Monday, June 18, 2018
If Congressman Trey Gowdy is to be believed, and I see no reason not to believe him, this should be an interesting week in Washington. According to Gowdy, Speaker Paul Ryan read the riot act to the DOJ and FBI on Friday night about the Bureau's stonewalling and foot dragging in the face of longstanding subpoenas issued by the House Judiciary and Intelligence Committees. If the subpoenas are not complied with, Gowdy warned that the full constitutional powers of the House will be employed by week's end. It is clear that Gowdy was not just talking about holding people in contempt. Gowdy's comments are significant, because he has been one of the few House Republicans to consistently support the work of Bob Mueller and to give the benefit of the doubt to the Bureau regarding the origins of the Russian investigation. This has often put him on the outs with the many Trump shills on the GOP side. What apparently pushed Gowdy over the edge was the Horowitz Report's revelation of Peter Strzok's text response to Lisa Page that "we'll stop" Trump from being elected President. Astonishingly, it appears that this text had not been provided to the House prior to the release of the Horowitz Report. I suspect as well that Gowdy was enraged to read in the Report that the Bureau, with the active involvement of Deputy Director McCabe, sat on its knowledge of the Weiner laptop materials, even keeping it from the DOJ prosecutors who had been involved in the Clinton email server investigation (dubbed "Midyear Exam"), until alarmed officials in the SDNY U.S. Attorney's Office tipped off an attorney at Main Justice. It is clear that at the time Strzok was leading and ramping up the Russia investigation, he and a large group of DC FBI officials were suppressing the discovery of 347,000 potentially relevant emails on Weiner's laptop. This is why even the rather tame Horowitz Report "did not have confidence that Strzok's decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias." But make no mistake about it, Strzok did not act alone. As many as 39 FBI officials were likely to have participated in a September 28, 2016 secure video teleconference (SVTC) in which the discovery of 141,000 emails potentially relevant to Midyear Exam was discussed. (McCabe was informed of the 347,000 figure later that evening.) This was an FBI conspiracy of silence. The irony is that the FBI's attempt to suppress the Weiner emails almost certainly aided Trump's electoral victory. If the emails had been processed in a timely fashion, without publicity, their ultimate irrelevance would have been established prior to the election and Comey would not have needed to make the damaging announcement that he was reopening the Midyear investigation. It will be doubly ironic if there were wholly legitimate reasons to open the Russia investigation, but the FBI's misguided efforts to hide its own mistakes ends up tainting and derailing the entire project. Byron York reports here on the growing House GOP suspicion that the FBI is hiding even bigger bombshells.
Monday, June 11, 2018
Here is the Indictment returned late last week in U.S. v. James Wolfe. Wolfe worked for 30 years for the United States Senate Select Committee on Intelligence ("SSCI") handling top secret and other classified information provided by the Executive Branch to Congress. According to the Indictment, Wolfe leaked the identity of "Male-1" to at least two reporters on two separate occasions and then lied about it to FBI Special Agents. Male-1 is none other than Carter Page and it is clear that the leaks were intended to damage Donald Trump. Reporter #2, referenced in the Indictment, is New York Times reporter Ali Watkins who was romantically involved with Wolfe for almost four years. Records of Watkins' email and phone contacts (but apparently not their contents) were subpoenaed from third party providers. Andrew McCarthy of NRO Online has commentary here, while Alex Pappas of Fox News examines some of Ms. Watkins' embarrassing historical tweets concerning the identity of leakers and the propriety of sleeping with sources. The press and certain members of Congress are concerned, as well they should be, about DOJ's capture of journalistic records. But keep in mind that the press is not the only institution with a watchdog role. The SSCI performs that function as well, and does so officially, with respect to intelligence-related oversight, and it is ironic (in a bad way) that its Chief of Security, if the charges are accurate, betrayed SSCI's trust. At this point Wolfe has only been charged, under 18 U.S.C. Section 1001 (the Martha Stewart statute) with lying to the FBI.
