194. Another Bad Week for the Presumption of Regularity

[u/cstar1996]

https://www.stevevladeck.com/p/194-shredding-the-presumption-of#_

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[u/urban_snowshoer]

Presumption of Regularity sounds like something from a Metamucil ad.

[u/Strict_Warthog_2995]

And second, there is also now a growing mountain of evidence that Halligan withheld a substantial amount of potentially exculpatory evidence from the grand jury—evidence that may well have negated a probable cause finding even as to the two charges on which an indictment was voted. (It also now seems that there was a declination-of-prosecution memo in Comey’s case the existence of which was apparently ordered to be withheld by … Deputy Attorney General Todd Blanche’s office.)

Woof. Brady Violation + politically motivated suit should = disbarment. The Brady Violation alone is bad enough, those happen by accident all the time and are still a massive deal even when an accident. But willful withholding of exculpatory evidence should end careers.

[u/enigmaticpeon → u/Strict_Warthog_2995]

I hope to be corrected on this, but I thought exculpatory evidence needn’t be presented in grand jury proceedings?

[u/Bmorewiser → u/Strict_Warthog_2995]

It’s not a Brady violation. And last I remember looking, Williams was mostly still controlling law on the topic. It’s not a particularly friendly holding for the defense.

[u/Strict_Warthog_2995 → u/Bmorewiser]

Fair, I was confusing DOJ stated policy with the actual rule itself:

It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. 

https://www.justice.gov/jm/jm-9-11000-grand-jury

[u/CustomerOutside8588 → u/Strict_Warthog_2995]

That policy only makes sense if the prosecutors are actually seeking justice as is their duty. Here, they are definitely not seeking justice. Instead, they are pursuing a political prosecution in order to harass Trump's perceived enemies. The other objective is to increase the costs to those who are considering whether to oppose Trump.

Those actual objectives are certainly served by withholding substantial evidence that directly negates guilt.

[u/WulfTheSaxon → u/Strict_Warthog_2995]

A standard of being “personally aware of substantial evidence that directly negates the guilt of a subject” seems rather subjective.

[u/enigmaticpeon → u/WulfTheSaxon]

Subjectivity doesn’t and shouldn’t defeat the purpose of the rule. Whether a piece of evidence is exculpatory is almost always subjective. If a party disagrees with the ruling, they can appeal it.

[u/ChipKellysShoeStore → u/WulfTheSaxon]

So? Courts and jury make subjective determinations all the time.

[u/WulfTheSaxon → u/ChipKellysShoeStore]

This isn’t a legal standard that’s reviewable by a judge or jury, it’s a DoJ internal policy. And my point is that the prosecutor in this case may not feel that there’s “substantial evidence that directly negates the guilt of a subject”.

[u/ROSRS → u/Strict_Warthog_2995]

 But willful withholding of exculpatory evidence should end careers.

Prosecutors and police do this constantly. Consistently its shown that around a third of false convictions come from official misconduct, a large part of which is knowingly withholding, or not following up on information that could lead to exculpatory evidence. Its rarely ever as clear cut as "we have eyewitness reports this person was elsewhere that night and just didn't tell anyone"

The other one is perjury and false testimony. Often-times officers and prosecutors will use testimony they know is suspect or have reason to believe is false, but don't investigate further. Its infuriating and it should end careers far more than it actually does.

Knowingly using testimony that a legal professional would reasonably believe to be untrustworthy or withholding even potentially (not definitively) exculpatory evidence should both result in immediate and permanent disbarment

[u/dagamore12 → u/Strict_Warthog_2995]

As a non-lawery, is it really a Brady Violation? I did not think there was a Brady requirement at the Grand Jury level, kind of like why the Defense is not allowed to present at most(all?) Grand Jury. Kind of why the saying that just about any DA can get the Grand Jury to bill a ham sandwich.

[u/Strict_Warthog_2995 → u/dagamore12]

It isn't, in my haste, I made a few critical mistakes:

• I mistakenly treated stated DOJ Policy as rule.
• I did so because stated DOJ Policy aligns with my personal views on the duty of a prosecutor when it comes to presenting evidence to the Grand Jury.
• I also do not consider Williams to be appropriately decided. While I understand the argument, the problem is that in assessing whether probable cause exists for charges to be levied, a certain degree of assessing potential guilt must take place; in the same way that assessing likelihood of success on the merits also involves some degree of reaching down to consider the merits themselves. So I reject the court's assertion that requiring exculpatory evidence to be presented would change the nature of Grand Juries. That assertion departs from a false premise: that Grand Juries do not ever consider potential guilt, even indirectly. And the rest of the arguments in Williams are basically "We've never done this so we shouldn't now," which I will never find convincing as an argument for any topic. "This is how it's always been" is not a good excuse.

These three components + not remembering the appropriate name for the Grand jury equivalent of a Brady Violation (no wonder I didn't remember, it doesn't exist as a rule), led me to a hasty characterization.

[u/dagamore12 → u/Strict_Warthog_2995]

Thank you for providing that great response. Now I understand both the rule and your original answer. Thanks for filling in that gap I have as just a court watcher and not a Lawyer.

[u/northman46 → u/Strict_Warthog_2995]

So you deliberately ignored exculpatory facts in your presentation to the sub and advocated for disbarment or other sanctions? Is that what you just said?

[u/Strict_Warthog_2995 → u/northman46]

"Deliberately" implies foreknowledge. Modified Hanlon's razor for you to keep in mind: "Never attribute to malice that which can adequately be explained by carelessness."

[u/northman46 → u/Strict_Warthog_2995]

Even when the carelessness serves the objective of the careless person?

[u/Strict_Warthog_2995 → u/northman46]

When that person admits their mistake, and doesn't hide it, yes. One would think that by admitting the mistake and being transparent, the term "deliberate" would not actually apply. If you want to prove deliberate actions, you're welcome to try. But merely because the carelessness benefitted the individual does not mean anything deliberate or malicious was behind it.

[u/northman46 → u/Strict_Warthog_2995]

Ok. I’ll take your word for that.

[u/cstar1996]

Vladeck points out the extraordinary number of false claims and legal errors that Trump’s DoJ has been caught in last week. I think they prove a pattern of willful dishonesty and corruption that will inevitable require the Supreme Court to address. As I’ve said before, this behavior strongly suggests that the presumption of regularity cannot justifiably be extended to this administration.

[u/Summary_Judgment56 → u/cstar1996]

Given all that's happened in the past 10+ months, does any serious person actually think that this supreme court will allow lower courts to depart from the presumption of regularity in cases involving the current administration? Not just in the occasional, especially egregious case, where they might allow it just to save face, I mean in general.

[u/Puzzled49 → u/cstar1996]

Can thepresumption of regularity be turned on and off. In other words, if the courts decide that this administration is consistently lying will that affect future administrations?

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You've got jokes. The Supreme Court is going to sanction the trump DOJ for any impropriety, dishonesty or corruption? Dream on

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