White Collar Crime Prof Blog

Menendez Case Brings Back Memories of Computer Associates Prosecution

An interesting article in the New York Times this weekend about the Senator Menendez prosecution brought back memories of an earlier example of the aggressive use of obstruction of justice by the DOJ. According to this weekend’s article entitled How a Last-Ditch Effort to Save Menendez from Prosecution Backfired, Menendez’s attorney met with prosecutors in September 2023 to provide information about certain financial payments that were the subject of government scrutiny in an effort to prevent the Senator from being indicted. As those in the white collar field know, such meetings are not unusual during investigations. According to the Times, despite the meeting, Menendez was indicted in relation to those financial payments less than two weeks later. Again, not an unusual course of events. But there was something of note about the charges in the case. Though not contained in the original indictment, a superseding indictment from March 2024 included a count of obstruction of justice under 18 U.S.C. section 1503 related to that meeting between defense counsel and the prosecution in September. According to the superseding indictment, Menendez engaged in obstruction because he “caused” his counsel to “make statements regarding the bribe money… which statements [he] knew were false, in an effort to interfere with an investigation….” See Superseding Indictment at 62-63 (March 5, 2024). Importantly, the Times makes clear that Menendez’s counsel engaged in no wrongdoing of any kind. 

While the Menendez indictment utilizes a different obstruction statute, the case brings back memories of another obstruction charge from over 20 years ago.

In 2002, the DOJ and SEC investigated accounting practices at a computer software company called Computer Associates. Early in the investigation, the government requested that the company retain counsel and investigate the matter. The company complied and retained an outside law firm in February 2002. The indictment in the case describes what the government alleged happened next.

Shortly after being retained in February 2002, the Company’s Law Firm met with the defendant Sanjay Kumar [former CEO and chairman of the board] and other Computer Associates executives [including Stephen Richards, former head of sales,] in order to inquire into their knowledge of the practices that were the subject of the government investigations. During these meetings, Kumar and others did not disclose, falsely denied and otherwise concealed the existence of the 35-day month [accounting] practice. Moreover, Kumar and others concocted and presented to the company’s law firm an assortment of false justifications, the purpose of which was to support their false denials of the 35-day month practice. Kumar and others knew, and in fact intended, that the company’s law firm would present these false justifications to the United States Attorney’s Office, the SEC and the FBI so as to obstruct and impeded (sic) the government investigations.

… Kumar knew that this explanation was false and intended that the company’s law firm would present this false explanation to the United States Attorney’s Office, the SEC and the FBI as part of an effort to persuade those entities that the accusations of the former salespeople were un- founded and that the 35-day month practice never existed.

See United States v. Kumar, 617 F.3d 612, 616-19 (2d Cir. 2010); see also United States v. Kumar, 2006 WL 6589865 (E.D.N.Y. Feb. 21, 2006); Indictment, United States v. Kumar 30-32 (E.D.N.Y. Sept. 22, 2004).

In response to this alleged conduct, the government in the Computer Associates case indicted the employees with violation of 18 U.S.C. section 1512(c)(2) for seeking to “knowingly, intentionally and corruptly obstruct, influence and impede official proceedings, to wit: the Government Investigations.” In response to the charges, the defense community expressed great alarm and counsel for the employees filed a motion to dismiss. While the motion was denied at the trial level, many anticipated a legal challenge to the charges on appeal if the defendants lost at trial. The higher courts, however, did not have the opportunity to examine the issue as everyone in the matter pleaded guilty.

While there are certainly important distinctions between the Menendez indictment and the Computer Associates case, they both raise important questions about the protections of the role of defense counsel and the future of presentations to the government during the investigatory stage. We will have to wait for the outcome of the trial to see whether the appellate courts have an opportunity to weigh-in on the legal theory this time around. 

(LED)

Garland on the Fischer Case

DOJ Press Release here on the Fischer case. AG Garland states in part -

"The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer."

See my analysis here.

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Fischer - "Who Could Blame Congress for that Failure of Imagination"

The Fischer case (here) is likely to be a note case in casebooks, as opposed to a main case as many (including myself) predicted. The Court engages in a fairly straightforward statutory interpretation analysis with the word "otherwise" being the key word being interpreted by the majority. Although questions are left unresolved by Chief Justice Robert's majority opinion,  Justice Jackson provides lower courts with important guidance in a brilliant concurring opinion. Justice Barrett authors the dissenting opinion with two of the dissenting regulars (Sotomayor and Kagan) joining. 

