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Judicial Watch • NARA Whitewater OIC report pg 1-16

NARA Whitewater OIC report pg 1-16

NARA Whitewater OIC report pg 1-16

Page 1: NARA Whitewater OIC report pg 1-16

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Number of Pages:16

Date Created:January 27, 2016

Date Uploaded to the Library:January 27, 2016

Tags:principles, prosecution, Supplement, offense, NARA Whitewater OIC Verdict, docld, Manual, OIC, persons, Comment, Procedure, NARA, Whitewater, rules, Criminal, Division, Attorney, justice, Hillary Clinton, government, federal, DOJ, department, FOIA, ICE


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NW: 15416 Docld: 70001585 Page
HRC
MEETING
NW: 15416 Docld: 70001585 Page
Memorandum
Office the Independent Counsel
To:
All OIC Attorneys
From:
Subject:
4/22/98
HRC Team
Preparation for HRC Meeting
Dmtc:
.FOIA(b)6
FOIA(b)7 (C) this binder are four items: copy the April 10th memorandum distributed ~atlier
this nionth; evidentiary summary;
assist you understanding the material, suggest that you read them that order. look foJWardto the meeting Monday the 27th and fruitful discussion.
,_,,,,,_...
NW: 15416 Docld: 70001585 Page
Office the Independent Counsel
Memorandum
To:
File
From:
Paul Rosenzweig
Date:
4/24/98
~IJ
Subject:
;FOIA(b)6 FOIA(b)? (C)
Thoughts keep mind for the April 27th meeting whichI _______...,.,
Hillary Clinton will considered:
rat o~e the sufficiency the evidence, most_of
which circuinstantial, that would establish guilt. that context, the distinctions between this case and the normal run-of-the-mill case
need kept carefully mind:
First, when are confident the ultimate ground our case the factual guilt the accused there impulse bring the charges there any reasonable basis
for ccess. Part that impulse the recognition that typical case, the costs
failure are low. prosecutor has ever been criticized for being too aggres~ive
charging edgy case against, say, Mafia kingpin. this instance, however, the costs terms damage the investigation and damage the public percept) the
crjminal justice system --of failure will much higher than normal.
Second, OIC will not come the circumstantial case with the advantages which
typically inhere the government such trials. Jurors, faced with con~atenation of::socalled coincidences~ will often shift the burden proof defendant; speak. Or-
more accurately, accept readily that several unlikely events linked together forni
pattern proven beyond reaso~a9.le doubt unlessVebutted the -~efendant. high
profile case this sort, howey~e}J think that s6mejurors are likely put OIC the fuW
measure proof beyond reasonable doubt and, effect, insist that Cir,Cumstantial
evidence inferior form evidence which they cannot convict. Such distinctiOh
would lawless formal sense, contrary their jury instrUcir()ns but blink
reality not expect this reaction primarily circumsta...i.ticll high-profile case:
The Principles Federal Prosecution counsel that probable causk tl.t: minimunf0
standard for commencing prosecution.
The Principles Federal Prosecution also say that
NW: 15416 Docld: 70001585 Page
shou1d~commence>r recommend
_F01.A(i))6
.FOIA(b)7
prosecution on! admissible evidence will robabl sufficient obtain and sustain conviction. the obtaining that may prove difficult. The Principles Federal Prosecution counsel
that matter fundamental fairness and the interests efficient administration
justice, prosecution should only initiated believe that the person charged will
probably found guilty unbiased trier fact. What does this mean? view probably more likely than not/preponderance the evidence standard. other -:Ords, believe that the chances success need more than 50-50
warrant prosecution.
And what unbiased trier fact? How the case effected where, here,
nearly impossible expect completely unbiased and untainted venire, given the nature the case?
The Principles caution that the Jaw and facts create sound prosecutable case, the
potential that fact finder likely acquit because the unpopularity some factor
the prosecution the popularity the defendant his cause not factor prohibiting
prosecution. The prosecutor may despite his negative assessment the likelihood guilty verdict (based factors extraneous objective view the law and the
facts) ... may conclude that necessary and desirable commence prosecution ...
and allow the criminal process operate accordance with its principles. .The test
whether the evidence, viewed objectively, unbiased fact finder would
sufficient obtain and sustain conviction.
