In 1940, speaking to a gathering of US Attorneys, US Attorney General Robert Houghwout Jackson, who had served as United States Solicitor General, U.S. Chief of Counsel at Nuremberg, and later became a Supreme Court Justice; the only person to have held all three of those offices:
“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst… If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” [https://www.roberthjackson.org/speech-and-writing/the-federal-prosecutor/]
He opened and closed the speech with this: “The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.”
Many years later US Attorney General William Barr, speaking to the Grand Lodge Fraternal Order of Police’s 64th National Biennial Conference in New Orleans, LA August 12, 2019 stated the following:
“under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes.”
Article II of the Constitution Section 3 “contains the Faithful Execution Clause, commonly known as the Take Care Clause. The Take Care Clause is arguably a major source of presidential power because it seemingly invests the office with broad enforcement authority. Yet, at the same time, the provision also serves as a major limitation on that power because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them.” [https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/348]
“In the United States, the exercise of [prosecutorial] discretion is part of executive power, rather than legislative power or judicial power. Article II of the Constitution mandates the executive branch and its agents to “take Care that the Laws be faithfully executed.…” Prosecutorial discretion encompasses all aspects of a case; the prosecutor may decide whether to investigate, grant immunity, or allow a plea. Since the Constitution leaves these decisions in the hands of the executive, the policy of separation of powers weighs against too much judicial oversight of the prosecutor’s discretion.”
The focus is on the existence of a decision. The Supreme Court in 470 U.S. 821 (1985) HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. CHANEY ET AL. No. 83-1878 “has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion. See United States v. Batchelder, 442 U. S. 114, 123-124 (1979); United States v. Nixon, 418 U. S. 683, 693 (1974); Vaca v. Sipes, 386 U. S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”
To paraphrase Alan Dershowitz: A prosecutor’s job is to make decisions. Being presented with knowledge of a crime and then ignoring it into oblivion is not a legal decision and is in fact a direct violation of the Faithful Execution Clause.
The question arises as to how to determine whether a decision has been made or not in a charging question. One simple way is if a consequence of such inaction remains where it could only exist for a prosecutor’s hold while pending criminal processes carry out. When a civil case is held up while criminal allegations are made by a Court itself, and no decision is ever made to charge or not to charge the consequence is fraud on the court.
The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)
It is an unfair hampering of the judicial system’s ability to impartially adjudicate a matter, when the judicial system is not permitted to publicly issue such adjudication. A prosecutor’s job being to decide, means refusal or failure to decide, -OR- failure or refusal to inform the court of a decision thereby improperly influencing the trier of fact, whatever it may be is outright nonfeasance and an affront to the court. Contemptible in the least.
On the contrary, the only other potential cause of a civil case to not be publicly adjudicated would be fraud by the court. There is no such thing in American Justice.
Even orders that are literally false, completely upside down to the reality of presented evidence are not fraud by the court.
When a counter claim is filed that identifies numerous federal law violations and never ruled on by a court that failure is not due to bad judges it is due to some force holding its completion. That force, absent any misbehavior by the court can only rest upon the prosecutor or prosecutors who took that counter claim. If the counter claim and its allegations of federal law violations was not forwarded for law enforcement review the court would have violated 18 U.S. Code § 4 – Misprision of felony. “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” The fact that a judge would have been responsible for informing law enforcement of the allegations does not satisfy Misprision of felony if they judge kept that secret to himself.
It is impossible for a prudent person to accept the premise that any Federal Judge in possession of the knowledge and evidence of allegations of federal offenses would have even considered not reporting such knowledge to the Executive branch.
In September of 2020 in his Constitution Day Speech, then Attorney General William Barr looked to Justice Jackson for inspiration.
“I want to focus today on the power that the Constitution allocates to the Executive, particularly in the area of criminal justice. The Supreme Court has correctly held that, under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes. The only significant limitation on that discretion comes from other provisions of the Constitution. Thus, for example, a United States Attorney could not decide to prosecute only people of a particular race or religion. But aside from that limitation — which thankfully has remained a true hypothetical at the Department of Justice — the Executive has broad discretion to decide whether to bring criminal prosecutions in particular cases.
The key question, then, is how the Executive should exercise its prosecutorial discretion. Eighty years ago this spring, one of my predecessors in this job —then-Attorney General Robert Jackson — gave a famous speech to a conference of United States Attorneys in which he described the proper role and qualities of federal prosecutors. (By the way, Jackson was one of several former Attorneys General who went on become a Supreme Court Justice. But I am one of only two former Attorneys General who went on to become Attorney General again.)
Much has changed in the eight decades since Justice Jackson’s remarks. But he was a man of uncommon wisdom, and it is appropriate to consider his views in the modern era.
The criminal process is a juggernaut. That was true then and it is true today. Once the criminal process starts rolling, it is very difficult to slow it down or knock it off course. And that means federal prosecutors possess tremendous power — power that is necessary to enforce our laws and punish wrongdoing, but power that, like any power, carries inherent potential for abuse or misuse.
