White Collar Crime Prof Blog

K & L Gates Podcast - Congressional Investigations 101: To Comply or Not to Comply

Check out K & L's Podcast - Congressional Investigations 101: To Comply or Not to Comply starring Andrew M. Wright & Nancy Iheanacho. 

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Mueller - Investigation Was Not Stopped

Special Counsel Mueller answered part of the question I have wondered about - In answer to this question he stated -

Question: "At any time in the investigation, was your investigation curtailed or stopped or hindered?"

Answer: "No."

(Question by Collins, Answer by Mueller). 6 Takeaways from Robert Mueller's Testimony, Wash. Post (see here).

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My Mueller Questions

The media is discussing all the questions they would like asked of Special Counsel Mueller in tomorrow's hearings.  And although many are good questions, it is unlikely that he will answer most of them. 

But there is an important avenue of questioning that it is hoped someone will attempt.  If Attorney General Barr has the power to remove the Special Counsel and if Mueller served at his discretion, then it needs to be determined whether AG Barr cut the investigation shorter than Mueller would have preferred.   

When you started the investigation, was any time limit placed upon you for completing the investigation?

If yes, what was that time limit?

If no, did that change at any point in the investigation?

If it changed in the latter portion of the investigation, or after AG Barr entered the scene, this could be very telling. If there was an initial time limit agreed upon, then this also would be telling, since one cannot predict how things will progress in an investigation. It just seems odd that the investigation was complete as there were still pending cases coming from the Special Counsel's Office.

But maybe it was over and now we just need to hear from Mueller as to whether that is correct.

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New DOJ Guidance on Evaluating Corporate Compliance in Criminal Antitrust Investigations

The DOJ Antitrust Division issued a new guidance memo on Compliance Programs in Criminal Antitrust Investigations (see here). Providing transparency to the evaluation process of corporate compliance is a smart move as companies will now know what is expected of them from DOJ, and thus there is a greater likelihood of achieving compliance on the part of companies. This process can also reduce costs in providing a more efficient way of getting companies to readjust their compliance programs and assure that internal measures are in place to avoid company and individual criminality.  Providing this 17 page compliance memo to  companies should be applauded.

In issuing this new guidance, Assistant Attorney General Makan Delrahim stated that "effective immediately" the Antitrust Division would, "(1) change its approach to crediting compliance at the charging stage; (2) clarify its approach to evaluating the effectiveness of compliance programs at the sentencing stage; and (3) for the first time, make public a guidance document for the evaluation of compliance programs in criminal antitrust investigations." (see here), A major change from past policy is that credit for having a compliance program will now be given at the charging stage.

Eight considerations are provided, but it is noted that "the guidance emphasizes that these elements and questions are not a checklist or formula, and not all of them will be relevant in every case."  Delrahim states that "[d]ivision prosecutors should ask three preliminary questions at the outset to help focus their analysis. First question: does the company’s compliance program address and prohibit criminal antitrust violations? Second, did the antitrust compliance program detect and facilitate prompt reporting of the violation? Third, to what extent was a company’s senior management involved in the violation?" 

In house corporate counsel and outside attorneys representing companies need to be aware of this new guidance and readjust compliance programs to match the specifics provided by this document. 

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Jeffrey Epstein: The Unanswered Questions