Looking first at the majority -

1. In usual monochrome fashion, the Court takes on the question of whether the otherwise clause in subsection 1512(c)(2) should be read as limited by section 1512(c)(1).  
2. The Court makes a point of noting that Fischer has six other counts that are not under consideration here, and that they are only looking at count three of his convictions. This sends a clear message that charges and convictions under other statutes that go to conduct such as "forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol, among other crimes. See id., at 181–185; 18 U. S. C. §§111(a), 231(a)(3),1752(a)(1), (a)(2); 40 U. S. C. §§5104(e)(2)(D), (G)" are not hampered by this decision. 
3. Much of the decision comes down to the meaning of the word "otherwise" in subsection (c)(2), with the majority reading it narrowly. 
4. So first there is a football analogy of "[f]or instance, a football league might adopt a rule that players must not 'grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player.' If a linebacker shouts insults at the quarterback and hurts his feelings, has the linebacker nonetheless followed the rule? Of course he has. The examples of prohibited actions all concern dangerous physical conduct that might inflict bodily harm; trash talk is simply not of that kind."
5. Then there was the zoo analogy, "A zoo might post a sign that reads, 'do not pet, feed, yell or throw objects at the animals, or otherwise disturb them.' If a visitor eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure, has he obeyed the regulation? Surely yes. Although the smell of human food or the sound of voices might well disturb gorillas, the specific examples of impermissible conduct all involve direct interaction with and harassment of the zoo animals. Merely eating or talking is so unlike the examples that the zoo provided that would be implausible to assume those activities were prohibited, even if literally covered by the language."
6. Looking at the origins from the Sarbanes-Oxley Act and Enron debacle, the Court finds that "[i]t makes sense to read subsection (c)(2) as limited by (c)(1) in light of the history of the provision."  But it then goes on to note that "[t]he better conclusion is that subsection (c)(2) was designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability beyond those Congress specified in (c)(1)."
7. Noteworthy is the statement, "[r]ather than transforming this evidence-focused statute into a one-size-fits-all solution to obstruction of justice, we cabin our reading of subsection (c)(2) in light of the context of subsection (c)(1)."
8. In the end, the word "otherwise" is given a narrow meaning - keep it to what Congress intended post-Enron.  ("To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.")
9. The Court does not decide what happens to defendant Fischer - they send the case back to the lower court to make that decision in light of this decision.  Depending on the evidence at trial, the court may throw out this count.  The court will then need to decide if the inclusion of this count had a spillover onto other counts. 

Concurring Opinion by Justice Jackson - 

1.  She reminds readers what we are really talking about here. ("On January 6, 2021, an angry mob stormed the United States Capitol seeking to prevent Congress from fulfilling its constitutional duty to certify the electoral votes in the 2020 Presidential election. . . .  The peaceful transfer of power is a fundamental democratic norm, and those who attempted to disrupt it in this way inflicted a deep wound on this Nation.")

2. Unlike a somewhat superficial analysis offered in the majority opinion, she goes a step further in considering the football analogy.  Trash talk is not included, but so do we omit the other end of the spectrum ("if a player were to shoot or poison another player, the rule’s drafters would expect the police to be called, not a referee.").

3. She notes that the rule's purpose is important.

4. She guides the lower court's revisit to the case in saying, "Joseph Fischer was charged with violating §1512(c)(2) by  corruptly obstructing 'a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.' App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding 'in ways other than those specified in (c)(1).'”

Dissenting Opinion by Justice Barrett (joined by Justices Sotomayor and Kagan) - 

1.  Best line of the case - "Because it simply cannot believe that Congress meant what it said. Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?)"

2. "Blocking an official proceeding from moving forward surely qualifies as obstructing or impeding the proceeding by means other than document destruction. Fischer’s alleged conduct thus falls within (c)(2)’s scope."

3. Like the majority it references two key statutory interpretation tools, noscitur a sociis and ejusdem generis. 

4.  The dissent argues that the hypotheticals offered by the majority do not fit here with ejusdem generis - there is no laundry list of terms used here, and "trash talk" is not the same as "inflicting an 'injury.'" 

5. Finally, they remind everyone of the role of the Court and the role of legislature, "[o]nce Congress has set the outer bounds of liability, the Executive Branch has the discretion to select particular cases to prosecute within those boundaries. By atextually narrowing §1512(c)(2), the Court has failed to respect the prerogatives of the political branches."

