White Collar Crime Prof Blog

Criminal Division Corporate Whistleblower Awards Pilot Program

Using civilians outside DOJ to assist in the fight against crime is not new.  We have seen it with the addition of Civil RICO in 1970 (18 U.S.C. 1964), and of course the government partnership with those outside the government under the False Claims Act.  We have also seen government calls to the public for information related to criminal acts, and the government's use of cooperating witnesses to secure information and testimony against other perpetrators of crimes. That said, the Criminal Division Corporate Whistleblower Awards Pilot Program has some unique aspects that could incentivize individuals to assist the government in reducing criminality.

The program guidance limits the applicable areas to:  (1) certain crimes involving financial institutions, from traditional banks to cryptocurrency businesses; (2) foreign corruption involving misconduct by companies; (3) domestic corruption involving misconduct by companies; or (4) health care fraud schemes involving private insurance plans.  The foreign corruption by companies is particularly intriguing as it can be an area difficult to obtain accurate information.  Likewise, this may be another way to infiltrate misconduct in the cryptocurrency world.

The DOJ provides FAQs for Potential Whistleblowers and also for Companies here. But is also notes that "A whistleblower award is made in the Department’s sole discretion." Finally, the DOJ announcement reminds companies that voluntary "self-report within 120 days of receiving an internal whistleblower report may be eligible for a presumption of a declination under the Criminal Divisions's Corporate Enforcement and Voluntary Self-Disclosure Policy if the company reports to the Department before the Department contacts the company." (Note -Temporary Amendment to the Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy)

It is good to see the government exploring new methods to achieve corporate compliance.  In the future evaluation of this program, it is hopeful that there will be a cost-benefit analysis to ascertain whether the program proves to be an administrative challenge for the government in comparison to the rewards of achieving compliance.  But it will be important to factor into that analysis the intangible factors of how many companies step into line just on the mere threat of possibly being caught up in this new whistleblower program. 

(esp)

Hunter Biden Testifies

Here is the transcript of Hunter Biden's testimony before a joint session of the House Judiciary Committee and House Oversight and Accountability Committee on February 28, 2024.

Hunter Biden House Testimony Transcript.

(wisenberg)

Robert Hunter Biden Motion to Dismiss Federal Gun Charges: The Briefs Are In.

The briefing is now complete on Hunter Biden's Motion to Dismiss Based on Immunity Conferred by his Diversion Agreement. This motion was filed in the District of Delaware where three felony gun counts are pending against Biden. Biden contends that the Diversion Agreement was a binding contract once signed by the parties to it, and that the only parties to it were Biden and the U.S. Attorney's Office. DOJ disagrees on both points. Biden also argues that U.S. Probation's approval was not necessary and that, even it was necessary, U.S. Probation in fact approved the Agreement.  A similar motion will no doubt be filed in the federal tax case now pending in the Central District of California, with respect to the aborted tax-related Plea Agreement, but Biden's chances of success are much better at getting the federal gun charges in Delaware dismissed, since Diversion agreements do not require approval by the district court. The Diversion Agreement was related to the overall Plea Agreement that blew up last July in Judge Maryellen Noreika's Delaware federal courtroom. Here are Biden's original brief, the Government's Response, and Biden's Reply. Attached also is the Declaration of Christopher Clark, who was Biden's attorney involved in the negotiations surrounding the Plea and Diversion Agreements.

U.S. v. Robert Hunter Biden-Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Government's Response to Defendant's Motion to Dismiss Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden-Reply in Support of Motion to Dismiss the Indictment Based on Immunity Conferred by Diversion Agreement.

U.S. v. Robert Hunter Biden--Declaration of Christopher J. Clark.

(wisenberg)

 

 

Opening Supreme Court Brief in Fischer v. United States

As I noted last week, "the U.S. Supreme Court recently granted the Petition for Writ of Certiorari filed in Fischer v. United States, one of three cases in which the United States Court of Appeals for the D.C. Circuit interpreted 18 U.S.C. Section 1512(c) in the context of the January 6 assault on the U.S. Capitol. In addition to its importance in the prosecution and conviction of January 6 protesters and Donald Trump, the case has potentially broad implications for federal white collar criminal law. This is because it involves the proper interpretation of the word 'corruptly', a term that appears frequently in federal white collar statutes. On Monday of this week, Petitioner Josph Fischer filed his opening merits brief. Here it is."

