NEW YORK – Loretta Lynch's extensive use of secret dockets in the Eastern District of New York, which she oversees as U.S. attorney, is yet another issue some of her critics on the Senate Judiciary Committee are examining as they prepare to vote on her nomination to succeed Eric Holder as attorney general.
Federal prosecutors in Lynch’s Brooklyn-based district have pursued secret unnamed “John Doe” or “Jane Doe” prosecutions 58 times since she became U.S. attorney in May 2010. None of the other federal district courts has charged more than eight “Does” during the same period of time, according to a probe by NBC News.
WND has investigated the case of a member of a prominent New York family with a history of Wall Street connections who has asked not to be named in this story for fear of reprisal.
Lynch demanded a guilty plea, threatening a criminal indictment, but has chosen not to prosecute. The unindicted figure, however, was confronted by a team of Department of Justice lawyers who demanded answers under oath to a long list of incriminating questions, and he is still the target of a secret investigation after two years.
Sidney Powell, who worked in the Department of Justice for a decade and was lead counsel in more than 500 federal appeals, has charged that Lynch's use of the secret docket has "allowed admitted criminals to walk free, deprived their victims of millions of dollars of restitution required under the law, and enabled the criminals to commit more crimes against the unsuspecting public."
Writing in the New York Observer in January as Obama announced Lynch's nomination, Powell said "courageous lawyers" at the time were asking the U.S. Supreme Court to a review a case, Palmer v. John Doe, that would review what she called the "unholy practice" of secret prosecutions.
As WND reported, Lynch's confirmation vote in the Senate initially was postponed after Sen. David Vitter, R-La., a member of the Senate Judiciary Committee, opened an investigation of Lynch's role in the decision not to criminally prosecute employees of HSBC for the bank's involvement in laundering of funds by terrorists and drug cartels. Vitter launched the probe after his staff quizzed a former HSBC employee, John Cruz, whose trove of original evidence of money laundering was reported first by WND.
Since then, Vitter’s office has continued pressing GOP senators quietly behind the scenes to vote against Lynch’s confirmation. A vote of the full Senate could be held later this month.
The Department of Justice investigation culminated Dec. 11, 2012, in a “deferred prosecution agreement” Lynch signed with HSBC in which the bank admitted “willful criminal activity” and paid a $1.9 billion fine in return for the U.S. Department of Justice agreeing not to bring criminal charges.
Luke Bolar, a Vitter spokesman, told National Review Online in an email that Lynch’s potential secret docket and possible failure to comply with federal law are big concerns for the senator.
NRO quoted Powell saying Lynch’s questionable actions appear consistent with the playbook of Holder’s Justice Department.
Powell sees disturbing parallels between Holder’s mishandling of the Fast and Furious gun-running scandal, which resulted in the murder of a U.S. Border Patrol agent, and the conduct of Lynch’s office in looking the other way while cooperating criminals harmed more unsuspecting and innocent people.
In the alleged New York terrorist case, law enforcement authorities under Lynch’s direction confiscated and did not return personal property, including computers, files and other paper records. They examined personal financial records, including credit cards and bank accounts, while threatening long-term incarceration if the accused persisted in refusing to plead guilty to a criminal indictment Lynch threatened to file.
Lee Rowland, staff attorney of the ACLU Speech, Privacy & Technology Project, told NBC News the concern is that the practice of secret prosecutions may infringe on the constitutional right to a public trial.
He said that while pseudonyms may be appropriate in exceptional cases, "the courts should always opt for more transparent methods of protecting sensitive information when available."
"The disproportionate number of John Doe cases in the Eastern District is certainly a cause for concern; complete secrecy about the parties in a case should never be a default option," he said.
The Justice Department has argued the disproportionate number of “John Doe” prosecutions in Lynch's district is partly because of the office's docket of terror cases and other violent crime matters.
"It is also likely the case that other districts are more likely to file their cases completely under seal rather than file 'John Doe' cases," Brian Fallon, director of public affairs for the Justice Department, told NBC News.
He cited "safety and security in ongoing matters" as the motives for the Eastern District's Doe designations, and said that after "supervisory approval and review" with the U.S. Attorney's office, the Doe label must be approved by the court as well.
Targeting Scott Walker supporters
Secret prosecutions notably have been used in Wisconsin, where the Democratic Party and unions have backed District Attorney John Chisholm. Chisholm launched a multi-year “John Doe” investigation that included SWAT raids on homes to confiscate records in an unsuccessful attempt to prove Wisconsin conservative organizations had violated campaign finance laws in their support of Gov. Scott Walker’s 2012 re-election campaign.
“Wisconsin’s unique John Doe procedure is similar to a grand jury investigation, without a jury of peers,” Wisconsin Watchdog.org noted March 2. “A single judge is vested with extraordinary power to compel witnesses to testify in determining whether a crime has been committed. The probes have included a gag order, and those subject to it can go to jail if they say anything publicly about the investigations.”
On Jan. 30, U.S. District Judge Charles N. Clevert Jr. “pulled the life support” plug on Chisholm's investigation, ruling he and the Wisconsin Government Accountability Board cannot prevent citizens from speaking out on issues in a political campaign.
Lacking 'robust' oversight
“The United States should discourage secrecy in criminal prosecutions through both its legal doctrine and policy,”wrote attorney John Stinson in an article titled “Secret Indictments: How to Discourage Them, How to Make Them Fair,” published in the Drexel Law Review in 2009. “While secrecy is necessary in some circumstances, as a general matter, it threatens constitutional rights and contravenes our fundamental notions of fairness in the criminal adjudication process.
“Secrecy is expressly disfavored in American criminal procedure, as established by the Constitution and decades of case law,” he continued. “While it hardly creates an immediate due process violation, this traditional and apt distrust of secrecy urges scrupulous procedures to fend off government abuse, even unintended or unwitting abuse, or prejudice to defendants.”
Stinson expressed concern that current prevailing procedure “lacks robust judicial oversight and unfolds in ways that, in most cases, probably advantage the government to the detriment of individual rights,” largely because the decision to seal an indictment or prosecution is typically made by the prosecutors.
Suspects under investigation, he said, are dependent not on an objecting defense attorney but typically on a magistrate judge who is left to “represent the interests of society in fair and constitutional criminal proceedings in the same fashion she would when deciding whether to grant a search warrant.”