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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Defending Research Misconduct Cases Part 2 – What is Research Misconduct?

Close-up shot of microscopeWhen are you accused of a crime, you can look up the statute that defines the crime and then your lawyer can research court cases that interpret it. All of that information helps to defend against the charges.

This information can also help you determine what conduct is illegal so you can avoid engaging in it in the first place.

When it comes to research misconduct, though, information is scarce. There are very few court decisions. And, even though there is an administrative process to challenge findings of research misconduct, that process rarely results in a written opinion that provides helpful guidance.

Despite the lack of information, understanding the definition of research misconduct is a key element to defending against these types of allegations. You may be surprised how broad the definition of “research misconduct” is.

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SEC Investigations 101: Cooperation?

This post is the fourth 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.

By Dan Portnov SEC HQ front.jpg

Thanks to the ongoing Special Counsel investigation, we have been inundated with high profile examples of how cooperation works in criminal investigations, how it doesn’t work and how it can seemingly blow up. Even the President has weighed in on cooperation, saying that it “almost ought to be illegal.” Nevertheless, cooperators are vital for law enforcement to do its job.

(And, no, there’s nothing “illegal” about it.)

Just as federal prosecutors rely on cooperators to prove up their cases in exchange for recommendations of leniency at sentencing, so does the SEC incentivize cooperation by individuals and companies in its investigations. But what exactly does cooperation mean in the SEC context? And how should an individual make the decision to cooperate with the SEC?

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Happy New Year! Our Most-Read Blog Posts in 2018

Top 10 LetterpressHappy new year to our readers!

This year, Dan Portnov began writing regularly for Grand Jury Target, particularly about SEC matters. We’d like to thank everyone for reading. There’s nothing I like better than meeting someone new who says “I love your blog.” I’m even happy when you say “I kind of like your blog” or “I’ve heard of your blog.”

It’s a low bar, really.

At the end of the year, we find it interesting to look back at what posts were the most popular.  It helps us pick topics going forward. It’s not fun to write posts that no one reads.

This year, the pattern is plain: the Russia investigation is a hot topic. Many readers wanted to read about Michael Cohen and about issues related to grand jury investigations.

Here are the top 10 posts for the year:

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Practical Insights from SEC’s Newest Enforcement Associate Directors


SEC HQ front.jpg

By Y. Ramona Lin[1]

Last week, I had the pleasure of [virtually] attending a lunch and discussion featuring two newest SEC Enforcement Associate Directors, Anita Bandy and Carolyn Welshhans.[2] The discussion was moderated by Kara Brockmeyer, a partner at Debevoise & Plimpton and former Chief of the SEC’s FCPA Unit.

(Disclaimer: the views of the individual associate directors do not represent those of the Commission or their colleagues.)

Some key takeaways from the discussion included:

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Initial Coin Offerings and What the SEC Might Think About Them: An Update

By Daniel Portnov
SEC HQ front.jpgEarlier this week I attended the DC Bar’s Communities program “Crypto Update: Current Issues Relating to Blockchain, Digital Assets and ICOs” featuring two members of the Commission’s staff – Assistant Director Jennifer Leete from the Enforcement

Division and the Deputy Chief Counsel Jonathan Ingram from the Division of Corporate Finance.[1] Like our post earlier this year from Commissioner Jackson’s reception, Ms. Leete and Mr. Ingram offered valuable insight into Enforcement and CorpFin’s thinking on cryptocurrencies and ICOs. (Necessary disclaimer: the views of the individual staff members did not reflect those of the Commission or their colleagues.)

The key takeaways from the program included:

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Defending Research Misconduct Cases (Part I – The Overview)

We’ve written about Office of Inspector General investigations several times (see here and here and here). But there’s a small component of OIG investigations that relate to scientific research misconduct. This is the first of multiple posts about research misconduct investigations.

This series will explain how this particular investigative process works and offer some guidance about how to defend against those investigations.

The targets of research misconduct investigations are scientists and other researchers working at universities and other research institutions. Those scientists and researchers apply for federal funds for their work. If they win grants, then they use federal funds and report back to the government about the research.

