Category: Justice

Constitutional Law, Courts, Criminal law, Justice, Lawyering September 17, 2022September 17, 2022

DOJ Filing Before Eleventh Circuit Only Seeks to Stay of Part of Special Counsel Order

Late Friday, the Justice Department filed its long-awaited appellate filing related to the special master order of United States District Judge Aileen Cannon. While the Administration previously argued that the appointment itself is a threat to national security and unsupportable, it notably dropped its opposition to the appointment on appeal and only appealed one aspect of the order. In its motion for a stay pending appeal, it is only asking the 11th Circuit to allow it to continue using classified documents seized from former President Donald Trump’s Mar-a-Lago property in a criminal investigation. The filing may reflect that time is running out for the Administration since a special master is now in place and is likely to prioritize (and release) these very documents. The motion pending appeal does not prevent the DOJ from later challenging the whole appointment but it will come after the special master has begun his work.

Continue reading “DOJ Filing Before Eleventh Circuit Only Seeks to Stay of Part of Special Counsel Order” →

Criminal law, Justice September 14, 2022September 14, 2022

Durham: The FBI Had Danchenko on Payroll as An Informant During the Russian Collusion Investigation

Yesterday, a filing by Special Counsel John Durham revealed that Igor Danchenko, who worked as a key contributor to the discredited Steele dossier funded by the Clinton campaign, was later put on the FBI payroll as an informant. The disclosure rocked Washington and raised additional questions of the FBI’s eagerness to pursue any allegations against Donald Trump despite being warned that the dossier appeared to be a vehicle for Russian disinformation.

Continue reading “Durham: The FBI Had Danchenko on Payroll as An Informant During the Russian Collusion Investigation” →

Constitutional Law, Criminal law, Justice September 6, 2022September 6, 2022

Federal Judge Orders Appointment of Special Master and Halts Use of Seized Mar-a-Lago Material by Prosecutors

In another defeat for the Justice Department, a federal court has ordered not just the appointment of a Special Master but halted the use of the seized Mar-a-Lago documents by prosecutors until the legal status of these documents is established (The ongoing intelligence security review of classified material can continue). As with the compelled release of a redacted affidavit, the Justice Department seriously overplayed its hand (as it did in earlier filings) in claiming that an appointment would undermine national security and making extreme, unestablished legal arguments. The ruling by U.S. District Judge Aileen Cannon will not necessarily change the ultimate trajectory of the case but it will force critical reviews and rulings on issues from attorney-client privilege to executive privilege. Continue reading “Federal Judge Orders Appointment of Special Master and Halts Use of Seized Mar-a-Lago Material by Prosecutors” →

Criminal law, Justice, Media September 1, 2022September 1, 2022

FBI Faces Criticism Over Release of Photo of Classified Documents on Floor

When the Justice Department filed its opposition to a Special Master, there were a number of elements that immediately stood out. The first that I noted was the most important: the allegation that the FBI believed that Trump or his associates “likely” acted to obstruct their investigation. Such public statements are always serious in a criminal case because they can commit investigators to the path of prosecution. I also later noted the curious inclusion of the now widely known photo of classified files that has been widely published. I warned that the photo could leave a misleading impression that this was how the documents were found by the FBI, which has occurred. I then asked why it was included as Attachment F. At best, it seems superfluous. At worst, it could be staging. That debate is now raging on cable programs and the Internet. Update: the photo came up in the hearing after the Trump counsel called it “perfectly staged” but there was no ruling on the Special Master.

