Investigating the Investigators: Highlights from Recent DOJ OIG Investigations

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By Dan Portnov

Office of Inspector General investigations don’t always make the news. After all, no one ends up in jail or paying back billions of dollars in ill-gotten gains as a result (usually). However, one federal agency’s OIG seems to garner an outsized amount of attention: the Department of Justice.

Are DOJ OIG investigations really that much more interesting, or is it a dose of Schadenfreude for the public – watching those in law enforcement get in trouble?

Perhaps both.

Let’s take a look at some of the recent matters in which the DOJ OIG was involved, and how the OIG might have been tipped off.

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Rule 17(c) Subpoenas – The Unfair Limits on a Defendant’s Ability to Prepare a Defense (Part I)

Scales of justice.During a criminal investigation, the government has nearly unlimited powers to gather evidence against a defendant. It can use grand jury subpoenas—usually with no court oversight unless the recipient objects—for documents or to compel testimony of any witness.

It can use its agents to interview witnesses voluntarily, knowing that most people will feel obligated to talk to a federal agent who asks to speak to them.

The government issues extremely broad grand jury subpoenas. It doesn’t expect that everything that will be produced in response will be admissible, or even necessarily used in the case. The purpose is to investigate what happened.

You would think that a defendant would have the same power to gather evidence and investigate defenses to criminal charges after an indictment.

You’d be dead wrong.

In theory, Federal Criminal Rule 17(c) permits a defendant to issue a subpoena to any third party for documents. In practice, though, the courts have drastically limited defendants’ use of 17(c) subpoenas by imposing a strict standard for what can be requested.

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What Is A Joint Defense Agreement in Criminal Defense?

iStock-1008108168.jpgBy Dan Portnov

Sometime this summer, perhaps as soon as mid-August, former National Security Advisor Michael Flynn will be sentenced by U.S. District Court Judge Emmet Sullivan. Flynn’s sentencing piques both pro-Trump and anti-Trump interest because he was one of the first of the president’s inner circle to fall.[1]

As Flynn switched lawyers earlier this month, perhaps signaling a shift in his strategy for sentencing, Judge Sullivan also made news by ordering the release of a November 2017 voicemail from former Trump lawyer John Dowd to Flynn’s old lawyer. The topic? Flynn’s cooperation with Special Counsel Robert Mueller and withdrawal from a joint defense agreement with the President of the United States.

So just what is a joint defense agreement in the criminal context and why does it matter?

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Should DOJ Indict President Trump But Seal the Indictment?

Shh!Given the position of the Office of Legal Counsel that a sitting president cannot be prosecuted, there has been some talk (including by me) about the possibility of indicting President Trump now but keeping the indictment under seal until he is no longer in office.

I’ve read the portion of the Mueller Report about obstruction. Under the same set of facts, and the same evidence, my view is that anyone other than the President would have been charged with obstruction already. There’s not a question in my mind.

The question, then, is whether DOJ could (or should) indict President Trump now but keep it under seal. That way, it doesn’t improperly affect the upcoming election and to comport with OLC’s legal opinion.

Is that the best option? Maybe.

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SEC Investigations 101: The Endgame

This post is the eighth 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

We’ve often had clients ask us how they can speed up the resolution to an SEC investigation. In some cases, they have even asked us if they can cut a check and be done with it (this was not advised). The real answer is that the SEC will reach its conclusion when… it decides to reach its conclusion. And there are several ways in which an SEC investigation can conclude.

This post will discuss possible conclusions for SEC investigations, from the benign to the most problematic.

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Why Judges Should Stop Asking Jurors About Police Officer Witnesses During Voir Dire

JuryBy Sara Kropf

Jury selection as a funny thing. As I’ve said before, it is far more art than science.

Most courts have a list of standard questions of the ask every juror during jury selection. One of those questions is whether or not the prospective juror is biased for or against a law enforcement witness.

This question leads to the unfair exclusion of African-American jurors.

Courts should stop asking it.