Several points regarding this passage need made:
First, not mandatory. The prospect unjustified acquittal does not
prohibit prosecution but also does not mandate one and the Principles not say factor which may not considered.
Second, not clear that applicable. not think Hillarys
popularity that will cause problems OICs unpopularity though these are certainly
factors. Rather whether think the evidence viewed objectively more likely than
not secure guilty verdict. the public nature the defendant (which will mean
full application the burden proof our case) the same popularity the
defendant? not think so.
Bottom line: can anticipate the following: Rule 29; 18%
Hung Jury; =Conviction. Not enough view.
NW: 15416 Docld: 70001585 Page
Acquital 70% 9-27.210
CRIMINAL DIVISION
interests fair and effective law enforcement within thedistrict. situations which modification departure contemplated matter policy
regular practice, the appropriate Assistant. Attorney General and the Deputy
Attorney General must approve the action before adopted.
9-27 .ISO Non-Litigability The principles set forth herein, and internal office procedures adopted
pursuant hereto, are intended solely for the guidance attorneys for the
government. They are not ntended not, and m:ay not relied upon
create right benefit, substantive procedural, enforceable law litigation with the United States. Comment
This statement principles has been developed p~a matter
internal Departmental policy and being provided ~prosecutors
solely for their own guidance performing their duties Neither this statement principles nor any internal procedures adopted individual
offices pursuant hereto creates any rights benefits. setting forth this fact
explicitly, [DOJ Manual 9-27.150), supra, intended foreclose efforts
litigate the validity prosecutorial actions alleged variance with these principles not compliance with internal office procedures that may adopted pursuant hereto. the event that attempt made litigate any
aspect these principles, litigate any internal office procedures adopted
pursuant these materials, litigate the applicability such principles procedures particular case, the U.S. Attorney concerned should
oppose the attempt and should notify the Department immediately.
9-27.200 INITIATING AND DECLINING PROSECUTION
9-27.210 Generally: Probable Ca~ Requirement
NW: the attorne~ for the government probable cause believe that
person has committed federal offense within his/her jurisdiction, he/she shoUld consider whether to:
.I. Request conduct further investigation; Commence recommend prosecution; Decline prosecution and refer the matter for prQsecutorial consideration another jurisdiction; 9-503
1993-2 SUPPLEMENT
DEPARTMENT JUSTICE MANUAL
9-27.220 Decline prosecution and initiate recommend pretrial diversion
other non-criminal disposition; Decline prosecution without taking other_
action. Comment
[DOI Manual 9-27.210] sets forth the courses action available the
attorneys for the government once he/she has probable caiJse believe that
person has committed federal offense within his/her jurisdiction. The
probable cause standard the same standard that required for the issuance arrest warrant summons upon complaint (see Rule 4{a), Federal
Rules Criminal Procedure), for magistrates decision hold defendant answer the district court (see Rule 5.l(a), Federal Rules Criminal
Procedure), and the minimal requirement for indictment grand jury
(see Branzburg 408. U;S. 665, 686 (1972)). This is, course,
threshold consideration otily. Merely because this requirement can met
given case does not automatically warrant prosecution; further investigation
may warranted, and the prosecutor should still take into account all
relevant considerations, including those described the following provisions~~ deciding upon his/her course action. the other hand, _ailure meet
the minimal requirement probable cause absolute bar initiating
federal prosecution, and some circumstances may preclude reference
other prosecuting authoritie5 recourse non-criminal sanction~ well.