Friday, June 8, 2018
Special Counsel Mueller added two counts to Paul J. Manafort Jr.'s Indictment and charged Konstantin Kilimnik with these same two counts (Counts 6 and 7) - (see Third Superseding Indictment here). The new counts and new charges allege Obstruction of Justice (Count 6) and Conspiracy to Obstruct Justice (Count 7). Both of these alleged offenses come from the same statute - 18 U.S.C. 1512, with the conspiracy using subsection (k) of section 1512.
The charges are intriguing in that the special counsel elected not to charge using the general conspiracy statute, section 371, a statute he did use in count 1 against Manafort. The use of the conspiracy provision within a substantive offense is charged in count 2 (conspiracy to launder money), but here there is no charge of money laundering against Manafort.
So basically you have one conspiracy to defraud charge, two conspiracy charges coming from specific offenses but not charged under the specific offense provision of the general conspiracy statute, and one of the conspiracy charges coming from the same statute as the specific offense that is charged.
So some questions to ponder:
- did the special counsel only want one conspiracy charge under 371 and did not want to combine the specific acts?
- did the special counsel not want to confuse the conspiracy to defraud the government charge with specific offense charges?
- did the special counsel want to leave more room to split the charges if one of the two people now charged decides to cooperate?
There are probably some out there who will argue that this is all to get cooperation. And whether that is true is not the question being asked here. Special Counsel Mueller has a professional and skilled team and learning their thoughts on why things were charged in a certain way will hopefully be a talk he gives years from now to some bar association. In the interim, please continue to work as diligently as you have been.
Sunday, May 20, 2018
Congratulations to my old friend and colleague William T. Reid IV (aka Bill Reid) of Reid Collins & Tsai (see Bill's bio here) who recently won a complete acquittal for his client Olga Hernandez in San Antonio federal court. Hernandez, a longtime San Antonio Independent School District ("SAISD") Trustee, had been charged with conspiracy to commit honest services wire fraud and conspiracy to violate 18 U.S.C. 666--the infamous mark of the beast statute. The case was brought by the U.S. Attorney's Office for the Western District of Texas, which happens to be my old district and Bill's as well. The government maintained that Hernandez received an excessive and inappropriate amount of travel and entertainment ("T&E") from several people involved in insurance bid rigging. Its theory was that these bid riggers in essence bought Ms. Hernandez’s vote through the excessive T&E. The government, as is par for the course, offered 5K1.1 deals to the alleged co- conspirators in exchange for their testimony against Olga Hernandez. There was ample proof of the gifts and each of the alleged co-conspirators testified against Hernandez.
The defense theory of the case was that Ms. Hernandez was in fact friends with the conspirators and their wives. She accepted substantial gifts of T&E from the conspirators, but she did so out of friendship. With respect to the rewarding of insurance contracts by SAISD, Hernandez simply voted (along with all other trustees) consistent with staff recommendations by SAISD's Risk Management director. Olga had no idea that bribes were being paid and never got involved in the RFP Process that led to the various insurance contracts in question.
As often happens in honest services cases, the government relied heavily on Olga's purported violation of SAISD's conflict of interest/gift disclosure policy. Although violation of such policies is not in itself a crime, the government loves to merge or bootstrap such violations into the charged offense. The argument goes like this: "If the defendant is really innocent, why didn't she disclose these gifts in accordance with the school district's policy?" But the prosecutors had a problem in Olga's case.
According to Reid, "the biggest mistake the government made was using the wrong, inapplicable gift/conflict policy (that post-dated the conduct in question) to argue that Olga’s failure to disclose the T&E was evidence of her culpability. When, though a great deal of effort, we located the truly applicable policy we were able to prove that none of the gifts required disclosure. The government looked stupid. "
Reid now a high-end, high-stakes civil attorney who splits his time between Austin and Manhattan had not tried a criminal case since he left the U.S. Attorney's Office in 2000. Perhaps the most impressive thing about Bill's victory is that he took and tried the case pro bono, as a favor to his old friend (and mine), legendary San Antonio criminal defense attorney Alan Brown. (See Alan's bio here.) Bill tried the case with his partner Brandon Lewis and with Alan.
