Emails from Toni M. Fogle to FBI Officials re: Legal Questions

·Message
FOGLE, TONI M. (INSD) (FBI)
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ALL INFOPRATION c o ~rrA INE D
HEPEIN I S ~rC L A S S I FI E D
DATE 03- 13 -20 09 BY 65179 DI1H/1sc
From: FOGLE. TONI M. (INSD) (FBI)
Sent: Wednesday, September 29, 2004 5:46 PM
To: ! ~OGC) (FBI); MERSHON, MARK J. (SF)(FBI); GRANT, ROBERT D. (INSD)
(FBI)
Cc: ! ~INSD) (FBI)~ I(lNSD) (FBI)
Subject: FW: legal questions
SENSITIVE BUT UNCLASSIFIED
NON-RECORD
-----Original Message-----
From: FOGLEr TONI M. (INSD) (FBI)
Sent: Friday, September 17r 2004 12:39 PM
Tol IcINSD) (FBI); THOMPSON, DONALD W. JR (RH) (FBI);I I(INSD)
(FBI); GRANT, ROBERT D. (INSD) (FBI) ------
Subject: PN: legal questions
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-----Original Message-----
From: FOGLEr TONI M. (INSD) (FBI)
Sent: Wednesday,July 28r 2004 1:26 PM
To: THOMPSON, DONALD W. JR (RH) (FBI)
Subject: FW: legal questions
, SENSITIVE BUT UNCLASSIFIED
NON-RECORD
I think we're in a trick bag, ('II let you know what happens. I'd suggest we provide agents some warning.
Forewarned is forearmed(?)
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-----Original Message-----
From! IeOGe) (FBI)
. Sent: Wednesday, July 28r 20041:~22~PMI..l.....__
To: FOGLE. TONI M. CIN~D) (FBI);! I(OGe) (FBI);I I(OGe) (FBI)
cc~ J(OGC) (FBI) L....- _
Subject: RE: legal questions
SENSITIVE BUT UNCLASSIFIED
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I can run that type of-.hypothetical past DOJ. But as. I've said my experience with them is that
they won't authorizeIt. I've had this argument with them before during the Office of Special
Counsel's Waco investigation, especially after the lnvestiqation turned criminal. If they even
sensed that our employee (although technically not a target) in any way may have engaged in
-wronqdolna which would put them outside the scope of their employment, they wouldn't
authorize it.
11/9/2004 FBI001839CBT
DOJOIG 001612
Message ,
I'm happy to try again.
THIS IS A PRIVILEGED ATTORNEY-CLIENT/ATTORNEYWORK PRODUCT COMMUNICATION.
I IUnit Chief
Civil Litigation Unit II
Officeof the GeneralCounsel
FBI Headquarters, Rm. 7947 ' I I
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-----Original Message----- l
From: FOGLE, TONI M-.(INSD) (FBI)
~~r; Wednesday. July 21(g~g~ (~~~f_M 1(OGe) (FBI);I kOGC) (FBI)
Cc: GULYASSY, ANNE M. (OGC) (FBI)
Subject: RE: legal questions
UNCLASSIFIED
NON·RECORD
Yes - th.ere is the potential of being charged with criminal responsibility.
An example.... ,
Army CIDwants to interviewa couple of agents who may have information regarding allegations of
prisonerabuse. We knowthey at least had contact with that prisoner. Their level of activity; information,
observation could potentially SUbject them to criminal responsibility if they acted and/or failed to act. I'm
not saying they did (I have no idea since we haven't interviewed them) - I just don't want to see them
inadvertentlyexposed.
I have been told the allegations of abuse have not been made against them. If the allegations had been
made against them, it would be one of my cases - with all the appropriate criminal advice of rights being
given. ')
;;~-~~ginal Message----- I(OGe) (FBI)
Sent: Wednesday, July 28, 200'1r.11"2".'o·.S;;u1..,JP;;JM;:.L-__---.,
To:1 I(OGe) (FBI)~ kOGe) (FBI); FOGLE, TONI M. (INSD) (FBI)
Cc: GULYASSY, ANNE M. (OGe) (FBI)
Subject: RE: legal.questions
UNCLASSIFIED
NON-RECORD
Toni -I Ireferred your second question to me for a response. You are
,correct in that DOJ currently has a policy of providing emergency interim legal
representation for agents involved in a critical incident, typically a line-of-duty
discharge, where the subject is seriously injured or killed. The CDC/ADCs and the
CLU UCs have a limited atty-client relationship with the agent for the purpose of
obtaininqprlvate counsel to represent the agent in a criminal inquiry into the
shooting. The reasoning behind this is that the agent, while acting within the scope
of his or her employment, has become the subject of a local criminal investigation
, and thus is in need of immediate representation.
