Graymail and Blackmail

Hastert Legal Team & Government Prosecutors File Request for Yet Another Delay- Here’s Why

Former U.S. House Speaker Dennis Hastert has again asked a federal judge to delay the deadline for pre-trial motions in his criminal hush-money case.

Hastert’s attorneys and prosecutors filed a joint motion today asking for another two-week extension.  Ten days ago, on September 11, 2015, they had asked for a delay, which was granted.

As with the previous one, the new motion repeats that both sides, Hastert’s legal team and government prosecutors, are discussing issues Hastert “may raise in pretrial motions.” Neither party has offered any details.

BFP Report has been publishing a series on the Hastert case, involved entities with much at stake if the case were to proceed as a real case, and various methods that could be implemented to limit or end the case. The back-to-back filings for the delay, consented by both parties, and the announcement by Hastert’s legal team on their intention to file a motion to dismiss all charges, point to the likelihood of the case being dropped.

There are grounds on which the parties may agree to have the charges dropped. Despite refusal by both parties to offer any details on the matters under negotiation, there are solid indicators pointing to the pressure points that are being utilized by Hastert’s attorneys to make the case go away. Here are some likely grounds that are being exploited by Hastert’s legal team to get the charges dropped (For more in-depth analyses see here, here and here).

Graymail Tactic

Based on previous government surveillance and evidence files on Hastert and past court cases directly related to the Hastert case, the defense may be utilizing the legal tactic commonly known as graymail.

Graymail is the threatened revelation of state secrets in order to manipulate legal proceedings. It is used as a defense tactic, forcing the government to drop a case to avoid revealing national secrets. Graymail can occur in two ways:

To straight forwardly blackmail the government, forcing it to drop the case using the threat that if the trial moves forward the defendant will reveal classified information he or she already knows.

To request the use of classified material as evidence in the trial, with an expectation that the government will be unwilling to make the material fully available to the case, and that this will raise the possibility, in the eyes of the judge or jury, that the unreleased material might clear the defendant, making it difficult to prove guilt.

Dennis Hastert and his legal team possess more than enough leverage to successfully execute these methods to force the government to drop all charges.

Hastert’s team has leverage to argue that the recent criminal investigation against Hastert was the extension and or continuation of previous operations that were targeting and surveilling Hastert during his tenure in the U.S. Congress. Based on this they could ask for all files and documents gathered on him dating back to 1996.

Hastert’s attorneys can easily point to the multi-page exposé by Vanity Fair Magazine on Hastert published in September 2005. The article was published based on disclosures from several credible witnesses from the FBI and DOJ regarding criminal evidence obtained on Hastert based on the FBI’s counterintelligence investigations from their Chicago and Washington D.C. Field Offices.

The counterintelligence operation in question was targeting the Turkish lobby and associated networks in the US. Hastert was said to have knowingly received foreign bribery from these networks, and engaged in illegal campaign financing and other financial fraud activities.

Less than two years after the publication of the exposé by Vanity Fair Hastert left the US Congress. Six months after leaving the House, Hastert began reaping the benefits of serving Turkish interests in Congress by joining the firm Dickstein Shapiro as a lobbyist representing the Turkish government, among other clients. He worked jointly with former House Majority Leader Dick Gephardt, sometimes traveling together to Turkey, and splitting millions of dollars in lucrative lobbying fees.

Knowing that the Department of Justice and the FBI have repeatedly invoked State Secrets Privilege in cases that entailed counterintelligence information on illegal foreign lobby operations in the United States, many of which included Hastert, Hastert’s  attorneys can reasonably expect a similar response from the Department of Justice today. Meaning, if faced with discovery requests involving the FBI’s two-decades long files and operations related to Hastert, obtained via counterintelligence operations involving foreign lobbies in the U.S., the government would invoke classification and state secrets privilege again.

Blackmail Tactic

Hastert’s legal team can easily resort to indirect or direct blackmail that can lead to partial or complete dropping of the charges against Dennis Hastert.

Based on past cases, reports and disclosures Hastert’s attorneys can threaten the government with exposing its illegal domestic surveillance operations between 1996 and 2002 that were in violation of FISA laws. The attorneys can point to reports filed in 2002 with the DOJ Inspector General’s Office regarding ongoing FBI counterintelligence operations targeting public officials in violation of ELSUR (Electronic Surveillance) and FISA regulations.

In 2007, the National Security Whistleblowers Coalition (NSWBC), obtained and released a copy of an official complaint filed by veteran FBI Special Agent Gilbert Graham with the Department of Justice Office of the Inspector General (DOJ-OIG). SA Graham’s protected disclosures report the violation of the Foreign Intelligence Surveillance Act (FISA) in conducting electronic surveillance of high-profile U.S. public officials.

The illegal domestic surveillance operations began with the White House classified directive issued in 1996 directing the DOJ-FBI to begin conducting a new domestic operation using its counterintelligence divisions and bypassing FISA regulations in response to two sexual scandals, Jones and Lewinsky, and the likely risk of impeachment. Dennis Hastert, Bob Livingston and Dan Burton, were among those targeted by the operation.

Hastert’s legal team can utilize this information, and related witnesses and evidence, to blackmail the government. They can reasonably argue that the recent criminal investigation of the Justice Department in Chicago may be the continuation of previous illegal surveillance and investigations conducted by the DOJ and FBI in violation of FISA law and ELSUR regulations. By doing this they would be playing the Fruit of Poisonous Tree legal card. Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the “tree”) of the evidence or the evidence itself is tainted, then anything gained (the “fruit”) from it is tainted as well.

Hastert’s attorneys can reasonably claim that since the use of FISA and FBI’s counterintelligence units in violation of FISA to target public officials were illegal, and since Hastert’s current case may be the extension of those illegal operations, the government would be exposing its own unlawful deeds if it were to move forward with the criminal charges against Hastert.

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Currently both parties are engaged in intense discussions. The discussions are wrapped in absolute secrecy with neither providing a hint. Considering the facts on the ground, the two delay requests jointly filed back-to-back with the court, and the Hastert legal team’s self-assuredly expressed intention to demand that the government drop all charges against its client, point to a scheme that consists of graymail and blackmail legal tactics, backed up by solid historical evidence and witnesses.

Last week in our coverage of the Hastert Case we predicted and explained why and how prosecutors would be forced to ‘lose’ or ‘drop’ the Hastert Case. With the filing of this second request for delay we are getting closer to seeing that prediction come true. Meanwhile we’ll wait and see what transpires next.

Reprinted with permission from Boiling Frost Post.