He told me that the case, "was by far the most rewarding case of my career. We were successful in defending Olga because of the hard work that our team put in to understand the evidence and hold the government accountable for trying to use the wrong gift disclosure policy. We also, explored the details of the process that led to the insurance contracts in question very closely so that we could demonstrate how minimally involved Olga was and thereby break the connection between gifts and any official act. This case was a stark example of how the government can obtain a wrongful conviction if defense counsel does not do his or her homework. "
Reid's Closing Argument, which focused on confirmation bias, was outstanding. Here are some additional stories on the case from the San Antonio Express-News, Law Dragon, and the Rivard Report.
Wednesday, May 16, 2018
Judge Amy Berman Jackson's Memorandum Opinion and Order gives a green light to Special Counsel Robert S. Mueller III proceeding with the case against Paul J. Manafort, Jr. (see here and here). Her straightforward Order dissects the authority provided to the Special Counsel and rejects Manfort's claims that this was beyond the Special Counsel's appointment and if not, that he overstepped his appointment. Taking the allegations in the Indictment, she demonstrates how the Supereding Indictment clearly falls within the realm allowed of the Special Counsel. One interesting side note in this Order is the discussion of the role of internal agency regulations. She states, "internal agency regulations do not create rights that an individual under investigation may enforce in court." Judge Jackson, while allowing this case to proceed, does include an important point that should be noted when reviewing documents of anyone accused of crimes. She states that, "[i]t bears emphasizing at this stage that Manafort is presumed to be innocent of these charges, and it will be the prosecution's burden to prove him guilty beyond a reasonable doubt." But the bottom line is that Special Counsel Mueller may continue, as he should.
Saturday, May 12, 2018
Here is Jonathan Turley's latest column for The Hill discussing the emerging "legal strategy" of Team Trump. It is clear that the hiring of Rudy Giuliani and Emmet Flood was part of a concerted effort to smear Team Mueller while preparing the public for Trump's invocation of Executive Privilege and/or his Fifth Amendment Privilege against self-incrimination. The new strategy buys time and kills two birds with one stone--both avoiding a Trump interview and allowing a sustained and withering attack to weaken Mueller. Like so much of the Trump approach, it uses the Clinton Playbook, the one employed by President Clinton at the urging of Dick Morris. Deny, delay, attack, weaken. Of course, Trump and his surrogates have been going after Mueller for awhile, but drafting Giuliani, a presumed legal heavyweight, was supposed to add stature, heft, and gravitas to the project. The problem was in the execution. It turns out Rudy Giuliani should change his name to Rusty Giuliani. He is rusty on the facts of his client's case, rusty on the law, and rusty on the ethical duties of an attorney. Virtually every one of his appearances has been marked by inaccuracies (factual and legal) and buffoonery. Rudy seems to be running on fumes and celebrity status. Here are just a few samples of his deft touch:
Mueller, the FBI, and the DOJ respect him, even though they are running a "garbage investigation" using "storm trooper tactics." (Do you think they still respect you?)
Presidential immunity from indictments and subpoenas was written right into the Constitution by the Framers. (This must be the long lost Alexander Hamilton Invisible Ink draft.)
There is definitely no campaign finance violation, because Trump reimbursed Cohen from personal funds. (The purpose of the payment, among other factors, must also be examined.)
Clinton was only questioned by Team Starr for 2.5 hours. (It was 4 hours. Not a huge point perhaps, but Rudy still had it wrong a week later. Does he have a researcher?)
Judge Ellis criticized the search of Michael Cohen's office. (Ellis did not mention the search at all.)
The President knew about the payments to Stormy Daniels. The President didn't know. I was talking about myself. I'm still learning the facts. Maybe I shouldn't be discussing privileged conversations I had with my client.
I make payments for my clients all the time without them knowing about it. (This presumably caused Greenberg Traurig to sever its relationship with Giuliani at the end of the week, with the law firm publicly denying that it engages in such conduct.)
The most disheartening thing about Rudy's performance has been his apparent refusal to sit down, learn the case, and refresh himself on the law.
Whatever the Grand Plan was supposed to be in wheeling Giuliani out, there is no Grand Plan involved in his performance to date.
