Saturday, May 12, 2018

The Giuliani Problem: He's Rusty, Not Rudy.

Here is Jonathan Turley's latest column for The Hill discussing the emerging "legal strategy" of Team Trump. It is clear that the hiring of Rudy Giuliani and Emmet Flood was part of a concerted effort to smear Team Mueller while preparing the public for Trump's invocation of Executive Privilege and/or his Fifth Amendment Privilege against self-incrimination. The new strategy buys time and kills two birds with one stone--both avoiding a Trump interview and allowing a sustained and withering attack to weaken Mueller. Like so much of the Trump approach, it uses the Clinton Playbook, the one employed by President Clinton at the urging of Dick Morris. Deny, delay, attack, weaken. Of course, Trump and his surrogates have been going after Mueller for awhile, but drafting Giuliani, a presumed legal heavyweight, was supposed to add stature, heft, and gravitas to the project.  The problem was in the execution. It turns out Rudy Giuliani should change his name to Rusty Giuliani. He is rusty on the facts of his client's case, rusty on the law, and rusty on the ethical duties of an attorney. Virtually every one of his appearances has been marked by inaccuracies (factual and legal) and buffoonery. Rudy seems to be running on fumes and celebrity status.  Here are just a few samples of his deft touch:

Mueller, the FBI, and the DOJ respect him, even though they are running a "garbage investigation" using "storm trooper tactics." (Do you think they still respect you?)

Presidential immunity from indictments and subpoenas was written right into the Constitution by the Framers. (This must be the long lost Alexander Hamilton Invisible Ink draft.)

There is definitely no campaign finance violation, because Trump reimbursed Cohen from personal funds. (The purpose of the payment, among other factors, must also be examined.)

Clinton was only questioned by Team Starr for 2.5 hours. (It was 4 hours. Not a huge point perhaps, but Rudy still had it wrong a week later. Does he have a researcher?)

Judge Ellis criticized the search of Michael Cohen's office. (Ellis did not mention the search at all.)

The President knew about the payments to Stormy Daniels. The President didn't know. I was talking about myself. I'm still learning the facts. Maybe I shouldn't be discussing privileged conversations I had with my client.

I make payments for my clients all the time without them knowing about it. (This presumably caused Greenberg Traurig to sever its relationship with Giuliani at the end of the week, with the law firm publicly denying that it engages in such conduct.)

The most disheartening thing about Rudy's performance has been his apparent refusal to sit down,  learn the case, and refresh himself on the law.

Whatever the Grand Plan was supposed to be in wheeling Giuliani out, there is no Grand Plan involved in his performance to date. 

(wisenberg)

May 12, 2018 in Corruption, Current Affairs, Defense Counsel, Investigations, Judicial Opinions, Legal Ethics, Prosecutions, Prosecutors | Permalink | Comments (0)

Sunday, May 6, 2018

49 Questions All In A Line. All Of Them Good Ones? All Of Them Lies?

The leak and publication of 49 questions for President Trump, orally given to President Trump's lawyers by Robert Mueller's team and then transcribed by Jay Sekulow, has unquestionably damaged Team Mueller's reputation. Why? Many of the questions are incredibly broad, incredibly stupid, and/or incredibly intrusive forays into core functions of the Executive Branch. But whose questions were they? The original New York Times story indicated that the questions were revealed orally in a meeting between Team Trump and Team Muller and then transcribed by Team Trump. Next we were informed by other media sources that Sekulow was the scrivener and that the 49 questions may be more in the nature of a Team Trump moot court briefing book, based upon a smaller set of inquires/topics broached by Team Mueller. For example, the AP reported that a "person familiar with the matter, who insisted on anonymity to discuss ongoing negotiations, said Trump’s lawyers extrapolated a list of expected questions based on conversations with Mueller’s team. The questions contained in a document posted online by the Times on Monday night reflected questions that defense lawyers anticipated rather than verbatim queries that Mueller’s team provided, the person said."  The subsequent clarifications have been all but forgotten on the Internet and cable news shows and it is still widely assumed that the 49 questions are a verbatim rendition of those directly relayed by Team Mueller to Team Trump.

But the difference between the two versions is significant. If these are the literal questions from Mueller's team, they reflect (in addition to the flaws noted above) a dangerously elastic view of criminal obstruction of justice. If they are mere briefing book questions, intended to prepare the President for every possible question Team Mueller may ask, they should be of much less concern to Team Trump and to observers attempting to fairly critique the Mueller operation. Finally, if these are briefing book questions that were deliberately leaked and packaged to the media by Team Trump as if they were Team Mueller's literal proposed interview questions for President Trump, this says something disturbing about the Trump legal operation.

(wisenberg)

May 6, 2018 in Celebrities, Corruption, Current Affairs, Defense Counsel, Fraud, Investigations, Legal Ethics, Prosecutions, Prosecutors | Permalink | Comments (0)

Saturday, May 5, 2018

That's Entertainment: Judge Ellis and the Hearing on Manafort's Motion to Dismiss

Attached is the transcript of  yesterday's hearing in the Eastern District of Virginia on Paul Manafort's Motion to Dismiss the Indictment against him: USA v PAUL J MANAFORT JR - 5-4-2018 Hearing on Motion to Dismiss. The hearing was before Judge T.S. Ellis III and was characterized by Judge Ellis's typically blunt and withering wit.

