Sunday, May 10, 2020

What a week in the world of white collar criminal law (UPDATED)

Last week was white collar law overload. Bridgegate (convictions reversed by SCOTUS). Varsity Blues (motion to dismiss for prosecutorial misconduct denied). Michael Flynn (prosecutors move to dismiss). And more.

Some random thoughts about these cases:

1. Why does it take the Supreme Court (9-0) to continue to reverse fraud convictions. The government is clearly overreaching with these statutes and yet lower courts almost never dismiss.

2. Same with respect to lower courts and prosecutorial misconduct. They almost never dismiss on prosecutorial misconduct claims, so it was no surprise that the district judge did not dismiss the Lori Loughlin case. Why not? How will prosecutors ever get the point that they should not engage in such behavior. Maybe the Loughlin lawyers will now file a motion to dismiss based on Bridgegate. After all, if fraud requires obtaining money or property, then lying to gain college admission may not be enough for wire fraud.

3. There has been lots of criticism for the in the Flynn case. But let's take a step back for a second. Remember that Flynn had moved to vacate his plea because the new DC prosecutors had recently turned over Brady material that had yet to be disclosed. We should be applauding the prosecutors for doing that. (A big shout out to Michael Sherwin, the DC supervisory prosecutor who made sure that disclosure happened after previous prosecutors did not disclose). If the judge had vacated the plea and allowed Flynn to go to trial, would the critics have been happier if the government had gotten spanked at trial? This was a distinct possibility because the lead witness for the government was former agent Peter Strozk. Imagine that cross! Comey would likely have also been a witness... Anyway, let's hope this materiality standard explained by Barr in the Flynn dismissal memo is used across the board for criminal defendants. Wouldn't that be a good thing? Of course our justice system should not be politicized, but there is quite a bit to grab onto in that Flynn motion to dismiss.

4. Some have said that the Flynn judge should deny the motion to dismiss. That is a bad idea and would set a very bad precedent. The Department of Justice brought the case. It's their prerogative to drop the case. That's how the adversary system works. Judges do not dismiss criminal cases when the defense asks. Now they aren't going to dismiss when the prosecutor asks? Rule number 1: never dismiss cases. Rule number 2: when in doubt, see rule number 1.

UPDATE 5. Mary B. McCord, an acting assistant attorney general for national security at the Justice Department from 2016 to 2017, wrote this op-ed in the New York Times, called "Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth." I have to laugh in reading her piece. She complains that the 302 of her interview is "an interesting read" with "colorful adjectives" that "twist[s] her words." Now that's rich. The criminal defense bar has always said that 302 reports summarizing interviews are wholly unreliable and that interviews should be recorded. Prosecutors and investigative agencies like the FBI and DEA refuse to record and judges let agents testify from these reports about their interviews. McCord worked at DOJ for decades. Under her watch, thousands of non-recorded interviews took place and prosecutions relied on 302 and other interview reports to convict people. Now that she is reading her own 302, she complains. Welcome to the defense bar, Ms. McCord.


Rumpole said...

There is an interesting dichotomy here. The very top levels of the White House fully distrust the FBI and DOJ. They view investigations and prosecutions as witch hunts brought by untrustworthy career prosecutors who are part of the deep state. Now we can laugh at that for a moment. But who amongst us recently has not had Federal prosecutors push back against motions for compassionate release and bond, disavowing the very memos of the AG telling wardens to release prisoners and telling prosecutors to view bond motions differently. Why? Why doesn't the career-deep-state narrative we all laugh at and dismiss apply to these AUSAs across the country who have 1- first wrote in February and march that there is no crisis and being in prison is safer then being out and then, 2- basically taken the position that they would rather see someone die in prison then live safe, healthy and and free at home.

We do not endorse most of the President's conspiracy theories (although there are a couple of people we wouldn't mind seeing swill Lysol- not really, just being irascible. Life is precious for everyone. )

But the President and his allies are on to something here regarding criminal prosecutions. General Flynn was targeted within days of starting work in the White House with a perjury trap by unscrupulous FBI agents who had a personal and political agenda. And DOM is 100% correct. Will judges look at the Flynn case and will it start to dawn on those who wear robes in the Wilkie Ferguson courthouse that 302's are mostly works of fiction and that the DOJ is rarely if every engaged in a search for truth and justice? Probably not. You can't win a plea. Rise to fight and don't give up. MAGA? Maybe.

Anonymous said...

Deny the motion. Guy peld guilty twice. Let trump pardon him if he wants.

Your cheerleading the Flynn drop just propigates the very same problem you complain about - DOJ doing whatever it wants to by twisting the truth and facts to suit its (current) goal.

To me it doesn't matter that the guy could win at trial (and I agree). The guy is guilty, he admitted he is guilty, and he should get another epstien pass.

Fuck him. Lock him up, as he so proudly used to scream.

Anonymous said...

He pled because DOJ was threatening to indict his son, and they basically intimated theyd leave the son alone and theyd recommed probation if he pled (which they did at the first sentencing before the Judge went off the rails, and son has never been indicted).