Friday, May 11, 2018
Perhaps one of the most confused areas of the law is the Hobbs Act/Bribery area. Cases throughout the years have defined the need for a quid pro quo (McCormick), and noted how a passive acceptance can satisfy that prong of the statute (Evans). But when do you have a quid pro quo, is something that can often be a difficult factual question. Equally confusing is determining what constitutes an "official act." The Supreme Court in McDonnell held that "setting up a meeting, hosting an event, or making a phone call 'standing alone' would not be sufficient . . ."
In the first trial Sheldon Silver, former Speaker of the NY State Assembly, along with Dean Skelos, a former majority leader in the State Senate, both were convicted. But the convictions were quickly overturned because they failed to comply with the McDonnell pre-requisites. And now, according to the NYTimes, Silver was convicted on retrial. (Benjamin Weiser, Sheldon Silver Is Convicted in 2nd Corruption Trial).
For those who doubted the government's ability to prosecute public corruption cases post-McDonnell, this verdict should be very welcomed. For those who are seeking clearer lines between legal moneys paid and illegality, an appeal in this case may provide more answers. I keep wondering if the answer will all come down to "green."
Sunday, May 6, 2018
The leak and publication of 49 questions for President Trump, orally given to President Trump's lawyers by Robert Mueller's team and then transcribed by Jay Sekulow, has unquestionably damaged Team Mueller's reputation. Why? Many of the questions are incredibly broad, incredibly stupid, and/or incredibly intrusive forays into core functions of the Executive Branch. But whose questions were they? The original New York Times story indicated that the questions were revealed orally in a meeting between Team Trump and Team Muller and then transcribed by Team Trump. Next we were informed by other media sources that Sekulow was the scrivener and that the 49 questions may be more in the nature of a Team Trump moot court briefing book, based upon a smaller set of inquires/topics broached by Team Mueller. For example, the AP reported that a "person familiar with the matter, who insisted on anonymity to discuss ongoing negotiations, said Trump’s lawyers extrapolated a list of expected questions based on conversations with Mueller’s team. The questions contained in a document posted online by the Times on Monday night reflected questions that defense lawyers anticipated rather than verbatim queries that Mueller’s team provided, the person said." The subsequent clarifications have been all but forgotten on the Internet and cable news shows and it is still widely assumed that the 49 questions are a verbatim rendition of those directly relayed by Team Mueller to Team Trump.
But the difference between the two versions is significant. If these are the literal questions from Mueller's team, they reflect (in addition to the flaws noted above) a dangerously elastic view of criminal obstruction of justice. If they are mere briefing book questions, intended to prepare the President for every possible question Team Mueller may ask, they should be of much less concern to Team Trump and to observers attempting to fairly critique the Mueller operation. Finally, if these are briefing book questions that were deliberately leaked and packaged to the media by Team Trump as if they were Team Mueller's literal proposed interview questions for President Trump, this says something disturbing about the Trump legal operation.
Saturday, May 5, 2018
Attached is the transcript of yesterday's hearing in the Eastern District of Virginia on Paul Manafort's Motion to Dismiss the Indictment against him: USA v PAUL J MANAFORT JR - 5-4-2018 Hearing on Motion to Dismiss. The hearing was before Judge T.S. Ellis III and was characterized by Judge Ellis's typically blunt and withering wit.
Here are some takeaways:
- Despite the headline worthy comments of Judge Ellis, the Court will reject Manafort's argument that the Indictment should be dismissed because the Order appointing Mueller is broader than the Special Counsel regulation allows. DAG Rod Rosenstein's August 2 2017 Letter Re The Scope of Investigation and Definition of Authority makes clear that Mueller had the authority from the first day of his appointment, on May 17, 2017, to investigate Manafort for colluding with Russian officials during the 2016 election in violation of U.S. laws and for crimes arising out of payments Manafort received from former Ukrainian President Victor Yanukovych. Judge Ellis indicated that he considered this to be the government's strongest argument. Unless Judge Ellis believes that Rosenstein's August 2 letter was an after-the-fact sham, the letter puts an end to Manafort's central claim. Judge Ellis may also find, although this is not as certain, that the Special Counsel regulation creates no personal rights for Manafort that are enforceable in a judicial proceeding. In other words, this is a non-justiciable intra-branch matter within the Department of Justice.
