Monday, December 31, 2018
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 2018:
The Collar for Plumber Unemployment – The Mueller Investigation, which has sprung no leaks.
The Collar for the Most Likely to Inadvertently Pull the Execution Switch on His Client – Rudy Giuliani.
The Collar for the Most Likely to Cause President Trump to have a Heart Attack – Tied between Michael Cohen and Paul Manafort.
The Collar for the Most Likely Agency to be Shut Down – No not the EPA or Department of Education, rather the IRS so that President Trump’s tax returns can’t be revealed.
The Collar for the Most Likely to Get a Second Tattoo on his back – Roger Stone (underneath his Nixon tattoo?).
The Collar for Most Likely to Try Not to Follow in his Father’s Footsteps – Jared Kushner.
The Collar for the Best Insurance Protection if in Prison – To Donald Trump, Jared Kushner, and others for passing a criminal justice reform act that will assist some serving time.
The Collar for Taking a Gamble – To all those pushing ahead with cases with dual sovereignty issues, prior to the Supreme Court’s ruling.
The Collar for the Longest Special Counsel Investigation – Clinton/Whitewater (see https://www.businessinsider.com/how-long-special-prosecutor-mueller-trump-2017-6)
The Collar for the Least Likely to Look Someone in the Eye and Say “You’re Fired” – Donald Trump.
The Collar for Most Likely to Win the Tom Petty “I Won’t Back Down Award” – Jeff Sessions for not firing Mueller.
The Collar for Least Likely to Teach Professional Responsibility at a Law School – Acting US Attorney Matthew Whitaker.
The Collar for the Joe Friday Award for Catching the Most Fish in his Net – Special Counsel Robert Mueller.
The Collar for the Least Likely to Discuss Politics in Bed – Kellyann Conway and George Conway.
The Collar for the Timex Watch “Takes a Licking and Keeps on Ticking” – Jeff Sessions.
The Collar for the Next James Patterson Mystery – The undisclosed company with a subpoena problem.
The Collar for the Least Likely to Play Poker with Mueller – William Barr and Matt Whitaker.
The Collar for Best “Stand Your Ground Defense” – Second Year in a Row, to Rod Rosenstein who continues to stand firmly on Mueller’s appointment.
The Collar for Clotheslines –Second Year in a Row, to Donald Trump for hanging so many of his subordinates out to dry.
The Collar for Directional Impairment – Second Year in a Row, to Donald Trump for demonstrating that loyalty is a one-way street.
The Collar for Best Game of Hide and Seek – To Donald Trump for continuing to refuse to disclose his tax returns (third 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.
Friday, December 7, 2018
The Belmont Criminal Law Journal at Belmont University College of Law in Nashville, TN, will hold a symposium in early 2019 regarding “White Collar Crime in the 21st Century: When Corporations and Individuals Collide.” This year’s symposium will consider, among other things, the tensions that can develop between the interests of a corporation and the interests of an individual during a white collar criminal investigation and how these conflicts impact the representation of each party.
The symposium will occur at Belmont University College of Law on Friday, February 1, 2019, and include three academic addresses and two practitioner panels. Professor Ellen S. Podgor, the Gary R. Trombley Family White-Collar Crime Research Professor of Law at Stetson University College of Law and editor of this blog, will deliver the keynote academic address at this year’s event. The Belmont Criminal Law Journal is seeking two additional academics to give 30-minute presentations on topics related to this year’s theme. Belmont University College of Law will cover travel and lodging expenses. Further, all academic addresses presented during the symposium will be transcribed for publication in the Belmont Criminal Law Journal, which we anticipate being published in May of 2019. Please note that the Belmont Criminal Law Journal has a policy of allowing all presenters to make edits to the transcript prior to publication to bring the text in-line with what the presenter intended to say.
Our goal is to once again bring together academics, legal practitioners, government officials, and non-profit leaders to explore a cutting-edge issue in the field of criminal law. I hope you will consider joining us in Nashville for this interesting discussion. Those interested in submitting a proposed topic to present at the symposium should submit a draft title and brief one page summary of the proposed topic to Lexie Ward (Editor-in-Chief of the Criminal Law Journal) at email@example.com by Monday, December 17, 2018. Decisions regarding the submitted topics will be made by Friday, December 28, 2018.
Thursday, December 6, 2018
The latest filing by Special Prosecutor Mueller is very telling as to the status of the investigation. Michael Flynn pleaded guilty on Dec. 1, 2017, to making false statements to FBI agents, in violation of 18 U.S.C. 1001. In anticipation of sentencing on December 18th, the government filed its Memorandum in Aid of Sentencing, along with a heavily redacted Addendum. Some thoughts:
1. The fact that Flynn plead to a Section 1001 violation hurts Mueller's future cases if they decide to use him to testify against others in those cases. Pleading to a section 1001 charge is admitting that the individual gave a false, material statement, knowingly and willfully, within the executive, legislative, or judicial branch of the government. The opening cross-examination questions for such a witness might be - 1) You are a convicted felon? 2) And you were convicted for a crime of lying? 3) And you lied to the FBI?
2. But three things are noteworthy here - 1) the charge is false statements and not perjury - if it had been perjury then the cross-examination would go on about lying under oath and be dragged out for many more questions than the three previous ones; 2) prosecutors do not get to choose their witnesses and if they can provide an explanation for the lie (e.g. pressure or duress) it stings less; and 3) if you can back up the individual's testimony with other evidence then the false statement charge is less problematic. It seems likely here that there are documents, emails, or other evidence to support whatever Flynn may be saying.
3. Using a "shortcut offense" like section 1001 is typically not good since it takes away from the actual wrongdoing and society never sees the underlying conduct. Deterrence is best achieved when the actual criminality is disclosed and punished. (see White Collar Shortcuts here). But that is not the case here. Here Flynn is likely a source providing information for other investigations that can have charges beyond shortcut offenses. For one, Mueller did not use a shortcut in his charging of cybercrimes against Russians (see here). So using false statements here is again justified.
4. 19 interviews - WOW. That is significant. One doesn't meet 19 times and get nothing.
5. This is an ongoing investigation. Investigations in white collar cases take time. This investigation is certainly not finished -- one need only look at the number of redactions in the Addendum to reach this conclusion.
6. That the substantial assistance provided extends beyond the special counsel. Part A says "XXX Criminal Investigation" and Part B says "The Special Counsel's Office's Investigation" and then appears to have three separate subsections - with one subsection completely redacted. So one could conclude that the special counsel has 3 investigations that Flynn has been useful for, and that someone else perhaps is using him.
7. Mueller has yet again maintained secrecy, and there have been no leaks. This is impressive. It is also impressive that Mueller is speaking only through court papers and not providing any additional information.
8. It may be frustrating to many that more information has not been released, but in time it is likely we will know more. We need to be patient and trust someone who is clearly upholding the highest of ethical values.