Sunday, February 18, 2018
The speaking indictments of this past week provide a clear trail to Russian individuals and entities allegedly interfering in the 2016 Presidential election. The choice of charges, which include conspiracy to defraud, are no surprise. An indictment under section 371 can take one of two avenues: conspiracy to commit a specific offense or conspiracy to defraud the government. This is a classic case for the defraud statute to be used, as it is the U.S. election process that is alleged to be compromised here. Several questions to consider here:
- Why has it taken so long for this indictment? Answer - it hasn't. Actually Mueller's team is moving faster than we often see in white collar cases where the investigation can take many years. In less than a year, the Special Counsel's Office has accumulated several cases (see here). Computer related cases can take even longer as tracking items on the web are not easy, especially when a perpetrator tries to mask its origin.
- Can the U.S. prosecute extraterritorial conduct? Answer - Yes and No. You will notice that the alleged conduct in this indictment either took place inside the U.S. or had an "affect" here in the U.S. Under principles of "objective territoriality," the U.S. has, in many instances, prosecuted conduct occurring outside the U.S. that has an effect in this country. As one who has been somewhat critical of objective territoriality, I have been a strong advocate for using what I term "defensive territoriality." Interfering in a U.S. election would most definitely fit the bill of conduct that the U.S. needs to defend against. Over the past few years, the Supreme Court has wrestled with the issue of the application of different U.S. statutes for conduct occurring outside this country. A three-fold response here: 1) this is not extraterritorial conduct, 2) even if it is extraterritorial, there are enough acts in this country to allow for jurisdiction here, and 3) the U.S. needs to defend its election process.
- Can the government bring the charged Russians to the U.S.? Answer - It may be difficult here. Do we think that the Russian government will be turning over these individuals for a U.S. prosecution? Without a U.S.-Russian extradition treaty the chances of this happening are diminished. Perhaps one of them will travel to a country where the U.S. does have an extradition treaty (see here). Other methods exist, such as luring (see here), but the international community frowns on its use. Prosecuting these individuals/entities are less important than letting the public know that our election process has allegedly been the subject of attacks from Russia. Mueller's team definitely accomplishes this here.
The more interesting Information and Statement of the Offense relates to Richard Pinedo, a cooperating witness who has a plea agreement for a violation of section 1028. Although the Information has section 1028 on it, it also is termed identity fraud and speaks to an alleged violation of the wire fraud statute found in section 1343. The Information only speaks about a Count One. Whether there is another document with other counts is unknown. We saw this previously with the Informations of Michael Flynn and George Papadopoulos, so it is doubtful that the use of "1" without a "2" is significant. The special counsel's website has "et al" after Pinedo's name, but no other names listed. Other Indictments and Informations on the Special Counsel's website do not have "et al." (See Flynn, Manafort, Gates, and Papadopoulos). The Pinedo Information says it was filed on February 7, 2018, as "sealed." The header on the understanding for the plea is also marked sealed, but dated February 12, 2018. All of this may be nothing, but it is interesting to note. Finally, kudos to the special counsel's team for writing a plea that does not include offensive language such as a waiver of any possible claims of ineffective assistance of counsel. These documents go a step further to allow for such claims to be brought by the accused even though they are pleading guilty. Ethically, this is the way a plea should be written, but some past documents in some US Attorneys' Offices have not always done this. The Florida Ethics Board went so far as to issue an ethics opinion prohibiting waivers of ineffective assistance of counsel (see here). So Mueller's team taking the high road on the wording of its pleas, is nice to see.
What happens next? The Mueller team may know, but we don't. So stay tuned.
Thursday, February 1, 2018
Syracuse Trac just reported the number of environmental criminal prosecutions is continuing to drop. (see here). Based upon first quarter statistics, the "annual total [projected] prosecutions will be 220 for this fiscal year." This would be down from 338 for FY 2017 and 393 for FY 2016. In 2007 the number was above 900 prosecutions for the year.
(esp) (w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports).
Monday, January 29, 2018
Friday, December 29, 2017
I was young once; a federal prosecutor investigating savings and loan ("S&L") fraud for the U.S. Attorney's Office in the Western District of Texas (San Antonio Division). About a year after the 1988 Presidential election, we got a new U.S. Attorney. He was a politically active civil attorney from El Paso. During this time period, there arose a "person of interest" in one of my biggest S&L cases. This person of interest was a partner at a prominent San Antonio law firm. It so happened that a name partner at the same firm had played a significant role, perhaps the significant role, in securing the U.S. Attorney appointment for my new boss. The name partner called me one day and asked to come in and speak to me about the case. I went to my new boss. We immediately came to the conclusion that my new boss should completely recuse himself from the S&L case. Why? It was a no-brainer. The name partner had been instrumental to the new U.S. Attorney's appointment. The name partner's law partner was a subject in my case. It would create an appearance of impropriety if we declined to prosecute the "person of interest" partner while my new boss had any input or role whatsoever, even an oversight role, in the process. Did it matter that the support from the law firm had happened in the past? Of course not. The name partner's support constituted a big favor. Did it matter that the support came from the subject's partner and not the subject himself? No.