Here are some takeaways:

  1. Despite the headline worthy comments of Judge Ellis, the Court will reject Manafort's argument that the Indictment should be dismissed because the Order appointing Mueller is broader than the Special Counsel regulation allows. DAG Rod Rosenstein's  August 2 2017 Letter Re The Scope of Investigation and Definition of Authority makes clear that Mueller had the authority from the first day of his appointment, on May 17, 2017, to investigate Manafort for colluding with Russian officials during the 2016 election in violation of U.S. laws and for crimes arising out of payments Manafort received from former Ukrainian President Victor Yanukovych. Judge Ellis indicated that he considered this to be the government's strongest argument. Unless Judge Ellis believes that Rosenstein's August 2 letter was an after-the-fact sham, the letter puts an end to Manafort's central claim. Judge Ellis may also find, although this is not as certain, that the Special Counsel regulation creates no personal rights for Manafort that are enforceable in a judicial proceeding. In other words, this is a non-justiciable intra-branch matter within the Department of Justice.  
  2. It was striking to me that Michael Dreeben, who spoke for the government, did not lead with the argument that Rosenstein's August 2 letter resolves the question of whether Mueller is acting within his authority. Why not? Is it because, Mueller does not want a detailed factual inquiry on this point? During the motions hearing, both sides referenced Rosenstein's December 13, 2017 House Judiciary Committee testimony. Here are relevant Excerpts from that testimony, in which Rosenstein stated under oath that "the specific matters are not specified in the [May 17] order. So I discussed that with Director Mueller when he started, and we've had ongoing discussion about what is exactly within the scope of his investigation." (Rosenstein could not say with 100% certainty what parts of Mueller's investigation were an expansion and what parts were a clarification of Mueller's original mandate. He promised to get back to the House Judiciary Committee on this point.] Dreeben told Judge Ellis that the "specific factual  [August 2] statement, as [DAG] Rosenstein described in his Congressional testimony, was conveyed to the special counsel upon his appointment in ongoing discussions that defined the parameters of the investigation that he wanted the special counsel to conduct." So which is it? Was the scope of the investigation crystal clear on March 20, 2017 or on May 17, 2017, or did it have to be hammered out in ongoing discussions. Rod Rosenstein's May 17 2017 Order Appointing Robert S. Mueller III clearly states that Mueller has the authority to conduct the investigation confirmed by former FBI Director Comey in his March 20, 2017 Congressional testimony. Manafort's attorney, Kevin Downing, wanted to see any memos written by Rosenstein leading up to Mueller's appointment to help determine the scope of Mueller's authority. When Judge Ellis asked Downing how he knew such memos existed, Downing, who worked under Rosenstein for five years, replied: "Mr. Rosenstein is a stickler for memos being written, for there to be a written record for the actions of the Department of Justice." Downing argued that if Rosenstein exceeded his authority in appointing Mueller, Mueller "does not have the authority of a U.S. Attorney." In that event, according to Downing, any indictment procured from the grand jury by Mueller's operation would presumably be null and void.
  3. Fox News's assertions that Judge Ellis accused the Mueller team of "lying" and using "unfettered power" to target Trump are not supported by the record. Judge Ellis did express extreme skepticism regarding one of the government's arguments and made the undoubtedly true statement that the government was using Manafort to go after Trump.
  4. The non-justiciable, intra-branch dispute argument by Mueller's people could end up biting them in the butt in another context. Expect President Trump to use a similar argument if he is subpoenaed, asserts Executive Privilege, and is challenged on this point by Mueller. Trump will argue that Mueller, as an inferior officer within the President's DOJ, lacks regulatory authority to contest Executive Privilege, and that the entire matter is a non-justiciable, intra-branch dispute. Contrary to general assumptions, U.S. v. Nixon does not settle this issue. The Supreme Court in Nixon rejected President Nixon's justiciability argument, but did so on the basis that Special Prosecutor Leon Jaworski had the explicit authority to contest assertions of Executive Privilege pursuant to the terms of the federal regulation that governed his appointment. As far as I can tell, Special Counsel Mueller has not been given explicit authority to contest issues of Executive Privilege.

(wisenberg)

May 5, 2018 in Corruption, Current Affairs, Defense Counsel, Fraud, Government Reports, Grand Jury, Investigations, Judicial Opinions, News, Obstruction, Perjury, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, April 4, 2018

Mueller: What Could He Do And When Could He Do It?

Monday night, in the U.S. District Court for the District of Columbia, Special Counsel Robert Mueller filed his Response [Government's Response in Opposition to Motion to Dismiss] to Paul Manafort's Motion to Dismiss the Superseding Indictment. Manafort's Motion to Dismiss is bottomed on the alleged invalidity of Acting AG Rod Rosenstein's May 7 2017 Order Appointing Robert S. Mueller III as Special Counsel and defining Mueller's jurisdiction. As part of his Response, Mueller referenced and filed Attachment C, a redacted version of Rosenstein's  August 2 2017 Letter Re The Scope of Investigation and Definition of Authority.

