Lynn Landes 
 The Landes Report ...

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Why won't the Department of Justice (DOJ) investigate electronic vote fraud?
Is it because the DOJ and FBI have long been involved in it, themselves? 

Meet Craig C. Donsanto, head of the U.S. Department of Justice’s Election Crimes Branch, Public Integrity Section (from 1970-present). 

Photo of Craig Donsanto (left) and Ernest Locker Jr., former special agent at the Federal Bureau of Investigation, spoke at IFES and discussed their careers investigating electoral fraud.  Source: http://www.ifes.org/newsinbrief.html?title=U%25S%25%20Election%20Fraud%20Experts%20Speak%20at%20IFES

READ:


The Cincinnati Bell-FBI scandal:  Leonard Gates, a Cincinnati Bell employee for 23 years, testified that in the late 1970's and 80's, the FBI assisted telephone companies with hacking into mainframe election computers in cities across the country. He spoke with agents from both the DOJ (U.S. Attorney Kathleen M. Brinkman) and FBI (Agent Love), but to his knowledge, neither agency took further action.  Leonard Gates 1987Deposition, plus 1985 Background Material from Jim Condit, Jr. //Pandora's Black Box & http://www.votefraud.org/expert_strunk_report.htm (contains case number) 

Excerpt from Nov 1996, Pandora's Black Box by Philip M. O’Halloran of Relevance, The Cincinnati Election Wiretapping Scandal:

Lewis and other skeptics of the vote-fixing scenario like to insist that there has never been any evidence of a "conspiracy" to fix elections by computer. But then, most of those we interviewed on both sides of the issue had never heard of the case of Leonard Gates of Cincinnati, Ohio. An employee of the Cincinnati Bell telephone company, Gates was watching a local t.v. news story, in which a Cincinnati man named Jim Condit was charging that the election system was vulnerable to vote fraud in the Hamilton county election process.

He based his charges on his experience as a candidate for city council in 1979, when, after an election night computer crash, Condit and seven other "feisty challengers" had suddenly "fallen to the very bottom of the heap" of 26 candidates. Gates called the station and later contacted Mr. Condit, telling him he knew firsthand how his votes were robbed. They met and shared information and ultimately Gates testified in Condit’s Cincinnatus PAC (political action committee) lawsuit against the Hamilton County Board of Elections.

The suit had earlier been decided against the plaintiffs and Gates took the stand during the appeal. He swore under oath that he was ordered by his Cincinnati Bell superiors to wiretap the election headquarters’ phones lines to provide a link-up between the county’s vote-counting computers and parties unknown on another phone line somewhere in California.

The following are excerpts from the Cincinnati Post of October, 30th, 1987:

Cincinnati Bell security supervisors ordered wire-taps installed on county computers before elections in the late 1970s and early 1980s that could have allowed vote totals to be altered, a former Bell employee says in a sworn court document.

Leonard Gates, a 23-year Cincinnati Bell employee until he was fired in 1986, claims in a deposition filed Thursday in Hamilton County Common Pleas Court to have installed the wire-taps. Cincinnati Bell officials denied Gates’ allegations that are part of a six-year-old civil suit that contends the elections computer is subject o manipulation and fraud.

Gates claims a security supervisor for the telephone company told him in 1979 that the firm had obtained a computer program through the FBI that gave it access to the county computer used to count votes. [Emphasis added].

The FBI refused comment and Cincinnati Bell spokesmen vehemently denied the allegations, claiming Gates was a "disgruntled ex-employee", yet, according to Condit, the company ultimately admitted that one of its vans was involved in the wiretapping, although it claimed they were commandeered without the company’s knowledge. The Post continued:

In the deposition, Gates claims he first installed a wire-tap on a telephone line to the county computers before the 1977 election at the instruction of James West, a Bell security supervisor.

Gates contends both West and Peter Gabor, security director, told him to install wire-taps in subsequent elections. Both men declined comment Thursday.

In the 1979 election, which is the focus of the deposition – Gates said he received instructions in the mail from West about installing wire-taps on county computers in the County Administration Building at Court and Main streets.

The wire-taps were installed on the eve of the election at Cincinnati Bell’s switching control center at Seventh and Elm Streets and terminated in a conference room in the building, Gates alleges.

In the deposition, Gates described in great technical detail installation of the wire-taps.

At about 8:30 p.m. on election day – Nov. 6, 1979 – Gates said he was called by West and told something had gone wrong, causing the elections computer to malfunction. At West’s instructions, Gates said he removed the taps.

