Wednesday, April 25, 2018
Everyone is reporting that Michael Cohen is taking the Fifth Amendment (see here and here). This is no surprise. For the government to get a search warrant, probable cause is needed. Further when there are parallel proceedings - with both possible civil liability and criminal prosecution, lawyers are quick to request a stay of the civil proceeding pending a resolution of the criminal action. When an individual is a target or subject of an ongoing investigation, not talking is about the best a lawyer can advise to their client. Perhaps the only monumental aspect of this case is that the individual taking the 5th Amendment happened to be the President's lawyer.
Tuesday, April 24, 2018
The redacted version of the Comey Memos have now been released and do not on their face come close to establishing criminal obstruction of justice by Donald Trump. What they do show is a new President with no concept of how to appropriately interact with his condescending, schoolmarmish FBI Director.
There are conceivably four potential endeavors to obstruct justice referenced in the memos.
1. According to Comey's notes, the President asks Comey if he can see his way to "letting this go, to letting Flynn go," because, "Flynn is a good guy and has been through a lot." It was an inappropriate request, but it was not an order. Had it been an order, it would have been even more inappropriate, but still not a crime. The President has the constitutional authority to order an investigation closed.
2. The President also asks Comey to "lift the cloud" hanging over him by publicly confirming that the President is not under investigation. Comey had already volunteered to Trump at least twice that Trump was not under investigation. Comey declined the President's request to publicly "lift the cloud" and lectured him on the appropriate channels through which to make such a request. There was nothing wrong with the President's request and there would have been nothing wrong with Comey acceding to it.
3. After asking Comey to "lift the cloud" for the umpteenth time, Trump tells Comey, "I have been very loyal to you, very loyal, we had that thing you know." Comey believes this was a reference by Trump to their January 27, 2017 conversation in which Comey expressed his preference to remain on the job as FBI Director and Trump asked for and received a pledge of "honest loyalty" from Comey. In other words, Comey believes that Trump wanted Comey to "lift the cloud" hanging over Trump in return for Comey keeping his job. Assuming that Trump actually said this, it was not a crime. Trump has the constitutional authority to order an investigation closed. He has the authority to fire any non-civil service appointee for refusing to carry out such an order. Trump could have told Comey, "lift the cloud or I will fire you." Ergo, he can certainly suggest that Comey owed it to him to "lift the cloud."
4. Trump repeatedly told Comey that the Russian hooker story was false, because Trump did not stay overnight in Russia during the 2013 Miss Universe Pageant. Apparently Trump did stay overnight. Is this a false statement to a law enforcement officer by someone endeavoring to obstruct justice? The Government would have to prove that Trump actually made this statement knowing it was false and knowing that he was under criminal investigation. But Trump had been already been told by Comey, multiple times, that he was not under investigation. Thus, even assuming that Trump made the statement in question and intentionally lied (as opposed to misremembering), a prosecutor would have to show that Trump was endeavoring to obstruct a criminal investigation, despite having been told that there was no investigation.
If Comey's notes are accurate, the President was a boorish novice with no comprehension of long-accepted norms regarding acceptable interaction between the President and his FBI Director. That doesn't make Trump a criminal.
Wednesday, April 4, 2018
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:
• 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;
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.
Thursday, March 22, 2018
Saturday, March 17, 2018
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.
Tuesday, February 20, 2018
Special Counsel Mueller's office has charged Alex Van Der Zwann, apparently a former Skadden associate, with violating 18 U.S.C. Section 1001, for lying to FBI Special Agents about his conversations with Richard Gates and an unnamed individual. More to come as events develop. Here is the Criminal Information in U.S. v. Alex Van Der Zwann.
