Monday, January 29, 2018
Sunday, January 28, 2018
The 11th Circuit affirmed the convictions of three defendants coming from a 2009 investigation of a peanut production plant that was identified as the source of a nationwide salmonella outbreak. The court in United States v. Parnell stated in an unpublished opinion:
"The jury found Stewart and Michael guilty of several counts of fraudulently introducing misbranded food into interstate commerce, interstate shipment and wire fraud, and conspiring to commit these offenses. The jury also found Stewart guilty of fraudulently introducing adulterated food into interstate commerce. The jury found Stewart and Wilkerson guilty of obstruction of justice. The district court sentenced Stewart to 336 months [28 years] in prison, to be followed by three years of supervised release; sentenced Michael to 240 months [20 years] in prison, to be followed by three years of supervised release; and sentenced Wilkerson to 60 months [5 years] in prison, to be followed by two years of supervised release."
The convictions were based on conduct related to food safety and conduct during the investigation. The appellants were found to have "not [been] forthcoming with the FDA during its investigation."
"The court rejected arguments related to "juror exposure to extrinsic evidence." The court also rejected a discovery argument made by one of the defendants. This defendant objected to the government "producing a large hard drive of documents in late June 2014 when the trial was set to begin on July 14th." The defendant argued that this was "one of many untimely data dumps, where the Government produced hard drives containing hundreds of thousands of documents..." The court found that the district court had made a finding that the documents were searchable and that the government had provided a Bates index seven months prior to trial, and that "an IT consultant helped" the defendant and counsel "search and review the documents." The Court stated that "[g]iven that [the defendant] was able to search the documents, they were not suppressed for purposes of Brady."
See also opinion - here
R. Robin McDonald, 11th Circuit Upholds Convictions in One of Nation's Largest Criminal Food Safety Prosecutions, Daily Report, Jan. 26, 2018.
Saturday, December 30, 2017
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 2017:
The Collar for Best “Stand Your Ground Defense” – To Rod Rosenstein who continues to stand firmly on Mueller’s appointment.
The Collar for “The Apprentice” Sequel – To Donald Trump for telling U.S. Attorneys “you’re fired.”
The Collar for Dead Air – To Donald Trump for acting so quickly in firing U.S. Attorneys that he didn’t have replacements ready.
The Collar for a Telling Foul Ball – To Ty Cobb (the President’s lawyer, not the late baseball player) for discussing work at a restaurant within earshot of a NY Times reporter.
The Collar for Most in Need of Prevagen –To Jared Kushner for needing to amend his disclosure forms multiple times.
The Collar for Best Adapted Screenplay – To House Republicans, who are using the Clinton Playbook to call for Special Counsel Mueller’s resignation or firing. It was wrong when it was done to Ken Starr and it’s just as wrong now.
The Collar for Newest Pumped-Up Sports – To the Russian Teams for getting tossed out of the 2018 Winter Olympic Games (with a thank you from U.S. baseball for getting them off the front page).
The Collar for Kicking Back a Sport – To International FIFA Executives and others over bribery and kickbacks.
The Collar for Increased Employment of White Collar Attorneys in Washington, D.C. – To Donald Trump and Robert Mueller, jointly, for keeping Washington, D.C., white collar attorneys busy.
The Collar for Clotheslines –To Donald Trump for hanging so many of his subordinates out to dry.
The Collar for Directional Impairment – To Donald Trump for demonstrating that loyalty is a one-way street.
The Collar for Worst Optics by a Prosecutor – To Manhattan DA Cyrus Vance for initially accepting campaign contributions from Donald Trump’s personal lawyer, before and after quashing a fraud investigation of the elder Trump and two of his children (with a thank you from former AG Loretta Lynch for outdoing her airport schmoozing with Bill Clinton).
The Collar for Worst Ghost Writing – To Trump Attorney John Dowd for claiming he authored an arguably incriminating tweet for the president.
The Collar for “But I Play One on TV” – To Donald Trump. Jr. for claiming before a Congressional committee that he did not have to disclose conversations with his father because of attorney-client privilege.
The Collar for Political Detours – To New Jersey Governor Chris Christie who may have lost out on becoming Attorney General because of a logjam on the George Washington Bridge.
