Category: Justice

Columns, Criminal law, Justice, Politics

The Immaculate Possession: Biden Defense is Fast Becoming Unsustainable

Below is my column at Fox.com on the most recent discovery of classified documents at one of the homes of President Joe Biden. Despite the latest discovery, allies like Sen. Chris Coons were on Sunday shows repeating his assurance that “there is no there there.” The insistence that the record clearly shows innocent “inadvertence” now borders on willful blindness as inadvertent possession occurs over and over again with documents from both Biden’s time as a senator and as vice president. A decade of inadvertence.

Here is the column: Continue reading “The Immaculate Possession: Biden Defense is Fast Becoming Unsustainable” →

Columns, Criminal law, Justice, Lawyering

“We’re Here to Help”: The Justice Department Makes The Case . . . for a Congressional Investigation

Below is my column in the New York Post on the Wall Street Journal report that the Justice Department declined an offer to conduct the searches for the Biden classified documents after the discovery on Nov. 2. There is a new report this morning that Justice Department officials did go to the residence in Delaware to collect the documents. That in itself is not surprising since the transport of classified documents triggers its own security protocols. It generally required a certified courier or someone else with authority to transport such documents. The question is whether the officials were present for the search. There is no investigatory reason why such facts remain the subject of speculation and leaks. The Justice Department can simply state that the White House is not prevented from giving a full account of what transpired in each of these searches.

Here is the column: Continue reading ““We’re Here to Help”: The Justice Department Makes The Case . . . for a Congressional Investigation” →

Columns, Criminal law, Justice

Biden’s Classified-Records Headache is Garland’s Special-Counsel Nightmare

Below is my column in the Hill on the implications of the discovery of classified documents in a prior private office of now President Joe Biden. The discovery (and later addition of a second batch of classified material at a second location) is magnifying the inherently conflicted position of Attorney General Merrick Garland.

Here is the column: Continue reading “Biden’s Classified-Records Headache is Garland’s Special-Counsel Nightmare” →

Free Speech, Justice

“Conspiracy Theorists…Attempting to Discredit the Agency”: The FBI Attacks Critics Objecting to its Role in Twitter’s Censorship System 

It is not clear what is more chilling: the menacing role played by the Federal Bureau of Investigation (FBI) in Twitter’s censorship program or its mendacious response to the disclosure of that role. This week saw another FBI “nothing-to-see-here” statement to the release of files detailing how it actively sought to suppress the Hunter Biden story before the 2020 election, gave millions to Twitter, and targeted even satire or tiny posts that did not conform with its guidelines. Continue reading ““Conspiracy Theorists…Attempting to Discredit the Agency”: The FBI Attacks Critics Objecting to its Role in Twitter’s Censorship System “ →

Congress, Justice, Media, Politics

Harvard/Harris: Two-Thirds of Voters Believe Social Media Engaged in Politically-Motivated Censorship and Demand Congressional Action

Twitter LogoThe December Harvard CAPS / Harris Poll is out this week and Mark Penn and his colleagues have some interesting results to share. Despite the refusal of many in the media to cover the Twitter files, nearly two-thirds of voters believe Twitter shadow-banned users and engaged in political censorship during the 2020 election. Seventy percent of voters want new national laws protecting users from corporate censorship.

Continue reading “Harvard/Harris: Two-Thirds of Voters Believe Social Media Engaged in Politically-Motivated Censorship and Demand Congressional Action” →

Columns, Criminal law, Justice, Politics

“Effective Altruism”: Could SBF’s Parents Be the Key to a Plea?

Below is my column in the New York Post on the potential liability of the parents of Sam Bankman-Fried. It is not uncommon for federal prosecutors to go after family members to induce a plea by a defendant. In this case, the reported involvement of the parents in some of operations or payments magnifies that risk.

Here is the column:

 

Continue reading ““Effective Altruism”: Could SBF’s Parents Be the Key to a Plea?” →

Bizarre, Columns, Congress, Criminal law, Justice

The Justice Department Faces Questions After Effectively Preventing Bankman-Fried from Testifying in Congress

The arrest of Sam Bankman-Fried yesterday was sudden and unexpected in light of Bankman-Fried’s plan to testify before Congress. As a criminal defense attorney, my reaction to the arrest last night remains unchanged: this is the first time that I can recall where prosecutors moved aggressively to stop a defendant from making self-incriminating statements. His testimony would have been entirely admissible and likely devastating at trial.

Continue reading “The Justice Department Faces Questions After Effectively Preventing Bankman-Fried from Testifying in Congress” →

Columns, Justice, Lawyering, Media

The Deep Twitter State? Former FBI General Counsel Fired at Twitter

Below is my column on Fox.com on the firing of former FBI General Counsel James Baker at Twitter. The move by Elon Musk is raising serious questions of whether he has faced a type of “deep state” problem within his own company obstructing his efforts to restore transparency and free speech values to Twitter.

Here is the column:

Continue reading “The Deep Twitter State? Former FBI General Counsel Fired at Twitter” →

Constitutional Law, Courts, Criminal law, Justice, Lawyering

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

This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and redacted by in part by the FBI, shows a photo of documents seized during the Aug. 8 search by the FBI of former President Donald Trump's Mar-a-Lago estate in Florida. On Thursday, a federal judge appointed a special master to review the documents. 

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

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

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

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

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

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.

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

Columns, Criminal law, Justice, Politics

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” →

Res ipsa loquitur – The thing itself speaks