Friday, June 26, 2020
Co-sponsored with the ABA's Global Anti-Corruption Committee, Perkins Coie's Markus Funk, Chelsea Curfman, and Kevin Feldis have released a podcast series (six so far) as follows:
Introducing the White Collar Briefly MiniPod
They include candid conversations with a variety of special guests, including:
· American “book of the year” author, editor, screenplay writer and publisher Dave Eggers- see here
· Joel Esquenazi (defendant in the high-profile U.S. v. Esquenazi FCPA case)- see here
· Molson Coors’ Global Ethics & Compliance Chief Caroline McMichen see here
· Chicago-based U.S. District Judge Virginia Kendall - see here
· University of Colorado COO (and former GC) Patrick O’Rourke - see here
· Avanos Medical Deputy GC Ross Mansbach - see here
Thursday, June 25, 2020
There appears to be a growing economic disparity between those benefitting from compassionate release and those who are not being heard. Paul Manafort and others are being sent home due to COVID19 concerns. The latest is former judge Michael Conahan, who was allegedly involved in a scheme involving kickbacks from juvenile facilities. See Michael R. Sisak & Michael Balsamo, AP, Kids-for-cash judge released from prison over virus concerns
Many of the individuals receiving this relief should in fact be released. Our prisons could certainly use some social distancing, not to mention the fact that we are country with exhorbitant prison populations. But how about some parity in this relief?
Wednesday, June 24, 2020
This is one of the saddest hearings I have heard in a long time - "special treatment" clearly entered into decisions at the Department of Justice. We heard a member of congress tapping on the table to interfere with our ability to hear what the speaker was saying. But despite this conduct by a member of the House, we eventually did get to hear from civil servant witnesses - who risked their careers to come forward with important information concerning improper influence being used in the DOJ.
Two AUSAs testified to influence beyond the merits being considered in matters in the DOJ. And it is not limited to just one area - testimony is that it happened with the Stone case, and happened in Antitrust. Politics did enter into DOJ years back. For example, there was an investigation in June 2008 of allegations of politicized hiring in the Department of Justice Honors Program and Summer Law Intern Program here. But one would have hoped that lessons would have been learned from this past conduct. It is more disturbing to hear that Presidential tweets are factoring into conduct at the DOJ.
Thank you John Elias and Aaron Zelinsky for coming forward - "the truth still matters."
The opinion of the DC Circuit Court can be found here - Download Flynn opinion
Some thoughts -
1. Bottom line is that the decision in a 2-1 vote that the Flynn case should be dismissed.
2. Rule 48 plays a crucial role in the decision - " Whatever the precise scope of Rule 48's 'leave of court' requirement, this is plainly not the rare case where further judicial inquiry is warranted."
3. The court rejects Flynn's request to seek reassignment of the district judge.
4. The court relies heavily on the Fokker decision.
5. Much of the decision (7 pages) is spent on responding to the dissent.
6. The court states - "This is not a case about whether 'a district judge may even hold a hearing on a Rule 48(a) motion. . . . Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government's motives."
The dissent -
1. This is first time granting a mandamus without first giving the lower court a chance to rule. - "Flynn fails to carry his burden, and especially given that the District Court has yet to rule on the motion to dismiss, the writ should not issue to compel the District Court to grant the motion."
2. The court is using dicta from the Fokker case, which creates a split with other Court of Appeals.
3. "Both this Court and the Supreme Court regularly permit the participation of amici in the criminal context, however, and there is no readily apparent reason why, in appropriate circumstances, a district court might not exercise its inherent power to do the same - especially in the absence of any authority expressly prohibiting it."
So what happens now?
Will Judge Sullivan ask for an en banc review of this decision? Will he conduct an inquiry as he did in the Ted Stevens case? And are there other options here? Stay tuned.
It started with a Motion to Dismiss the Flynn case here. Sol Wisenberg posted here some of the filings in the Circuit Court, and here some of the filings in the District Court. Here are some additional amici briefs that raise some interesting points. And the court's opinion is here - Download Flynn opinion.
Amicus Brief for the States of Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah and West Virginia as Amici Supporting the Petitioner - Download Amicus - states for petitioner
Amicus Brief of Lawyers Defending American Democracy, Inc. - In Opposition to the Petition for a Writ of Mandamus - Download Amicus - ldad amended (1)
Corrected Brief of Watergate Prosecutors as Amici Curiae in Support of Respondent - Download Amicus - watergate prosecutors corrected
Corrected Brief of Amicus Curiae John M. Reeves in Support of Granting Mandamus in Favor of Petitioner Michael T. Flynn and Respondent the United States - Download Amicus - john reeves for petitioner corrected
Harper Neidig, Appeals court orders judge to dismiss Flynn charges, The Hill.
Commentary to follow.
Tuesday, June 23, 2020
Karoun Demirjian, Matt Zapotosky & Rachael Bade, Prosecutor to tell Congress of pressure from ‘highest levels’ of Justice Dept. to cut Roger Stone ‘a break’, Wash Post here (check out the opening statement of Aaron Zelinsky).
