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The passive voice

Xelor

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Generally speaking, attorneys (prosecutors anyway) rarely use the passive voice in their charging documents. They don't because charging documents' purpose is to identify who did what, to whom and when/in what order. The passive voice pales when used in such documents because generally, it doesn't identify the actor.

Prosecutors aren't alone in eschewing the passive voice. Process designers, especially those who design processes that have both human and technology actors, refrain from using the passive voice. Also, humanities professors and high school AP English teachers almost unanimously abhor the passive voice.

Indeed, when I was in high school and college, each use of the passive voice, except when there was a fitting reason to do so, resulted in a one point deduction from a paper/essay. Since ours was a seven-point scale, it didn't take many instances of passive voice to cost one a letter grade or a grade modifier. Why? Because teachers/professors evaluated everything in the prose we submitted.


Bob Mueller's indictment of Roger Stone uncharacteristically contains several passive voice statements. The irregularity of his doing so has led careful observers/readers to consider why. The most "Occhamite" reason is that he deliberately demurred from naming the actor who's been left unidentified by the passive voice statements. Insofar as that's the most straightforward reason for using the passive in the charging document, the natural question to ask is "why did he?"

Well, for me the answer is that the unnamed actor is someone who has yet to be indicted and so as not to have the DoJ directly impugn that person's presumption of innocence, Mueller composed the statements in the passive voice.

The next question to ask is this: "Did Mueller deliberately shield the actor or was he required to do so by the Deputy AG or Acting AG?" I haven't any idea. I know that in prior indictments, the DoJ hasn't troubled itself with doing so. To wit, Trump is an unindicted co-conspirator in the Cohen matter. It could be that the current DoJ "muckety mucks" didn't want to have Trump be so for a second time.
 

btthegreat

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Generally speaking, attorneys (prosecutors anyway) rarely use the passive voice in their charging documents. They don't because charging documents' purpose is to identify who did what, to whom and when/in what order. The passive voice pales when used in such documents because generally, it doesn't identify the actor.

Prosecutors aren't alone in eschewing the passive voice. Process designers, especially those who design processes that have both human and technology actors, refrain from using the passive voice. Also, humanities professors and high school AP English teachers almost unanimously abhor the passive voice.

Indeed, when I was in high school and college, each use of the passive voice, except when there was a fitting reason to do so, resulted in a one point deduction from a paper/essay. Since ours was a seven-point scale, it didn't take many instances of passive voice to cost one a letter grade or a grade modifier. Why? Because teachers/professors evaluated everything in the prose we submitted.


Bob Mueller's indictment of Roger Stone uncharacteristically contains several passive voice statements. The irregularity of his doing so has led careful observers/readers to consider why. The most "Occhamite" reason is that he deliberately demurred from naming the actor who's been left unidentified by the passive voice statements. Insofar as that's the most straightforward reason for using the passive in the charging document, the natural question to ask is "why did he?"

Well, for me the answer is that the unnamed actor is someone who has yet to be indicted and so as not to have the DoJ directly impugn that person's presumption of innocence, Mueller composed the statements in the passive voice.

The next question to ask is this: "Did Mueller deliberately shield the actor or was he required to do so by the Deputy AG or Acting AG?" I haven't any idea. I know that in prior indictments, the DoJ hasn't troubled itself with doing so. To wit, Trump is an unindicted co-conspirator in the Cohen matter. It could be that the current DoJ "muckety mucks" didn't want to have Trump be so for a second time.

Don't have answers, but I know these are smart questions. It sure is not accidental. Nothing Mueller does is accidental.
 

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IMO Mueller is not going to climb to the top of the mountain until and unless he is ready to climb to the top of the mountain. Assuming that Assange is already the subject of a Sealed Indictment, Mueller likely has Corsi, Credico at least to go before he gets to guys like Don Jr and Kushner. Even Don jr and Kushner will set off nuclear blasts. So even those two are not going to go down, if they are going down until Mueller is completely ready.
 

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IMO Mueller is not going to climb to the top of the mountain until and unless he is ready to climb to the top of the mountain. Assuming that Assange is already the subject of a Sealed Indictment, Mueller likely has Corsi, Credico at least to go before he gets to guys like Don Jr and Kushner. Even Don jr and Kushner will set off nuclear blasts. So even those two are not going to go down, if they are going down until Mueller is completely ready.

