Friday, March 1, 2024
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.
March 1, 2024 in Celebrities, Congress, Contempt, Corruption, Current Affairs, Defense Counsel, Fraud, Investigations, Legal Ethics, Money Laundering, News | Permalink | Comments (0)
Thursday, February 1, 2024
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--Declaration of Christopher J. Clark.
February 1, 2024 in Celebrities, Corruption, Current Affairs, Defense Counsel, Deferred Prosecution Agreements, Investigations, Judicial Opinions, Media, News, Privileges, Prosecutions, Prosecutors, Tax | Permalink | Comments (0)
Wednesday, January 31, 2024
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.
January 31, 2024 in Arthur Andersen, Congress, Corruption, Current Affairs, Enron, Investigations, Judicial Opinions, News, Obstruction, Prosecutions | Permalink | Comments (0)
Thursday, January 25, 2024
U.S. v. Stephen Bannon Case Materials: Willfulness and the Reliance on Advice of Counsel Defense.
We are awaiting any day now a ruling from the U.S. Court of Appeals for the District of Columbia Circuit on Steve Bannon's appeal of his conviction for violating Title 2, United States Code, Section 192 by willfully refusing to testify or provide documents to the January 6 Committee in response to its subpoena. In allowing Bannon to remain free on bond pending appeal, U.S. District Judge Carl Nichols noted that Bannon's appeal raised substantial questions of law: "In particular, as I've noted throughout this case, there is a substantial question regarding what it should mean for a defendant to willfully make default under the contempt of Congress statute and what evidence a defendant should be permitted to introduce on that question." Bannon was prevented from introducing evidence, arguing to the jury, or having the trial court instruct the jury, that his attorney had advised him not to comply with the subpoena. Under a 63-year-old D.C. Circuit precedent, Licavoli v. United States, willfulness in the context of Section 192 does not require a showing that the defendant intended to violate the law or acted with an evil motive or bad purpose. The government need only prove that the failure to comply was deliberate. It is extremely unlikely that Licavoli is still good law today, given numerous Supreme Court white collar crime opinions since 1961 requiring the government to prove an intent to violate a known legal duty in order to show willfulness. Here are some case materials from U.S. v. Stephen Bannon.
U.S. v. Stephen Bannon - Sentencing Hearing Transcript Excerpt.
U.S. v. Stephen Bannon - Declaration of Robert J. Costello.
U.S. v. Stephen Bannon - Defendant's Opposition to Government Motion in Limine on Advice of Counsel.
U.S. v. Stephen Bannon - Defendant's Surreply re Government Motion in Limine on Advice of Counsel.
January 25, 2024 in Celebrities, Congress, Contempt, Current Affairs, Judicial Opinions, Media, News, Obstruction, Privileges, Prosecutions, Sentencing | Permalink | Comments (0)
Tuesday, January 23, 2024
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.
January 23, 2024 in Arthur Andersen, Congress, Corruption, Current Affairs, Enron, Investigations, Judicial Opinions, News, Obstruction, Prosecutions | Permalink | Comments (0)
Tuesday, December 12, 2023
Free Speech v. Fair Trial: D.C. Circuit Rules on Trump Gag Order
On Friday, December 8, 2023, a panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed in part and vacated in part District Court Judge Tanya Chutkan's Gag Order in U.S. V. Trump. Here is the opinion, written by Judge Patricia Millett. Trump's attorneys praised the opinion, but vowed to appeal.
December 12, 2023 in Current Affairs, Defense Counsel, Judicial Opinions, Legal Ethics, Media, News, Obstruction, Privileges, Prosecutions | Permalink | Comments (0)
Monday, December 4, 2023
Trump Immunity Claim Rejected By D.C. Circuit For Now
On Friday December 1, 2023, in Blassingame v. Trump, the U.S. Court of Appeals for the D.C. Circuit ruled that, at this stage of the proceedings, former President Donald Trump is not entitled to dismiss the consolidated civil case against him (brought by Capitol Police officers and others who were present at the Capitol on January 6, 2021) based on the doctrine of Presidential Immunity. Importantly, and overlooked in most of the press reporting on the ruling, the Court left open the possibility that Trump could prevail on a later motion for summary judgement. But at this stage of the proceedings, prior to the development of a factual record, the Court had to accept the plaintiffs' allegations as true. Since a President's purely private acts, even while serving as President, are not protected by the doctrine of Presidential Immunity, the record was not sufficiently developed to grant the former President's motion to dismiss.
Here is the opinion in Blassingame v. Trump.