The Collar for It’s About Time - To Donald Trump for finally doing what this blog called on someone to do in 2010-11 – granting a commutation to Sholom Rubashkin on his 27-year sentence.
The Collar for Best Dolphin (Flipper) – To Michael Flynn for cooperating in shark infested waters.
The Collar for Least Known Person at the Table – To George Papadopoulos for being the first known to plead guilty in the Russian investigation.
The Collar for Overweight Luggage – To Robert Mueller who may have hired a few too many assistants with excess Democratic Party baggage.
The Collar For Getting Two Bites of the Big Apple - To New York politicians Sheldon Silver and Dean Skelos for getting new trials because their respective trial courts' instructions were faulty under the Supreme Court's later-decided McDonnell decision.
The Collar for Best Game of Hide and Seek – To Donald Trump for continuing to refuse to disclose his tax returns (second year in a row).
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)
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.
Saturday, December 23, 2017
On Friday, two international soccer executives were convicted in federal court in Brooklyn, New York, for their roles in a global bribery scandal. The defendants were alleged to have received bribes and kickbacks to influence decisions regarding media rights associated with significant FIFA soccer tournaments. The defendants were also alleged to have accepted payments to influence the selection of venues for the World Cup and other important tournaments.
Juan Angel Napout, former head of South America’s football governing body, was accused of accepting $10.5 million in bribes, and Jose Maria Marin, former president of Brazil’s Football Confederation, was accused of accepting $6.55 million in bribes. Napout was convicted of several counts, including racketeering conspiracy, wire fraud, and money laundering. Napout was convicted of racketeering conspiracy and wire fraud.
After the convictions, FIFA stated, “FIFA strongly supports and encourages the U.S. authorities’ efforts to hold accountable those individuals who abused their positions and corrupted international football for their own personal benefit.”
The jury was unable to reach a verdict regarding the third defendant in the case, Manuel Burga, former president of the Peru soccer federation. Jurors will return next week to continue deliberating in his matter.
Since the investigation into international soccer began in 2015, more than 20 defendants have pleaded guilty. Several news outlets have in-depth coverage of Friday’s convictions, including the New York Times, Sports Illustrated, the BBC and Bloomberg.
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 8, 2017
James Rosen of Fox News reported last night that recently removed Associate Deputy Attorney General Bruce Ohr (an Obama holdover) met during the 2016 Presidential campaign with Steele Dossier author Christopher Steele and shortly after the election with Fusion GPS founder Glenn Simpson. The story is here. If these meetings happened, they would constitute extremely unusual behavior for a high-level DOJ official, even a political appointee. The meetings will further fuel speculation that the Steele Dossier, paid for by the Clinton campaign and the DNC, was used in whole or in part to obtain FISA warrants against Trump campaign officials. They will also add to the concern about politicization of federal law enforcement and intelligence agencies during the waning days of the Obama era. Stay tuned for more analysis as the story unfolds.
Tuesday, December 5, 2017
Reports now that President "Trump's lawyer denied any such subpoena had been issued."
Philip Ewing, NPR, Subpoena For Deutsche Bank May Put Mueller On Collision Course With Trump
Arno Schuetze, Nathan Layne, Reuters, Trump Lawyer Denies Deutsche Bank Got Subpoena on Trump Accounts
Monday, December 4, 2017
First, let's look at the precise words attributed to the President's outside counsel John Dowd in Axios: "The President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case." Dowd does not appear to be speaking to the broad constitutional question of whether any sitting President can be indicted and tried while serving as President. He instead appears to be saying, as many of us have, that the President, as chief law enforcement officer, can express whatever the President's views of the Flynn investigation are to (former) FBI Director Comey. He can also ask Comey to go easy on Flynn. He can direct Comey to stop investigating Flynn. He can fire Comey if Comey refuses to stop the investigation. Trump can do this, not because he is above the law, but because he is the Chief Officer of the Executive Branch. It has nothing to do with whether Trump was trying to protect himself from prosecution or whether Trump already knew that Flynn had lied to government officials when Trump allegedly asked Comey to go easy on Flynn. As long as the statement ("Go easy on him; he's a good guy") or the act (firing) does not independently violate another constitutional provision (for example, the Equal Protection Clause) or a federal statute, it can never, in this view, constitute obstruction. It may be wrong. It may be impeachable. But it cannot be a criminal offense.
