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.... •· e '· ,, Approved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4 - 5 - and circumspection" to ameliorate the hardship of rules of law. Juries can choose not to convict if they feel conviction is unjustified, even though they are not instructed that they possess such dispensing power. These factors would make difficult a showing of personal guilt. The issue involved in these past programs, in the Department's view. relates less to personal guilt than to official governmental practices that extended over two decades. In a very real sense, this case involves a general failure of the government, including the Department of Justice itself, over the period of the mail opening programs, e~er.clea;-ly to e address and to resolve for its own internal_ regulat_ion the e constitutional and legal restrictions on the relevant aspects . of the exercise of Presidential power. The actions of Presi- dents, their advisors in such affairs, and the Department it- self might have been thought to support the notion that the governmental power, in scope and manner of exercise, was not subject to restrictions that, through a very recent evolution of the law and the Department's own thinking. are now con~ .. sidered essential. In such circumstances, prosecution takes on an air of hypocrisy and may appear to be the ·sacrifice of a scapegoat -- which increases yet again the likelihood of acquittal. And in this case, an acquittal would have its own costs -- it could create the impression that these activities are legal. or that juries are unwilling to apply legal principles rigorously in cases similar to this. A roved For Release 2008/11/06: CIA-RDP04M01816R000502010009-4