Thursday, February 16, 2017
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.
- 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.
Wednesday, February 15, 2017
There is something to be said about having career prosecutors, FBI, and other employees of the government immune from the political struggles surrounding them. They are tasked to focus on their jobs irrespective of the party in power. And clearly sometimes it is probably not easy.
For many years, Sally Yates was a career prosecutor. Climbing the ladder in DOJ took her out of the mainstream career prosecutor path and placed her front and center in the political arena.
I have not been a fan of the "Yates Memo," a memo that she authored that appeared to crackdown on corporate criminality, but rather in my opinion was a symbol of aggressive rhetoric that failed to offer a long-term solution to combatting corporate misconduct.
That said, her leadership role in being a "Minister of Justice" during her short tenure as the acting head of the DOJ needs to be applauded. She refused to defend a presidential order that has now been stayed by multiple judges. Bottom line - she was right and so far has been proven to be correct. For standing up for Justice she was fired on January 30, 2017.
And at the time of her dismissal, we hadn't learned of other investigations that might be of concern to President Trump's administration. It is only now that we are finding out that on January 26th the Justice Department relayed concerns about Michael Flynn to the President. (see discussion of WH Secretary Sean Spicer's Tuesday, press briefing (here).
So was Sally Yates more than just a woman who said NO to the President?
It is important to note here that there have been a long line of women who have spoken up to alert of misconduct (see here), as well as men. Maybe this is a time to recognize all the career folks in the different offices who put politics aside and just do their jobs.
Monday, February 13, 2017
At the end of the day, the new Attorney General is a DOJ guy--a veteran AUSA and U.S. Attorney. He appears to have real reverence for the history and traditions of Mother Justice, and I'm not just talking about withholding exculpatory information from the defense. Don't expect any sudden, shocking institutional changes in the day to day operations of DOJ's prosecutorial regime. Like any Attorney General in a new Administration--particularly a new Administration with a profoundly different ideological approach than its predecessor--there will be substantive shifts in priorities. Certain crimes will go to the head of the class. Ed Meese latched onto Zero Tolerance. Jeff Sessions will have his pet programs too. We have already seen some unfortunate saber rattling on violent crime and asset forfeiture. But things should settle down. President Trump has nominated Rod Rosenstein to be Deputy Attorney General. Rod is also a Department guy, who has served throughout DOJ for Democratic and Republican Attorneys General. Although Rod is a solid Republican, he has a longstanding reputation for non-partisanship. Rosenstein has been U.S. Attorney for the District of Maryland for the last 12 years. You don't get appointed by President Bush, and kept around by President Obama for two terms in a state with two liberal Democratic Senators without being competent and non-partisan in your prosecutorial priorities. Unless you have pictures of somebody. But I digress. Bottom line, it is very difficult to envision anything like the Ted Stevens prosecution occurring in a Department with Sessions and Rosenstein in charge.
What about white collar? Both Sessions and Rosenstein believe strongly in individual accountability for criminal wrongdoing. They truly do. Expect to see a real focus, not just a bullshit press release focus, on going after high-end human white collar targets. If I am right, this will be one of the biggest turnarounds from the changeover in parties at DOJ. Not saying this is good or bad. It is what it is. Expect the overreaching that always comes with such efforts. I've commented for years about the strange phenomenon of GOP AGs being far more aggressive on white collar crime than their Democratic counterparts. Reno was an exception, but she was Clinton's accidental AG--a totally unexpected third choice. Web Hubbell was supposed to be the real power behind the throne. Not long before he was forced to resign, Hubbell called in First Assistants and Criminal Chiefs from U.S. Attorney Offices around the country and harangued them for being too tough on white collar crime. Why is this so--this odd GOP aggressiveness on white collar crime within DOJ? I expect it is embarrassment and the fear of bad press clippings. We are the big money party so we have to be seen as aggressively targeting white collar crime. This mindset, and a press uproar, seem to have spawned the massive resources thrown at S&L prosecutions in the late 80s and early 90s. At any rate, when the next financial scandal hits, let's at least hope DOJ doesn't overwhelmingly target lower middle class players who merely went along with the Zeitgeist. I can't tell you many people of color and immigrants, low level loan officers and the like, were aggressively prosecuted by Obama's DOJ while the true players went untouched. In this regard, for Sessions, there is nowhere to go but up.