When I learned that FBI Director Andrew McCabe's wife received almost $700k in campaign funds through the efforts of a long time, well-known Clinton crony, I was completely unimpressed that the campaign was over by the time Deputy Director McCabe assumed his oversight role in the Clinton email investigation. A big favor--and a recent favor--had been given to McCabe's wife by someone very close to the subject of the investigation. The favor was the bankrolling of a political campaign--funds that would never have to be repaid. I became even more concerned when I read that McCabe had oversight authority in the Clinton Foundation case and made decisions about what could and could not be investigated. And when CNN's Josh Rogin solemnly pronounced that there was "no evidence" McCabe had done anything wrong, I begged to differ. It was wrong for McCabe to have any oversight role whatsoever in any investigation of Mrs. Clinton or Governor McAuliffe. It doesn't mean that McAuliffe was trying to bribe anyone or influence FBI decision-making. It doesn't mean that McCabe was improperly influenced in his own decision-making, or violated any law, or ethical rule. It doesn't matter whether any of McCabe's decisions were, standing alone, wise or unwise. It matters that his failure to recuse created an appearance of impropriety. Recusal should have been a no-brainer.
Based on everything I have heard about McCabe, he has been a dedicated career public servant and an honorable man. He obviously does not deserve some of the harsh things being said against him. Nor does he deserve to be fired or have his pension taken away--neither of which would be legal anyway. But FBI Director Wray should reassign McCabe. McCabe made a mistake and a significant one.
Saturday, December 23, 2017
On Friday, two international soccer executives were convicted in federal court in Brooklyn, New York, for their roles in a global bribery scandal. The defendants were alleged to have received bribes and kickbacks to influence decisions regarding media rights associated with significant FIFA soccer tournaments. The defendants were also alleged to have accepted payments to influence the selection of venues for the World Cup and other important tournaments.
Juan Angel Napout, former head of South America’s football governing body, was accused of accepting $10.5 million in bribes, and Jose Maria Marin, former president of Brazil’s Football Confederation, was accused of accepting $6.55 million in bribes. Napout was convicted of several counts, including racketeering conspiracy, wire fraud, and money laundering. Napout was convicted of racketeering conspiracy and wire fraud.
After the convictions, FIFA stated, “FIFA strongly supports and encourages the U.S. authorities’ efforts to hold accountable those individuals who abused their positions and corrupted international football for their own personal benefit.”
The jury was unable to reach a verdict regarding the third defendant in the case, Manuel Burga, former president of the Peru soccer federation. Jurors will return next week to continue deliberating in his matter.
Since the investigation into international soccer began in 2015, more than 20 defendants have pleaded guilty. Several news outlets have in-depth coverage of Friday’s convictions, including the New York Times, Sports Illustrated, the BBC and Bloomberg.
Monday, December 18, 2017
Judge Jeanine Pirro, Jesse Watters, and other Fox News all-stars are calling Bob Mueller's investigation an attempted coup, a deliberate attempt to overturn the results of the 2016 election. Liberal media commentators are outraged, as well they should be. I'm personally disgusted by such tactics. Mueller is a duly appointed Special Counsel, put in place by a longtime Republican conservative, and the need for a Special Counsel under the governing regulation is clear. If Trump ends up getting impeached, that too will be part of a legitimate constitutional procedure. We are a government of laws and we know how to handle such matters. But it is worth pointing out that the left-leaning media and their talking heads have unclean hands.
Hillary Clinton (First Lady at the time) and Clinton surrogates referred more than once to Ken Starr's investigation as an attempted coup. Nixon lackeys said exactly the same thing about Archibald Cox. This is what happens when Special Counsel or Independent Counsel investigations get too close to the target. There is nothing new about it. This is a historical fact. Spare me the hypocrisy.
You are no doubt outraged that Judge Pirro wants Mueller "led out in cuffs." Were you similarly outraged when Clinton friend and surrogate James Carville publicly warned Independent Counsel Ken Starr that he was "one mistake away from not having any kneecaps"?
Two wrongs don't make a right. But CNN, MSNBC, and the entire Democratic Party establishment (including their surrogates and retained attorneys) need to recognize the precedents they set during the Whitewater/Lewinsky investigation. Every night, for years, Judge Starr was nightly vilified in a ceaseless onslaught by Geraldo Rivera, Keith Oberman, Charles Grodin, and others too numerous to mention. So folks, please look in the mirror. You are the ones who opened the door.