What the President cannot do, under federal criminal law, is instruct another person to lie to federal investigators/law enforcement officers, and the President cannot himself lie to such officers. That is classic obstructive conduct that violates the law, no matter who does it. In this instance, the President's title or position would not be not a defense.
Friday, December 1, 2017
Here is what we can tell so far.
- Flynn is obviously co-operating. You don't get to plead to a Criminal Information unless you are cooperating.
- If even half of what has been reported about Flynn in the press is true, a one count Criminal Information with a five year statutory cap is an outstanding deal. It is an even better deal if Flynn bought a walk for his son. UPDATE: The Plea Agreement, which purports to be complete, contains no promises related to Flynn's son.
- This is a bare bones Criminal Information, but not as bare bones as the one charged against George Papadopoulos. We should know much more when we see the Plea Agreement and Statement of the Offense. The Statement of the Offense was the key document in the Papadopoulos case. But even though the Papadopoulos Statement of the Offense is detailed in some areas it is curiously silent in others. For example, it never reveals whether Papadopoulos specifically informed Trump campaign officials that the Russians had "dirt" on Mrs. Clinton. UPDATE: The Statement of the Offense reveals separate conversations Flynn had with "a senior official", "senior members", and "a very senior member" of the Presidential Transition Team ("PTT"). These conversations, if they occurred, are troubling, because they appear to reveal that PTT officials were conducting foreign policy and undermining President Obama's foreign policy before President Trump took office.
Here is what to look for or ask.
- How detailed was Flynn's criminal conduct? The Statement of the Offense should tell us that. UPDATE: The Statement of the Offense tells us that in addition to the conduct charged in the Criminal Information, Flynn violated the Foreign Agents Registration Act ("FARA") by making several false statements and omissions related to his dealings with the Republic of Turkey.
- Will the Plea Agreement contain a provision promising not to charge Flynn for any crimes detailed in the Statement of the Offense, in exchange for Flynn's guilty plea? Such a provision is fairly standard and was included in the Papadopoulos Plea Agreement. UPDATE: It's in there.
- Will Flynn's son walk? This may be revealed in the Plea Agreement. UPDATE: Not included in the Plea Agreement. This could have been handled in a conversation between Mueller's prosecutors and Flynn and his attorneys. It might have gone something like this: "Look. We aren't promising anything. But based on our current state of knowledge we have no interest in going after your son." SECOND UPDATE: Alternatively, an Immunity Agreement for Flynn's son may have been wrapped up prior to, and as a pre-condition of, Flynn's deal.
- Will there be a sealed Supplemental Plea Agreement? We should be able to tell this by language inserted in the public plea agreement. It will say that the Plea Agreement, and any supplemental filings, are the complete agreement. UPDATE: There is not.
- Is there a separate sealed agreement promising Flynn a 5K1.1 reduction under the Sentencing Guidelines in exchange for cooperation? Again, this should be revealed in the public Plea Agreement. UPDATE: There is no separate sealed agreement. The 5K1.1 possibility (I shouldn't have said promise) in exchange for Flynn's substantial assistance is included in the public Plea Agreement. You may ask why Flynn even needs a 5K1.1 since his Guideline Range is 0-6 months--the lowest possible range. Two reasons. First, the sentencing judge may not agree with the Government's predicted Guideline Range. Second, a 5K1.1 motion for downward departure under the Guidelines will signal to the sentencing judge that Flynn has been, in Mueller's view, fully and truthfully cooperative, virtually insuring a probationary sentence. Continue to sStay tuned.
As detailed by The Sydney Morning Herald, the Australian government announced this week that it will convene a Royal Commission to examine potential misconduct by the Australian banking and financial services sector. The announcement was made by Prime Minister Malcolm Turnbull after a letter was received from four banks asking that a commission be established. The communication from Commonwealth Bank, Westpac, National Australian Bank, and ANZ Banking Group asked that a “properly constituted inquiry” be conducted. The bank letter opened by saying,
We are writing to you as the leaders of Australia’s major banks. In light of the latest wave of speculation about a parliamentary commission of inquiry into the banking and finance sector, we believe it is now imperative for the Australian Government to act decisively to deliver certainty to Australia’s financial services sector, our customers and the community.