December 4, 2023 in Civil Litigation, Current Affairs, Judicial Opinions, News, Privileges | Permalink | Comments (0)
Monday, November 20, 2023
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
November 20, 2023 in Celebrities, Current Affairs, Investigations, Judicial Opinions, News, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)
Saturday, November 18, 2023
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
November 18, 2023 in Celebrities, Current Affairs, Defense Counsel, Investigations, Judicial Opinions, Legal Ethics, Media, News, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)
Wednesday, November 15, 2023
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.
November 15, 2023 in Corruption, Current Affairs, Defense Counsel, Deferred Prosecution Agreements, Fraud, Investigations, News, Privileges, Prosecutions, Prosecutors | Permalink | Comments (0)
Wednesday, November 8, 2023
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 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).
November 8, 2023 in Contempt, Corruption, Current Affairs, Defense Counsel, Fraud, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)
Monday, October 30, 2023
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.
October 30, 2023 in Current Affairs, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)
Thursday, October 26, 2023
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.
October 26, 2023 in Contempt, Current Affairs, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)
Friday, June 9, 2023
Trump Indictment # 2
First there was an indictment against Former President Donald Trump coming out of the Manhattan DA's office - here (Indictment # 1)
Now there is a federal indictment against Former President Donald Trump coming out of an investigation of Special Counsel Jack Smith into the alleged conduct by Trump in handling sensitive classified documents and conduct responsive to requests by DOJ for return of these documents - here.
It remains to be seen if the former president will face additional indictments in Georgia or Washington, DC.
Here are some thoughts of Indictment # 2 -
- The Indictment charges Trump with 37 counts - the charges are: 31 counts of Willful Retention of National Defense Information (793(e)); 1 count of Conspiracy to Obstruct Justice (1512(k)); 1 count of Withholding a Document or Record (1512(b)(2)(A)); 1 count of Corruptly Concealing a Document or Reconrd (1512(c)(1)); 1 count of Concealing a Document in a Federal Investigation (1519); 1 count of Scheme to Conceal (1001(a)(1)) and 1 count of False Statements and Representations (1001)(a)(2).
- The Indictment charges Waltine Nauta with 6 counts - the charges are 1 count of Conspiracy to Obstruct Justice (1512(k)); 1 count of Withholding a Document or Record (1512(b)(2)(A)); 1 count of Corruptly Concealing a Document or Reconrd (1512(c)(1)); 1 count of Concealing a Document in a Federal Investigation (1519); 1 count of Scheme to Conceal (1001(a)(1)) and 1 count of False Statements and Representations (1001)(a)(2).
- The 44 page Indictment (49 if you count the Trial Attorney Certificates) is detailed – but it is not a speaking indictment (there are no irrelevancies in the Indictment). Compare this to the Michael Sussman indictment of one count that was 27 pages and resulted in a jury verdict of not guilty.
- Special Counsel Jack Smith's statement from his press conference on Friday afternoon is professional, limited (only 347 words), and he does not grandstand - see here. This emphasizes that this is a non-political investigation. He makes a point of noting that "It’s very important for me to note that the defendants in this case must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law."
- Some of this case appears to come from former President Trump's prior lawyers. The attorney-client privilege is sacred, but it can be pierced when the client attempts to use the lawyer to commit a crime or fraud.
- It is difficult to try a case involving classified material as the government will likely not want to disclose the actual classified material. But that should not present a problem here as the charges go to obstructing justice, concealing information, and false statements. The actual content, other than it being a high security level and having potential damage to national security, should not be an issue.
- Should a judge who is appointed by the accused remain on the case? Remember, this is not a situation of looking at a policy or action of the plaintiff or defendant, this is a criminal case and the defendant appointed the judge to her position.
- One has to give Jack Smith credit for filing this in Florida. He could have stetched the envelope and charged it in DC, but instead he did the right thing and followed venue rules that should be adhered to.
- If these same charges were against any other defendant, would it be likely that they would result in a quick plea? But a defendant has the right to challenge charges against him or her and the right to a trial by jury.
- Attorney General Merrick Garland has removed politics from the DOJ, which is a good thing. He even removed himself from this case and appointed a special prosecutor. Remember Jack Smith handled the prosecution against Democrat John Edwards, who was not convicted. Claims that this is a political indictment have no basis.
(esp)
June 9, 2023 in Celebrities, News, Obstruction, Privileges, Prosecutions | Permalink | Comments (0)
Monday, September 5, 2022
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)
September 5, 2022 in Investigations, Judicial Opinions, News, Obstruction | Permalink | Comments (0)
Monday, July 4, 2022
DOJ Strategic Plan
Every good organization should have a strategic plan, so it is wonderful to see DOJ taking this step (see here). The plan not only provides priorities, but also provides a Mission with Values (see here). One certainly can't fault these four key values - "Independence and Impartiality, Honesty and Integrity, Respect, and Excellence." Most important is the first one - independence and impartiality - something that was compromised during the last administration.
