Thursday, September 21, 2017
I was on Tucker Carlson's show Tuesday night and he asked me whether Bob Mueller was guilty of "mission creep on a grand scale" by investigating "financial dealings going back some years." Presumably this was a reference to reports that Mueller and crew are investigating Paul Manafort's and President Trump's past financial arrangements with Russian citizens and business entities. I responded that Mueller's charter was broad. Special Counsel appointment letters, and the federal regulations covering the Special Counsel, are typically very vague, squishy, and capacious. This is not necessarily inconsistent with mission creep. It is to say that mission creep has to creep pretty far to run afoul of most Special Counsel charters. Attached is Rod Rosenstein Order Appointing Robert S. Mueller III as Special Counsel. Note that Rosenstein, in his capacity as Acting Attorney General (because Jeff Sessions had recused himself), made the appointment in order to "ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election." Mueller is authorized to "conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (1) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (11) any matters that arose or may arise directly from the investigation; and (111) any other matters within the scope of 28 C.F.R. § 600.4(a)."
Note that the overall purpose of the Mueller appointment was to ensure a full and thorough investigation of Russian interference in the 2016 election. How can an investigation be full and thorough if Mueller is not entitled to follow every potential lead, including past business dealings? Note also that Mueller is authorized to take over the pre-existing FBI investigation confirmed by Comey. Thus, anything and everything already being looked at by Comey and his people is fair game for Mueller.
Then come the three non-exclusive categories of inquiry. First, any links or any coordination between the Russian government and individuals associated with Trump's campaign. With respect to the Russians, this would include individuals acting at Moscow's behest. Mueller would need to investigate who was acting at Moscow's behest. With respect to Trump's campaign this would include people informally associated with the campaign, paid or unpaid, including family members.
Second, any matters that arose or may arise directly from the investigation. Hypothetical example? The FBI questions a former Trump associate from Russia who reveals that Trump violated the Foreign Corrupt Practices Act four years ago in his dealings with Brazil. It's covered.
Third, any other matters within the scope of 28 CFR§ 600.4(a), which reads in part as follows: "The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted."
So you see, where Special Counsel Mueller, and virtually all Special Counsel are concerned, there may be mission creep, but there is no such thing as unauthorized mission creep. It may not be right. It may not be fair. But it's the law.
And one other thing. The media's focus on Mueller's alleged investigation of obstruction of justice in connection with Comey's firing misses the mark in my view. Absent something additional, the firing of Comey, even if done with the specific intent to shut down the Russia investigation, is alone insufficient to support obstruction of justice charges. But President Trump's many reckless statements and warnings, prior to Ty Cobb's arrival on the scene, may potentially be relevant on the issue of knowledge or intent. For example, if something shady is found in connection with past family dealings in Russia, President Trump's warning to Mueller not to go into that area could easily be admissible in evidence.
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.
Friday, August 25, 2017
In a remarkable opinion issued last Friday in United States v. Krug, the Second Circuit ruled that a courthouse hallway conversation between two co-defendants covered by the same Joint Defense Agreement, and overheard by a third covered co-defendant, did not constitute a privileged discussion protected under the common interest doctrine. Three Buffalo police officers indicted for civil rights violations had just attended a pretrial hearing at the federal courthouse. Defendants Krug, Wendel, and Kwiatkowski stood in a hallway right outside of a closed conference room where their attorneys were briefly discussing the case. The attorneys could not hear their clients. The opinion redacts the precise conversation but notes that, "the hallway discussion consisted of one member of the JDA (Wendel) conveying his independent, non-legal research to another member of the JDA (Krug) while noting he had sent the same research to his attorney. No legal advice was mentioned, much less shared or otherwise conveyed, among the co- defendants. The mere fact that the communications were among co-defendants who had joined in a joint defense agreement is, without more, insufficient to bring such statements within the attorney-client privilege." Kwiatkowski decided to plead guilty a week before trial. The 302 of his proffer, sent to the co-defendants' attorneys, revealed the hallway conversation's contents. Krug moved to exclude the comments from admission at trial. The trial judge granted the motion. Interlocutory appeal to the Second Circuit followed. The Second Circuit, in reversing the trial court, reasoned that the comment was not protected, because "[t]he excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney." That's quite a stretch. When you convey to a co-defendant that you have conducted some non-legal, but clearly relevant, internet research and sent it to your attorney, aren't you implicitly suggesting that your co-defendant inform his own attorney about the same research? And doesn't that make your statement one that was made for the purpose of communicating with an attorney for one of the common interest parties? Even more chilling is the following comment from the panel: "While expressing no view as to whether all such circumstances would invoke the privilege, we find nothing in the circumstances here to support the application of the privilege, and accordingly reverse the district court’s order of exclusion." In other words, even if one of the joint defense attorneys had been present, the Second Circuit will not say whether the comments would have been privileged. So be careful out there and remember that even strong written JDAs will not necessarily protect statements made between covered co-defendants. Even co-defendants covered by the same JDA should not be allowed to confer among themselves and communication between a covered defendant and the lawyer for a covered co-defendant should never take place absent the presence of the first defendant's own attorney. Terrence Connors of Connors LLP represents Krug and Rodney Personius of Personius Melber LLP represents Wendel. Here's hoping that they ask for en banc reconsideration.