As I have said here before, Bob Mueller is a public official subject to criticism like any other public servant. He has been tone deaf and naïve in the selection of personnel on his team. But I see no credible evidence that his investigation has been tainted or compromised and no reason for him to step down. I won't hesitate to criticize Judge Jeannine, Jesse Watters, and their ilk when they unfairly attack him. It's nice to know that this time I won't be alone.
Thursday, December 14, 2017
With apologies to the memory of Robert Altman.
- FBI Deputy Director Andrew McCabe wouldn't know a conflict of interest if it jumped up and bit him in the butt. He had no business supervising the Clinton Email investigation or the Clinton Foundation investigation in any capacity whatsoever. Supervising those investigations after his wife's political campaign accepted a $600K plus donation from close Clinton ally Terry McAuliffe was a gross and obvious conflict of interest. Yet he persisted.
- McCabe did not recuse himself until after publication of a Wall Street Journal article detailing the McAuliffe donation. By that time, both investigations were closed. FBI Special Agents involved in the Clinton Foundation investigation were reportedly kept from pursuing certain avenues of investigation with McCabe's knowledge and/or participation.
- The Clinton email investigation and the Clinton Foundation investigation were both mishandled. Anybody even remotely familiar with how federal investigations work will tell you as much. You don't give limited use immunity to gain access to a witness's computer when you can get the same information through a search warrant. This is particularly true when the immunity grant impacts a related investigation--which it almost certainly did in this instance. You don't let a small army of the subject's cronies attend her formal law enforcement interview. You don't allow a witness in the investigation to attend the subject's interview under the guise that said witness is also the subject's attorney.
- The FBI's Peter Strzok should never have been assigned to the Russian/Trump Collusion investigation by Comey and McCabe in August 2016. By this time, the Clinton Email investigation was being harshly criticized by GOP front-runner Trump and other Republican hopefuls. You don't assign the FBI agent whose work is being attacked to investigate the very person who is leading the attack. Accordingly, Mueller should have removed Strzok as one of his first official acts. We now know that Strzok had a vitriolic hatred of all things Trump, which he freely exhibited during the course of the Russian/Trump Collusion investigation. It's not about Strzok's political views. Agents and prosecutors cannot be hired, passed over, or fired based on their political affiliation. It's about Strzok's ability to operate in an unbiased manner during the course of an investigation. To his credit, Mueller immediately fired Strzok upon learning ab0ut Strzok's incriminating texts. It now appears that McCabe almost certainly knew of Strzok's intemperate hatred of Trump before, or shortly after, Strzok was assigned to the Russian/Trump Collusion investigation. What a wonderful little stink bomb he left for Mueller.
- DAG Rod Rosenstein should order the DOJ to release the full contents of Bob Mueller's Conflicts Waiver, except for portions that must remain confidential to protect attorney-client confidences. The public has a right to know of any friendships that could potentially impact Mueller's work.
- Bob Mueller is an honorable man. He is also tone deaf and politically naïve. Mueller should have recognized that he and his team would be attacked by Trump World and put under a microscope. He should have taken greater care to assure himself that the team he assembled would not be subject to credible accusations of political bias. Special Counsels are hired in the first place to avoid conflicts of interest and the appearance of conflicts.
- Bob Mueller should not resign or be fired, because he has done nothing that would warrant resignation or firing. The calls for Mueller to quit or be sacked are coming for the most part from partisan ideological hacks. These are some of the same people falsely stating that Rosenstein is a liberal Democrat and a Mueller protégé. Rosenstein (my old friend and former colleague) is a mainstream conservative Republican and long-time play-it-by-the book professional. I guess that's not good enough for some people, who apparently want him to have a pin-up of Roy Moore in his bedroom.
- Bob Mueller should not demand the resignation of any staff members, based on our current state of knowledge. True, he should not have hired Andrew Weissman, who has more baggage than a Carnival Cruise ship, or Jeannie Rhee in the first place, due to the appearance of potential bias. But there is no evidence that they have let any biases affect their work.
- We don't need a Special Counsel to investigate Mueller or his people. A Special Counsel is for criminal investigations. Any credible claims of impropriety directed to Mueller or his team can and should be handled by DOJ's Office of Inspector General ("OIG").
- It is not enough to say that OIG is investigating the handling of the Clinton email investigation. We need to know more. Will OIG also look at the interplay between the Clinton Email Investigation and the Clinton Foundation investigation? Is OIG using its subpoena power? If not, why not?