Fischer v. United States-Petitioner Fischer's Opening Merits Brief.

(wisenberg)

Supreme Court Grants Cert. Petition in Fischer v. United States

The U.S. Supreme Court recently granted the Petition for Writ of Certiorari filed in Fischer v. United States, one of three cases in which the United States Court of Appeals for the D.C. Circuit interpreted 18 U.S.C. Section 1512(c) in the context of the January 6 assault on the U.S. Capitol. In addition to its importance in the prosecution and conviction of January 6 protesters and Donald Trump, the case has potentially broad implications for federal white collar criminal law. This is because it involves the proper interpretation of the word "corruptly", a term that appears frequently in federal white collar statutes. Title 18, U.S.C. Section 1512 is titled, "Tampering with a witness, victim, or informant." Section 1512(c) provides that:

"(c) Whoever corruptly-

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both."

The immediate question in Fischer was whether Section 1512(c)(2) applied to January 6 protesters who delayed Congressional counting and certification of electoral votes from the 2020 Presidential election.  Section 1515 of Title 18 defines an "official proceeding", as used in Section 1512, as "a proceeding before the Congress." The government argued that the January 6 riot obstructed an official proceeding, because it obstructed a proceeding before the Congress. To the government, it was a matter of straightforward textual interpretation. The defense argued that that the history and structure of 1512(c)(2), passed as part of the Sarbanes-Oxley Act (in response to the Enron scandal) to fix a loophole in the federal obstruction of justice statutes, showed that the statute only applied to classic efforts to obstruct evidentiary proceedings. More to come on this important case.

Attached is the Petition for Writ of Certiorari that was granted by the Supreme Court. Fischer v. United States-Petition For A Writ Of certiorari.

(wisenberg)

Supreme Court Grants Cert. Petition in Snyder v. United States

There is a circuit split on whether 18 U.S.C. Section 666 prohibits bribes alone or bribes and gratuities. We recently discussed it here. Yesterday the Supreme Court finally decided to resolve that split, granting the petition for writ of certiorari in Snyder v. United States. Attached is the outstanding Amicus Brief filed on behalf of the National Association of Criminal Defense Lawyers by Latham & Watkins. James Snyder v. United States - NACDL Amicus Brief in Support of Petitioner.

(wisenberg)

U.S. v. Calk: 18 U.S.C. Section 215 and Perspective Rolls

In a case of first impression in the Second Circuit regarding 18 U.S.C. Section 215, a panel has affirmed the conviction of Stephen Calk. Calk facilitated The Federal Savings Bank's ("TFSB") approval of significant loans to Paul Manafort in exchange for Manafort's assistance in securing positions for Calk in the Trump Campaign and, later, the Trump Administration. Calk was TFSB's CEO. The Trump Administration position did not pan out, despite Calk's submission of a a professional biography and document entitled “Stephen M. Calk Perspective Rolls in the Trump Administration." The Court held that Calk's assistance was a "thing of value" within the meaning of the statute and that Calk's conduct in facilitating the loans was "corrupt" under the statute.

Here is the opinion.

(wisenberg)

Gratuities and 18 U.S.C. Section 666: Will The Supremes Finally Slay The Mark Of The Beast?

On December 8, 2023, the U.S. Supreme Court will decide whether to grant the Petition for Writ of Certiorari in United States v. James Snyder, a case out of the United States Court of Appeals for the Seventh Circuit. There is a split in the federal circuit courts over the question of whether 18 U.S.C. Section 666 criminalizes gratuities as well as bribes. The majority of circuits have held that 666 criminalizes both bribes and gratuities. A minority of circuits have held that the statute only criminalizes bribes. The case has enormous implications for the federal prosecution of public corruption at the state and local level in the United States. Attached are the relevant filings by the government and the defense, plus a brilliant amicus brief filed by the National Association of Criminal Defense Lawyers.

U.S. v. James Snyder Petition for Writ of Certiorari

U.S. v. James Snyder Government Brief in Opposition to Cert. Petition

U.S. v. James Snyder Defense Cert Reply

NACDL Amicus Brief in Snyder v. U.S.