Sunday, February 18, 2018
The speaking indictments of this past week provide a clear trail to Russian individuals and entities allegedly interfering in the 2016 Presidential election. The choice of charges, which include conspiracy to defraud, are no surprise. An indictment under section 371 can take one of two avenues: conspiracy to commit a specific offense or conspiracy to defraud the government. This is a classic case for the defraud statute to be used, as it is the U.S. election process that is alleged to be compromised here. Several questions to consider here:
- Why has it taken so long for this indictment? Answer - it hasn't. Actually Mueller's team is moving faster than we often see in white collar cases where the investigation can take many years. In less than a year, the Special Counsel's Office has accumulated several cases (see here). Computer related cases can take even longer as tracking items on the web are not easy, especially when a perpetrator tries to mask its origin.
- Can the U.S. prosecute extraterritorial conduct? Answer - Yes and No. You will notice that the alleged conduct in this indictment either took place inside the U.S. or had an "affect" here in the U.S. Under principles of "objective territoriality," the U.S. has, in many instances, prosecuted conduct occurring outside the U.S. that has an effect in this country. As one who has been somewhat critical of objective territoriality, I have been a strong advocate for using what I term "defensive territoriality." Interfering in a U.S. election would most definitely fit the bill of conduct that the U.S. needs to defend against. Over the past few years, the Supreme Court has wrestled with the issue of the application of different U.S. statutes for conduct occurring outside this country. A three-fold response here: 1) this is not extraterritorial conduct, 2) even if it is extraterritorial, there are enough acts in this country to allow for jurisdiction here, and 3) the U.S. needs to defend its election process.
- Can the government bring the charged Russians to the U.S.? Answer - It may be difficult here. Do we think that the Russian government will be turning over these individuals for a U.S. prosecution? Without a U.S.-Russian extradition treaty the chances of this happening are diminished. Perhaps one of them will travel to a country where the U.S. does have an extradition treaty (see here). Other methods exist, such as luring (see here), but the international community frowns on its use. Prosecuting these individuals/entities are less important than letting the public know that our election process has allegedly been the subject of attacks from Russia. Mueller's team definitely accomplishes this here.
The more interesting Information and Statement of the Offense relates to Richard Pinedo, a cooperating witness who has a plea agreement for a violation of section 1028. Although the Information has section 1028 on it, it also is termed identity fraud and speaks to an alleged violation of the wire fraud statute found in section 1343. The Information only speaks about a Count One. Whether there is another document with other counts is unknown. We saw this previously with the Informations of Michael Flynn and George Papadopoulos, so it is doubtful that the use of "1" without a "2" is significant. The special counsel's website has "et al" after Pinedo's name, but no other names listed. Other Indictments and Informations on the Special Counsel's website do not have "et al." (See Flynn, Manafort, Gates, and Papadopoulos). The Pinedo Information says it was filed on February 7, 2018, as "sealed." The header on the understanding for the plea is also marked sealed, but dated February 12, 2018. All of this may be nothing, but it is interesting to note. Finally, kudos to the special counsel's team for writing a plea that does not include offensive language such as a waiver of any possible claims of ineffective assistance of counsel. These documents go a step further to allow for such claims to be brought by the accused even though they are pleading guilty. Ethically, this is the way a plea should be written, but some past documents in some US Attorneys' Offices have not always done this. The Florida Ethics Board went so far as to issue an ethics opinion prohibiting waivers of ineffective assistance of counsel (see here). So Mueller's team taking the high road on the wording of its pleas, is nice to see.
What happens next? The Mueller team may know, but we don't. So stay tuned.
Saturday, December 23, 2017
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.
Friday, December 1, 2017
As detailed by The Sydney Morning Herald, the Australian government announced this week that it will convene a Royal Commission to examine potential misconduct by the Australian banking and financial services sector. The announcement was made by Prime Minister Malcolm Turnbull after a letter was received from four banks asking that a commission be established. The communication from Commonwealth Bank, Westpac, National Australian Bank, and ANZ Banking Group asked that a “properly constituted inquiry” be conducted. The bank letter opened by saying,
We are writing to you as the leaders of Australia’s major banks. In light of the latest wave of speculation about a parliamentary commission of inquiry into the banking and finance sector, we believe it is now imperative for the Australian Government to act decisively to deliver certainty to Australia’s financial services sector, our customers and the community.