Thursday, November 16, 2017
Here is a story from Max Greenwood of The Hill and another from Bill Wichert of Law 360. Make no mistake about it, this was a great and hard-fought victory for Menendez's lead defense attorneys Abbe Lowell and Raymond Brown and for the entire defense teams of Bob Menendez and Salomon Melgen. Despite all of the speculation concerning the impact of the Supreme Court's McDonnell decision, I doubt that it materially impacted the jury's work. It is obvious that Senator Menendez performed official acts on behalf of his co-defendant Salomon Melgen. It appears instead that some of the jurors bought the defense's theory that the Senator's actions were taken based on his close and long-time friendship with Melgen. This bodes well for Senators who accept expensive gifts and do political favors for old friends. The key here is to make friends with the right solons earlier in their careers. Then you can become an old friend.
Monday, November 13, 2017
Andrew McCarthy at National Review Online compares the aggressiveness of Special Counsel Bob Mueller's Russia collusion investigation to the disgraceful kid gloves DOJ-FBI treatment of Mrs. Clinton and her email server. He is right on all counts, but this is not Mueller's problem. Mueller is doing exactly what one would expect of a Special Counsel. History teaches us that a Special or Independent Counsel will get rolled if he does not establish, unequivocally and from the start, that he will not be trifled with, obstructed, or lied to. I'm not aware of anything that Mueller has done to date that is outside ethical boundaries. The real outrage, as I have said many times before, is that a Special Counsel was not appointed to investigate Mrs. Clinton. The governing federal regulation plainly called for it. Let's review.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
In Mrs. Clinton's case, the President's former Secretary of State, and the leading Democratic Party candidate for President, was credibly accused of mishandling classified documents on a private unauthorized email server and the President himself had communicated with her through that server. Even worse, during the investigation, the President improperly interfered by publicly declaring, on two separate occasions, that Mrs. Clinton did not intentionally engage in wrongdoing and did not harm national security. It is easy to imagine the furor that would have ensued if a Republican President had engaged in such conduct. The pressure to appoint a Special Counsel would have been relentless. It is easy to imagine, because that is exactly what happened with respect to President Trump.
So conservatives are understandably (and rightfully) outraged at the double standard, but, as with so much else, President Trump has primarily himself to blame. When you fire the FBI Director who is investigating members of your administration for unlawful collusion with Russia, and immediately brag to the Russian Ambassador that you fired him in order to get the Russia collusion investigation behind you, you are going to get a Special Counsel. It is yet another example of how President Trump, a political genius with a profound ignorance of basic American civics and governing norms, has stumbled into problem after problem. Kudos to Ty Cobb for limiting the damage for now.
None of this is Mueller's fault. He is doing the job we expect a competent Special Counsel to do.
Thursday, November 9, 2017
Fox News is reporting here that a co-founder of Fusion GPS met with Russian lawyer Natalia Veselnitskaya both before and after her June 2016 meeting in Trump Tower with Donald Trump Jr., Jaren Kushner, Paul Manafort, and others. The Trump Tower meeting primarily involved a discussion of the Magnitsky Act, adoption, and/or dirt on Hillary Clinton, depending on whose version you accept. Trump Jr. has admitted that he showed up in order to hear about the dirt. According to Fox News, the first Veselnitskaya-Fusion meeting occurred "hours before" the Trump Tower meeting during a court hearing and the second Veselnitskaya-Fusion meeting occurred at an unspecified later time. The Trump Tower meeting has always smelled like a set-up to me and this report may fuel more speculation along these lines. As I noted here yesterday, I believe that Special Counsel Mueller already has authority to investigate the Steele Dossier as part of his charter. If he isn't investigating the Fusion GPS/Steele Dossier from top to bottom he should be, since, among other things, it was delivered to the FBI as part of an effort to prove that members of the Trump camp improperly coordinated with the Russian government during the 2016 campaign. If the Steele Dossier contained false information and was given to the Bureau as part of a deliberate effort to mislead the Department of Justice, somebody could conceivably be facing obstruction of justice charges. We need to know more about the Veselnitskaya-Fusion connection, but it is certainly interesting to find out that Fusion GPS had some kind of relationship with Veselnitskaya at the same time that the well-connected Russian lawyer was allegedly trying to entice the Trump team with dirt on Ms. Clinton.
