DoJ OLC Likely Reviewed Indiana Case Law, Raising Doubts about Government Claims on Wecht Post Trial Jury Tampering

The Department of Justice internally discusses whether a specific statute does or does not prohibit planned activity. Something we've learned from the DOJ memos is the principle of
foreclosure, as it relates to court jurisdiction, standing, foreseeable
litigation, or  legal terminology.

Consider the following in 2001 which admitted there was nothing that closed the door to POWs brining suit; yet it took seven years for the court to tell the President and DoJ Staff counsel what they knew: Habeas had not been expressly denied to POWs, nor was there any precedent to remove that possibilty from the foreseeable outcomes, key word, "foreclose":

"[W]e have no decisions that clearly foreclose the existence of Habeas Jurisdiction [in Federalist District Court]”

From: Patrick F. Philbin, Deputy Assistant Attorney General, Dec 28,
2001; “Possible Habeas Jurisdiction of Aliens Held in Guantanamo By,
Cuba

The above tells us since 2001, the Department of Justice has known, or should have known, that the POWs had a foreseeable chance of standing; and that any failure to preserve all evidence related to that litigation could be a serious issue, as it applies to the CIA tape destruction.

The above tells us a few things about how the Department of Justice staff counsel will review a legal issue:

1. They will consider the proposed plan, in this case to deny prisoners access to the courts;

2. They will consider whether a Presidential decision has 100% chance of success, or whether there is a potential problem for the President;

3. They will evaluate the case history of that legal decision, and examine whether there is any chance the President's decision may not be supported by the courts; and

4. They will examine whether the precedents remove any doubt from the debate over whether or not a Presidential decision may be successfully challenged in court.

The DOJ memos in re Habeas show us there was a foreseeable, articulable chance, going forward from 2001:

A. A court might not agree with the President;

B. The court might rule a decision was not lawful or consistent with the Constitution;

C. A legal definition applied to the prisoners on their status may not be consistent with the court's evaluation of the President's approach

D. The case history kept open the option that the court might further define what the law meant, how it would apply in a specific case

E. Some foreseeable issues with a legal issue remained uncertain, and the court had the option to do something which the President and legal staff may not have considered.

Some have suggested there is no rule that prohibits post-trial jury tampering; or that there is no such thing as post-trial jury tampering. However, in light of above in re Habeas rules, where the Department of Justice expressly stated the legal risk had not been foreclosed, so too is the issue of "post trial jury tampering" not expressly foreclosed. The Indiana Court said the interactions with jurors

Could "[o]pen the door to post-trial jury tampering" [754 N.E.2d 899, Supreme Court of Indiana]

The Indiana Supreme Court expressly wanted in 2001 to avoid post-trial discussions because this would open the debate to why a jury did or didn't reach it's decision, placing a burden on jury members:

"[W]e
have historically been reluctant to open the door to a "contest of
affidavits and counter-affidavits and arguments and re-arguments as to
why and how a certain verdict was reached. Such an unsettled state of
affairs would be a disservice to the parties litigant and an
unconscionable burden upon citizens who serve on juries."  [ 754 N.E.2d 899, Griffin v. Indiana, September 7, 2001 ]]

The Indiana decision is important because in re Wecht, the US government has expressly used the juror's "conclusions" to release -- in the media -- incorrect comments about the jury's deliberations. Not only was the jury getting harassed, but the government was twisting their information, but using "the jury"-said to mislead the public.

Putting aside the alleged ethics violations of a prosecutor making impermissible, misleading trial-related comments in the media, this is something Indiana Courts nor would Federal Court would like not favorably review the post trial contact. Consider the Indiana Supreme Court language:

"Upon
an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course
of the jury's deliberations or to the effect of anything upon that or
any other juror's mind or emotions as influencing the juror to assent
to or dissent from the verdict or indictment concerning the juror's
mental processes in connection therewith . . . " [ 799 N.E.2d 1103 ]

Misconstrued jury members deliberations aren't supposed to be used, after trial, as a means for the government to continue arguing (with misleading information)  it's case against a defendant, which is what's happened with the Wecht Jury.Arguably, the US government's use of the incorrect jury conclusions amounted to a jury "testimonial" which the government used with the express intent to muddy the public debate, and affect future jury pools in Pennsylvania.