Monday, August 21, 2017
Bye Bye Billman. Bye Bye Bollin. Fourth Circuit Rejoins Legal Civilization and Prohibits Pretrial Restraint of Substitute Assets.
In an en banc decision in United States v. Chamberlain, issued on Friday, the Fourth Circuit overruled United States v. Billman and United States v. Bollin, holding that 21 USC 853(e) does not authorize pre-conviction seizure of untainted substitute assets: "[W]e overrule our precedent construing Section 853 and other identically phrased restraint provisions allowing the pretrial restraint of substitute assets and vacate the district court’s order relying on that precedent." In the process of explaining itself, the Fourth Circuit implicitly acknowledged that its precedent was never based on proper statutory construction: "[T]he plain language of Section 853 indicates that Congress did not intend the statute to permit such restraint. Accordingly, we hereby overrule Billman and Bollin." No other federal circuit had adopted the Fourth Circuit's view of Section 853. While Bollin was something of a legal laughingstock, it was no laughing matter to the countless defendants who saw their untainted assets seized before trial, effectively denying them the right to counsel of their choice.
The re-examination of Billman and Bollin was prompted by the Supreme Court's language and rationale in Luis v. United States 136 S.Ct. 1083 (2016) and the Government's brief in Honeycutt v. United States 137 S.Ct. 1626 (2017), which conceded that "under Luis, Section 853(e)(1)(A) does not permit the pretrial restraint of substitute property."
This is a great victory for the criminal defense bar, textualists, and all who oppose result-oriented statist jurisprudence.
Congratulations first and foremost to Chamberlain's attorney Elliot Sol Abrams of Cheshire Parker Schneider & Bryan in Raleigh, NC.
The following attorneys also deserve recognition for the role each played:
Abbe Lowell - lead counsel and author for amicus Cato Institute and NACDL.
Scott Coyle (Patton Bogs, formerly Chadbourne and Park) - counsel and co-author of brief for amicus Cato Institute and NACDL.
Thomas Maher - counsel for amicus NACDL.
Samuel Hartzell (Womble Bond, formerly Womble Carlyle, Raleigh, NC) - co-author of Chamberlain briefs.
Saturday, June 17, 2017
Talking heads were in a dither yesterday, trying to decipher DAG Rosenstein's brief statement about the danger of relying on news accounts from supposedly reliable sources. See here for the Washington Post's account. Below is Rosenstein's statement in full:
Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch of agency of government — with which the alleged sources supposedly are affiliated. Americans should be skeptical about anonymous allegations. The Department of Justice has a long established policy to neither confirm nor deny such allegations.
My reading of it is simple. Any prosecutor or case agent who has ever been involved in a high-profile investigation knows that the vast majority of press accounts about the investigation are far off the mark. Rosenstein is acutely aware of this phenomenon, having worked for Ken Starr in the Office of Independent Counsel in pre-Monica days. Yet the prosecutors and case agents are generally not allowed to talk to the press about the investigation, even to rebut preposterous stories, because this would entail disclosing highly confidential information, and prosecutors and case agents are subject to strict secrecy obligations. Self-important and self-interested people, however, inside and outside of law enforcement, love to parade their inside knowledge to the press, even anonymously. Rosenstein is trying to make that point, but he is doing something else as well. I think he is trying to throw a lifeline to Bob Mueller.