Wednesday, November 8, 2017
Senator Lindsey Graham called over the weekend for a new Special Counsel to investigate the Fusion GPS/Steele Dossier affair and the Uranium One transaction. He has a point about Uranium One, but Fusion GPS is squarely within the scope of Special Counsel Bob Mueller's authority as set out in the Order appointing him. That Order explicitly authorizes Mueller to "conduct the investigation confirmed" by Saint Jim Comey in his March 20, 2017 testimony before the House Permanent Select Committee on Intelligence. The Comey-DOJ investigation was already considering the Steele Dossier as part of its work. Mueller is further authorized to investigate links and coordination between the Russian government and individuals associated with Donald Trump's campaign as well as "matters that arose" from said investigation. Clearly, the Steele Dossier was a matter that arose as part of the overall Russian collusion investigation and may have helped to instigate or prolong it. Finally, as part of the federal regulation governing Special Counsels, Mueller is authorized to investigate any effort to obstruct his investigation, which is a continuation of the original Comey-DOJ investigation. Assuming that the Steele Dossier contains deliberate falsehoods, and was given to the FBI by someone with knowledge of those falsehoods as part of a deliberate effort to obstruct the original DOJ investigation (by unfairly pointing the finger at Trump), this would also be within Mueller's bailiwick. Indeed, I assume that Mueller is already looking at the Steele Dossier as part of an obstruction of justice investigation. He would be derelict in his duty if he were not.
Any new Special Counsel for the Steele Dossier would simply be overlapping with Mueller and would need to hire a staff and get up to speed. I see no need for this, unless something about the Steele Dossier presents a conflict of interest for Mueller. Some commentators shave suggested that the FBI paid Steele for some of his work, or thought about doing so. If any of those agents are still on the investigative team, could it create a conflict? Perhaps, but that could be resolved by removing such agents from the investigation or from the Steele Dossier part of the investigation. And keep in mind that any Special Counsel will almost certainly have to rely on FBI Special Agents to conduct at least some of his/her work. If you think a desire to protect the Bureau automatically creates a conflict then even a new Special Counsel would face the potential for conflict.
Monday, October 30, 2017
As most people have figured out by now, the most interesting development related to the charges unsealed today by Bob Mueller & company is the guilty plea entered into by an apparently marginal Trump Campaign operative named George Papadopoulos. Papadopoulos established direct and indirect contact with some Russians early in the campaign and lied about it later to the FBI. Not a good career choice. Now he has entered into a cooperation agreement and pled guilty under 18 U.S.C. Section 1001 (the Martha Stewart statute) to making false statements to government officials. Even without a downward variance his Guidelines Range is 0-6 months, so he won't be doing any time. According to the U.S. v. George Papadopoulos Statement of the Offense, which is the key document in the case, on April 26, 2016, while Papadopoulos was working on the campaign, one of Papadopoulos's foreign contacts advised him that the Russians had access to "dirt" on Mrs. Clinton and "thousands of emails." Interestingly, the Statement of the Offense does not explicitly say that the emails were offered to the Trump Campaign by the Russians or that Papadopoulos shared the information about the emails with Trump Campaign officials. Here also are the U.S. v. George Papadopoulos Criminal Information, and the U.S. v. George Papadopoulos Plea Agreement.
The first thing to ask, if CNN's Friday night report is accurate, is who leaked? Because if the leak came from the government or court staff it is almost certainly an illegal violation of a sealed court order and/or grand jury proceedings. And if it came from the defense attorney of the party to be charged, who told him or her? The whole point of sealing something is so that the public doesn't know about it. All a courthouse staffer, moonlighting as media lookout, could have legitimately told the press is that "we saw so and so going into the court's chambers" or something along those lines.
Second, why would charges be sealed in the first place? Perhaps because the prosecution is afraid that someone will flee. That is the only legitimate reason I can think of to place an indictment under seal. If it was placed under seal to give government agents the opportunity for an early morning arrest it wouldn't surprise me one bit, given Andrew Weissman's dismal track record for hardball, heavy-handed tactics. (It will be interesting to find out someday just exactly what the government told a federal magistrate in order to get that no-knock warrant to search Paul Manafort's residence.)
Is it possible that the sealing was done in order to protect a defendant from having to spend the weekend (or at least one night) in DC jail? Unlikely. For defendants who do not turn themselves in by mid-morning in DC, the possibility of a night in jail is real. But if the prosecutors really cared about that, why not bring the charges on a weekday morning and allow the defendant to turn himself in the next day? This is done all the time.
Is it possible that the pending indictment report, true or false, is a deliberate ruse to see who will attempt to flee? In other words, does the government actually want someone to try to flee? After all, flight can be used as evidence of guilt in court. Unlikely, but anything is possible with Weissman in the number two slot.
We should find something out today. Here is Politico's excellent background piece by Darren Samuelsohn.
If there are any charges, expect them to be ancillary in nature. Look for false reporting violations or false statements to government agents. More to come.
