White Collar Crime Prof Blog

Judge Chutkan Denies Trump's Motion To Strike Allegedly Inflammatory Portions of the Indictment

On Friday, D.C. United States District Court Judge Tanya Chutkan, unsurprisingly, denied former President Donald Trump's Motion to Strike Inflammatory Allegations from the Indictment in U.S. v. Trump. At issue were the portions of the Indictment covering the January 6, 2021, assault on the U.S. Capitol by some of Trump's supporters, which, according to the defense, constitute irrelevant and prejudicial surplusage. Motions to strike surplusage are disfavored under U.S. Court of Appeals for the D.C. Circuit case law and need not be granted by the trial court unless a defendant can establish that the challenged  language is both irrelevant to the charges and prejudicial. Judge Chutkan did not reach the question of relevance, finding that Trump had failed to show that the alleged surplusage would prejudice the jury, particularly in light of her practice, which she intends to follow in this case, of not sending indictments back to the jury room during deliberations. Chutkan also promised to weed out prejudice in the jury panel, caused by the government or Trump, during the voir dire process. Here is the opinion.  U.S. v. Donald Trump - Order Denying Defendant's Motion to Strike Inflammatory Allegations from the Indictment

(wisenberg)

Trump Gag Order Appeal: Oral Arguments Are Next Up In D.C. Circuit

The parties' briefs are all in and the case is set for oral argument on Monday, November 20, at the U.S. Court of Appeals for the District of Columbia. Gathered together here are: Former President Trump's Opening Brief re Appeal of Judge Chutkan's Gag Order; the Government's Answering Brief; Trump's Reply Brief; and the Gag Order itself.

10-17-23 Trump Gag Order in DC Case

U.S. v. Trump - Donald Trump's Opening Brief re Appeal of Gag Order

U.S. v. Trump - Answering Brief of the United States re Donald Trump's Appeal of Gag Order

U.S. v. Trump - Reply Brief of Defendant-Appellant Donald Trump re Trump's Appeal of U.S. District Court Chutkan's Gag Order

(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).

Chutkan Order and Opinion Lifting Administrative Stay of Donald Trump Gag Order and Denying Former President Trump's Motion to Stay Gag Order Pending Appeal

The U.S. District Court for the District of Columbia has finally fixed the glitch in its electronic filing system. Here is yesterday's U.S. v. Trump - Opinion and Order Denying Motion to Stay Gag Order Pending Appeal. Judge Chutkan also lifted her prior administrative stay of the Gag Order, so it is now in effect. She denied without prejudice the government's request to modify the Gag Order as unnecessary, even assuming it was procedurally proper. The defense maintained that the Gag Order could not be modified since the case was on appeal.

Former President Trump had filed his Reply in support of the Motion to Stay on Saturday, and Judge Chutkan discusses Trump's Reply in her Sunday Opinion and Order. Here is Trump's Reply:  U.S. v. Trump - President Trump's Reply in Support of Motion for Stay of Gag Order Pending Appeal.

Here, for convenience purposes, is the 10-17-23 Trump Gag Order in DC Case.

(wisenberg)

 

Trump Gag Order Filings

Former President Donald Trump appealed U.S. District Court Judge Tanya Chutkan’s October 17 Gag Order the day it was issued and asked Judge Chutkan on October 20 for a stay of the Gag Order pending appeal and an immediate administrative stay of the Gag Order while the Stay Motion was being briefed in her court. Judge Chutkan granted an administrative stay on October 20 and ordered the government to respond to Trump’s Stay Motion by October 25. Special Counsel Jack Smith filed his response in opposition to the stay last night. But Smith was able in his Response to complain about new Trump posts and comments that have occurred in the 5 days since the Gag Order was imposed and Smith now wants the stay lifted and the Order modified to make it even stronger. Here are former President Trump's Motion to Stay and the Government's Opposition.

U.S. v. Trump - President Trump's Motion For Stay Pending Appeal.

Download U.S. v. Trump - Government's Response in Opposition to Motion to Stay.

(wisenberg)

The Dangers of a Partially Binding Plea and a Broad Appellate Waiver.

