Legal question on how things work

[NPT]

I was just reading this article and was particularly interested in the following paragraph:

• “Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the F.B.I.’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case,” Ron Hosko, a former senior FBI official who retired in 2014,told The New York Times in a story published Friday.

My question is: Is there anything can can be done in a case if there has obviously been a criminal act and the justice department refuses to bring a case. NOTE: I am not say there has been crimes committed in Hillary's case, I just want to know if anything can be done in any case if the justice department refused to bring charges where most people would look at the evidence and determine that a case should be brought to trial?

 

[i'vegotwinners]

I was just reading this article and was particularly interested in the following paragraph:

• “Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the F.B.I.’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case,” Ron Hosko, a former senior FBI official who retired in 2014,told The New York Times in a story published Friday.

My question is: Is there anything can can be done in a case if there has obviously been a criminal act and the justice department refuses to bring a case. NOTE: I am not say there has been crimes committed in Hillary's case, I just want to know if anything can be done in any case if the justice department refused to bring charges where most people would look at the evidence and determine that a case should be brought to trial?

you mean like a prez and his accomplices lying out their asses to congress and the nation, to literally take us to war.under false pretenses.

an elected official or public servant doing such an act should be thrown in prison, and the key thrown away.

can a public servant or elected official commit any greater or despicable atrocity against the country and the citizenry?

NO!

 

[TheOriginalHappyGoat]

I was just reading this article and was particularly interested in the following paragraph:

• “Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the F.B.I.’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case,” Ron Hosko, a former senior FBI official who retired in 2014,told The New York Times in a story published Friday.

My question is: Is there anything can can be done in a case if there has obviously been a criminal act and the justice department refuses to bring a case. NOTE: I am not say there has been crimes committed in Hillary's case, I just want to know if anything can be done in any case if the justice department refused to bring charges where most people would look at the evidence and determine that a case should be brought to trial?

The simple answer is "No," but there is some worthy context to note about it.

At common law, private citizens could initiate criminal proceedings. For a long time, the private initiation of criminal proceedings was an important and common part of the judicial process. Up through the 18th and even into the 19th century, private citizens would generally initiate criminal proceedings where they were the victim (or, in the case of death, their family member was the victim), while the government would initiate prosecution for crimes against the state. Throughout the 19th century, governments gradually took over this function for all cases. It is still possible in England and a number of U.S. states, although it is very rare. However, it is no longer possible on a federal level, based on a number of SCOTUS rulings. So, in the particular context you are asking about, the answer is that, no, there is no alternative if Justice declines to prosecute.

Edit: I also note that, if Clinton committed a crime here, there is likely no victim other than the state, so even under the older system that encouraged private prosecutions, this one would be left to the AG.

 

[RBabbitt]

I'm no lawyer, but I think I know the answer to this. The Attorney General is the chief law enforcement officer over federal law for the entire country and ultimately decides what federal laws will or will not be enforced. Each state is divided up into districts (very small states might only have one district) and in each district there is a U.S. Attorney, who actually determines what crimes will be prosecuted in that particular district.

The U.S. Attorney answers to the Department of Justice, which also oversees the F.B.I., the federal police, so to speak. The F.B.I. makes their case and presents the evidence to the U.S. Attorney. The U.S. Attorney then decides whether there is enough evidence to file federal charges and also determines whether to file the charges in the federal district court for that district. The U.S. Attorney can determine there is not enough evidence to file carges, that there is enough evidence, but the crime is not worth prosecuting, or that there is enough evidence and proceed to file the charges.

In a major case with political consequences, the U.S. Attorney, who is always a loyal member of the political party of the President and A.G., will always check with his superiors at the Justice Department. If Justice doesn't want the case filed in court, it won't be. Any U.S. Attorney who decided to ignore the wishes of the Justice Department would be immediately fired and replaced with someone who will obey orders.

Keep in mind that the A.G. answers to the President, so ultimately the President calls the shots. The names escape me now, but you might recall Nixon firing an A.G. who refused to fire one of the Watergate special prosecutors.

The short answer is there is nothing that can be done if Justice refuses to prosecute a case. Of course, there may be a big political price to pay for refusing to prosecute a case.

 

[meridian]

The names escape me now, but you might recall Nixon firing an A.G. who refused to fire one of the Watergate special prosecutors.

William Ruckelshaus and Elliot Richardson? Saturday night massacre?