Bottom Line - This is a narrow decision, Justice Jackson gives good guidance of how to interpret it in other cases, and let's not forgot that we are talking about the importance of the peaceful transfer of power. Of course Congress didn't anticipate this. 

(esp)

Fischer v. United States

Here. Commentary to follow. 

(esp)

 

Opening Supreme Court Brief in Fischer v. United States

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

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

(wisenberg)

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 - Government's Reply re Motion in Limine on Advice of Counsel Defense 3.8.22 - FINAL.

U.S. v. Stephen Bannon - Defendant's Surreply re Government Motion in Limine on Advice of Counsel.

(wisenberg)

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

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

"(c) Whoever corruptly-

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

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

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

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

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

(wisenberg)

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. 

(wisenberg)

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

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)

Trump Indictment # 3 - "You're too honest"

Special Prosecutor Jack Smith's recent Indictment  of former President Donald Trump carries serious charges, and this is the most important case for our country and our constitutional processes. My thoughts:

1. The Indictment is 45 pages long and has four charges: Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States); Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding); Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding); Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights).
2. What is not in the Indictment is important - that is, a charge related to incitement. Special Prosecutor Jack Smith removes many of the First Amendment defense arguments by making this a case about obstruction and conspiracy.  The Indictment (p.2) openly states that "[t]he Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome -determiniative fraud during the election and that he had won." Removing free speech claims and instead focusing on the unlawful activity itself will eliminate some of the challenges that might have been raised.
3. Donald Trump is the sole defendant - this is significant, as the case can move faster without needing to accommodate the schedules of co-defendants.  It is also significant because the jury will be focused only on one person and four charges. This streamlining makes it easier for the jury to understand. 
4. The Indictment reminds me of someone building a structure using Legos. It is methodical and all the pieces fit together. And when you put all the pieces together you have a clear picture. 
5. Arguably, this indictment is more of a speaking indictment than the prior charges brought by Jack Smith in Indictment #2 against Donald Trump. But one could say that even alleged comments like the former president saying to former VP Mike Pence - "You're too honest" - are likely to be admissible at trial. After all, it can be offered as evidence to show Trump's mens rea.
6. The Indictment would make a terrific ethics class on what a lawyer should and should not do. You can call it - the lawyers who violated the law v. the lawyers who saved democracy. The unindicted co-conspirators who are portrayed in some instances as lawyers who failed to remember basic ethical principles against the lawyers who refused to perpetuate lies and adhered to a constitutional process. 
7.  Many ask why so many unindicted coconspirators, why did Jack Smith not charge them.  My thoughts are that it puts these individuals on notice that several avenues might be pursued: a) They could come forward now, reach an agreement and cooperate, receiving the benefits of cooperation; b) The prosecutor could grant them immunity and then they would no longer be able to claim a 5th amendment privilege --they would be required to testify and if they testified falsely the prosecutor has additional ammunition in charges such as perjury; c) The prosecutor could indict them in a separate or later indictment; or d) The prosecutor could keep them as witnesses, unidentified and uncharged co-conspirators, and not move against them.  It is always possible that an unindicted coconspirator is already cooperating. So, beyond the indictment, Jack Smith has possible additional evidence if he needs more.
8.  It is likely that there is more evidence that is not outlined in this Indictment. At the J6 hearings, we all heard testimony of Trump's alleged obstruction. So cooperation agreements, or just witnesses testimony, may already be evidence held by the government.  
9. Some question - why this Indictment took so long in being charged.  This is not a new argument - we hear it all the time in white collar cases.  The bottom line is that white collar cases often involve documents and the process can be significantly slower than a street crime case. Additionally the government typically proceeds with cases working up the ladder.  The initial J6 prosecutions were for individuals on the ground committing criminal acts. The government then moved to leaders of various groups.  Moving next to those at the top, therefore, makes perfect sense.
10. The initial charge, 18 USC 371, is the classic generic conspiracy charge used often by the government. In the federal system, unlike some states, a prosecutor can charge both the conspiracy and the underlying offense. What is somewhat unique here is that there are two ways to bring a 371 charge -- a) conspiracy to commit a specific offense; or b) conspiracy to defraud. Typically the first is used by the government - a conspiracy to commit a specific offense, with the offense being anything from obstruction, wire fraud, mail fraud, etc. The government here chose to charge conspiracy to defraud the government, a less used basis for conspiracy charges. But in looking at the alleged evidence, this charge is the essence of that conduct - namely, the defendant is alleged to have been part of a conspiracy to defraud the United States. 
11. The last charge, 18 USC 241, is not something we often see charged. According to Syracuse's Trac Reporting there have only been 11 prosecutions in 2023 with this as the lead charge. And that is a 1600 % increase from last year, 113% from five years ago.  If you go back 20 years, during the Bush presidency, it was a heavily used charge.  To use a charge that has not been heavily used in the past few years may provide less caselaw with interpretation, but it also demonstrates how significant this alleged conduct may be.
12. Of the cases pending against former President Trump, it is my opinion that this case is the most signifcant. Although national security is crucial to our country (case # 2), this case involves alleged conduct that tested whether we would continue to be a democracy.   