The two words that best describe this prosecutor are methodical and thorough so your assessment is on the money.
 

Xelor

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So, this is one of the passive voice statements in the indictment document:

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign.

Is it purely coincidental that the Stone indictment appeared just days after hoopla about a similar sounding statement?

Donald Trump directed Michael Cohen to lie to Congress.​
 

lwf

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So, this is one of the passive voice statements in the indictment document:

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign.

Is it purely coincidental that the Stone indictment appeared just days after hoopla about a similar sounding statement?

Donald Trump directed Michael Cohen to lie to Congress.​

I thought the same thing when I read your op. The passive voice was an attempt to avoid another Buzzfeed fiasco.
 

Xelor

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I thought the same thing when I read your op. The passive voice was an attempt to avoid another Buzzfeed fiasco.

What? Are you serious or are you trying to deflect?

A Buzzfeed writer, not Mueller or someone on his team, is the author of the remarks in the Buzzfeed article about Cohen. Mueller has no authorial responsibility for the content or syntax in the Buzzfeed article.
 

bongsaway

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Generally speaking, attorneys (prosecutors anyway) rarely use the passive voice in their charging documents. They don't because charging documents' purpose is to identify who did what, to whom and when/in what order. The passive voice pales when used in such documents because generally, it doesn't identify the actor.

Prosecutors aren't alone in eschewing the passive voice. Process designers, especially those who design processes that have both human and technology actors, refrain from using the passive voice. Also, humanities professors and high school AP English teachers almost unanimously abhor the passive voice.

Indeed, when I was in high school and college, each use of the passive voice, except when there was a fitting reason to do so, resulted in a one point deduction from a paper/essay. Since ours was a seven-point scale, it didn't take many instances of passive voice to cost one a letter grade or a grade modifier. Why? Because teachers/professors evaluated everything in the prose we submitted.


Bob Mueller's indictment of Roger Stone uncharacteristically contains several passive voice statements. The irregularity of his doing so has led careful observers/readers to consider why. The most "Occhamite" reason is that he deliberately demurred from naming the actor who's been left unidentified by the passive voice statements. Insofar as that's the most straightforward reason for using the passive in the charging document, the natural question to ask is "why did he?"

Well, for me the answer is that the unnamed actor is someone who has yet to be indicted and so as not to have the DoJ directly impugn that person's presumption of innocence, Mueller composed the statements in the passive voice.

The next question to ask is this: "Did Mueller deliberately shield the actor or was he required to do so by the Deputy AG or Acting AG?" I haven't any idea. I know that in prior indictments, the DoJ hasn't troubled itself with doing so. To wit, Trump is an unindicted co-conspirator in the Cohen matter. It could be that the current DoJ "muckety mucks" didn't want to have Trump be so for a second time.

I'm not exactly sure what you said either with that assessment, my law is lacking, mostly I only know how to break it. With that said let me try an approach in english to your question. I think mueller has more cards up his sleeve and like flynn, not charging them with what they could be whacked with to encourage them to cooperate, showing them he has more if he wants to charge them with it. I personally think stone and manafort are the keys to all the locked doors with the russians. Manafort showing up at the trump campaign out of the blue still stinks to me and he was a partner of stone. I do believe these two guys are the key and manafort is more afraid of the russians than doing jail time.
 

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What? Are you serious or are you trying to deflect?

A Buzzfeed writer, not Mueller or someone on his team, is the author of the remarks in the Buzzfeed article about Cohen. Mueller has no authorial responsibility for the content or syntax in the Buzzfeed article.
Wow! You could not have read that wronger
 

lwf

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What? Are you serious or are you trying to deflect?

A Buzzfeed writer, not Mueller or someone on his team, is the author of the remarks in the Buzzfeed article about Cohen. Mueller has no authorial responsibility for the content or syntax in the Buzzfeed article.

I realize that. But by taking the passive voice buffers himself against accusations of "leaking." When charging documents are publicized like this, the first line of defense is: "Prosecutor leaked sensitive information to the public, therefore defendant can't get a fair trial." "Individual 1 directed Stone to..." could be problematic if people know, or have a good idea, who Individual 1 is. "Stone was directed to..." is much safer.
 