This is a very unique situation, as DOJ would not normally authorize representation
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11/9/2004 FBI001840CBT DOJOIG 001613
Message
1119/2004
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for an employee who is the subject of a criminal investigation.
In the situation you presented I'm assuming our agents are being interviewed as
witnesses in administrative inquiries? Are they in any way in jeopardy by subjecting
themselves to these interviews? And by that I mean potentially subjecting
themselves to criminal charges. If not, DOJ will not provide representation.
I'd be happy to discuss this with you further but based on my experience with DOJ
on a variety of representation issue, this is not a situation would DOJ would
authorize representation.
~ I IUnit Chief
Civil Litigation Unit II
Office of the General Counsel IFBI HeadQllartjS, Rm. 7947
THIS IS A PRIVILEGED ATIORNEY-CLIENT/ATTORNEY WORK PRODUCT COMMUNICATION.
-----Oriqinal Message-----
From:L I(OGe) (FBI)
Sent: Tuesday, July 27,200412:11 Pr-'J
To:1 1(OGC) (FBI);I..... 1(aGe) (FBI)
Subject: FW: legal questions
UNCLASSIFIED
NON·RECORD
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Please see Toni's second question. It seems like a CLU question to me.
-----Original Message----- .
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Tuesday, July 27,20047:56 AM .
To~ J(aGe) (FBI); I I(OGe) (FBI) b6
Cc: THOMPSON, DONALD W. JR (RH) (FBI); MCCRAW, STEVEN C. (INSD) (FBI) b7C
Subject: legal questions
UNCLASSIFIED
NON·RECORD
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A couple of maybe not so quick questions:
FIRST ISSUE:
1) We have to do 180 notifications to individuals under an OPR inquiry - when the'
loqulry exceeds 180 days. Notification is re-issued in 30 day increments after that. The AD
(delegated to me) has to sign off on the legitimacy of the reason for the extended time within
the OPR process.
Problem -- every time we do this (especially with those under very lengthy DOJ OPR or DOJ
OIG inquiries) -- the employees get angry.
FBI001841CBT
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DOJOIG 001614
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I know we're doing these notifications because of BADGE requirements, but with DOJ
matters, do we have the same BADGE obligation we would have in FBI matters? It doesn't
make sense that FBI's agreement should impact/influence DOJ -- and that being said, even
though FBI OPR is a conduit for DOJ we have no real control over them or the timeliness of
their actions.
Question - under the BADGE settlement agreement do we (FBI OPR) have to do
notifications when either DOJ OPR or DOJ OIG has taken jurisdiction over the case?
SECOND ISSUE:
2) The FBI no longer functions with bofders and in isolation of other agencies/military. As
such, agents are called upon to be interviewed by other agencies/military in a "witness"
capacity. This is becoming an increasingly frequent event. (Clearly if they are implicated in
wrongdoing we would take the lead in the investigation and would not make them available
for interview.)
My concern is that the FBI seems to look to us (Internal Investigations Section) to
protect these employees from outside influences and to participate in the interview process.
You both know that our client is the Bureau / Director. We aren't in a position to protect
employees, and for us to go out in that capacity may mislead the employee (Which I don't
want to' do).
OGC at one time allowed agents in the field to utilize CDCs and ADCs in a representative
capacity for a limited time (like 24 hours) after a shooting incident -- to allow time to obtain an
attorney through DOJ - and to provide for some kind of attorney-client relationship. I'm not
sure if this program still exists, I know it was controversial at the time.
All that being said -- is there any way OGC could consider developing a similar (outreach)
type program where you make attorneys available for protection to the agent being subjected
to an interview?
Thanks in advance for your thoughts in these two areas. T>
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