(esp)

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 -

1. 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).
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).
3. 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. 
4. 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." 
5. 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. 
6. 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.
7. 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.  
8. 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. 
9. 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.
10. 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)

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)

 

Obstruction of Justice - A Topic in the Release of the Search Warrant Affidavit

Not surprising, the release of the Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize items from Mar-a-Lago is heavily redacted.  This is necessary, as it is clear that individuals and information need protection. Equally important is that we are dealing with classified material and whatever that information may be, it needs protection.  It is frightening to think that some of this nation's security secrets may have been compromised.

But what is also noteworthy here, is that there is concern about a possible obstruction of justice.   

1. We asked you for it. It looks like the National Archives and Records Administration (NARA) has been trying to get this material for some time - " NARA had ongoing communications with the representatives of former President Trump throughout 2021." (p. 8) 
2. You gave us some of it. It looks like the Former President gave up some information. (15 boxes were received on Jan. 18, 2022) (p. 1)
3. You didn't give us all of it. It looks like the Former President failed to provide all the information. And here we are 6 months later and the rest of the materials have not been provided.  

And so the question is whether there has been an obstruction of justice. As stated in the Affidavit - "Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES.  There is also probable cause to believe that evidence of obstruction will be found at the PREMISES." (p. 2)

Former President Trump is in a catch-22 position. He is saying he declassified the info, mind boggling as that admission may be, and thus admitting that information was still there. But if there are documents still there than you have a violation of the Presidential Records Act.  And on the other hand, if there is information there and the government was not given that information under a lawful request, you have a possible obstruction of justice. (18 U.S.C. 1519). 

This is not a case of fish being thrown overboard when a fisherman was instructed to bring it back to shore (Reversed in Yates v. United States).  This is a case of sensitive government documents.  

This is also not a case of dealing with a politician who did not want to disclose personal tax returns.  This is a case of determining whether presidential documents that require preservation under law were not properly preserved and whether there was an obstruction in failing to give these documents when requested by the government.  What remains unanswered is what Attorney General Merrick Garland does with all of this. 

(esp)  

Naming Conventions And Naming Convictions

What’s in a name? Several of the individuals indicted in connection with the January 6, 2021, assault on the U.S. Capitol have been charged under Title 18, United States Code, Section 1512(c)(2). Subsection (c) of 18 U.S.C. §1512 seeks to punish: “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.” 18 U.S.C. §1515 supplies definitions for some of the terms used in §1512 and defines “official proceeding” to include, among other things, “a proceeding before the Congress.” Many of the motions to dismiss filed by January 6 defendants, and judicial opinions denying these motions, center around whether  §1512(c)(2) was meant to be confined to proceedings that are quasi-judicial or evidentiary in nature, even if the proceedings take place in Congress. I previously posted three of these judicial opinions. That is not my focus here. 

18 U.S.C §1512, a lengthy statute with several subsections, has a title as well. The official title is: “Tampering with a witness, victim, or an informant.” That is the only title the statute has. None of the subsections of §1512 contains an additional or separate subtitle. Note, however, that none of the persons charged under 18 U.S.C. §1512(c)(2) has been literally charged in his or her Indictment, or in any press coverage that I have seen, with, “tampering with a witness, victim, or an informant,’ which, again, is the only title of §1512. To take one example, in U.S. v. Nordean et al., the defendants are charged in the First Superseding Indictment with “Obstruction of an Official Proceeding and Aiding and Abetting.” This makes sense. The facts alleged against the defendants appear to align with the literal language of §1512(c)(2) and do not involve witness tampering.