Our banks have consistently argued the view that further inquiries into the sector, including a Royal Commission, are unwarranted. They are costly and unnecessary distractions at a time when the finance sector faces significant challenges and disruption from technology and growing global macroeconomic uncertainty.
However, it is now in the national interest for the political uncertainty to end. It is hurting confidence in our financial services system, including in offshore markets, and has diminished trust and respect for our sector and people. It also risks undermining the critical perception that our banks are unquestionably strong.
The establishment of the Royal Commission comes after several scandals involving financial institutions, including regulatory actions regarding rate rigging, money laundering, and misuse of client funds.
According to the draft terms of the reference, the Royal Commission inquiry will be broader than simply investigating alleged criminal activity. The reference includes instructions to examine:
- “[T]he nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf)”
- “[A]ny conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations”
- [T]he use by a financial services entity of superannuation members' retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members”
The Royal Commission will last for twelve months and a final report is expected by February 2019. Given the breadth of the inquiry, however, it would not be surprising to see the work of the commission continue on longer.
Thursday, November 16, 2017
Here is a story from Max Greenwood of The Hill and another from Bill Wichert of Law 360. Make no mistake about it, this was a great and hard-fought victory for Menendez's lead defense attorneys Abbe Lowell and Raymond Brown and for the entire defense teams of Bob Menendez and Salomon Melgen. Despite all of the speculation concerning the impact of the Supreme Court's McDonnell decision, I doubt that it materially impacted the jury's work. It is obvious that Senator Menendez performed official acts on behalf of his co-defendant Salomon Melgen. It appears instead that some of the jurors bought the defense's theory that the Senator's actions were taken based on his close and long-time friendship with Melgen. This bodes well for Senators who accept expensive gifts and do political favors for old friends. The key here is to make friends with the right solons earlier in their careers. Then you can become an old friend.
Monday, November 13, 2017
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.
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.
Thursday, November 9, 2017
Fox News is reporting here that a co-founder of Fusion GPS met with Russian lawyer Natalia Veselnitskaya both before and after her June 2016 meeting in Trump Tower with Donald Trump Jr., Jaren Kushner, Paul Manafort, and others. The Trump Tower meeting primarily involved a discussion of the Magnitsky Act, adoption, and/or dirt on Hillary Clinton, depending on whose version you accept. Trump Jr. has admitted that he showed up in order to hear about the dirt. According to Fox News, the first Veselnitskaya-Fusion meeting occurred "hours before" the Trump Tower meeting during a court hearing and the second Veselnitskaya-Fusion meeting occurred at an unspecified later time. The Trump Tower meeting has always smelled like a set-up to me and this report may fuel more speculation along these lines. As I noted here yesterday, I believe that Special Counsel Mueller already has authority to investigate the Steele Dossier as part of his charter. If he isn't investigating the Fusion GPS/Steele Dossier from top to bottom he should be, since, among other things, it was delivered to the FBI as part of an effort to prove that members of the Trump camp improperly coordinated with the Russian government during the 2016 campaign. If the Steele Dossier contained false information and was given to the Bureau as part of a deliberate effort to mislead the Department of Justice, somebody could conceivably be facing obstruction of justice charges. We need to know more about the Veselnitskaya-Fusion connection, but it is certainly interesting to find out that Fusion GPS had some kind of relationship with Veselnitskaya at the same time that the well-connected Russian lawyer was allegedly trying to entice the Trump team with dirt on Ms. Clinton.