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I should maybe have put a slightly finer point on post #3. Mueller simply refuses to overstep. He, more than any prosecutor I have seen in what is not only a high profile case but quite possibly the highest profile case of all time, understands not only the danger in overstepping but knows exactly how far he can go or even should go. He gets every last ounce out of every indictment but not a single ounce more.

For example, I heard one of the talking head ex-federal prosecutors tonight claiming that she was a bit disappointed that Mueller did not take a stab at some general conspiracy language in the Stone Indictment. NOPE.....you are wrong lady. Mueller is not out for bombastic headlines or bombast of any sort and he is not going to give Trump or Rudi or Fox News the opportunity to use his own words against him. Mueller leaves them nothing to do but to trip over their own tongues and contradict their own whacky statements. When we see the word "conspiracy" in a Mueller Indictment it will be because it belongs exactly in that time and place. We will not see it before that.
 

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I'm not exactly sure what you said either with that assessment, my law is lacking, mostly I only know how to break it.
The OP isn't about law at all really; it's about prosecutorial writing style/conventions.

In my OP, I've merely shared an observation: almost without exception, Mueller's indictments have been written in active voice, the exceptions being when the actor in a passive voice statement has otherwise been identified, if not by name, then by a moniker such as "Organization 1" or "Individual 1." The Stone indictment's syntax differs in that there are a few statements whereof the actor is completely unidentified.


With that said let me try an approach in english to your question. I think mueller has more cards up his sleeve and like flynn, not charging them with what they could be whacked with to encourage them to cooperate, showing them he has more if he wants to charge them with it. I personally think stone and manafort are the keys to all the locked doors with the russians. ....

Red:
Mueller most certainly has more cards to play. Mueller had the grand jury's term extended out to sometime in March.[SUP]1[/SUP] That move suggests he'll want to obtain as many indictments as he can -- perhaps everything but perhaps not; it'd depend on his overall prosecutorial and investigative strategy -- between now and then so as not to lose the efficiency of the jurors having historical and evidentiary context and background. It strains credulity to think Mueller extended the grand jury for six months just to get out "this one last indictment" of Stone.

Blue:
So that has to do with Mueller's tactical approach to obtaining a guilty plea/conviction. Neither that nor the Manfort angle is what I was getting at in my OP.

There're two basic approaches a prosecutor has: the "throw the book at 'em" approach and the "this could get a lot worse for you" approach.
  • "Throw the book" --> Mueller used this approach with Flynn. You may recall that the original indictment of Flynn contained a slew of charges. Upon seeing the charges and the evidence, prosecutors offered Flynn the opportunity to plead to fewer and less severe charges in return for his cooperation.
  • "This could get a lot worse for you" --> This appears to be the tack Mueller's taking with Stone. I say that because there's conspicuously no conspiracy charge in the Stone indictment document, yet clearly Stone was collaborating with someone in transferring information between Wikileaks and someone on the Trump campaign.
Why the difference?
  • Relationship: Flynn and Stone have very, very different extant relationships with Trump. Flynn was a newcomer to Trump's orbit. Flynn and Trump are "thick as thieves" and go back some 30 years. Accordingly, Flynn had a lot less indebtedness/loyalty to Trump than does Stone.
    • Stone has a decent shot at getting pardoned, whereas Flynn, not so much. Since Stone may get pardoned, it doesn't serve Mueller to lay out his whole hand re: Stone because if he does, it weakens his position against Trump, especially if the Trump-related portion of the investigation is incomplete. And besides, Mueller can't indict Trump, so there's no point in putting any of that part of his findings in the public sphere before he submits his final report.
  • The penalties: The crimes noted in Stone's indictment will likely only get him a couple to three years, whereas, IIRC, Flynn was looking at a longer sentence for the sum of his crimes.


Note:
  1. IIRC, the standard tenure of a grand jury is 12 months, but if a judge so allows, a grand jury can be extended for six more months. There are a few reasons for that, but the main ones are
    • to free citizens return to their lives without having to be on-hand should they be needed for a hearing.
    • to keep grand jurors from getting too familiar with a prosecutor(s) -- Just like any other working group, the members of it become accustomed to the nature of the work product their "colleagues" produce. Accordingly, over time a relationship develops (because humans are social beings) and interactions begin to occur in part based on that relationship.