The Purpose of Voir Dire

Voir dire is the process by which the court, and sometimes the parties, ask prospective jurors questions to determine if they would be fair jurors for the case. In many courts, the judge will first ask a list of fairly standard questions to the entire jury pool. Then, each juror will be called to the bench to be asked follow-up questions by the court and the parties about their initial answers to the questions.

The Supreme Court has said that “[v]oir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). That does not mean that any question is an appropriate one during voir dire. For example, I’ve never seen a court allow the parties to ask a jury to describe her political views.

The Supreme Court has invalidated laws and practices that systematically exclude racial minorities from juries and prevents parties from using peremptory challenges to strike a prospective juror based on race. Voir dire may not be used to advance one party’s agenda to exclude racial minorities from the jury.

The Standard Question about Law Enforcement Officers

But what if a standard question asked by the court systematically excludes members of the jury pool who are African-American? What then?

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Outsourcing DOJ Investigations?

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By Dan Portnov

Last week, the government moved one tiny step closer to being able to “outsource” its criminal investigations to non-DOJ actors. In a post-trial order, Southern District of New York Chief Judge Colleen McMahon excoriated the government for effectively outsourcing its investigation into trader Gavin Black’s Libor rigging to his former employer Deutsche Bank. Nevertheless, Judge McMahon denied Black’s motion for relief under Kastigar v. United States[1] and, in a separate order, affirmed the conviction at trial of Black and his co-defendant and fellow trader Matthew Connolly.[2]

Just what happened here and what does it mean for companies and individuals under DOJ investigation?

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Does the Statute of Limitations Prevent Indicting President Trump After He Leaves Office?

Retro alarm clock on wooden table, vintage styleBy Sara Kropf

The Report on the Investigation into Russian Interference in the 2016 Presidential Election (a/k/a the Mueller Report), is a veritable treasure trove of obstruction-of-justice efforts by the President.

We’ve written before about obstruction of justice, here and here. Ultimately, the Mueller Report does not make an explicit finding that the President broke the law. It defers to the opinion of the Office of Legal Counsel (OLC) that a sitting president may not be indicted and therefore concludes that “fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”

The story doesn’t end there.

Reading together two of the Mueller Report’s conclusions leaves the distinct impression that this matter could be far from over.

First, the report reminds us that the OLC recognized (a) that a criminal investigation of the President is permissible and (b) that a President does not have immunity from criminal prosecution after he leaves office. Therefore, said the report, the SCO “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”

Second, the report makes clear that if it could clear the President, then it would do so explicitly. But it doesn’t. In fact, “[w]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

Whoa.

President Trump is not “exonerated”

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The evidence against him has been preserved

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Possible prosecution after President Trump leaves office

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What is the STOCK Act?

iStock-885674728.jpgBy Dan Portnov

Occasionally we work on cases or investigations that involve highly wonky subject matter – stuff that only lawyers or legislators would know and care about. One of those recent matters touched on the Stop Trading on Congressional Knowledge (STOCK) Act, a (relatively) recent piece of legislation that attempts to extend insider-trading concepts to elected officials, among other things. Since our interest has been piqued, and the STOCK Act covers a broader swath of conduct than its name implies, we thought it a good idea to explain some of the basics of the STOCK Act, and whom it might affect.

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What’s in My Trial Bag?

Old suitcase isolated on white backgroundI’m in trial this week in a white-collar criminal case. Since I couldn’t manage to find the time to write a substantive post, I thought I’d write instead about something  practical: what I bring with me to court when I’m in trial.

Being in trial is a physical event. You are lugging boxes back and forth to the courthouse. Even with electronic courtrooms, we usually still need paper copies of all the exhibits to give to the judge and to the witness on the stand.

Plus, as a defense counsel, I’m always holding back a few impeachment documents in hard copy to use at just the right moment.

The problem with all this stuff is that most courthouses won’t let you leave it in the courtroom overnight because of security concerns. That is not such a big deal for the AUSA who likely has an office in the courthouse building. But for a defense lawyer, it’s a huge hassle to have to drag everything to and from court each day.

Apart from all the documents I need for trial, here’s a list of the items that I bring with me every day:

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