Friday, August 12, 2022

Cutting through the search warrant noise

I have spent considerable time this afternoon sorting through the contents of the warrant, reading the statutes, and gauging the various reactions to it.

We can get rid of a couple of talking points right away. 

First, from a legal standpoint it does not matter whether the materials seized were classified or not. It also does not matter whether Trump did (or could) declassify these documents on his own volition. Those arguments are smokescreens. The statutes underling the warrant, especially those dealing with espionage, make no distinction between classified and unclassified materials. The only question is whether Trump was, as a matter of law, entitled to retain these documents and materials.

Second, as Attorney General Garland pointed out, search warrants are not issued lightly, particularly at this level. The record shows that the materials seized this week had previously been subpoenaed. It was Trump’s failure to produce them under the terms of the subpoena that made the search warrant the only available remedy to get them. 

Moving on. It is the job of lawyers to cut through the noise (and there’s plenty of it here). While most people are talking about what was seized, the most critical piece of the puzzle is the criminal statutes listed in the probable cause affidavit that led to the warrant being issued. 

In order for the judge to grant the search warrant, he needed to find probable cause for EACH of the statute violations that would constitute a crime. Therefore, if the judge decided that the only violated statute was retaining government records, he would have rejected the part of the warrant pertaining to other crimes, including espionage.

Do you see why this is important? It means that the judge found probable cause that there was a violation of the espionage statute. THIS is what people should be talking about. 

Further, because espionage necessarily involves more than one person, the seized materials may be used to charge additional individuals with numerous felonies, including treason. 

If indictments eventually come down for a number of people, the serious finger pointing will start and plea deals for cooperation will begin.  Typically, the smaller fish rat out the larger ones and we know who the largest fish is. 

Some are suggesting that the issuance of the search warrant smacks of political vindictiveness. However, both the FBI Director and judge were appointed by Trump. They had every excuse to not act. However, probable cause of espionage simply could not be ignored. 

Wednesday, August 10, 2022

“Taking the Fifth“ has its risks

We normally associate “taking the Fifth” with a criminal case. Refusing to testify or answer questions where you are a criminal defendant cannot be used against you by the jury. This is your constitutional right against self-incrimination. 

In civil cases, the impact of refusing to testify is more complicated. Consider what happened today in New York. 

Donald Trump appeared this morning for questioning under oath in New York’s continuing investigation into his business practices. He refused to answer questions, citing his Fifth Amendment rights. 

Although he certainly had the right to refuse to answer, that refusal may come back to bite him. In a CIVIL case, a jury may consider the refusal to testify or answer questions as evidence of wrongdoing.  This is especially true where there is independent evidence of the facts at issue. 

Trump’s argument against testifying today is at least partially based on the fact that he is currently also under criminal investigation. His fear is that his statements under oath in the civil case could be used against him in a criminal case. When he previously raised that argument in order to delay the civil investigation, the New York courts rejected it. 

Trump’s failure to succeed in what are his typical delaying tactics have now placed him in a quandary. If he does not testify in the civil matter, the jury could later use that silence to find him liable for significant money damages. If he does testify in the civil case, that testimony might damage his defense in a criminal matter. 

In spite of what has the potential of being a massive financial judgment against him, Trump really cannot afford to testify in the civil case. 

In my summation before the jury, I would note Trump’s own statement at an Iowa rally in 2017: "You see the mob takes the Fifth. If you're innocent, why are you taking the Fifth Amendment?" 

His attorney would respond with his statement posted today on his social media site: “I once asked, 'If you're innocent, why are you taking the Fifth Amendment?' Now I know the answer to that question. I declined to answer the questions under the rights and privileges afforded to every citizen under the United States Constitution." 

My rebuttal then would be short and sweet. “It is clear that the defendant feels comfortable taking completely opposite positions when it suits him. As such, he has no credibility.”

Tuesday, August 9, 2022

Search Warrants and Whataboutisms

Criminal investigations can be highly complex matters. The gathering of evidence is critical to making certain that any case that is brought is supported by only the most credible supporting documents. 

