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During a criminal investigation, the government has nearly unlimited powers to gather evidence against a defendant. It can use grand jury subpoenas—usually with no court oversight unless the recipient objects—for documents or to compel testimony of any witness. It can use its agents to interview witnesses voluntarily, knowing that most people will feel obligated to talk to a federal agent who asks to speak to them. The government issues extremely broad grand jury subpoenas. It…
By Dan Portnov Sometime this summer, perhaps as soon as mid-August, former National Security Advisor Michael Flynn will be sentenced by U.S. District Court Judge Emmet Sullivan. Flynn’s sentencing piques both pro-Trump and anti-Trump interest because he was one of the first of the president’s inner circle to fall.[1] As Flynn switched lawyers earlier this month, perhaps signaling a shift in his strategy for sentencing, Judge Sullivan also made news by ordering the release…
Given the position of the Office of Legal Counsel that a sitting president cannot be prosecuted, there has been some talk (including by me) about the possibility of indicting President Trump now but keeping the indictment under seal until he is no longer in office. I’ve read the portion of the Mueller Report about obstruction. Under the same set of facts, and the same evidence, my view is that anyone other than the President would…
This post is the eighth in a series of posts for non-lawyers, or non-securities lawyers, who might suddenly find themselves on the wrong end of a Securities and Exchange Commission document request, subpoena or call from Enforcement division staff. By Dan Portnov We’ve often had clients ask us how they can speed up the resolution to an SEC investigation. In some cases, they have even asked us if they can cut a check and be…
By Sara Kropf Jury selection as a funny thing. As I’ve said before, it is far more art than science. Most courts have a list of standard questions of the ask every juror during jury selection. One of those questions is whether or not the prospective juror is biased for or against a law enforcement witness. This question leads to the unfair exclusion of African-American jurors. Courts should stop asking it. The Purpose of…
By Dan Portnov Last week, the government moved one tiny step closer to being able to “outsource” its criminal investigations to non-DOJ actors. In a post-trial order, Southern District of New York Chief Judge Colleen McMahon excoriated the government for effectively outsourcing its investigation into trader Gavin Black’s Libor rigging to his former employer Deutsche Bank. Nevertheless, Judge McMahon denied Black’s motion for relief under Kastigar v. United States[1] and, in a separate order,…
By Sara Kropf The Report on the Investigation into Russian Interference in the 2016 Presidential Election (a/k/a the Mueller Report), is a veritable treasure trove of obstruction-of-justice efforts by the President. We’ve written before about obstruction of justice, here and here. Ultimately, the Mueller Report does not make an explicit finding that the President broke the law. It defers to the opinion of the Office of Legal Counsel (OLC) that a sitting president may…
By Dan Portnov Occasionally we work on cases or investigations that involve highly wonky subject matter – stuff that only lawyers or legislators would know and care about. One of those recent matters touched on the Stop Trading on Congressional Knowledge (STOCK) Act, a (relatively) recent piece of legislation that attempts to extend insider-trading concepts to elected officials, among other things. Since our interest has been piqued, and the STOCK Act covers a broader swath…
I’m in trial this week in a white-collar criminal case. Since I couldn’t manage to find the time to write a substantive post, I thought I’d write instead about something  practical: what I bring with me to court when I’m in trial. Being in trial is a physical event. You are lugging boxes back and forth to the courthouse. Even with electronic courtrooms, we usually still need paper copies of all the exhibits to give…
By Dan Portnov Last week I had the pleasure of attending a fascinating panel on congressional investigations hosted by MoloLamken. The panel featured defense attorneys Karen Christian, Reginald Brown, Amy Jeffress and Raphael Prober and was moderated by Molo’s Justin Shur. We have written about congressional investigations before (here and here), and note that they are indeed unique creatures. The panel reinforced this notion. Among some of the key takeaways…