Wednesday, November 8, 2017
Senator Lindsey Graham called over the weekend for a new Special Counsel to investigate the Fusion GPS/Steele Dossier affair and the Uranium One transaction. He has a point about Uranium One, but Fusion GPS is squarely within the scope of Special Counsel Bob Mueller's authority as set out in the Order appointing him. That Order explicitly authorizes Mueller to "conduct the investigation confirmed" by Saint Jim Comey in his March 20, 2017 testimony before the House Permanent Select Committee on Intelligence. The Comey-DOJ investigation was already considering the Steele Dossier as part of its work. Mueller is further authorized to investigate links and coordination between the Russian government and individuals associated with Donald Trump's campaign as well as "matters that arose" from said investigation. Clearly, the Steele Dossier was a matter that arose as part of the overall Russian collusion investigation and may have helped to instigate or prolong it. Finally, as part of the federal regulation governing Special Counsels, Mueller is authorized to investigate any effort to obstruct his investigation, which is a continuation of the original Comey-DOJ investigation. Assuming that the Steele Dossier contains deliberate falsehoods, and was given to the FBI by someone with knowledge of those falsehoods as part of a deliberate effort to obstruct the original DOJ investigation (by unfairly pointing the finger at Trump), this would also be within Mueller's bailiwick. Indeed, I assume that Mueller is already looking at the Steele Dossier as part of an obstruction of justice investigation. He would be derelict in his duty if he were not.
Any new Special Counsel for the Steele Dossier would simply be overlapping with Mueller and would need to hire a staff and get up to speed. I see no need for this, unless something about the Steele Dossier presents a conflict of interest for Mueller. Some commentators shave suggested that the FBI paid Steele for some of his work, or thought about doing so. If any of those agents are still on the investigative team, could it create a conflict? Perhaps, but that could be resolved by removing such agents from the investigation or from the Steele Dossier part of the investigation. And keep in mind that any Special Counsel will almost certainly have to rely on FBI Special Agents to conduct at least some of his/her work. If you think a desire to protect the Bureau automatically creates a conflict then even a new Special Counsel would face the potential for conflict.
Monday, October 30, 2017
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.
The first thing to ask, if CNN's Friday night report is accurate, is who leaked? Because if the leak came from the government or court staff it is almost certainly an illegal violation of a sealed court order and/or grand jury proceedings. And if it came from the defense attorney of the party to be charged, who told him or her? The whole point of sealing something is so that the public doesn't know about it. All a courthouse staffer, moonlighting as media lookout, could have legitimately told the press is that "we saw so and so going into the court's chambers" or something along those lines.
Second, why would charges be sealed in the first place? Perhaps because the prosecution is afraid that someone will flee. That is the only legitimate reason I can think of to place an indictment under seal. If it was placed under seal to give government agents the opportunity for an early morning arrest it wouldn't surprise me one bit, given Andrew Weissman's dismal track record for hardball, heavy-handed tactics. (It will be interesting to find out someday just exactly what the government told a federal magistrate in order to get that no-knock warrant to search Paul Manafort's residence.)
Is it possible that the sealing was done in order to protect a defendant from having to spend the weekend (or at least one night) in DC jail? Unlikely. For defendants who do not turn themselves in by mid-morning in DC, the possibility of a night in jail is real. But if the prosecutors really cared about that, why not bring the charges on a weekday morning and allow the defendant to turn himself in the next day? This is done all the time.
Is it possible that the pending indictment report, true or false, is a deliberate ruse to see who will attempt to flee? In other words, does the government actually want someone to try to flee? After all, flight can be used as evidence of guilt in court. Unlikely, but anything is possible with Weissman in the number two slot.
We should find something out today. Here is Politico's excellent background piece by Darren Samuelsohn.
If there are any charges, expect them to be ancillary in nature. Look for false reporting violations or false statements to government agents. More to come.
The Indictment is out and we will try to get it up as soon as possible. It is obvious that the prosecutors did the right thing in allowing Paul Manafort and Rick Gates to turn themselves in and that, in all likelihood, one of the defense attorneys leaked the news to CNN. Grand jury secrecy rules do not apply to witnesses or to those who receive their information from witnesses.
Thursday, October 19, 2017
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.