Some of the documentation can be obtained from third party sources, such as credible eyewitnesses, confidential informants, video and audio records, and paperwork in the possession of others. However, the frequently most damaging evidence is in the possession of the potential defendant. 

Obtaining materials from a potential defendant can be obtained in number of ways.  The defendant can always provide the materials voluntarily. Obviously, this does not happen often. 

Absent cooperation, information may be obtained by a subpoena, a court-authorized demand for relevant papers. There are a couple of downsides to the subpoena process. 

First, a subpoena may be challenged as to relevancy or scope. Challenges to subpoenas have the effect of dramatically delaying the production of documents, often for years if appeals are pursued. The reason delays are implicit in this process is that subpoenas are often fishing expeditions. Prosecutors will often ask for broad categories of information, some of which may not actually be germane to the charges. The challenges to the subpoena frequently are designed to narrow the scope of what should legitimately be produced. 

Second, and perhaps the more critical limitation of subpoenas, is that once someone knows that records are being demanded, there is ample opportunity to hide or destroy evidence. 

The final way to obtain documents is through the use of a search warrant. This method is most frequently used when there is a fear that evidence will be hidden or destroyed. 

Although subpoenas are relatively easy to obtain, the requirements for obtaining a search warrant are stringent. There are sound constitutional and public policy reasons for this. By their very nature, search warrants involve invading the homes and businesses of individuals without the opportunity for them to object. The general “fishing for information” goal is therefore not enough to obtain a warrant. 

In order to get a search warrant, a judge must approve the request. The judge must find that there is “probable cause” to believe that a SPECIFIC crime has been committed (which is outlined in the warrant request). The judge must also be convinced that material evidence about the crime is located in the premises to be searched. Finally, the judge will specifically circumscribe when and where the search is to be conducted. 

Once the materials are seized, this is not the end of the protections for the defendant. Seized materials are still subject to evidence rules pertaining to what may be used in a court case. 

In a lower level criminal case, the prosecutor may ask for a warrant based on the sworn affidavit of a reliable confidential informant. For example, the informant may say that he is personally aware of drug-making materials at a particular address. That will usually be enough to issue the warrant, because if the defendant knew someone is coming, there would be nothing left to find. 

The standard for obtaining a search warrant for a former president is incredibly and nearly impossibly high. Any judge would be extremely reluctant to issue the warrant unless the rationale for obtaining it was almost unassailable. In the Trump case, the Justice Department imposed an even higher degree of difficulty upon themselves by requesting the warrant from a judge that Trump appointed. Therefore, to say that the DOJ likely had a strong case coming in is a massive understatement. 

Those reacting negatively to this warrant have variously described the process as “corrupt” or as evidence of the “deep state.” That argument is pure garbage. The process to obtain this warrant followed the precise procedural safeguards that forms the basis of our system of government. 

Further, for those who are saying “other people have committed crimes too, why isn’t the DOJ going after them?”, remember the exceptionally high standard for obtaining the warrant. Mere supposition of a crime, even if it fits your preferred narrative, is simply not enough.

Thursday, February 17, 2022

Why Stopping a Subpoena Can Be a Big Thing

The State of New York has sued the Trump Organization and Trump family members individually as part of investigation into several questionable financial dealings. Oversimplified, the suit suggests that the defendants carried at least two sets of financial books. One set of books purportedly inflated property values for purposes of obtaining financing. Another one deflated values for tax purposes. 

This is a civil suit that seeks financial damages, unlike a criminal suit that might result in jail time. 

New York issued subpoenas to Trump family members to testify under oath in a deposition. Today’s hearing was to hear Trumps’ objections to these subpoenas. The court denied Trumps’ objections and ordered the family members to appear for depositions within a few weeks’ time. The order will certainly be appealed. 

One may ask why this is such a big deal. After all, Eric Trump has had his deposition taken previously in this case and “pleaded the fifth” more than 500 times. 

As anyone who has taken a Government class will recall, you are never forced to testify against yourself. You are completely protected from incriminating yourself. The effect of refusing to testify (or answer questions), however, is markedly different in criminal and civil cases. 

In a criminal case, the refusal to testify may not be used against you. Thus, a jury must disregard your willingness or unwillingness to testify in determining your guilt or innocence. 

