Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Is the Forest Rotten?
There is an expression: “You can’t see the forest for the trees.”
I am reminded of that by a story today of legal rulings in a J6 case. The defense received an Excel spreadsheet from the government with some “hidden” rows. Of course, the “hide” function doesn’t encrypt something, it just cleans up the viewed spreadsheet. So when the defendant counsel “unhid” those rows, there was some interesting information in them:
- The government had intercepted emails between the defendant and his counsel.
- Someone ordered an FBI agent to destroy evidence.
- Someone ordered an FBI agent to “edit” informant reports.
Apparently, the means by which the government provided the spreadsheet was through access to the file on a remote computer. And after the defendant raised questions about the hidden materials, at least some of those hidden materials have been deleted and are no longer available.
The legal rulings involved how much the defendant counsel would be able to question a government witness (thus reveal to the jury) about the hidden materials and the government conduct? The judge has ruled against all of the defense motion except to be able to question the witness about editing out the identities of FBI personnel included in an informant’s report. In other words, not much.
Was the judge’s ruling in error? Not necessarily. The judge accepted the government’s argument that since the defendant was using a jail computer, the email messages with counsel should be treated the same as phone calls at the prison that are routinely recorded. The judge accepted the government’s argument that the direction to destroy evidence did not mean that the evidence to be destroyed was relevant to this case, thus not an appropriate matter for cross-examination. The judge accepted, at least until he has concluded his own review, that information removed from the spreadsheet given to the defendant counsel (or to which they had access) involved classified information not suitable for access by defendant counsel and discussion at a public trial.
But even if the rulings are legally correct for this case, it raises fundamental issues for the J6 prosecutions generally. What is the right way to get the entire investigatory/prosecution process reviewed? The DOJ Inspector General? Congress?
There are valid criticisms that can be made against the Tucker Carlson reports on Capitol video evidence, both that run in favor or against individual defendants. The political right thinks there is a lot more there that needs to be examined and publicized. The political left seems to fear anything that undermines the J6 Committee narrative and “righteous” prosecution of “insurrectionists.”
Individual trials properly focus on the facts and circumstances of individual cases. But there is a forest. One tree could be healthy while the forest dies; or the forest can be healthy while a few trees die.
I am tired of being given a few pieces of bark and some leaves and being told, “You figure it out.” We need a skilled forester, and we need it now.Published in General
One of the Ricochet legal eagles will drop by soon enough to let us know that this is perfectly normal and happens all the time.
Now there’s no more oak oppression
For they passed a noble law
And the trees are all kept equal
By hatchet, axe, and saw.
The problem is they’re right. So a match or a lightning strike may be better than a forester.
As predictable as the sunrise. I’ll bet we’re thinking of the same person, too.
(Might not add much to the conversation (meaning, this comment), but . . . . ) very well put!
“The ax is already at the root of the trees, and every tree that does not produce good fruit will be cut down and thrown into the fire.”
One of America’s most fundamental problems is the rot in our legal system that has so corrupted the Rule of Law.
Where are those “Republicans for the Rule of Law” who we heard so much about in 2020?
Explaining why it’s ok for prosecutors to hide exculpatory evidence when prosecuting J6 cases?
Because at one time, some years ago, many (probably most) of us believed that the FBI was staffed by patriots, not apparatchiki of the permanent government. I’m sure we have all lost faith at different rates to different degrees, but we have almost all lost it. And those who haven’t are headed for some serious heartbreak.
As an aside, I recently heard Dan Crenshaw on a podcast criticizing the idea of dismantling the FBI. What a disappointment that guy is.
My favorite band!!! Obsessed with them actually!!!
I wonder if you’re thinking of me, or Gary Robbins, or someone else.
Regarding the main questions in the OP: as to the actual or potential misconduct mentioned in the OP, I think that either an Inspector General or Congressional hearings would be good ways to address these problems, in general. At the moment, Congressional hearings would probably be preferable, as political considerations might make the Biden administration less likely to address these specific issues in the context of the J6 investigations and prosecutions.
Based on the description in the OP, it appears that the interception of emails was not misconduct, and that the “editing” — which looks like redaction — of the informant reports were not misconduct.
Ordering the destruction of evidence looks like misconduct, though we don’t know the details. If it pertained to an ongoing case, it would be misconduct. However, as the OP correctly notes, if it related to a different case, it would not necessarily be relevant, and would be properly excluded by a judge. The rules on this are a bit complicated, so it can depend on the circumstances.
Another important fact, not discussed, is whether the evidence in question actually was destroyed. If someone ordered evidence destroyed, but the evidence wasn’t destroyed, then the order isn’t very relevant. Again, it depends on the circumstances.
I like the verse, but . . . what band is it?
Well . . . Rush . . . (I mean like, duh!)
