Tuesday, February 20, 2018

Van Der Zwaan Plea and Statement of the Offense

Hey, if the Office of Special Counsel can't decide the proper capitalization of his name, don't expect me to. Here are the  Van Der Zwaan Plea Agreement and the  Van Der Zwaan Statement of the Offense.

 (wisenberg)

February 20, 2018 in Current Affairs, International, Investigations, News, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)

Mueller Strikes Again

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.

(wisenberg)

February 20, 2018 in Current Affairs, Investigations, Prosecutions, Prosecutors | Permalink | Comments (0)

Friday, December 29, 2017

Point of Personal Privilege: McCabe's No-Brainer

I was young once; a federal prosecutor investigating savings and loan ("S&L") fraud for the U.S. Attorney's Office in the Western District of Texas (San Antonio Division). About a year after the 1988 Presidential election, we got a new U.S. Attorney.  He was a politically active civil attorney from El Paso. During this time period, there arose a "person of interest" in one of my biggest S&L cases. This person of interest was a partner at a prominent San Antonio law firm. It so happened that a name partner at the same firm had played a significant role, perhaps the significant role, in securing the U.S. Attorney appointment for my new boss. The name partner called me one day and asked to come in and speak to me about the case. I went to my new boss. We immediately came to the conclusion that my new boss should completely recuse himself from the S&L case. Why? It was a no-brainer. The name partner had been instrumental to the new U.S. Attorney's appointment. The name partner's law partner was a subject in my case. It would create an appearance of impropriety if we declined to prosecute the "person of interest" partner while my new boss had any input or role whatsoever, even an oversight role, in the process. Did it matter that the support from the law firm had happened in the past? Of course not. The name partner's support constituted a big favor. Did it matter that the support came from the subject's partner and not the subject himself? No.

When I learned that FBI Director Andrew McCabe's wife received almost $700k in campaign funds through the efforts of a long time, well-known Clinton crony, I was completely unimpressed that the campaign was over by the time Deputy Director McCabe assumed his oversight role in the Clinton email investigation. A big favor--and a recent favor--had been given to McCabe's wife by someone very close to the subject of the investigation. The favor was the bankrolling of a political campaign--funds that would never have to be repaid. I became even more concerned when I read that McCabe had oversight authority in the Clinton Foundation case and made decisions about what could and could not be investigated. And when CNN's Josh Rogin solemnly pronounced that there was "no evidence"  McCabe had done anything wrong, I begged to differ. It was wrong for McCabe to have any oversight role whatsoever in any investigation of Mrs. Clinton or Governor McAuliffe. It doesn't mean that McAuliffe was trying to bribe anyone or influence FBI decision-making. It doesn't mean that McCabe was improperly influenced in his own decision-making, or violated any law, or ethical rule. It doesn't matter whether any of McCabe's decisions were, standing alone, wise or unwise. It matters that his failure to recuse created an appearance of impropriety. Recusal should have been a no-brainer.

Based on everything I have heard about McCabe, he has been a dedicated career public servant and an honorable man. He obviously does not deserve some of the harsh things being said against him. Nor does he deserve to be fired or have his pension taken away--neither of which would be legal anyway. But FBI Director Wray should reassign McCabe. McCabe made a mistake and a significant one.

(wisenberg)

December 29, 2017 in Investigations, Prosecutions, Prosecutors | Permalink | Comments (0)

Monday, December 18, 2017

Unclean Hands

Judge Jeanine Pirro, Jesse Watters, and other Fox News all-stars are calling Bob Mueller's investigation an attempted coup, a deliberate attempt to overturn the results of the 2016 election. Liberal media commentators are outraged, as well they should be. I'm personally disgusted by such tactics. Mueller is a duly appointed Special Counsel, put in place by a longtime Republican conservative, and the need for a Special Counsel under the governing regulation is clear. If Trump ends up getting impeached, that too will be part of a legitimate constitutional procedure. We are a government of laws and we know how to handle such matters. But it is worth pointing out that the left-leaning media and their talking heads have unclean hands.

Hillary Clinton (First Lady at the time) and Clinton surrogates referred more than once to Ken Starr's investigation as an attempted coup. Nixon lackeys said exactly the same thing about Archibald Cox. This is what happens when Special Counsel or Independent Counsel investigations get too close to the target. There is nothing new about it. This is a historical fact. Spare me the hypocrisy.