1. Who in DOJ made the ultimate decision to drop the proposed felony indictment of  Jeffrey Epstein and to cap the Non-Prosecution Agreement ("NPA") sentence at two years--later reduced to 18 months? The 6-2-17 affidavit of AUSA Ann Marie Villafaña, the lead prosecutor on the original federal criminal case, largely supports Alex Acosta's account of certain key events in this week's press conference. Keep in mind, however, that her affidavit was filed as part of the Jane Doe 1 and Jane Doe 2 litigation in SDFL, which resulted in Judge Marra's ruling that SDFL violated the Crime Victim's Rights Act ("CVRA") by failing to notify Epstein's victims about the NPA.  At the time it was filed, the affidavit was focused on the effort to convince Marra that SDFL had not violated the conferral/right to be heard provisions of CVRA. On pages 8 and 9 of her affidavit, Villafaña attests that: "Prior to the Office making its decision to direct me to engage in negotiations with Epstein's counsel, I discussed the strengths and weaknesses of the case with members of the Office's management and informed them that most of the victims had expressed significant concerns about having their identities disclosed. While I was not part of the final decision-making at the Office that arrived at the two year sentence requirement, I was part of the discussions regarding sex offender registration and the restitution provision. It is my understanding from these and other discussions that these factors, that is, the various strengths and weaknesses of the case...together with the Office's desire to obtain a guaranteed sentence of incarceration for Epstein, the equivalent of uncontested restitution for the victims, and guaranteed sexual offender registration...were among the factors that informed the Office's discretionary decision to negotiate a resolution of the matter and to ultimately enter into the NPA." Translation: Villafaña disagreed with dropping the indictment and was not part of the group that made the ultimate decision to go for an NPA with a two year state prison cap. If she was even present at the meeting where the decision was made, she disagreed with the decision and was thus not "part of the final decision-making process." It is unusual, but not unheard of, for the lead prosecutor to be overruled on a case. It is very unusual to go from a 50-plus page multi-count felony sex trafficking indictment to an NPA with no federal charges, particularly when your lead prosecutor wants to go to trial. Villafaña was and is a respected career AUSA. Apparently DOJ's Office of Professional Responsibility ("OPR") is looking into how the case was handled.  OPR will want to see Villafaña's  original pros memo in the case, will seek to interview all government participants in the negotiations, and will want to know every DOJ person involved in the ultimate decision to drop the indictment.
2. Why was DOJ's standard language making it explicitly clear that the NPA bound only the SDFL not included in the NPA? Such language is employed every day by U.S. Attorneys' Offices throughout the United States and has been for years. It goes like this: "The defendant understands that this agreement is binding only on the U.S. Attorney's Office for the ________ District of _______." Why wasn't that done in Epstein's case? Epstein is now arguing that the SDFL NPA prevents his prosecution in SDNY. He will probably lose, given Second Circuit case law, but why even leave the possibility of challenge open? The NPA does not even include a standard integration clause. This is strange.
3. Why was the entire NPA placed under seal? I understand the Government's desire to protect the identity of Epstein's victims, but this could have been done through a redacted version of the NPA, and indeed this has been done in the subsequent litigation.
4. Why weren't all of Epstein's known victims notified of the NPA and its terms in a timely fashion? Acosta and Villafaña have explained that they did not want the victims to see the civil damages portion of the NPA before SDFL was certain that Epstein would be pleading to the Florida felony, because they did not want the victims to be cross-examined about having seen those provisions in the event the deal broke down and SDFL took Epstein to trial. Epstein signed the Florida plea papers only a few days before he actually pled guilty and there was not enough time to notify all the victims. I understand the explanation, and assume no bad faith on SDFL's part, but it doesn't cut the mustard. If Judge Marra is correct, CVRA required notification. And either the NPA or Florida plea deal could have been structured to prevent the fiasco of having to locate and confer with victims over a weekend. Marra ruled that SDFL affirmatively hid the NPA from the victims and essentially deceived them into thinking that the office was still investigating Epstein well after the NPA was signed. That scenario should have been avoided.
5. Why were Epstein's lawyers allowed to lobby Main Justice after the NPA was signed? I understand going to Main Justice and arguing to overturn an individual office's charging decision. Not every lawyer obtains such access and these efforts to overturn are rarely successful. But they almost always occur BEFORE an indictment has been returned. Why was Epstein's team allowed to lobby for several months AFTER the NPA was signed. The original NPA was signed by attorneys on both sides in September 2007. An addendum was signed by the attorneys in October 2007. Epstein signed in December 2007. The Oosterbaan letter, explaining why federal involvement was legitimate, was not signed until May 15, 2008. This is weird.

I do not believe that the Epstein deal was "dirty" in any way. I have heard from multiple sources that Acosta is a person of high integrity, who was well regarded within the office. I was impressed with Acosta's handling of the press conference. I don't think he should have resigned. I don't know how easy or hard it would have been for SDFL to achieve a victory at trial or how many victims would have been further traumatized by a trial. I do know that SDFL has a long history of aggressively prosecuting these types of cases--child sex trafficking and kiddie porn. And I do believe SDFL should have conferred with the victims before NPA was inked. Acosta had no criminal trial experience when he became U.S. Attorney. Was he was out-negotiated here, or overawed by the team of big name defense lawyers representing Epstein? His First Assistant Jeffrey Sloman, a veteran prosecutor who was deeply involved in the negotiations and signed the NPA, has denied this and has publicly defended both Acosta and the deal.

Still, the questions I and others have posed are legitimate and deserve answers. Perhaps we will get them from the OPR investigation.

Here are some additional documents. The first three were made available by Acosta in connection with his press conference in order to help support his explanation of the NPA. Next is the Jeffrey Sloman op-ed defending Acosta and the deal. The final three documents are the most recent filings in the SDNY case and all deal with the government's effort to detain Epstein pending trial.

