Tuesday, July 16, 2024

New Podcast Episode -- Sean Hecker for Robert Bogucki



We are back to our roots. A terrific criminal defense lawyer and my good friend, Sean Hecker, is here to discuss the wild trial of United States v. Robert Bugucki.

Sean is a real criminal defense lawyer.  After graduating Stanford Law School and two clerkships, he started at the Federal Defenders Office in New York.  He founded the powerhouse law firm Hecker Fink.  And he joins me to discuss the Robert Bogucki matter.  Bogucki, an FX trader for Barclays, was accused of orchestrating a $6 billion fraudulent scheme. You may remember the case as I previously discussed it with Judge Charles Breyer, who presided over it. 

As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify,  

If you have a friend that would like to receive these updates, please have them sign up here.

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

Monday, July 15, 2024

Judge Aileen Cannon dismisses the Trump documents indictment

 Here's the 93-page order, which starts this way: "Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order [ECF No. 326]. The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S. Const., Art. II, § 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding."

From the Introduction:

The Motion before the Court challenges the legality of Special Counsel Smith (hereinafter, “Special Counsel Smith” or “Special Counsel”) in two consequential respects, both of which are matters of first impression in this Circuit, and both of which must be resolved before this prosecution proceeds further [ECF No. 326]. The first is a challenge to his appointment under the Appointments Clause, which provides the exclusive means for appointing “Officers of the United States.” Article II, § 2, cl. 2. The Appointments Clause sets as a default rule that all “Officers of the United States”—whether “inferior” or “principal”—must be appointed by the President and confirmed by the Senate. Id. It then goes on to direct that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.” Id. For purposes of this Order, the Court accepts the Special Counsel’s contested view that he qualifies as an “inferior Officer,” not a “principal” one, although the Court expresses reservations about that proposition and addresses those arguments below. The Motion’s second challenge is rooted in the Appropriations Clause, which prohibits any money from being “drawn from the Treasury” unless such funding has been appropriated by an act of Congress. Art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .”). Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment— 28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise. 

The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause. This Order proceeds as follows. After laying forth pertinent factual and procedural background leading to the present Motion, the Court summarizes the legal principles underlying the Appointments Clause and the separation-of-powers doctrine on which it rests. The Court then surveys the statutory structure of the Department of Justice, focusing on the provisions which grant the Attorney General appointment authority. Following that contextual summary, the Court engages with the text, context, and structure of each of the statutes cited in the Appointment Order. Finding no officer-appointing authority in the cited statutes—and seeing no reason in the mixed historical record to deviate from the absence of such authority—the Court addresses the Supreme Court’s dictum with respect to those statutes in United States v. Nixon, 418 U.S. 683, 694 (1974). As the Nixon decision and record bear out, the Attorney General’s statutory appointment authority, or the matter of the Appointments Clause more generally, was not raised, argued, disputed, or analyzed; at most, the Supreme Court assumed without deciding that the Attorney General possessed statutory appointment authority over the special prosecutor involved in that action. Following the discussion of Nixon and related out-of-circuit precedent, the Court turns to the question whether Special Counsel Smith is a principal officer requiring Presidential nomination and Senatorial consent. On that issue, although there are compelling arguments in favor of a principal-officer designation given the regulatory framework under which he operates, the Court rejects the position based on the available Supreme Court guidance. The Court then examines the question of remedy, concluding that dismissal of this action is the only appropriate solution for the Appointments Clause violation. Finally, the Court considers the Appropriations Clause challenge to the funding of Special Counsel Smith, concluding for many of the same reasons that Congress has not authorized the appropriation of money to be drawn for the expenses of his office. The Order concludes there, finding it unnecessary under the current posture to reach the remedy question for the Appropriations Clause violation.

From the Conclusion:

 Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme—the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law. The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not. In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which “embodies a fundamental separation of powers principle—subjugating the executive branch to the legislatures power of the purse.” All American, 33 F.4th at 221 (Jones, J., concurring). In the end, it seems the Executive’s growing comfort in appointing “regulatory” special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases. Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be explained by the relative infrequency of these types of investigations, by congressional inattention, or by the important roles that special-counsel-like figures have played in our country’s history. Regardless of the explanation, the present Motion requires careful analysis of the statutory landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with care. The Court thus returns to where it started. The Appointments Clause is “among the significant structural safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659. So too is the Appropriations Clause, which carefully separates Congressional control of the “purse” from Executive control of the “sword.” The Federalist No. 78 (Alexander Hamilton). The consequences of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).