 

[NPT]

The simple answer is "No," but there is some worthy context to note about it.

At common law, private citizens could initiate criminal proceedings. For a long time, the private initiation of criminal proceedings was an important and common part of the judicial process. Up through the 18th and even into the 19th century, private citizens would generally initiate criminal proceedings where they were the victim (or, in the case of death, their family member was the victim), while the government would initiate prosecution for crimes against the state. Throughout the 19th century, governments gradually took over this function for all cases. It is still possible in England and a number of U.S. states, although it is very rare. However, it is no longer possible on a federal level, based on a number of SCOTUS rulings. So, in the particular context you are asking about, the answer is that, no, there is no alternative if Justice declines to prosecute.

Edit: I also note that, if Clinton committed a crime here, there is likely no victim other than the state, so even under the older system that encouraged private prosecutions, this one would be left to the AG.

Thanks goat....that is what I was looking for.... I didn't know if congress or anyone else could do anything or not.

 

[TheOriginalHappyGoat]

Thanks goat....that is what I was looking for.... I didn't know if congress or anyone else could do anything or not.

In theory, Congress could do something. The exclusive limitation of federal criminal prosecutions to the AG is not a constitutional limitation, but a statutory one. Congress could pass a law creating some process for assigning a private attorney to prosecute crimes when the AG declines, probably at the order of a federal judge upon being presented with evidence sufficient for probable cause. This seems extremely unlikely, however.

 

[i'vegotwinners]

"Citizens arrest. citizens arrest".

seems like their was a well publicized case when a local citizen, (a Mr G. Pyle), tried to take such action against a law enforcement official, (an officer B. Fife),

can't remember exactly how that came out.

 

[IU-Curmudgeon]

"Citizens arrest. citizens arrest".

seems like their was a well publicized case when a local citizen, (a Mr G. Pyle), tried to take such action against a law enforcement official, (an officer B. Fife),

can't remember exactly how that came out.

lol

 

[CO. Hoosier]

Keep in mind that the A.G. answers to the President, so ultimately the President calls the shots.

This is not true

It would be prosecutorial misconduct and thus a violation of legal ethics for a prosecutor or the AG to yield to political officials on a charging decision. That is banana republic stuff.

That said, the lines are not clear and there was considerable hanky panky with the ethics rules when Holder and Obama concocted the "prosecutorial discretion" justification for the administration changing the immigration law by having the DOJ look the other way on immigration enforcement. I think that wasn't prosecutorial discretion but was instead changing the law.

The rest of your post is pretty well stated.

 

[CO. Hoosier]

In theory, Congress could do something. The exclusive limitation of federal criminal prosecutions to the AG is not a constitutional limitation, but a statutory one. Congress could pass a law creating some process for assigning a private attorney to prosecute crimes when the AG declines, probably at the order of a federal judge upon being presented with evidence sufficient for probable cause. This seems extremely unlikely, however.

That's not theory

We had such a law after Watergate and in response to it. It expired in 1999.

 

[RBabbitt]

In hindsight, I overstated the case as you have noted. I don't believe and should not have inferred that the AG would routinely check with the President on criminal cases. You were right to call me out on that.

I don't think it's beyond the pale to suggest it's happened quietly before and there's nothing to make me think that Obama might not discreetly get word to Justice that he'd like to see the dogs called off of Hillary, particularly if she has the nomination locked up at some point.

 

[CO. Hoosier]

I was just reading this article and was particularly interested in the following paragraph:

• “Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the F.B.I.’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case,” Ron Hosko, a former senior FBI official who retired in 2014,told The New York Times in a story published Friday.

My question is: Is there anything can can be done in a case if there has obviously been a criminal act and the justice department refuses to bring a case. NOTE: I am not say there has been crimes committed in Hillary's case, I just want to know if anything can be done in any case if the justice department refused to bring charges where most people would look at the evidence and determine that a case should be brought to trial?

Goat and Rbabbitt have it about right

The only thing I would add is that the professional prosecutors keep themselves separated from the political leadership at the DOJ. That isn't to say that the AG doesn't throw his or her weight around as Holder did with prosecuting the Philadelphia Black Panthers. On the other hand, John Ashcroft did the right thing and recused himself from the Valerie Plame investigation and prosecution as he appointed Fitzgerald. So there are still some occasional ethics within the DOJ. It remains to be seen whether Lynch will be an ethical lawyer or a politician.