Saturday, November 29, 2014
Michael Edmund Shaheen Jr. died seven years ago today. He was the original head of DOJ's Office of Professional Responsibility ("OPR") and served in that capacity under eight Attorneys General. In March 2014, the National Archives preserved his records as a separate collection, because "future OPR counsels were not granted as much latitude as was Mr. Shaheen," making his papers "a unique set." See Shaheen National Archives Records Request.
Reputations in Washington are made of many things, including money, cunning, connections, power, and privilege. Mike's reputation was built on competence, guts, and a towering integrity. In an era before the phrase was fashionable, Mike quietly spoke truth to power.
Reputations can also be fleeting. Mike touched many lives and because of that I believe that his memory will linger and burnish through the years. His various obituaries, here, here, and here, detail the myriad officials he was not afraid to piss off and on. But they do not do full justice to the man.
Above all, Mike Shaheen was a marevelous raconteur. To spend a leisurely lunch in his presence, listening to his stories, relayed in that lilting Como, Mississippi accent, was a rare pleasure. He was Lebanese on his father's side, and it always amused me to see this man with almost Asian eyes tell front porch stories in a mint julep voice. That the stories were true made it all the more memorable.
I met Mike by chance, in his post-OPR incarnation, through my work for Ken Starr. We ended up going to lunch one day and struck up a friendship. It was a Washington friendship, for the most part confined to lunches and drinks, with one notable exception. We liked the same people and loathed the same people and there was nothing in it--nothing material to gain-- for either one of us. We just enjoyed talking to each other and trading Washington stories.
He has been gone seven years, taken from us too soon. But I will always treasure the memory of his decency and courage. So I raise my glass to Mike. I shall not look upon his like again.
Wednesday, November 19, 2014
Special Prosecutor Mike McCrum has survived an attempt to quash the Rick Perry indictment based on alleged procedural irregularities connected to McCrum's appointment. Courthouse News has the story here. The Order Relating to Authority of Attorney Pro Tem, written by Assigned Judge Bert Richardson, appears to be carefully and thoughtfully crafted. We can expect a similar approach to the more substantive constitutional issues awaiting Judge Richardson's pen.
Monday, November 17, 2014
The American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes has released its final report. The report contains significant proposed amendments to the existing federal sentencing guidelines for economic offenses. As to the general structure, the proposed guidelines fit on a single page and contain only three sections for specific offense characteristics, compared with the nineteen sections currently contained in USSG section 2B1.1. The three sections in the proposal are “loss,” “culpability,” and “victim impact.”
The loss section contains only six levels of loss, from more than $20,000 to more than $50,000,000. As currently drafted, a loss of more than $50,000,000 would result in a 14 point increase in the defendant’s offense level. This is a significant amendment from USSG section 2B1.1, which contain 16 levels of loss, the most significant of which increases a defendant’s base offense level by 30 points. It is important to note, however, that the Task Force makes clear in its commentary that it is most focused on the proposed structure of the economic crimes guidelines. The report states, “First, we feel more strongly about the structure of the proposal than we do the specific offense levels we have assigned. We assigned offense levels in the draft because we think it is helpful in understanding the structure, but the levels have been placed in brackets to indicate their tentative nature.”
The remaining two specific offense characteristics – Culpability and Victim Impact – are presented in a manner that allows for consideration of various factors before determining where a defendant falls on a range from low to high. For example, culpability is either “Lowest Culpability,” “Low Culpability,” “Moderate Culpability,” “High Culpability,” or “Highest Culpability.” According to the commentary, a defendant’s culpability level will depend on an “array of factors,” including the correlation between loss and gain. In many ways, this portion of the proposal looks similar to the recently adopted Sentencing Council for England and Wales “Fraud, Bribery and Money Laundering Offences – Definitive Guidelines.” As described in my previous post, these guidelines for England and Wales utilized a “High Culpability,” “Medium Culpability,” and “Low Culpability” model.
Finally, the proposal contains an interesting offense cap for non-serious first time offenders. The proposed guidelines state, “If the defendant has zero criminal history points under Chapter 4 and the offense was not ‘otherwise serious’ within the meaning of 28 U.S.C. section 994(j), the offense level shall be no greater than 10 and a sentence other than imprisonment is generally appropriate.” According to the commentary, in making such a decision, the court should consider (1) the offense as a whole, and (2) the defendant’s individual contribution to the offense.
As the U.S. Sentencing Commission has stated, addressing federal sentences for economic crimes is one of the Commission’s policy priorities for the 2014-2015 guidelines amendment cycle. It will be interesting to watch the Commission’s response to the ABA CJS Task Force proposal.