Fast forward to the recent indictment of Oath Keeper Elmer Steward Rhodes III and others for “Seditious conspiracy,” pursuant to 18 U.S.C. § 2384. The defendants are also charged with violating several other statutes, including 18 U.S.C. §1512(c)(2). While 18 U.S.C. § 2384, unlike §1512(c)(2), does not have separately numbered subsections, it clearly sets out several different ways in which the crime can be committed. For example, one cannot “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.” I believe something like this formulation is what most people think of when they think of sedition. But Rhodes and his Oath Keepers were not charged under that "overthrow the Government" portion of the statute. They were charged with conspiring “by force to prevent, hinder, and delay the execution of any law of the United States.” (The laws allegedly being hindered were the Electoral Count Act and the Twelfth and Twentieth Amendments to the U.S. Constitution.) The caption in the Indictment could have set the charge out in this fashion, as a “conspiracy to by force prevent, hinder, and delay” particular laws of the United States, with a citation to 18 U.S.C. §2384. That is not what Department of Justice officials decided to do, however. They captioned the charge as “seditious conspiracy.” There was nothing improper about their decision, just as there was nothing improper about their decision to list §1512(c)(2) in the caption of Nordean as “obstruction of an official proceeding” rather than “witness-tampering.”

But the effect in the wider media culture was predictable. Several pro-Trump television commentators had been making the point that none of the January 6 defendants were seditionists, because none had been charged with seditious conspiracy. They could not say this anymore in light of the Rhodes Indictment and their prior comments were thrown back in their faces by progressive commentators. So be it. That’s politics. But, at least with respect to the indicted January 6 rioters, conspiring by force to prevent, hinder, and delay the execution of the Electoral Count Act (“seditious conspiracy”) is not substantially different than corruptly obstructing or conspiring to corruptly obstruct the very Congressional proceeding in which the Electoral Count Act is being executed. They are both serious charges that should be prosecuted vigorously if the facts so warrant. And if any Congressperson, Executive Branch official, or podcast host aided and abetted or joined a conspiracy to violate either statute, under traditional criminal law principles, he or she should be prosecuted as well.

Sloppy language, however, invites sloppy thinking and prosecuting someone for aiding and abetting a violent mob intent on forcefully stopping a critical Congressional proceeding or the execution of a statute, is quite different than prosecuting someone for seditious conspiracy because he told a crowd that the election was stolen, invited them to peacefully protest the vote count, or tried to convince Mike Pence that he had the power to refuse to certify certain slates of electors. (I wrote about John Eastman's potential criminal exposure, in the context of the Fifth Amendment's Privilege Against Self-Incrimination, here.) Likewise, prosecuting anyone for delaying the vote count by using the procedures set out in the Electoral Count Act, is without more, doomed to fail under rather basic constitutional and criminal law tests. The devil is always in the details of the purportedly criminal acts under examination.

The people intent on federally prosecuting Trump and his cohorts for the events on and surrounding January 6, 2021, need to think small and in terms of traditional criminal law principles. We witnessed a riot. We witnessed criminal assaults. We witnessed people invading Congressional offices and threatening to “Hang Mike Pence.” Some of the people who committed these acts were attempting to prevent the peaceful transfer of power to Joe Biden. There are statutes in place that appear to criminalize this conduct. The quest to use the criminal law to “go after the higher-ups” should focus on who, if anybody, aided, abetted, counseled, commanded, induced or procured the commission of these specific criminal offenses--not on people engaged in protected First Amendment political activity. In the words of the standard pattern aiding and abetting instruction, “whoever intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about,” is punishable as a principal. My guess is that some pretty well-known people are sleeping uneasily these days. My further guess, and it is no more than a guess, is that the DOJ has been looking at these people for some time. But I seriously doubt, based on currently known information, it will go much beyond these folks.

(wisenberg)

It Is All In the Emails - Mueller Report Review

Judge Amy Berman Jackson issued an order today that dissects two claims raised in Citizens for Responsibility & Ethics in Washinton v. U.S. Dept. of Justice related to the Mueller Report. It notes that "CREW brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the United States Department of Justice (“DOJ”), seeking the production of documents that Attorney General Barr reviewed in advance of his public announcement concerning the report transmitted to him by Special Counsel Mueller."  Key to this analysis was looking at applicable exemptions under FOIA.

