At 4pm today, citizen journalist David Esrati filed a lawsuit in The United States District Court, Southern Ohio, Western district, requesting FBI tapes of Dayton Mayor Nan Whaley that were played to a grand jury in the sessions that lead to the indictment and convictions of Commissioner Joey Williams, Roshawn Winburn and Clayton Luckie. Through confidential sources, Esrati had been informed that tapes of Whaley, gathered by FBI confidential informants (at this point, Mike Marshall of United Demolition and Commissioner Williams) or others- exposed Whaley as being party to the “culture of corruption” investigation. After hearing many of these tapes, the grand jury was surprised when all of a sudden, the FBI and DOJ stopped short of asking for her to be included in the indictment proceedings.
It is assumed, that Whaley, who other sources have said sought personal counsel in this matter, worked a deal like Commissioner Joey Williams, who in exchange for working as a CI was allowed to continue to hold office and even stand for election, after already conceding that he had been caught and a deal was in his best interest. The FBI and the DOJ are playing a dangerous game by aiding and abetting the commission of election fraud by soon-to-be felons in pursuit of “bigger fish” in a sting.
Whaley is currently running for Governor of the State of Ohio to be chosen in 2022, and has collected over a million dollars in support of her campaign. She withdrew from the Dayton Mayor’s race where she had previously filed to run at what was seen as the 11th hour, forcing the Montgomery County Democratic party to scramble to take on her two challengers at the last minute. Former Mayor Rhine McLin had considered running again- which could have set up a rematch between McLin and Gary Leitzell who unseated McLin by a close election in 2009. Commissioner Jeff Mims withdrew from his commission re-election bid and quickly submitted petitions for Mayor to face Leitzell and newcomer Rennes Bowers. Leitzell fell short in the primary, leaving the race to be Mim’s to lose.
Esrati had filed all the appropriate FOIA requests and appeals being denied the tapes for the standard boilerplate. The next step was to ask for mediation through the OGIS, Office of Government Information Services and to possibly file in Federal Court. When OGIS responded today that my submission qualified as a “complex case”- it will be delayed. They are currently working on complex cases received in February of 2021.
The basis of the appeal breaks down into several main legal arguments. The first is that Public Officials are not guaranteed absolute privacy when conducting public business in private which is a violation of the Ohio Sunshine Laws. The precedent is set by a decision by Ruth Bader Ginsburg when she was still on the District Court: Senate of Puerto Rico v. Department of Justice, 823 F.2d 574 (D.C. Cir. 1987)
A common summary of this case is:
“noting that the D.C. Circuit has “never embraced a reading of Rule 6(e) so literal as to draw ‘a veil of secrecy … over all matters occurring in the world that happen to be investigated by a grand jury.”
Typically, what happens in a Grand Jury, stays in a grand jury. However, there have been exceptions. One of the reasons Esrati belives his action has merit is a Supreme Court doctrine on cases like this- “Capable of repetition, yet evading review” which would set precedent for corrupt politicians to continue to hold office and run for as long as they are supplying the Feds information that the Feds may or may not act upon. This is debasing the ideals of a democracy in every way. There is also the ability to redact other informants, or guilty parties from the tapes- making the request more than reasonable, since Esrati is asking for city business or personal graft that the Mayor discussed in private illegally – in violation of the Sunshine Laws.
The entire filing is available as a pdf- with clickable links to all the mentioned articles on this blog concerning this case: Fed filing esrati vs doj fbi foia
While Whaley is trailing Governor DeWine in fundraising, she’s just ahead of Cincinnati Mayor John Cranley who just announced that he is also running for the Democratic nomination for Governor in next years race. Cranley had his own issues with public corruption when five members of his Council were found guilty of round robin texting about city business in violation of the Ohio Sunshine laws. Two members of Council have also been indicted on various corruption charges.
Because this is a federal case, the timeline for resolution can be slow. Parties will be served tomorrow, and they have 50 days to respond.