OpenCDA

August 6, 2016

CRS: Prosecuting Offenses Against Congress

Filed under: Probable Cause — Bill @ 9:29 am

CRS copyWhat if someone lied to Congress while testifying under oath?  Or what if someone intentionally interfered with Congressional oversight required by law?  These are explicitly offenses against Congress, not just offenses against the United States.  How would Congress begin the process to investigate and then prosecute the offender?

Recently, some members of Congress concluded that Hillary Clinton had intentionally lied under oath to Congress.    In one such hearing of the House Oversight and Government Reform Committee, Congressman Jason Chaffetz was clearly unfamiliar with the process for initiating an investigation to determine the nature and extent of Clinton’s lies under oath.  Chaffetz seemed surprised that the Feebs couldn’t just plunk their magic twanger and start an investigation into Clinton’s deception.

Recognizing that some, many, most, or all members of Congress might be knowledge-deficient when it comes to prosecuting offenses committed against their own institutional body, the CRS published a two-page CRS Legal Sidebar entitled Prosecution of Criminal Offenses Against Congress.  It was released to Congress on July 26, 2016.

August 2, 2016

Read and Decide for Yourself

Filed under: Probable Cause — Tags: — Bill @ 11:46 am

KC Int Audit Cover for OCdA PostOn July 26, 2016, our local skews paper, the Coeur d’Alene Press, published an article headlined ‘Audit of fair raises red flags.’   The article is available online for those who care to read it.

Then two days later on July 28, the Press published the Kootenai County Fair board’s response in an article headlined ‘Kootenai County Fair board responds to audit concerns.’  That article was not published online.

As a service to readers, OpenCdA is linking to the complete Kootenai County Internal Audit – Final Report – North Idaho Fair Financial Processes – June & July, 2016.  It is not some tedious tome.  It is readable and equally important, understandable by those of us with no accounting background.  Counting the one-page executive summary and the one-page table of contents, it is 24 pages.

The County’s audit report is well-organized and succinct.  Each  condition the audit team observed is reported.  The remedial recommendations are also reported.  And finally, the responses of the Fair Board accompany each condition and set of recommendations.

In short, by reading the Internal Audit Final Report, readers will have a far more complete understanding of why in late May 2016 the Kootenai County Board of Commissioners ‘… directed the Clerk’s internal audit team to review the Fair’s financial practices as soon as possible.’  It is likely readers will also have a much better understanding of why the Commissioners recommended the addition of two Fair Board members who have ‘deeper financial expertise’ that the existing Fair Board members.

We also suggest that readers read two sets of meeting minutes.  The first is captioned ‘Minutes of Meeting – Fairgrounds – April 19, 2016, 3:00 p.m.‘  The second is captioned ‘Minutes of Meeting – Internal Audit Committee, May 31, 2016, 11:00 a.m.‘   Both sets of minutes are relevant to the Audit Report, but equally important, they provide voters with some insight into the official conduct of elected County officials.

July 29, 2016

Setting a Good Example

Filed under: Probable Cause — Tags: , , — Bill @ 3:41 pm

Questions copy copyOur July 23, 2016, post entitled Unanswered Questions or Unquestioned Answers? properly suggested that one of Kootenai County Prosecuting Attorney Barry McHugh’s go-to conflict attorneys, Boundary County Prosecutor Jack Douglas, had apparently decided that the public didn’t need to know any more about the drowning death of Coeur d’Alene High School student Reginald J. Nault.

Now, contrast the Douglas-McHugh information drought with the good example of openness by Attorney General Lawrence Wasden in his release and online publication of  the decision letter sent Friday to the Adams County Prosecutor and attorneys for the Yantis family. The public can view the letter and investigative file on the Attorney General’s website (ADDENDUM on 07-30-2016:  For those who prefer not to read, see two of the video summaries in today’s Idaho Statesman.  AG Wasden   Sheriff Zollman)

Most people that followed the investigation into death of Council, Idaho, rancher Jack Yantis at the hands of Adams County Deputy Sheriffs also know that the Yantis family has filed a civil damage claim against the County.  AG Wasden is clearly aware of that.

AG Wasden was also aware of the keen and continuing interest in the investigation by the Yantis family and neighbors in Council.  Wasden could have stonewalled them for information by making them submit an Idaho Public Records Law request.  He could also have used the “make ’em pay dearly” legislatively-approved practice of charging applicants for the time and above-the-page-limit copies to see public information.     He did neither.

AG Wasden’s decision letter made it very clear that his office’s charge “… was to review this matter for the sole purpose of determining whether criminal charges should be filed against the two Adams County Sheriff’s Office employees involved in the shooting of Jack Yantis.”

AG Wasden’s letter then went on to say, “The OAG’s duty in conducting that review did not include determining whether any person or entity should be held liable in a civil action…”  In other words once the criminal charging decision had been made by AG Wasden, his office had no obligation to keep the investigative results quiet just to protect Adams County or any individuals from civil liability.  AG Wasden was free to post the investigative information (with certain lawful and required redactions) for all to see.  To his credit, that’s exactly what he did.

