Professor Brandon Garrett here looks at books by  Jennifer Taub here and Hon. Jed Rakoff here in discussing corporate criminal reform.  This is definitely an area that President Biden will need to re-examine.

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The press is reporting the death of former Governor of Pa. and Attorney General Richard "Dick" Thornburgh (see here and here). Many will reflect on his handling of the Three Mile Island crisis.  Others will look at his time as Governor. 

But criminal defense attorneys will likely recall the Thornburgh Memo that called for prosecuting or pleading to the "most serious readily provable offense."  There were some exceptions in the guidance, and in some ways this posture can be traced back to AG Civiletti.  (See Alan Vinegrad, Justice Departments New Charging Plea Bargaining and Sentencing Policy, NYLJ explaining the differences and sameness in DOJ  AG Policies). Others may recall his memo that allowed prosecutors to contact defense counsel's clients without their permission.  The highly controversial memo questioned whether US Attorneys were subject to state ethics rules. (See Allen Samuelson & Robert Maxwell, State Ethics Rules Now Apply to Federal Prosecutors)  In the end, the ethics rules prevailed, with the passage of the McDade Amendment in 1998 that legislatively held that attorneys for the government would be subject to state ethics rules. (see here). 

Dick Thornburgh was also known for "shepherding the American with Disabilities Act"(here) When he dedicated the Eleazer courtroom on Stetson Law's campus he said, "[t]he Eleazer courtroom doesn’t simply accommodate wheelchair access, though that is monumental in its own right. It goes so much further. Its technology will enable people with various sensory impairments to participate fully in our judicial process." (see here) 

Finally, Thornburgh supported the importance of the Mueller Investigation and the need for this investigation. In an op-ed piece in USA Today he stated, "We must insist that the Department of Justice perform its duties vigorously and follow the evidence wherever it leads. Our democracy demands no less."  (see here).

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Almost 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 Collar for 2020 is:

                2020

Happy New Year! See y'all next year.

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The Corporate Transparency Act is part of the 2021 National Defense Authorization Act (NDAA). This is important bi-partisan legislation that will provide transparency when companies and individuals are using shell corporations to "thwart law enforcement and hide their illicit activities." (See Rep. Carolyn B. Malony's webpage).  A description of the Act can be found here.  See Morris Pearl, Congress just passed the most important anti-corruption reform in decades, but hardly anyone knows about it , (Dec. 26, 2020).  

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Yesterday's Flynn hearing was long – almost four hours – and somewhat contentious. But it was more about the role of Mandamus then what Flynn's attorney would have wanted the court to consider. 

Prosecutors typically do have discretion to dismiss cases as they so please.  But when an individual has already plead guilty, the question is more complicated, as forcing a judge to just dismiss without asking questions as to why the DOJ is dismissing, would render the court a rubber stamp of prosecutorial discretion. Interesting issues discussed during the hearing included whether the district court can inquire as to the reasons for the dismissal. After all, Federal Rule of Criminal Procedure 48(a) allows for government dismissal "with leave of court."

But for the most part, the hearing turned on the remedy being employed by defense counsel to secure a dismissal – A Writ of Mandamus. One has to wonder if defense counsel had just waited for the court to rule on the DOJ's Dismissal Motion whether this hearing would even be happening. 

See Khorri Atkinson, Full DC Circ. Not Inclined to Immediately Halt Flynn's Case.

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Patricia Hurtado, Trump Oversees All-Time Low in White Collar Crime Enforcement

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Check out – Tom McParland, 'It's Retaliation': US Judge Orders Michael Cohen Released From Prison, Finding Free Speech Rights Were Curtailed, law.com –

"U.S. District Judge Alvin K. Hellerstein of the Southern District of New York said in a hearing that in his 21 years on the bench, he had “never seen” a clause requiring that a candidate for home confinement agree not to speak to the media, and he roundly rejected the government’s claims that Cohen’s jailing was the result of his failing to cooperate with the terms of his release."

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We are finally seeing former Special Counsel Robert Mueller defending his investigation.  Check out his op ed:

Robert Mueller: Roger Stone Remains a Convicted Felon, And Rightly So, Wash Post

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Will the Court allow the release of the redactions in the Mueller Report?  The issue accepted by the Supreme Court is  "[w]hether an impeachment trial before a legislative body is a 'judicial proceeding' under Rule 6(e)(E)(i)?   

The briefs on the Cert Petition are:

Government Brief  on Petition for Cert here

House Judiciary Committee Brief here

DOJ Reply Brief here

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Co-sponsored with the ABA's Global Anti-Corruption Committee, Perkins Coie's Markus Funk, Chelsea Curfman, and Kevin Feldis  have released a podcast series (six so far) as follows:

Introducing the White Collar Briefly MiniPod

They include candid conversations with a variety of special guests, including:

· American “book of the year” author, editor, screenplay writer and publisher Dave Eggers- see here

· Joel Esquenazi (defendant in the high-profile U.S. v. Esquenazi FCPA case)- see here

· Molson Coors’ Global Ethics & Compliance Chief Caroline McMichen see here

· Chicago-based U.S. District Judge Virginia Kendall – see here

· University of Colorado COO (and former GC) Patrick O’Rourke – see here

· Avanos Medical Deputy GC Ross Mansbach – see here

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