Category: Criminal law

DOJ Closes Three Insider Trading Investigations Of U.S. Senators

US-DeptOfJustice-Seal_svgsenate_large_sealWe previously discussed the insider trading allegations against Senators Richard Burr (R., N.C.) Dianne Feinstein (D., Cal.), James Inhofe (R., Okla.), and Kelly Loeffler (R., Ga.) over the selling of stocks after briefings early in the pandemic.  As I stated earlier, I am highly skeptical of such cases as a criminal defense attorney as viable due to the difficulty in both the elements and the proof needed for such a charge.  Yesterday, the Justice Department dropped three of the four investigations. Only Burr remains under investigation.

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Executive Loses Job and Dog After Tirade Against African American Bird Watcher [Updated]

download-4We have long discussed the difficult questions raised by private and public employers punishing employees for postings on social media or controversies in their private lives.  When employers are identified in the media, controversial statements or conduct can have an obvious backlash against the them, particularly if there is an allegation of racist or discriminatory views.  For free speech advocates, this can raise a type of “Little Brother” problem but the First Amendment is focused on state, not private action. This ongoing debate over where to draw the line on private speech has a new controversy with the release of a truly shocking videotape of a woman, identified as Amy Cooper calling police on an African American bird watcher in Central Park. Her employer Franklin Templeton has put her on administrative leave while reviewing the incident.  She is reportedly the head of insurance investment solutions at Franklin Templeton.  Others have called for animal abuse charges to be filed as Cooper was shown yanking around her hapless dog during her tirade. The dog was surrendered to a local shelter for its protection. Update: Amy Cooper was fired shortly after she was put on administrative leave.

Florida Man Charged with Kidnapping . . . For A Lift To The Keys

Alexander Michael Sardinas, 37, has been charged with kidnapping and false imprisonment. (Monroe County Sheriff's Office)We have been discussing curious criminal charges linked to the pandemic but few are quite as bizarre as the charges facing Alexander Michael Sardinas, 37  Sardinas has been charged with kidnapping and false imprisonment. The reason for the alleged crimes is the truly bizarre element.

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Rep. Omar Declares That She Believes Biden Is A Rapist But Should Be The Next President

440px-Ilhan_Omar,_official_portrait,_116th_CongressWe have been discussing special dispensation granted to former Vice President Joe Biden by Democratic members and the media.  Yesterday, Rep. Iihan Omar, D-Minn., became the latest member to declare that she believes that Biden did rape a Senate aide and is continuing to lie about the crime in public statements.  However, Omar reaffirmed that she will do everything in her power to make him the next president of the United States.

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Law Professor Wins Record Defamation Verdict For False Rape Claim

downloadUniversity of Minnesota Law School Professor Francesco Parisi has won almost $1.2 million in a defamation case against a woman who accused him falsely of rape.  It might be the largest defamation verdict in history for Minnesota. It is a rare such verdict in a rape case. However, the defendant was never charged with a false charge, a common practice of police even in some of the most notorious false rape cases like the Duke Lacrosse Case.  At the time, Morgan Wright’s false charge destroyed Parisi’s life, including a three-week incarceration which led to his not being with his mother when she died. Continue reading “Law Professor Wins Record Defamation Verdict For False Rape Claim”

A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion.  Continue reading “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons

Der Untergang der TitanicBelow is my column in USA Today on concerns over the recent orders of U.S. District Court Judge Emmet Sullivan. As leading lawyers, including a former Clinton U.S. Attorney openly advise Sullivan on how to “make trouble” for the Administration, these calls only magnify concerns over the purpose of these proceedings and whether they are increasingly detached from the merits of the pending motion. While many seem to relish the improvisational element, they risk undermining the judicial element of the proceedings. Flynn’s team has sought the removal of Sullivan (a very difficult proposition, particularly in the D.C. Circuit).  The intense opposition in the bar and teaching academy to Trump seems again to have greatly distorted the legal analysis, which fails to address the most troubling aspects of these orders.  As I have previously acknowledged, there are good-faith arguments to be made but much of the analysis has ignored the strong precedent against a denial of the motion and rarely even acknowledge the serious implications for the rights of defendants in such action. I address some of the countervailing (and in my view controlling) authority in a separate posting.

Notably, the D.C. Circuit gave Judge Sullivan ten days to respond to the motion seeking his removal. Thus, these issues will presumably be addressed by Judge Sullivan before any hearing is held.