- It was striking to me that Michael Dreeben, who spoke for the government, did not lead with the argument that Rosenstein's August 2 letter resolves the question of whether Mueller is acting within his authority. Why not? Is it because, Mueller does not want a detailed factual inquiry on this point? During the motions hearing, both sides referenced Rosenstein's December 13, 2017 House Judiciary Committee testimony. Here are relevant Excerpts from that testimony, in which Rosenstein stated under oath that "the specific matters are not specified in the [May 17] order. So I discussed that with Director Mueller when he started, and we've had ongoing discussion about what is exactly within the scope of his investigation." (Rosenstein could not say with 100% certainty what parts of Mueller's investigation were an expansion and what parts were a clarification of Mueller's original mandate. He promised to get back to the House Judiciary Committee on this point.] Dreeben told Judge Ellis that the "specific factual [August 2] statement, as [DAG] Rosenstein described in his Congressional testimony, was conveyed to the special counsel upon his appointment in ongoing discussions that defined the parameters of the investigation that he wanted the special counsel to conduct." So which is it? Was the scope of the investigation crystal clear on March 20, 2017 or on May 17, 2017, or did it have to be hammered out in ongoing discussions. Rod Rosenstein's May 17 2017 Order Appointing Robert S. Mueller III clearly states that Mueller has the authority to conduct the investigation confirmed by former FBI Director Comey in his March 20, 2017 Congressional testimony. Manafort's attorney, Kevin Downing, wanted to see any memos written by Rosenstein leading up to Mueller's appointment to help determine the scope of Mueller's authority. When Judge Ellis asked Downing how he knew such memos existed, Downing, who worked under Rosenstein for five years, replied: "Mr. Rosenstein is a stickler for memos being written, for there to be a written record for the actions of the Department of Justice." Downing argued that if Rosenstein exceeded his authority in appointing Mueller, Mueller "does not have the authority of a U.S. Attorney." In that event, according to Downing, any indictment procured from the grand jury by Mueller's operation would presumably be null and void.
- Fox News's assertions that Judge Ellis accused the Mueller team of "lying" and using "unfettered power" to target Trump are not supported by the record. Judge Ellis did express extreme skepticism regarding one of the government's arguments and made the undoubtedly true statement that the government was using Manafort to go after Trump.
- The non-justiciable, intra-branch dispute argument by Mueller's people could end up biting them in the butt in another context. Expect President Trump to use a similar argument if he is subpoenaed, asserts Executive Privilege, and is challenged on this point by Mueller. Trump will argue that Mueller, as an inferior officer within the President's DOJ, lacks regulatory authority to contest Executive Privilege, and that the entire matter is a non-justiciable, intra-branch dispute. Contrary to general assumptions, U.S. v. Nixon does not settle this issue. The Supreme Court in Nixon rejected President Nixon's justiciability argument, but did so on the basis that Special Prosecutor Leon Jaworski had the explicit authority to contest assertions of Executive Privilege pursuant to the terms of the federal regulation that governed his appointment. As far as I can tell, Special Counsel Mueller has not been given explicit authority to contest issues of Executive Privilege.
May 5, 2018 in Corruption, Current Affairs, Defense Counsel, Fraud, Government Reports, Grand Jury, Investigations, Judicial Opinions, News, Obstruction, Perjury, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)
Tuesday, April 24, 2018
The redacted version of the Comey Memos have now been released and do not on their face come close to establishing criminal obstruction of justice by Donald Trump. What they do show is a new President with no concept of how to appropriately interact with his condescending, schoolmarmish FBI Director.
There are conceivably four potential endeavors to obstruct justice referenced in the memos.
1. According to Comey's notes, the President asks Comey if he can see his way to "letting this go, to letting Flynn go," because, "Flynn is a good guy and has been through a lot." It was an inappropriate request, but it was not an order. Had it been an order, it would have been even more inappropriate, but still not a crime. The President has the constitutional authority to order an investigation closed.