9-27 .220
Grounds for Commencing Declining Prosecution The attorney for the government should commence recommend
federal prosecution heJshe believes that the persons conduct constitutes federal offense and that the admissible evidence will erobably sufficient
obtain and sustain conviction, unless, his/her judgment, prosecution should declined because: substantial federal interest would served prosecution; The person subject effective prosecution another jurisdiction; There exists adequate non-criminal alternative prosecution. Comment
[DOI Manual 9-27.220] expresses the principle that, ordinarily, the
attorney for the government should initiate recommend federal prosecution heJshe believes that the persons conduct constitutes federal offense and
that the admissible evidence probably will sufficient obtain and sustain
1993-2 SUPPLEMENT
NW:
9-504
9-27.220
CRIMINAL DIVISION conviction. Evidence sufficient sustain conviction required under
Rule 29(a), Federal Rules Criminal Procedure, avoid judgment
acquittal. Moreover, bOth matter fundamental fairness and the
interest the efficient administration justice, prosecution should
initiat. against any person unless the government believes that the person unbiased trier fact. this connection,
probably will noted that, when dec1 prosecute, the government
attorney need not have hand all the evidence that he/she intends rely
trial: sufficient that he/she have reasonable belief that such evidence
will available and admissible the time trial. Thus. for example,
would proper commence prosecution though key witness out the
country, long the witnesss presence trial could expected with reasonable certainty.
The potential that-despite the law and the facts that create sound,
prosecutable case-the fact-finder likely acquit the defendant because
the unpopularity some factor involved the prosecutiqn because the overwhelming popularity the defendant his/her .cause, not factor
prohibiting prosecutioo. For example, civil rights case involving extremely popular political figure, might clear that the evfclence
guilt-viewed objectively unbiased factfinder-would sufficient
obtain and sustain conviction, yet the prosecutor might reasonably doubt
whether the jury would convict. such case, despite his/her negative
assessment the likelihood guilty verdict (based factors extraneous objective view the law and the facts), the prosecutor may properly
conclude that necessary and desirable commence recommend
prosecutiOn and al_ the criminal process operate accordance with its low
principles. -:- Merely because the attorney for the. government believes that persons
conduct constitutes federal offense and that the admissible evidence will
sufficient obtain and sustain conviction, does not mean that he/she
necessarily should initiate recommend prosecution: fDOJ Manual
9-27.220) notes three situations which the prosecutor may properly decline take action nonetheless: when substantial federal interest would
served prosecution; when the person subject effective prosecution
another jurisdiction; and when there exists adequate non-criminal alternative prosecution. left the judgment the attorney for the
government whether such situation exists. exercising that judgment, the
attorney for the government should consult {DOJ Manual 9-27.230,
9-27.240, 9-27.250], infra, appropriate
NW:
9-505
1993-2 SUPPLEMENT
9-27.230
DEPARTMENT JUSTICE MANUAL
9-27 .230 Substantial Federal Interest determining whether prosecution should declined because
substantial federal interest would served prosecution, the attorney for
the government should weigh all relevant considerations, including: Federal law enforcement priorities; The nature and seriousness the offense; The deterrent effect prosecution; The persons culpability connection with the offense; The persons history with respect criminal activity; The person;s willingness cooperate the investigation prosecution others; and The probable sentence other consequences the person
convicted. Comment
[DOJ Manual 9-27.230] lists factors that may relevant determining
whether pro5ecution should declined because rio sub$tantial federal
futerest would serred prosecution case which the person
believed have committed federal offense and the admissible evidence
expected sufficient obtain and sustain conviction. The list
relevant considerations not intended all-inclusive. Obviously, not all
the factors will applicable every case; and any particular case one
factor may deserve more weight than might another case. Federal Law Enforcement Priorities
Federal law enforcement resources arid federal judicial resourees are not
sufficient permit prosecution every alleged offense over which federal
jurisdiction c:XistS. Accordingly, the interest allocating its iimited
resources achieve effective nationwide law enforeemerit program,
from time time the Department establishes national investigative and
prosecutorial priorities. These priorities are designed focus federal law
enforcement efforts those matters within the fedearl jurisdiction that are
most deserving federal attention and are most likely handled
effectively the federai level. addition, individual U.S. Attorneys may
establish their own priorities, within the national priorities~ order
concentrate their resources problems particular local .or regional
significance. weighing the federal interest particular prosecution, the
attorney for the government should give careful consideration the extent
which prosecution would accord with established priorities.
1993-2 SUPPLEMENT
NW:
9-506
-::.
CRIMINAL DIVISION
....
NW:
9-27.230 Nature and Seriousness Offense important that limited federal resources not wasted prosecuting
inconsequential cases cases which the violation cmly technical. Thus, determining whethe_ substantial federal interest exists that requires
prosecution, the attorney for the government should consider the nature and
seriousness the offense involved. number factors may relevant. One
factor that obviously primary importance the actual potential
impact the offense the community and the victim.
