Monday, July 9, 2007
White collar cases take a long time, but just how long is too long? The Dallas Morning News reports here on a growing dissatisfaction with an investigation that has yielded no indictments two year "after FBI officials raided Dallas City Hall." Considering the high cost of attorney fees seen in white collar cases, a two year investigation can place enormous burdens on those being scrutinized.
What had been rumored for a few weeks has finally come to pass -- former Milberg Weiss name partner David Bershad entered into a plea agreement with federal prosecutors and will cooperate in the investigation of the firm. According to a press release (available below) issued by the U.S. Attorney's Office for the Central District of California, Bershad will plead guilty to one count of conspiracy. The plea agreement requires him to forfeit $7.75 million and pay a $250,000 fine. The plea agreement (available below) puts the Sentencing Guidelines range at 27-33 months, but there is also a 5K1.1 provision allowing the government to move for a lower sentence based on Bershad's cooperation.
With Bershad's guilty plea, the law firm is likely to be the next defendant to settle because it has no real defense to the charges now that one of its partners admitted guilt. The key issue is whether former Milberg Weiss leaders Melvyn Weiss and William Lerach will be charged. The statement of facts (available below) filed with the plea agreement refers to Milberg Weiss partners A, B, E, F, and G being involved in the payments to class action plaintiffs -- presumably Bershad and co-defendant Steven Schulman were C and D on that list. Whether Weiss and Lerach are among the unidentified partners remains to be seen, but they are certainly targets of the investigation. Bershad played a major role in the firm's finances, and has extensive knowledge of how payments were structured and the involvement of other partners in the firm's class action cases. His cooperation may well be a key turning point in the case. (ph)
Sunday, July 8, 2007
The White House has been fighting the release of information related to the DOJ "firings" with claims of executive privilege. Peter Baker has a wonderful article in the Washington Post that outlines the issue of executive privilege. And as noted in this piece, the executive may be successful on some of these issues. Yahoo News reports here that the Senate Judiciary Committee subpoenaed Sara Taylor, a former White House political director, and the question will be whether the White House will object to her providing this testimony on July 11th. But the White House objection may present a problem in this scenario- as the emails in question were on an e-mail account at the Republican National Committee. A court may be hard pressed to find that the executive privilege extends to the political arena.
President Bush has clearly revised his policy on commutation, as the Libby case does not fit the usual criteria he designed for determining eligibility. Check out Adam Liptak's article in the N.Y. Times titled "For Libby, Bush Seemed to Alter his Texas Policy, a piece that describes Bush's pre-Libby criteria for commutation. And also check out Doug Berman's Sentencing Law and Policy Blog that makes you wonder how President Bush traveled from Point A to this new Point Z.. And finally you read Professor Tim Floyd's (Mercer University Law School) incredible letter in the Wall Street Jrl Blog, as reprinted from the Legal Ethics Blog that says it all - Bush clearly did not follow his own criteria in issuing this sentence (this letter is a must-read).
So why is Libby different? The public certainly is not happy with this decision (see CNN Poll) What does he know that every other person who received an "excessive sentence" and is facing appeal, not know? Is this plain politics and/or just helping a friend? Or is this a reverse cooperation situation? I guess the timing of this commutation still seems bizarre, and especially now that one sees his prior policy on commutation (see here). Perhaps the answers will be explained if Libby decides to write a book.
Scott Farrell asked a wonderful question on his radio show The Scott Farrell Show that airs Sundays from 6 - 8 P.M. live on AM 1040 WWBA in Tampa, Florida with streaming at www.scottfarrellshow.com.
Would the Libby fine be refunded if President Bush should eventually decide to pardon him?
Checking with Margaret Colgate Love, former U.S. Pardon Attorney from 1990-97 and an attorney who "specializes in executive clemency and restoration of rights, sentencing and corrections policy, and legal and government ethics," provided the following answer:
"Once money has been paid into the Treasury (which Scooter's fine has been by now) it takes an act of Congress (literally) to get it out - that's just hornbook appropriations law that would apply even if Scooter had paid too much by mistake, or if his conviction were overturned by the court of appeals, or if he is eventually pardoned on grounds of innocence. I suppose, though, in circumstances like those the government might support legislation to appropriate money to pay him back."
Of course, this is all hypothetical.