 Villafana Declaration

 Kuyrkendall Second Affidavit

 Acosta Letter to Starr

 Sloman Op-Ed

 Epstein-Original Government Letter Requesting Detention

Epstein-Letter Motion for Pretrial Release

Epstein-Government Response to Bail Motion

(wisenberg)

Third Global White Collar Crime Institute - Prague, June 27-28, 2019

Readers of the blog might be interested in the upcoming Third Global White Collar Crime Institute, which will occur in Prague, Czech Republic on June 27-28, 2019. The Global Institute is a unique ABA Criminal Justice Section conference opportunity structured to bring together experts in the field of international white collar crime to meet and discuss cutting edge issues in a new corner of globe. The experience, therefore, offers not only insights into the latest developments in the field, but the chance to interact and network with colleagues and expand your presence in new regions of the world.

The Third Global Institute will begin with a “Meet the Enforcers” panel featuring Matthew Miner (Deputy Assistant Attorney General of the United States, U.S. Department of Justice), Matthew Wagstaff (Head of the Bribery and Corruption Division, Serious Fraud Office), and Pavel Zeman (Prosecutor General of the Czech Republic). On the second day of the Global Institute, we will also welcome Dr. Adrian Jung, who serves as Special Counsel on “Internal Investigations” to the German Federal Ministry of Justice. Dr. Jung is drafting legislation for Germany regarding corporate criminal liability and internal investigations that has the potential of changing the corporate criminal enforcement landscape in Europe. Other panels during the conference will include Lessons Learned from the VW Internal Investigation, Data Privacy and GDPR, Extradition and Red Notices, Global Anti-Corruption Trends, and Changes in Enforcement After Brexit. 

For those interested in attending, there is more information about the Global Institute on the conference webpage, including a full agenda of the program and the registration form. I hope to see many of you in Prague next month. 

(LED)

AG Barr's Summary of the Mueller Report

One needs to give credit to AG Barr for his quick release of a preliminary statement (see here - Download AG March 24 2019 Letter to House and Senate Judiciary Committees) concerning the Report of Special Counsel Mueller, which is titled, Report on the Investigation into Russian Interference in the 2016 Presidential Election.  But one also needs to read this four-page statement carefully, because the public needs to grasp all of what is being said and what is not being said here. 

1. AG Barr's Summary notes the extensiveness of this investigation ("employed 19 lawyers who were assisted by a team of approximately 40 FBI agents, intelligence analysts, forensic accountants, and other profession staff. The Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing use of  pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.")
2. AG Barr's Summary does not provide the same specificity in telling the public the number of indictments and convictions of individual and entities in connection with his investigation, instead saying "all of which have been publicly disclosed." Well that number does seem pretty important, as this investigation had so far 7 guilty pleas, 27 people indicted, and 37 indictments with some of the cases still ongoing.
3. AG Barr's Summary says that "The Report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public."
4. AG Barr's Summary does not say how many matters were turned over to other federal or state offices, perhaps because there was criminality that did not pertain to Russian Interference in the 2016 Presidential Election. Although it does say that "During the course of his investigation, the Special Counsel also referred several matters to other offices for further action."
5.  We now know for certain that the Investigation had two parts, or at least the Report does: Russian Interference in the 2016 US Presidential Election and Obstruction of Justice.
6. AG Barr's Summary confirms that there were Russian efforts to influence our 2016 US election.   AG Barr's Summary states that - "The report outlines the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with these efforts."   This is an important statement that needs both executive and legislative follow-up. How will we be assuring that future efforts by another country do not undermine our election?  And even if they "did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities," do we know if the results of the election were accurate?
7.  AG Barr's Summary confirms "that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks." Again, did we have a fair election? What is the appropriate remedy?  What will happen in future elections to preclude such activity?
8. On Part II - Obstruction of Justice - AG Barr's Summary states that "the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment." Barr's Summary says that "[i]nstead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as 'difficult issues' of law and fact concerning whether the President's actions and intent could be viewed as obstruction."  So it does sound like the President was a "subject" as opposed to "witness" of this investigation.
9. AG Barr's Summary does not say that evaluating the evidence is typically the job of the jury, after a determination has been made that there is probable cause to indict.  Instead AG Barr restates Mueller's Report that "while this report does not conclude that the President committed a crime, it also does not exonerate him."  AG Barr goes on to say that he and Rod Rosenstein have made the decision "that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense."
10.  In many ways it is good to see that a "short-cut offense" of obstruction of justice will not be used (see my article here), but one has to wonder about the defendants who have been charged with obstruction of justice.  It will be important for everyone to know what has been declined here so that everyone can understand the DOJ's standard for evaluating obstruction.  Isn't it always stated that "intent can be inferred from the circumstances" in letting juries make those decisions? But it is also good to see DOJ taking a hard line in not prosecuting uncertain cases - it is hopeful that all US Attorneys will follow this lead with the obstruction cases they are currently handling. Having the full Report will provide this important transparency. 
11. I leave for another day a discussion of AG Barr's decision to extract 6(e) grand jury material from the report prior to its release.