This close nexus between private actors (the researchers) and billions of dollars of federal funds means that someone has to keep an eye out for fraud. This type of fraud has the gentler name of “research misconduct,” but the repercussions are still severe.

We’re talking about employment consequences, expulsion from federally-funded research for years, public shaming and, possibly, criminal charges.

When the government uncovers research misconduct, it does not hesitate to make that misconduct public. For example, every quarter, the Office of Research Integrity (ORI) publishes a newsletter on its website. A prominent part of the newsletter is called “Research Misconduct Case Studies.” In that section, ORI describes in some detail its findings of misconduct against a federally-funded researcher. The researcher’s name is prominently featured in the article, along with the likely career-ending punishment imposed.

If you aren’t a researcher, you may be wondering: What is the ORI? How did it get so powerful?

You may also be wondering: Why is this a topic for a white-collar criminal defense blog?

Let’s start with the second question first.

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10 Quick Takes on Michael Cohen’s Recent Plea Agreement – And What Cohen and Roger Clemens Have in Common

Baseball backgroundRemember when everyone was talking about whether now-Justice Brett Kavanaugh was lying to Congress when he seemed a bit less-than-candid about his drinking in high school?

Seems like a million years ago.

Anyway, it turns out that lying to Congress is a real thing! It can lead to real consequences!

I don’t think any criminal defense lawyer in her right mind thought that Kavanaugh would be charged with a false statement for saying that he never blacked out from drinking beer 35 years ago. Whether he lied when he answered questions about the timeline for learning of the allegations of sexual assault was a bit more serious.

But now, President Trump’s lawyer Michael Cohen has pleaded guilty a second time. This time it’s for lying to Congress.

Here is his plea agreement.

And here is the criminal information.

(An information is a type of charging document. It doesn’t need to be issued by a grand jury. An information is a simpler way to charge someone when there is a plea deal since the defendant can waive his right to a grand jury.)

Cohen apparently sent a two-page letter (JUST TWO PAGES) to the Senate Select Committee on Intelligence and to the House Permanent Select Committee on Intelligence. The committees were investigating Russian interference with the 2016 election. The letter discussed his efforts to help an unnamed company open a “branded property” in Moscow. He also testified before Congress.

(We all know what company is being described.)

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Posted in Congressional investigation, Perjury, Plea Agreement | Tagged | 1 Comment

SEC Investigations 101: Establishing the Pace and Scope

This post is the third 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 SEC’s Enforcement division staff.

SEC HQ front.jpgBy Dan Portnov

Unless you are, say, Elon Musk, the SEC may not make very clear the theory it has as to what you did wrong. Instead, SEC Enforcement Division staff may have a broad or vague idea of the alleged misconduct at the start of an investigation and deliberately cast a wide net, resulting in a subpoena (or document request) that is both substantively broad and covers a long period of time. In some cases, you may be left shaking your head at just how little the Staff seems to understand your business.

Still, this early stage presents a great opportunity to take some control of the investigation[1] as well as build credibility with the staff conducting the investigation. This post will walk through the first few steps that you, as the subject of or witness[2] in the investigation, should take.

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The Risk for President Trump (and Anyone Else) If He Answers Written Questions from a Prosecutor

Close up of pen writing a letterLast week, news hit that Donald Trump had received written questions from Special Counsel Robert Mueller. More interesting, President Trump asserted he answered them “very easily.”

Here’s what he said during the interview:

I write the answers. My lawyers don’t write answers. I write answers. I was asked a series of questions. I’ve answered them very easily — very easily. I’m sure they’re tripped up, because you know they like to catch people.

He made clear that he hasn’t submitted his answers yet, so there’s still an open question as to whether he will end up answering them at all since it’s a legal minefield to do so.

Trump has a sophisticated legal team working with him at this point, so I’m not sure his statement is completely accurate.

Let’s unpack all the issues with what he said.

Written Questions Are Not Normal

We can start with the basics: Prosecutors do not normally allow people to answer written questions rather than sit for an interview or appear before the grand jury.

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Posted in Criminal Investigation, False statements, Fifth Amendment, Grand jury, Perjury | Tagged | 1 Comment