Our banks have consistently argued the view that further inquiries into the sector, including a Royal Commission, are unwarranted. They are costly and unnecessary distractions at a time when the finance sector faces significant challenges and disruption from technology and growing global macroeconomic uncertainty.
However, it is now in the national interest for the political uncertainty to end. It is hurting confidence in our financial services system, including in offshore markets, and has diminished trust and respect for our sector and people. It also risks undermining the critical perception that our banks are unquestionably strong.
The establishment of the Royal Commission comes after several scandals involving financial institutions, including regulatory actions regarding rate rigging, money laundering, and misuse of client funds.
According to the draft terms of the reference, the Royal Commission inquiry will be broader than simply investigating alleged criminal activity. The reference includes instructions to examine:
- “[T]he nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf)”
- “[A]ny conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations”
- [T]he use by a financial services entity of superannuation members' retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members”
The Royal Commission will last for twelve months and a final report is expected by February 2019. Given the breadth of the inquiry, however, it would not be surprising to see the work of the commission continue on longer.
Thursday, November 30, 2017
Rod Rosenstein announced new guidelines for FCPA cases. (here) In his remarks he stated:
I want to highlight a few of the policy’s enhancements.
First, the FCPA Corporate Enforcement Policy states that when a company satisfies the standards of voluntary self-disclosure, full cooperation, and timely and appropriate remediation, there will be a presumption that the Department will resolve the company’s case through a declination. That presumption may be overcome only if there are aggravating circumstances related to the nature and seriousness of the offense, or if the offender is a criminal recidivist.
It makes sense to treat corporations differently than individuals, because corporate liability is vicarious; it is only derivative of individual liability.
Second, if a company voluntarily discloses wrongdoing and satisfies all other requirements, but aggravating circumstances compel an enforcement action, the Department will recommend a 50% reduction off the low end of the Sentencing Guidelines fine range. Here again, criminal recidivists may not be eligible for such credit. We want to provide an incentive for good conduct. And scrutiny of repeat visitors.
Third, the Policy provides details about how the Department evaluates an appropriate compliance program, which will vary depending on the size and resources of a business.
The Policy therefore specifies some of the hallmarks of an effective compliance and ethics program. Examples include fostering a culture of compliance; dedicating sufficient resources to compliance activities; and ensuring that experienced compliance personnel have appropriate access to management and to the board.
We expect that these adjustments, along with adding the FCPA Corporate Enforcement Policy to the U.S. Attorneys’ Manual, will incentivize responsible corporate behavior and reduce cynicism about enforcement.
Tuesday, November 28, 2017
Check out Rebecca R. Ruiz, NYTimes, Nov. 28, 2017 The Olympic doping diaries: An exclusive look at a chemist's handwritten notes that could lead to major penalties for Russia.
Thursday, November 16, 2017
Here is a story from Max Greenwood of The Hill and another from Bill Wichert of Law 360. Make no mistake about it, this was a great and hard-fought victory for Menendez's lead defense attorneys Abbe Lowell and Raymond Brown and for the entire defense teams of Bob Menendez and Salomon Melgen. Despite all of the speculation concerning the impact of the Supreme Court's McDonnell decision, I doubt that it materially impacted the jury's work. It is obvious that Senator Menendez performed official acts on behalf of his co-defendant Salomon Melgen. It appears instead that some of the jurors bought the defense's theory that the Senator's actions were taken based on his close and long-time friendship with Melgen. This bodes well for Senators who accept expensive gifts and do political favors for old friends. The key here is to make friends with the right solons earlier in their careers. Then you can become an old friend.