You are no doubt outraged that Judge Pirro wants Mueller "led out in cuffs." Were you similarly outraged when Clinton friend and surrogate James Carville publicly warned Independent Counsel Ken Starr that he was "one mistake away from not having any kneecaps"?

Two wrongs don't make a right. But CNN, MSNBC, and the entire Democratic Party establishment (including their surrogates and retained attorneys) need to recognize the precedents they set during the Whitewater/Lewinsky investigation. Every night, for years, Judge Starr was nightly vilified in a ceaseless onslaught by Geraldo Rivera, Keith Oberman, Charles Grodin, and others too numerous to mention. So folks, please look in the mirror. You are the ones who opened the door.

As I have said here before, Bob Mueller is a public official subject to criticism like any other public servant. He has been tone deaf and naïve in the selection of personnel on his team. But I see no credible evidence that his investigation has been tainted or compromised and no reason for him to step down. I won't hesitate to criticize Judge Jeannine, Jesse Watters, and their ilk when they unfairly attack him. It's nice to know that this time I won't be alone.   

(wisenberg)

December 18, 2017 in Investigations, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, December 14, 2017

McCabe & Mr. Mueller: Where Are We Now?

With apologies to the memory of Robert Altman.

  1. FBI Deputy Director Andrew McCabe wouldn't know a conflict of interest if it jumped up and bit him in the butt. He had no business supervising the Clinton Email investigation or the Clinton Foundation investigation in any capacity whatsoever. Supervising those investigations after his wife's political campaign accepted a $600K plus donation from close Clinton ally Terry McAuliffe was a gross and obvious conflict of interest. Yet he persisted.
  2. McCabe did not recuse himself until after publication of a Wall Street Journal article detailing the McAuliffe donation. By that time, both investigations were closed. FBI Special Agents involved in the Clinton Foundation investigation were reportedly kept from pursuing certain avenues of investigation with McCabe's knowledge and/or participation.
  3. The Clinton email investigation and the Clinton Foundation investigation were both mishandled. Anybody even remotely familiar with how federal investigations work will tell you as much. You don't give limited use immunity to gain access to a witness's computer when you can get the same information through a search warrant. This is particularly true when the immunity grant impacts  a related investigation--which it almost certainly did in this instance. You don't let a small army of the subject's cronies attend her formal law enforcement interview. You don't allow a witness in the investigation to attend the subject's interview under the guise that said witness is also the subject's attorney.
  4. The FBI's Peter Strzok should never have been assigned to the Russian/Trump Collusion investigation by Comey and McCabe in August 2016. By this time, the Clinton Email investigation was being harshly criticized by GOP front-runner Trump and other Republican hopefuls. You don't assign the FBI agent whose work is being attacked to investigate the very person who is leading the attack. Accordingly, Mueller should have removed Strzok as one of his first official acts.  We now know that Strzok had a vitriolic hatred of all things Trump, which he freely exhibited during the course of the Russian/Trump Collusion investigation. It's not about Strzok's political views. Agents and prosecutors cannot be hired, passed over, or fired based on their political affiliation. It's about Strzok's ability to operate in an unbiased manner during the course of an investigation. To his credit, Mueller immediately fired Strzok upon learning ab0ut Strzok's incriminating texts. It now appears that McCabe almost certainly knew of Strzok's intemperate hatred of Trump before, or shortly after, Strzok was assigned to the Russian/Trump Collusion investigation. What a wonderful little stink bomb he left for Mueller.
  5. DAG Rod Rosenstein should order the DOJ to release the full contents of Bob Mueller's Conflicts Waiver, except for portions that must remain confidential to protect attorney-client confidences. The public has a right to know of any friendships that could potentially impact Mueller's work.
  6. Bob Mueller is an honorable man. He is also tone deaf and politically naïve. Mueller should have recognized that he and his team would be attacked by Trump World and put under a microscope. He should have taken greater care to assure himself that the team he assembled would not be subject to credible accusations of political bias. Special Counsels are hired in the first place to avoid conflicts of interest and the appearance of conflicts.
  7. Bob Mueller should not resign or be fired, because he has done nothing that would warrant resignation or firing. The calls for Mueller to quit or be sacked are coming for the most part from partisan ideological hacks. These are some of the same people falsely stating that Rosenstein is a liberal Democrat and a Mueller protégé. Rosenstein (my old friend and former colleague) is a mainstream conservative Republican and long-time play-it-by-the book professional. I guess that's not good enough for some people, who apparently want him to have a pin-up of Roy Moore in his bedroom.
  8. Bob Mueller should not demand the resignation of any staff members, based on our current state of knowledge. True, he should not have hired Andrew Weissman, who has more baggage than a Carnival Cruise ship, or Jeannie Rhee in the first place, due to the appearance of potential bias. But there is no evidence that they have let any biases affect their work.
  9. We don't need a Special Counsel to investigate Mueller or his people. A Special Counsel is for criminal investigations. Any credible claims of impropriety directed to Mueller or his team can and should be handled by DOJ's Office of Inspector General ("OIG").
  10. It is not enough to say that OIG is investigating the handling of the Clinton email investigation. We need to know more. Will OIG also look at the interplay between the Clinton Email Investigation and the Clinton Foundation investigation? Is OIG using its subpoena power? If not, why not? 