The impact offense the community which committed can measured several ways: tenns economic harm done community
interests; terms physical danger the citiz.ens damage public
property; and terms erosion the inhabitants peace mind and sense security. assessing the seriousness the offense these terms, the
prosecutor may properly weigh such questions whether the violation
technical relatively inconsequential nature, and what the public attitude toward prosecution under the circumstances the case. The public may
indifferent, even opposed, enforcement .the controlling statute,
whether substantive grounds, because history non-enforcement, because the offense involves essentially minor matter pnVarn: concern
and the victim not interested having pursued. the other hand, the
nature and circumstances the offense, the identity the offender the
victim, the attendant publicity, may such create strong public
sentiment favor prosecution. While public interest, lack thereof,
deserves the prosecutors -careful attention, should not used justify
decision prosecute, take other action, that cannot supported
other grounds. Public and professional responsibility sometimes wiil require
the choosing particularly unpopular course.
Economic, physical, and psychological considerations are also important assessing the impact the offense the victim. this connection,
appropriate for the prosecutor take into account such matters the victims
age health, and whether full partial restitution has been made. Care
should taken weighing the matter restitution, however, ensure
against contributing impression that offender can e5cape prosecution
merely returning the spoils his/her crime. Deterrent Effect Prosecution
Deterrence criminal conduct, whether criminal activity generally specific type criminal conduct, one the primary goals .the
criminal law. This purpose should kept mind, particularly when
deciding whether prosecution warranted for offense that appears
9-507
1993-2 SUPPLEMENT
-r.
9-27.230
DEPARTMENT JUSTICE MANUAL
relatively minor; some offenses, although seemingly not great importance themselves, commonly committed would have substantial cumulative
impact the community. The Persons Culpability
Although the proSecutor has sufficient evidence guilt, nevertheless
appropriate for him/her give consideration the degree the persons
culpability connection with the offense, both the abstract and
comparison with any others involved the offense. If. for example, the
person was relatively minor participant criminal enterprise conducted others, his/her motive was worthy, and other circumstances require
prosecution, the prosecutor might reasonably conclude that some course other
than prosecution would appropriate. The Persons Criminal History person known have prior conviction reasonably believed
have engaged criminal activity earlier time, this should considered determining whether initiate recommend federal prosecution. this
connection, particular attention should given the nature the peooil!it
prior criminal involveinerit, when occurred, its relationship any the
present offense; arid whether he/she previously avoided prosecution result agreement not prosecute return for cooperatio(l result
order compelling his/her testimony. the same token, persons lack
prior criminal involvement his/her previous cooperation with the law
enforcement officials should given due consideration appropriate cases. The Persons Willingness Cooperate persons willingness cooperate the investigation prosecution
others another appropriate consideration iil the determination whether
federal prosecution should undertaken. Generally speaking, willingness cooperate should not, itself, relieve person criminal liability. There
may some cases, however, which the value persons cooperation
clearly outweighs the federal interest prosecuting him/her. These m~tters
are discussed more fully below, connection with plea agreements and nonprosecution agreements return for cooperation. The Persons Personal Circumstances some cases, the personal circumstances accused may be. relevant determining whether prosecute take other action. Some cirCum-
1993-2 SUPPLEMENT
NW:
9-508
CRIMINAL DIVISION
9-27.230
stances peculiar the accused, such extreme youth; advanced age,
mental physical impairment, may suggest that prosecution not the most
appropriate response his/her offense; other circumstances, such the fact
that the accused occupied positin trust responsibility which he/she
~iolated committing the offense, might weigh favor prosecution
NW: The Probable Sentence assessing the strength the federal interest prosecution, the attorney
for the government should consider the sentence, other consequence, that
likely imposed prosecution successful, and whether such sentence other consequence would justify the time and effort prosecution. the
offender alteady subject substantial sentence, already incarcerated, result conviction for another offense, the prosecutor should
weigh the likelihOod that another conviction will re5ult meaningful
addition his/her sentence, might otherwise have deterrent effect,
necessary ensure that the offenders recoid accurately reflects the extent
his/her criminal conduct. For example, might desirable commence
bail-jumping prosecution against person who already has been convicted another offense that law enforcement personnel and judicial officers
encounter him/her the future will aware-of the risk releasing h_im/her bail. the other hand, the person probation parole result earlier conviction, the prosecutor should consider whether public
the
interest might better Served instituting proceeding for violation
probation revocation parole, than commencing new prosecution.