Before Monday night there was no public knowledge of this August 2 letter, which sets out in detail, among other things, the specific matters already under investigation before Mueller came on board.  According to the August 2 letter, the May 7 Order had been "worded categorically in order to permit its public release without confirming specific investigations involving specific individuals." The private August 2 letter, in contrast, "provides a more specific description of your authority." Recall that the May 7 Appointment Order authorized Mueller to "conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including...(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R § 600.4(a)." The August 2 letter unequivocally states that "[t]he following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order:

[Redacted]

• Allegations that Paul Manafort:

    º Committed a crime or crimes by colluding with Russian government officials with respect to the     Russian government's efforts to interfere with the 2016 election for President of the United States, in     violation of United States law;

 º Committed a crime or crimes arising out of payments he received from the Ukrainian     government  before and during the tenure of President Viktor Yanukovych;

[Redacted]"

In other words, FBI Director Comey was already investigating Manafort for possible criminal collusion with the Russians and for payments Manafort received from Yanukovych, before Mueller came into the picture. By including the Yanukovich payments in his probe of Trump, Comey displayed an aggressiveness sadly absent from the investigation of Ms. Clinton's email server.

What is odd is that Rosenstein's August 2 letter was sent almost three months after Mueller began his inquiry. You would think that such a specific private memo detailing the scope of Mueller's investigative authority would have been issued contemporaneously with the May 7 Order. That it wasn't suggests there were disagreements in defining the outer boundaries of Mueller's charter or that Mueller or Rosenstein began to perceive problems with the wording of the May 7 Order and foresaw the possibility of just the sort of Motion to Dismiss ultimately filed by Manafort.

Rachel Stockman at Law and Crime notes here that the more specific delineation of authority laid out in the August 2 letter came one week after the raid on Manafort's home. Mueller may have wanted written reassurance that the search and seizure were within his authority ab initio, or, as we say in Texas, from the get-go.

(wisenberg)

April 4, 2018 in Corruption, Current Affairs, Defense Counsel, Government Reports, Grand Jury, Investigations, News, Obstruction, Prosecutions, Prosecutors, Searches | Permalink | Comments (0)

Saturday, March 17, 2018

Point of Personal Privilege: Means & Ends In the War Against Trump

News is coming in fast and furious, since Friday night's firing of Former FBI Deputy Director Andrew McCabe.

First, there was McCabe's own defiant and somewhat poignant statement, seriously marred by his ludicrous suggestion that the career professionals at DOJ-OIG and FBI-OPR, appointed respectively by Obama and Mueller, were only doing Donald Trump's bidding.

Second, came President Trump's mean spirited tweet celebrating McCabe's firing.

Third out of the box? Trump Lawyer John Dowd's nutty call for Rod Rosenstein to shut down Mueller's probe. What else?

Brennan's tirade against Trump amid reports that McCabe has given notes of his conversations with Trump to Mueller. (Who hasn't done that?)

Jonathan Turley suggests here that McCabe's full statement poses potential problems for Comey, because McCabe claims that his conversation with the WSJ was authorized by Comey. This arguably contradicts Comey's sworn statement to Congress that he did not leak or authorize the leak of Clinton investigation details to the press. Turley also believes that McCabe's firing may embolden Trump to fire Mueller if McCabe, unlike Flynn, isn't prosecuted for lying to investigators. To top things off, there is the growing consensus that DOJ-FBI's original probe, taken over by Mueller after Comey's firing, was marred from its inception by the FISA affidavit's over-reliance on the Steele Dossier, made worse by the failure to disclose (to the FISA judges) that the dossier was bought and paid for by the DNC and Clinton's campaign. 

Some things to keep in mind. The ends almost never justify the means. Whatever McCabe thought of Trump, he had no business leaking classified law enforcement information to a WSJ reporter in order to protect the Bureau's image surrounding its handling of the Clinton email and Clinton Foundation investigations. And of course McCabe had no right to lie about it to investigators, under oath or otherwise.

In the rush to hate Trump at all costs, care must be taken not to compromise the criminal law, investigative norms, or the Constitution. Trump may be unfit in many ways to serve as President of the United States. But he won the election. I see no substantive evidence on the public record now before us that he did so unlawfully. There is a difference between his repeated violations of decades-long institutional norms, regardless of how repulsive those violations may be, and impeachable or criminal offenses. Failure to recognize this difference, or bending the rules to get Trump, will have disastrous consequences in the long run.

(wisenberg)

March 17, 2018 in Celebrities, Corruption, Current Affairs, Defense Counsel, Government Reports, Investigations, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Sunday, February 4, 2018

In the News & Around the Blogosphere

DOJ Press Release, Arkansas State Senator Pleads Guilty to Wire Fraud, Money Laundering and Bank Fraud 

John F. Savarese, Ralph M. Levene, Wayne M. Carlin, David B. Anders, Jonathan M. Moses, Marshall L. Miller, Louis J. Barash, & Carol Miller, White Collar and Regulatory Enforcement: What to Expect in 2018, Compliance & Enforcement

(esp)

February 4, 2018 in Corruption, News | Permalink | Comments (0)

Monday, January 29, 2018

Where's the Spaghetti?

For an "interesting" case of alleged corruption that focuses on "meatballs."  See Jess Bidgood, Testimony in Corruption  Case Hinges on the Meaning of  'Meatballs,' NYTimes, Jan. 27, 2018; Emily Opilo & Peter Hall, Pawlowski Attorney Introduces Meatball Theory Amid Contract-Rigging Testimony, The Morning Call, Jan. 29, 2018.

(esp)

January 29, 2018 in Corruption, Prosecutions | Permalink | Comments (0)

Saturday, December 23, 2017

Media Coverage of Friday’s International Soccer Convictions

On Friday, two international soccer executives were convicted in federal court in Brooklyn, New York, for their roles in a global bribery scandal. The defendants were alleged to have received bribes and kickbacks to influence decisions regarding media rights associated with significant FIFA soccer tournaments. The defendants were also alleged to have accepted payments to influence the selection of venues for the World Cup and other important tournaments.