 

(wisenberg)

 

 

Hunter Biden's Motion for Issuance of Rule 17(c) Subpoenas Before Trial

Today Hunter Biden's lawyers filed a Motion for Pretrial Issuance of Subpoenas Duces Tecum, pursuant to Federal Rule of Criminal Procedure 17(c)(1), to Donald Trump, William Barr, Jeffrey Rosen, and Richard Donoghue. The proposed subpoenas demand documents relating to decisions involving the investigation or prosecution of Hunter Biden in both the Trump and Biden Administrations. The defense maintains that the documents are highly likely to be relevant to its contention that the Hunter Biden Indictment is an example of a constitutionally impermissible vindictive or selective prosecution. Defendants are entitled under the Sixth Amendment to present a defense and to  compulsory production of witnesses and documents in aid of that right. Here is the motion. U.S. v. Hunter Biden - Defense Motion for Issuance of Subpoenas Duces Tecum Pursuant to Rule 17(c) and Memorandum in Support.

(wisenberg)

D.C. Circuit Grants Administrative Stay in Trump Gag Order Appeal

On Friday afternoon, November 2, 2023, the U.S. Court of Appeals for the District of Columbia Circuit granted an administrative stay of Judge Chutkan's 10-17-23 Gag Order in U.S. v. Trump. The Court was careful to point out that, "[t]he purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion." In other words, the Court issued an administrative stay while considering, on an expedited basis, Trump's Motion for a Stay of the Gag Order pending appeal of that Order. The granting of the administrative stay did not involve any analysis of the likelihood of Trump's ultimate success on the merits of the Gag Order. Trump's brief on the Motion for Stay Pending Appeal is due today, 11-8-23, as is the Joint Appendix. The Government's Response is due 11-14-23. Trump's Reply is due 11-17-23. Oral argument is set for 11-20-23.

Here is Defendant-Appellant Donald Trump's Emergency Motion for Stay Pending Appeal and Request for Temporary Administrative Stay of Gag Order.

Here is the Circuit Court's Friday Order Granting an Administrative Stay.  U.S. v. Donald Trump - U.S. Court of Appeals for D.C. Order Granting Administrative Stay of Trump Gag Order.

Stay tuned for more.

(wisenberg).

How To Think About The Hunter Biden Whistleblowers’ Disclosures And The Hunter Biden Plea Agreement. Part I.

There are three key elements to the recent disclosures by IRS Criminal Investigation Division whistleblowers concerning the DOJ’s criminal investigation of Hunter Biden: 1) the false and/or conflicting statements by Delaware U.S. Attorney David Weiss and Attorney General Merrick Garland about the degree of authority and independence conferred upon Weiss by DOJ; 2) the alleged efforts of Delaware AUSAs and DOJ Tax Division prosecutors to slow-walk the case and block or delay avenues of investigation; and 3) the alleged underlying criminal conduct of Hunter Biden.

Part I

Let’s start with the false and/or conflicting statements by Garland and Weiss. AG Garland has repeatedly made public statements, sometimes sworn, indicating that Trump-appointed Delaware U.S. Attorney Weiss had (and still has) complete independence and authority to bring charges against Hunter Biden in any federal district where venue might lie, free of political interference.  Note that there is a difference between being able to run your investigation free of political interference and having the authority to bring charges in a federal district outside of Delaware. You can give Weiss all of the freedom to investigate he wants and still deny him the ability to bring charges in the District of Columbia or the Central District of California. But Garland recently reiterated that Weiss had (and has), “complete authority to make all decisions on his own,” had, “more authority than a special counsel,” and was “authorized to bring a case anywhere he wants in his discretion.” Garland has also stressed that Weiss never came to him asking for special counsel authority.

But here is a key contradictory fact we now know, thanks to the transcribed interview of IRS-CID Supervisory Special Agent (“SSA”) Gary Shapley, a/k/a Whistleblower #1 and the documents Shapley provided. Delaware U.S. Attorney Weiss told a roomful of IRS and FBI special agents and DOJ attorneys, on October 7, 2022, "that he is not the deciding person on whether charges are filed." He then revealed that, months before, he had sought and been denied the authority to bring felony tax evasion charges against Hunter Biden in the District of Columbia by District of Columbia U.S. Attorney Matthew Graves. Weiss further told the agents at the same October 7, 2022, meeting that he had requested special counsel status from Main Justice in order to bring charges in the District of Columbia but had been rebuffed. (Weiss also told the agents and prosecutors in the October meeting that the case was then at the U.S. Attorney’s Office for the Central District of California awaiting its decision on whether to file. He stated that if CDCAL rejected his request he would go to Main Justice again to ask for special counsel status.)

