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.