Wednesday, February 8, 2017
Bernard Lawrence Madoff carried out what many consider to be the largest financial fraud in U.S. history: a massive Ponzi scheme which cost his client’s $64 billion.
He’s in jail, serving out his 150-year sentence. Steve Fishman’s new Audible series “Ponzi Supernova” features never-before-heard recordings of Madoff as well as dozens of new interviews with FBI agents, attorneys, traders and victims of Madoff’s devastating Ponzi scheme. The fraud, Fishman says, extended far beyond Madoff and his close associates, and he finds fault in a system that actively enabled him to scam his many victims.
I would highly recommend giving the podcast a listen as an introduction to the six-part Audible series. Having heard a few excerpts of Madoff in his own words during the podcast, I can't wait to hear the full series.
Sunday, February 5, 2017
It is always difficult to predict how someone will opine if they are on the Supreme Court. This is especially true if the prior judicial opinions do not cover a wide span on issues. In the case of the nominee, Judge Gorsuch, we do have some opinions to examine.
It is clear that he has excellent credentials from schooling and prior service on the bench. Interestingly, however, is that Judge Gorsuch's ratings are below those held by Judge Merrick Garland, who never received a hearing on his nomination. (see here) And in many ways Judge Garland had superior experience as the Chief Judge for the District of Columbia. After all, his court saw many cases that involved issues of national concern, like national security, including those dealing with Guantanamo. Further Judge Garland is neither a far liberal nor a conservative, having offered to the bench a centrist that would be more appeasing to an already split nation. Everyone seems to agree that Judge Gorsuch presents a conservative approach. (see here and here)
But looking solely at Judge Gorsuch, and not the unfortunate circumstance of the failure of Judge Garland to have the hearing that Judge Gorsuch will now receive, where does Judge Gorsuch stand on white collar matters is the question.
Typically, those on the right tend to be pro-prosecution on Fourth Amendment and drug crimes. In contrast, the same position is not taken in a white collar case. Professor Kelly Strader in his article The Judicial Politics of White Collar Crime, documents this paradox. Judge Gorsuch has a strong record of supporting the prosecution. (See, e.g., United States v. Mendivil, 208 F. App'x 647 (10th Cir. 2006)(affirming drug related conspiracy). And some of these cases might be considered white collar cases (See, e.g., United States v. Carnagie, 426 F. App'x 640 (10th Cir. 2011)(affirming a sec. 1001 HUD related case).
But if one looks at cases beyond the Fourth Amendment, like a gun-related case - we see him emphasizing a strict statutory interpretation. (See United States v. Games-Perez (dissenting)). Justice Scalia was particularly strong in enforcing strict statutory interpretation in white collar cases (e.g., Skilling (concurring opinion), Sun-Diamond Growers, McCormick (concurring), Santos). Justice Scalia was not shy to use vagueness and the Rule of Lenity to accomplish having a white collar statute strictly construed. And in this regard there is a strong similarity seen with Judge Gorsuch. Judge Gorsuch's opinion in United States v. Renz, 777 F.3d 1105 (10th Cir. 2015) provides a glimpse of his statutory interpretation analysis. He includes in the decision a diagram as he takes apart the elements of the statute in a methodical manner. The opinion itself is well-organized, references precedent, and resorts to the Rule of Lenity when clarity is an issue. He was unwilling to accept the government's interpretation of this firearm statute.
So what can we expect if he joins the Supreme Court? It is somewhat uncertain when examining the white collar area. But it does appear that the government may have some problems if it tries to stretch statutes or if the statutes are not clear.
Saturday, February 4, 2017
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.
