Category: Criminal law

Did The Special Counsel’s Office Just Leak Against Trump?

440px-Director_Robert_S._Mueller-_III-1The Washington Post is reporting that Special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election has now expanded to look into whether President Donald Trump attempted to obstruct justice.  What is most notable is not the investigation of obstruction of justice.  Rather it is the fact of the leak that is alarming.  Former FBI Director James Comey (who followed Mueller at the Bureau and has had a long relationship with Mueller) just admitted to leaking damaging information against Trump.  Comey, who was tasked with investigating leakers, became a leaker himself. Now, the Special Counsel’s office is accused by Trump’s counsel of leaking informing damaging to Trump — an office that could be asked to consider unauthorized leaks as part of its investigation.  While such leaks could come from witnesses, those witnesses appear in large part high-ranking members of the Trump administration unless they came from a briefing with members of Congress.

Continue reading “Did The Special Counsel’s Office Just Leak Against Trump?”

Washington Post: Sen. Harris Being Called “Hysterical” For A Style That Won Her Praise As A Prosecutor

440px-Kamala_Harris_Official_Attorney_General_PhotoThere is an interesting article in the Washington Post entitled “As A Prosecutor, Kamala Harris’s Doggedness Was Praised. As a Senator, She’s Deemed ‘Hysterical.'”  The Los Angeles Times also described Harris’ style as prosecutorial in nature and referenced her skills in court examination.  The articles raise a common comparison between court and congressional hearings in terms of questioning.  When I served as lead counsel in the last impeachment, I constantly spared with Senators over the failure to follow basic rules of evidence or practice.  The Senators would respond that such rules do not apply to them — which is technically correct though good practices are not always required practices.

Former Trump aide Jason Miller was confronted by USA Today columnist over his description of Harris as “hysterical” in the hearing. Her point is a valid one but the Washington Post suggests that this type of questioning would be considered praise worthy in a prosecutor.  The comparison between actual litigation and congressional examinations is an interesting one.  I have great respect for Sen. Harris and her experience. However, while her questioning began well, it quickly fell into improper questioning if viewed from a litigation viewpoint.  As a criminal defense attorney, I can say that it would not only be viewed as improper but judges would immediately sustain objections to such badgering of a witnesses. Indeed, I was surprised watching the hearing as Democratic senators pummeled Sessions with questions and demanded rapid answers.  Sessions had just been attacked for failing to fully and truthfully answer an earlier (and rather unclear) question from Sen. Al Franken.  Now however they were giving him rapid questions and cutting off his answers. Harris was the most extreme in that respect.

Continue reading “Washington Post: Sen. Harris Being Called “Hysterical” For A Style That Won Her Praise As A Prosecutor”

House Majority Whip and Others Shot During Baseball Practice [UPDATED]

Continue reading “House Majority Whip and Others Shot During Baseball Practice [UPDATED]”

The Comey Defense: Redefining Both The Law and The Leak To Oppose Donald Trump

440px-Comey-FBI-PortraitBelow is my column in The Hill Newspaper on the legal analysis surrounding the disclosure by former FBI Director James Comey that he leaked damaging information against President Donald Trump in memos to the press.  I have been surprised by the analysis which has been both artificially narrow or outright erroneous on the underlying legal issues.  There was an early effort, for example, to judge the lawfulness of Comey’s actions solely on the basis of whether it was a crime.  If these memos were government property, a claim for criminal conduct could be made but it would be unlikely under existing precedent.  However, that does not mean that Comey’s conduct was either lawful or professional. Neither is true.  In the rush to lionize Comey, the media is ignoring the fact that others have been punished for releasing non-public information to the media. Moreover, Comey and the FBI was tasked with finding leakers in the Administration. Yet, after being fired and publicly insulted by Trump, Comey became himself a leaker (despite a readily available and lawful avenue for disclosing the memos in a matter of weeks).  I have stated from the outset that criminal charges are unlikely (and in my view unwarranted) as the facts currently stand with regard to this one leak. However, the leak was in my view unlawful and unprofessional.  Comey allowed himself to be baited by Trump and proceeded to discard his professional judgment to strike back through a third party.  His conduct should not be judged solely on the basis of whether it might land him in jail. Moreover, if the FBI wanted to pursue the violation, it could drag Comey to court and seek various remedies outlined in the agreement that all FBI agents sign as a condition of their employment.

The column below explores some of the misleading conclusions being advanced in the coverage. As I state in the column, I agree that legal commentators can have good-faith differences on such questions. However, it is useful to lay out both the conclusions and the countervailing arguments.  These issues will become far more acute for Comey (including the possibility of criminal violations) if, as suggested by the White House, there were more leaks stretching back months.

 

Continue reading “The Comey Defense: Redefining Both The Law and The Leak To Oppose Donald Trump”

Couple Criminally Charged After Burning Koran On Videotape

We have been discussing the rapid erosion of free speech in Great Britain with expanding criminalization of speech deemed insulting or offensive to any group or person.  The most recent case involved a couple shown in a videotape burning a copy of the Koran.  As offensive and hateful as this act is, it is still an exercise of free speech in my view.

Continue reading “Couple Criminally Charged After Burning Koran On Videotape”

Mueller Hires Justice Official With History Of Arguing For Expansive Interpretation of Obstruction of Justice

440px-Director_Robert_S._Mueller-_III-1There 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.