Friday, June 19, 2020
Attached are the separate Responses of Michael Flynn and the Department of Justice to former federal judge John Gleeson's Amicus Brief in U.S. v. Flynn. A copy of Gleeson's Brief is also attached for ease of reference. Keep in mind that all of these papers were filed in Judge Emmet Sullivan's court, rather in the DC Court of Appeals which is hearing General Flynn's Petition for Writ of Mandamus against Judge Sullivan. This is because it was Judge Sullivan who decided to appoint an amicus and set a lengthy briefing schedule instead of granting the Motion to Dismiss outright or simply holding a hearing in the first place.
The DOJ Response, in addition to demolishing Gleeson's legal arguments, puts more stress than before on the Interests of Justice rationale for moving to dismiss the case against General Flynn. I'll be commenting on that in the next few days. DOJ also goes out of its way to oppose the Flynn camp's position that there was prosecutorial misconduct connected to the prosecution. DOJ rejects this out of hand, both with respect to all of the older exculpatory materials and the information discovered, declassified, and turned over by U.S. Attorney Jeffrey Jensen within the last two months. DOJ in fact turned over a significant amount of exculpatory material prior to General Flynn's guilty plea. Of course, we still have the mystery of the missing original draft 302, which has not been explained to my satisfaction by the Fan Belt Inspectors.
As noted, the Jensen documents were not turned over until very recently, but there is no indication that any prosecutor knew, much less received, these items. That's important, because these items unmistakably lend further support to the view that Flynn's January 24 statements to FBI Special Agents were not material to the FBI's Crossfire Hurricane investigation. This makes the items Brady in my view. But DOJ still has its institutional interests to protect. And it has historically been in the forefront of seeking to limit the reach of Brady.
More to come on all of this.
Sunday, June 14, 2020
One of the ironies of high-profile, criminal investigations of public officials, particularly Special and Independent Counsel investigations, is the outrage expressed by certain segments of the populace upon discovering the existence of very common law enforcement techniques. Hence the outrage among President Clinton's supporters when they learned that Linda Tripp secretly tape-recorded her "best friend" Monica Lewinsky at the behest of Ken Starr's prosecutors. Hence the outrage, among Trump's supporters, when they discovered that FBI officials wanted to catch General Flynn in a lie and threatened his son with prosecution in order to coerce a guilty plea. "That happens all the time," say the know-it-all criminal law cognoscenti who fellow-travel with one side or another, as well as their minions who parrot the party line to the faithful. Except in the case of Judge Starr. Almost nobody was on our side, parroting our points. Except the courts. Most of the time. But I digress.
Our subject today is a nasty little paragraph inserted into General Flynn's plea agreement by Bob Mueller's staff. I first started noticing this provision 5 or 6 years ago in some of the plea offers that came my way, depending on which U.S. Attorney's Office I was dealing with at the time. It has shown up more often since then, but is far from universal. It can be found in most or all of the Mueller team's plea agreements. It is typically found in Paragraph 9(F) within the Waivers section. It states as follows: "Your client agrees to waive all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including and without any limitation any records that may be sought under the Freedom of Information Act, 5 U.S.C. Section 552, or the Privacy Act, 5 U.S.C. Section 552(a), for the duration of the Special Counsel's Investigation." The limiting of the waiver to the duration of the investigation is not a feature I have previously encountered.
Although the waiver does not mention Brady material on its face, it clearly applies to requests for exculpatory records. (As I noted here recently, it was after General Flynn’s case was transferred to Judge Sullivan’s court, and Sullivan entered his broad standing Brady Order, that Mueller’s team appears to have provided voluminous additional discovery to Flynn’s lawyers.) Prosecutors have a constitutional duty to turn over exculpatory information to the defense even if defense counsel does not request it. But case law holds that more detailed, specific defense requests create a greater prosecutorial obligation. In my view, this paragraph forces defense counsel to breach his or her ethical duties to the client to vigorously demand Brady material as well as mitigating information required under state ethical rules and the McDade Amendment. The Department of Justice should put a stop to this and prohibit all such provisions from being part of its plea agreements. This includes FOIA requests, which serve to ensure, post-judgment, that the government's Brady obligations have been met. Here is the Flynn Plea Agreement.
Thursday, June 11, 2020
Reply briefs were filed yesterday in the U.S. Court of Appeals for the D.C. Circuit in In re: Michael T. Flynn. Oral arguments are set for tomorrow morning, June 12. Attached here are; Flynn's Emergency Petition for Writ of Mandamus; the D.C. Circuit's highly unusual May 21, 2020 Order requiring Judge Emmet Sullivan to respond to the Petition's argument that Sullivan is obliged to grant DOJ's Motion to Dismiss the Flynn Indictment with prejudice; Judge Sullivan's June 1, 2020 Brief in Response to the Court of Appeals Order; Flynn's June 10 Reply Brief; DOJ's June 10 Reply Brief; and a further Response Brief on behalf of Judge Emmet G. Sullivan. Enjoy!