Tuesday, January 31, 2017
As I see it, Acting Attorney General Sally Yates had four options regarding her opposition to President Trump's Executive Order on refugees, visas, and travel bans: 1) defend it in the courts since most or all of the Order is likely to be judicially upheld; 2) explain to the President in private why the parts you don't like are problematic and try to change his position; 3) accept the President's position if you fail to change his mind; or 4) resign in protest if you fail to change the President's mind. Yates, so far as is known, did none of those things. Instead, she loudly and publicly ordered her subordinates not to defend the OLC vetted Order in court--an Order promulgated by the head of the Executive Branch of the United States. Her firing was thus inevitable and fully justified. As a career move it was brilliant of course. She was about to ride off into the sunset as one of those career DOJ types who occasionally get elevated to a political leadership post. No doubt a cushy partnership awaited her at a prominent national firm if that was her desire, or perhaps she coveted an academic slot at a prominent law school. She will still get something like that, but is now a political celebrity as well with a possible political future. Well played, Ms. Yates.
Sunday, January 8, 2017
Friday, December 30, 2016
Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. With the appropriate fanfare, and without further ado, The Collars for 2016:
The Collar for the Best Left Hand Turn – To the Supreme Court following Justice Scalia’s death in affirming both insider trading and bank fraud convictions.
The Collar for Failing to Deliver the Goods – To the government for prosecuting Fed Ex and then needing to dismiss the case following opening statements.
The Collar for Needing New Glasses – To James Comey so that he can read Agency policy to not do anything election related within 60 days of an election.
The Collar for Sports MVP – To the world of tennis, which stole some of the focus from FIFA this year with the BBC's allegations of significant match-fixing.
The Collar for Slow and Steady – To Britain's Serious Fraud Office, which, after announcing the implementation of DPAs in October 2012, entered into its first DPA in November 2015 and its second in July 2016.
The Collar for Quick and Steady – To the DOJ, which, according to Professor Brandon Garrett’s website, has entered into well over 100 DPAs and NPAs since October 2012.
The Collar for Best Reading of this Blog– To the Supreme Court in reversing Virginia Governor Bob McDonnell’s conviction, this blog’s 2015 case of most needing review.
The Collar for the Longest Attempt to Justify a Decision – To the 11th Circuit for its 124-page decision in United States v. Clay that attempts to justify how “deliberate indifference” meets the Global Tech standard.
The Collar for Worst Schmoozing at an Airport – To former President Bill Clinton for causing AG Loretta Lynch to accept the FBI’s decision-making after Bill Clinton came abroad her airplane.
The Collar for the Most Underreported Settlement – To Trump University’s agreement to pay $25 million settlement in the Trump University case.
The Collar for Mandating Corporate Backstabbing – To Deputy AG Sally Yates, who keeps insisting her memo that promoted a corporate divide from its constituents – widely referred to as the “Yates Memo” -- should be called the Individual Accountability Policy.
The Collar for the Pre-mature Weiner Release – To James Comey for his overly excited announcement about the former Congressman’s emails.
The Collar for Community Service to Russia – To all those who failed to investigate and release reports on computer hacking that caused the release of information during the election.
The Collar for the Quickest Backpeddling – To Rudy Giuliani for “clarifying” his statement that he knew about a confidential FBI investigation related to Hillary Clinton’s emails.
The Collar for Best Game of Hide and Seek – To Donald J. Trump for explaining that he could not release his already-filed tax returns because he was under an IRS audit.
The Collar for Best Self-Serving Confession – To the Russian Sports Federation for admitting there was systematic doping of Olympic athletes (but Putin didn't know about it).
The Collar for Quickest Recantation (aka the "Mea Culpa Collar") – To DOJ Chief Leslie Caldwell for criticizing overly aggressive AUSAs at a Federalist Society function and apologizing to DOJ attorneys a few days later.
The Collar for Best Judicial Watchdog – To Judge George Levi Russell III of the United States District Court for the District of Maryland for his post-trial decision reversing the conviction of Reddy Annappareddy and dismissing the indictment with prejudice based on prosecutorial misconduct.