2. The President also asks Comey to "lift the cloud" hanging over him by publicly confirming that the President is not under investigation. Comey had already volunteered to Trump at least twice that Trump was not under investigation. Comey declined the President's request to publicly "lift the cloud" and lectured him on the appropriate channels through which to make such a request. There was nothing wrong with the President's request and there would have been nothing wrong with Comey acceding to it.
3. After asking Comey to "lift the cloud" for the umpteenth time, Trump tells Comey, "I have been very loyal to you, very loyal, we had that thing you know." Comey believes this was a reference by Trump to their January 27, 2017 conversation in which Comey expressed his preference to remain on the job as FBI Director and Trump asked for and received a pledge of "honest loyalty" from Comey. In other words, Comey believes that Trump wanted Comey to "lift the cloud" hanging over Trump in return for Comey keeping his job. Assuming that Trump actually said this, it was not a crime. Trump has the constitutional authority to order an investigation closed. He has the authority to fire any non-civil service appointee for refusing to carry out such an order. Trump could have told Comey, "lift the cloud or I will fire you." Ergo, he can certainly suggest that Comey owed it to him to "lift the cloud."
4. Trump repeatedly told Comey that the Russian hooker story was false, because Trump did not stay overnight in Russia during the 2013 Miss Universe Pageant. Apparently Trump did stay overnight. Is this a false statement to a law enforcement officer by someone endeavoring to obstruct justice? The Government would have to prove that Trump actually made this statement knowing it was false and knowing that he was under criminal investigation. But Trump had been already been told by Comey, multiple times, that he was not under investigation. Thus, even assuming that Trump made the statement in question and intentionally lied (as opposed to misremembering), a prosecutor would have to show that Trump was endeavoring to obstruct a criminal investigation, despite having been told that there was no investigation.
If Comey's notes are accurate, the President was a boorish novice with no comprehension of long-accepted norms regarding acceptable interaction between the President and his FBI Director. That doesn't make Trump a criminal.
Wednesday, April 4, 2018
Monday night, in the U.S. District Court for the District of Columbia, Special Counsel Robert Mueller filed his Response [Government's Response in Opposition to Motion to Dismiss] to Paul Manafort's Motion to Dismiss the Superseding Indictment. Manafort's Motion to Dismiss is bottomed on the alleged invalidity of Acting AG Rod Rosenstein's May 7 2017 Order Appointing Robert S. Mueller III as Special Counsel and defining Mueller's jurisdiction. As part of his Response, Mueller referenced and filed Attachment C, a redacted version of Rosenstein's August 2 2017 Letter Re The Scope of Investigation and Definition of Authority.
Before Monday night there was no public knowledge of this August 2 letter, which sets out in detail, among other things, the specific matters already under investigation before Mueller came on board. According to the August 2 letter, the May 7 Order had been "worded categorically in order to permit its public release without confirming specific investigations involving specific individuals." The private August 2 letter, in contrast, "provides a more specific description of your authority." Recall that the May 7 Appointment Order authorized Mueller to "conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including...(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R § 600.4(a)." The August 2 letter unequivocally states that "[t]he following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order:
• Allegations that Paul Manafort:
º Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government's efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
º Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych;
In other words, FBI Director Comey was already investigating Manafort for possible criminal collusion with the Russians and for payments Manafort received from Yanukovych, before Mueller came into the picture. By including the Yanukovich payments in his probe of Trump, Comey displayed an aggressiveness sadly absent from the investigation of Ms. Clinton's email server.
What is odd is that Rosenstein's August 2 letter was sent almost three months after Mueller began his inquiry. You would think that such a specific private memo detailing the scope of Mueller's investigative authority would have been issued contemporaneously with the May 7 Order. That it wasn't suggests there were disagreements in defining the outer boundaries of Mueller's charter or that Mueller or Rosenstein began to perceive problems with the wording of the May 7 Order and foresaw the possibility of just the sort of Motion to Dismiss ultimately filed by Manafort.
Rachel Stockman at Law and Crime notes here that the more specific delineation of authority laid out in the August 2 letter came one week after the raid on Manafort's home. Mueller may have wanted written reassurance that the search and seizure were within his authority ab initio, or, as we say in Texas, from the get-go.