(wisenberg)

December 14, 2017 in Investigations, Legal Ethics, Prosecutions, Prosecutors | Permalink | Comments (1)

Friday, December 1, 2017

Australia Launches Royal Commission to Examine Banking Sector

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.

(LED)

December 1, 2017 in Current Affairs, Government Reports, International, Investigations, Money Laundering | 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)

Thursday, November 9, 2017

Fox News Reports Veselnitskaya-Fusion GPS Connection

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.

(wisenberg)

November 9, 2017 in Current Affairs, Investigations, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, November 8, 2017

Fusion GPS: Already Within Mueller's Charter

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. 

(wisenberg)

 

November 8, 2017 in Current Affairs, Grand Jury, Investigations, Legal Ethics, Obstruction, 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

On the Brink of Charges? UPDATE

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.

UPDATE:

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.

(wisenberg)

October 30, 2017 in Current Affairs, Grand Jury, Investigations, Legal Ethics, News, Prosecutions, Prosecutors, Searches | Permalink | Comments (0)

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)

Saturday, September 16, 2017

DOJ Considering Changes to Yates Memo

According to Reuters, Deputy Attorney General Rod Rosenstein said on Thursday that there may be changes to the Yates Memo "in the near future." As discussed at length on this blog (see here, here, here, and here; see also here for an article on the Principles of Prosecution and the Yates Memo), the Yates Memo was released by the DOJ in 2015 in response to criticism that the government had failed to prosecute individuals, particularly on Wall Street, related to the financial crisis of the late 2000s.  The Yates Memo responded by focussing federal prosecutors on targeting individuals and requiring that corporations provide significant information on employee conduct to receive credit for cooperating with the government. The Yates Memo states, "[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct." 

According to reports, Rosenstein said, "It is under review, and I anticipate that there may be some changes to the policy on corporate prosecutions."  It is unclear how far the review extends or whether possible changes extend beyond the Yates Memo and include revisions to the larger Principles of Federal Prosecution of Business Organizations contained in the U.S.A.M. Whatever changes are made, it is unlikely that the focus on individuals will diminish. Attorney General Sessions has publicly commented on his commitment to holding individuals accountable for corporate misconduct. We will have to wait, therefore, to see whether significant changes or mere reiterations of current policy priorities are on the horizon.  

(LED)

September 16, 2017 in Deferred Prosecution Agreements, Investigations, Prosecutions, Prosecutors | Permalink | Comments (0)

Monday, May 15, 2017

Saint Jim Had To Go: Rod Rosenstein Should Stay Put.

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.

(wisenberg)

May 15, 2017 in Current Affairs, Government Reports, Investigations, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)

Thursday, February 16, 2017

ABA CJS Hong Kong Conference - Global Investigations and Compliance

As many readers know, I am heavily involved in planning international white collar crime conferences with the American Bar Association Criminal Justice Section. These have become wonderful learning and networking opportunities for those with an interest in the many issues in the field that transcend national boundaries.

I’m excited to announce the next international conference offering will occur on April 5, 2017 in Hong Kong. The event will focus on Global Investigations and Compliance:  From Regulatory Trends to Leveraging Innovation and Technology.  I expect this conference to be a wonderful compliment to the successful Global White Collar Crime Institute the American Bar Association held in Shanghai in 2015.  If you attended the Shanghai event, I hope you will join us again and reconnect with the many colleagues and contacts you established at that earlier conference.  If you were not in attendance in Shanghai, I hope you will join us in Hong Kong and be introduced to the growing network of international professionals making these American Bar Association white collar conferences an important part of their network. 

