More Secrecy

by Larken Rose

Yesterday I mentioned that we filed a motion with the court asking that grand jury transcripts be unsealed. Well now I have the government's response, and it once again shows that they want government to function in secret, while we want everything (that we do or that the government does) to be open. We will soon be posting both motions in their entirety, but I'll give the highlights now. 

In short, we asked to see ONLY the parts of the grand jury transcripts where the PROSECUTION and their IRS "witnesses" are talking. We did NOT ask the court to unseal the parts showing what any other witnesses said, or what the grand jurors said. (We also asked for the transcripts of our own testimony, which we got through "discovery" anyway, so that became moot.) 

The Supreme Court has spelled out "several distinct interests served by safeguarding the confidentiality of grand jury proceedings," including: 1) witnesses might become "hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony"; 2) some witnesses might be "less likely to testify fully and frankly, as they would be open to retribution as well as to inducements"; 3) those indicted might flee; 4) those about to be indicted might try to influence individual grand jurors to vote against indictment; 5) those accused but not indicted would be held up to public ridicule. 

Obviously NONE of those concerns is raised by having only what the GOVERNMENT said to the grand jury unsealed. (In the government's response, they convenient gloss over WHY grand jury matters are usually kept secret, because the reasons obvious do NOT apply to what we asked for.) By the rules, grand jury transcripts are to be unsealed if the accused can even show that "grounds MAY exist for a motion to dismiss the indictment because of matters occurring before the grand jury." 

Our motion alleged prosecutorial misconduct in two general areas: failure to properly instruct the jury on the crime charged (by not explaining "willfulness"), and vilifying and demonizing the accused in front of the grand jury. The government is supposed to present evidence to the grand jury, not rant their personal opinions about how nasty and evil the accused is. (One court threw out an indictment because the prosecutor engaged in "unrestrained, abusive histrionics, giving their personal evaluations of what a low-down fellow the defendant really is" in front of the grand jury.) Once our motion is posted, you can see the examples we cite of such slander and vilification against us, including when we were THERE in front of the grand jury. (If they'd do it then, imagine what they'd do when we WEREN'T there.) But here are some interesting points about the government's response: 

1) First, if the prosecutor did nothing wrong, why would they even WANT their comments kept secret? Who does that protect? Wouldn't they be happy to let me publicize how objective and fair they were in front of the grand jury? They quote a lower court ruling saying that grand jury secrecy is desirable "to preserve the freedom and integrity of the deliberative process." What does that have to do with unsealing only what the GOVERNMENT said? 

2) They argue that a court "has no authority to dismiss [an] indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct," and they add that "even if there was some improper conduct, there are more appropriate sanctions than dismissal of an indictment." That looks like a confession to me. They didn't say "we did nothing wrong!"; they basically said, "it wasn't bad enough to dismiss an indictment." That's nice, except that we didn't ASK for the indictment to be dismissed (yet); we only asked to SEE what they said, to see if such a motion is justified. 

3) They argue that "the prosecutor is not even required to give legal instructions to the grand jury." Huh?? They don't have to describe to the grand jury what crime is being alleged?? Oddly, they later explain that a prosecutor's job in front of a grand jury is "to prevent evidence to the grand jury and to instruct them on the applicable law." Well, which is it?? They also add: "Even assuming, arguendo, that the grand jury was not fully instructed on the law, 'erroneous grand jury instructions do not automatically invalidate an otherwise proper grand jury indictment'." Once again, instead of saying they did nothing wrong, their attitude amounts to "yeah, we did the wrong thing, but it wasn't bad enough to dismiss the indictment." (Really builds confidence in our system, huh?) 

4) When Tessa was in front of the grand jury, the prosecutor failed to even MENTION "willfulness" when describing the alleged crime of "willful failure to file." The government argues that he was only telling Tessa "the reason why she was a target of the grand jury," which doesn't count as instructions to the jury. In other words, "we were only misrepresenting the law to the accused (in front of the grand jury); we weren't misrepresenting the law to the grand jury." Swell. 

5) They cite language from the indictment itself, which says that "knowing" we had a requirement to file, we "willfully failed to make an income tax return." They're arguing that THAT was a good enough explanation of willfulness. To me that sounds like "they intentionally didn't file," which is TRUE, but that's not what "willfulness" means; "willfulness" means someone intentionally BROKE THE LAW (we didn't). 

6) They then say that the grand jury heard "extensive testimony from [me] regarding [my] interpretation of willfulness," adding that "By the end of both defendants' testimony, the grand jury was well aware of the concept of willfulness" (I had to laugh at that one), and that at no point during our testimony "did the prosecutor contradict or dispute the assertion that willfulness was an element of the crime." 

Once again, they're pretty much admitting they did it wrong, and citing the fact that WE corrected them (after they had been talking to the grand jury for more than a year) as proof that there was no prosecutorial misconduct. Huh? It's not OUR job to explain the law to the grand jury, and the grand jury is obviously less likely to accept OUR so-called "interpretation" of willfulness than the government's "interpretation" (or failure to mention it). 

7) We mention the government's slander-and-vilify tactics, which showed up when we were THERE in front of the grand jury, and even in other motions filed with the court, where they ignore the legal issues entirely, and spend page after page ranting about how my video is a "tax fraud scheme," or a "get rich scheme," and that we're trying to "pass ourselves off" as believers in the Constitution, etc. (You'll see all the details when our motion is posted.) The government argues that their slander-and-vilify tactics used OUTSIDE of grand jury proceedings are irrelevant and should be ignored. Hmmm... so how exactly would someone have reason to SUSPECT misconduct in front of a grand jury, if such allegations can only be based on what happened in front of the grand jury... the records of which are all sealed? 

8) When I was in front of the grand jury, Mr. Miller basically SAID (but in the form of a "question") that I made the video to get rich, not because I'm a "patriot" or anything (his word). Oddly, they say the comments were merely the government's "interpretation" of our motive and intent, though such personal opinions are NOT supposed to be given to a grand jury. They then argue that the insult disguised as a "question" was "based on evidence in the record." Oh really? Like what? 

9) Then they add that we "had the opportunity to refute any insinuations presented by the manner of questioning." In other words, "it's OKAY if we slander them, as long as they have a chance to respond." Prosecutorial misconduct doesn't become okay just because the accused points it out. 

10) They complain that unsealing all statements made by government employees would take a lot of time to do redactions. Well poor them. The government then says that even if the court disagrees with them, they want the court to review the transcripts (in secret) to decide which portions to disclose. Once again, they aren't exactly great promoters of openness and honesty. 

11) But the icing on the cake was in their conclusion, in which they argued that the fact that Tessa and I each had a chance to talk to the grand jury (on one day each) "all but eliminated any danger that the grand jury was mislead [sic] or improperly influenced." What?!? So as long as we get to visit for a few hours, the prosecutor can say ANYTHING HE WANTS to the grand jury, when we're there and for more than a YEAR of meetings when we aren't? What an odd argument. 

They then argue that the government's comments when we were there "do not rise to the level of 'flagrant' misconduct." Once again, they did it wrong, but not wrong ENOUGH to matter. Lovely. 

Sincerely, 

Larken Rose

To watch the Video on the 861 Evidence, click here

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