The prosecutor should also alert the desirability instituting prosecution prevent the running the statute limitations and preserve the
availability basis for adequate sentence there appears chance
that offenders prior conviction may reversed appeal collateral
attack. Finally, person previously has been prosecuted another
jurisdiction for the same offense
closely related offense, the attorney for
the government should consult existing departmental policy statements the
subject successive prosecution dual prosecution, depending
whether the earlier prosecution was federal nonfederal (see [DOJ ManUlll
9-2.142)). Just there are factors that appropriate consider determining
whether substantial federal interest would served prosecution
particular case, there are considerations that deserve weight and should ngt
influence the decision. These include the time and resources expended
federal investigation the case. amount investigative effort warrants
commencing federal prosecution that not fully justified other grounds
9-509
1993-2 SUPPLEMENT
DEPARTMENT 01, JUSTICE MANUAL
9-27.240 Prosecution Another Jurisdiction determining whether prosecution should declined because the
person subject effective prosecution another jurisdiction, the attorney
for the government should weigh all relevant considerations, including: The strength the other jurisdictions interest prosecution; The other jurisdictions ability and willingness prosecute effectively; and The probable sentence other consequences the person
convicted the other jurisdiction. Comment many instances, may possible prosecute criminal conduct
more than one jurisdiction. Although there may instances which
federal prosecutor niay wish consider deferring prosecution another
federal district, most instances the ch~ice will probably between federal
prosecution and prosecution state local authorities. [DOJ Manual
9-27.240] sets forth three general considerations taken into account
detennining whether person likely prosecuted effectively another
jurisdiction: the strength the jurisdictions interest prosecution; its ability~
and willingness prosecute effectively; and the probable sentence other
consequences the person convicted. indicated with respect .to the
considerations listed paragraph these factors are illustrative only, and the
attorney for the government should also consider any others that appear
relevant him/her particular case. The Strength the Jurisdictions Interest
The attorney for the government should consider the relative federal and
state characteristics the criminal conduct involved. Some offenses, even
though violation federal law, are particularly strong interest the
authorities the state local jurisdiction which they qCcur, either because the nature the offense, the identity the offender victim, the fact that
the investigation was conducted primarily state local investigators,
some other circumstance: Whatever the rea5on, when appears that the
federal interest prosecution less substantial than the interest state
local authorities, consideration should giren referring the case those
authorities rather than commencing recommending federal prosecution. Ability and Willingness Prosecute Effectively assessing the likelihood effective prosecution another jurisdiction,
the attorney for the governmenf should also consider the intent the
1993-2 SUPPLEMENT
NW:
9-510
9-27.250
CRIMINAL DIVISION
authorities that jurisdiction and whether that jurisdiction has the prosecutorial and judicial resources necessary undertake prosecution promptly
and effectively. Other relevant factors might legal evidcntiary problems
that might attend prosecution the other jurisdiction. addition, the federal
prosecutor should alert any local conditions, attitudes, relationships,
other circumstances that might cast doubt the likelihood the state
local authorities conducting thorough and successful prosecution Probable Sentence Upon Conviction
The ultimate measure the potential for effective prosecution another
jurisdiction the sentence, other consequence, that likely imposed the person convicted. considering this factor, the attorney for the
government should bear mind not only the statutory penalties the
jurisdiction and sentencing patterns similar cases, but also the particular
characteristics the offense the offender that might relevant
.sentencing. He/she should also alert the particular characteristics the
offense the offender that might relevant sentencing. He/she should
also alert the possibility that conviction under state law may some
cases result collateral consequences for the defendant, such disbarment, that might not follow upon conviction under federal law.