The elections computer shutdown for two hours on election evening due to what was believed to be a power failure, Condit Sr. has said.

Gates said West told him they "had the ability to actually alter what was being done with the votes."

Gates said West told him the Board of elections did not know about the taps and that the computer program for the elections computer "was obtained out of California, and that the programming had been obtained through the FBI..."

Shortly after the 1979 election, Gates said he met with the late Richard Dugan, former Cincinnati Bell president, to express his concerns that the wire-taps were done without a court order.

"Mr. Dugan said it was a very gray area... This was just small compared to what was going on. He told me just, if I had a problem, to talk to him and everything would be okay, but everything was under control," Gates said [Emphasis added].

[Editor’s Note: This scandal’s alleged FBI connection raises the possibility of U.S. law enforcement and/or intelligence involvement in electronic vote-rigging.]

Another Cincinnati Bell employee, named Bob Draise, admitted to being involved in a second phase of the illegal operation, which involved wiretapping several prominent Cincinnati political figures including a crusader against pornography named Keating and the Hamilton County commissioner, Allen Paul.

Jim Condit told Relevance that, as a result of the ensuing scandal, Draise was convicted and five Cincinnati police officers, who were allegedly involved in the wiretapping operation, abruptly resigned. The alleged involvement of the FBI was never pursued and the Bureau itself did not follow up on the Gates allegations. In spite of all the evidence, the appeal by the plaintiff failed and the issue was laid to rest.


FEDERAL COMPLICITY IN VOTE FRAUD - excerpts from Lynn Landes's 2007 'REPORT TO CONGRESS'

The unique vulnerability of electronic voting technologies has been long known to federal authorities. 

“If you did it right, no one would ever know,” said Craig C. Donsanto, head of the U.S. Department of Justice’s Election Crimes Branch, Public Integrity Section (from 1970-present) in a July 4,1989 Los Angeles Times article about electronic voting machines and vote fraud. 

So, why hasn't Donsanto sounded the alarm and informed Congress of this threat?

Donsanto has the reputation of a gatekeeper.  He was featured in the Colliers' book, VoteScam, for his unwillingness to investigate evidence they collected over the years of rampant vote fraud involving voting machine companies, the news networks' exit polls, and election officials in Florida and other states. 

Furthermore, Donsanto made it official department policy that no federal investigator should enter a polling precinct on election day, nor should they begin any serious investigation of the voting process until after the election results are certified.  It is this policy that gives those who commit vote fraud ample opportunity to destroy evidence and cover their tracks. (See official policy: http://www.thelandesreport.com/Donsanto.htm)

There is more to be concerned about than obstruction of justice within the DOJ.  It appears that elements within the FBI may have not only been aware of computer vote fraud, but participated in it.  The following are excerpts from the Cincinnati Post of October 30th, 1987:

"Cincinnati Bell security supervisors ordered wire-taps installed on county computers before elections in the late 1970s and early 1980s that could have allowed vote totals to be altered, a former Bell employee says in a sworn court document. Leonard Gates, a 23-year Cincinnati Bell employee until he was fired in 1986, claims in a deposition filed Thursday in Hamilton County Common Pleas Court to have installed the wire-taps. Cincinnati Bell officials denied Gates’ allegations that are part of a six-year-old civil suit that contends the elections computer is subject o manipulation and fraud. Gates claims a security supervisor for the telephone company told him in 1979 that the firm had obtained a computer program through the FBI that gave it access to the county computer used to count votes."  (See: http://www.ecotalk.org/Pandora'sBlackBox.htm)

No state could match the staggering number of Voting Rights complaints due to voting machines and other election irregularities as Florida did in the 2000 presidential election. Yet the Bush Administration's DOJ under Attorney General John Ashcroft did not send federal observers to Florida to monitor the voting process in 2002, although federal observers were sent to several other states. This was surprising news to many people and organizations who were told by DOJ officials that "Justice" would be down there in force.

Even if federal observers had been sent to Florida, how would they 'observe' the accuracy of the voting machines there?

"They wouldn't know that," says Nelldean Monroe, Voting Rights Program Administrator for the U.S. Office of Personnel Management (OPM) in a phone interview. Her agency is responsible for the recruiting and training of federal observers who are sent by the DOJ to monitor elections if violations of the Voting Rights Act are suspected. 

