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Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 48 of 69 D. Evidence and Argument About the Scope, Timeline, and Investigative Steps of Prior Investigations Is Admissible The government’s motion to preclude the defense from eliciting evidence about the investigative steps taken in the Florida Investigation and the New York Investigation, and the duration of those investigations (see Mot. at 29-32), is entirely off base and breathtaking in the scope of what it seeks to restrict. It is as if the government will not tolerate any questioning about its investigations at all. That is certainly not the law. For example, the decision to interview a witness is an investigative step. Does the government really mean to suggest that questioning the case agents about who they spoke to and when they spoke to them is irrelevant? Similarly, the decision to issue a subpoena for documents is an investigative step. Does the government really mean to suggest that questioning the case agents about which documents they subpoenaed and when they subpoenaed them is irrelevant? Furthermore, the government will seek to offer numerous items of evidence collected in both the Florida and New York Investigations. Does the government really mean to suggest that questioning the case agents about when those investigations began and ended is irrelevant? Surely not. Such questions are entirely appropriate and will yield relevant, admissible evidence. The government cannot possibly try to prevent the defense from asking these types of valid questions or from calling the case agents as witnesses to answer them. The government seems to be conflating “investigative steps” with “investigative techniques,” even though the defense’s Touhy letter does not request testimony from the case agents about “investigative techniques.” See Mot., Ex. A (requesting testimony “concerning the scope, timeline, and resolution of the investigation, as well as the various investigative steps taken by the agents”). The defense is aware of the rule that it may comment on the absence of proof in the record, but it is not permitted to argue that the government should have used any 40 DOJ-OGR-00005503