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More Clues From Special Counsel Mueller

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.

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Deutsche Bank Raid

News media are reporting that Deutsche Bank has been raided by German prosecutors. (see BBC here), (see NYTimes here).  A money laundering investigation is what is being reported.  Deutsche Bank stated that "[i] is true that the police are currently conducting an investigation at a number of our offices in Germany.  The investigation has to do with the Panama Papers case. More details will be communicated as soon as these become known.  We are cooperating fully with the authorities." (Tweet @ Deutsche Bank). They also have stated that "[a]s far as we are concerned, we have already provided the authorities with all the relevant information regarding Panama Papers." So if Deutsche Bank provided everything, why is there a raid?

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ABA Criminal Justice Section White Collar Town Hall

I hope you will join me and the ABA Criminal Justice Section for a spectacular White Collar Crime Town Hall on Thursday, November 1 from 3:30pm-5:00pm at the Mayflower Hotel in Washington, D.C.  Due to the generosity of our sponsors, the program is free and will be followed by our Criminal Justice Section welcome reception at the hotel. You may register for the CLE on-site.

Below is a description of the White Collar Town Hall and the exemplary panelists who will discuss The Role of the Media in White Collar Criminal Investigations and the Mueller Probe.

The panelists will first examine the role of the media in these investigations generally, including the obligations/interests of the media in protecting the integrity of investigations, the tools available to prosecutors and defense attorneys to address media coverage during the investigative stage, and the tools and standards for fair trial protections due to pretrial media exposure. Then, the panel will delve into the Mueller probe specifically, addressing the media’s sources of information about the Mueller investigation, what the leaked information reveals about the investigation, the media’s impact on the Manafort trial, the Congressional role in providing investigative information to the public, and implications on other ongoing aspects of the investigation.

Moderator: Henry Asbill, BuckleySandler LLP, Washington, DC

Rebecca Ballhaus, Reporter, Wall Street Journal, DC Bureau, Washington, DC

Kevin Hall, Pulitzer Prize Winner, Chief Economics Correspondent and Sr. Investigative Reporter, McClatchy Newspapers

Michael Isikoff, Chief Investigative Correspondent, Yahoo News

Prof. Jessica Roth, Cardozo Law School, Reporter, ABA CJS Standards on Fair Trial and Public Discourse

In addition to our white collar program on Thursday evening, there will also be complimentary CLE programs at the Mayflower Hotel all day Friday.  Our Friday program will begin with a keynote address on plea bargaining by Judge Jed Rakoff.  This will be followed by a host of fascinating panel discussions focusing on the work of the Section and its committees.  These will include:

A Fresh Look at Plea Bargaining in our Criminal Justice System

Prosecutors as Agents of Change

GITMO Twelve Years Later

Re-Entry and Innovation

What Civilians Can Learn from the Military Experience with Sexual Assault & Harassment

Enhancing Justice: Reducing Bias – Strategies for Change in the Criminal Justice System

On Friday, we will also hold our prestigious Criminal Justice Section Awards Luncheon and Address, which occurs at 12:30pm.  The Address will be given by Hilarie Bass, immediate past President of the American Bar Association.  Ms. Bass will discuss her work creating a new organization to address issues critical to women and minorities.  These important remarks are incredibly timely given the recent launch by the Criminal Justice Section of the new Women in Criminal Justice Task Force. 

Our Friday programming will be followed by our Criminal Justice Section fall reception. 

The complete agenda is available on the Fall Institute website. 

All CLE programming, including the White Collar Town Hall, is complimentary and participants may register on-site.  Those wishing to attend the Awards Luncheon and Address should register online.  The cost of the luncheon is $50.  For those registering online, please note that website issues have resulted in improper pricing information being listed.  The correct price should populate when you move to the checkout.  If you have any difficulty registering online, please contact Regina.Ashmon@americanbar.org   

(LED)

 

Superseding Criminal Information - Manafort Case

A superseding criminal information was filed in the case against Paul J. Manafort, Jr.  (see Download Manafort DC_Superseding Criminal Information).  Commentary to follow later today.  

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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.

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The Irony Of The FBI. What Did The Bureau Know And When Did The Bureau Know It?

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.

(wisenberg)

The Horowitz Report

Here it is. The OIG Report-A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election.

Analysis to follow in a while.

Here also is the Press Release and Executive Summary of OIG Report.

(wisenberg)

OIG Report On Clinton Email Investigation To Be Released At 2:00PM Today

We will post it as soon as we get it.

(wisenberg)

 

A Deep State Story: The James Wolfe Indictment

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.

(wisenberg)

Carry on Mueller

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.

(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)

When Do You Have Corruption? From McDonnell to Silver

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."

(esp)  

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)