Tuesday, April 10, 2018
Playing the press has become an important component in handling a white collar case. In the past, one might remain silent and let the case be resolved prior to making any statements, especially press-related statements. With the speed of the internet, it often becomes necessary for attorneys to respond to allegations to provide a level playing field. It, therefore, was no surprise to see Michael Cohen's attorney, Stephen M. Ryan, issuing a press release. (see here). He calls the US Attorneys Office "completely inappropriate and unnecessary." He argues that his client "has cooperated completely with all government entities, including providing thousands of non-privileged documents to the Congress and sitting for depositions under oath."
It is interesting to see the use of a search here as opposed to a subpoena. The downside of the government using a search is that it is more expensive, not secret like the grand jury process, requires probable cause, and if the probable cause is later found lacking the entire search can be invalidated. The upsides of a search are surprise, getting the material immediately without having to wait for the grand jury, obtaining items that might be found in plain view, and also receiving possible incriminating statements from individuals while performing the search, this latter one mostly applicable in the corporate or business context. One can argue obstruction of justice either way. On one hand you get the items in question before there is any possibility of them being destroyed. On the other hand if documents were destroyed, prosecutors would have a "short-cut offense" to charge of obstruction of justice.
In my Article, White Collar Shortcuts, forthcoming in the Illinois Law Review, I note how prosecutors are using investigative and charging "short-cuts" more frequently in white collar cases. Whether the use of a search warrant was a "short-cut" here, remains to be seen.
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.
Tuesday, April 3, 2018
The Washington Post is reporting that "Mueller told Trump's Lawyers the President isn't" a target of the Special Counsel's Investigation, but that in early March "Mueller described Trump as a subject of his investigation." (see here & here)(emphasis added). Whether President Trump currently is a subject or witness is important, especially for legal counsel in advising whether their client should testify or speak with investigators.
"A target is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." U.S. Attorney's Manual 9-11.151. Being told that one is not a target is definitely something good for President Trump to hear. But "[a] subject of an investigation is a person whose conduct is within the scope of the grand jury's investigation." Id. This is something that may or may not be good for President Trump. It can mean that the government just hasn't made up their mind yet as to whether the individual will remain under investigation or move to being a witness. This last category, a witness, is obviously the preferred place to be, if one has to be anywhere near a grand jury or being asked to speak with government attorneys.
"A grand jury may properly subpoena a subject or a target of the investigation and question the target about his or her involvement in the crime under investigation." U.S. Attorneys Manual 9-11.150. "It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation." U.S. Attorney's Manual 9-11.151. Because the DOJ Manual is unenforceable at law, there is little that one can do if they are not advised of their rights as a target or subject, except perhaps report the prosecutors for not following their internal policy. In some instances, more common perhaps in white collar cases, a subject or target may "request or demand the opportunity to tell the grand jury their side of the story." Government lawyers are instructed that a "refusal to do so can create the appearance of unfairness." U.S. Attorney's Manual 9-11.152.
But should a target or subject testify or even be questioned by government attorneys? Some white collar individuals feel they can talk their way out of an indictment, when in fact they are talking their way right into one. So targets and subjects can be hesitant to speak with the government without any immunity. Even with immunity, the fear is that they will provide false evidence, perjure themselves, or if not before a grand jury say something materially false to investigators and be criminally liable under the false statement statute (18 U.S.C. 1001).
So if reports are accurate that President Trump is not a target, this does not necessarily mean he can rest easy. If he remains a subject, then it will be more time before we know where things stand. It is common in white collar cases for individuals to remain in a holding pattern for many months and sometimes years as white collar investigations take time.
Thursday, March 22, 2018
Wednesday, March 21, 2018
Today in United States v. Marinello, the U.S. Supreme Court resolved a circuit split and significantly narrowed the reach of Internal Revenue Code Section 7212(a)'s Omnibus Clause, which makes it a felony to "corruptly or by force...endeavor[r] to obstruct or imped[e] the due administration of this title [the Internal Revenue Code]."