The Court found Document 6 properly withheld, but Document 15 did not have a like finding. The agency attempted to use the deliberative process provilege and the attorney-client privilege under exemption 5. The court stated:

As noted above, summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc., 726 F.3d at 215, quoting Consumer Fed’n, 455 F.3d at 287. But here, we have both.

The court stated:

The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

Perhaps a deeper investigation is needed here.  Examining prosecutorial discretion on when obstruction of justice is proper and when it is not, is something that needs review. In my recent Article, "Obstruction of Justice: Redesigning the Shortcut,"  I argue that there needs to be a consistent framework for obstruction of justice and not one that can be rearranged dependent upon the Attorney General or others. 

(esp)

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

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

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

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

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

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

(wisenberg)

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.

(wisenberg)

New Filings in Flynn Mandamus Action

Michael T. Flynn's Opposition to Rehearing En Banc has been filed today in the United States Court of Appeals for the D.C. Circuit. This is in opposition to Judge Emmet G. Sullivan's Petition for Rehearing En Banc, filed on July 9. The Department of Justice was invited by the Court to respond and did so today in the United States' Response to the Petition for Rehearing En Banc.

Both Flynn and DOJ argue that Sullivan lacked standing to file the Petition for Rehearing, as he is not a party and there is no longer a case or controversy. Apparently only one federal judge in history has filed such a petition and it was denied. DOJ's brief also argues in detail, quite effectively I think, that the panel's decision granting mandamus does not conflict with: D.C. Circuit precedent; precedent in other circuits; or Supreme Court precedent. 

DOJ also responds directly and succinctly to Judge Sullivan's argument that mandamus was premature, because he had not yet held a hearing or made a ruling on DOJ's Motion to Dismiss. Flynn therefore had an effective remedy on appeal from any adverse ruling. This argument ignores the continuing harm to the Executive Branch's interests occasioned by the judge's dilatory behavior:

"That objection misses the point: at stake is not mere consideration of a pending motion, but a full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government’s position raising factual questions, relying on extra-record materials, probing the government’s internal deliberations, and second-guessing core prosecutorial judgments.... Accordingly, while the panel specifically recognized that '[a] hearing may sometimes be appropriate before granting leave of court under Rule 48,' it determined that the hearing contemplated by the district court here would 'be used as an occasion to superintend the prosecution’s charging decisions' and would cause 'specific harms.' "

My prediction is that Judge Sullivan's Petition for Rehearing En Banc will be denied.

(wisenberg)

U.S. v. Michael Flynn: The Responses to Gleeson's Amicus Brief in Judge Sullivan's Court

Attached are the separate Responses of Michael Flynn and the Department of Justice to former federal judge John Gleeson's Amicus Brief in U.S. v. Flynn.  A copy of Gleeson's Brief is also attached for ease of reference. Keep in mind that all of these papers were filed in Judge Emmet Sullivan's court, rather in the DC Court of Appeals which is hearing General Flynn's Petition for Writ of Mandamus against Judge Sullivan. This is because it was Judge Sullivan who decided to appoint an amicus and set a lengthy briefing schedule instead of granting the Motion to Dismiss outright or simply holding a hearing in the first place.

The DOJ Response, in addition to demolishing Gleeson's legal arguments, puts more stress than before on the Interests of Justice rationale for moving to dismiss the case against General Flynn. I'll be commenting on that in the next few days. DOJ also goes out of its way to oppose the Flynn camp's position that there was prosecutorial misconduct connected to the prosecution. DOJ rejects this out of hand, both with respect to all of the older exculpatory materials and the information discovered, declassified, and turned over by U.S. Attorney Jeffrey Jensen within the last two months. DOJ in fact turned over a significant amount of exculpatory material prior to General Flynn's guilty plea. Of course, we still have the mystery of the missing original draft 302, which has not been explained to my satisfaction by the Fan Belt Inspectors. 

As noted, the Jensen documents were not turned over until very recently, but there is no indication that any prosecutor knew, much less received, these items. That's important, because these items unmistakably lend further support to the view that Flynn's January 24 statements to FBI Special Agents were not material to the FBI's Crossfire Hurricane investigation. This makes the items Brady in my view. But DOJ still has its institutional interests to protect. And it has historically been in the forefront of seeking to limit the reach of Brady. 

More to come on all of this.

Brief for Court Appointed Amicus John Gleeson

Gov. Response to Gleeson Br.Final

FLYNN OPPOSITION TO GLEESON FILING v.25

(wisenberg)