In a November 21, 2002 e-mail Monroe elaborated, "The only observance of the tallying of the votes is when DOJ specifically requests observers to do so. This rarely occurs, but when it does, it is most often during the day following the election when a County conducts a canvass of challenged or rejected ballots. In this case, federal observers may observe the County representatives as they make determinations on whether to accept a challenged or rejected ballot. Federal observers may also observe the counting of the ballots (or vote tallying) when paper ballots are used."  (See e-mail: http://www.thelandesreport.com/nelldeanmonroe.htm)

In other words, federal observers can only observe people, not machines, counting paper ballots. Monroe confirmed that there is no training and no opportunity for federal observers to observe the accuracy of voting machines.

Under Section 8 of the Voting Rights Act, 42 U.S.Code § 1973f, federal observers may be authorized to observe "... whether persons who are entitled to vote are being permitted to vote ...(and) whether votes cast by persons entitled to vote are being properly tabulated..."

America's nontransparent voting process (i.e., voting by machine, absentee, early, or secret ballot) violate those provisions. Federal observers cannot observe "whether persons who are entitled to vote are being permitted to vote” (and) “whether votes cast are being properly tabulated." 

Under "Prohibited acts" in §1973i, the "Failure or refusal to permit casting or tabulation of vote"...can result in civil and criminal penalties. "No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote...(and) Whoever...knowingly and willfully falsifies or conceals a material fact... shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Requiring voters to use voting machines, rather than allow them to mark and cast their own votes, constitutes "failure or refusal to permit casting".  Any result produced by a machine is circumstantial (i.e., not direct) evidence of the intention of the voter.

Fundamentally, nontransparent voting makes the role of the federal observer moot and the Voting Rights Act unenforceable. 



DONSANTO - WATERGATE - VOTEFRAUD

2005:  From Dan Kennedy http://medialogarchives.blogspot.com/2005/06/notes-on-deep-throat.asp 

Yesterday afternoon, Wendell Woodman, a freelance political columnist based at the State House, in Boston, blasted out an e-mail containing a column he wrote in 1995 in which he speculated that Felt was Deep Throat. The column was preceded by an introductory note stating that Woodman had actually fingered Felt as far back as the early 1970s.

Here is the column - and you've got to love the Florida voting-fraud angle. Some things never change. I've fixed a few spellings of names.

No, Diane Sawyer was not "Deep Throat," as Rabbi Baruch Korff, an old confidante of President Nixon, suggested Monday for the amusement of AP.

Diane may be Deep Flattered. But "Deep Throat" was Mark Felt.

The Associated Press attributed the rabbi's guess to the fact that Diane was an assistant to White House Press Secretary Ron Ziegler in 1972. AP promptly added Diane into the sauce with former FBI director L. Patrick Gray and then-National Security deputy Alexander Haig as Throat candidates.

Author Bob Woodward of the Washington Post and "All The President's Men" insists the source who helped him and fellow reporter Carl Bernstein break the Watergate story was a guy.

That would be Mark Felt.

After three Miami television stations projected the results of the September, 1970 primary elections in Florida's Dade County "down to the last digit" as soon as the polls closed, Henry Petersen, who headed the U.S. Justice Department's Criminal Division, was instructed to begin an investigation.

Throughout 1971 and into 1972, the Nixon White House - notably Attorney General John Mitchell and Nixon aides H.R. Haldeman and John Ehrlichman - received regular briefings. Richard Nixon, who was sure that vote fraud in Illinois and Texas had cost him the presidency in 1960, was a fanatic on the subject and in 1972 ordered Petersen to accelerate the probe.

As soon as FBI Director J. Edgar Hoover died on May 2, 1972, a 27-year-old Justice Department employee named Craig C. Donsanto signed Petersen's name to a "courtesy" letter telling Democratic Congressman Claude Pepper of Miami that all hell was about to break loose. Pepper learned that Democratic National Committee offices based at the Watergate ostensibly were in cahoots with a California computing firm anxious to corner the market on the new computer voting industry and that Dade County had been a guinea pig.

Promising him assistance in his career, Pepper prevailed on Donsanto to stamp a "National Security" embargo on the FBI file. That file is still classified. But two Miami reporters, Kenneth and James Collier, managed to obtain copies of it - at about the time Bob Graham was elected Governor of Florida in 1978.

One of the three TV stations implicated in the 1970 fraud case was WPLG-TV of Miami, an affiliate of the Washington Post and Newsweek, and the property of Post owner Katharine Graham, who is Bob Graham's brother-in-law. The call letters WPLG were a tribute to her late husband, Philip L. Graham.