[actually, I did not even know the reference was to song lyrics until comment #12 – got curious and googled “oak oppression”]
But there’s another level to this. When investigating a crime, generally both the defendant and law enforcement begin with few or without any certain facts of the case pertaining to guilt and both need to investigate the facts. And so the prosecution may legitimately say that they didn’t include erroneous or irrelevant information in disclosure.
But nowadays, the government often has embedded investigators (call them undercover agents or agents provocateurs) within the plotting of the crime but don’t include this information in discovery because the prosecution will not call any of the undercover agents as witnesses. They are literally hiding facts related to the case by claiming that it is not evidence or is not relevant.
But, no harm, no foul — I guess. Except at least with Jan 6th, law enforcement allowed the crimes and the harm to take place anyway.
I am not a lawyer, but is it normal to “destroy” evidence prior to all possibly related cases being completed?
And isn’t there a presumption that if evidence was destroyed, it weigh in favor of the defendant? How can they not allow cross examination?
This isn’t a national defense case. What classified information could possibly be involved?
Your first two questions are decent ones, and I would like the answers too.
As far as “This isn’t a national defense case. What classified information could possibly be involved?” one answer to that is that it has become standard operating procedure to simply classify this that and the other thing as classified.
Plus if the Deep State knows that it had designed this operation as a way to not only stop any light being shone on the theft of the election, but also to once again offer up headlines for months that Donald Trump hates America enough to attempt to overthrow a sitting Congress, and his followers all were willing participants, then this J6 coup against the light of truth was indeed something that would be able to get a classified standing. (Since everyone involved in all the various weaponized departments and agencies of the US government were willing to have the classified designation occur.)
Because FBI now sees its primary role as counterintelligence and not regular law enforcement, and because … domestic terrorism. Methods and means, methods and means.
Maybe I could make some progress figuring this out. It should take me . . . maybe just 1-3 years of gathering and evaluating arguments.
I’ll get right on that . . . just as soon as I figure out vaccines, chloroquine, ivermectin, Ukraine, Epstein, banks, and voting machines. It’s looking like I may only need three years to figure out what to think about the 2020 election. Once I get finished on that, I can get started on the rest of it.
So you might have your answer . . . in about 50 years. If we’re both still alive. Sound good?
I am hoping that this will provide a way for you to shorten the time that is needed to analyze in full all those situations.
It depends on whether or not there are queries about these situations included in the 172 answers that are provided:
(Not that your analyses are not interesting and informative for many of us.)
They are? It was my understanding—admittedly gleaned mostly from Mickey Haller/Bosch novels—that communication with counsel was privileged, full stop. They’re supposed to cease recording/ listening when a defendant is speaking to his attorney.
I can accwept that there’s classified information there, seeing as half of everything is classified these days. I didn;t say it was justifoied — just that it’s possible.
Even so, there should be clear references to redaction and declassification (which is not done by “deleting rows”, and the document *EVEN IF ELECTRONIC* should bear declassification metadata (date declassified, by which agency etc). Redactions intended to reduce classification should preserve the idea that something had been there, specifically in order to avoid the gaslighting effect of an unknowable multitude fo potential “actual” documents. You don’t have to worry that (silly example) there had been a word “not” which is now simply missing, and the corollary, you don’t have to worry that any given sentence actually contained the word “not” at arbitrarily many locations in the “original”. That’s what the black block is for in a redaction. In a spreadsheet, digital only, this could even be accomplished by REPLACING the contents of the row with CONTENTS OF THIS ROW REDACTED, SEE DECL STMT AT BOTTOM or similar.
So no, I never bought the “classified” angle, which sounds like a knee-jerk excuse. Absolutely not buying it.
Yes, communication with counsel is privileged, but if you stand in a crowd and shout then you haven’t protected the privilege. In other words the attorney and client have to take steps to maintain confidentiality. When the client is under state control, a space must be provided where their conversation can be conducted in private. Attorneys know the phone is being recorded and so it will not be private. The email exchange is an interesting case, and the judges decision might not be upheld on appeal. I see the logic both ways, but no doubt there will be a change in practice as a result.
I am aware that there is a band called Rush. I believe that they are Canadian, there is a recognizable looking skinny dude with long hair called Geddy Lee, and another recently deceased drummer called Neal Peart ( sp) who was well thought of. No clue about the third guy.
So I am not unaware of modern culture. But your “duh!” seems unfair. I have no clue about any of their song lyrics, the times I have heard something from them was not a particularly memorable or pleasant experience, and, other than Geddy Lee’s really high voice, I don’t think I would be able to recognize them from a blind taste test.
So I’m not sure why my not recognizing this snippet of a lyric from one of their songs would be so eye rolling.
I’m more of a Flaming Lips guy myself.
Performance of the government up to this point cancels any desire I might have to give it the benefit of the doubt.