Juan Angel Napout, former head of South America’s football governing body, was accused of accepting $10.5 million in bribes, and Jose Maria Marin, former president of Brazil’s Football Confederation, was accused of accepting $6.55 million in bribes. Napout was convicted of several counts, including racketeering conspiracy, wire fraud, and money laundering. Napout was convicted of racketeering conspiracy and wire fraud.

After the convictions, FIFA stated, “FIFA strongly supports and encourages the U.S. authorities’ efforts to hold accountable those individuals who abused their positions and corrupted international football for their own personal benefit.”

The jury was unable to reach a verdict regarding the third defendant in the case, Manuel Burga, former president of the Peru soccer federation. Jurors will return next week to continue deliberating in his matter.

Since the investigation into international soccer began in 2015, more than 20 defendants have pleaded guilty. Several news outlets have in-depth coverage of Friday’s convictions, including the New York Times, Sports Illustrated, the BBC and Bloomberg.

(LED)

December 23, 2017 in Corruption, Current Affairs, International, Money Laundering, News, Prosecutions, Sports, Verdict | Permalink | Comments (0)

Monday, November 13, 2017

Special Counsels Are Sometimes Necessary

Andrew McCarthy at National Review Online compares the aggressiveness of Special Counsel Bob Mueller's Russia collusion investigation to the disgraceful kid gloves DOJ-FBI treatment of Mrs. Clinton and her email server. He is right on all counts, but this is not Mueller's problem. Mueller is doing exactly what one would expect of a Special Counsel. History teaches us that a Special or Independent Counsel will get rolled if he does not establish, unequivocally and from the start, that he will not be trifled with, obstructed, or lied to.  I'm not aware of anything that Mueller has done to date that is outside ethical boundaries. The real outrage, as I have said many times before, is that a Special Counsel was not appointed to investigate Mrs. Clinton. The governing federal regulation plainly called for it. Let's review.

28 CFR § 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

In Mrs. Clinton's case, the President's former Secretary of State, and the leading Democratic Party candidate for President, was credibly accused of mishandling classified documents on a private unauthorized email server and the President himself had communicated with her through that server. Even worse, during the investigation, the President improperly interfered by publicly declaring, on two separate occasions, that Mrs. Clinton did not intentionally engage in wrongdoing and did not harm national security. It is easy to imagine the furor that would have ensued if a Republican President had engaged in such conduct. The pressure to appoint a Special Counsel would have been relentless. It is easy to imagine, because that is exactly what happened with respect to President Trump.

So conservatives are understandably (and rightfully) outraged at the double standard, but, as with so much else, President Trump has primarily himself to blame. When you fire the FBI Director who is investigating members of your administration for unlawful collusion with Russia, and immediately brag to the Russian Ambassador that you fired him in order to get the Russia collusion investigation behind you, you are going to get a Special Counsel. It is yet another example of how President Trump, a political genius with a profound ignorance of basic American civics and governing norms, has stumbled into problem after problem. Kudos to Ty Cobb for limiting the damage for now.

None of this is Mueller's fault. He is doing the job we expect a competent Special Counsel to do.

(wisenberg)

November 13, 2017 in Corruption, Current Affairs, Grand Jury, Investigations, Legal Ethics, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Monday, October 30, 2017

George Papadopoulos Criminal Information and Plea Papers

As most people have figured out by now, the most interesting development related to the charges unsealed today by Bob Mueller & company is the guilty plea entered into by an apparently marginal Trump Campaign operative named George Papadopoulos. Papadopoulos established direct and indirect contact with some Russians early in the campaign and lied about it later to the FBI. Not a good career choice. Now he has entered into a cooperation agreement and pled guilty under 18 U.S.C. Section 1001 (the Martha Stewart statute) to making false statements to government officials. Even without a downward variance his Guidelines Range is 0-6 months, so he won't be doing any time.  According to the U.S. v. George Papadopoulos Statement of the Offense, which is the key document in the case, on April 26, 2016, while Papadopoulos was working on the campaign, one of Papadopoulos's foreign contacts advised him that the Russians had access to "dirt" on Mrs.  Clinton and "thousands of emails."  Interestingly, the Statement of the Offense does not explicitly say that the emails were offered to the Trump Campaign by the Russians or that Papadopoulos shared the information about the emails with Trump Campaign officials. Here also are the  U.S. v. George Papadopoulos Criminal Information, and the U.S. v. George Papadopoulos Plea Agreement.

(wisenberg)

October 30, 2017 in Corruption, Current Affairs, Fraud, Investigations, Martha Stewart, Obstruction, Prosecutions | Permalink | Comments (0)

Manafort-Gates Indictment

Thursday, October 19, 2017

Is the Schock Case Unraveling?