      It's not good to have grand jurors get so comfortable with and familiar with the rigor (or lack thereof) a prosecutor proffers that they just go with (or reject) whatever s/he wants because they trust (don't trust) him rather than see cause to indict based only on the merits of the evidence the prosecutor presents. And, of course, that same idea works in the opposite direction. It isn't good for prosecutors to grow familiar enough with jurors that they can tailor their the case presentations to appeal to specific jurors so as to get an indictment.
 

Xelor

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I realize that. But by taking the passive voice buffers himself against accusations of "leaking." When charging documents are publicized like this, the first line of defense is: "Prosecutor leaked sensitive information to the public, therefore defendant can't get a fair trial." "Individual 1 directed Stone to..." could be problematic if people know, or have a good idea, who Individual 1 is. "Stone was directed to..." is much safer.

Red:
What? Unless the matter being prosecuted has national security classification aspects, all charging documents are public. This one is no different.


Blue:
Can you identify any instance of a matter not being brought to trial because of such a claim that was based on what a prosecutor put in his/her charging document? I can't.

I should maybe have put a slightly finer point on post #3. Mueller simply refuses to overstep. He, more than any prosecutor I have seen in what is not only a high profile case but quite possibly the highest profile case of all time, understands not only the danger in overstepping but knows exactly how far he can go or even should go. He gets every last ounce out of every indictment but not a single ounce more.

For example, I heard one of the talking head ex-federal prosecutors tonight claiming that she was a bit disappointed that Mueller did not take a stab at some general conspiracy language in the Stone Indictment. NOPE.....you are wrong lady. Mueller is not out for bombastic headlines or bombast of any sort and he is not going to give Trump or Rudi or Fox News the opportunity to use his own words against him. Mueller leaves them nothing to do but to trip over their own tongues and contradict their own whacky statements. When we see the word "conspiracy" in a Mueller Indictment it will be because it belongs exactly in that time and place. We will not see it before that.

All that.



Other:
LWF, is jnug's above theme -- being careful not to overstep or overwork his assertions -- what you were getting at? If so, okay. I buy that.
 
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Parrish

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I believe the service of a grand jury is 10 months. Correct me if I'm wrong, anyone?
 

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So, this is one of the passive voice statements in the indictment document:

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign.

Is it purely coincidental that the Stone indictment appeared just days after hoopla about a similar sounding statement?

Donald Trump directed Michael Cohen to lie to Congress.​

It would help if you said what you mean by "passive voice". In writing the term merely refers to the relationship between nouns and verbs. You seem to be saying that Mueller has been passive in not identifying in his pleadings certain persons or entities, referring to them instead in anonymous terms such as "Organization". I think it is not uncommon for prosecutors in their charging documents to omit the identities of persons not being charged.
 

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Red:
What? Unless the matter being prosecuted has national security classification aspects, all charging documents are public. This one is no different.

Sorry. I didn't mean "make public." I meant plaster over the front page of every tabloid. In that respect, it is entirely different.

Blue:
Can you identify any instance of a matter not being brought to trial because of such a claim that was based on what a prosecutor put in his/her charging document? I can't.

Nope. Nor did I say it wouldn't be brought to trial. I just meant that sometimes publicizing lurid details of a case can make finding an unbiased jury impossible. At least that's what you should argue if you are the defense lawyer.


Other:
LWF, is jnug's above theme -- being careful not to overstep or overwork his assertions -- what you were getting at? If so, okay. I buy that.

Yes! My apologies. Sometimes I suppose my manner of communication can appear to others a little baroque and my original intent may be occluded among a plethora of superfluous exposition.
 
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Xelor

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It would help if you said what you mean by "passive voice". In writing the term merely refers to the relationship between nouns and verbs. You seem to be saying that Mueller has been passive in not identifying in his pleadings certain persons or entities, referring to them instead in anonymous terms such as "Organization". I think it is not uncommon for prosecutors in their charging documents to omit the identities of persons not being charged.

Red:
I'm referring to Mueller's having chosen to, in the passive voice, write certain "key" statements in the Stone indictment document, so more or less, what you think the passive voice is, is exactly what I meant by "passive voice."
 

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Red:
I'm referring to Mueller's having chosen to, in the passive voice, write certain "key" statements in the Stone indictment document, so more or less, what you think the passive voice is, is exactly what I meant by "passive voice."

"more or less"? Less.
 

Xelor

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"more or less"? Less.
???

