The quick departure of a Muslim adviser to the Obama campaign after disclosure of his ties to one or more of the many unindicted co-conspirators in the Holy Land Foundation criminal case is not just a campaign decision. It’s a precedent for management guidance next year for components of the Justice Department. It doesn’t have to be complicated, just something like “No component of the Department of Justice will enter into any contract, grant, or agreement with any person or entity which is an unindicted co-coinspirator in a federal criminal case brought by the Department of Justice.” And that should be extended by the Office of Management and Budget to cover all Executive Branch agencies. Such a policy need not have anything to do with CAIR’s grounding in the international Islamist Muslim Brotherhood network or the questionable associations and criminal convictions of several CAIR officials. (I think those associations should come into play, but we’ve already asserted that on this website.)
After all, the naming of an unindicted co-conspirator is no small matter; it’s actively discouraged by the Justice Department. The U.S. Attorneys Manual at DOJ advises federal prosecutors to avoid naming them. “The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with “another person or persons known.” The identity of the person can be supplied, upon request, in a bill of particulars. See USAM 9-27.760. With respect to the trial, the person’s identity and status as a co-conspirator can be established, for evidentiary purposes, through the introduction of proof sufficient to invoke the co-conspirator hearsay exception without subjecting the person to the burden of a formal accusation by a grand jury. In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.” A prosecutor can’t just throw a list out there; the presiding judge must conclude that the individual’s statements or acts were in furtherance of the alleged conspiracy. Moreover, the Attorney’s Manual discourages the actual naming of any party not actually charged in an indictment, noting, “Courts have applied this reasoning to preclude the public identification of unindicted third-party wrongdoers in plea hearings, sentencing memoranda, and other government pleadings.” Legal policy experts, including the American Bar Association, have recommended outlawing the designation entirely or at least banning the release of any names.
In light of the seriousness of the designation, it is an inherent conflict of interest for any DOJ component to have a business relationship with an unindicted co-conspirator in a federal criminal case, until the trial or a plea bargain produces some resolution which is favorable to the designee. It’s especially preposterous for the FBI to have entered into a training agreement with CAIR while its agents were providing the information to the U.S. Attorney which resulted in its designation as an unindicted co-conspirator in the HLF case. The White House and the Attorney General can suspend that agreement anytime, without cost to the taxpayer, until the case is retried and completed. Now that a federal judge in Dallas has denied HLF’s motion to delay the case beyond the planned September 8 starting date, we will soon have a disposition of the list of unindicted co-conspirators. And if the trial doesn’t clear them, there won’t be any excuses for the continued FBI-CAIR relationship.