Monday, May 15, 2017
I imagine we will know more about Rod Rosenstein's Memo, and its timing in connection with FBI Director Comey's firing, later this week. Based on the publicly available information, it appears that that when Rosenstein met with the President last Monday he was asked for his views on Saint Jim. Rosenstein no doubt articulated his disapproval of Director Comey's appallingly improper conduct during the 2016 election, a disapproval shared by legions of current and former DOJ prosecutors and FBI Special Agents. He was asked to memorialize his thoughts in a memo, and given a quick turnaround time. If this is how it played out, there was nothing wrong with the President's question, nothing wrong with Rosenstein's answer, nothing wrong with the President's request for a memo, nothing wrong with Rosenstein's decision to obey the request, and nothing wrong with the resulting memo itself. Nothing at all. Comey's conduct, as Rosenstein's Memo makes clear, was a gross deviation from standard DOJ practices, a clear overstepping of authority, and an improper smearing of an American citizen who just happened to be a major political candidate. As devoted readers of this Blog no doubt remember, I detailed Director Comey's myriad shortcomings here just after the election. To make matters worse, Director Comey refused to acknowledge his mistakes and improprieties and continued to publicly justify his shocking behavior in increasingly bizarre fashion. Some have suggested that Rosenstein's Memo "reads like an op-ed" or is "deeply troubling." I expect this kind of nonsense from the political opposition and the resisters, but when I see it from former colleagues of Rosenstein it makes we want to puke. The President is Rosenstein's superior. He asked for Rosenstein's opinion. He asked for Rosenstein to memorialize his thoughts in writing on a fast timetable. Each of these was a reasonable request. Should Rosenstein have refused the request, protesting that he needed more time to prepare a memo? He didn't need more time to detail Comey's indiscretions. Any schoolboy or schoolgirl reasonably competent in Civics could have done so.
The problems arose with what happened next. When Rosenstein learned that the White House was disseminating a false version of events to the effect that Comey's firing was solely the result of Rosenstein's Memo, he is reported to have quickly complained to the White House Counsel that he did not want the facts massaged and would not be comfortable staying in an Administration where this was happening. Translation: "Tell the President's people to quit lying. Stop the phony stories now." And the phony stories stopped. Then the President, in his typical foot-in-mouth way, admitted that Comey's handling of, and public comments about, the Russia investigation played a part in the firing. Think about that for a moment. Because of Rosenstein's status and sterling reputation, a reputation much ballyhooed by the Trumpistas, the President's people were forced to instantly and embarrassingly change their false narrative, and the President stumbled into another unforced error. That would not have been possible if the DAG had been a hack or mere factotum. Of course, Rosenstein could have decided to resign. Instead he demanded the truth and got it. It is a judgment call and I don't blame him at all for making the call he did, two weeks into the job.
Make no mistake, there is going to be a thorough investigation of Russian Collusion, either within Main Justice or by a Special Counsel. There are many good reasons for keeping the investigation in-house, as Rosenstein should know having served (along with me) in an Independent Counsel's Office. There are great inefficiencies and delays involved in setting up and running a Special Counsel operation. In disputes between such an office and an uncooperative Executive Branch, who would you rather see the President opposing? A Special Counsel, who he can demonize, or his own DAG, who he has already praised as a man of impeccable integrity? The scarier President Trump gets, the more I need the people around him to be sound, sane, and steady professionals. I want to see people like McMaster, Mattis, and Rosenstein at their stations.
As a matter of public relations, the President's unforced error will make it more difficult for Rosenstein to resist the calls for a Special Counsel. If President Trump's inappropriate comments about the investigation pile up, more and more citizens will be prone to see any declination by the DAG as a whitewash or a cover-up. So keep talking Mr. President. The more you complain about the Russia Investigation, the likelier you are to get a Special Counsel for all of your efforts. Meanwhile, were I Rosenstein, I would react to every Presidential criticism of the investigation with a renewed determination to leave no stone unturned. Hunker down Rod. Your country needs you.