Here's the specific passage:
"After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign."​

AFAIK, this is the only sentence in it whereof who performed the predicate action is ambiguous.

It's not the lone passive voice clause in the document -- e.g., "After being contacted by HPSCI,...," "...if asked by HPSCI,..." "materials possessed by Organization 1...," etc. -- but it is the only one that uses "by 'so and so'" syntax to focus exclusively on the action, "directed," and leaves ambiguous who performed it. It's the ambiguity that's odd.

Why is the ambiguity odd? Because who directs one to perform an action is an element that helps inform readers about the nature of circumstances in which the action occurred.
  • "Peter told Joe to drive the getaway car."
    • Joe appears to have driven the getaway car, but it's plausible that he did so under duress, thus Joe may not have intended to abscond from the scene, aid and abet the getaway, or even been a willing participant in the events. The sentence doesn't tell us Joe's state of mind, extent of collaboration, etc., Joe's intentions, but because Joe must be presumed innocent until guilty, we must discern whether Joe drove the getaway car under duress. Knowing that Peter told Joe to drive the car tells us we must understand the nature of Joe and Peter's relationship because that relationship will help show why Joe heeded Peter's instructions.
  • "Joe was told to drive the getaway car."
    • Who directed Joe to do that? This sentence contains even less information than does the prior example; thus not only do we not know Joe's motivations for driving the getaway car, but also we haven't even the clue of knowing Peter had some degree of impact on them.
As you can see, "pregnant" passive voice statements leave a lot unsaid, explicitly and implicitly, regarding the actus reus and mens rea, thus making criminal culpability less clear. That's the very opposite of what a prosecutor aims to do, for ambiguity and vagueness are not a prosecutor's "friends."

The "pregnancy" of "...a senior Trump Campaign official was directed to contact STONE..." clearly shows Mueller has at least one additional assertion to make, namely who directed the senior Trump Campaign official to contact Stone.
 

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???

Here's the specific passage:
"After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign."​

AFAIK, this is the only sentence in it whereof who performed the predicate action is ambiguous.

It's not the lone passive voice clause in the document -- e.g., "After being contacted by HPSCI,...," "...if asked by HPSCI,..." "materials possessed by Organization 1...," etc. -- but it is the only one that uses "by 'so and so'" syntax to focus exclusively on the action, "directed," and leaves ambiguous who performed it. It's the ambiguity that's odd.

Why is the ambiguity odd? Because who directs one to perform an action is an element that helps inform readers about the nature of circumstances in which the action occurred.
  • "Peter told Joe to drive the getaway car."
    • Joe appears to have driven the getaway car, but it's plausible that he did so under duress, thus Joe may not have intended to abscond from the scene, aid and abet the getaway, or even been a willing participant in the events. The sentence doesn't tell us Joe's state of mind, extent of collaboration, etc., Joe's intentions, but because Joe must be presumed innocent until guilty, we must discern whether Joe drove the getaway car under duress. Knowing that Peter told Joe to drive the car tells us we must understand the nature of Joe and Peter's relationship because that relationship will help show why Joe heeded Peter's instructions.
  • "Joe was told to drive the getaway car."
    • Who directed Joe to do that? This sentence contains even less information than does the prior example; thus not only do we not know Joe's motivations for driving the getaway car, but also we haven't even the clue of knowing Peter had some degree of impact on them.
As you can see, "pregnant" passive voice statements leave a lot unsaid, explicitly and implicitly, regarding the actus reus and mens rea, thus making criminal culpability less clear. That's the very opposite of what a prosecutor aims to do, for ambiguity and vagueness are not a prosecutor's "friends."

The "pregnancy" of "...a senior Trump Campaign official was directed to contact STONE..." clearly shows Mueller has at least one additional assertion to make, namely who directed the senior Trump Campaign official to contact Stone.

Okay. That specific passage is in passive voice. In active voice it would be: "X directed a senior Trump Campaign official to...". Mueller apparently knows who X is but is not saying.
 

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FWIW, the observations I and others made about Mueller's using the passive voice in indicting Roger Stone (and other well educated and bright people's) writing style are highly evident to readers of both the noted passage from the Stone indictment and the Mueller report, the later being almost entirely one active-voice sentence after the next, and even where Mueller uses passive voice, he doesn't do so in ways that occlude an actor's identity.
 
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