In a civil case, you retain the right to refuse to answer questions or testify. However, the jury make take that into account in deciding the case. In other words, a jury could infer bad intent if the Trumps were to refuse to answer questions. 

Donald Trump has repeatedly said publicly that people who “take the fifth” or refuse to testify are likely guilty of charges against them. The State of New York will undoubtedly introduce those statements into evidence at the eventual civil trial if testimony is refused. 

That is why it was so important for the Trumps to win on the subpoena motion. Having lost, they are now facing a true quandary. Do they testify and subject themselves to explaining financial discrepancies (and possible perjury) or do they remain silent and accept the consequences of that inference? 

The answer to that question has taken on even greater weight this week when their accounting firm stated in a letter that financial statements over the last ten years are unreliable. In the same letter, the Trump Organization was fired as a client due to a “conflict of interest.” 

In this context, “conflict of interest” means that the accounting firm believes that their interests and that of the Trump Organization are in conflict. The Trump Organization was, to use a common phrase, thrown under the bus.

Friday, December 17, 2021

Stormy Daniels – the Importance of Four Days

It has been a while since Stephanie Clifford, aka Stormy Daniels, has been in the news. You will recall that she was paid $130,000 to keep quiet about her dalliance with Donald Trump. After this liaison became known, two lawsuits were filed. 

In the first, Daniels claimed that the non-disclosure agreement she signed was fatally defective and that she was entitled to tell her story. She won this case.

In the second suit, Daniels filed a defamation lawsuit against Trump for his disparaging remarks about their presumed relationship. That case was dismissed by the court because the statements made by Trump did not meet the legal standards for defamation. 

In both cases, the winning side was entitled to attorneys’ fees. Daniels was awarded $44,100 in the nondisclosure case. In the defamation case, Trump was awarded $292,062.33. Much of the disparity in attorneys’ fees was due to the relative complexity and time involved in the cases. 

From the outside, one would think that the two cases could be brought together financially, with Daniels paying Trump the difference between $292k that he won and the $44k she did. That apparent solution is not that simple legally. 

On the Trump-winning side, we have the issue of her liquidity. She simply does not have it. The reason is that her former attorney and short-term media darling, Michael Avenatti, absconded with funds belonging to her as the result of a book deal. It has since been revealed that the now disbarred Avenatti made a practice of spending his clients’ money and attempting to extort others. It is also apparent that the defamation case he filed on her behalf was not done for her benefit but to keep him in the public eye. 

Arguably, then, the reason Daniels owes Trump any money at all is because of Avenatti’s avarice. Daniels could, of course, attempt to get that money back from Avenatti, but she is near the back of a long line of creditors. 

The bottom line for attorneys’ fees payment from Daniels is that she is simply “not collectable.” 

The “four days” referenced in the title to this article concerns the $44k owed by Trump to Daniels. Trump’s then attorneys attempted to appeal the attorneys’ fee award. That is where the legal stuff comes in. 

There is a legal adage that lawsuits are nothing more than a series of hurry up and wait. The “hurry up” is caused by specific, strictly enforced timelines that lawyers are required to follow. 

In the present case, Trump’s lawyers had 60 days from the court clerk’s certification of the lower court attorney’s fee order to file their appeal. This time limit is called “jurisdictional,” meaning that if you miss the deadline by even a day, your case is finished. No exceptions. This strict rule probably causes lawyers more panic than anything else. Miscount the days? You lose. 

Trump’s attorneys’ fees appeal missed the deadline by four days. They attempted to argue that the clerk’s certification really had not occurred until days later than appeared on the certification form. This time difference would have given them additional time to file the appeal. The appellate court panel said the evidence simply was not there to prove that. Therefore, since the appeal was not timely made, the case is finished.

It is highly unlikely that money will ever change hands between Trump and Daniels. So financially, there is no winner. The true losers are Trump's former lawyers who will now need to explain to their forgiving and longsuffering boss why they lost. I hope their malpractice insurance premiums are up to date. 


Tuesday, December 14, 2021

When Your January 6th Defense Is Essentially “I Got Nuthin’, Your Honor.”