It's not every day that a federal district judge accuses the government of misleading the Court and demands corrective action. But it's happening in the Urbana Division of the Central District of Illinois. I posted here in March regarding the federal case against former Congressman Aaron Schock. Among other items of alleged government misconduct, the defense maintained that prosecutors improperly commented to grand jurors on Schock's failure to testify, in violation of his Fifth Amendment Privilege Against Self-Incrimination. The defense relied in part on an affidavit by a dismissed grand juror. After unequivocally denying the grand juror's allegation, the government clarified the record, more than six months later, admitting that government counsel "commented on or addressed Mr. Schock's testifying or decision not to testify before the grand jury" on eleven occasions. U.S. District Judge Colin Bruce was not amused, and ordered the government to review each of its previous filings "to ensure that no more false or misleading claims were made." Judge Bruce also gave the government 14 days to file a memo "detailing any further misrepresentations or misleading statements." Here is Judge Bruce's Order Requiring Government Memorandum re Misrepresentations. The government responded yesterday, denying that it had misrepresented anything to the Court, asking the Court to reconsider its finding regarding misrepresentation, and representing further that it had not intentionally made any materially misleading statements in its prior filings. Here is the Government's Compliance with the Court's October 3 Order and Motion to Reconsider. Schock, represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuire Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa, wasted no time, not even a day, in firing back. Here is Schock's Motion to Strike or in the Alternative Leave to File a Response. Here as well is Schock's Proposed Response to Government's Compliance. In a future post, I will examine the nature of the government's comments to the grand jurors.

(wisenberg)

October 19, 2017 in Congress, Corruption, Current Affairs, Defense Counsel, Fraud, Grand Jury, Investigations, Judicial Opinions, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, May 18, 2017

Another Major Corruption Scandal Hits Brazil

As I mentioned in a post a few weeks ago, the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program for the event is now available online.  What was already shaping up to be a fascinating conference will now be even more interesting with news breaking overnight of another major Brazilian corruption scandal.  

According to the New York Times, the Brazilian newspaper O Globo alleged overnight that a food company executive taped a conversation with Brazilian President Michel Temer in March that included discussions of "hush money" being paid to a jailed politician.  According to the the New York Times, President Temer is also alleged to have told the food company executive to pay a lawmaker in relation to a dispute at a company facility.  The President of Brazil issued a statement in response to the O Globo story denying the allegations, and the New York Times noted in its article that the paper had not yet independently confirmed the allegations. 

According to The Rio Times, the food company executive in question, Joesley Batista, told federal prosecutors about the conversation as part of his cooperation pursuant to a plea bargain.  Batista had been implicated in the Carwash corruption investigation in Brazil.  After news of the allegations broke, lawmakers from several political parties called for an investigation.  There were also calls for the President to resign.  According to The Rio Times, PSB national president Carlos Siqueira told local media, "The resignation of the President has become an imperative not to aggravate the crisis further.  The Temer government ended today." 

This latest alleged scandal comes at a time when Brazil is still reeling from the fallout of the Petrobras scandal, a case that led to the downfall of former Brazilian President Dilma Rousseff.  These latest developments will certainly be ones to watch as corruption allegations continue to plague the Brazilian government. 

(LED)

May 18, 2017 in Corruption, International, News | Permalink | Comments (0)

Tuesday, November 15, 2016

The Clinton Email Investigation: Professor Wisenberg's Grades Are In.

28 CFR § 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

FBI Director James Comey:

  1. F for failure to resign in protest when Attorney General Lynch kept the email investigation within the confines of DOJ. If there was ever a case justifiying the appointment of a Special Counsel, this was it. You appointed a Special Counsel to investigate the Plame Email leak when you were Acting Attorney General in the Bush Administration. You should have insisted on the same course of conduct here on threat of resignation. You had the standing and reputation to pull it off.  You didn't. You blew it, and later apparently tried to make up for it through your inappropriate prejudicial public pronouncements.
  2. F for letting Attorney General Lynch off the hook and effectively announcing the non-prosecution recommendation. Prosecutive decisions belong to prosecutors, not FBI agents or FBI officials.
  3. F for publicly smearing Ms. Clinton while announcing that no charges would be brought against her. If you don't indict, you don't smear, unless you are under a statutory duty to file a report.
  4. F for answering too many questions about the investigation when appearing before the House Judiciary Committee.
  5. F for releasing confidential FBI investigative reports to the House.
  6. F for failure to resign in protest given the kid gloves treatment afforded to Ms. Clinton and her aides during the investigation.
  7. F for your public announcement 11 days before the election. 

Attorney General Loretta Lynch:

  1. F for failure to appoint a Special Counsel.
  2. F for your tarmac meeting with former President Bill Clinton.
  3. F for handing over the prosecutive decision to FBI Director Comey.  If you needed to recuse, the final call, at that point in time, should have been made by your Deputy AG Sally Yates.
  4. A for your four line statement announcing the declination. It is the one thing you got right.

President Barack Obama:

  1. F for failing to insist that AG Lynch appoint a Special Counsel.
  2. F for your repeated public statements effectively proclaiming Ms. Clinton's innocence. You interfered with a pending investigation and potentially poisoned the jury pool.

DOJ Prosecutors:

  1. F for handing out use derivative immunity deals like they were candy and reaping no indictments in return.
  2. F for allowing Cheryl Mills to attend Ms. Clinton's final interview as one of her attorneys.
  3. F for not recording Ms. Clinton's interview.

 

These are preliminary grades, subject to revision as more facts are revealed.

(wisenberg)

 

November 15, 2016 in Congress, Corruption, Current Affairs, Investigations | Permalink | Comments (0)

Monday, September 12, 2016

Some Additional Thoughts on the McDonnell Decision

I agree with my colleague Prof. Podgor that DOJ made the "right decision" to drop the prosecution of former Virginia governor Robert McDonnell.  Under the narrow definition of "official act" given by the Supreme Court  a re-prosecution was doomed.   I further agree with Prof. Podgor that McDonnell's legal team, led by Hank Asbill and Noel Francisco, deserves plaudits for its determined and outstanding lawyering.