Diana Toebbe and her husband were arrested and charged with espionage-related crimes--specifically, conspiracy to communicate, transmit, or disclose Restricted Data of the U.S. Navy (relating to Virginia-class nuclear-powered submarines) with the intent to injure the United States, in violation of 42 U.S.C. Section 2274(a). The plot was foiled when the foreign government solicited by the Toebbes tipped off the U.S. Government. Diana's original binding plea agreement, providing for a sentence of not more than 36 months, was rejected by the U.S. District Court as "strikingly deficient." The government and Toebbe returned with a new plea agreement, which contained the standard federal waiver of the right to appeal (that is, a waiver for everything other than prosecutorial misconduct or ineffective assistance of counsel) and bound the court to sentence Toebbe to the lowest possible Guideline sentence within the Guidelines Range determined by the sentencing court.  All of the other stipulations in the second plea agreement were recommendations only, which did not bind the court. The government recommended a Guidelines range of 108 to 135 months. The court accepted the plea agreement but rejected some of the parties' recommendations, including Toebbe's status as a minor participant and a three-point downward adjustment for acceptance of responsibility. The court also rejected the government's motion for a three-level downward departure for substantial assistance and assessed two points for obstruction of justice (based on two coaching letters that Toebbe unsuccessfully attempted to send to her husband). The result? A Guidelines Range of 262-327 months. The sentencing court, abiding by the binding terms of the plea agreement, then sentenced Toebbe to 262 months. This was less than the sentence received by her husband, the person who stole the Restricted Data in the first place. Toebbe made various arguments as to why the sentence was invalid, all to no avail. It could happen to any of us. Binding plea deals to a set specific maximum sentence, like the one contained in the original plea agreement, are still a rarity in most federal jurisdictions. Reading the warning signs when the judge emphatically rejected the original deal, the parties came back with a substantially harsher sentencing recommendation, but one that was a recommendation only, based on predicate recommendations that the court also was not bound to accept. And there is nothing that anybody can do about it, given the standard appellate waiver demanded by the government in most federal plea deals. Here is the opinion in U.S. v. Diana Toebbe (4th Cir. 2023).

(wisenberg)

11th Circuit Applies U.S. v. Boyle's bright-line rule to E-Filed Tax Returns

From yesterday's opinion in Wayne Lee v. United States:

"The IRS penalizes taxpayers for filing late tax returns, unless the delay 'is due to reasonable cause and not . . . willful neglect.' 26 U.S.C. § 6651(a)(1). In United States v. Boyle, the Supreme Court established the bright line rule that 'reliance on an agent,' without more, does not amount to “reasonable cause” for failure to file a tax return on time. 469 U.S. 241, 248, 252 (1985). The question in this appeal is whether Boyle’s bright line rule applies to e-filed returns." Gues what? It does. Even though Plaintiff Wayne Lee's CPA failed to file Lee's tax returns for three straight years (2014-16), the IRS assessed penalties of over $70,000.00 and refused to let Lee apply his 2014 overpayment to the 2015 and 2016 tax years. Lee argued that his delay in filing was due to reasonable cause, rather than willful neglect, as he relied on his CPA to file the returns in a timely manner. The district court ruled against Lee, citing Boyle and the 11th Circuit affirmed. The opinion is here.

(wisenberg)

11th Circuit Narrows 18 U.S. Code Section 1521

Title 18, United States Code, Section 1521 prohibits the knowing filing of false liens or encumbrances against the property of an individual described in 18 U.S.C. Section 1114 [an officer or employee of the United States], "on account of the performance of official duties by that individual." In U.S. v. Pate, the 11th Circuit recently held that the statute did not apply to liens filed against individuals listed in Section 1114 if the individuals were no longer in office when the liens were filed. This was an en banc decision. Appellant, a tax protester, had knowingly filed liens against the respective properties of a former IRS Commissioner and a former Secretary of the Treasury. Pate conceded that he filed the liens on account of the officials' performance of their official duties, but contended that the statute only applied to officials still serving when the liens were filed. A majority of the 11th Circuit judges agreed.

(wisenberg)

Release Pending Appeal Granted Based on Substantial Question Regarding Ineffective Assistance of Counsel

It is a truism that federal circuit courts very seldom entertain ineffective assistance of counsel claims on appeal, because the record below is usually inadequately developed. Criminal defendants typically must wait to raise such claims in a habeas petition. But last week the Sixth Circuit released appellant Faraday Hosseinipour pending her appeal, holding that she had already raised a substantial question regarding her trial counsel's competence. Trial counsel was her brother-in-law who had almost no federal criminal experience. More to come on this case in the coming days. Here is the 6th Circuit Order on Motions for Release Pending Appeal.