Thursday, March 22, 2018
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.
Sunday, February 18, 2018
The speaking indictments of this past week provide a clear trail to Russian individuals and entities allegedly interfering in the 2016 Presidential election. The choice of charges, which include conspiracy to defraud, are no surprise. An indictment under section 371 can take one of two avenues: conspiracy to commit a specific offense or conspiracy to defraud the government. This is a classic case for the defraud statute to be used, as it is the U.S. election process that is alleged to be compromised here. Several questions to consider here:
- Why has it taken so long for this indictment? Answer - it hasn't. Actually Mueller's team is moving faster than we often see in white collar cases where the investigation can take many years. In less than a year, the Special Counsel's Office has accumulated several cases (see here). Computer related cases can take even longer as tracking items on the web are not easy, especially when a perpetrator tries to mask its origin.
- Can the U.S. prosecute extraterritorial conduct? Answer - Yes and No. You will notice that the alleged conduct in this indictment either took place inside the U.S. or had an "affect" here in the U.S. Under principles of "objective territoriality," the U.S. has, in many instances, prosecuted conduct occurring outside the U.S. that has an effect in this country. As one who has been somewhat critical of objective territoriality, I have been a strong advocate for using what I term "defensive territoriality." Interfering in a U.S. election would most definitely fit the bill of conduct that the U.S. needs to defend against. Over the past few years, the Supreme Court has wrestled with the issue of the application of different U.S. statutes for conduct occurring outside this country. A three-fold response here: 1) this is not extraterritorial conduct, 2) even if it is extraterritorial, there are enough acts in this country to allow for jurisdiction here, and 3) the U.S. needs to defend its election process.
- Can the government bring the charged Russians to the U.S.? Answer - It may be difficult here. Do we think that the Russian government will be turning over these individuals for a U.S. prosecution? Without a U.S.-Russian extradition treaty the chances of this happening are diminished. Perhaps one of them will travel to a country where the U.S. does have an extradition treaty (see here). Other methods exist, such as luring (see here), but the international community frowns on its use. Prosecuting these individuals/entities are less important than letting the public know that our election process has allegedly been the subject of attacks from Russia. Mueller's team definitely accomplishes this here.
The more interesting Information and Statement of the Offense relates to Richard Pinedo, a cooperating witness who has a plea agreement for a violation of section 1028. Although the Information has section 1028 on it, it also is termed identity fraud and speaks to an alleged violation of the wire fraud statute found in section 1343. The Information only speaks about a Count One. Whether there is another document with other counts is unknown. We saw this previously with the Informations of Michael Flynn and George Papadopoulos, so it is doubtful that the use of "1" without a "2" is significant. The special counsel's website has "et al" after Pinedo's name, but no other names listed. Other Indictments and Informations on the Special Counsel's website do not have "et al." (See Flynn, Manafort, Gates, and Papadopoulos). The Pinedo Information says it was filed on February 7, 2018, as "sealed." The header on the understanding for the plea is also marked sealed, but dated February 12, 2018. All of this may be nothing, but it is interesting to note. Finally, kudos to the special counsel's team for writing a plea that does not include offensive language such as a waiver of any possible claims of ineffective assistance of counsel. These documents go a step further to allow for such claims to be brought by the accused even though they are pleading guilty. Ethically, this is the way a plea should be written, but some past documents in some US Attorneys' Offices have not always done this. The Florida Ethics Board went so far as to issue an ethics opinion prohibiting waivers of ineffective assistance of counsel (see here). So Mueller's team taking the high road on the wording of its pleas, is nice to see.
What happens next? The Mueller team may know, but we don't. So stay tuned.
Thursday, February 1, 2018
Syracuse Trac just reported the number of environmental criminal prosecutions is continuing to drop. (see here). Based upon first quarter statistics, the "annual total [projected] prosecutions will be 220 for this fiscal year." This would be down from 338 for FY 2017 and 393 for FY 2016. In 2007 the number was above 900 prosecutions for the year.
(esp) (w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports).
Monday, January 29, 2018