Photo of Aaron P. Brecher

Aaron Brecher focuses his practice on investigations, compliance and white collar defense as well as privacy and data security. He’s passionate about helping individuals and companies through some of their most difficult and sensitive challenges: investigations that could lead to government enforcement actions and resulting litigation.

Aaron is a co-founder and frequent contributor to Target Letter, the blog maintained by Lane Powell’s Investigations, Compliance & White Collar Team, among other thought leadership. In addition to his compliance and enforcement work, he represents clients in antitrust, intellectual property, and securities litigation as well as qui tam and False Claims Act litigation.

Before entering private practice, Aaron worked as a Law Clerk with both the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Central District of California.

Henry Friendly still has my vote for the title of greatest American judge who ever served at any level. It’s the country’s misfortune that he never served on the U.S. Supreme Court. He did, however, spend nearly thirty years on the United States Court of Appeals for the Second Circuit, writing more than 1,000 opinions and carving out a reputation as one of the country’s most influential jurists. On March 10, 1986, thirty-two years ago today, Friendly died.

I’ve written at some length elsewhere about my definitely-not-unhealthy devotion to a long-deceased judge on an intermediate appellate court who, with a few exceptions, did not weigh in on the most hotly contested constitutional questions of the day. But Friendly’s reputation was built on his alarming analytical acuity, the lucidity of his writing, and his record of pragmatic decisions. He also had a great eye for talent: his law clerks included Chief Justice John Roberts, federal appellate judges Merrick Garland, A. Raymond Randolph, William Bryson, Pierre Leval, and Michael Boudin, and a slew of influential lawyers and academics including Bruce Ackerman, Larry Kramer, and Ruth Wedgewood.

For purposes of this blog, Friendly wrote several decisions addressing the scope of the attorney–client privilege and reviewing convictions for white collar crimes in an era when prosecutions for such crimes were relatively rare. Two of those decisions are discussed below and recounted in detail in David Dorsen’s excellent biography of Friendly.

Continue Reading This Day in White Collar History: Remembering Henry Friendly


I imagine that word—or else a prolonged stunned silence—was the response of many attorneys and non-attorneys alike when former Trump campaign aide Sam Nunberg announced in a series of bizarre interviews today that he planned to ignore a grand jury subpoena from the Special Counsel’s office. Nunberg then dared the government to arrest him for his refusal to cooperate.

As far as strategies go, Nunberg’s is all kinds of terrible. As others have described, you can be jailed for contempt for defying a grand jury subpoena, and subpoenaed witnesses in past investigations of presidents have faced such consequences.

Mr. Nunberg did raise an interesting point in an interview with CNN’s Jake Tapper, asking whether he should have to spend “80 hours” looking for every email he had sent to other campaign advisers since November 2015, complaining that he had exchanged many emails per day with some of those people. Grand jury subpoenas to produce documents can be a pain. Below are some tips to try to reduce costs.

Continue Reading “I’ve Made a Huge Mistake,” or: Don’t Ignore Grand Jury Subpoenas and Other (Less Obvious) Tips

  • This month’s issue of the Federal Lawyer focuses on white collar crime, and includes this helpful article on subpoenas.
  • Deputy Attorney General Rod Rosenstein visited Seattle this week for a press conference stressing DOJ’s continued commitment to catching the killer of a federal prosecutor tragically murdered here in 2001. One month to the day after 9/11, Assistant U.S. Attorney Tom Wales was working at his computer at about 10:40 p.m. Someone familiar with his home and work habits evaded the motion-sensor-based floodlights in his yard and shot him through the window. Over almost 17 years of active investigation, the government has pursued a variety of theories. If the murder was related to his work, Mr. Wales would be the first federal prosecutor killed in the line of duty in American history.
  • A new podcast investigating the murder, Somebody Somewhere, launched on January 30th.
  • If you’re thinking about the Supreme Court’s decision to leave in place a D.C. Circuit decision about standing in data breach cases, there’s a nice discussion of it on this week’s episode of the National Security Podcast.
  • Just a week after Valentine’s Day, the U.S. Attorney’s Office in Portland indicted a dating site fraudster for stealing, and then laundering, money from would-be dates with the help of some catfish co-conspirators.