As those who professes to be an expert on television should know, sources interviewed by the government or brought before the grand jury are not, except in rare instances, under any obligation of secrecy. So a person whose lawyer is called by an Assistant Special Counsel or FBI Special Agent and asked to schedule an interview or accept service of a federal grand jury subpoena can shout it to the rooftops or anonymously leak it.
What if the source contacted by the government for an interview is strategically aligned with the target or subject of the overall investigation? What better way to conspire to attack the prosecution team than to anonymously leak your client's upcoming interview or grand jury appearance to the press, tip off the main subject's lawyer, and then sit back and watch while that lawyer attacks the prosecution team for illegal leaks? It is possible that something like this is happening right now to Mueller and company, and I believe that Rosenstein's statement was meant to cover this situation as well. The bottom line is that Mueller and company may not be leaking anything, yet are essentially powerless to do anything about the accusations against them.
But what if there really is an orchestrated effort by President Trump and his attorneys to have their allies leak to the press and then falsely accuse Team Mueller? In my view, this might supply the falsehood element that is required to prove a criminal obstruction of justice and has been, so far as we know, missing in the case of President Trump--Jeff Toobin and company to the contrary notwithstanding. Absent the extra element of lying or bribery, the firing of Comey or anybody else by Trump does not constitute obstruction. As I have previously said in these pages with regard to Comey's firing:
[B]arring new information, the idea that [Comey's] firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.
This kind of thing would be extremely difficult to prove, and trying to prove it could seriously sidetrack the investigation and alienate the press. But if it is happening and Mueller can prove it, such conduct could constitute criminal obstruction of justice.
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 that 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.
Tuesday, May 23, 2017
Trac reports - "The latest available data from the Justice Department show that during the first six months of FY 2017 the government reported 152 new environment prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 304 for this fiscal year. According to the case- by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate would be the lowest ever recorded since the Justice Department started tracking its environmental prosecutions over two decades ago." For more information and data see here.
(esp)(w/disclosure that she received her BS degree from Syracuse University).
Saturday, May 20, 2017
Scattershooting, while wondering whatever happened to John B. Henderson.
The appointment of Bob Mueller as Special Counsel sends an unmistakable signal to every politico, white collar lawyer and potential target in DC. It's time to get serious. Think Fitzgerald on steroids. This will be a real investigation, with a real grand jury, and real prosecutors who know how to investigate, prosecute and keep their mouths shut. Expect plenty of collateral damage as well. There won't be any immunity giveaways or hand-wringing negotiations over the breadth of subpoenas.
A number of commentators have suggested that Mueller is only "overseeing" the Russia Investigation, apparently in the same sense that an Attorney General oversees various criminal investigations within DOJ. Get a grip. Mueller will be totally involved in all strategic and tactical aspects of the case. He will be hands on. For God's sake, he and his lieutenants just resigned from their partnerships at Wilmer Hale to take on what could be one of the most significant criminal investigations in U.S. History, an investigation with profound implications for the country. He'll be there every day, every step of the way, and in total control.
In today's WSJ (subscription required), Kimberly Strassel plants the seeds, in The Mueller Caveat, for a future Trump attack on Mueller. Of course Mueller's integrity is "unquestioned" but Strassel asks whether he can be "objective" about his old buddy Comey. This question assumes that Comey's firing will loom large in the Russia Investigation. I seriously doubt it. The contacts between Comey and President Trump in the period between inauguration and firing will certainly be looked at as a key to President Trump's intent and motives. But, barring new information, the idea that the firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.