Weiss’s October 7, 2022, statement to the roomful of agents and prosecutors is clearly at odds with Garland’s public comments that Weiss had all the authority he needed to bring charges in any federal district. Garland has not indicated how he conferred this authority on Weiss. Was it reflected in a written authorization giving Weiss special attorney status under 28 USC §515(a)? Was it orally conveyed? If orally conveyed, did Garland merely invite Weiss to ask in the future for any authority he needed? Is this all a shell game in which Weiss asked Deputy Attorney General (“DAG”) Lisa Monaco for special attorney or special counsel status which she rebuffed and never reported to Garland?

Weiss’s June 7, 2023, letter to Congressman Jim Jordan, purported, “to make clear that, as the Attorney General has stated, I have been granted ultimate authority over this matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution, consistent with federal law, the Principles of Federal Prosecution, and Department regulations.” This statement had to be clarified once the Shapley transcript and supporting documentation were released to the public. So on June 30, 2023, Weiss wrote again to Jordan, setting out his geographically limited charging authority but noting his ability to request special attorney status under 28 U.S.C. § 515 in the event that a U.S. Attorney in another federal district does not want to partner with him on a case. Then the kicker: “Here, I have been assured that, if necessary after the above process, I would be granted § 515 Authority in the District of Columbia, the Central District of California, or any other district where charges could be brought in this matter.” Translation? I never asked Main Justice for special attorney status or authority. But if Weiss was being truthful in his June 30, 2023 letter to Jordan, he certainly lied to federal agents on October 7, 2022 when he told them that he had asked for special counsel authority to bring the Hunter Biden case in the District of Columbia and been denied.

Honest prosecutors running a legitimate criminal investigation do not need to lie to their case agents or prevaricate in their public pronouncements. And Garland surely realizes that his public statements to date, for whatever reason, have left a misleading impression. Yet he has done noting to get to the bottom of what happened. It’s time for him to lance the boil. More to come in Parts II and III.

(wisenberg)

 

Corruption Investigations & Prosecutions Are Not Limited to the U.S.

Sylvie Corbet, Phil. Inquirer, France's Sarkozy Convicted of Corruption, Sentenced to Jail ("A Paris court found French former President . . . guilty of corruption and influence peddling").

CNN (Story by Reuters), South African corruption inquiry wants Zuma jailed for two years after no-show

Business Standard (AP), Israeli court delays Benjamin Netanyahu corruption trial until April

(esp)

What A Durham Report May Look Like: Hasn't Anyone Heard of Speaking Indictments?

Speculation is rampant about indictments that may result from Connecticut U.S. Attorney John Durham's probe into the FBI's handling of the Crossfire Hurricane investigation, and the Bureau's four materially false FISA Applications submitted to the FISA Court. Fans of the President, expecting or demanding a rash of indictments, are likely to be as disappointed as Trump haters were when Robert Mueller's investigation of Trump-Russia criminal collusion turned out to be a dud. Rumors also abound that, indictments or not, Durham will issue a Report, naming names and detailing the FBI's multiple misdeeds. Opponents of such a Report point out that the Department of Justice ("DOJ"), except in the unusual circumstance of a Special Counsel's Report, does not typically smear people when the grand jury fails to return indictments. You know some folks are getting worried when Mueller Pit Bull Andrew Weissmann pens a New York Times Op-Ed all but urging career DOJ officials to refuse to cooperate with the highly respected Durham if he asks the grand jury to return indictments within 90 days of the the 2020 election.

Attorney General William Barr has already made it clear (sending a not very subtle hint to the faithful) that not all governmental abuses of power, even serious abuses, constitute crimes. To take an obvious example, I consider the set-up of Trump's first National Security Advisor Michael Flynn, by the FBI's Comey-McCabe Cabal, to be one of the most significant abuses of law enforcement power in recent American history. But I don't see any federal criminal statute that was violated in the process of the set-up. 