The Court held that the phrase "'due administration of [the Tax Code]' does not cover routine administrative procedures that are near-universally applied to all taxpayers, such as the ordinary processing of tax returns. Rather the clause as a whole refers to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit."
Justice Breyer wrote the 7-2 opinion for the Court. Justice Thomas, joined by Justice Alito, dissented.
The majority relied in part on analogous cases from its general obstruction jurisprudence, including United States v. Aguilar and Arthur Andersen v. United States. Although the focus was on the nexus required between the obstruction and a particular act of administration, the Court also stressed the rule of lenity and the need to provide fair warning to the public. This approach could be potentially relevant to any obstruction of justice case that Special Counsel Mueller may one day bring against President Trump or administration officials. Some of the theories floating around cable television about what constitutes obstruction under the federal criminal code are unusually broad and unlikely to survive rigorous analysis based on Aguilar and Arthur Andersen.
Tuesday, March 20, 2018
Lost in the shuffle of last weekend's uproar over the McCabe firing was the astonishing disclosure of yet another unredacted series of text messages between the FBI's Peter Strzok and Lisa Page. The Federalist has the story here. These messages and others had been provided to Congress previously in heavily redacted form, but Congressmen or Congressional investigators wishing to see them unredacted had to travel to DOJ.
Strzok had a pre-existing friendship with U.S. District Court Judge Rudolph "Rudy" Contreras, of the D.C. District Court. As luck would have it, Contreras was appointed to the Foreign Intelligence Surveillance Court ("FISC" or "FISA Court") in May 2016. On July 25, 2016, Page texted Strzok, saying "Rudy is on the [Foreign Intelligence Surveillance Court]! Did you know that?" Strzok responded that he did, adding "I need to get together with him." The two then discussed ways in which Strzok could run into Contreras during a social setting, as a mask for some kind of substantive discussion. Strzok texted Page that “[REDACTED] suggested a social setting with others would probably be better than a one on one meeting. I'm sorry, I'm just going to have to invite you to that dinner party.” Strzok thought he needed to "come up with some other work people cover for action.” Page replied "Why more? Six is a perfectly fine dinner party." During the exchange, Strzok expressed skepticism that such a meeting could be accomplished without forcing a recusal by Conteras, while Page assured him that the bar for recusal was a high one.
Do we even need to say how utterly repulsive it is for Strzok (a high-level FBI Supervisory Special agent) and Page (an FBI lawyer) to be seriously thinking of arranging a fake social get together in order to convey information ex parte to a sitting federal judge?
Most of the press coverage of the text exchange has focused on Judge Contreras' later recusal from the Michael Flynn criminal case. This misses the point entirely. Flynn was not even being criminally investigated in July 2016 and wasn't charged until December 2017. There is no way either Strzok or Page would know that Flynn would be charged, much less who the judge would be. This is all about the FISA Court. The FBI opened its Russian collusion case in late July 2016, right around the time that Page and Strzok were texting each other about Rudy. Strzok himself opened the case. It seems likely to me that the pair hoped Contreras would be sitting on the panel that would one day review a FISA application related to the Trump campaign. That affidavit was submitted in October 2016. Sources close to Strzok have told at least one journalist that the meeting never took place.
Monday's WSJ story (subscription required) by Del Quentin Wilber on the Strzok-Page exchanges, mentions that Contreras was appointed to the FISA Court but leads with a focus on the Flynn case and does nothing to connect any dots regarding the proximity in time between the texts and the onset of the formal (or any informal) FBI investigation. The story does not even mention the FISA Court's approval of the October 2016 FISA warrant application for Carter Page. That's not surprising given Weber's Wilber's previous softball reporting on the pair. Strzok and Page were sources for Weber's Wilber's WSJ predecessor on the DOJ beat, Devlin Barrett and it was FBI leaks to Barrett in October 2016 that led in part to the recent firing of Andrew McCabe.
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.
Friday, December 29, 2017
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.
Monday, December 18, 2017
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.
Thursday, December 14, 2017
With apologies to the memory of Robert Altman.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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").
- 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?
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.
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.