The Watergate burglars (from Miami, you will recall) did not break into the Watergate to tap a telephone. It doesn't take six people to do that. They were looking for evidence of vote fraud and conspiracy.

Thanks to Donsanto's counterfeit letter to Pepper, the offices were germ-free. They didn't even leave milk and cookies for the six burglars.

Thanks to a grateful Claude Pepper, Craig Donsanto quickly became chief of the Justice Department's Public Integrity Section and, by 1984, was Special Prosecutor in the Voting Fraud Section, responsible for all federal voting fraud cases in the United States. Gives you a warm feeling, right?

Although Petersen's case was derailed by the treachery in his office, those who were party to those matters viewed the Watergate debacle as a race between Nixon and the Post to see which would nail the other first.

New to his job as Acting Director of the FBI at the time of the burglary, L. Patrick Gray was forced to rely on the judgment and expertise of the man who had been J. Edgar Hoover's aide and confidante - Mark Felt.

As a junior departmental attorney whose new Godfather was Claude Pepper, Donsanto scored more career points for himself at Justice by feeding everything he had on the case to Mark Felt.

The currency of choice is Washington is information, favors.

Perhaps Mark Felt did feed some of that to Gray, but certainly Gray would not have passed it along to the Post from his tenuous role as "Acting" director of the FBI. That identifies the crafty Mark Felt as "Deep Throat." That conclusion is not a stretch (indeed, it's unavoidable) once we rid ourselves of the nursery rhyme about six burglars trying to tap a telephone.

When in 1982 the Colliers invited Washington Post Assistant Managing Editor Bob Woodward to view a six-hour videotape of voting fraud in Dade County and inquired "what Katharine Graham knew and when she knew it?" Woodward replied, "Don't start a war with me on this."

As late as 1983, the State Attorney for Dade County, a lady named Janet Reno (ring a bell?) was urging the Governor of Florida to name a special prosecutor to press the so-called Votescam case. But the Governor, a future U.S. Senator named Bob Graham (ring a bell?) refused her requests.

By 1984, expecting a challenge from Gov. Graham for her U.S. Senate seat in 1986, Republican Sen. Paula Hawkins sponsored an order to create a special select Senate committee on voting abuse, and prevailed on then-Attorney General William Smith and two of his deputies to view the video.

Everything is under lock-and-key, at least in Florida.

Bob Woodward's source on a private Oval Office conversation between President Clinton and a member of his cabinet (related in his book, "The Agenda: Inside the Clinton White House") will be revealed 74 years from now, he promises. In another book, "Veil", he related a 1986 deathbed confession of CIA Director William J. Casey about Iran-Contra thusly: "I believed."

Why a comatose patient fresh from a craniotomy would pass that along to the man who brought down Nixon just because he snuck by a committee of CIA security men at Georgetown Hospital is curious. If he was hoping that Woodward would pass it along to the Roman Catholic Church, he got his wish. It's on page 507.

As to the other matter, "Deep Throat" was Mark Felt.



http://thinkprogress.org/2007/06/09/election-call/

‘Inappropriate’ Call To Justice Official May Have Forced Election-Timed Indictments

In his Senate testimony last Tuesday, former Missouri U.S. Attorney Bradley Schlozman repeatedly claimed that four controversial voter fraud indictments he filed a week before the 2006 mid-term elections were “directed” and “approved” by others in the Justice Department. Specifically, Schlozman said that Craig Donsanto, the head of the Department’s Election Crimes section, “directed” him to file the charges.

He also claimed that he had consulted with Michael Elston, the chief of staff to then Deputy Attorney General Paul McNulty. Former Justice Department officials familiar with Donsanto — the man who literally wrote the Justice Department’s manual on how to approach election crimes — consider his approval of the indictments to be highly unusual. On Thursday, ThinkProgress reported that Joseph Rich, who ran the Department’s Voting Rights section from 1999 to 2005, now believes Donsanto may have been “pressured” to approve the indictments, and that Schlozman’s call to Elston “indicated he may have gone over Donsanto’s head to get approval.”

Former New Mexico U.S. Attorney David Iglesias and another former official, Bob Kengle, confirmed to McClatchy yesterday that the call to Elston was “inappropriate“:

Iglesias believes that the call to Elston was out of the ordinary.

The former U.S. attorney said Schlozman’s phone call to Elston was “not only strange, it’s inappropriate.” Iglesias said McNulty’s office “is not in the business of micro-managing cases at the district level.”

Others find Donsanto’s approval unusual as well.