(wisenberg)

Trump Gag Order

Here is Judge Chutkan's gag order issued earlier today in United States v. Trump in the U.S. District Court for the District of Columbia:  10-17-23 Trump Gag Order in DC Case.

By way of comparison, in August 2023, SDNY District Judge Lewis Kaplan granted the government's motion to revoke Defendant Sam Bankman-Fried's bond and detain him. Although Judge Kaplan's Order itself was only a one-pager he accepted the government's argument which was laid out in detail in a letter brief. Here is U.S. v. Sam Bankman-Fried - Government's Letter Brief in Support of Revoking Defendant's Bond.

(wisenberg)

Another Post-Ruan Acquittal: Dr. Lesly Pompy Found Not Guilty On All Counts in E.D. Michigan

Congratulations to Dr. Lesly Pompy, acquitted on all counts (illegal distribution and health care fraud) on January 4, 2023, in the Eastern District of Michigan.  Kudos as well to his outstanding team of defense lawyers, Ronald Chapman II (Chapman Law Group), Joe Richotte (Butzel Long), and George Donnini (Butzel Long). Here is a recap from Ron's Federal Defense Blog. Attached below is Defendant's Proposed Jury Instruction. The proposed illegal distribution charge should serve as a model for other defense attorneys practicing in this area.

U.S. v. Lesly Pompy M.D. Defendant's Proposed Jury Instructions.

I don't yet have a copy of the district court's final jury instruction, but will post it as soon as it becomes available on PACER.

This is one of several post-Ruan acquittals that have come down in the last six months. In each of these cases the government's evidence was weak and the strengthened scienter requirement established in Ruan v. United States no doubt played a major role in facilitating the not guilty verdicts.

(wisenberg)

A Pre-Ruan Dispute That Appears To Have Fizzled

Back in October, I noted that several legal questions remained open in the wake of the Supreme Court's historic consolidated decision in Ruan v. United States and Kahn v. United States. I wrote that one such question was whether the government must prove that a physician-Defendant had no legitimate medical purpose for his/her prescription and that he/she was operating outside the usual course of his/her medical  practice or whether it only need prove one of these two factors. It appears that I was wrong on that score. I'm aware of only one district court jury instruction in the post-Ruan world that allows the government to meet its burden by proving "no legitimate medical purpose" or "operating outside the course/scope of a medical practice." The issue was of paramount importance pre-Ruan, because several circuits had long held that the "outside the course/scope" prong was based on an objective standard of what a reasonable practitioner was required to do, irrespective of intent. If the government only had to prove one of two prongs, "no legitimate medical purpose" or "outside the course/scope," and one of those two prongs did not require proof of intent, it placed defendants at an enormous disadvantage and allowed the government to secure convictions without proving scienter. Those days are gone now, since the Court made it crystal clear that the Constitution requires the government to prove knowledge or intent on the part of the doctor that he or she was prescribing/dispensing drugs in an unauthorized manner. The formulation being most often used, taken from a passage in Ruan/Kahn which parroted the appropriate federal regulation, is that a health care professional acts in an authorized manner when he or she acts in the "usual course of professional practice for a legitimate medical purpose." Juries are not being told, except in one case, that proof of either/or will suffice. And that case resulted in an acquittal. Of course there is ample time for one of the circuits to screw things up.

(wisenberg)

U.S. v. Jessica Joyce Spayd: Another Faulty Post-Ruan Jury Instruction.

What is particularly galling about the offense instructions given to the jury in United States v. Spayd, a case tried in the United States District Court for the District of Alaska in October 2022, is not merely that the judge equated the terms "legitimate medical purpose" and "usual course of medical practice" with "a standard of medical practice generally recognized and accepted in the country." It is that he did so in violation of clear 9th Circuit precedent. The Ninth Circuit has long held that a physician defendant cannot be convicted of unlawful distribution merely by showing that he or she intentionally violated a standard of care or intentionally committed malpractice. The case was  United States v. Feingold, 494 F.3d 1001 (9th Cir. 2006), in which the court stated that, "our holding is consistent with the law in several of our sister circuits, which have emphasized that the standard for criminal liability under §841(a) requires more than proof of a doctor's intentional failure to adhere to the standard of care." I will have more to say on this issue in future posts. Attached below are the full jury instructions and the separate offense instructions in Spayd.