The Indictment is out and we will try to get it up as soon as possible. It is obvious that the prosecutors did the right thing in allowing Paul Manafort and Rick Gates to turn themselves in and that, in all likelihood, one of the defense attorneys leaked the news to CNN. Grand jury secrecy rules do not apply to witnesses or to those who receive their information from witnesses.
Thursday, October 19, 2017
It's not every day that a federal district judge accuses the government of misleading the Court and demands corrective action. But it's happening in the Urbana Division of the Central District of Illinois. I posted here in March regarding the federal case against former Congressman Aaron Schock. Among other items of alleged government misconduct, the defense maintained that prosecutors improperly commented to grand jurors on Schock's failure to testify, in violation of his Fifth Amendment Privilege Against Self-Incrimination. The defense relied in part on an affidavit by a dismissed grand juror. After unequivocally denying the grand juror's allegation, the government clarified the record, more than six months later, admitting that government counsel "commented on or addressed Mr. Schock's testifying or decision not to testify before the grand jury" on eleven occasions. U.S. District Judge Colin Bruce was not amused, and ordered the government to review each of its previous filings "to ensure that no more false or misleading claims were made." Judge Bruce also gave the government 14 days to file a memo "detailing any further misrepresentations or misleading statements." Here is Judge Bruce's Order Requiring Government Memorandum re Misrepresentations. The government responded yesterday, denying that it had misrepresented anything to the Court, asking the Court to reconsider its finding regarding misrepresentation, and representing further that it had not intentionally made any materially misleading statements in its prior filings. Here is the Government's Compliance with the Court's October 3 Order and Motion to Reconsider. Schock, represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuire Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa, wasted no time, not even a day, in firing back. Here is Schock's Motion to Strike or in the Alternative Leave to File a Response. Here as well is Schock's Proposed Response to Government's Compliance. In a future post, I will examine the nature of the government's comments to the grand jurors.
Saturday, September 16, 2017
According to Reuters, Deputy Attorney General Rod Rosenstein said on Thursday that there may be changes to the Yates Memo "in the near future." As discussed at length on this blog (see here, here, here, and here; see also here for an article on the Principles of Prosecution and the Yates Memo), the Yates Memo was released by the DOJ in 2015 in response to criticism that the government had failed to prosecute individuals, particularly on Wall Street, related to the financial crisis of the late 2000s. The Yates Memo responded by focussing federal prosecutors on targeting individuals and requiring that corporations provide significant information on employee conduct to receive credit for cooperating with the government. The Yates Memo states, "[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct."
According to reports, Rosenstein said, "It is under review, and I anticipate that there may be some changes to the policy on corporate prosecutions." It is unclear how far the review extends or whether possible changes extend beyond the Yates Memo and include revisions to the larger Principles of Federal Prosecution of Business Organizations contained in the U.S.A.M. Whatever changes are made, it is unlikely that the focus on individuals will diminish. Attorney General Sessions has publicly commented on his commitment to holding individuals accountable for corporate misconduct. We will have to wait, therefore, to see whether significant changes or mere reiterations of current policy priorities are on the horizon.
Wednesday, June 7, 2017
Attorney General Jeff Sessions issued a press release today here putting an end to settlements that had payments to third parties as a condition of settlement. The press release says that " [w]ith this directive, we are ending this practice and ensuring that settlement funds are only used to compensate victims, redress harm, and punish and deter unlawful conduct.”
Will this mean that Chris Christie's agreement as US Attorney with Bristol-Myers Squibb and the University of Medicine and Dentistry of New Jersey, the former of which included an endowment of an ethics chair to Seton Hall Law School, will no longer be allowed in future agreements(see here, here, and here - see para. 20)?
And will all the groups receiving funds from the BP Plea Agreement find that innovative resolutions will no longer be allowed in the future agreements? For example the BP plea agreement included $350 million to the National Academy of Sciences for the purposes of Oil Spill prevention and response in the Gulf of Mexico. (see here) The Court stated there -
"The National Academy of Sciences is required to use the funds to advance scientific and technical understanding to improve the safety of offshore oil drilling, production and transportation in the Gulf of Mexico."
"Of course, the Court realizes that the fines and other penalties provided by the plea agreement can do nothing to restore the lives of the 11 men who were killed. But in the payment to the National Academy of Sciences, the agreement at least directs money towards preventing similar tragedies in the future. That the bulk of the payments to be made under the plea agreement are directed toward restoring the Gulf Coast and preventing future disasters, contributes to the reasonableness of the plea agreement."
AG Sessions says that "[u]nder the last Administration, the Department repeatedly required settling parties to pay settlement funds to third party community organizations that were not directly involved in the litigation or harmed by the defendant’s conduct. Pursuant to the Attorney General’s memorandum, this practice will immediately stop."