A former deputy chief of the department’s Voting Rights Section, Bob Kengle, who worked with Donsanto for years, said Donsanto’s approval seems odd.

“I would be very surprised if Craig said yes of his own volition,” Kengle said.

Yesterday, Bloomberg reported that Schlozman may be seeking to revise his sworn testimony, altering it to say “that he consulted with the section and was given guidance, not direction.”

Transcript:

SEN. CHUCK SCHUMER: Who approved the ACORN indictments? Name names.

BRADLEY SCHLOZMAN: Craig Donsanto in the Public Integrity Section.

SCHUMER: And you. No one else.

SCHLOZMAN: Well, there’s a department review process, but I don’t know…

SCHUMER: Who did you talk to about the indictments other than Mr. Donsanto.

SCHLOZMAN: I spoke with individuals in the Deputy Attorney General’s office, who advised, who asked me to…

SCHUMER: Give me some names there please.

SCHLOZMAN: Mike Elston would be the only person with him I spoke, which is the deputy attorney general’s chief of staff.

SCHUMER: What did he tell you?

SCHLOZMAN: He said “wait ’til you hear from us.”

SCHUMER: And did you?

SCHLOZMAN: yes.

SCHUMER: And they told you to go ahead?

SCHLOZMAN: yes.

SCHUMER: Ok, who else?

SCHLOZMAN: That was it.

SCHUMER: That was the only other person you spoke to?

SCHLOZMAN: That is correct.



SOURCE: http://democracy.ru/english/library/international/eng_1999-12/

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19.07.2004, Monday. Moscow time: 17:08

Procedures For The 1998 General Elections

 

 

U. S. Department of Justice

Washington, D.C. 20530

 

MEMORANDUM

TO:

District Election Officer AUSAs

FROM:

Craig C. Donsanto
Director, Election Crimes Branch
Public Integrity Section
Criminal Division

SUBJECT:

Procedures for the 1998 General Elections

This document will summarize the federal law enforcement response to election crimes that arise during «mixed» elections where federal and nonfederal candidates appear on the same ballot. It will also provide you with legal and policy highlights to assist you in responding to allegations of election crimes arising during the forthcoming 1998 federal general elections.

It is being sent to those who our records show have been appointed «District Election Officers» (DEOs) for the 1998 election cycle. If you received this message and are not your office's DEO, please give this document to the correct person and notify me by return e-mail of that person's name and e-mail address.

Most of you are proud «recidivists» in this noble cause. You folks likely know the routine we follow here by heart, and you'll undoubtedly be pleased to know we will be doing the same thing this year as we did in 1996. For those of you who are new to this, you need to read what follows and the attachments.

Everyone should have at least one copy of the 1995 edition of Federal Prosecution of Election Offenses, which sets out the Department's election crime program in significant and annotated detail. This book has a red cover. If you do not have one, please let me know immediately by return e-mail and I will see one is sent to you by overnight mail. The details of the Department's Election Day Watch Program are set out on pages 87-89, and they will be summarized below.

The Election Day Watch Program

On the day of every federal general election since 1970, the Justice Department has conducted an outreach initiative during the period when the polls are open. Its objective is to make it easy for citizens to lodge complaints of electoral irregularities that occur while the polls are open, and to permit us to direct those complaints to the appropriate place: e.g. the Civil Rights Division, state or local election administrators, state law enforcement, and in some instances federal law enforcement.

This is accomplished by each DEO ensuring that the FBI has at least one duty officer available throughout the polling period, and by issuing pre-election press releases that include the telephone numbers at which citizens may bring election-related complaints directly either to the DEO or to the FBI. In the past, the Attorney General has also issued a press statement announcing this program, roughly a week before Election Day. We anticipate that she will be doing the same thing this year. Shortly thereafter, each United States Attorney follows with a local press release naming the District Election Officer(s) and the telephone numbers at which they and the FBI duty agents can be reached on Election Day. Copies of sample press releases that you may wish to use for this purpose will be sent to you separately.

On Election Day, you and your FBI colleagues should make yourselves available by telephone to take complaints from the public, and (with our help when you need it) direct complainants to the appropriate office possessing authority to act on their grievance. For example: Complaints of election glitches and mismanagement should be directed to local or state election administrators. Complaints involving discrimination in the franchise go to the Civil Rights Division. Those involving possible voter fraud go-either to local prosecutors or to the FBI, depending on whether a potentially actionable federal crime may have taken place. These important issues are discussed in detail in Federal Prosecution of Election Offenses and in the attachments to this message.