Jessica Spayd Jury Instructions Jessica Spayd Offense Instructions  

(wisenberg)

Ruan and Kahn on Remand: Supplemental Briefs and Reply Briefs

Last June, in the consolidated cases of Ruan v. United States and Kahn v. United States, the U.S. Supreme Court considered the mens rea required to convict a physician charged with illegal distribution of narcotics under the Controlled Substances Act. The Court held that: "After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so."  A health care professional acts in an authorized manner under statute's controlling regulation when he or she acts in the "usual course of professional practice for a legitimate medical purpose." The vote was 9-0 on the need to reverse the judgments of the 11th Circuit (in Ruan) and the 10th Circuit (in Kahn), because both courts "evaluated the jury instructions under an incorrect understanding of [Title 18 U.S. Code] §841's scienter requirements," but the vote was 6-3 on the majority's specific holding. Justice Alito, joined by Justice Thomas and, far the most part, Justice Barrett, concurred in the result only. They did not join the majority's holding that, once the defendant meets the burden of producing any evidence that he or she was authorized to write prescriptions, the burden of proving beyond a reasonable doubt that the defendant intended to act, or knew he or she was acting, "in an unauthorized manner" falls on the government. But all nine Justices agreed that at least a portion of the jury instructions in each trial were defective because they injected objective reasonableness requirements into their good faith definitions. The Court sent the cases back to their respective circuits to determine, under the correct scienter requirements, whether: 1) the offense instructions as a whole were correct as a matter of law, and 2) whether any error in the instructions was harmless.

The supplemental briefs and replies have now been filed in each case, and are attached below. In Ruan, the harmless error analysis is complicated by the defendant's conviction on counts other than illegal distribution. In Kahn, a key focus of the government and defense briefs is the difference, if any, between knowingly or intentionally acting in an unauthorized manner (that is, outside the usual course of professional practice without a legitimate medical purpose) and knowingly or intentionally acting outside or beneath the relevant standard of care. The government maintains that there is no difference between the two concepts, which is an extremely doubtful position in light of the language and reasoning of both the majority and concurring opinions. This issue is really the elephant in the room in the post-Ruan/Kahn world. The Supreme Court originally granted certiorari to resolve a circuit split, but a split still exists, because some circuit courts have long approved instructions equating standard of care with authorized practice, while others have held that an intentional violation of the standard of care is not the same as acting with no legitimate medical purpose outside the scope of a medical practice. Attached below are the briefs on remand in Ruan and Kahn.

Shakeel Kahn's Supplemental Brief on Remand U.S. v. Shakeel Kahn-Government's Supplemental Brief on Remand U.S. v. Shakeel Kahn-Appellant's Supplemental Reply Brief Ruan Supplemental Brief on Remand Ruan and Couch Supplemental Brief of Appellee United States  Ruan CA11 Supplemental Reply Brief on Remand (10.13 final)  

(wisenberg)

A Post-Ruan Problem: Jury Instructions Tying "Usual Course of Medical Practice for a Legitimate Medical Purpose" to Standard of Care

In a recent post, I  briefly discussed the offense instruction in U.S. v. Romano--a post-Ruan illegal distribution case out of the Southern District of Ohio. I noted that the jury charge in Romano, "tied the concept of 'usual course of professional practice for a legitimate medical purpose'  to a 'standard of medical practice generally recognized and accepted in the State of Ohio.'"  I think this type of instruction, often used in the pre-Ruan era, should be considered improper in post-Ruan times. Although Ruan left many questions unsettled for now, the Supreme Court made it clear that no objective "reasonable physician" standard can constitutionally be superimposed onto the government's obligation to prove scienter beyond a reasonable doubt. Justice Breyer did say that criteria such as  "legitimate medical medical purpose" and  "usual course course of professional practice" were objective in nature and that the more unreasonable the defendant's beliefs and misunderstandings were, "especially as measured against objective criteria," the more likely it is that the jury will find that a defendant knew his conduct was unauthorized. But the Romano instruction risks having the jury equate "standard of care," a staple of civil malpractice cases, to "legitimate medical purpose" and "usual course of professional practice." Criminal defense practitioners in illegal distribution prosecutions of physicians and other medical professionals are all too familiar with government experts who are willing to testify that this or that particular practice or procedure by the defendant physician did not comport with a state or national standard of care. It is one thing to allow testimony of this type in order for the government to show how far a particular defendant deviated from the broad consensus of medical opinion and to further show how this deviation, in combination with other facts in the case, is circumstantial evidence of scienter. It is something different I believe to import this unexplained into the offense instruction.  The Ninth Circuit has long held that a physician defendant cannot be convicted of unlawful distribution merely by showing that he or she intentionally violated a standard of care. The government must also show that he or she acted without a legitimate medical purpose. I realize that the distinctions being discussed here can be extremely subtle in nature, but that is exactly why they can lead to jury confusion. For this reason, I much prefer the U.S. v. Saloumeh Rahbarvafaei Offense Instruction which referenced standards of care, but did so in the following context: "There are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose. Therefore, in determining whether the defendant acted outside the usual course of professional practice, you may consider the standards to which medical professionals generally hold themselves, including standards of care among medical professionals. However, any finding of criminal liability must ultimately depend on the mental sate of the defendant herself, not what a hypothetical 'reasonable' medical practitioner would do or intend. Because of the need for the government to prove the defendant's criminal intent, this case is different from a medical malpractice case."