It remains to be seen what will get included and what will be omitted in future non-prosecution, deferred prosecution, and plea agreements. The actual memo is here.
Monday, May 15, 2017
I imagine we will know more about Rod Rosenstein's Memo, and its timing in connection with FBI Director Comey's firing, later this week. Based on the publicly available information, it appears that that when Rosenstein met with the President last Monday he was asked for his views on Saint Jim. Rosenstein no doubt articulated his disapproval of Director Comey's appallingly improper conduct during the 2016 election, a disapproval shared by legions of current and former DOJ prosecutors and FBI Special Agents. He was asked to memorialize his thoughts in a memo, and given a quick turnaround time. If this is how it played out, there was nothing wrong with the President's question, nothing wrong with Rosenstein's answer, nothing wrong with the President's request for a memo, nothing wrong with Rosenstein's decision to obey the request, and nothing wrong with the resulting memo itself. Nothing at all. Comey's conduct, as Rosenstein's Memo makes clear, was a gross deviation from standard DOJ practices, a clear overstepping of authority, and an improper smearing of an American citizen who just happened to be a major political candidate. As devoted readers of this Blog no doubt remember, I detailed Director Comey's myriad shortcomings here just after the election. To make matters worse, Director Comey refused to acknowledge his mistakes and improprieties and continued to publicly justify his shocking behavior in increasingly bizarre fashion. Some have suggested that Rosenstein's Memo "reads like an op-ed" or is "deeply troubling." I expect this kind of nonsense from the political opposition and the resisters, but when I see it from former colleagues of Rosenstein it makes we want to puke. The President is Rosenstein's superior. He asked for Rosenstein's opinion. He asked for Rosenstein to memorialize his thoughts in writing on a fast timetable. Each of these was a reasonable request. Should Rosenstein have refused the request, protesting that he needed more time to prepare a memo? He didn't need more time to detail Comey's indiscretions. Any schoolboy or schoolgirl reasonably competent in Civics could have done so.
The problems arose with what happened next. When Rosenstein learned that the White House was disseminating a false version of events to the effect that Comey's firing was solely the result of Rosenstein's Memo, he is reported to have quickly complained to the White House Counsel that he did not want the facts massaged and would not be comfortable staying in an Administration where this was happening. Translation: "Tell the President's people to quit lying. Stop the phony stories now." And the phony stories stopped. Then the President, in his typical foot-in-mouth way, admitted that Comey's handling of, and public comments about, the Russia investigation played a part in the firing. Think about that for a moment. Because of Rosenstein's status and sterling reputation, a reputation much ballyhooed by the Trumpistas, the President's people were forced to instantly and embarrassingly change their false narrative, and the President stumbled into another unforced error. That would not have been possible if the DAG had been a hack or mere factotum. Of course, Rosenstein could have decided to resign. Instead he demanded the truth and got it. It is a judgment call and I don't blame him at all for making the call he did, two weeks into the job.
Make no mistake, there is going to be a thorough investigation of Russian Collusion, either within Main Justice or by a Special Counsel. There are many good reasons for keeping the investigation in-house, as Rosenstein should know having served (along with me) in an Independent Counsel's Office. There are great inefficiencies and delays involved in setting up and running a Special Counsel operation. In disputes between such an office and an uncooperative Executive Branch, who would you rather see the President opposing? A Special Counsel, who he can demonize, or his own DAG, who he has already praised as a man of impeccable integrity? The scarier President Trump gets, the more I need the people around him to be sound, sane, and steady professionals. I want to see people like McMaster, Mattis, and Rosenstein at their stations.
As a matter of public relations, the President's unforced error will make it more difficult for Rosenstein to resist the calls for a Special Counsel. If President Trump's inappropriate comments about the investigation pile up, more and more citizens will be prone to see any declination by the DAG as a whitewash or a cover-up. So keep talking Mr. President. The more you complain about the Russia Investigation, the likelier you are to get a Special Counsel for all of your efforts. Meanwhile, were I Rosenstein, I would react to every Presidential criticism of the investigation with a renewed determination to leave no stone unturned. Hunker down Rod. Your country needs you.
Wednesday, March 8, 2017
This is the first time the ABA White Collar Crime Conference had a panel focused on "Due Process on Today's Campus: Handling IX Abuse and Harassment Cases." Moderating this conference was Marcos Hasbun. Panelists were Carolina Meta, Thomas C. Shanahan, and Hon. Nancy Gertner. Many may think this is outside the scope of white collar criminal matters, but attorneys in the white collar area are often involved in the internal investigations for schools and criminal defense counsel can be called on in representation of clients - both individuals accused and victims.