Meanwhile, over on the left, the Comey flacks are out in force. It's comedy time at the New York Times with Saint James and Ben Wittes in starring roles. Michael S. Schmidt's NYT puff piece on Comey is a classic of the genre. Lawfare's Ben Wittes, an admitted Comey confidante, is interviewed and holds forth for the record. According to Wittes, Comey, pre-firing, had "concerns" about Rod Rosenstein's likely confirmation by the Senate. "He said, 'I don't know. I have some concerns. He's good, he's solid but he's also a survivor and you don't survive that long without making some compromises and I'm concerned about that.'" Translation: "Anyone who might consider firing me is by definition compromised." What a hoot. Comey would know all about survival and compromise. He's a 17 year DOJ veteran, who left at one point to take a $6 million per year job at Lockheed. Rosenstein on the other hand, prior to becoming DAG, spent his entire career in public service without a hint of impropriety. His reputation for straight-shooting is impeccable. Notably, Schmidt nowhere mentions Wittes's recent and unhinged hit piece on Rod Rosenstein in Lawfare.
I have a slightly different interpretation of Comey's concerns. I would have been concerned too, had I been in his shoes. Comey had been widely and correctly condemned by a broad and impartial sector of the legal and law enforcement community for his improper interference in the political process--an interference that violated longstanding DOJ policies and usurped DOJ's prosecutorial role. But Loretta Lynch was too politically damaged to fire him and Sally Yates, as a lame duck, was too weak. Comey knew that Rosenstein had the integrity and the stature to pull it off. Meanwhile, also in classic fashion, the broadcast media parroted the NYT. Joe Scarborough on Friday morning's show breathlessly reported Comey's "concerns" as if Comey, yesterday's goat, is now the nation's ethical ombudsman.
Whatever happened to the idea that a respected public servant can make a serious mistake, even one that justifies his or her firing, and still be judged an honorable person based on the whole of his or her career? I know numerous people within the FBI and DOJ who have worked with Comey and have enormous respect for his abilities and integrity. This doesn't mean that he is flawless or that his conduct during the election renders him untouchable. By all means, let's have a public airing of all of the circumstances surrounding Comey's firing, assuming that it can be done without compromising Mueller's work. There is little doubt of President's Trump motivations. But let's not conflate the impropriety of President Trump's motives with the improprieties catalogued in Rosenstein's Memo.
Thursday, May 18, 2017
As I mentioned in a post a few weeks ago, the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program for the event is now available online. What was already shaping up to be a fascinating conference will now be even more interesting with news breaking overnight of another major Brazilian corruption scandal.
According to the New York Times, the Brazilian newspaper O Globo alleged overnight that a food company executive taped a conversation with Brazilian President Michel Temer in March that included discussions of "hush money" being paid to a jailed politician. According to the the New York Times, President Temer is also alleged to have told the food company executive to pay a lawmaker in relation to a dispute at a company facility. The President of Brazil issued a statement in response to the O Globo story denying the allegations, and the New York Times noted in its article that the paper had not yet independently confirmed the allegations.
According to The Rio Times, the food company executive in question, Joesley Batista, told federal prosecutors about the conversation as part of his cooperation pursuant to a plea bargain. Batista had been implicated in the Carwash corruption investigation in Brazil. After news of the allegations broke, lawmakers from several political parties called for an investigation. There were also calls for the President to resign. According to The Rio Times, PSB national president Carlos Siqueira told local media, "The resignation of the President has become an imperative not to aggravate the crisis further. The Temer government ended today."
This latest alleged scandal comes at a time when Brazil is still reeling from the fallout of the Petrobras scandal, a case that led to the downfall of former Brazilian President Dilma Rousseff. These latest developments will certainly be ones to watch as corruption allegations continue to plague the Brazilian government.
Co-blogger Sol Wisenberg (here) called for Rod Rosenstein to "Hunker down Rod. Your country needs you." There are many who feared that the appointment of a special counsel would not be as neutral as Deputy Attorney General Rod Rosenstein. The appointment of special counsel/prosecutor could also delay a current investigation - after all anyone new would have to get up to speed. But the DAG outdid himself here in appointing former FBI Director Robert S. Mueller III.
The real hero of the story still remains Deputy Attorney General Rod Rosenstein, and hopefully history will remember this.
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, May 3, 2017
In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China. It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field.
I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program is now available online, and it is shaping up to be another spectacular event.
The program includes the following panels:
- A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
- Navigating Cross Border Government Investigations and Prosecutions
- Trends Regarding Global Anti-Corruption Enforcement
- A View of Global White Collar Crime from the Bench
- Preparing for the Globalization of Corporate Internal Investigations
- Navigating Global Compliance Trends and global Enforcement Priorities
I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments. Register here while space is still available.