(wisenberg)

Another Post-Ruan Acquittal: United States v. Saloumeh Rahbarvafaei

Congratulations are in order for Licensed Physician's Assistant Saloumeh Rahbarvafaei and her defense attorneys, Federal Public Defenders Erin Murphy and Michael Driscoll, Jr. Rahbarvafaei was acquitted in late August on all eight charged counts of illegal distribution of a narcotic controlled substance. The case was out of the Central District of California. Michael Fitzgerald was the judge. This is the third total victory for a defendant health care professional that I am aware of since Ruan v. United States was handed down by the U.S. Supreme Court on June 27, 2022. Here is the U.S. v. Saloumeh Rahbarvafaei Offense Instruction on the elements of illegal distribution. It is the best one I have seen so far in the post-Ruan era. Keep in mind that 9th Circuit jury instructions in this area were already among the most defense friendly in the country. More to come on jury instruction permutations, post-Ruan, in future installments.

(wisenberg)

Post-Ruan Jury Instructions: A Mixed Bag

Three recent post-Ruan cases, two resulting in acquittals and one in a guilty verdict, yielded three different offense instructions for illegal distribution of a controlled substance by a physician.

In United States v. Bothra, et al., which went to the jury on the morning that the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) were handed down by the U.S. Supreme Court, the trial judge used a simple one page instruction, closely hewing to the bare bones holding of the Supreme Court. There was no good faith defense instruction (over defense objection) and no deliberate ignorance instruction. Here is the United States v. Bothra et al. Jury Instruction on Illegal Distribution. All Defendants were acquitted on all charges.

In United States v. Given, the trial court gave a lengthier and more traditional instruction, requested by the defense and agreed to by the government. The lone Defendant was acquitted on all counts. Although the Given jury instructions were obviously influenced by Ruan, the trial court surprisingly included some of the very language invalidated criticized and questioned by the U.S. Supreme Court in Ruan. Here is the U.S. v. Michael Given Offense Instructions. The trial court declined the government's request to give a deliberate ignorance instruction.

In United States v. Romano, the trial court tied the concept of "usual course of professional practice for a legitimate medical purpose"  to a "standard of medical practice generally recognized and accepted in the State of Ohio." The court gave a deliberate ignorance instruction in tandem with a broad instruction on inferring intent. The Defendant was convicted on several counts. Here is the U.S. v. Romano Jury Instruction--Definition of the Crime. Here are the U.S. v. Romano Jury Instructions--Inferring Required Mental State and Deliberate Ignorance.

Clearly there will be quite a few kinks to work out in post-Ruan  jury instructions until a coherent pattern emerges.

(wisenberg)

Post-Ruan Acquittals and Dismissals

Last June, in the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) the U.S. Supreme Court considered the mens rea required to convict a physician charged with illegal distribution of narcotics under the Controlled Substances Act. The Court held as follows: "After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so." The stunningly broad ruling was 9-0 on the final outcome, but 6-3 on the majority's reasoning. Justice Alito, joined by Justice Thomas and, far the most part, Justice Barrett, concurred in the result only. They did not join the majority's holding that, once the defendant meets the burden of producing any evidence that he or she was authorized to write prescriptions, the burden of proving beyond a reasonable doubt that the defendant intended to act, or knew he or she was acting, "in an unauthorized manner" falls on the government. But all nine Justices agreed that at least a portion of the jury instructions in each trial were defective because they injected objective reasonableness requirements into their good faith definitions. It is too early to predict with any certainty how the case law will develop in the post-Ruan world. Never underestimate the willingness of individual U.S. Attorney offices to find ways around inconvenient Supreme Court opinions. The convictions of Dr. Ruan and Dr. Kahn were not even overturned. Instead, the appellate judgments were vacated and the cases were sent back to their respective Courts of Appeals to determine whether the faulty instructions were harmless.