There is an express concern with post-trial harassment of jury members, which some believe is outside what "post trial jury tampering" means. Yet, in Indiana the court concluded there was a risk with post-trial harassment, has has been alleged in re the FBI contacts with Wech Jury members, despite those seated juror names being sealed (notes omitted):

"It is well-established in Indiana that a
juror may not by affidavit impeach the verdict. The sanctity of
verdicts would otherwise be diminished and no verdict could ever be
final. Jurymen would forever be harassed."
[261 Ind. 273 ]

The objective, in preventing the risk of being "forever harassed", was to close the door on that harassment. How Indiana closed that door is less important than noting Indianan in 1973 expressly was concerned with post-trial jury tampering in the form of perpetual harassment.

We fail to see how the government in re Wecht post trial jury tampering has adequately considered any case law closing the door to all contacts when the court seals those juror names. Rather, it is more likely, as with the Habeas issues, the government did discuss that no court has expressly foreclosed the definition of post trial jury tampering; but that there is case law, which the DOJ OLC staff should have known, that left open the possibility that post trial contact could be determined to be harassment, beyond what the government was permitted to do.

The DOJ Staff memos in re Guantanamo, POWs, Habeas, and the post 9-11 world give us great insight into the exhaustive legal reviews the DOJ Staff counsel do. As a reminder, the DOJ Staff recognized the courts had not closed the door to all habeas rights for POWs. Similarly, it cannot be argued that the DOJ OLC staff did not recognize the same problem in re post-trial jury tampering: No court had expressly said that jury tampering was "only" before or during trial. If there was, the state court in 1973 would not have kept the door open to something federal court had expressly closed.

Under Justice Roberts, we know that stare decisis is not binding. This means that even if the Supreme Court had determined that jury tampering was "only" before or during trial, that DOJ OLC should have considered teh chance that the Supreme COurt would determine this post trial contact to be outside what the court intended by expressly sealing the names of the Wecht Jury members.

Recall, the words of now-Justice Alito during his confirmation hearing, something Buchanan most likely closely followed, as did the DOJ OLC staff:

ALITO: "And I -- not the principle of believing everything in The Washington Post, but the principle that stare decisis is not an inexorable command"

In light of the clearly established policy of this Supreme Court in putting the question of stare decisis on the table as a debatable point, it's reasonable for the House Judiciary and TPM to proceed with the following assumption:

Post Trial jury tampering is not a closed issue. DoJ OLC staff and Buchanan knew, or should have known that the Supreme Court in re Wecht could, as was done with Habeas in re POWs, expressly assert judicial power and provide definition to whether post trial contact with jury members was or wasn't harassment.

The issue has not been closed, as DOJ OLC admitted in the 2001 memos in re Habeas. Under this United States government and President, with the able assistance of Buchanan, all the rules and laws are open to question. She and others could not reasonably proceed with any assurance that this post-trial jury tampering would not be reviewed in the context of evidence before a war crimes tribunal. War crimes prosecutors would review:

Is the United States judicial system free of bias; or must foreign powers extradict American citizens to appear as defendants before courts to prosecute cases where foreign nationals have been abused in violation of Geneva.

The DOJ emails answer this question: The United States knows the legal requirements; but cannot provide assurances that foreign national's legal rights under Geneva can be fully, timely respected in American courts. This leaves open the possibility that US civilian policy makers and others, for their alleged breach of Geneva and US government refusal to enforce the laws of war, could be extradicted:

"[These procedural protections] might be lacking if the United States
extradited the individuals . . . [to their] victims’ home countries for
prosecution.”

DoJ OLC never said Buchanan could not be extradicted for war crimes; only that if someone like her was extradicted, she might not enjoy the procedural protections of the Geneva Conventions. That is of little interest to Jury members who have allegedly been illegally harassed despite court assurances their names were sealed. Once the United States ignored Geneva, all foreign powers may lawfully ignore those same, ignored procedures. The chance that Buchanan, if extradicted, "might" not enjoy protections is not debatable: The United States, by ignoring Geneva tells all foreign powers they are not required to respect Geneva or Buchanan's legal rights.

It is in the legal interests of Buchanan and other US Attorneys to enforce the laws of war through FBI investigations of war crimes; otherwise, their inaction could subject them to two things: Prosecution of war crimes; and a denial of enjoyment of rights she and others are alleged to have not fully enforced. Either she enforces the laws of war; or foreign powers -- in perpetuity -- may lawfully impose the laws of war on her, and deny her of the same rights denied to POWs.

The Military Commissions Act has language granting funds to US defendants before foreign tribunals. It is forseeable some Americans may be prosecuted in foreign courts for war crimes. Yet, despite this legal interest to investigate and ensure US Attorneys would enjoy protections during trial before foreign courts, it appears Buchanan, the President, and US Attorneys are not fully asserting their legal obligations under the Geneva Conventions.  This defies reason. There must be an interest to block fact finding.

