Legal/Ethics Questions

I am learning new things in all manner of civics, politics and the legal system of late. A question for those well versed in the legal system of the US:

1) Would it be considered an ethics/legal violation to inform a "target" of an investigation that they are a "subject," when you have evidence of indictable activities?
2) Would it be a violation if, as the head of the investigation, one were to time the release of information to try to achieve a maximum or minimum effect on public?

Sorry two questions.

Rexedgar said:

I am learning new things in all manner of civics, politics and the legal system of late. A question for those well versed in the legal system of the US:

1) Would it be considered an ethics/legal violation to inform a "target" of an investigation that they are a "subject," when you have evidence of indictable activities?
2) Would it be a violation if, as the head of the investigation, one were to time the release of information to try to achieve a maximum or minimum effect on public?

Sorry two questions.

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Ken White, of the blog Popehat, a former federal prosecutor, wrote an entire blog post on this. It's here https://www.popehat.com/2018/04/04/what-it-means-that-trump-is-only-a-subject/


btw - I highly recommend both this blog and Simple Justice. Both are frequented by working lawyers, prosecutors, judges and cops and have a wealth of information about the actual workings of the legal system. The latter is more geared to lawyers and the owner doesn't suffer fools lightly but they are both extremely informative.

Rexedgar said:

I am learning new things in all manner of civics, politics and the legal system of late. A question for those well versed in the legal system of the US:

1) Would it be considered an ethics/legal violation to inform a "target" of an investigation that they are a "subject," when you have evidence of indictable activities?
2) Would it be a violation if, as the head of the investigation, one were to time the release of information to try to achieve a maximum or minimum effect on public?

Sorry two questions.

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Lying, while not always illegal, is always unethical. And to weapon i.e. Information by timing it's release is certainly unethical. Nobody liked it when wiki leaks did it, we just wanted the truth, right then and there.

It is not an investigators job to sway public opinion, only to provide the truth.

Rexedgar said:

1) Would it be considered an ethics/legal violation to inform a "target" of an investigation that they are a "subject," when you have evidence of indictable activities?

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I don't think there is a solid no or yes answer whether it is a violation or not. It depends on the what they are being investigated for and whether or not telling them they are a subject will compromise the investigation in any way.

2) Would it be a violation if, as the head of the investigation, one were to time the release of information to try to achieve a maximum or minimum effect on public?

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I would say that is a violation as that could compromise the investigation and/or compromise the neutrality of the justice system if a trial/hearing is needed.

KevinKohler said:

Lying, while not always illegal, is always unethical. And to weapon i.e. Information by timing it's release is certainly unethical. Nobody liked it when wiki leaks did it, we just wanted the truth, right then and there.

It is not an investigators job to sway public opinion, only to provide the truth.

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The bolded is where Comey and I parted.............as to the timing of release, if there is less damage done by timing release, would that sway your opinion? We are in uncharted legal territory, imo.

Rexedgar said:

The bolded is where Comey and I parted.............as to the timing of release, if there is less damage done by timing release, would that sway your opinion? We are in uncharted legal territory, imo.

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Doing damage should not be a consideration. An investigator should release info as it becomes available to be released. The only question an investigator should ask is "When are we legally allowed to make this public", and whatever the answer is, that is when it should be made public.

KevinKohler said:

Doing damage should not be a consideration. An investigator should release info as it becomes available to be released. The only question an investigator should ask is "When are we legally allowed to make this public", and whatever the answer is, that is when it should be made public.

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I understand that it "should not be a consideration," but whichever way this plays out, there will be a mess. If someone thought there was a way to minimize "the mess," wouldn't it be in the 'greater good's' interest to minimize the impact, letter of the law not withstanding?

Rexedgar said:

I understand that it "should not be a consideration," but whichever way this plays out, there will be a mess. If someone thought there was a way to minimize "the mess," wouldn't it be in the 'greater good's' interest to minimize the impact, letter of the law not withstanding?

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Short term, maybe, but not long term. Think about the Christopher Nolan batman movies. The lies were told for the greater good, and they provided short term benefits, but eventually, the bill comes due. The truth is a scalpel, and trying to manipulate it only serves to dull the blade.

Don't minimize the mess. The mess serves as a lesson, and a failure to learn that lesson will only hurt later, in my opinion.

Rexedgar said:

I am learning new things in all manner of civics, politics and the legal system of late. A question for those well versed in the legal system of the US:

1) Would it be considered an ethics/legal violation to inform a "target" of an investigation that they are a "subject," when you have evidence of indictable activities?
2) Would it be a violation if, as the head of the investigation, one were to time the release of information to try to achieve a maximum or minimum effect on public?
Sorry two questions.

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It's likely buried in here:
https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.200

I tried for a time, and have heard some credible prosecutors discuss similar topics, and generally they are obligated to notify, if asked, whether their client is a subject, target, or witness. The wording me be like "encouraged to disclose", but I would think lying about it would be frowned upon. Similar to this (not exact);

9-11.153 - Notification of Targets

When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

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So you can see, lots of leeway/discretion for certain notifications to a target, in this case.

Regarding #2, it looks like that would be a disclosure intended to affect an ongoing case, and may be outright criminal, if not a violation of procedure, and of course, "unethical". But unethical individuals can certainly abuse that, and make it appear the timing was coincidental..it's a risk. Another concern they have is try to accidentally avoid altering political process and other such things (see Comey), and sometimes make the wrong call. When you have two political parties that would view action or inaction as equally bad in opposite situations (!?), then you're damned either way in some cases. As Kevin said, in such cases, maybe you should try to do it by the book as much as humanly possibly, and it may be a case where you even get counsel on how best to release it to avoid violating policy. I think it's fallacy to believe that the Director of the FBI has to make a call in a vacuum. Good leaders always have good advisors, making a hard call unnecessarily in a vacuum is for the movies and dimwits.

Ethics is trickier, some ethical choices may appear to require violating policy or a law(!).