But here are some recent developments. In United States v. Bothra, et al. an Eastern District of Michigan case that went to the jury the very day Ruan came out, all Defendants were acquitted on all counts, 54 in total. In U.S. v. Given, in the Northern District of Florida, the lone Defendant was acquitted on all 33 counts. It should be noted that the government's evidence in each case was weak.

In United States v. Kim, in the Western District of Oklahoma, the the court granted the government's motion to dismiss without prejudice. The government seemed to concede that, in light of Ruan, the Indictment was defective.

Finally, in United States v. Brian August, a case in which I represented the Defendant, the United States filed, and the trial court promptly granted, a Motion to Dismiss, conceding that, among other things, the case could not go forward under the Ruan standard.

While these are promising signs, the dust has not yet begun to settle on post-Ruan developments. As I will explain in subsequent posts, the Ruan opinion leaves many questions unanswered. Is a physician-Defendant entitled to a subjective good faith instruction or no good faith instruction? Does the Defendant meet his or her burden of presentation merely by showing that he/she is authorized to prescribe narcotics? Must the government prove that a physician-Defendant had no legitimate medical purpose for his/her prescription and that he/she was operating outside the usual course of his/her medical  practice or only one of these two factors? What should a proper jury instruction look like?

I will be posting more on these issues in the coming days, weeks, and months.

(wisenberg)

 

Appointment of a Special Master - Court Order in Trump Case

When the affidavit on the warrant was released, albeit redacted, it was clear that this was a situation where the government asked for materials for the National Archives and Records Administration (NARA) but received only some of the materials, and that a search was conducted to get the rest of the materials, although it remains to be seen whether they obtained everything initially requested. The Search Warrant referenced the Obstruction of Justice statute 18 U.S.C. 1519. (see here).  As a backdrop to this search was the fact that there exists a Presidental Records Act that controls Presidential records. (44 U.S.C. 2201 et. seq.) So irrespective of the former President's claim that he declassified these documents (a mindboggling admission), they were still subject to be returned to the National Archives. (see here).

Now we see a  court discussion as to whether these documents that he allegedly declassified are subject to executive privilege. Despite President Trump no longer being the executive, the court leaves that issue open for further legal argument (see here). 

It is one thing to find that alleged attorney-client privilege material may be interspersed with folders marked classified information and/or personal clothing, and appoint a special master to keep the attorney-client material from anyone's view. Appointing a special master for potential attorney-client privileged material, whether it be the lawyer or the client is a better way to review attorney-client privileged material than a government filter or taint team. (see here)

It is hard to imagine that someone would have classified material, and would nevertheless allow that material to be left in an unsecured location amongst other material.  We are not dealing with a teenager needing to clean their room - but rather the former top head of this country possessing what might be highly sensitive information. And it is good to see the judge allowing the classification review and/or intelligence assessment by the Office of the Director of National Intelligence to continue, not impeded by her restraint of the government using other materials. 

But the executive privilege claim discussed by the court is confusing me. On one hand the court is saying there might be  privileged material and on the other hand former President Trump has stated that he declassified the material. Clearly, these are two different concepts, but is it privileged material or has it been declassified and should it be open to the public.  If it is privileged material that was not turned over when the first request was made, then the Trump team should have been in court arguing to retain information as privileged material well before the search.  If it was all declassified than why was it not turned over to the Archives upon the government's request. Will the former president really argue that all this alleged declassified material is now material subject to an executive privilege? And irrespective of whether it was declassified or it is executive privileged material, why was it not turned over under NARA.

(esp)

 

Fourth Circuit Affirms Andrew Powers Conviction: General Allegation of Venue Sufficient

The Fourth Circuit has affirmed the wire fraud conviction of Communique founder Andrew Powers. The opinion is here. Powers argued that the Indictment failed to properly allege venue, because it did not specify where each alleged fraudulent wire and mailing were sent from or received. The Fourth Circuit held, unsurprisingly, that the general allegation of venue lying in the EDVA was all that was required to defeat a motion to dismiss for failure to allege venue. No more detail was required in the charging instrument.

(wisenberg)