This alleged malfeasance seriously jeopardizes allegedly complicit US government officials' legal interests; and could warrant an upward revision during sentencing, if convicted of war crimes. This alleged malfeasance by Buchanan in re Geneva should not inspire confidence of any war crimes prosecutor in the leadership of America or their interest in enforcing Geneva.

Once the United states refuses to honor its extradition obligations, other powers will do a legal review:

When the US government refuses to respect extradition requirements, the open question is whether other powers will similarly declare their extradition obligations to the United States as null and void.

These are substantial legal issues of interest to the Congressional foreign relations committees: The chance that foreign powers may lawfully revoke an extradition treaty because the United States Attorneys refuse to ensure US citizens, charged with war crimes in foreign courts are extradicted.

The above should not be considered a definitive conclusion of law nor legal advice. It merely outlines for TPM readers and others interested in the Wecht Jury tampering, that the DOJ Staff counsel notes in re POW-Habeas do not reconcile with what Mary Beth Buchanan and the FBI supposedly did in re Wecht. It appears the following most likely happened:

A. Legal counsel inside DOJ OLC did a legal review of the potential risks associated with post-trial contact with Wecht Jury members, and documented their legal conclusions, in memos which the House Judiciary should see under the crime-fraud exception to privilege;


B. A DOJ OLC comprehensive review of the notion "post trial jury contact" would have yielded a similar conclusion in re Habeas and POWs: That no court had closed the door on imposing court sanctions for post trial jury tampering; and that the courts had not expressly closed the door to reviewing all post trial interactions between the government and the Wecht Jury;


C. The government concluded that the risks of detection were small, but likely expressly concluded that if detected and discussed publicly, there was a real chance, in light of the Indiana decisions in 1973, that the post trial jury tampering in re Wecht could be determined to be unlawful harassment, especially when the seated jury names were sealed


D. It is likely the President, White House counsel, and other senior GOP officials, knowing this foreseeable chance the court might not support Buchanan and the FBI and Wecht, fabricated a story that they "derived" the sealed juror names from the list of potential jurors.

If "D" is true, the problem for the government, FBI, and Buchanan is that there are no reports of any potential jurors being contacted to "determine" whether they were or were not seated jurors. This "screening" process would have been required to "derive" the list; yet, at best, the FBI asserts -- rightly or wrongly -- that it "only" contacted "one" jury member.

It defies reason to believe -- on chance alone -- the FBI contacted only one potential juror, selected the one that was also seated, and found a jury member who was willing to discuss the issues. Rather, the FBI would have had to contact many potential jurors, and report back which of the seated jurors are most approachable for  the "cold approach," which law enforcement uses to hide how they know which witness to contact at home.

Once DOJ OLC realized the "post trial jury tampering" was a real risk, something had to happen to shield the government, hide the discussions, and narrowly pretend it was only an isolated Pennsylvania action. The problem is the US Attorney has no power to "direct" an FBI agent. US Attorneys are not in charge of FBI agents; they can request assistance. The US Attorney would have had to coordinate their interactions with the leadership in the FBI. Buchanan points to no "Buchanan-directed FBI interviews" to investigate war crimes issues.

But the above assumes Buchanan, on her own, ignored the forseeable risks of litigation associated with that post trial contact, and on her own, devised a scheme to overcome the likely DOJ OLC conclusion that the legal definition of jury tampering is not narrowly one that is before or during trial. Buchanan was too busy arguing the case, and preparing evidence; she does not have time to travel back and forth between DC and Pennsylvania, and devise a plan of this detail, much less coordinate with the FBI how to conduct the interviews, then coordinate their responses to refine other FBI home interviews. This is most likely a GOP-White House coordinated effort, well beyond the competence of DOJ OLC and DOJ Staff.

For the above reasons, we support House Judiciary Chairman Conyers concern, as expressed the through affidavit to AG Mukasey, seeking all US government communications related to the Wecht prosecutions at the state and federal levels. A plain reading of the DOJ memos in re Habeas show the DOJ OLC staff will do a detailed review, and understand whether something is or isn't closed as a risk to the President. It appears, in re the Wecht post trial jury tampering, the DOJ OLC worked with the White House and GOP, and determined the chance of detection were low.

The jury members are sharing their views at the BBQ, and foreign war crimes prosecutors continue monitoring the Wecht post trial jury tampering.