Congressional Investigations: Tips from the Pros

iStock-885674728.jpgBy Dan Portnov

Last week I had the pleasure of attending a fascinating panel on congressional investigations hosted by MoloLamken. The panel featured defense attorneys Karen Christian, Reginald Brown, Amy Jeffress and Raphael Prober and was moderated by Molo’s Justin Shur.

We have written about congressional investigations before (here and here), and note that they are indeed unique creatures. The panel reinforced this notion. Among some of the key takeaways and tips from the panelists:

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Concurrent, Consecutive and “Stacked” Sentences: Why One Word Makes a Big Difference at Sentencing

Stack of pancake with honey and butter on topA judge says a lot of things during a sentencing. Two of them are really, really important.

First is the number of months in prison. “One hundred twenty” is a lot different from “a year and a day.”

Second is whether the sentence imposed for multiple offenses is “consecutive” or “concurrent.”

The Basics

Consecutive is bad. It means that sentences for the various crimes of conviction will be served one after another.

If you are convicted of one count of mail fraud, one count of wire fraud and one count of conspiracy and sentenced to 18 months on each one, then your total prison sentence is 54 months, if the judge says they are consecutive sentences.

Stacked is a less formal way of saying “consecutive.” The sentences for each crime of conviction are stacked on top of each other. (If you were wondering why there is a picture of pancakes with this post, this is why.)

Concurrent is good. It means that the sentences for the various crimes of conviction will be served at the same time. For the example above, you would serve 18 months total.

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SEC Investigations 101: The Wells Notice (Part 2)

This post is the seventh in a series of posts for non-lawyers, or non-securities lawyers, who might suddenly find themselves on the wrong end of a Securities and Exchange Commission document request, subpoena or call from Enforcement division staff.

SEC HQ front.jpgBy  Dan Portnov

In our last SEC Investigations 101 post we teased the Wells Notice but ultimately wrote more about pre-Wells strategy in the SEC investigation: the white paper and the pre-Wells meeting. So let’s jump right in. Enforcement staff have issued the Wells notice. What now?

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In Your Client’s Words – Speaking at Sentencing

danger thin ice

“Each of us is more than the worst thing we’ve ever done.”

– Bryan Stevenson

The fundamental truth of Mr. Stevenson’s quote is tested every time a defendant is sentenced after conviction.

Too often, prosecutors act at sentencing as though they cannot fathom that my client is anything more than the crime he committed. During my sentencing presentation, I try to show the judge that my client is much more. One of the key parts of that presentation is my client’s statement.

That statement is so important. And so damn scary.

Before we get to why it’s so scary, you need to understand the basics of how the federal sentencing process works. In the movies, the defendant is found guilty and then the judge issues a sentence from the bench right away.

That’s not how it works.

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SEC Investigations 101: The Wells Notice (Part 1)

By  Dan Portnov

SEC HQ front.jpg

SEC investigations can last a long time. Even when the Enforcement staff comes charging out of the gate, the investigative pace invariably slows once there are terabytes of documents and hundreds of pages of testimony to review. The staff might even lose contact with your lawyer for months at a time, causing your lawyer to sagely advise you not to poke the sleeping bear.

And then the other shoe drops: the SEC wants to charge you with securities laws violations. Your lawyer tells you that a Wells Notice is coming. What exactly is a Wells Notice? And is there anything that you can do at this stage to avoid litigation with the SEC?

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Defending Research Misconduct Cases (Part 3) – The Inquiry Stage

Close-up shot of microscopeIn Part 1 of this series, we described the various steps of the research misconduct life cycle. Today, we’re digging deeper into the early stage of a research misconduct case, so you know what to expect. More important, we’ll give you some suggestions about what you should (and shouldn’t) do.

The Assessment Stage

When the allegations are first reported to the university or research institution, there will be an “assessment” of the allegations. That assessment is generally very bare bones and simply determines if the allegations are credible on their face, whether they allege research misconduct and whether the institution has jurisdiction over them.