Monday, April 24, 2017
Attorney Preston Pugh joined Miller & Chevalier Chartered in the litigation Department. (see here). Preston "Pugh counsels and defends clients in complex civil and criminal litigation, internal investigations, and government investigations. His practice includes matters involving the U.S. Foreign Corrupt Practices Act (FCPA), the False Claims Act (FCA), government contracts, and corporate ethics and governance." He participated als0 has been an instructor in the NACDL White Collar Criminal Defense College at Stetson.
Thursday, April 6, 2017
My old friend Paul "Bunky" Rosenzweig has written an informative primer on immunity from prosecution in the wake of news that former National Security Advisor Mike Flynn wants immunity, purportedly so that he can "tell all." Well, as my Dad used to say, "People in Hell want ice water." Here is Paul's piece from Lawfare. There was an initial assumption in many social media outlets that Flynn's quest for immunity signaled impending doom for the Trump Administration. How silly. If that's true, then why has President Trump stated that Flynn's request should be granted? Who wouldn't want transactional or derivative use immunity from Congress? If Flynn were to publicly testify after such a grant, future criminal prosecution of him would be virtually impossible. See Ollie North and Admiral Poindexter. So, if Flynn gets immunity from Congress it would either be a colossal act of Congressional stupidity or a scandal of world class proportions. Flynn appears to have very able white collar counsel, so look on this as a bold ruse. Why not at least try it? Regarding immunity granted by a DOJ letter or a federal district court order at DOJ's request, we've learned from the Clinton Espionage Investigation that even DOJ grants of immunity by the truckload don't guarantee a successful prosecution--of anybody. Bottom line: Assuming that DOJ has a case against Flynn he is unlikely to get immunity at all. He would instead get some kind of plea deal. In either circumstance, he would not get it absent an in person proffer. Regarding proffers, and how they should be viewed from the defense perspective, see my old article on proffers from Findlaw. Nothing much has changed since I wrote it.
Wednesday, March 29, 2017
Former Illinois Congressman Aaron Shock's attorneys filed two motions in federal court yesterday, alleging massive government misconduct in the investigation that led to their client's indictment on multiple misconduct and fraud related charges. The allegations center around the government's alleged use of one of then-Congressman Schock's junior staffers as a confidential informant who purportedly recorded conversations covered by the Speech and Debate Clause and the attorney-client privilege, and also stole various privileged materials. The government has apparently conceded that some of the informant's actions were improper and has promised not to use certain evidence he obtained, but if even half of Schock's allegations turn out to be true it will constitute a major embarrassment to DOJ. You look at the facts detailed in Schock's motions and have to be wondering what the government was thinking in using these kinds of tactics in the wake of the Jefferson case and Abramoff era investigations that brought Speech and Debate issues to the fore. There is also an allegation that government prosecutors gave incorrect legal advice to the grand jury. Schock wants more information about the government's use of the informant and access to additional grand jury materials. Here are the Schock Memorandum in Support of Motion for Discovery Regarding Use of Confidential Informant and the Schock Memorandum in Support of Motion for Discovery of Grand Jury Materials. Here is coverage from The Hill and the Washington Post. More to come as this case progresses. Schock is represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuie Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa. The case is being prosecuted out of the Central District of Illinois.
Sunday, March 12, 2017
It is fairly typical that US Attorneys offer their resignations when a new President, especially one of a different party, is elected. But firings and requiring same-day resignations are less common. This is particularly troublesome as many were finishing up work on current cases. Of the 46 who had not left and asked for their resignations this week were a few that it is sad to see leaving their post. I don't know all 46, but some that I do are mentioned below -
David Capp, U.S. Attorney Northern District of Indiana - Attorney Capp had planned to retire in June 2017. He issued a thoughtful statement here. He thanks the "men and women of the USAO for their dedication and professionalism, day-in and day-out." Thank you David for your dedication and professionalism. In the statement issued he notes -
"Some years ago I spoke one evening at a church in Gary. We had just made some arrests and closed down a drug operation in the neighborhood the church served. Afterwards a gentleman came up to me, shook my hand, thanked me for our efforts and told me “now my grandchildren can play in the yard again.” That has always stuck with me and kept me focused on what our work is really about. I hope that I have played a part in making more yards in the Northern District of Indiana safe for “grandchildren to play in."