You wouldnt take ***probation*** to keep your kid out of jail? I would. In fact, id do any jail time necessary to protect my son. A lot of parents would do the exact same.

And you are totally convinced he's guilty just because he pled?


Do you think mccabe is also guilty of lying? Just curious

Anonymous said...

11:37 - So when something doesn’t meet the democratic narrative; two wrongs certainly make a right? Your hypocrisy is beyond belief.

So for those with TDS - suddenly lying to the FISA court and setting perjury traps for cabinet members are no big deal because it happened to Trump and all thing trumps are bad including all of his policies - except when they aren’t. Or when the Supremes say so.

Anonymous said...

ugh, @1:11

Why are you making this about your paranoid dilutions that everything is a liberal conspiracy against Trump? Read 11:37's post again.

11:37's points appear to be: that Flynn admitted guilt twice, and that's enough for 11:37 to believe that Flynn is guilty; that the justice department is more interested in its own political motives and agendas than in truth and justice (which I read to be true as a bipartisan problem); and the Flynn is generally getting what he deserves.

You may not agree with all of that. Fine. But its not a democrat conspiracy. Stop it.

Anonymous said...


No one said it was a conspiracy to "get" the new administration until the text messages proved it and the documents proved it. "Insurance policy", "we'll stop him", "get him fired". The total disregarding of all normal practices. The smugness about not doing things by the book. The unmasking. The leaking. The lying about the leaking. The obvious, documented political bias. The peddling of the steele dossier and suppression of proof of its unreliability. The doctoring of emails for christsake! The brady violations! The suppression of evidence! The denial of brady violations to a judge. The lying and omissions to the fisa court. These people were conspiring to kneecap people they didnt like. Maybe they convinced themselves their intentions were pure and the ends justified the means, and that they had to save us all from russian assets michael cohen and carter page (despite that being laughable by anyone with a brain), but they ****were**** working together to achieve a shared common doubt about it.

Anonymous said...

this is 221:

So it seems that 11:37, 3:32, DOM, Rump, me, and most of the readers of this blog agree:

"DOJ do[es] whatever it wants to by twisting the truth and facts to suit its (current) goal." (from 11:37's comment)

Why then are 1:11, 3:32, and others making this into some partisan thing that its not?

Prosecutors prosecute. That's what they do. Their interest is in winning, not in truth and justice. That's the issue that needs addressing. That's the problem that needs voicing.

The solution, in this humble and anonymous writer's opinion: end the adversarial system of justice. It perversely incentivizes prosecutorial misconduct. It becomes about "winning" instead of truth and justice. And "winning" means convictions. I know, this will not be a popular opinion. Oh well.

Anonymous said...

11:37 here.

I think those who lied, including Comey, HRC, and McCabe should be prosecuted. The ones who misled the fisa court too.

12:50 - love your rationale. He pled guilty to protect his child....twice. Okay, he was under oath wasn't he? So you think he should be prosecuted for perjury during the plea, right? No. You are just a hack who loves mushroom dick and his maga policies, and is willing to excuse liars and the liars who support them because they are on the red team.

Btw, how is mushroom dick's celebrated ignorance working out for us now?

CJ said...

When Secret Service Agent Germano lied to the Middle District Magistrate in her Criminal Complaint and AUSA Anton in the South was desperate for a win, thankfully the truth prevailed and I found out about my 48(a) and overturned indictment while listening to the transistor radio I bought after my elderly Mother funded my commisarry account. Only imprisoned for about four-and-a-half months of my life. Fuck the DOJ. In re 16-60248-CR-ZLOCH

Anonymous said...

Re Flynn if you think this was a legal decision rather than a political one I want to get what you're smoking.

Instead of writing about about white people justice, why not some coverage over the lynching in Georgia.

Anonymous said...


You are a maniac! Who talks like that? Lol. How did someone like you stumble upon this blog. U a lawyer? Tell us a little about yourself. Wow. I didn't realize the reach of this blog!

Anonymous said...

All prosecutions are political, some more than others. Even the Georgia prosecution is political. Absent some racist shit on their phones and computers, those guys are walking. The case against Zimmerman was stronger than that one. Travon had not done anything wrong to be confronted by Zimmerman. The victim in Georgia appears to have committed a burglary. No justification for what happened, but it does explain the initial confrontation.

Anonymous said...

I thought you would have made a commment about WHITE PEOPLE much you do on every single post on this blog. I was getting worried you might have the coronavirus or something. Glad ur okay.

Anonymous said...

Judge Sullivan took door #4.

Instead of a hearing to show cause, or just going along with it and dismiss the case, he is inviting amici curiae.

There’s the prosecutor alumni association, ACLU, NACDL, ABA, CATO, House & Senate Judiciary Comm..

The Circus is coming to DC.

Anonymous said...

I think Sullivan is right. Clearly there's at least some evidence of a corrupt motive at work.