Category: Criminal law

Rorschach Redactions: What Did Not Happen with the Release of the Mar-a-Lago Affidavit

Below is my column in the Hill on the release of the affidavit leading to the raid on Mar-a-Lago. The redacted affidavit did confirm key points, but the most interesting elements could be what did not happen. That may change now that a federal judge has finally indicated that a special master may be appointed. Since the start of the controversy over the Mar-a-Lago raid, I have called for the release of a redacted affidavit and the appointment of a special master to sort through the seized material, including alleged attorney-client privileged material. (Indeed, the Justice Department just admitted that it may have collected attorney-client privileged material). Such an appointment could result in additional material being returned to the Trump team and a release of additional information on what was seized under this exceptionally broad warrant.

Here is the column:

Continue reading “Rorschach Redactions: What Did Not Happen with the Release of the Mar-a-Lago Affidavit”

Federal Judge Indicates Intent to Appoint Special Master to Review Seized Documents in Mar-a-Lago Raid

Since the start of the controversy over the Mar-a-Lago raid, I have called for the release of a redacted affidavit and the appointment of a special master to sort through the seized material, including alleged attorney-client privileged material. Indeed, I felt that this was one of the four failures of Attorney General Merrick Garland in not taking proactive steps to assure that public that this was not a pretextual raid to collect sensitive material for other investigative purposes. Now, District Judge Aileen Cannon has indicated an intent to make such an appointment. It was a belated request from the Trump team but, as I wrote yesterday, it would still have considerable value in the case.

Continue reading “Federal Judge Indicates Intent to Appoint Special Master to Review Seized Documents in Mar-a-Lago Raid”

Denver Public Schools Show Video Telling Kids to Avoid Police “as Perpetrators of Violence”

Some advice given to students was to not report attacks to the police.

There is a controversy in the Denver Public School system as students were shown a video telling them not to call police if they see a violently racist or homophobic incident because police are perpetrators of such violence. What is particularly shocking, however, was the response of the school district to the showing of this insulting and dangerous film. The district said that nobody at Denver South High School actually watched the video before showing it to the students under their charge. Continue reading “Denver Public Schools Show Video Telling Kids to Avoid Police “as Perpetrators of Violence””

Garland’s Leaky Ship: the Justice Continues an All-Too-Familiar Pattern of Demanding Secrecy While Leaking Information

Below is my column in the New York Post on the opposition of the Justice Department to release of even a redaction affidavit in the ongoing controversy over the raid at Mar-a-Lago. As this litigation unfolds (including a key filing today), the Justice Department has been reportedly leaking some of the very same information to the press. In addition, National Archives and Records Administration released a letter contradicting claims of the Trump team, including refuting claims of cooperation or transparency by the former president. There has never been a more important time for Attorney General Merrick Garland to show leadership in plugging his leaky ship while ordering the release of a redacted affidavit. As discussed below, the release of substantive portions of an affidavit can ordinarily be made without compromising confidential informants or undermining the investigation. It could well support criminal allegations or contradict the former president as being claimed by unnamed sources. However, he has waived objections to the release and there is a clear public interest in greater transparency.

Here is the column: Continue reading “Garland’s Leaky Ship: the Justice Continues an All-Too-Familiar Pattern of Demanding Secrecy While Leaking Information”

Protests Arise at UW-Madison After Alleged Assailants of Chinese Student are Charged with Misdemeanors in Brutal Attack

There is a controversy at the University of Wisconsin this week after the Dane County District Attorney’s Office in Wisconsin filed misdemeanor battery charges against three teens suspected in the brutal assault of a UW-Madison Chinese PhD student. The Asian community denounced the crime as race related (which the University denies). Asian students protested the treatment of the case at the university. Many objected to not only the rejection of hate crime charges but the use of misdemeanor rather than felony charges. The reason, however, appears a key distinction in the Wisconsin criminal code. Continue reading “Protests Arise at UW-Madison After Alleged Assailants of Chinese Student are Charged with Misdemeanors in Brutal Attack”

Litigation by Leak: Government Officials Leak New Details on the Mar-a-Lago Raid While Continuing to Oppose Disclosures in Court