Others that were forced to resign include US Attorney Paul J. Fishman (statement here), whose office had prosecuted some of the Bridgegate cases (see here). And Preet Bhatara who was fired after refusing to resign (see here) had done some interesting prosecutions related to Conspiracy to work for Russian Intelligence (see here).
Attorney General Jeff Sessions has much work ahead trying to match the work done by individuals of this caliber.
Addendum - Other statements regarding resignations -
District of Rhode Island - United States Attorney Peter F. Neronha Stepping Down
District of Minnesota - Statement From U.S. Attorney Andrew Luger
Eastern District of Arkansas - U.S. Attorney Christopher R. Thyer Announces Resignation
Friday, March 10, 2017
The New York Times reports that "Trump Abruptly Orders 46 Obama-Era Prosecutors to Resign." Sad.
Acting Assistant Attorney General Criminal Division Kenneth A. Blanco was the keynote speaker for the final morning's program of the ABA White Collar Crime Conference of 2017. He spoke about transnational and money laundering crimes and government prosecutions in this area. He emphasized the importance of international cooperation. He remarked that there has been an increase in multinational investigations and it is important to have strong relationships with our counterparts worldwide.
He used the word "global" 14 times, the word "international" 25 times, and "cooperation" 11 times. International collaboration and cooperation were without doubt his theme.
He spoke briefly about the Fraud Section Pilot Program, stating:
"Before I conclude, I would be remiss if I did not comment on the Fraud Section’s “Pilot Program.” Last year, the Fraud Section implemented a one-year “Pilot Program” for FCPA cases, to provide more transparency and consistency for our corporate resolutions. The “Pilot Program” provides our prosecutors, companies and the public clear metrics for what constitutes voluntary self-disclosure, full cooperation and full remediation. It also outlines the benefits that are accorded a voluntary self-disclosure of wrongdoing, full cooperation and remediation. The one-year pilot period ends on April 5. At that time, we will begin the process of evaluating the utility and efficacy of the “Pilot Program,” whether to extend it, and what revisions, if any, we should make to it. The program will continue in full force until we reach a final decision on those issues."
He ended with the lyrics from a 1960s song from Martha and the Vandellas – "Nowhere to run baby, Nowhere to hide."
A full copy of his talk can be found here.
Thursday, March 9, 2017
Hon. Paul L. Friedman moderated the judges panel. The judges on the panel were Hon. Gregg Costa, Hon. Charles Breyer, Hon. Nannette Jolivette Brown, Hon. Amy J. St. Eve, Hon. Kathleen M. Williams, and Hon. Carlos Mendoza.
Does your life experiences influence your judging? The judges talked about sentencing.
Hon. Carlos Mendoza spoke about how his diverse background has affected his sentencing. Hon. Amy J. St. Eve noted that judging is the most difficult thing that judges do. Hon Charles Breyer noted that there is no such thing as a "right sentence," but there is something called a "wrong sentence."
Some pointers offered:
- Sentencing memos are important
- "Educate us on your client"
- "Know your judge"
- Some Judges may not want 3 or 7 pages of Booker, and then finally saying -now here is what you can do - "I already know that."
- "Watch what your clients do" -Problems when the offender doesn't accept responsibility
- Come up with a better argument then the folks at the country club don't talk to him any more
- Not helpful when government just says - we want a sentence in the guidelines range
- If prosecutor and defense attorney agree on something (C1c), more inclined to do it
Deferred prosecution agreements were discussed as well as the managerial aspects of the judicial position. The panelists offered many reflections in thenearly two hour discussion. They also looked at high profile cases and whether they had any special procedures in these cases. Justice Breyer said the less said, the better. Hon. J. St. Eve said - "I don't read the coverage in a high profile case." They skipped over discussing Brady, but did discuss technology.
One question was whether the judge allowed the defense counsel to see the probation officer's recommendation. It was noted that the judges differed on whether the judge would allow counsel to see this.