File Top Confidential Report Secret Top SecretBy now you’ve likely heard of, and perhaps read, the much-vaunted memorandum written by the Republican majority staffers on the House Permanent Select Committee on Intelligence (HPSCI) and released to the public this past Friday. In short, the memo claims that evidence that HPSCI has uncovered raises serious questions about the legitimacy and legality of electronic surveillance of a U.S. citizen, Carter Page, under the Foreign Intelligence Surveillance Act (FISA). Some outlets (and members of Congress) have said that the memo uncovers a scandal worse than Watergate that totally discredits the DOJ investigation of Russian interference in U.S. elections and any connection to the Trump campaign being led by Special Counsel Robert Mueller. Other commentators have called the memo “a dud.” In the run-up to its controversial release, many Democrats on HPSCI suggested that releasing the memo would expose “sources and methods” of intelligence collection—among the most protected of the U.S. government’s secrets—while Republicans on that same committee suggested that it proved foul play by government investigators and lawyers leading up to (and beyond) the 2016 presidential election.

So what’s going on? What does the memo actually say and how is it significant? First, I encourage you to read it for yourselves. It’s only 3-and-a-half pages long. After a close read, it’s safe to say a few things about the memo and what it shows. First, it’s pretty clear that, at least in its published form, the memo does not reveal sources or methods of intelligence. That doesn’t mean that it’s not a big deal that it was declassified; I’m aware of no prior instance in which Congress has revealed the existence—much less named the target—of a specific FISA electronic surveillance order. It’s also apparent that the memo reveals next to nothing that substantiates the charge that the FISA process was abused. That’s not to rule out the possibility that the FISA process was abused by government officials, just to say that the memo itself doesn’t come anywhere close to making that case. Below, I’ll try to explain why.

Backing up a bit, it might be helpful to have a sprinkle of background information about FISA. FISA was enacted by Congress in 1978 in the aftermath of the Watergate scandal and the congressional Church Committee investigation that revealed significant abuses by U.S. intelligence agencies in collecting information about U.S. citizens in the absence of a warrant or other legal process. FISA is a complicated statute that regulates many tools of intelligence collection. If you’re interested, National Security Investigations and Prosecutions is a leading treatise with extensive coverage of the statute and its history. For purposes of the memo, the most important provisions are in Title I of FISA, covering the process to obtain an order authorizing electronic surveillance of a suspected foreign agent from the Foreign Intelligence Surveillance Court (FISC). The FISC consists of 11 federal judges from district courts around the country, who are in turn appointed by the Chief Justice of the United States to serve 7-year terms on the FISC, in addition to the lifetime appointment to the district court they are already serving. To obtain an electronic surveillance order, the government has to show several things, including that there is probable cause to believe that the target is a “foreign power” or an “agent of a foreign power.” For “United States persons”—a category broader than, but inclusive of, U.S. citizens—the definition of the term “agent of a foreign power” generally includes a requirement that the person’s activities “may involve a violation of the criminal statutes of the United States.” For U.S. persons, a FISA electronic surveillance order expires after 90 days unless the FISC (either through the same or a different judge) grants an extension based on new evidence showing probable cause. Proceedings before the FISC are almost all under seal due to the classified information before the court. Moreover, apart from statutory procedures for the court to appoint an amicus curiae to argue against the government’s position in certain matters, the government generally practices before the FISC in Title I cases without any other party’s involvement.

The memo alleges that the process for obtaining a FISA order to monitor Mr. Page’s communications was flawed because DOJ and the FBI did not disclose to the FISC that one of the bases for the order—the infamous Steele dossier—was prepared as opposition research on behalf of the Democratic National Committee. It notes that the DOJ sought and obtained a FISA order for Mr. Page’s communications on October 21, 2016 (about three weeks before the presidential election), and that the order authorizing electronic surveillance was renewed three times. Doing some simple math based on the 90-day surveillance periods, this means that the electronic surveillance order for Mr. Page was renewed once during the transition and twice under the current administration. In addition to alleging that the dossier’s origin wasn’t disclosed to the FISC, the memo also notes that Mr. Steele (the dossier’s author) had discussions with a senior DOJ official (Bruce Ohr) that revealed a strong ideological bias against then-candidate Trump, and that that bias was not communicated to the FISC either. So why don’t I think the memo succeeds in making its case? I’m glad you asked.

Continue Reading Breaking Down the #Memo

John Roberts and Elena Kagan
John Roberts and Elena Kagan

You’re relieved. After a long investigation concerning some troubling conduct throughout the Pacific Northwest that may have led to the United States being defrauded by one of its contractors, you’ve brought this stressful period to a close. You’ve entered a Non-Prosecution Agreement with the U.S. Attorney’s Office for the Western District of Washington. Perhaps the agreement even includes a civil settlement as well, resolving several parallel investigations.