One of the most glaring contradictions in the Mar-a-Lago controversy has been the Justice Department demanding absolute and unwavering secrecy over the FBI raid while officials have been leaking details on the raid. The latest example is a report in the New York Times that the Justice Department recovered more than 300 documents with classified markings, citing multiple sources connected to the investigation. Most judges would be a tad annoyed by the contradiction as the government continues to frame the public debate with its own selective leaks while using secrecy to bar other disclosures. That includes sections of the affidavit that detail the communications with the Trump team, information that is already known to the target. Continue reading “Litigation by Leak: Government Officials Leak New Details on the Mar-a-Lago Raid While Continuing to Oppose Disclosures in Court”

How Merrick Garland Missed Four Chances to Earn the Public Trust on Mar-a-Lago

Below is my column in the Hill on the upcoming filing of the Justice Department on proposed redactions to the affidavit that led to the Mar-a-Lago raid. It will be the fifth chance for Attorney General Merrick Garland to take a modest step to assure concerned citizens over the basis or motivation for the raid.

Here is the column: Continue reading “How Merrick Garland Missed Four Chances to Earn the Public Trust on Mar-a-Lago”

The Return of Peter Strzok: How a Fired FBI Official Is Making the Case Against Himself

Peter Strzok is back in the news this week. Career colleagues at the Justice Department previously referred Strzok for possible criminal charges and he was fired for his bias and unprofessional conduct. However, Strzok was immediately embraced by many in the media and establishment for his anti-Trump sentiments. After he was fired, the former special agent was given a lucrative book deal, lionized on the left, featured prominently as an expert by CNN, and given a teaching job at Georgetown. It was an extraordinary recovery from a scandal where he showed flagrant bias, engaged in an affair with another married colleague at the FBI, and fought to continue to investigate Russian collusion claims despite early warnings over the questionable basis of the allegations pushed by the Clinton campaign. (Strzok’s colleague and former paramour, Lisa Page, was given a contract as a legal analyst with NBC and MSNBC). Now, Strzok appears liberated in showing precisely the bias and unhinged hostility alleged by his critics. He has been in the news lashing out at Trump and trolling his objections to the raid on Mar-a-Lago.

Continue reading “The Return of Peter Strzok: How a Fired FBI Official Is Making the Case Against Himself”

Tribe: The Criminal Case Against Trump is Another “Slam Dunk”

In past columns, we have discussed the litany of “slam dunk” crimes that Harvard Law professor Laurence Tribe has declared as established against former President Donald Trump, none of which have been actually charged. Indeed, Tribe appears intent upon running through the entire criminal code. Just for the purposes of keeping score, Tribe declared evidence supporting criminal charges of witness tamperingobstruction of justice, criminal election violations, Logan Act violations, extortion, espionage, attempted murder, and treason by Trump or his family.  This week, Tribe insisted on MSNBC that Trump yet again is facing a “slam dunk” criminal conviction over the raid on Mar-a-Lago. While some of us have suggested that we wait to see the actual evidence before evaluating the risk in the case, Tribe again is confident that the still uncharged case has already been made.

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Congress Adds 87,000 new IRS Agents to Pursue $204 Billion in Tax Fraud While 500 IG Agents Struggle to Investigate $160 Billion in Covid Fraud?

The addition of 87,000 new IRS agents has been celebrated by many as a way to capture billions in revenue to pay for the new bill on climate change and other programs. The claim is that increasing audits of people making over $400,000 will capture additional billions in revenue. That math has been challenged as wildly overestimated unless these new agents turn (as expected) to middle income taxpayers. The respected Congressional Budget Office (CBO) has also directly contradicted claims made by President Biden and the sponsors on increasing the tax burden for middle income families. What is interesting, however, are reports that the government believes that as much as $160 billion in Covid relief fraud exists and the government does not have the personnel or ability to recover most of those funds (or to prosecute most of the culprits).  A fraction of those 87,000 new IRS agents would transform this effort, but documenting and prosecuting Covid relief fraud does not seem as much of a priority in Washington. Continue reading “Congress Adds 87,000 new IRS Agents to Pursue $204 Billion in Tax Fraud While 500 IG Agents Struggle to Investigate $160 Billion in Covid Fraud?”