Sunday, July 14, 2024

After a crazy weekend, your moment of zen


Friday, July 12, 2024

RIP Neal Sonnett (UPDATED with remarks from Judges Milton Hirsch and Miguel de la O, and Ed Shohat; and lots of other great ones in the comments)

The guy was a legend. A former AUSA and a long-time criminal defense lawyer who was always fighting for the cause. Neal served as president of the Dade County Bar Association, the National Association of Criminal Defense Lawyers, FACDL-Miami, and as chair of the American Bar Association Criminal Justice Section; he is also past president of the University of Miami Law Alumni Association.

2006 – Neal R. Sonnett | Criminal Law Section of The Florida Bar

UPDATED with comments from Judge Milton Hirsch, Judge Miguel de la O, and Ed Shohat -- others in the comments:

1. Like you, I could tell stories about lunches we had, drinks we had, NACDL events we enjoyed.  But I know -- and you know -- what stories he'd want us to tell.  He'd want us to tell trial stories.

Once upon a time we had codefendants in a multi-defendant case in federal court in Gainesville.  I took a room at a place named Johnson Howard's, or something like that.  Neal took two rooms -- one for him to sleep in and one for him to prep in.  He laid in a supply of ready-to-eat food, he locked himself in his rooms, and he prepped for trial into the wee small hours every night.  

At the close of the government's case in chief, Neal moved to dismiss for failure of venue.  I did too.  (I believe my actual argument was, "Um . . . me, too.)  The motion was granted.  (All other defendants were stuck in trial to the bitter, and unwelcome, end.)  Upon the granting of "our" (Neal's) motion, my client started babbling about how his innocence had been vindicated.  Neal and I dragged him out of the courtroom (Neal's sensibly silent client bringing up the rear) and back to Miami.

And I was disappointed.  I had seen and heard Neal in closing on a number of occasions, and I was actually sorry that I wouldn't get to see it again in that particular trial.  Think about how good he had to be: I was actually a little disappointed, all the way from Gainesville to Miami, that I got out on a Rule 29.

He never turned away a fellow criminal-defense lawyer who had a question about best trial practices, and he never made a fellow criminal-defense lawyer feel foolish for asking.  His late dear friend Albert Krieger was like that, too.  Now they're both gone.  Those who didn't know them will never know how much they've missed.

Ilene joins me in sending love and condolences to Pat.

Milt Hirsch

2. Neal was a lawyer's lawyer and the epitome of professionalism and ethics. He, Jon Sale, Ben Kuehne, and David Tucker saved me from a career of only practicing civil law. I was his associate for nearly four years. Neal "second chaired" my first federal criminal case. And he did me the honor of speaking at my investiture. My admiration and respect for him is boundless.

Soon after starting the criminal division, Neal was counsel on a matter. I disclosed my history with Neal, but the prosecutor didn't ask me to recuse. So I brought them side bar and told the prosecutor to rethink his position because he would never be able to convince me that any representation Neal made was anything other than 100% accurate. Neal was so respected that the prosecutor not only refused to recuse me but said he would take Neal's word over his own!

Neal was also incredibly generous. When I formed my own firm, he let me and my partner use two of the offices in his suite rent-free for months. A mitzvah I never forgot and when I paid it forward, I made sure to give Neal credit.

He will be dearly missed. May his memory always be a blessing to Pat, his family, and the legal profession. I know it will be to me.

 --Miguel de la O

 3. Neal Sonnett was the embodiment of a lawyers’ lawyer. He was, quite simply, the most skilled trial lawyer I have ever known.

 But well beyond his impressive skills as a trial lawyer, Neal was unremittingly devoted to protecting and improving the profession. His unparalleled work for both the NACDL and the ABA, as both a leader and innovator will stand the test of all time greats. For just one example, it as through Neal’s and Al Krieger’s tireless work that Congress amended the money laundering law to add a safe harbor for legal fees to 18 U.S.C. section 1957, Transaction Money Laundering.

News of Neal’s passing has already produced an avalanche of tributes to “the Lion of the bar”. And that is exactly what Neal was. 

As a longtime mentor, law partner and friend,  I will never forget Neal. 

--Ed Shohat