I do not, however, criticize DOJ for bringing this case.  McDonnell's acts - accepting $175,000 in money and gifts in exchange for favorable treatment for the donor - although ultimately determined not to be "official acts" and thus not criminal, were unseemly and corrupt.  That the Commonwealth of Virginia, in its wisdom or lack of it, chose not to criminalize such activity to me was a reason for federal prosecution, not for abstention.  To be sure, the government should have been aware that there was Supreme Court case law arguably undermining its position.  On balance, the egregiousness of McDonnell's conduct, I believe, justified a prosecution, even if it "pushed the envelope."

The McDonnell decision will allow federal prosecutions of politicians accepting things of value for favorable votes or actions on legislation or favorable decisions awarding governmental appointments, contracts and benefits, the areas within which most corruption cases fall.  It will, however, eliminate or preclude almost any prosecution for payments to officials for access, referrals and introductions, allowing donors an advantage over non-payers.   "Pay-for-play" systems do not guarantee winning a contract, but do allow one to be among those considered - a giant and necessary step.   Thus, the decision will, like Citizens United, most benefit the rich, powerful and politically-connected.

I, like many others, was surprised by the unanimity of the court.  Although I am no expert on Supreme Court internal politicking, I suspect some justices might have gone along with the decision to prevent a broader decision which would have greatly limited, or even eliminated,  federal prosecutions of state and local corruption, either by finding the term "official acts" constitutionally void for vagueness, or on federalism grounds.  In his opinion, Chief Justice Roberts mentioned, but did not rule on, both considerations. 

I cannot dismiss an undiscussed "elephant in the room," alluded to by Prof. Podgor.   The American election system commonly allows campaign contributions to be rewarded by at the least access to elected and appointed officials.  It is extremely doubtful whether McDonnell would have been prosecuted for accepting campaign contributions and rewarding the donor with access to state officials.  It seems to me extremely difficult to make a lawful/unlawful distinction between situations involving gifts to politicians for their personal use, as in McDonnell, and those involving gifts to politicians for campaign purposes.   Absent such a distinction, an affirmance of McDonnell might have led to cases concerning campaign contributions, which might have led to an upheaval in campaign financing practices generally accepted in America.   Thus, it is not surprising that a host of former Counsels to the President and Attorneys General submitted amicus briefs in support of McDonnell, a fact noted with apparent respect in the opinion.

Lastly, I wonder whether the Court was wary of allowing federal prosecutors expansive power to prosecute political officeholders.  There is always a danger - at least theoretical - that a prosecutor will misuse her power to indict political opponents, as is not infrequently done in foreign nations, and perhaps occasionally done in the United States.  It may well be that the case should be considered primarily as a limitation of prosecutorial and executive branch power.

 

September 12, 2016 in Corruption, Current Affairs, Defense Counsel, Judicial Opinions, Prosecutions, Prosecutors, Statutes | Permalink | Comments (0)

Thursday, September 8, 2016

Declining to Re-Prosecute McDonnell - The Right Decision

As noted here by Solomon Wisenberg, DOJ moved to remand the case against Robert F. McDonnell to the district court in order to dismiss the indictment with prejudice. Many in the media have reported about this dismissal (e.g., Washington Post here, USA Today here)  The Washington Post states that this results from a "new legal definition" being given to public corruption (Washington Post).  While others criticize the Supreme Court with comments such as "[w]e are now seeing that the Supreme Court's decision will in fact result in corrupt conduct going unpunished, just as we feared it would." See Statement here - Citizens for Responsibility and Ethics in Washington. 

But some media and critics are missing the point here.  The McDonnell decision was not a close call - it was a unanimous decision of the Supreme Court.  There were no dissents.

This is not a case that puts a stop to prosecuting bribery and extortion cases.  The law clearly allows such prosecutions and there have been many such prosecutions without reversals.

The McDonnell case was one we see too many times, where prosecutors push the envelope and prosecute conduct that does not meet the statute.   And Hank Asbill, Noel Francisco, and the rest of McDonnell's legal team did a wonderful job showing this.  

Elected officials who corruptly take money or items of value for an official act can be prosecuted. And prosecutors need to focus on bringing cases that meet the language of this statute.  But the receipt of money or items of value alone are not a crime. If a politician's merely taking money is considered to be a crime, then politicians would be unable to accept any campaign contributions. And although many may find this result good - it is not the law.

So, DOJ should be applauded for making the right decision here. Spending more time or money on a case that does not meet the legal mandates is a poor choice of how to spend limited resources. What is particularly outstanding on the part of DOJ here is that they issued a press release stating, ""[a]fter carefully considering the Supreme Court's recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further." 

It is rare that DOJ issues a press release noting a not guilty verdict, a court dismissal, or something other than an indictment or conviction.  It is hopeful that what DOJ has done with the McDonnell case, of issuing a statement of dismissal, will be replicated in non-white collar cases.

(esp)

September 8, 2016 in Corruption, Judicial Opinions, Prosecutions | Permalink | Comments (0)

Breaking News: DOJ Abandons McDonnell Prosecution Efforts

It's now official. Former Virginia Governor Robert McDonnell and his wife Maureen will not be retried and all charges are to be dropped. The Washington Post has the story here. It is unclear whether Main Justice overruled the EDVA or caused that office to change its mind regarding proceeding to a second trial. More analysis to come.