The policy for Cal Tech has typical language describing the assessment stage. The Research Integrity Officer (RIO) will assess:

any allegation of research misconduct to determine whether the conduct falls within the scope of this policy, whether the allegation, if true, would include conduct that meets the definition of research misconduct, and whether the allegation is sufficiently specific such that potential evidence of research misconduct could be identified.

For example, if someone complains that a researcher drives too fast or pays a housekeeper under the table, the institution will conclude during the assessment that these allegations do not fall within its jurisdiction or are not about research misconduct. Or if someone reports that a researcher is secretly an extraterrestrial, that likely will not make it past the assessment phase.

Even if an allegation doesn’t fall within the RIO’s jurisdiction, the institution may still counsel the researcher or try to work out a resolution. But, more likely, the researcher likely will not ever learn about the allegations at all.

Assuming the allegations survive the assessment stage, the next stage is the “inquiry.”

This is when things get serious.

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Same Same, But Different: The Basics of Congressional Investigations

iStock-885674728.jpgBy  Dan Portnov[1]

The swearing in of the 116th Congress last month brought with it promises of vigorous new investigations into the Trump administration – as well as other related public and private industry conduct.  Last week’s brief standoff between former Acting Attorney General Matthew Whitaker and House Judiciary Committee over a possible subpoena to the former showed that the Democrat-led House committees are eager to make a statement. While the nature and scope of future investigations are yet to be revealed, defense attorneys specializing in congressional investigations (that includes us!) have been salivating over the opportunity for new work.

Congressional investigations are a curious beast – not criminal, not civil, but nonetheless perilous. This series of posts will provide some basics on congressional investigations and key ways in which they differ from criminal or regulatory investigations.

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SEC Investigations 101: Testimony

This post is the fifth in a series of posts for non-lawyers, or non-securities lawyers, who might suddenly find themselves on the wrong end of a Securities and Exchange Commission document request, subpoena or call from Enforcement division staff.

SEC HQ front.jpgBy  Dan Portnov

If the SEC has opened up a formal investigation or a MUI (Matter Under Inquiry) that involves you or your company, will you have to speak to Enforcement staff? That’s one of life’s great uncertainties but odds are that it will not resolve before you have.

What exactly does that mean? And how can you and your lawyer prepare?

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Roger Stone’s Early-Morning Arrest: Stop the Perp Walk

Businessman is arrested and handcuffedIf you read my Twitter feed, you may know that I am a bit left of center when it comes to politics. Ok, I’m a lot left of center.

But, like so many criminal defense lawyers, I don’t judge my clients’ politics. I have clients who are far right, far left, in the middle and downright apolitical.

It doesn’t matter to me. I’m there to protect and represent them, no matter their political views.

So, although my political side may have been pleased to see Roger Stone, President Trump’s longtime advisor, arrested this morning, that’s not the end of it.

My defense-lawyer side raged at his arrest.

Why in the world is the FBI showing up at Mr. Stone’s house in full SWAT-team gear to arrest him? And, how is it that the media just happened to be there?

The perp walk is alive and well.

It’s an abuse of prosecutorial and law enforcement power.

It should stop.

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Decisions, Decisions: What Are the Potential Criminal Violations If President Trump Encouraged Michael Cohen to Lie to Congress?

Three Closed Doors in the Room

On January 17, 2019, BuzzFeed reported that “President Donald Trump directed his longtime attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow, according to two federal law enforcement officials involved in an investigation of the matter.”

This report is based on anonymous sources. Then, on January 19, the Special Counsel’s Office issued a statement that kind of denied it:

BuzzFeed’s description of specific statements to the Special Counsel’s Office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s Congressional testimony are not accurate.

So far, BuzzFeed is standing by its story, and it urged “the Special Counsel to make clear what he’s disputing.”

Admittedly, the Special Counsel’s statement was not very specific about what was wrong in the story. Mr. Cohen’s February 7 congressional testimony may shed some light on these allegations.

Just for fun, though, let’s assume it happened. Let’s assume that President Trump directed his lawyer to lie to Congress about a matter being investigated by Congress, the FBI and now the Special Counsel’s Office.

What would be so wrong with that?

A lot of things. I’ve come up with five possibilities so far.

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