The Public Integrity Section will also have attorneys who are experienced in this subject on duty all throughout the day. You are encouraged to call us here with any questions or concerns that you may have. We break Election Day up here into two teams: one does a morning shift from 6:00 am through 2:00 pm EST, and the other does the rest of the day from 2:00 pm through 1:00 am the following morning. The morning team is headed by Ms. Nancy Stewart, and the afternoon-night shift by me. In emergencies, you may contact Ms. Stewart directly at'202-514-1440 and me at 202-514-1421.

You must consult with Public Integrity before initiating any federal investigative measures while the polls are still open. See 9 U.S.A.M. § 85.210 and § 90.020, and the summary presented below. The purpose of this consultation requirement is to ensure that no investigative action is taken while the polls are open that risks chilling lawful voting activity, and to avoid interfering with the primary responsibility that the States possess under the Constitution to administer the election process. Please direct routine calls on election day to the Public Integrity Section's general telephone number: 202-514-1412.

The Civil Rights Division will also have attorneys on duty to handle complaints involving discrimination in the voting process based on race, language, or physical challenge. In the past, they have worked closely with us in this initiative, to ensure that complaints are fairly and completely evaluated, and that those that have merit are handled by the appropriate authority and on a nationally consistent basis. I anticipate that CRD will be sending you their own instructions, either directly -or most likely through me. Stay tuned for that.

Important things to keep in mind

With one exception, consultation with Public Integrity is not required for a request that the FBI conduct preliminary investigations into election fraud or patronage matters. Preliminary investigations are generally confined to rounding out credible complaints to permit evaluation of whether a federal criminal investigation is warranted. They rarely incorporate interviews of individual voters about the exercise of their franchise, unless they appear voluntarily or are complainants. The exception is that no investigation should be conducted in the vicinity of open polls on Election Day without consultation with Public Integrity to avoid interfering with the lawful voting activity, and with the primary responsibility for election administration that has been entrusted to the States' by the United States Constitution.

Consultation with Public Integrity is required before any investigation is conducted in campaign financing matters, and before any investigation beyond a preliminary is conducted in voter fraud and patronage matters. Early consultation in campaign financing matters is necessary because the Federal Election Commission (FEC) has concurrent enforcement jurisdiction with the Department of Justice over all criminal FECA offenses, because FEC has exclusive authority to interpret the Act and to seek remedies for violations of it that lack factual aggravation, and because it is important to ensure that matters that do not fall within the Justice Department's narrow criminal law enforcement responsibility under FECA are directed to the FEC. The differences between criminal and non-criminal FECA violations will be summarized momentarily.

The process by which elections is administered, votes counted, and winners certified are primarily a state activity rather than a federal one. For a potential election fraud matter to be considered for federal rather than state prosecution, three questions must be addressed:

    1) Is the underlying activity appropriate for criminal treatment?

    2) Is there a particular need for it to be handled federally? and

    3) Is there a federal statute under which the conduct in question can be prosecuted?

These issues are discussed in detail in the attachments and the election book.

The federal offense of «vote fraud» focuses on the process by which voters are registered and ballots are obtained, cast and tabulated, and attempts to subvert that process in one way or another. Alleged offenses that involve petition circulation or the campaigning process do not usually provide the basis for prosecutable federal crimes. Also, federal criminal intervention is not appropriate for alleged «frauds» that entail the mere negligent failure of election officials to comply with the procedures of state or local election codes, or which involve isolated acts of wrongdoing that are not part of a larger scheme to corrupt the election process.

There is no authority for United States Marshals, FBI agents, or (except in Illinois) AUSAs to serve as poll watchers. 18 U.S.C. § 592, an old but still valid post-Civil War criminal statute, provides felony penalties for any person who stations «armed men» at polling stations. Special Agents of the FBI and U.S. Marshals are armed while on duty, and thus fall under the sweep of this statute. In addition, access to open polls is strictly governed in most states by state election laws, which except in Illinois do not provide for access to open polls by federal personnel. So, as general rule federal personnel cannot enter open polling places (except of course to vote at their own precincts) or serve as poll watchers.

There is one narrow exception to this general rule, which is the principal reason why we get so many requests for FBI Agents and Marshals to serve as poll watchers. That exception applies to jurisdictions that are still subject «to the Voting Rights Act, and where the Attorney General has certified a need for federal civil rights observers in the polls. The authority for this federal poll watching activity is based on a federal statute (the Voting Rights Act) that is enforced by the Civil Rights Division. It is limited to ensuring that the elective franchise is not deprived on the basis of ethnicity, language minority status, or disability. The people who actually perform this limited civil rights poll watching function are not FBI Agents or Marshals, but instead are clerks drawn by the Office of Personnel Management from the federal civil service.