The key goals of the strategic plan are equally admirable - "Uphold the Rule of Law, Keep our Country Safe, Protect Civil Rights, Ensure Economic Opportunity and Fairness for All, and Administer Just Court and Correctional Systems." The statements are fortified with strategies to ensure success. For example for "Uphold[ing] the Rule of Law" there are five strategies (see here) -
Strategy 1: Reaffirm and Strengthen Policies Foundational to the Rule of Law
Strategy 2: Protect the Justice Department from Improper Influence
Strategy 3: Protect Public Servants from Violence and Threats of Violence
Strategy 4: Protect the Public Fisc from Fraud on Government Programs
Strategy 5: Combat Foreign Interference in Democratic Processes
Strategy 6: Ensure Effective Oversight and Public Accountability
It may seem obvious that the Justice Department needs to be clear of improper influence, but in watching the January 6th hearings it is clear that this needs to be reaffirmed.
(esp)
July 4, 2022 in About This Blog, Government Reports, News, Prosecutors | Permalink | Comments (0)
Tuesday, January 18, 2022
Peter Henning RIP
Peter Henning was an incredible writer, scholar, and teacher. Most of all to me - he was a good friend.
In November of 2004, Peter Henning and I started this WhiteCollarCrimeProfBlog. He moved on to later write the White Collar Watch for the NYTimes, but we continued to co-author many a book on criminal law, criminal procedure, and white collar crime. Whether it was a criminal law casebook, a criminal procedure treatise, or the hornbook on white collar crime, Peter was amazing. He understood the nuances in cases, the rationales of the prosecutors, and had a gift of writing quickly in highly complex areas of the law.
On the rules of law he and I seldom disagreed. On whether the prosecution or defense had the better argument, however, we often differed. When that happened, our rule was simple - let the reader hear both sides, but always make sure the representations were accurate.
I will miss Peter's humor, his writing, and his friendship. His family was his everything to him, so my heart goes out to them.
RIP Peter.
Wayne State Law School Announcement - here
(esp)
January 18, 2022 in News | Permalink | Comments (0)
Monday, January 3, 2022
Theranos Founder Elizabeth Holmes Convicted On 4 Of 11 Counts. And That Will Be Enough.
Here is the CNN story. The jury acquitted Holmes, the former CEO of blood-testing startup Theranos, on all 4 counts related to the alleged defrauding of patients. She was convicted on 4 counts related to defrauding of investors, including a conspiracy count. The jury hung on 3 additional investor fraud counts. There will be no retrial of the counts that the jury could not reach agreement on, because Holmes' ultimate sentence would not be affected by a guilty verdict on those counts. Moreover, under current Supreme Court case law, the trial court can (unfortunately) consider the government's evidence against Holmes on both the acquitted and hung counts in determining her sentence. The SEC long ago settled its case against Holmes without demanding an admission of wrongdoing on her part. Had she made such an admission there would have been no need for a criminal trial.
January 3, 2022 in Current Affairs, Fraud, News, Prosecutions, SEC, Securities, Sentencing, Settlement, Verdict | Permalink | Comments (0)
Friday, July 31, 2020
Where We Are Now In The Michael Flynn Case
The full United States Court of Appeals for the D.C. Circuit yesterday granted Judge Emmet Sullivan’s Motion for Rehearing En Banc, vacating a decision by one its three-judge panels, and will soon decide whether to grant General Michael Flynn’s Petition for a Writ of Mandamus against Judge Sullivan. Flynn seeks the Writ of Mandamus in order to force Judge Sullivan to immediately grant the Department of Justice’s May 7, 2020 Motion to Dismiss the criminal case against him, a motion consented to by Flynn. Regardless of the full Court’s ultimate ruling on the mandamus issue, DOJ’s Motion to Dismiss will have to be granted sooner or later under governing legal precedents. No federal appellate court has ever sustained a district court’s refusal to grant an unopposed government motion to dismiss an indictment.
There are two separate but related legal issues at stake before the Court of Appeals. First, does the law require Judge Sullivan to grant DOJ’s Motion to Dismiss in the absence of a grave constitutional issue, reducing Sullivan’s function to a ministerial one? Federal Rule of Criminal Procedure 48(a) requires “leave of court” when the government moves to dismiss an indictment, but an abundance of federal case law holds that the district court’s role is in fact quite limited when the government moves to dismiss a criminal case and the defendant consents. Second, is mandamus the appropriate remedy for Flynn given that Judge Sullivan has yet to rule on DOJ’s Motion to Dismiss? Mandamus is an extraordinary remedy, typically reserved for situations where the remedy provided at law is inadequate. Judge Sullivan had not yet ruled on DOJ’s Motion to Dismiss when Flynn filed his Petition for a Writ of Mandamus. Why didn’t Flynn just wait for Judge Sullivan to rule and for DOJ to appeal Sullivan’s order if he denied the motion?