Monday, November 13, 2017
Andrew McCarthy at National Review Online compares the aggressiveness of Special Counsel Bob Mueller's Russia collusion investigation to the disgraceful kid gloves DOJ-FBI treatment of Mrs. Clinton and her email server. He is right on all counts, but this is not Mueller's problem. Mueller is doing exactly what one would expect of a Special Counsel. History teaches us that a Special or Independent Counsel will get rolled if he does not establish, unequivocally and from the start, that he will not be trifled with, obstructed, or lied to. I'm not aware of anything that Mueller has done to date that is outside ethical boundaries. The real outrage, as I have said many times before, is that a Special Counsel was not appointed to investigate Mrs. Clinton. The governing federal regulation plainly called for it. Let's review.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
In Mrs. Clinton's case, the President's former Secretary of State, and the leading Democratic Party candidate for President, was credibly accused of mishandling classified documents on a private unauthorized email server and the President himself had communicated with her through that server. Even worse, during the investigation, the President improperly interfered by publicly declaring, on two separate occasions, that Mrs. Clinton did not intentionally engage in wrongdoing and did not harm national security. It is easy to imagine the furor that would have ensued if a Republican President had engaged in such conduct. The pressure to appoint a Special Counsel would have been relentless. It is easy to imagine, because that is exactly what happened with respect to President Trump.
So conservatives are understandably (and rightfully) outraged at the double standard, but, as with so much else, President Trump has primarily himself to blame. When you fire the FBI Director who is investigating members of your administration for unlawful collusion with Russia, and immediately brag to the Russian Ambassador that you fired him in order to get the Russia collusion investigation behind you, you are going to get a Special Counsel. It is yet another example of how President Trump, a political genius with a profound ignorance of basic American civics and governing norms, has stumbled into problem after problem. Kudos to Ty Cobb for limiting the damage for now.
None of this is Mueller's fault. He is doing the job we expect a competent Special Counsel to do.
Thursday, November 9, 2017
Fox News is reporting here that a co-founder of Fusion GPS met with Russian lawyer Natalia Veselnitskaya both before and after her June 2016 meeting in Trump Tower with Donald Trump Jr., Jaren Kushner, Paul Manafort, and others. The Trump Tower meeting primarily involved a discussion of the Magnitsky Act, adoption, and/or dirt on Hillary Clinton, depending on whose version you accept. Trump Jr. has admitted that he showed up in order to hear about the dirt. According to Fox News, the first Veselnitskaya-Fusion meeting occurred "hours before" the Trump Tower meeting during a court hearing and the second Veselnitskaya-Fusion meeting occurred at an unspecified later time. The Trump Tower meeting has always smelled like a set-up to me and this report may fuel more speculation along these lines. As I noted here yesterday, I believe that Special Counsel Mueller already has authority to investigate the Steele Dossier as part of his charter. If he isn't investigating the Fusion GPS/Steele Dossier from top to bottom he should be, since, among other things, it was delivered to the FBI as part of an effort to prove that members of the Trump camp improperly coordinated with the Russian government during the 2016 campaign. If the Steele Dossier contained false information and was given to the Bureau as part of a deliberate effort to mislead the Department of Justice, somebody could conceivably be facing obstruction of justice charges. We need to know more about the Veselnitskaya-Fusion connection, but it is certainly interesting to find out that Fusion GPS had some kind of relationship with Veselnitskaya at the same time that the well-connected Russian lawyer was allegedly trying to entice the Trump team with dirt on Ms. Clinton.
Wednesday, November 8, 2017
Senator Lindsey Graham called over the weekend for a new Special Counsel to investigate the Fusion GPS/Steele Dossier affair and the Uranium One transaction. He has a point about Uranium One, but Fusion GPS is squarely within the scope of Special Counsel Bob Mueller's authority as set out in the Order appointing him. That Order explicitly authorizes Mueller to "conduct the investigation confirmed" by Saint Jim Comey in his March 20, 2017 testimony before the House Permanent Select Committee on Intelligence. The Comey-DOJ investigation was already considering the Steele Dossier as part of its work. Mueller is further authorized to investigate links and coordination between the Russian government and individuals associated with Donald Trump's campaign as well as "matters that arose" from said investigation. Clearly, the Steele Dossier was a matter that arose as part of the overall Russian collusion investigation and may have helped to instigate or prolong it. Finally, as part of the federal regulation governing Special Counsels, Mueller is authorized to investigate any effort to obstruct his investigation, which is a continuation of the original Comey-DOJ investigation. Assuming that the Steele Dossier contains deliberate falsehoods, and was given to the FBI by someone with knowledge of those falsehoods as part of a deliberate effort to obstruct the original DOJ investigation (by unfairly pointing the finger at Trump), this would also be within Mueller's bailiwick. Indeed, I assume that Mueller is already looking at the Steele Dossier as part of an obstruction of justice investigation. He would be derelict in his duty if he were not.