(wisenberg)

September 8, 2016 in Corruption, Current Affairs, Judicial Opinions, Prosecutions, Prosecutors | Permalink | Comments (0)

Tuesday, August 30, 2016

McDonnell Decision Gives Sheldon Silver Breathing Room

The Supreme Court decision in McDonnell v United States, decided June 27, has given several politicians whose corruption convictions are on appeal both a cause for optimism and freedom on bail pending appeal.  Last week SDNY District Judge Valerie Caproni granted former New York Assembly Speaker Silver's request for bail pending appeal on the grounds that there was a "substantial question" whether the court's instruction defining "official act" passed muster in light of the narrow definition of that term announced in the later Supreme Court decision. 

Judge Caproni made it clear that she had little doubt about Silver's guilt of the major accusations against him, stating, "There is no question that Silver took a number of official acts - most obviously passing legislation and approving state grants and tax-exempt financing - as part of a quid pro quo scheme."  These acts would clearly fall within the Supreme Court definition of "official act."  But the judge recognized that there were other acts committed by Silver that were presented to the jury by the government, such as holding a meeting or arranging an internship, that might not fall within the narrow Supreme Court definition of "official acts."   The jury was thus presented with instructions which may have permitted it to find Silver guilty for actions that were not criminal even if bought and paid for.

18 USC 3143(b)(1) allows a convicted defendant to be granted bail pending appeal if, inter alia, there is "a substantial question of law or fact likely to result in (i) reversal [or] (ii) an order for a new trial...."   Finding the existence of a "substantial question,"  despite the literal language of the statute,  does not mean that the judge believes there is a likelihood of reversal, only that if there were   a substantial question which if decided in the defendant's favor would bring such relief.   United States v. Miller, 750 F2d 19 (3d Cir 1985).  Appellate courts deal with a lot of "substantial questions" that have led to bail pending appeal, but rarely reverse trial convictions.

Here, it appears that under the instructions it was given, the jury could have convicted Silver based on acts not within the statute as limited by the Supreme Court..   But that is not the end of the analysis.  The appellate court will also consider, and the decision is likely to turn on, whether the evidence is considered so strong that the jury would have undoubtedly convicted Silver under a proper charge - in other words, whether the erroneous instruction constituted "harmless error."

I hesitate to predict the outcome of the appeal.  Cases of political figures, as demonstrated by McDonnell, are scrutinized by appellate courts more carefully than, for instance, cases of drug dealers.   I believe it is likely, and will appear likely to the appellate court, that Silver would have been convicted upon a proper instruction.  How likely is the issue.  Is it so likely that the court will find the error "harmless?"  What is "harmless error' is in many ways just a visceral judgment by the judges putting themselves in the role of jurors.  Harmless error analysis, thus, arguably deprives an accused of his basic constitutional right to a determination by a properly-instructed jury of peers and I believe should be applied rarely.  

Other factors the appellate court will probably consider include whether the defense proposed an instruction in accord with the standard set forth in McDonnell, and whether the defense specifically objected to the definition given by the trial court as too broad.  Another factor that may conceivably affect the decision, although unlikely to be mentioned, is whether the judges believe the 12-year prison sentence imposed on the 72-year old Silver is excessive.  And, of course, there may be other, unrelated issues raised.  In any case, based on the "official act" issue  issue alone, a reversal will likely not give Silver a dismissal, but only a new trial, presumably with proper jury instructions. 

One lesson that lawyers - both prosecutors and defense lawyers - might learn from this situation is to be aware and up-to-date on cases for which the Supreme Court has granted cert and, if any concern issues that might arise in a pending case, to craft requests to charge in anticipation of the possible result of the Supreme Court case.  Another lesson - for judges and prosecutors more than defense lawyers - is to adjourn a pending case that might be affected by a pending Supreme Court case until after that decision.  A third lesson - for prosecutors - is to analyze all aspects of their prospective case and discard legally or factually questionable ones when there are strong aspects.

August 30, 2016 in Celebrities, Corruption, Current Affairs, Judicial Opinions, Prosecutions, Prosecutors, Statutes | Permalink | Comments (0)

Wednesday, July 20, 2016

A Review of the UK Serious Fraud Office's Second DPA

Earlier this month, the UK Serious Fraud Office announced the approval by Lord Justice Leveson of the country's second deferred prosecution agreement.  Readers may recall that the implementation of a DPA process is relatively new in the UK (see prior post here).  According to the SFO press release in the matter, the company, which remains nameless due to ongoing, related legal proceedings, was subject to an indictment charging "conspiracy to corrupt, contrary to section 1 of the Criminal Law Act 1977, conspiracy to bribe, contrary to section 1 of the same Act, and failure to prevent bribery, contrary to section 7 of the Bribery Act 2010, all in connection with contracts to supply its products to customers in a number of foreign jurisdictions."

Pursuant to the terms of the DPA, the indictment was suspended and the company agreed to pay a total of 6,553,085 British Pounds.  The company also agreed to continue to cooperate with the ongoing SFO investigation and conduct a review of all third party transactions and its existing compliance measures. 

The SFO press release went on to state:

In passing the judgment, Lord Justice Leveson said:

“[This conclusion] provides an example of the value of self-report and co-operation along with the introduction of appropriate compliance mechanisms, all of which can only improve corporate attitudes to bribery and corruption.”