OpenCdA thinks Boundary County Prosecuting Attorney Jack Douglas ought to do exactly the same thing with the investigative material developed during the Reginald Nault death investigation.   We also think our local and regional skews papers ought to join with OpenCdA in this suggestion.  But we won’t hold our breath for any of this to happen.  The already-lumpy Kootenai County rug is likely to get lumpier.

Deputies Won’t Be Charged in Yantis Shooting Death

Filed under: Probable Cause — Tags: , — Bill @ 9:45 am

19117510-mmmainIdaho Attorney General Lawrence Wasden reported today that there was insufficient evidence to file criminal charges against the two Adams County deputy sheriffs who shot and killed Council, Idaho, rancher Jack Yantis on November 1, 2015.

Here is a link to today’s Idaho Statesman story with more details.

Here is a link to all OpenCdA’s posts about the shooting.

July 24, 2016

Oh, The Irony!

Filed under: Probable Cause — Tags: , , — Bill @ 12:37 pm

Hilary on SVROpen CdA wonders if our three or four loyal readers fully see the irony in the Democratic National Committee’s assertion that it was the Russians who hacked into the DNC’s emails and got embarrassing information revealing how the DNC sought to sabotage Senator Bernie Sanders’ primary campaign?

And yet if Attorney General Loretta Lynchpin and the Jefe Feeb are to be believed, they just couldn’t seem to find any indication at all that Russia’s SVR (the foreign intelligence service) or the FSB (counterintelligence) even knew about Clinton’s unsecured private email server which contained very sensitive national security information.

If it was funny, we would be laughing.  It isn’t, and we aren’t.

July 23, 2016

Unanswered Questions Or Unquestioned Answers?

Filed under: Probable Cause — Tags: — Bill @ 4:46 pm

Questions copy copyIn a brief and inaccurate press release dated July 22, 2016, Boundary County Prosecuting Attorney Jack Douglas dismissively informed Kootenai County residents he had “… determined that no criminal act can be shown to be a direct cause [of Reginald J. Nault’s death]” and that “Therefore, charges will not be filed against anyone by my office.”

As Douglas explained in his carelessly written press release, Kootenai County Prosecuting Attorney Barry McHugh had once again declared his own office had a potential conflict of interest and had to find a prosecutor who had no connection with any of the parties or their families.  That has fueled online speculation that “parties or their families” are politically “connected” in Kootenai County. (more…)

July 14, 2016

It’s a ‘Bigot List’

Filed under: Probable Cause — Tags: , — Bill @ 9:33 am

Clinton 100OpacityFox News is hyperventilating over what it calls a ‘gag order’ on the FBI agents involved in the Clinton email server investigation.  Some of the FBI employees involved in the investigation were required to sign a ‘Case Briefing Acknowledgement’ form, essentially a non-disclosure form.

This is, in fact, a practice dating back at least to World War II when it was little more than a list of persons who had been granted access to special compartments of extremely sensitive information.  It was first referred to as a ‘Bigot List’.  ‘Bigot’ was reportedly the codeword used to identify one particular compartment.  It has come to refer more broadly to a counterintelligence tool to simply keep track of who had authorized access to particularly sensitive national security information.

In his letter of July 6, 2016, to FBI Director James Comey,  Senate Judiciary Committee Chairman Charles Grassley suggests the requirement for FBI employees to sign the acknowledgement form was done to thwart statutorily-permitted whistleblowing to Congress.  No, Chuck, it was intended to protect very sensitive national security information from unauthorized disclosure.   It was intended to remind those given access of their duty to protect that information.  Almost anyone who has been ‘read on’ for authorized access to certain types of sensitive compartmented information has signed a similar form.   That, by the way, almost certainly includes Hillary Clinton during her tenure as Secretary of State.

It is no surprise that some FBI employees were required to sign the acknowledgement.  For us on the outside who care to pay attention, it may partially reveal the reasons the FBI Director recommended to the Attorney General that Clinton not be prosecuted criminally for the various criminal violations that may have been associated with her private email server.

In its investigation of Clinton’s private email server, the FBI is between the dog and the fire hydrant.  It has two distinct roles:  criminal investigation and foreign counterintelligence.  Of the two, the latter affects our national security; the former affects Clinton’s liberty.

On criminal charges relating to the compromise of national security information, it would be horrendously challenging to secure a meaningful criminal conviction of Hillary Clinton without risking further compromise of our national security, including our ability to investigate and counteract future threats against it.

On the other hand,  removing the foreign counterintelligence violations by declining to prosecute them does not automatically preclude using evidence of non-national security crimes (e.g., perjury, bribery, lying to Congress, Foreign Corrupt Practices Act, racketeering, wire and mail frauds, etc.) uncovered in the server investigation from being used in subsequent federal criminal prosecutions.  It would, however, make it more difficult for Hillary Clinton and her defense lawyers to use ‘graymail’ to impede her prosecution on federal crimes not requiring sensitive national security information or procedures as evidence.

