand jury polls in re the Eighth Amendment; but they would like to create the illusory right or power, not within the Constitution, that the President and others can demand access to jury members;

- DoJ Staff would like to distract attention from rights which do not exist, but create the impression that the President, US Attorneys, and FBI agents have powers and rights which the Supreme Court does not recognize a criminal defendant has: The right to demand a jury poll to ensure a fair trial.

Some have curiously suggested they "know" the law; that they have information; that the information is "out there" on the internet; or that they are too busy to explain their views. If someone were to know the legal definition of a jury poll, then they should -- to resolve a misunderstanding -- be able to point to a specific thing on the internet to support their statements about why these FBI interviews are or are not proper; then after than, generate support for why their criticisms about the apparent White House involvement should or shouldn't be believed. The easy step isn't taken; the more difficult step has merely been asserted as proven, but not demonstrated. This is an invalid demonstration reasonably expected in teh public forum. There have been some reasonable conclusions that the White House has been implicated, yet those suggesting this theory is invalid have not met their burden to discredit the investigation into those allegations. The scales are not tipping in the favor of those who say the White House or DOJ OLC are not involved. They may not be; but nothing we've read or seen suggests their involvement can be excluded. Rather, the US Attorney's statements or non-statements suggests some carefully crafted messages by legal counsel outside the PA-area.

The above should be considered in the spirit of the sad lessons of the Iraq WMD issues: Invalid, dubious assertions about various lines of evidence were not adequately refuted; and the claims supporting those assertions were weak; and those challenging those views were not credibly debated. IT appears the same is occurring here in re the apparent White House involvement with the decision to use FBI agents to interview jurors. DOJ OLC and the US Attorneys office needs to explain why jury polling is or isn't the same as an attorney interview or an FBI interview.

It's also been suggested that mock juries are worthless. That's an assertion, but fails to address the issue: How do we explain the use of mock juries, and the information legal counsel get from mock juries to answer questions. There is something very important: A jury deliberation is not the same as a jury conclusion. Deliberations are ongoing; conclusions are verdicts with an end. A mock jury will focus on jury conclusions; an poll does not. A poll will focus on something else, and the timing of that poll is important in the trial. The issue isn't when this happens, but are those who are talking about jury polls able to differentiate between when a jury poll is or isn't different from an interview. If you're confused, don't worry. Stick with this, and with time you'll see there's an important issue which hasn't been mentioned. DOJ OLC and the US Attorney needs to commit to something before we openly discuss that issue. On Monday or Tuesday they are expected to walk into the trap, and you'll be able to see what they've walked into. Until they are stuck, they're going to dig themselves deeper into a hole on this.

This comment responds to the quotes below from this comment It appears the confusion stems from inconsistent arguments about what a jury poll means, when it occurs, what it is used for, and how it is different or the same than an interview.

1. Irrelevant

Testing and others, I am not defending the Bush administration.

2. No Basis To Characterize Arguments As Erroneous

This assertion is based on lack of clarity over what a jury poll is. Not interested in the legal definition, but your view of what a jury poll is:

My concern is your failure to understand the inner workings of the DOJ, in this case the Western PA office, has caused you to jump to an erroneous conclusion that the White House must be running the show.

The above doesn't adequately discuss the specific comments, problems, or errors with the original argument implicating the White House.

3. No Basis to Narrow Possibilities

This appears to narrowly conclude the scope of the problem, without an adequate explanation from the US Attorneys office over the difference between jury polls, attorney interviews, and FBI interviews. There doesn't appear to be a reasonable basis that only Buchanan is controlling the decisions; nor that DOJ OLC and the White House are not involved:

The simple fact in this case is it appears that US Attorney Mary Beth Buchanan is controlling the decisions in the case.