Voters whose votes were co-opted in election fraud matters are usually viewed by federal prosecutors as the victims, not perpetrators, of federal election frauds. This federal approach can differ from that used by our colleagues at the State or local levels. For example, it is a crime under both federal and State law to sell votes as well as to buy them. Some State prosecutors routinely target those who sell their votes, and disregard those who buy them. The federal approach is the opposite, where the law enforcement goal is to prosecute those who seek to corrupt the election process through activities such as vote buying. Indeed, the existence of a local policy of prosecuting individual voters rather than focusing on the political operatives who corrupt the process can supply the «need» element for federalization.

Interviewing non-complaining voters about the circumstances under which they voted could chill lawful voting activity. That result is to be avoided. Therefore, all interviews of non-complaining voters shortly before or during times when the polls are open should be closely coordinated with Public Integrity.

Since the voting process is at bottom primarily a state-regulated activity, federal authorities should not interfere with it. This means that until the votes have been canvassed and the outcome of all the election contests on the ballot certified by the competent state authority, the documentation generated by the election process must remain in state hands. Also, while this may not be possible in all situations, it is preferable that the predication of federal voter fraud investigations above «preliminaries» await the conclusion of the election and the certification of results. Again, close consultation with Public Integrity is encouraged.

With three minor exceptions,1 The Federal Election Campaign Act (FECA) applies only to contributions and expenditures aimed at influencing the election of federal - not state - elections. The federal criminal laws that have heretofore been used to address illegal campaign financing schemes include 2 U.S.C. § 437g(d), 18 U.S.C. § 371 and 18 U.S.C. § 1001. These apply only to contributions and expenditures that violate «core» features of that Act, i.e., those where the application of the law to the facts is clear and there are no unresolved legal issues Chat require clarification from the FEC or the Courts. See Federal Prosecution of Election Of tenses, (1995), pp 96-97.2

In addition, 18 U.S.C. § 1346 has been recently used successfully to address illegal federal campaign financing activities.3 United States v. Sun-Diamond Growers. 138 F.3d 961 (D.C. Cir. 1998). This theory arguably has potential application to some schemes to purposefully violate state campaign financing laws. Nonetheless, it is the current Department policy not to reach out to federalize state campaign financing violations except under the most extenuating circumstances. Violations of state campaign financing laws should be pursued, if at all, under corruption theories of prosecution, most of which require at least some proof of a quid pro quo. See McCormick v. United States. 500 U.S. 257 (1991).

Finally, the Eighth Circuit has very recently resolved heretofore-lingering questions about the application of federal statutes to Indian tribal elections. In United States v. Wadena. 152 F.3d 831 (8th Cir. 1998), the Circuit reviewed all of the laws dealing with Indian tribal sovereignty and concluded that none of them precluded the application of federal statutes and legal theories to purely tribal elections. Such elections, however, are local elections rather than federal ones, unless they occur simultaneously with federal balloting. This means that as a general rule, only those theories that permit federalization of nonfederal election frauds apply to Indian tribal elections.

It is interesting, however, that the statutory theory on which the Wadena case rested was deprivation of the federally protected right to vote under 18 U.S.C. § 241, the election at issue was not a federal one, and the proof demonstrated that only that a «private scheme» had occurred (i.e.. it involved only misdeeds by campaign workers, and did not involve official misconduct by poll officers or others acting under color of law such as could trigger federally secured constitutional rights under the 5th or the 14th Amendments). Nevertheless, the Eighth Circuit found that the facts demonstrated a deprivation of the federally secured right to vote in a local election. Therefore, aside from resolving the application of federal criminal law to Indian tribal elections, Wadena may be authority for the constitutional issue left undecided in Anderson v. United States, 417 U.S. 211 (1974) and Oregon v. Mitchell. 400 U.S. 112 (1970): whether there is a federal constitutional right enforceable under 18 U.S.C. § 241 to vote in a nonfederal election free from corrupt «private» (i.e. nongovernmental) action.4

Where to get help

The telephone number for the Public Integrity Section is 202-514-1412.

My telephone number is 202-514-1421.

As many of you know all too well, I am usually on the phone and - like you - I can only talk to one person at a time. An alternative way to roust me in an emergency is to freeze my computer screen by sending me e-mail messages, which you can accomplish by mailing them to «CRM01 (DONSANTO)». I am scheduled to be converted to the new JCON system before Election Day arrives, so you will probably be able to locate me on your JCON directories.

