There was an interesting development late last week when Special Counsel Robert Mueller hired Michael Dreeben, a deputy in the Office of the Solicitor General, to work part-time with his staff. The addition of Dreeben added someone with considerable criminal and appellate experience. However, Dreeben’s background also contains an interesting item that bears directly on the potential case against President Donald Trump. Dreeben argued in an unsuccessful appeal of the prosecution of Arthur Anderson where the Justice Department advanced a sweeping interpretation of obstruction of justice — an interpretation that I criticized as wildly overbroad. The interpretation resulted in a unanimous rejection of the Supreme Court. Given the call for a charge of obstruction against Trump (and the view of some of us that there remains considerable statutory barriers to such a charge), Dreeben’s addition should be a concern to the Trump defense team.
Arthur Anderson LLP v. United States, 544 U.S. 696 (2005), involved the firm’s conviction related to the Enron scandal. The Justice Department alleged that the firm (which was Enron’s accounting firm), instructed its employees to destroy documents after they were aware of the investigation into Enron by the Securities and Exchange Commission. The firm was convicted under 18 U.S.C. § 1512(b)(2)(A) and (B) for the crime of “knowingly … corruptly persuad[e] another person … with intent to … cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” However, the court instructed the jury that they could convict “even if petitioner honestly and sincerely believed its conduct was lawful.” The unanimous court, in a decision by Chief Justice William Rehnquist, disagreed and reversed the conviction.
What is particularly notable about the decision is that we have discussed the key standard of “knowingly … corruptly persuade” in the context of the claims against President Donald Trump. I have said that I do not see a serious foundation for an obstruction charges due to a couple of missing elements, including the intent element for seeking to corruptly influence the investigation. The Court ruled that “[o]nly persons conscious of wrongdoing can be said to ‘knowingly corruptly persuade.’ ”
Given the current weak foundation for an actual charge of obstruction, the addition of Dreeben is all the more notable as someone who argued for a broader application of the crime — particularly in the reduction of intent standard. Dreeben’s selection is a lot like seeing an opposing kingdom hiring designers of seige or breaching towers in the Middle Ages. It is hard not to assume that they are meant to overcome your walls of defense. Indeed, from the perspective of defense counsel, bringing in Dreeben at this point is like sitting outside of the Trump castle building a breaching tower and insisting that there is nothing to see here . . . it is just for the view.
Dreeben also brings experience in the preparation and preservation of appellate issues. In an investigation that could raise novel constitutional issues, that experience could be quite handy.
These types of additions to Mueller’s team can be overplayed of course. However, Mueller himself was not likely viewed as a neutral choice by Trump lawyers. He shares a history and values with Comey, who followed him at the FBI. They have the same DNA. In comparison, he shares about as much in common with Trump as a mule skinner. Mueller is an icon at the FBI and Trump is widely viewed as challenging the FBI’s integrity and independence. That is why the addition of attorneys like Dreeben is likely to be viewed in the most ominous light.