The Collar for Never Giving In – To Josh Greenberg and Mark Schamel who tirelessly and brilliantly represented Reddy Annappareddy post-trial and secured his freedom.
The Collar for Best Money Laundering – To the New York City and Los Angeles real estate developers who sell eight-figure condo apartments to anonymous LLP's owned by foreign officials and their families.
The Collar for the Best Child – To Don Siegelman’s daughter, who continues to fight to “Free Don.”
The Collar for the Best Parent – Retired years ago and renamed the Bill Olis Best Parent Award –not awarded again this year since no one comes even close to Bill Olis, may he rest in peace.
(wisenberg), (goldman), (esp)
December 30, 2016 in About This Blog, Current Affairs, Deferred Prosecution Agreements, Government Reports, Investigations, Judicial Opinions, Money Laundering, News, Prosecutions, Prosecutors | Permalink | Comments (0)
Tuesday, December 27, 2016
We mourn the passing of Van Hilley and extend our deepest sympathies to his family and the lawyers and staff members at Goldstein, Goldstein & Hilley. Van was an outstanding trial lawyer and a long-time leader in the San Antonio, Texas white collar criminal defense bar. Of more importance, he was a valued mentor and friend to generations of young lawyers, including prosecutors and criminal defense attorneys. Van was a consummate gentleman of the old school, in the truest sense of the word, to every one he met. Rest in Peace.
Monday, December 12, 2016
In an unanimous decision, the Supreme Court in Shaw v. United States rejected defendant's argument that section 1344(1) "does not apply to him because he intended to cheat only a bank depositor, not a bank." The Court found that the defendant's scheme to cheat another "was also a scheme to deprive the bank of certain property rights." That said, the Court noted that there is no need to show "that the defendant intend that the victim bank suffer" a financial harm. The Court summed up stating:
"The statute is clear enough that we need not rely on the rule of lenity. As we have said, a deposit account at a bank counts as bank property for purposes of subsection (1). The defendant, in circumstances such as those present here, need not know that the deposit account is, as a legal matter, characterized as bank property. Moreover, in those circumstances, the Government need not prove that the defendant intended that the bank ultimately suffer monetary loss. Finally, the statute as applied here requires a state of mind equivalent to knowledge, not purpose." (citations omitted)
But the Court does leave open one important question - the jury instruction. The defendant argued that the instruction allowed for a guilty finding for one who deceives the bank but not one who "deprive[s]" the bank of anything of value. The Court stated that it is necessary that the "scheme be one to deceive the bank and deprive it of something of value." Sending it back to the 9th Circuit, the Supreme Court instructs the lower court "to determine whether the question was fairly presented to that court and, if so, whether the instruction is lawful, and, if not, whether any error was harmless in this case."
Wednesday, December 7, 2016
On August 11, 2016, the Eleventh Circuit issued an 124 page opinion in U.S. v. Clay. Review of this decision in the 11th Circuit was denied. So now the case is likely to be teed up on a Petition for Cert. for review by the Supreme Court. There are important issues presented by this case, two that standout here.
1. Mens rea is the crux of many white collar crimes. The complicated nature of many statutes places individuals in difficult situations in both understanding the laws and abiding by them. Too many times, when individuals are indicted for white collar offenses, there are cries that they did not know the conduct was illegal. After all, it can sometimes be difficult to discern when a business decision crosses the line into illegality. This particular case has a section 1347 claim, a relatively new statute that is modeled on the older mail (1341) and wire (1343) fraud statutes. The fact that it took the appellate court 124 pages, and many of these pages were a description of the alleged illegal conduct (facts go to page 66 and many of remaining pages discuss the facts) sets the tone for the complicated nature of this case. As with another recent case coming from the Middle District of Florida (Yates -1519 fish case reversed by the Supreme Court), the case involves a federal and state initiative.