Justice Jackson recognized this. As he put it, “The prosecutor has more control over life, liberty, and reputation than any other person in America.” Prosecutors have the power to investigate people and interview their friends, and they can do so on the basis of mere suspicion of general wrongdoing. People facing federal investigations incur ruinous legal costs and often see their lives reduced to rubble before a charge is even filed. Justice Jackson was not exaggerating when he said that “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”
The power to, as he called it, “strike at citizens, not with mere individual strength, but with all the force of government itself” must be carefully calibrated and closely supervised. Left unchecked, it has the potential to inflict far more harm than it prevents.” [https://theconservativetreehouse.com/2020/09/17/ag-william-barr-constitution-day-speech-transcript/]
The instant case is one of the question of not rolling at all. A question of nonfeaseance. In action, ignoring allegations or misleading courts about such allegations is a modified yet just as lethal potential to inflict more harm than it prevents> Left unchecked crimes disappear down the rabbit’s hole. That on its own is a decision. Not one that leaves a trail.
The Rule of Law does not exist when the law is refused to be enforced.
Example: A civil trail takes place in the Charleston South Carolina District Court in the 4th Circuit and within that trial a defendant’s counter claim is presented using evidence provided by the Plaintiff. Legal filings sent in US Mail are stolen, and recovered by the court. That evidence is all about federal felonies. Allegations that are backed up by not only the civil preponderance of the evidence but by thousands of pages of direct evidence, beyond any reasonable doubt. The court never rules on the counter claim and puts out a memorandum order dismissing the case itself by claiming the Plaintiff was responsible for the known and established facts perpetrated by the Defendants. (This it seems is a habit of courts when dealing with self-represented parties. There is no way a court would issue the same tripe to an attorney.) The potential charges in that counter claim then run out without any action by the Department of Justice but the case still remains stopped without a valid true and factual order and no release by the Justice Department. The 4th Circuit opinion is blocked and never published while the Supreme Court of the United States returned the filing fee and simply refused to even entertain the issues. Statues of limitations have long expired for any crimes identified in that case but the hold remains. 14 years later.
That would be bad enough, but to have it happen TWO MORE TIMES is absurd. “When something goes wrong at the Department of Justice, the buck stops at the top. 28 U.S.C. § 509 could not be plainer: ‘All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.'” [https://www.justice.gov/opa/speech/remarks-attorney-general-william-p-barr-hillsdale-college-constitution-day-event]
Example: A civil complaint is filed in state court. The time for response by all defendants comes and goes. Copies of the responses are sent to the Plaintiffs but never make it to the court’s own docket before the deadline. Nearly two weeks after the expiration of the response deadline the assistant clerk of court finds no record of those documents ever filed with the court. After undoubtedly complying with 18 U.S. Code § 4 – Misprision of felony and informing the judge assigned to the case, the assistant clerk rules the filing copies sent to the Plaintiffs are trash. A default has happened. If that had not been uncovered the rest of the scam would have played out. But four days later those documents are found and added to the docket. A clear cut lawyer trick to coerce the self-represented Plaintiffs to file for default where the judge would find the documents in the system and declare the case ended and dismissed and potentially sanction the Plaintiffs for filing the default. After the case reached discovery Plaintiffs submitted all evidence and then filed for a default judgment. Before that the court held a secret hearing with only the clerk of court in attendance. Obviously to discuss the crime that took place when the case was filed. The court had refused to recognize one set of lawyers in the case but allowed them to file and respond nevertheless. Bribery by two court clerks was responsible for the hidden and non-entered responses by the defendants. That bribery was a state case but a few months later was handed over to the federal prosecutor. The ‘judgment’ in the case was not stamped as filed and issued as a conformed copy. The clerk of court informed Plaintiffs it would be replaced when the real order was eventually issued. It never was.
Example: A civil complaint is filed in Federal court in an attempt to force the state court to release the case’s proper orders. The default. That case played out in court, had legal filings stolen in US Mail and even had the case blocked from inclusion in any world wide search through Google by the use of the Lumen Database copyright process. A children’s book was used to block the United States Courts for a copyright violation. That court issued a totally incorrect memorandum (you could never find in Google until recently) but that led to the 9th Circuit Court of Appeals where the constitutional questions had the circuit court quash the district court ruling and retry the case with a three judge panel. That opinion has never been published. And more legal filings were stolen in US Mail. All of that because a prosecutorial hold was placed on the state case because of a bribery investigation. A Defendant attorney even begged the court not to issue a ruling. Crimes inside that court preempted that as well. Then the same three judge panel ruled on its own unknown opinion and mandated it without anyone knowing what it said.
Crimes that could have held the 4th circuit cases would have had their statues of limitations expire either 4 or 7 years ago. Yet the hold continues. Crimes that have held up the state cases would have had their statues of limitations expire 3 years ago. Crimes in the 9th circuit will soon approach expiration as well.
If a prosecutor had informed the courts of these issues the cases would not longer be held up. But no one has.
Bill Barr concluded his Constitution Day speech with: “In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice. That means following the letter of the law, and the spirit of fairness. Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges. Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.
Our job is to be just as dogged in preventing injustice as we are in pursuing wrongdoing.” [https://www.justice.gov/opa/speech/remarks-attorney-general-william-p-barr-hillsdale-college-constitution-day-event]
Well: that obviously needs a kick in the ass.