A lot has happened in the last few months. This is so both in the world of white-collar enforcement and just in the world. I thought I’d share some thoughts on last week’s news about Michael Flynn and the Supreme Court’s decision in the “Bridgegate” case.

I. Flynn-sanity or: Gee, it must be nice to be the President’s buddy when you lie over and over again.

First up, Michael Flynn. He’s been a repeat player on this blog.

The Background. The short version is this: After the 2016 election but before the 2017 presidential inauguration, incoming National Security Advisor Flynn spoke to Russia’s ambassador to the U.S. about U.S. sanctions against Russia. He asked the Russians not to escalate tensions. But he told incoming Vice President Pence later in the transition that he had not discussed the sanctions. He told the FBI the same thing in late January 2017. He pleaded guilty to one charge of making a false statement to the FBI, and also admitted that he had acted as an unregistered agent of the Turkish government during the transition, and that he made false statements to DOJ in March 2017 about his actions on Turkey’s behalf. But then he tried to withdraw his guilty plea. Last week, DOJ filed an unusual motion asking the court to drop the charges against Flynn.

The Controversy. Depending on who you ask, this is either (1) vindication for an innocent man railroaded by the FBI, (2) a stunning assault by the Attorney General on the rule of law and an act of pure corruption to protect the President’s allies, or (3) a small taste of the kinds of pressures that less well-connected subjects of federal investigation face every day. For my part, I lean toward some version of (2) and (3), though neither completely captures my view.
Continue Reading Some Thoughts on Michael Flynn & Bridgegate

This last week saw the passing of two titans of American law: John Paul Stevens and Robert Morgenthau. Both led remarkable lives and careers.

Justice Stevens died last Tuesday at age 99. Over more than 30 years on the U.S. Supreme Court, he authored critical majority and dissenting opinions on issues central to white collar criminal enforcement—indeed to criminal law generally. To start, he authored several of the decisions that have transformed criminal sentencing. One of these was Apprendi v. New Jersey, which held that any fact (other than a prior criminal conviction) that increases a defendant’s punishment beyond the otherwise applicable statutory maximum had to be proven to a jury beyond a reasonable doubt. Another, United States v. Booker—a fractured opinion in which Stevens wrote in part for the majority and partially in dissent—the Court invalidated a federal statute that generally required judges to sentence defendants within the ranges set by the U.S. Sentencing Guidelines.

Stevens also dissented from the Supreme Court’s 1987 decision that the federal mail and wire fraud statutes required the government to prove that defendants had deprived their victims of tangible property, including money. It was not enough, the majority said, for a victim to have been fraudulently deprived of “honest services.” Justice Stevens disagreed. He wrote that the Court’s decision undermined Congress’s efforts to broadly proscribe fraudulent schemes. Congress ultimately vindicated Stevens’s view by enacting a new honest services statute the year after the Court’s decision.

Finally, I urge you to read this recent piece in the The Atlantic discussing Stevens’s formative encounter with white collar issues and the criminal justice system more generally when his father was convicted with embezzlement when Stevens was a child. The conviction was ultimately overturned.

I’m not really equipped to comment on all the ways that Justice Stevens made our society better. He was a veteran, an able lawyer, and a judge who always kept the humanity of the parties before him centered in his opinions.


Continue Reading This Week in White Collar News: In Memoriam

  • We’ve linked to alleged gold-based fraud schemes before. Here’s another set of charges—for mail fraud in Oregon—against the owners of a coin business who allegedly misrepresented their operations to clients.
  • And in Alaska, a sparsely detailed indictment for money laundering growing out of a drug operation.
  • DOJ dispatched a representative to Prague to

On 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 Upjohn