Here is the column: Continue reading “The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons”

Michael Cohen Wins Release Under Pandemic Order

images-1 The pandemic has cost many thousands of lives, millions of jobs, and destroyed the global economy. However, there are some who are pandemic beneficiaries and Michael Cohen can now call himself among them.  The former fixer (and now sworn enemy) of President Donald Trump will be released early from a federal prison in New York to serve the remainder of this three-year sentence as a true one percenter.  For a lawyer who bragged of his special treatment and special access, he is finally serving his sentence in his signature style.  His case also raises an interesting dynamic for the sudden plea agreements for Lori Loughlin and Mossimo Giannulli.

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No, Trump Did Not Commit A Crime In Threatening To Withhold Funds From Michigan [Updated]

Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith

440px-Michael_T_FlynnFor decades, the legal community has decried common practices used by prosecutors to coerce pleas from defendants. Prosecutors often stack up charges and then drain defendants until they agree to pleading guilty. There was a time when such abuses were regularly called out in leading newspapers. These are not those times. Continue reading “Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith”

The New ACLU: The Once Premier Protector of Due Process Has Filed A Lawsuit Opposing Due Process Protections

downloadFor years, many of us who have long supporteded the American Civil Liberties Union (ACLU) have grown alarmed by its abandonment of core principles in the support of civil liberties in favor of support what seems a more political agenda.  Under the leadership of a President Susan N. Herman and Executive Director Anthony Romero, the ACLU has dropped support for unpopular causes while aligning itself more closely with the Democratic Party’s position on issues ranging from immigration to sexual harassment.  I have spent my life supporting the ACLU and speaking at its conferences. It has been very painful for many of us in the “Old guard” as these political advocates have taken over the board and organization. That has been evidenced as the ACLU moved to develop a more nuanced approach to “hate speech” after criticism following the Charlottesville protests.  Free speech protection was once the touchstone of the ACLU which was fearless in its unpopular advocacy. It is now an area of open retreat for the organization as the leadership seeks to appease irate donors. Despite the right to carry being a constitutional right, the ACLU has indicated that it will not vigorously support the right to lawfully carry weapons at protests. That is no more evident than in the truly shocking filing of the ACLU to oppose due process rights for students at our colleges and universities, particularly in the imposition of a higher and more consistent evidentiary standard.  While I found aspects of the brief to raise compelling points, the thrust of the brief is an attack on basic evidentiary protections that would have once been viewed as a position fundamentally at odds with the organization’s mission.

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Did Samantha Power Commit Perjury? It Depends If The Sessions Standard Applies.

440px-Samantha_Power_official_portraitFor weeks, we have discussed how the media, Democratic members, and a wide variety commentators have adopted a different standard in dealing with the allegation of sexual assault against Joe Biden. As soon as the presumptive Democratic nominee was accused, the rallying cry from the Kavanaugh hearing that “all women must be believed” was dropped. This week, the question may not be the applicability of the Kavanaugh standard but the Sessions standard. The recent declassification of documents shows that United Nations ambassador Samantha Power sought to unmask Michael Flynn’s name not once but on at least seven occasions. Yet, Power insisted that she had no recollection of even a single such request. When former Attorney General Jeff Sessions said that he had “no recollection” of meetings or other details, Democrats called for his prosecution for perjury. Will the Sessions’ standard apply to Power, or is this another example of standards changing with the affiliation of the accused? Continue reading “Did Samantha Power Commit Perjury? It Depends If The Sessions Standard Applies.”

Judge Sullivan To Consider Perjury Charge Against Flynn

1280px-Emmet_G._Sullivan_2012Federal Judge Emmet Sullivan has issued a couple of extraordinary orders in the case of former National Security Adviser Michael Flynn after the Justice Department moved to dismiss the case.  Sullivan has not only decided to allow third parties to argue against an uncontested motion in a criminal case, but he has appointed retired judge John Gleeson to argue against dismissal and address whether Flynn should face a perjury charge from the Court itself. I have practiced in front of Judge Sullivan for many years.  I have repeatedly praised him and expressed my respect for his demeanor and directness. However, these orders raised deeply troubling questions of judicial overreach and enmity.  Despite my admiration for Judge Sullivan, I believe he is moving well outside of the navigational beacons for judicial action and could be committing reversible errors if he denies the unopposed motion or moves forward on this perjury claim.

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Serving Like The One Percent: Manafort Released From Prison Under Pandemic Order

ManafortFormer Trump campaign chairman Paul Manafort is the latest high-profile inmate to be a beneficiary of the pandemic.  Manafort was released from prison today due to the danger of his contracting the virus. He will now be serving his 7.5 year sentence in the considerable luxury of his residence.  That is hardly hard time but Manafort, who is 71 with a history of liver and respiratory issues, is clearly a high-risk for a lethal exposure of the coronavirus.

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No, James Comey Did Not Commit Treason

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Res ipsa loquitur – The thing itself speaks