4. Deriding Mock Juries To Test Arguments

We're asked to believe interviews (as opposed to jury polls) are "common" to analyze legal arguments, but that mock juries are less than optimal. Mock juries provide insights into how litigators' arguments will or will not work. Your comment about why mock juries are or are not adequate fails to explain why mock juries are not used in preference for something else. Whether that "something else" is or isn't a jury poll, attorney interview, or FBI interview is a secondary issue, pending your clarifications:

I hear the crap about mock juries and what not,

5. "Common" Practice Without Discussion for Judicial Oversight Rules of That Practice

This changes the word from "poll" to "interview", without explanation:

when you fail to understand that interviewing juror members in a hung jury is commonplace in the court.

6. No Link to Procedures of Common Practice

This is absurd arguing that the plaintiff and defendant counsel would want information to know the result of the second, subsequent trial trial:

This process is down so that both sides can understand the likely result of a retrial. This practice is know as polling the jury.

7. Muddling Terms: Poll v. Interivew

Again, mixing terms from "jury poll" to "FBI interview"; then asking us to accept a "jury poll" is common so (by implication) so "must" the FBI interivew. Rather, FBI interviews of jury members is generally unheard of.

It is not commonplace to use the FBI to do this though.

8. Assertions Impermissibly Narrowly Define Issue

This misstates the issue, distracting attention from the (apparent) deliberate obfuscation over "jury poll" or "attorney interview" or "FBI interview". The issue isn't the anger, but whether a reasonable argument implicating the White House has or hasn't been adequately addressed. It has not:

That is the issue in this situation. People are angered that the US Attorney had the FBI contact the jurors.

9. No Basis To Distract Issue

The issue isn't "zeal" to do anything, but what seems most reasonable: Can the US Attorney, in light of Jefferson, order the FBI, outside her control, to do things which she calls an "interview" but some would rebel an "acceptable jury poll":

The concern that is now raised is because you have are so zealous to implicate the White House, you will overlook the true criminal in this situation. I hope this does not happen.

The above argument asks that we look at the "true" crime, but ignore other explanations implicating the White House explaining what might be behind the decision to conduct FBI interviews, as opposed to jury polls.

10. Same As Iraq WMD: Inadequately Argued Points

You've failed to provide any link citing one case; and you've not clarified your definition of jury poll; or how it is or is not the same as an attorney interview or an FBI interview. The issue is that you're using convoluted arguments, imprecise definitions, and haven't cited specific comments within the links you provided to support your assertions. This is your argument to make, but you haven't made it. This was the same problem before the Iraq invasion: Many assertions, and no credible backup or arguments; nor adequate explanations and discussions.

I await the fifty responses that argue WMD, 9/11, Red Herring and scream at me for not providing links.

11. Appearance of Deception Allegedly Linked With DOJ Staff Objectives

If DOJ Staff are involved, as appears to be the case, this could be a DC Disciplinary board issue. This statement appears deceptive in that the poster claims they have "no time" to do the following:

- Provide a link to a case that would support their claim;
- Show how the US Attorney has no oversight of the FBI;
- Explain how a "jury poll" is or isn't different than an "interview" an FBI interview or an attorney interview:

Sorry, I do not have time to provide links for known court practices such as polling a jury or the known relationship between the FBI and the US Attorneys.

The failure to provide the links means you've provided not information to justify any criticism that the White House been implicated with the decision to direct FBI interviews of jurors.

Rather, based on a review of your other comments on TPMM, it appears you do have, and are commenting elsewhere. You're just choosing not to spend time supporting your argument. You've asserted that you "know the law" and there are "known" court practices, but you refuse to link to one.

Said another way, you claim you have "no time" to find a link to a known court case (which supposedly supports your argument), but you are posting on other topics. You appear to be providing an excuse not to provide a link not because you don't have time, but because you have no link that addresses your claim. You appear to be providing invalid links to media reports which are not adequately discussing the difference between "jury polls" "attorney interviews" or "FBI interviews". You appear to be deceptive.