The Appellate Court finds that the defendants had the requisite knowledge. But was the standard for ascertaining that knowledge correct? The Supreme Court's decision in Global Tech, notes the importance of needing "knowledge" in criminal law. The Court makes clear that "recklessness and negligence" do not suffice. It is clear the Court in Global Tech wants actual knowledge or a clear avoidance of that knowledge. In Clay, the instruction given to the jury was a "statement or representation is false or fraudulent if it is about a material fact that the speaker knows is untrue or makes with deliberate indifference as to the truth and makes with intent to defraud." (emphasis added). The 11th Circuit finds this sufficient because of the use of "and" "with intent to defraud" used in the instruction. But in a complicated white collar case, should additional words following words that are insufficient be enough to meet the required knowledge of the alleged wrongdoing? This presents an interesting question for the Supreme Court to consider. The 11th Circuit's reliance on its pattern jury instruction with only removing the word "reckless indifference" and replacing it with "deliberate indifference" lowers the standard of knowledge that should be required in a white collar case with facts that are clearly complicated as demonstrated by the 11th Circuit's description.
2.To premise a false statement charge on statements that are made by individuals on the scene of a search with approximately 200 agents may seem warranted when the case involves something like a specific act of homicide, rape, burglary or robbery. But put this now in the context of a complicated white collar case and one needs to recognize that being asked specifics about a business requires closer scrutiny of both the context and the statements being made. White collar businesses typically involve hundreds of documents and nuances within those documents. It is not the same as asking - did you have a gun, or did you enter a house. A specific answer may appear false, because explaining a complicated business transaction cannot be done in simple answers to agents that are swarming a place and placing the individuals in a pressure situation. White Collar cases typically proceed through grand juries and with the use of subpoenas. The current use of searches needs to be examined, especially when there are resulting charges of false statements such as in this case.
Tuesday, December 6, 2016
As co-blogger Solomon Wisenberg noted here, the Supreme Court issued an opinion today in Salman v. United States resolving an issue related to insider trading. But is the law really clear now, as some claim (see here)?
It would appear that Salman does little to modify the current landscape regarding insider trading, except to perhaps reaffirm the scope covered under the Court's prior holding in Dirks and reject the Second Circuit's Newman approach. The unanimous Court stresses its adherence to the doctrine from Dirks. The Court states, " Dirks makes clear that a tipper breaches a fiduciary duty by making a gift of confidential information to 'a trading relative,' and that rule is sufficient to resolve the case at hand."
But it is important to note here, that the Court is also issuing a narrow opinion and not providing extensive guidance on how to assess liability for gift-giving. The Court notes that this case "is in the heartland of Dirk's rule concerning gifts." But the Court goes on to say, "[i]t remains the case that 'determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts.'" The Court states, "there is no need for us to address those difficult cases today, because this case involves 'precisely the "gift of confidential information to a trading relative" that Dirks envisioned.'"
Although this factual scenario did not provide a basis for the use of the Rule of Lenity, one has to wonder if another issue not in the heartland might offer such a scenario.
Friday, December 2, 2016
Readers of this Blog are no doubt familiar with United States v. Reddy Annappareddy, the District of Maryland case in which a guilty verdict was overturned (and new trial granted) with the grudging, belated concurrence of government prosecutors, because the government presented false testimony to the jury. The indictment was then dismissed with prejudice, over government objection, due to the government's destruction of potentially relevant evidence and the trial court's finding of prosecutorial misconduct. All of this was the result of the tireless and brilliant work of Annappareddy's post-trial attorneys, Josh Greenberg and Mark Schamel of Womble Carlyle. See my prior posts here, here, here, here, and here. Since my last post, the government moved to withdraw its appeal, the Fourth Circuit granted the motion, and the mandate has issued.
Now, Josh Greenberg, who played a key role in devising and implementing the post-trial strategy, has decided to open his own shop, focusing on white collar criminal defense, civil litigation, and appeals. Congratulations to Josh. We wish him the best.