So, we are likely to see a small handful of indictments at most, based on the currently available public record. Were the Flynn-Kislyak phone calls feloniously leaked? Almost certainly so, absent Presidential declassification, but good luck proving who did it. The only known individual publicly referred for possible prosecution as a result of Michael Horowitz's OIG investigation into FISA abuse was former FBI Office of General Counsel Attorney Kevin Clinesmith. Clinesmith gave false information to  FBI Supervisory Special Agent #2, who served as the FBI's affiant on all three FISA Renewal Applications. Clinesmith also altered a key email from a CIA liaison, materially changing its meaning, and forwarded it to the same affiant. Of course it is possible that Clinesmith is cooperating and naming other people, but that is pure speculation at this point. More information may also come out explaining whether the predicate for Crossfire Hurricane, the Alexander Downer conversation with George Papadopoulos, was itself some kind of an intelligence agency set-up, but, again, turning that into an actionable crime is another matter. 

So how will the story be told by Durham? The easiest way will be through a lengthy speaking indictment against one person, or a handful of conspirators, that tells the prosecution's story of the case. Speaking indictments which have been common for decades in federal criminal cases, tell the tale of the prosecution's case in as many chapters as the prosecutors need or want to take. These speaking indictments can be broad enough to include manner and means and overt acts, criminal and non-criminal, as part of the mosaic. In other words, in telling the story, the government can include non-criminal conduct, or conduct that it could not prove beyond a reasonable doubt to a jury, as long as long as the conduct is rationally related to the charged crime. Mueller himself did this, through some of his indictments or informations (Manafort, Gates, and the Russian hacking and troll farm cases) and through the Statement of the Offense in cases where defendants pled guilty. in fact, it was through careful examination of the Special Counsel's charging instruments that knowledgeable observers were able to determine fairly early on that that Mueller had no criminal collusion case.

So, that's what I think we will see from John Durham. A small handful of defendants and at least one significant, story-telling, speaking indictment.

(wisenberg)

Government's Exhibit List in U.S. v. Manafort

For all of you Manafort trial junkies, here is the Government Exhibit List, recently filed in U.S. v. Paul J. Manafort, Jr., set to start soon in U.S. District Judge T.S. Ellis, III's Alexandria courtroom.

Here also is Judge Ellis's Order Denying Paul Manafort's Motion for Change of Venue.  Judge Ellis ruled last week that Manafort is not entitled to a presumption that any Alexandria federal trial jury would be partial to the government. If Manafort can establish actual prejudicial partiality through voir dire, a herculean task under current federal criminal law, Judge Ellis will revisit the issue.

(wisenberg)

The 400 lb hacker?

Special Counsel Robert Mueller's Office has clearly been working to get to the bottom of the alleged Russian interference with U.S. elections.  Today a D.C. federal grand jury handed down an Indictment against  "12 Russian nationals for their alleged roles in computer hacking conspiracies aimed at interfering in the 2016 U.S. elections."  The special counsel's website notes that "the indictment charges 11 of the defendants with conspiracy to commit computer crimes, eight counts of aggravated identity theft, and conspiracy to launder money. Two defendants are charged with a separate conspiracy to commit computer crimes."  The Indictment is here. 

There are some interesting lines in the Indictment including: "The Conspirators, posing as Guccifer 2.0, also shared stolen documents with certain individuals."  It states,

"On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress. The Conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate's opponent."

The indictment speaks about how "[t]he conspirators, posing as Guccifer 2.0, also communicated with U.S. persons about the release of stolen documents."  It notes how the conspirators "wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump ..."

The Indictment states that "[i]n order to expand their interference in the 2016 U.S. presidential election, the Conspirators transferred many of the documents they stole from the DNC and the chairman of the Clinton Campaign to Organization 1."

One thing is clear in reading this indictment - Mueller is running a legitimate and important investigation and it needs to continue.

(esp)

The Giuliani Problem: He's Rusty, Not Rudy.

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. 

(wisenberg)

49 Questions All In A Line. All Of Them Good Ones? All Of Them Lies?

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.

(wisenberg)

That's Entertainment: Judge Ellis and the Hearing on Manafort's Motion to Dismiss

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:

1. 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.  
2. 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.
3. 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.
4. 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.

(wisenberg)

Mueller: What Could He Do And When Could He Do It?

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:

[Redacted]

• 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;

[Redacted]"

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.

(wisenberg)

Point of Personal Privilege: Means & Ends In the War Against Trump

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.

(wisenberg)