Any new Special Counsel for the Steele Dossier would simply be overlapping with Mueller and would need to hire a staff and get up to speed. I see no need for this, unless something about the Steele Dossier presents a conflict of interest for Mueller. Some commentators shave suggested that the FBI paid Steele for some of his work, or thought about doing so. If any of those agents are still on the investigative team, could it create a conflict? Perhaps, but that could be resolved by removing such agents from the investigation or from the Steele Dossier part of the investigation. And keep in mind that any Special Counsel will almost certainly have to rely on FBI Special Agents to conduct at least some of his/her work. If you think a desire to protect the Bureau automatically creates a conflict then even a new Special Counsel would face the potential for conflict.
Wednesday, November 1, 2017
In the course of a classic puff piece on Andrew Weissmann, Robert Mueller's number two man, New York Times reporter Matt Flegenheimer writes that the conviction obtained by Weissmann's Enron Task Force in the Arthur Andersen case was overturned by the U.S. Supreme Court "over a narrow issue involving jury instructions." This is profoundly misleading, as anyone even remotely familiar with the case should know. The issue was not narrow at all. The jury instructions insisted upon by the Enron prosecutors, and approved over defense objections by a pliant judge, allowed Arthur Anderson to be convicted for a crime that did not exist. The instructions achieved this result by effectively eliminating a key intent element in the definition of obstruction of justice. Here is what happened.
In Arthur Andersen, Enron Task Force prosecutors convinced Judge Melinda Harmon to alter her initial jury charge, defining the term "corruptly." Judge Harmon's charge was right out of the form book, based on the approved Fifth Circuit Pattern Criminal Jury Instruction. The Government's definition allowed conviction if the jury found that Andersen knowingly impeded governmental fact-finding in advising Enron's employees to follow Enron's document retention policy. The word "impeded" was nowhere to be found in the Pattern Instruction. The 5th Circuit Pattern's requirement that the defendant must have acted "dishonestly" was deleted by Judge Harmon and the jury was allowed to convict based on impeding alone. Thus, at the government's insistence, knowingly impeding the fact-finding function replaced knowingly and dishonestly subverting or undermining the fact-finding function. This effectively gutted the scienter element in contravention of the standard Pattern definition.
As Chief Justice Rehnquist, speaking for a unanimous Court, wrote: "The jury instructions failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, even if petitioner honestly and sincerely believed its conduct was lawful, the jury could convict."
Moreover, according to Rehnquist, "[t]hese changes [to the jury instructions] were significant. '[D]ishonest[y]' was no longer necessary to a finding of guilt, and it was enough for petitioner to have simply 'impede[d]' the Government’s factfinding ability. 'Impede' has broader connotations than 'subvert' or even 'undermine,' and many of these connotations do not incorporate any 'corrupt[ness]' at all. Under the dictionary definition of 'impede,' anyone who innocently persuades another to withhold information from the Government 'get[s] in the way of the progress of' the Government. With regard to such innocent conduct, the 'corruptly' instructions did no limiting work whatsoever."
Put simply, the trial and conviction of Arthur Andersen destroyed a major public accounting firm, based on a non-existent legal theory pushed by the Enron Task Force. There was nothing narrow or technical about it.
UPDATE: See Ms. Powell's comment below. Licensed To Lie, by Ms. Powell, does go into many of the problems with the Enron Task Force. I reviewed the book for our readers when it came out. Here is that review.
Tuesday, October 31, 2017
Attached is In Re Grand Jury Investigation-Misc. Action 17-2336, the U.S. District Court Opinion holding that the crime fraud exception to the attorney-client privilege allowed Special Counsel Mueller the right to question Paul Manafort's lawyers about his allegedly misleading responses to questions from the U.S. Department of Justice.