The Final Report on the Special Counsel’s Investigations and Prosecutions, Volume One: The Election Case, January 2025 is available on the DOJ's Special Counsel website here. The Report itself on this website is here.
(esp)
Category: Prosecutors
-
Using civilians outside DOJ to assist in the fight against crime is not new. We have seen it with the addition of Civil RICO in 1970 (18 U.S.C. 1964), and of course the government partnership with those outside the government under the False Claims Act. We have also seen government calls to the public for information related to criminal acts, and the government's use of cooperating witnesses to secure information and testimony against other perpetrators of crimes. That said, the Criminal Division Corporate Whistleblower Awards Pilot Program has some unique aspects that could incentivize individuals to assist the government in reducing criminality.
The program guidance limits the applicable areas to: (1) certain crimes involving financial institutions, from traditional banks to cryptocurrency businesses; (2) foreign corruption involving misconduct by companies; (3) domestic corruption involving misconduct by companies; or (4) health care fraud schemes involving private insurance plans. The foreign corruption by companies is particularly intriguing as it can be an area difficult to obtain accurate information. Likewise, this may be another way to infiltrate misconduct in the cryptocurrency world.
The DOJ provides FAQs for Potential Whistleblowers and also for Companies here. But is also notes that "A whistleblower award is made in the Department’s sole discretion." Finally, the DOJ announcement reminds companies that voluntary "self-report within 120 days of receiving an internal whistleblower report may be eligible for a presumption of a declination under the Criminal Divisions's Corporate Enforcement and Voluntary Self-Disclosure Policy if the company reports to the Department before the Department contacts the company." (Note –Temporary Amendment to the Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy)
It is good to see the government exploring new methods to achieve corporate compliance. In the future evaluation of this program, it is hopeful that there will be a cost-benefit analysis to ascertain whether the program proves to be an administrative challenge for the government in comparison to the rewards of achieving compliance. But it will be important to factor into that analysis the intangible factors of how many companies step into line just on the mere threat of possibly being caught up in this new whistleblower program.
(esp)
-
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)
-
Today Hunter Biden's lawyers filed a Motion for Pretrial Issuance of Subpoenas Duces Tecum, pursuant to Federal Rule of Criminal Procedure 17(c)(1), to Donald Trump, William Barr, Jeffrey Rosen, and Richard Donoghue. The proposed subpoenas demand documents relating to decisions involving the investigation or prosecution of Hunter Biden in both the Trump and Biden Administrations. The defense maintains that the documents are highly likely to be relevant to its contention that the Hunter Biden Indictment is an example of a constitutionally impermissible vindictive or selective prosecution. Defendants are entitled under the Sixth Amendment to present a defense and to compulsory production of witnesses and documents in aid of that right. Here is the motion. U.S. v. Hunter Biden – Defense Motion for Issuance of Subpoenas Duces Tecum Pursuant to Rule 17(c) and Memorandum in Support.
-
On Friday afternoon, November 2, 2023, the U.S. Court of Appeals for the District of Columbia Circuit granted an administrative stay of Judge Chutkan's 10-17-23 Gag Order in U.S. v. Trump. The Court was careful to point out that, "[t]he purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion." In other words, the Court issued an administrative stay while considering, on an expedited basis, Trump's Motion for a Stay of the Gag Order pending appeal of that Order. The granting of the administrative stay did not involve any analysis of the likelihood of Trump's ultimate success on the merits of the Gag Order. Trump's brief on the Motion for Stay Pending Appeal is due today, 11-8-23, as is the Joint Appendix. The Government's Response is due 11-14-23. Trump's Reply is due 11-17-23. Oral argument is set for 11-20-23.
Here is the Circuit Court's Friday Order Granting an Administrative Stay. U.S. v. Donald Trump – U.S. Court of Appeals for D.C. Order Granting Administrative Stay of Trump Gag Order.
Stay tuned for more.
(wisenberg).
-
The U.S. District Court for the District of Columbia has finally fixed the glitch in its electronic filing system. Here is yesterday's U.S. v. Trump – Opinion and Order Denying Motion to Stay Gag Order Pending Appeal. Judge Chutkan also lifted her prior administrative stay of the Gag Order, so it is now in effect. She denied without prejudice the government's request to modify the Gag Order as unnecessary, even assuming it was procedurally proper. The defense maintained that the Gag Order could not be modified since the case was on appeal.
Former President Trump had filed his Reply in support of the Motion to Stay on Saturday, and Judge Chutkan discusses Trump's Reply in her Sunday Opinion and Order. Here is Trump's Reply: U.S. v. Trump – President Trump's Reply in Support of Motion for Stay of Gag Order Pending Appeal.
Here, for convenience purposes, is the 10-17-23 Trump Gag Order in DC Case.
-
Former President Donald Trump appealed U.S. District Court Judge Tanya Chutkan’s October 17 Gag Order the day it was issued and asked Judge Chutkan on October 20 for a stay of the Gag Order pending appeal and an immediate administrative stay of the Gag Order while the Stay Motion was being briefed in her court. Judge Chutkan granted an administrative stay on October 20 and ordered the government to respond to Trump’s Stay Motion by October 25. Special Counsel Jack Smith filed his response in opposition to the stay last night. But Smith was able in his Response to complain about new Trump posts and comments that have occurred in the 5 days since the Gag Order was imposed and Smith now wants the stay lifted and the Order modified to make it even stronger. Here are former President Trump's Motion to Stay and the Government's Opposition.
U.S. v. Trump – President Trump's Motion For Stay Pending Appeal.
Download U.S. v. Trump – Government's Response in Opposition to Motion to Stay.
-
Title 18, United States Code, Section 1521 prohibits the knowing filing of false liens or encumbrances against the property of an individual described in 18 U.S.C. Section 1114 [an officer or employee of the United States], "on account of the performance of official duties by that individual." In U.S. v. Pate, the 11th Circuit recently held that the statute did not apply to liens filed against individuals listed in Section 1114 if the individuals were no longer in office when the liens were filed. This was an en banc decision. Appellant, a tax protester, had knowingly filed liens against the respective properties of a former IRS Commissioner and a former Secretary of the Treasury. Pate conceded that he filed the liens on account of the officials' performance of their official duties, but contended that the statute only applied to officials still serving when the liens were filed. A majority of the 11th Circuit judges agreed.
-
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.
-
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:
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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)
MattBray.net 