Outsourcing DOJ Investigations?


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.”


President Trump is not “exonerated”


The evidence against him has been preserved


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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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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