9-27 .250 Non-Criminal Alternatives Prosecution determining whether prosecution should declined because there
exists adequate non-criminal alternative prosecution, the attorney for
the government should consider all relevant factors, inclu~ng: The sanctions available under the alternative means disposition; The likelihood that effective sanction will imposed; and The effect non-criminal disposition federal law enforcement
interests. Comment
NW:
When per8on has committed federal offense, important that the
law respond promptly, fairly, and effectively. This does not mean, however,
that criminal prosecution must initiated. recognition the fact that
resort the criminal process not necessarily the only appropriate response serious fonns antisocial activity, Congress and state legislatures have
provided civil and administrative remedies for many types conduct that
may also subject criminal sanction. Examples such non-criminal
approaches include civil ti,u proceedings; civil actions under the securities,
customs, antitrust, other regulatory laws; and reference complaints
9-511
1993-2 SUPPLEMENT
.DEPARTMENT JUSTICE MANUAL
9-27.260 li.censing authorities or-to professional organizations such bar associations.
Ano~her potentially useful alternative prosecution some cases pretrial
diversion (see 9-22.000).
Attorneys for the government should familiarize themselves with these
alternatives and should consider pursuing them they are available
particular case. Although some occasions they should pursued
addition the criminal law procedures, other occasions they can
expected provide effective substitute for criminal prosecution.
weighing the adequacy such alternative particular case, the
prosecutor should consider. the nature and severity the sanctions that could imposed, the likelihood that adequate sanction would fact
imposed, and the effect such non-criminal disposition federal law
enforcement interests. should noted that referrals for non-criminal
disposition, other than Civil Division attorneys other attorneys for the
government, may not include the transfer grand jury material unless
order under Rule 6(e), Federal Rules Criminal Procedure, has been
obtained.
9-27.260
Impermissible Considerations determining whether commence recommend prosecutionor
take other action against person, the attorney for the government should not influenced by: The persons race, religion, sex, national origin, political association, activities beliefs; The attorneys own personal feelings concerning the person, the
persons associates, the victim; The possible effect the decision the attorneys own professional personal circumstances.
[DOJ Manual 9-27.260] sets forth various matters that plainly should not
influence the determination whether initiate recommend prosecution
take other action. They are listed here not becalise anticipated that any
attorney for the government might allow them affect his/her judgment, but order make clear that federal prosecutors will not influenced such
improper considerations. course, the case which particular
characteristic listed subparagraph (1) pertinent the offense (for
example, immigration case the fact that the offender not United
States national, civil rights case the fact that the victim and- the
offender. are different races), the provision would not prohibit- the
prosecutor from considering for the purpose intended the Congress
1993-2 SUPPLEMENT
NW:
9-512
9-27.310
CRIMINAL DIVISION
9-27 .270
Records Prosecutions Declined Whenever the attorney for the government declines commence
recommend federal prosecution, he/she should ensure that his/her decision
and the reasons therefore are communicated the investigating agency
involved and any other interested agency, and are reflected the office
files. Comment
[DOJ Manual 9-27.270) intended primarily ensure adequate
record disposition matters that are brought the attention the
government attorney for possible criminal prosecution, but that not result federal prosecution. When prosecution declined serious cases the
understanding that action will taken other authorities, appropriate steps
should taken ensure that the matter receives their attention and ensure
coordination follow-up.
9-27.300
SELECTING CHARGES
9-27 .310
Charging Most Serious Offenses Except hereafter provided, once the decision prosecute has been
made, the attorney for the government should charge, should recommend
that the grand jury charge, the most serious offense that consistent with the
nature ofthe defendants c0nduct, and that likely result sustainable
conviction. The most serious offense generally that which yields the
highest range under the sentencing guidelines. mandatory minimum
sentences are also involved, their effeet must considered, keeping mind
the fact that mandatory minimum statutory and generally overrules
guidelines. Comment
NW:
Once has .been determined initiate prosecution, either filing
complaint infonnaticin, seeking indictment from the graQd jury,
the attorney for the government must determine what charges file
recommend. When the conduct question consists single criminal act,
or. when there only one applicable statute, this not diffic:ult task.
1)pically, however, defendant will have committed more than one criminal
act and his/her conduct may prosecuted under more than one statute
9-513
1993-2 SUPPLEMENT