Hon. Nancy Gertner noted that this was initially regulation guidance that was not issued with notice and comment. It has had earth shattering consequences, as described by Hon Nancy Gertner. The preponderance of the evidence standard being used was noted. But unlike ordinary civil cases, you don't have discovery. The panel discussed the "Dear Colleague" letter. She also noted the mandated procedures is how it has played out. Thomas Shanahan discussed the parallel proceedings that can occur with law enforcement and the university disciplinary proceeding.
It was noted that the university is under a mandate to move things along in 60 days. It was also noted that case lines are developing on two different tracks, including those arguing the denial of due process rights by the university.
Some argued that the process is focused on due process rights of the individuals making the accusation. But it was also noted that some states, like North Carolina, permits counsel during the proceedings for the respondent. It was noted it can be beneficial for counsel for the respondent to get the outside lawyer involved.
Friday, December 30, 2016
Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. With the appropriate fanfare, and without further ado, The Collars for 2016:
The Collar for the Best Left Hand Turn – To the Supreme Court following Justice Scalia’s death in affirming both insider trading and bank fraud convictions.
The Collar for Failing to Deliver the Goods – To the government for prosecuting Fed Ex and then needing to dismiss the case following opening statements.
The Collar for Needing New Glasses – To James Comey so that he can read Agency policy to not do anything election related within 60 days of an election.
The Collar for Sports MVP – To the world of tennis, which stole some of the focus from FIFA this year with the BBC's allegations of significant match-fixing.
The Collar for Slow and Steady – To Britain's Serious Fraud Office, which, after announcing the implementation of DPAs in October 2012, entered into its first DPA in November 2015 and its second in July 2016.
The Collar for Quick and Steady – To the DOJ, which, according to Professor Brandon Garrett’s website, has entered into well over 100 DPAs and NPAs since October 2012.
The Collar for Best Reading of this Blog– To the Supreme Court in reversing Virginia Governor Bob McDonnell’s conviction, this blog’s 2015 case of most needing review.
The Collar for the Longest Attempt to Justify a Decision – To the 11th Circuit for its 124-page decision in United States v. Clay that attempts to justify how “deliberate indifference” meets the Global Tech standard.
The Collar for Worst Schmoozing at an Airport – To former President Bill Clinton for causing AG Loretta Lynch to accept the FBI’s decision-making after Bill Clinton came abroad her airplane.
The Collar for the Most Underreported Settlement – To Trump University’s agreement to pay $25 million settlement in the Trump University case.
The Collar for Mandating Corporate Backstabbing – To Deputy AG Sally Yates, who keeps insisting her memo that promoted a corporate divide from its constituents – widely referred to as the “Yates Memo” -- should be called the Individual Accountability Policy.
The Collar for the Pre-mature Weiner Release – To James Comey for his overly excited announcement about the former Congressman’s emails.
The Collar for Community Service to Russia – To all those who failed to investigate and release reports on computer hacking that caused the release of information during the election.
The Collar for the Quickest Backpeddling – To Rudy Giuliani for “clarifying” his statement that he knew about a confidential FBI investigation related to Hillary Clinton’s emails.
The Collar for Best Game of Hide and Seek – To Donald J. Trump for explaining that he could not release his already-filed tax returns because he was under an IRS audit.
The Collar for Best Self-Serving Confession – To the Russian Sports Federation for admitting there was systematic doping of Olympic athletes (but Putin didn't know about it).
The Collar for Quickest Recantation (aka the "Mea Culpa Collar") – To DOJ Chief Leslie Caldwell for criticizing overly aggressive AUSAs at a Federalist Society function and apologizing to DOJ attorneys a few days later.
The Collar for Best Judicial Watchdog – To Judge George Levi Russell III of the United States District Court for the District of Maryland for his post-trial decision reversing the conviction of Reddy Annappareddy and dismissing the indictment with prejudice based on prosecutorial misconduct.
The Collar for Never Giving In – To Josh Greenberg and Mark Schamel who tirelessly and brilliantly represented Reddy Annappareddy post-trial and secured his freedom.
The Collar for Best Money Laundering – To the New York City and Los Angeles real estate developers who sell eight-figure condo apartments to anonymous LLP's owned by foreign officials and their families.
The Collar for the Best Child – To Don Siegelman’s daughter, who continues to fight to “Free Don.”
The Collar for the Best Parent – Retired years ago and renamed the Bill Olis Best Parent Award –not awarded again this year since no one comes even close to Bill Olis, may he rest in peace.
(wisenberg), (goldman), (esp)
December 30, 2016 in About This Blog, Current Affairs, Deferred Prosecution Agreements, Government Reports, Investigations, Judicial Opinions, Money Laundering, News, Prosecutions, Prosecutors | Permalink | Comments (0)