Tuesday, November 22, 2016
We have been critical of FBI Director Comey's comments (see here and here) during the email investigations of Hillary Clinton. On a positive note, it was good to see him pull together the FBI for a quick review of Hillary Clinton's emails after his missteps, although this should never have been necessary if commenting during the election had not initially occurred.
But one has to wonder what kind of investigation has been occurring on the overarching problem - email hacking that is reported to be coming from outside the United States that disrupts and influences a U.S. election. (see here) The integrity of elections is crucial and a failure to assure that integrity is maintained is of the utmost importance. So where is FBI Director Comey now, and why are we hearing nothing about this important investigation?
The NYMag.com is reporting here that "academics presented findings showing that in Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots." In light of prior hacking of the DNC and the release of emails of individuals associated with Hillary Clinton, one would think the FBI would be conducting an immediate investigation to assure voters of the integrity of our election process. So where is FBI Director James Comey now?
Sunday, November 20, 2016
Co-blogger Solomon Wisenberg noted here that "[a]nyone who thinks this will be an easy nomination to put through, because Sessions is a sitting Senator, is in for a big surprise. It will be a bruising battle."
I would add that it just got a whole lot easier for Senator Jeff Sessions, as according to President-Elect Donald Trump's Making News page here - Former Deputy Attorney General Larry Thompson states:
"I can tell you as a friend and someone who has known Jeff Sessions for 32 years that Jeff does not have a racist bone in his body. When I first met Jeff, he was U.S. Attorney in Mobile and I was the U.S. Attorney in Atlanta. In order to stretch our limited per diems on travel to Department of Justice conferences, we often booked single rooms with double beds in hotels. You really get to know a person when you interact so closely with them.
"When I was asked by Attorney General William French Smith to head the Southeastern Organized Crime Drug Enforcement Task Force simply because of my strategic location in Atlanta, a delicate situation was presented. The Task Force consisted of eleven other U.S. Attorney Offices but any potential problem was avoided because Jeff rallied the other U.S. Attorneys around our common cause and my leadership.
"As a former federal prosecutor, Jeff knows the workings of the Justice Department inside and out. He is thoroughly familiar with the legal issues the Department will face. He understands the mission of the Department and will carry out his duties in a professional, thoughtful, and balanced manner. More recently, Jeff voted to confirm President Obama’s choice as Attorney General, Eric Holder.
"By the way, I have been an African American for 71 years and I think I know a racist when I experience one. Jeff Sessions is simply a good and decent man."
Friday, November 18, 2016
Steve Eder, Donald Trump Agrees to Pay $25 Million in Trump University Settlement, NYtimes
Harper Neidig, NY announces $25M settlement in Trump University Case, The Hill
This is according to every news source out there, including the Washington Post. Anyone who thinks this will be an easy nomination to put through, because Sessions is a sitting Senator, is in for a big surprise. It will be a bruising battle.
Tuesday, November 15, 2016
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:
- 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.
- 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.
- 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.
- F for answering too many questions about the investigation when appearing before the House Judiciary Committee.
- F for releasing confidential FBI investigative reports to the House.
- F for failure to resign in protest given the kid gloves treatment afforded to Ms. Clinton and her aides during the investigation.
- F for your public announcement 11 days before the election.
Attorney General Loretta Lynch:
- F for failure to appoint a Special Counsel.
- F for your tarmac meeting with former President Bill Clinton.
- 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.
- A for your four line statement announcing the declination. It is the one thing you got right.
President Barack Obama:
- F for failing to insist that AG Lynch appoint a Special Counsel.
- F for your repeated public statements effectively proclaiming Ms. Clinton's innocence. You interfered with a pending investigation and potentially poisoned the jury pool.
- F for handing out use derivative immunity deals like they were candy and reaping no indictments in return.
- F for allowing Cheryl Mills to attend Ms. Clinton's final interview as one of her attorneys.
- F for not recording Ms. Clinton's interview.
These are preliminary grades, subject to revision as more facts are revealed.