SFO Director David Green CB QC said:

“This case raised the issue about how the interests of justice are served in circumstances where the company accused of criminality has limited financial means with which to fulfill the terms of a DPA but demonstrates exemplary co-operation.

“The decision as to whether to force a company into insolvency must be balanced with the level and nature of co-operation and this case provides a clear example to corporates. The judgment sets out the considerations in detail and endorses the approach we took. As with the first DPA with Standard Bank, the judgment provides clear and helpful guidance.”

The suspended charges relate to the period of June 2004 to June 2012, in which a number of the company’s employees and agents was involved in the systematic offer and/or payment of bribes to secure contracts in foreign jurisdictions. The SFO undertook an independent investigation over a period of two years, concluding that of the 74 contracts examined 28 were found to have been procured as a result of bribes.

The SME’s parent company implemented a global compliance programme in late 2011. In August 2012, this compliance programme resulted in concerns being raised within the SME about the way in which a number of contracts had been secured. The SME took immediate action, retaining a law firm that undertook an independent internal investigation. The law firm delivered a report to the SFO on 31 January 2013, after which the SFO conducted its own investigation.

The SFO would like to thank HM Treasury, HM Revenue & Customs and the Department for Business, Innovation & Skills for their assistance in this investigation.

The final redacted judgement in the matter is available here.  

This week, WilmerHale released a piece entitled "The UK's second DPA: a hopeful judgment."  In the piece, author Lloyd Firth argues that several revelations from the DPA are encouraging as we consider the role the new DPA system will have in the UK.  For those interested in the evolving DPA process in the UK, I recommend you give both the final redacted judgment and the WilmerHale piece a read. 

(LED)

July 20, 2016 in Corruption, Deferred Prosecution Agreements, FCPA, International, Prosecutions, Settlement | Permalink | Comments (0)

Wednesday, June 29, 2016

Thoughts on the McDonnell Decision

I received the McDonnell decision with mixed feelings.  Initially, I was happy for my colleague Hank Asbill, one of the nation's top criminal defense attorneys, for a great victory.  Asbill and his co-counsel litigated this case the "old-fashioned way" - they fought it, and fought it, and then fought it.  Their tenacity, dedication and skill make me proud to be a defense lawyer.

Not having read the briefs of the parties, or of the amici, or heard the oral arguments, I am hesitant to criticize the opinion, especially an opinion by a brilliant chief justice for a unanimous court (I suspect due to  a compromise by potential dissenters, possibly to avoid an outright dismissal).  Indeed, the opinion makes a strong case that the decision was required by precedent.  However,  I do question several aspects of the opinion. First, I find questionable Justice Roberts' Talmudic crucial narrowing of the definition of "official act" by virtually eliminating the broad catch-all words "action" and "matter," largely by resort to the Latin word jurisprudence that is often an indication that the interpretation is on shaky ground. 

Second, while I am less troubled than the Court about the federal assumption of power to monitor the conduct of state officials for purportedly violating their offices,  there is something bothersome about federal officials by criminal prosecutions in effect setting ethical standards for state officials.  However,  as a practical matter it appears that with rare exceptions local prosecutors lack the will and/or the resources to prosecute high state officials.  In New York City, for instance, U. S. Attorney Preet Bharara has in recent years prosecuted about ten state legislators on corruption charges, while New York's five district attorneys combined have not prosecuted any. 

Third and most importantly, I am concerned by the decision's enablement of business-as-usual pay-to-play practices.   By narrowing the definition of "official act,  the Court has legalized (at least federally) the practice of paying a government  executive to set up a meeting with a responsible official.  By doing so, the Court has given such "soft" corruption a green light.  Under the opinion, a businessperson does not violate federal bribery law by paying a governor, mayor - or even the President -  tens of thousands of dollars to make a phone call to a purchasing official asking or directing her to meet with the businessperson.   And that call, however innocuous that actual conversation may sound, will have real consequences - otherwise, why would the businessperson pay for it?  Even absent a verbal suggestion that the executive wants the official to do business with the caller, the official cannot but  think that the executive would like that she do business with that person.  I imagine a New Yorker cartoon with a governor sitting at a phone booth with a sign saying, "Phone calls, official meetings. $10,000 each." 

To be sure, the law concerning bribery - not alone among federal statutes - vests too much power in the government.  At argument government counsel conceded (candidly but harmfully) that a campaign contribution or lunch to an official could constitute the quid in a quid pro quo.  That is frightening, but the problem is in  the quid, not in the quo - about which this case is concerned.  (I applaud Chief Justice Roberts statement in response to the standard "Trust me, I'm the government" argument that "We cannot condone a criminal statute on the assumption the government will use it responsibly.")   And, certainly, if this case were to apply to campaign contributions - and not, as in this case  personal  receipt of money and goods-in the words of the amicus brief of former White House counsel -  it would be "a breathtaking expansion of public corruption law."  Indeed, a distinction should be made between personal and campaign contributions.  But this case applied to the quo - what the governor did in exchange for $175,000 worth of goods and money.  And, in my view he took "action" as the governor on a "matter" by "official acts" -  hosting an event at the official mansion, making calls and arranging meetings. 

June 29, 2016 in Corruption, Current Affairs, Defense Counsel, Judicial Opinions, Prosecutions, Prosecutors | Permalink | Comments (2)