Some days as a defense lawyer are tougher than others. You try to make the best case possible, but sometimes the facts make your arguments seem a bit tenuous. 

Capitol riot defendant, Nathanial Degrave, wearing protective gear and carrying knives, entered the Capitol and, among other things, shouted at the rioters to “take laptops, paperwork, take everything.” He faces numerous charges, including the felony of “obstructing an official proceeding.” 

From the context of the January 6 events, it is clear that those who planned and stormed the Capitol had one immediate goal—to prevent the certification of the election. One would presume that this certification would occur during an “official proceeding.” 

Not so fast, says the defense. Their argument is that when Congress gathered to certify the election, it was not an official proceeding because it was “purely ministerial and ceremonial.” Therefore, the proceeding did not meet the technical statutory requirements for an official proceeding. 

So which is it? Either certification was a proceeding that could have been thwarted, which at least some of the invaders believed, or it was ceremonial, which would make their entire day’s work useless. 

U.S. District Judge Dabney Friedrich of the District of Columbia is the first judge to rule on this defense theory and she denied the motion to dismiss the charge. She noted that defendants were trying to find ambiguity in the statute where none exists. (Ambiguity is central to defendant’s argument because this gives rise to something called “the rule of lenity”—ambiguities in a statute are to be resolved in favor of the defendant.) 

If you are thinking that the defendant will immediately appeal this decision, delaying the criminal proceedings, they cannot. The denial of a motion to dismiss is not a “final appealable order.” The case will now proceed to trial (or a plea agreement). 

While writing this, I could not help but think of an example where a ceremonial event could be disrupted. “If anyone knows why these two should not be wed, let him speak now or forever hold his peace.” My guess is that if someone shows up at a wedding in riot gear, things will not go well.

Monday, December 13, 2021

The Entrapment by Estoppel Defense – Why Blaming Trump Will Not Work

Defendants in the January 6 storming of the Capitol have relied on a variety of defenses, some serious, others outright silly. A common thread has been the implication that Donald Trump encouraged them to act.

We now have a case where a Trump-specific defense is being offered – entrapment by estoppel.

What is that defense and why are prosecutors are saying it should not be allowed?

First, an analogy: a bank robber claims he should not be found guilty because the Chief of Police told him it was okay. In other words, the prosecutor is precluded (estopped) from charging him because he himself was being victimized (entrapped). In order to win, our pantyhose-masked perpetrator must show five things:

1.    The police chief had the authority to give him that advice.

2.    The police chief was aware of existing law and facts before giving the advice.

3.    The police chief affirmatively told the defendant to go ahead and rob the bank.

4.    The defendant relied on the advice.

5.    It was reasonable to rely on the advice.

Yes, this is a ludicrous case, but it shows how high the standard can be if you expect to win.

The problems for this January 6 defendant are myriad.

First, did Trump have the authority to advise him to create mayhem inside the Capitol, especially considering rules for conduct at that institution? Well, we have already lost here, but we may as well continue.

Second, did Trump affirmatively tell the defendant to commit those acts? There is a fact question here about what Trump really said. However,

Third, defendant claims that he relied on that advice.

So, fourth, was it reasonable to rely on this advice?

Reasonableness is always the key in these cases. Think about when your mother asks: “if everyone else jumped off the bridge, would you too?”

As a defense lawyer, my best witness would be Trump himself. I would have him state under oath that as Commander in Chief, he had the authority to abrogate rules of conduct at the Capitol. Further, that he told people to storm the capital. And finally, that people had every reason to believe him when he said the conduct was permitted.

We all know that this testimony will never happen. The defense cannot win without it. This is why the prosecutor is arguing that the defense argument should not be considered.

Then why is the defense using this argument at all? It is really all they have. If, as so many have claimed, they only acted upon the encouragement from Trump, there was an expectation that he would have their backs. Perhaps that would mean the grant of some sort of amnesty or pardon after the fact. At the very least, it might mean that Trump would cover some of their legal expenses.

Obviously, none of that occurred. As noted above, “reasonableness is always the key in these cases.” These defendants may now be asking themselves whether it was reasonable to believe Trump would have their backs. Then again, maybe not. There’s always the Miracle on 34th Street.