Nancy Stewart, who for the past two decades has been my back up on these election matters, can be reached at 202-514-1440 or «CRM01 (STEWART)».

The fax number here at Public Integrity is 202-514-3003.

Attachments

There are four documents associated with this message, which I'll send to you separately - probably tomorrow evening here on the East Coast. They include:

«Votefr.aud.» This is a monograph I prepared recently as a handout to accompany a lecture I give with some frequency to election administrators on election fraud. It defines the components of potentially criminally actionable election fraud with a bit more precision than is done in the book. It also explains the operation of the various «need» factors that usually must be present in one form or another in order to justify the federalization of this sort of criminal activity, in view of the unique authority and responsibility that the States have in the election administration process under Article I, sec. 2, cl. 4 of the Constitution.

«Q&A.» This is another handout I wrote in «Q and A» format that answers the questions concerning federal election crime offenses that I have found most frequently arise.

«Press.AG.» This is a copy of the press statement that the Attorney General issued prior to the November 1996 general election. The statement for the 1998 election has not been prepared as yet. However, I do not anticipate that it will differ significantly from the 1996 one.

Finally, «Press.USA» contains two alternative form press releases for your use after the Attorney General issues her statement.

I am most grateful to have all of you on board for this tour. I promise to try to keep it interesting - - -

Craig C. Donsanto
Director, Election Crimes Branch
Public Integrity Section
October 1, 1998


1 The three exceptions are that under 2 U.S.C. § 441b(a) national banks and federally chartered corporations (like the Red Cross) cannot give to any candidate, and that under 2 U.S.C. § 441e foreign nationals cannot give to any candidate.

2 A11 criminal violations of FECA brought under the Act's criminal misdemeanor provision (2 U.S.C. § 437g(d)) require proof of a specific intent on the part of the offender to violate a substantive provision of the Act, which the offender knew of and purposefully flouted. See e.g.. AFL-CIO y_ FEC. 628 F.2d 97 (D.C. Cir. 1980); National Right to Work Committee v. FEC. 716 F.2d 1401 (D.C. Cir. 1983); United States v. Curran. 20 F.3d 560 (3d Cir. 1994). This strict center element requires that the offender's conduct offend a clearly defined statutory standard. Resolution of ambiguities in the reach of FECA are the exclusive responsibility of the FEC, subject of course to judicial review. E.g., 2 U.S.C. § 437c(b)(l), § 437d(e), § 437f, and § 438(a)(8).
Felony prosecutions involving FECA brought under 18 U.S.C. § 371 or § 1001 require additional proof of center beyond that needed to gain a conviction under 2 U.S.C. § 437g(d). See United States v. Hansen. 772 F.2d 940 (D.C. Cir. 1985)(opinion by Scalia, J.). In the case of Section 371, these include proof that the defendant intended to thwart the lawful mission of a government agency, such as the Federal Election Commission. Curran. United States v. Hopkins. 916 F.2d 207 (5th Cir. 1990). In the case of Section 1001, these include proof that the defendant reasonably foresaw that his/her activities would result in materially false information being conveyed to a government agency. United States v. Gabriel. 125 F.3d 89 (2d Cir. 1997); and -- at least in the Third Circuit -- proof that the defendant specifically sought to conceal a substantive FECA violation from the FEC, Curran.

3 The theory is that corporate officers owe a fiduciary duty of honesty to their corporate employer, its stockholders and its creditors not to expose the corporation to the significant loss of good will and criminal liability that ensues from intentional violation of laws dealing with campaign financing.

4 I consider this as one of the great unresolved issues of federal election law, as recognition of a federal right to vote in all elections would significantly enhance our ability to federalize electoral abuses that take place in local elections - which is where most of this sort of conduct happens. So, please proceed with real caution in interpreting the breadth of the Wadena decision on this particular issue.

 



THE LAW «ON POLITICAL PARTIES»

At the press-conference that was held on July 18, 2001, President Putin named the adoption of the law «On Political Parties» as the most significant event on political arena for the past year.

This law was submitted by the President to the State Duma on December 29, 2000, adopted by the State Duma and the Federal Council at June, 2001, and finally ratified by the President on July 11, 2001.

The event of the enactment of this Law is of a top priority for Russian legislation, as it causes the necessity to change all the laws on elections with the introduction of the new category «Political Party». You can find draft and the final version of this law here.







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