The Incredible Shrinking Merrick Garland

 

 

 

Below is my column in USA Today on the diminishing role of Attorney General Merrick Garland at the Justice Department after a series of controversies. As a well-known moderate, many of us had hoped that Garland could be a unifying presence at the Department; assuring a divided nation that justice would be pursued in an even-handed and apolitical fashion. Yet, in controversy after controversy, Garland has failed to take modest steps to make such assurances. After well documented cases of bias and false statements by FBI and DOJ officials in past investigations, there was a clear need for greater transparency and independence in investigations. Garland has consistently swatted away such options. This week, Garland stayed on that path and refused to release any part of the affidavit used as the basis for the search of Mar-a-Lago. This included the possible issuance of a redacted copy or even responses to specific concerns over the timing or basis for the search. While Trump has called for the release of the affidavit, Garland will not even release those sections dealing with the account of the prior discussions and agreements with the Team Trump. There is little proactive effort to anticipate or address such concerns as vividly shown in the last week.

Here is the column: Continue reading “The Incredible Shrinking Merrick Garland”

Why the Case Against Donald Trump Remains Incomplete

Below is my column in the Hill on the lingering questions concerning any prosecution of former President Donald Trump for the retention of classified or sensitive material. As previously discussed, the three referenced criminal provisions do not require classified status of documents to be the basis for prosecution. However, if the documents were declassified, it would make any prosecution very difficult, if not untenable, though the obstruction count could be based on affirmative false representations made to the government. The point is only that we still do not have sufficient information to judge the basis for the raid or the prospects for prosecution despite the often breathless coverage.  The affidavit remains key to ending this speculation and quelling conspiracy theories. That is why Attorney General Merrick Garland should call for its unsealing.

Nevertheless, figures like John Dean are saying that defenders of the former president will “have egg on their faces” when this case is done and presumably Trump is prosecuted. Perhaps, but what is clear is that there is no such risk in others claiming an array of proven crimes for six years that were never charged. Figures who pushed the debunked Russian collusion, incitement, or bizarre attempted murder claims are now claiming with the same certainty that conviction is finally at hand. Once again, before the eggs fly, the release of actual evidence would be useful.

Here is the column: Continue reading “Why the Case Against Donald Trump Remains Incomplete”

Justice Department Accused of Taking Attorney-Client Material at Mar-a-Lago

Fox News is reporting that the FBI seized boxes containing attorney-client privileged and potentially executive privileged material during its raid Mar-a-Lago. When the raid occurred, I noted that the legal team had likely marked material as privileged at the residence and that the collection could create an immediate conflict over such material. Now, sources are telling Fox that the Justice Department not only took attorney-client material but has refused Trump requests for a special master to review the records.

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Five Lingering Questions In the Wake of the Mar-a-Lago Raid

Former President Donald Trump has waived any objections to the release of the warrant and property receipt after the filing of a motion by the Justice Department. The motion, however, did not seek the release of the most important document in this controversy: the supporting FBI affidavit. That is the document that would reveal what the FBI told the magistrate about the prior communications with the Trump team and the specific allegations of the status of the documents in question. Continue reading “Five Lingering Questions In the Wake of the Mar-a-Lago Raid”

The Mar-a-Lago Raid: Criminal Prosecution or Political Indemnification?

Below is my column in the Hill on the raid on Mar-a-Lago. Questions continue to grow over the necessity for the raid as opposed to the use of a subpoena or other means. According to the Trump counsel, the former president was given an earlier subpoena and complied with it and then voluntarily gave the FBI access to a storage area and agreed to add a specified lock on the room. It is not clear why a second subpoena would not have sufficed if there were other covered material under the Presidential Records Act.

There is also a report of a confidential informant or source used in the operation. The only thing clear is that, while the J6 Committee does not appear to have changed many minds, the raid has. Any possibility that Donald Trump might not run seems to be evaporated with any likely challengers in the wake of the raid. That could change as we learn more details but the raid has galvanized Trump’s supporters. Ironically, Newsweek reported that the FBI was hoping the raid with Trump out of town would be a “lower profile” option — a notion that borders on the delusional. The lower profile option is called a subpoena.

Here is the column:

Continue reading “The Mar-a-Lago Raid: Criminal Prosecution or Political Indemnification?”

Res ipsa loquitur – The thing itself speaks