Continue reading “FBI Faces Criticism Over Release of Photo of Classified Documents on Floor” →

Constitutional Law, Courts, Criminal law, Justice, Politics August 31, 2022September 1, 2022

Justice Department Opposes Any Special Master and Alleges That “Obstructive Conduct Occurred” at Mar-a-Lago

Last night, Department of Justice filed in opposition to the appointment of a Special Master in Florida. It used the filing to add new facts and allegations to the public record, including the statement that “obstructive conduct occurred” at Mar-a-Lago by concealing or moving documents. The Department makes many of the same claims that it used to opposed the release of a redacted affidavit, claims shown to have been misleading and exaggerated after the magistrate ordered the release. Notably, this filing contained details that were likely redacted in the affidavit but just released on the public record. Continue reading “Justice Department Opposes Any Special Master and Alleges That “Obstructive Conduct Occurred” at Mar-a-Lago” →

Free Speech, Justice, Media, Politics August 26, 2022August 26, 2022

Zuckerberg Reveals the FBI Told His Company to be Wary of “Russian Disinformation”

Recently, I wrote about the disclosure of an alleged backchannel between the CDC and Twitter on censoring critics of the agency and its recommendations. Now, Meta CEO Mark Zuckerberg discussed how the FBI warned Facebook about “Russian propaganda” before the Hunter Biden laptop story dropped in 2020. This follows reports that the FBI told agents not to pursue the laptop and to slow walk any investigation into Hunter Biden’s alleged influence peddling schemes.

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Columns, Criminal law, Justice, Politics August 25, 2022August 25, 2022

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” →

Courts, Criminal law, Justice, Media, Politics August 23, 2022August 23, 2022

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” →

Columns, Criminal law, Justice, Lawyering, Politics August 16, 2022August 16, 2022

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” →

Criminal law, Justice, Lawyering August 14, 2022August 14, 2022

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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Columns, Criminal law, Justice, Politics August 12, 2022August 13, 2022

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” →

Columns, Criminal law, Justice, Media, Politics August 9, 2022August 9, 2022

“The Whole Enchilada”: Pundits Wrongly Claim the Mar-a-Lago Raid Could Disqualify Trump from Future Office

The FBI raid on Mar-a-Lago has unleashed a familiar euphoria among critics who have longed for–agents descending upon the President’s residence in a criminal operation. One MSNBC pundit declared that day of the “orange jumpsuit” may finally be at hand while another simply exclaimed “hallelujah.” It was a tad premature since we do not even know if classified material was found and, if so, whether there is a criminal case to be made from such a discovery. Continue reading ““The Whole Enchilada”: Pundits Wrongly Claim the Mar-a-Lago Raid Could Disqualify Trump from Future Office” →

Criminal law, Justice, Politics July 28, 2022July 28, 2022

“I’ve Delivered”: New Disclosures Demolish President Biden’s Denials on Hunter Dealings

New disclosures are demolishing the continued denials of President Biden that he had no knowledge and nothing to do with his son’s business interests. The emails (reviewed by Fox and The Daily Mail) include exchanges with at least 14 of Hunter Biden’s business associates while Joe Biden was vice president. They cast further doubt on the president’s repeated claims that he had no knowledge of his son’s foreign business dealings. In one almost plaintive email, Hunter actually complains to an associate that he had delivered on everything that was demanded of him in getting access to his father and the White House. Continue reading ““I’ve Delivered”: New Disclosures Demolish President Biden’s Denials on Hunter Dealings” →

Justice, Politics, Society July 17, 2022July 17, 2022

An Island of Virtue Among Today’s Elected Officials: Water District & Sewer District Commissioners

By Darren Smith, Weekend Contributor

I’ll go out on a limb and make a proposal, based mostly on anecdotal observations I have made during my adult life of both politicians and elected officials–there is a difference–and what these individuals have often gotten us into. I have come to the conclusion that among the various cultivars of politics, the two positions that for me have consistently remained the most benevolently virtuous, and least damaging to ordinary people, are not the high-profile, ostentatious seats in various houses of parliament, legislatures, or a presidency. They are often the more behind-the-scenes, yet foundationally necessary public service elected officials often known as Water District and Sewer District Commissioners.

They might not be the most well-known, which in itself is an admirable quality, but they serve for me as a model of how we would be as a society better off if politicians adopted the approach of these commissioners and not that of petty tyrants or worse that seem to be attracted to politics.

Continue reading “An Island of Virtue Among Today’s Elected Officials: Water District & Sewer District Commissioners” →

Justice, Society June 26, 2022June 26, 2022

Honorable Civil Disobedience