The DOJ has argued that Judge Sullivan’s: 1) appointment of retired federal judge John Gleeson as an amicus, or friend of the court, for the specific purpose of opposing DOJ’s Motion to Dismiss; and 2) Judge Sullivan’s indication that he intends to examine closely DOJ’s motives in filing the Motion to Dismiss, will themselves be an improper intrusion into Executive Branch functions, in violation of Separation of Powers. Flynn has argued that these same factors, along with Sullivan’s setting of a drawn out briefing schedule, harms him financially and reputationally by delaying the immediate relief he is entitled to.
What is likely to happen next?
Argument before the Court sitting En Banc has been set for August 11, but the Court wants no further briefing. The Court’s Order states that the parties “should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).” Cheney is a key Supreme Court case involving the intersection of Separation of Powers and Mandamus case law. In other words, the key issue before the full D.C. Circuit is whether mandamus is premature. Should Judge Sullivan have been allowed to hold a hearing and make a ruling before Flynn went to a higher court seeking mandamus relief or did the very mechanisms set in place by Sullivan create an improper intrusion into Executive Branch matters and a harmful delay in the relief to which Flynn was entitled?
Even if the Court of Appeals ultimately holds that mandamus is premature, expect the full Court to set clear standards as to what Judge Sullivan can and cannot do (and how long he can take) in ruling on DOJ’s Motion to Dismiss. And make no mistake about it. The DOJ’s Motion will ultimately be granted.
July 31, 2020 in Current Affairs, Defense Counsel, Government Reports, Investigations, Judicial Opinions, Legal Ethics, News, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0)
Sunday, June 14, 2020
The Flynn Plea Agreement: A Pernicious Paragraph
One of the ironies of high-profile, criminal investigations of public officials, particularly Special and Independent Counsel investigations, is the outrage expressed by certain segments of the populace upon discovering the existence of very common law enforcement techniques. Hence the outrage among President Clinton's supporters when they learned that Linda Tripp secretly tape-recorded her "best friend" Monica Lewinsky at the behest of Ken Starr's prosecutors. Hence the outrage, among Trump's supporters, when they discovered that FBI officials wanted to catch General Flynn in a lie and threatened his son with prosecution in order to coerce a guilty plea. "That happens all the time," say the know-it-all criminal law cognoscenti who fellow-travel with one side or another, as well as their minions who parrot the party line to the faithful. Except in the case of Judge Starr. Almost nobody was on our side, parroting our points. Except the courts. Most of the time. But I digress.
Our subject today is a nasty little paragraph inserted into General Flynn's plea agreement by Bob Mueller's staff. I first started noticing this provision 5 or 6 years ago in some of the plea offers that came my way, depending on which U.S. Attorney's Office I was dealing with at the time. It has shown up more often since then, but is far from universal. It can be found in most or all of the Mueller team's plea agreements. It is typically found in Paragraph 9(F) within the Waivers section. It states as follows: "Your client agrees to waive all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including and without any limitation any records that may be sought under the Freedom of Information Act, 5 U.S.C. Section 552, or the Privacy Act, 5 U.S.C. Section 552(a), for the duration of the Special Counsel's Investigation." The limiting of the waiver to the duration of the investigation is not a feature I have previously encountered.
Although the waiver does not mention Brady material on its face, it clearly applies to requests for exculpatory records. (As I noted here recently, it was after General Flynn’s case was transferred to Judge Sullivan’s court, and Sullivan entered his broad standing Brady Order, that Mueller’s team appears to have provided voluminous additional discovery to Flynn’s lawyers.) Prosecutors have a constitutional duty to turn over exculpatory information to the defense even if defense counsel does not request it. But case law holds that more detailed, specific defense requests create a greater prosecutorial obligation. In my view, this paragraph forces defense counsel to breach his or her ethical duties to the client to vigorously demand Brady material as well as mitigating information required under state ethical rules and the McDade Amendment. The Department of Justice should put a stop to this and prohibit all such provisions from being part of its plea agreements. This includes FOIA requests, which serve to ensure, post-judgment, that the government's Brady obligations have been met. Here is the Flynn Plea Agreement.
June 14, 2020 in Current Affairs, Defense Counsel, Investigations, Judicial Opinions, News, Prosecutions, Prosecutors | Permalink | Comments (0)