Comments here related to original comments here , bracketed below:

You've shifted the focus from whether the US Attorney does or doesn't control the FBI; to whether those more generalized resources are or are not under their influence. You've provided no facts:

1. Dubious Facts Without Clarifying "Jury Polling"

testing, I like your passion on the issue however I had to provide a contrary opinion based on the facts.

2. No Basis For Immunity

This unreasonably insulates the White House, without adequately addressing the arguments for their involvement, and implicating the White House with the decision to direct the FBI to conduct interviews with jury members at their homes:

You are attempting to put blame where it is not.

This is correct, the issue is the White House involvement with the FBI interviews of jury members at their homes, and DOJ Staff involvement with that decision and discussion before the FBI conducted interviews/interrogations with jury members:

Central DOJ is not the issue in this case.

3. Assertions Inconsistent With DOJ Chain of Command

DOJ OPR and DOJ IG would not agree that the FBI works for the US Attorney or is assigned to Buchanan:

The issue is you have a US Attorney that has gone way off reservation and has unlimited resources at her disposal.

4. Failure To Explain FBI Relationship With Court On Information Transfer

The US Attorney cannot direct, on her own, the FBI. The FBI is not under the US Attorneys office or the Office of US Attorneys. It is a different division within the DOJ:

These resources include the FBI among other agencies.

The US Attorney had to go to the SACs; but to use FBI agents to go to the jury members' homes, she had to get that information from the Article III judicial branch. That means the White House had to know about this exchange of information from the Court to the DOJ, otherwise the DOJ would be repeating the errors of the raid on Congressman Jefferson's office.

For clarity, Philbin is not an attorney, but with the public affairs office.

Margaret Philbin, spokeswoman for the U.S. Attorney's Office in Pittsburgh

- What information did legal counsel provide to her with the intent that the allegedly false and incorrectly information from legal counsel was disseminated to mislead the public?

This doesn't say Buchanan supervises FBI agents, but merely meets with representatives:

"In more complicated cases, I like to meet personally with the law enforcement agencies to discuss the case and, in many cases, review the evidence myself," Buchanan said.From

Nobody makes a point of saying they "meet with" people they regularly supervise. This is intended to show Buchanan goes out of her way to cross the treshhold from the US Attorney's office, and cross into the FBI's domain of conducting investigations and gathering evidence, to review the status of the investigation. FBI SACs, not the US Attorney, supervise FBI agents.

Buchanan's role has nothing to do with conducting investigations or gathering evidence: She merely presents the case and evidence for trial. She manages the case, she does not manage the investigation. FBI does things the US Attorneys don't necessarily know about or keep track of.

Relevance To Implicating WH With FBI Interviews of Jurors

This goes back to the speed with which Buchanan was able to "direct" the FBI agents, relying on Article III Court information, to go to their homes. Someone above the FBI on the DOJ Staff, not Buchanan as a US Attoreny in DoJ, would have had to coordinate the FBI, the information from the Judicial Branch, and the issues of using court information to interview, not investigate jurors.

COMMON TACTIC WHEN SOMEONE IS WRONG

This is a common tactic with someone has stated something that is wrong or baseless. Instead of addressing the point, the person takes a term and attempts to dilute its importance to the discussion by posting question after question opposed to anything of merit.

In this situation, it was noted that the prosecution was attempting to poll the jury as they are allowed to do. Opposed to addressing this point, the response by someone that disagrees is please define jury polling with about thirty questions.

Summary of Testing Argument:

The White House must be directly involved

Evidence: NONE

Response to anyone that does not agree with Testing Viewpoint: Your dubious, red herrings such as 9/11 and WMD, imprecise analysis, etc. etc.

This comment responds to the same post, reposted here and here.

The argument -- about whether something is or isn't valid -- is premised on your assertions about jury polling. You've not adequately addressed the questions on jury polling. We can't get that clear; there's little to believe you can credibly argue for or against somethin