But not two weeks later, an Assistant U.S. Attorney (“AUSA”) for the District of Oregon informs you that you’re the target of a criminal probe concerning the exact same conduct. How is this possible? As unfair as it seems, it has long been the position of federal agencies and DOJ components that other DOJ components are not bound by an agreement unless the agreement provides as much.

Consider the case of Prime Partners, a Swiss asset management firm accused of aiding U.S. taxpayers in New York and elsewhere of evading their federal income taxes. In August, the U.S. Attorney’s Office for the Southern District of New York entered a Non-Prosecution Agreement with Prime Partners in exchange for extraordinary cooperation with the Office’s investigation and the firm’s institution of substantial changes to its practices. The agreement states:

It is further understood that this Agreement does not bind any other federal, state, or local prosecuting authorities other than this Office and the [DOJ] Tax Division. If requested by Prime Partners, this Office and the Tax Division will, however, bring the cooperation of Prime Partners to the attention of such other prosecuting offices or regulatory agencies.

Parties caught up in such a situation should consider a few things:

  • Beware of the kind of limiting language in the Prime Partners agreement, which is common in government settlements.
  • Insist on language in any plea or other settlement agreement that to the effect that it binds other federal agencies, or at least all other components of the Department of Justice.
  • If you find yourself caught up in the kind of bind I describe at the beginning, consider an appellate challenge.

Continue Reading *Absolutely Startling*: Settlements With the Government

Upjohn's Friable Pills photoOn January 13, 1981, the Supreme Court decided Upjohn Co. v. United States. Thirty-seven years later, it’s hard to think of a judicial decision that has had a more significant effect on internal investigations. The Court’s opinion made no mention of any particular warning procedure, instead focusing on the application of the attorney–client privilege to corporate clients. But it prompted the near-universal practice of lawyers who are conducting internal investigations advising corporate employees that they represent the company, rather than the employee, and that the company may waive the privilege at any time. There are countless articles highlighting the importance of providing the Upjohn warning while conducting internal investigations. I won’t rehash those points here. Instead I want to introduce a few fun factoids about the case itself, and the players involved in litigating it.

Continue Reading This Day in White Collar History: The Supreme Court Decides <em>Upjohn</em>

Department of JusticeHypothetical Bad News. You or your company has been served with a civil investigative demand requiring you to produce documents and answer questions from the government. The Department of Justice (DOJ) is investigating you for suspected violations of the False Claims Act, or perhaps for participating in a price-fixing conspiracy in violation of the antitrust laws. The investigation could drag on for years and—if you’re found liable—you may be on the hook for millions of dollars.

Hypothetical Worse News. Government agents have also inspected your premises pursuant to a search warrant, and you learn that associates of yours have been subpoenaed to testify before a grand jury. You are the target—or at least the subject—of a criminal investigation. For a company, a criminal conviction and associated fines could be devastating. For an individual, it could result in the loss of your liberty.

To provide a more concrete example, there have been dozens of administrative and criminal proceedings over the last few years that grew out of a massive public corruption scandal involving the bribing of dozens of Navy officials in exchange for participating in or turning a blind eye to baseless bills from an overseas defense contractor. Many participants have been criminally prosecuted, but the criminal investigation (which remains ongoing) has also coincided with administrative enforcement actions that resulted in the debarment of numerous contractors, permanently preventing them from doing business with the government.

More and more, government officials and agencies bring to bear all of the enforcement tools—civil, criminal, and administrative—in parallel investigations and proceedings to put a stop to unlawful conduct.  If you’re the target of parallel investigations, you and your lawyer will need to be mindful about the different discovery tools available to the government, the risks of compromising your rights in one investigation through your response to another, and the need for a global settlement with the government.

All of that could fill a treatise, so I won’t try to cover it here.  Instead, I’ll cover:

  • A brief overview of the DOJ’s approach to parallel investigations and proceedings (they’re favored).
  • Your chances of halting either a civil or administrative proceeding pending resolution of the criminal case (spoiler alert: not great).
  • The importance of thinking strategically at every stage of your response—not just about the individual request or process you’re responding to—but also about how it affects the other investigations (it’s really important).

Continue Reading A Quick Look at Parallel Proceedings