Friday, December 30, 2016
Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. With the appropriate fanfare, and without further ado, The Collars for 2016:
The Collar for the Best Left Hand Turn – To the Supreme Court following Justice Scalia’s death in affirming both insider trading and bank fraud convictions.
The Collar for Failing to Deliver the Goods – To the government for prosecuting Fed Ex and then needing to dismiss the case following opening statements.
The Collar for Needing New Glasses – To James Comey so that he can read Agency policy to not do anything election related within 60 days of an election.
The Collar for Sports MVP – To the world of tennis, which stole some of the focus from FIFA this year with the BBC's allegations of significant match-fixing.
The Collar for Slow and Steady – To Britain's Serious Fraud Office, which, after announcing the implementation of DPAs in October 2012, entered into its first DPA in November 2015 and its second in July 2016.
The Collar for Quick and Steady – To the DOJ, which, according to Professor Brandon Garrett’s website, has entered into well over 100 DPAs and NPAs since October 2012.
The Collar for Best Reading of this Blog– To the Supreme Court in reversing Virginia Governor Bob McDonnell’s conviction, this blog’s 2015 case of most needing review.
The Collar for the Longest Attempt to Justify a Decision – To the 11th Circuit for its 124-page decision in United States v. Clay that attempts to justify how “deliberate indifference” meets the Global Tech standard.
The Collar for Worst Schmoozing at an Airport – To former President Bill Clinton for causing AG Loretta Lynch to accept the FBI’s decision-making after Bill Clinton came abroad her airplane.
The Collar for the Most Underreported Settlement – To Trump University’s agreement to pay $25 million settlement in the Trump University case.
The Collar for Mandating Corporate Backstabbing – To Deputy AG Sally Yates, who keeps insisting her memo that promoted a corporate divide from its constituents – widely referred to as the “Yates Memo” -- should be called the Individual Accountability Policy.
The Collar for the Pre-mature Weiner Release – To James Comey for his overly excited announcement about the former Congressman’s emails.
The Collar for Community Service to Russia – To all those who failed to investigate and release reports on computer hacking that caused the release of information during the election.
The Collar for the Quickest Backpeddling – To Rudy Giuliani for “clarifying” his statement that he knew about a confidential FBI investigation related to Hillary Clinton’s emails.
The Collar for Best Game of Hide and Seek – To Donald J. Trump for explaining that he could not release his already-filed tax returns because he was under an IRS audit.
The Collar for Best Self-Serving Confession – To the Russian Sports Federation for admitting there was systematic doping of Olympic athletes (but Putin didn't know about it).
The Collar for Quickest Recantation (aka the "Mea Culpa Collar") – To DOJ Chief Leslie Caldwell for criticizing overly aggressive AUSAs at a Federalist Society function and apologizing to DOJ attorneys a few days later.
The Collar for Best Judicial Watchdog – To Judge George Levi Russell III of the United States District Court for the District of Maryland for his post-trial decision reversing the conviction of Reddy Annappareddy and dismissing the indictment with prejudice based on prosecutorial misconduct.
The Collar for Never Giving In – To Josh Greenberg and Mark Schamel who tirelessly and brilliantly represented Reddy Annappareddy post-trial and secured his freedom.
The Collar for Best Money Laundering – To the New York City and Los Angeles real estate developers who sell eight-figure condo apartments to anonymous LLP's owned by foreign officials and their families.
The Collar for the Best Child – To Don Siegelman’s daughter, who continues to fight to “Free Don.”
The Collar for the Best Parent – Retired years ago and renamed the Bill Olis Best Parent Award –not awarded again this year since no one comes even close to Bill Olis, may he rest in peace.
(wisenberg), (goldman), (esp)
December 30, 2016 in About This Blog, Current Affairs, Deferred Prosecution Agreements, Government Reports, Investigations, Judicial Opinions, Money Laundering, News, Prosecutions, Prosecutors | Permalink | Comments (0)