Seating is limited for this event, and I hope you will register today to reserve your spot (click here to register).  I look forward to seeing many of you in April. 

Official ABA Event Description

PwC Hong Kong and the American Bar Association are hosting a full day seminar with four robust panel discussions followed by a networking reception.  The panel sessions will focus on a number of pertinent topics, such as exploring regulatory updates, international investigations, navigating cross-jurisdictional issues in Southeast Asia, and the future of blockchain technology in compliance programs.  The content for these panels will be delivered by leading experts, including prominent attorneys in the US and Asia, US regulators, consulting professionals, corporate executives, professors, and others.  The target attendees for this event are international and Hong Kong/China based legal and corporate professionals focused on white collar crime and compliance.

Topics include:

  • Regulatory Update: Recent Trends in Enforcement
  • Current State of International Investigations
  • Navigating Cross-Jurisdictional Issues in the South Asian Market
  • Block-chain Technology: What does it mean for the Future of 
Compliance Programs?

More information here.

(LED)

February 16, 2017 in Conferences, International, Investigations | Permalink | Comments (0)

Saturday, February 4, 2017

Microsoft Wins Again Regarding Warrant for International Data

An important issue to watch this year is the ongoing battle over access to data collected by companies and stored overseas.  This issue heated up last year when Microsoft won its Second Circuit challenge of a 2013 warrant for emails housed in an Irish data center.  In the Second Circuit decision from July 2016, the court determined that U.S. law did not allow the enforcement of warrants for customer email content housed overseas, even though Microsoft is a U.S. service provider. 

Last week, the Second Circuit denied rehearing the Ireland case by a divided 4-4 vote.  The decision contains a number of interesting arguments from the judges and is worth a read for those involved in cases with international data issues.  

The Second Circuit decision now sets the case up for a possible Supreme Court challenge by the government.  According to Orin Kerr, writing in the Washington Post, however, Senator Sessions indicated during his confirmation hearings that he might seek a legislative remedy to address the Microsoft issue.  Either way, this topic is one to keep an eye on in 2017.

(LED)

February 4, 2017 in Congress, International, Investigations, Judicial Opinions, Searches | Permalink | Comments (0)

Friday, December 30, 2016

2016 White Collar Crime Awards

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 DecisionTo 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)

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)

Friday, October 28, 2016

The Ramifications of FBI Director Comey's Missteps

It is common in white collar cases for investigations to span over many years.  Being essentially document cases, one sees white collar crime investigations lasting the length of a grand jury or sometimes the span of a few grand juries. It is rare that one sees the investigated party receiving a letter at the end saying that we tried to find something in this investigation against you, but we failed. And having a press conference to announce it, is going even further.

Yet, surprisingly that essentially occurred when FBI Director James Comey investigated Secretary of State Hillary Clinton.  As I previously noted,  I gave an "A" to Attorney General Loretta Lynch for her 3 1/2 line statement closing the investigation (see here), a contrast to FBI Director James Comey's statement that insinuated wrongdoing while also saying a prosecution was not warranted here because "we cannot find a case that would support bringing criminal charges on these facts." (see here).  Case closed.

Now enter the current political climate, a climate that has been contentious, exhausting, and embarrassing to our nation. And on the near eve of the final voting we see the FBI Director re-examining his prior decision and as opposed to keeping his investigation secret, as is typically done, he announces to the world that he is re-examining his case.  FBI Director Comey states in a letter updating his prior congressional testimony that the F.B.I. was taking "steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation."  FBI Director Comey is also saying that he "cannot predict how long this would take. . ." (see NYTimes copy of letter here). 

Double jeopardy does not apply here, and an investigation can be re-opened. But why is he telling us this?  And why is he stating this just 11 days before the election? The most likely answer is that he had no choice given his prior decision earlier this year to go against the typical process of keeping investigations secret. When evidence is given to the DOJ and then presented to a grand jury, Federal Rule 6(e) of the Federal Rules of Criminal Procedure insures that secrecy. 

Now just 11 days before Election Day, we are now seeing the ramifications of FBI Director Comey's initial misstep in commenting on an investigation -- how deep those ramifications are won't be known until the final votes are in.  If even then.

Checkout Lanny Davis: Comey’s actions improper, irresponsible and possibly illegal

Also Jamie Gorelick and Larry Thompson, James Comey is Damaging Our Democracy

(esp)

October 28, 2016 in Investigations | Permalink | Comments (0)