Hillary Clinton’s continued access to national security information represents an exceptionally grave threat to the national security of the United States.  The threat it poses is in her utter indifference to her responsibilities to safeguard national security information entrusted to her.  It appears she considers national security information to be little more than another token to be exchanged to further her own attainment of political power and personal wealth.     President Obama who nominated her to be his Secretary of State and the 94 US Senators who for their own political purposes voted to confirm her share the responsibility for the damage she has done to the national security.

While many people want the satisfaction of seeing Hillary Clinton indicted, convicted, and imprisoned, the real power to forever prevent her from being able to continue further harm to the national security rests with the voters in November.  The voters can peacefully and lawfully deny her the presidency.  I’d argue that would also be a far more fitting and beneficial punishment for the harm she has done to the national security.

July 6, 2016

FBI Director’s Statement: What Does It Mean?

Filed under: Probable Cause — Tags: , — Bill @ 12:16 pm

Clinton 100OpacityIn a prepared statement to the media yesterday FBI Director James Comey declared the FBI has determined “…no charges are appropriate in this case.”  He’s referring to Hillary Clinton’s private email server having been improperly used to store and communicate national security information.

So what does Director Comey’s declaration mean?  It means exactly what it says and nothing more:  The FBI does not recommend to the Department of Justice (DoJ) that any criminal complaints relating to the email server be filed or indictments sought against anyone in that matter.

Ultimately the decision to seek indictment or an arrest warrant rests entirely with the DoJ in its role as prosecuting attorney over federal laws.

If they choose, the layers of lawyers at Main Justice can accept the FBI’s recommendation, reject it, or after evaluating the results of the FBI’s investigation, direct the FBI to investigate further before DoJ makes its charging decision.

So is it over?

No.  Not until the DoJ lawyers say it’s over.  If and when the feds decide prosecution is warranted and most appropriate, it is still on the table as long as the actions commence within the statutes of limitations on the crimes alleged.

As we’ve commented in previous OpenCdA posts on this matter, criminal prosecution is not the most important or even the most desirable result of the FBI’s investigation. (more…)

July 5, 2016

FBI Director’s Statement Regarding Clinton Email Server

Filed under: Probable Cause — Tags: , — Bill @ 8:38 am

Clinton 100Opacity[

Here is the text of the entire statement FBI Director James Comey made at a press briefing a few minutes ago:

Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System

June 30, 2016

Boy, Were We Wrong!

Filed under: Probable Cause — Tags: , , — Bill @ 2:00 pm

Lynch copyIn our OpenCdA posts on November 18, 2014, and December 5, 2014, we expressed our unqualified support for the US Senate to quickly confirm President Obama’s nominee, Loretta Lynch, to be the new United States Attorney General.  Our support was based on her responses to the Senate Judiciary Committee and Lynch’s performance as a straight-up US Attorney in the Eastern District of New York.

But then yesterday in a television news report from ABC15 News Arizona in Phoenix, we first learned that Attorney General Lynch and former President Bill Clinton met privately for 15 to 30 minutes on her airplane at Phoenix Sky Harbor Airport.  A few more details about the meeting were in today’s online Washington Post story headlined Attorney general meets with former president Clinton amid politically charged investigation into his wife’s email.

Both Lynch and Clinton denied that anything in their conversation was inappropriate.

Maybe, but we know that Lynch is obviously an experienced federal prosecuting attorney, and Clinton was at one time a practicing attorney.  Without any doubt, both Lynch and Clinton knew any private meeting between them would create an appearance of impropriety and be a very serious breach of legal ethics and professional conduct.  Conceivably, in Clinton’s case, his conduct could rise to the level of obstruction of justice.

OpenCdA would like to believe that AG Loretta Lynch was blindsided, that neither she nor her staff had agreed in advance to meet with Clinton.  Former president Clinton is a proven liar, so we do not believe his version of this story, that he just happened to be at Sky Harbor at the same time Lynch was and that he spontaneously decided to meet with her.

Unless there had been prior coordination of such a meeting, Lynch’s security detail should have stopped Clinton at the bottom of the stairs to her aircraft.  Clinton should never have been allowed to board her aircraft.  Lynch should have instructed her staff to politely but firmly decline to allow Clinton on board to meet with her and remind him of how such a meeting would appear.   It was the AG staff’s job to politely but firmly deliver that message to Clinton.  Once the AG’s staff had informed Clinton that the AG would not meet personally with him, it became the duty of the FBI SAs on her security detail to prevent his unauthorized boarding of her aircraft, physically if necessary.

AG Loretta Lynch had the duty, the authority, and the “muscle” to prevent former president Clinton from being in a position to  compromise her objectivity and integrity in making a charging decision about Hillary Clinton.  She failed.

Lynch’s failure of duty taints any decision she might be asked to make about Hillary Clinton’s alleged criminal conduct.

OpenCdA believed that after the stench of Eric Holder, Loretta Lynch would be an ethical and professional breath of fresh air at the top of the US Department of Justice.

Boy, were we wrong!

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