Continue reading “Mueller Hires Justice Official With History Of Arguing For Expansive Interpretation of Obstruction of Justice”

Trump Calls Comey “Cowardly” As Polls Show Public Believes Comey

440px-Comey-FBI-Portraitdonald_trump_president-elect_portrait_croppedPresident Donald Trump lashed out at James Comey on the weekend and called him “cowardly.”  It was the latest impolitic tweet and it does not appear to be working well for Trump.  A new poll shows that the public overwhelmingly believe Comey over Trump by a twenty percent margin.  In a truly sad state of affairs if accurate, only 26 percent on the You.Gov/Huff Post poll believes the President. For the moment, Trump may view Comey as “cowardly” but the public views him credible.  The poll tracks another poll by Gallup showing the President’s popularity at 38 percent — though, as I mentioned earlier, Trump has been slightly ahead of Bill Clinton at this point in this presidency.
Continue reading “Trump Calls Comey “Cowardly” As Polls Show Public Believes Comey”

Comey Testimony Proves To Be Neither Vindicating Nor Incriminating For Trump

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the current status of the evidence against President Donald Trump for either indictment or impeachment.  While I do not agree with the White House that former FBI Director James Comey 
“completely vindicated” the President, I do not believe that the testimony materially altered the legal position of the President.  I believe that Comey both helped and hurt himself.  He did an excellent job in explaining why he only discussed the content of the memos with his staff, but he also admitted to being a leaker and showed repeated failures in ethical confrontations with superiors.  There is reportedly a call for Comey to return.  He may find the return appearance more challenging than the first.

Continue reading “Comey Testimony Proves To Be Neither Vindicating Nor Incriminating For Trump”

Trump Offers To Testify Under Oath

donald_trump_president-elect_portrait_croppedPresident Trump surprised people late Friday by announcing that he is “100 percent” willing to testify under oath about his interactions with James Comey.  There has been considerable speculation about Trump’s willingness to go under oath.  His counsel could have negotiated at least initially for an interview without going under oath.  As I have stated before, the greatest threat facing officials in a scandal of this kind is a false statements prosecution under 18 U.S.C. 1001.  Given Trump’s notorious habit for going off script, the risks of such a violation would be much higher for counsel prepping him for such a deposition or testimony.

Continue reading “Trump Offers To Testify Under Oath”

Did Comey Violate Laws In Leaking The Trump Memo?

440px-Comey-FBI-PortraitOne of the most interesting new disclosures today in the Comey hearing was the admission by former FBI Director James Comey that he intentionally used a “friend” on the Columbia law faculty to leak his memos to the media.  Comey says that he did so to force the appointment of a Special Counsel. However, those memos could be viewed as a government record and potential evidence in a criminal investigation.

Continue reading “Did Comey Violate Laws In Leaking The Trump Memo?”

Former FBI Director To Testify Before Congress

440px-Comey-FBI-PortraitFBI director James Comey is the ice man cometh.  Comey’s testimony is the most anticipated in this city since the Anita Hill testimony against Associate Justice Clarence Thomas.  In a city where politics is our professional sport of choice, this is the Superbowl and World Series rolled into one.  Bars are opening early to allow people to watch in the right atmosphere.  The only thing missing is a Vegas betting line and bunting.  No doubt children got up this morning screaming “it’s Comey day, it’s Comey day!”

The day however is not necessarily purely festive for Comey who is likely to face some tough questions on his own conduct.  He is a seasoned operator in Washington so I expect him to do well, but the stakes are high.

Continue reading “Former FBI Director To Testify Before Congress”

Prime Minister May Pledges To Curtail Human Rights If Necessary To Combat Extremists

Theresa_MayBritish Prime Minister Theresa May has declared that she is prepared to dispense with human rights laws if they hinder her efforts to fight terrorism.  The statement is a chilling example of how politicians are willing to take a hatchet to civil liberties and privacy in response to attacks. The more chilling fact is that many citizens will willingly part with their freedoms based on such promises of greater security.  May has already pledged to curtail free speech on the Internet to fight extremists.

Continue reading “Prime Minister May Pledges To Curtail Human Rights If Necessary To Combat Extremists”

Philadelphia Reporter Fired After Caught On Videotape Abusing Police

campbell7n-1-webA Philadelphia reporter, Colleen Campbell, 28, is not only out of job but perhaps a profession after a video of her berating police officers went viral.  Campbell is shown below in cuffs after being removed from the Helium Comedy Club on Sunday night.  She was asked to leave for disrupting comedian Craig Robinson by her loud whispering.  It then went from bad to worse (Warning: the video below contains foul language)

Continue reading “Philadelphia Reporter Fired After Caught On Videotape Abusing Police”

Will There’s A Will, There’s A Wray: Trump Selects Former AAG and Christie Lawyer For FBI Director

136px-US-FBI-ShadedSeal_svgDonald Trump has made his selection for the replacement of former Director James Comey.  He notably did not select an FBI career person but did go with a former Assistant Attorney General. He is Christopher Wray.

His resume is strikingly similar to another prior FBI Director: James Comey.  The White House clearly wanted to show that it was picking a professional with impeccable credentials and independent judgment.  It succeeded and showed that it was still possible to repair some of the damage from the Comey debacle.

Continue reading “Will There’s A Will, There’s A Wray: Trump Selects Former AAG and Christie Lawyer For FBI Director”