Saturday, June 6, 2020
Title 18, United States Code, Section 1001, criminalizes certain false statements or omissions made to the federal government. The statute requires that the false statement be material to a matter within the jurisdiction of a federal agency or department. Materiality is an element of the offense that must be alleged and proved beyond a reasonable doubt. It is usually a fairly easy element for prosecutors to establish.
General Michael Flynn was charged with violating Section 1001 in a one count Criminal Information that tracked a portion of the statutory language. The Information was filed in federal court on December 1, 2017, by prosecutors in Special Counsel Robert Mueller's office. Those prosecutors charged Flynn with lying to the FBI during the course of a White House interview conducted on January 24, 2017. The January 24 interview concerned late December 2016 conversations between Flynn and Russian Ambassador Vitaly Kislyak during the post-election Presidential transition period.
A federal court cannot accept a guilty plea without a Factual Basis, sometimes referred to as a Factual Statement or Statement of the Offense. It is typically filed along with the Plea Agreement or is incorporated into the Plea Agreement itself. According to the Statement of the Offense filed in General Flynn's case: "Flynn's false statements and omissions impeded and otherwise had a material impact on the FBI's ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia's efforts to interfere with the 2016 presidential election." We now know this wasn't true. Flynn's statements, whether false or not, had no effect on the Russian Collusion investigation.
Crossfire Hurricane, launched on July 31, 2016, was the name given to the FBI’s counterintelligence investigation into possible collusion, witting or unwitting, between members of Trump’s campaign team and Russians attempting to influence the 2016 election. Crossfire Hurricane was not begun based on any allegations related to General Michael Flynn. Instead, the Bureau authorized Crossfire Hurricane after it learned, third-hand, that Russia may have “suggested” assisting the Trump campaign by anonymously releasing dirt on Hillary Clinton. An FBI subfile was created on Flynn, not because of any allegations against him, but because of Flynn’s known contacts with Russia. Such contacts would hardly be surprising for a former Director of the Defense Intelligence Agency who was a Trump advisor rumored to be Trump’s choice for National Security Director if he won the election. The subfile investigation of Flynn was known as Crossfire Razor.
FBI officials Jim Comey, Andy McCabe, Peter Strzok, and Lisa Page each knew, well before Flynn's January 24 interview, that the General had no involvement whatsoever in any improper or illegal coordination with Russia regarding the 2016 election. Flynn had already been completely cleared in Crossfire Razor by January 4, 2017. A draft Closing Communication, documenting the complete lack of evidentiary support for Flynn's involvement in, or knowledge of, 2016 election collusion, was prepared on January 4 by the Crossfire Razor team. But the decision to close the file had been made even before January 4. Such a draft Closing Communication would never have been commenced unless the case agents had received prior approval from their FBI Supervisor, and Former FBI Director Comey testified that he authorized the closing of Crossfire Razor by December 2016.
But none of this exculpatory information regarding materiality was shared at any time with the original defense attorneys representing Flynn, either before or after he entered his December 1, 2017 guilty plea. (Nor was it shared with Deputy Attorney General Rod Rosenstein, who was by then the Acting Attorney General for purposes of the Mueller Investigation and had final authority over Mueller's charging decisions.) The knowledge that Flynn's January 24, 2017 interview responses did not influence and were arguably incapable of influencing the Crossfire Hurricane investigation was relevant both to Flynn's guilt and punishment. While there is some uncertainty in the law as to whether Brady material must be turned over to the defense prior to a guilty plea, there is no uncertainty about Judge Emmet G. Sullivan's standing Discovery Order that he enters in every criminal case, and entered in Flynn's. It directs the government "to produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant's guilt or punishment. This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government's possession."
Flynn had already pled guilty when his case was transferred to Sullivan's court, but he was still awaiting punishment. After the case was transferred, and Sullivan entered his Standing Order, Mueller's team produced voluminous additional documents to Flynn's team. Why did they do this when, under the terms of the Plea Agreement, Flynn was no longer allowed to request additional documents from the government? Because Mueller's prosecutors knew the significance of Sullivan's Standing Order and the additional burden it placed on them. Moreover, Sullivan had Flynn reaffirm his original plea colloquy, under oath, in December 2018. There is thus no question that the information discovered by Eastern District of Missouri U.S. Attorney Jeffrey Jensen, and publicly released for the first time last month at the direction of Bill Barr, should have been produced by Mueller's team to Flynn. What we don't know yet is whether any prosecutor on Mueller's original team, or on the post-Mueller team handling the Flynn case, knew about the recently disclosed documents.
And one more thing. You can ignore commentators like Chuck Rosenberg, who recently listed here, in the Washington Post, all the folks (Trump, Pence, Priebus, etc.) who presumably thought Flynn's allegedly false statements were material. Chuck is relying on the general public's ignorance of federal criminal law. The only materiality at issue in U.S. v. Flynn is the materiality of the January 24, 2017 statements Flynn made to high-ranking FBI Supervisory Agents, which statements formed the basis of Michael Flynn's guilty plea and Statement of the Offense. Those post-inauguration statements about post-election conversations with Ambassador Kislyak, were clearly immaterial to an investigation of election-related collusion that had already cleared Flynn.