The interview question focused on an agent in the Special Counsel’s office, Peter Strzok, and the fact that he was taken off the the investigation because of alleged anti-Trump, pro-Clinton text messages or other communications. Congress has requested information from the Department of Justice about Agent Strzok, who was also apparently one of the agents who interviewed Hillary Clinton regarding the matter of her personal email server and who allegedly watered-down the FBI’s conclusions about her.
What the heck, indeed.
On a more practical note, what about FBI agents’ text messages (or emails or posts) and their use at trial?
A leading case is United States v. Suarez, A2010 WL 4226524 (D.N.J. Oct. 21, 2010). In Suarez, the FBI agents received no instructions to preserve text messages, resulting in an adverse inference instruction at trial. Unfortunately for white-collar defendants, Suarez, while soundly reasoned, has not gained broad traction.
A problem is finding a broad source of authority for discovery of electronic material in criminal cases (as opposed to civil). Although the Federal Rules of Criminal Procedure do not specifically address electronically-stored information, the Federal Rules of Civil Procedure do so extensively and have done so since their amendment in December of 2005. As early as 2008, now-retired Judge John Facciola, a jurist often quoted and relied upon across the country on ESI issues, found that “[i]t is foolish to disregard [the Federal Rules of Civil Procedure] merely because this is a criminal case, particularly where, as here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raises the same problems.” United States v. O’Keefe, 537 F.Supp. 2d 14, 19 (D.D.C. 2008).
The Department of Justice, not surprisingly, disagrees.
Were a person indicted by the Special Counsel to go to trial, he or she would be most interested in the content and timing of Agent Strzok’s text messages. At a minimum, if the agent were to testify, the texts would be so-called “Jencks material” (that is, statements of a Government witness).
Perhaps more importantly, the texts might be “Giglio material” (that is, information going to the credibility of or otherwise supporting the impeachment of a Government witness).
With regard to the FBI otherwise, we have discussed issues arising from agents’ note-taking policies:
Finally, one gets to quote Dante while talking about grand jury witnesses:
In the year 1300, at age 35, the narrator of Dante’s Inferno famously finds himself in trouble:
Midway in our life’s journey, I went astray
from the straight road and woke to find myself
alone in a dark wood. How shall I say
what wood that was! I never saw so drear,
so rank, so arduous a wilderness!
Its very memory gives a shape to fear.
The grand jury witness finds himself or herself in a position not unlike that of the Italian poet at the beginning of his trek through the Divine Comedy. The federal grand jury is one of the most powerful, secret and peculiar institutions in American law and culture. It is certainly the most one-sided and the one that most lay persons find runs counter to their civics-class understanding of American governance.
In the poem, Dante has a guide through hell: the Roman poet Virgil. When Dante asks to be saved from the first of three beasts with which he is confronted, Virgil does not spare Dante’s sensibilities:
And he replied, seeing my soul in tears
“He must go by another way who would escape
this wilderness, for that mad beast that fleers
before you there, suffers no man to pass.
She tracks down all, kills all, and knows no glut,
but, feeding, she grows hungrier than she was.”
As lawyers for grand jury witnesses, we must do as Virgil does, and first off remind our client that, like the She-Wolf, the grand jury “tracks down all, kills all, and knows no glut.”
Plus, “fleers” is a great word.
Nice chair. Hot seat.
All this from a chapter I wrote — Dante’s Guide: Preparing the Grand Jury Witness — in a book just published by the ABA.
The witness is the star of any trial. All other evidence—exhibits, demonstrative evidence, the facts—come to life through the witness. In every successful trial there was at least one witness who told a story, held the jury’s attention, withstood cross-examination, and helped win a verdict. In every loss there is usually a witness who crashes and burns. How do you explain the difference?
For all but the experienced expert witness, testifying is an alien experience and the courtroom is a strange and forbidding place. The witness needs help, and it’s the lawyer’s job to provide it. The authors of this book have prepared, examined, and cross-examined thousands of witnesses over the course of their successful careers as trial lawyers. They have seen first-hand what works and what does not—on the witness stand and in pre-trial preparation and practice sessions. Their hard-won lessons, lessons learned in the trenches of trial practice, are contained here.
This is the second in a series of books published by the ABA under the title “From the Trenches.” This second volume, “Mastering the Art of Witness Preparation,” contains 12 chapters covering all aspects of witness preparation. Whether you are a first-time, second-chair associate or a veteran first-chair partner preparing for your 100th jury trial, this book will provide guidance, thoughtful insights, and unique perspectives on preparing your witness to testify.
A few notes for your Thanksgiving: a holiday examination, Mumm champagne, an old-fashioned cocktail from Garden & Gun, the French 75 (its history and variants), Puritan poetry (no Puritans = no Thanksgiving), Truman Capote and Loudon Wainwright III.
First, while still sober, take this test from Liquor.com:
If, like me, you do not care for Bloody Marys, a French 75 — essentially, a cocktail made with gin (or sometimes cognac), simple syrup, fresh lemon juice and champagne — is a sharp eye-opener before the Thanksgiving meal. The Letters and Liquor blog has a detailed, historical article on the French 75:
The novelist Alec Waugh dubbed it “the most powerful cocktail in the world” and he was only half referring to its potent combination of liquor and champagne. With a refined visage that belies the origins of its name, the French 75 speaks to our post-war mentality.
For reasons I cannot quite place, Truman Capote’s work has never been at the top of my list, though I should probably revisit it. Although I prefer A Christmas Memory, his sequel long story The Thanksgiving Visitor is holiday appropriate. From the Amazon summary:
Buddy and his closest friend, his eccentric, elderly cousin, Miss Sook – the memorable characters from Capote’s A Christmas Memory–love preparing their old country house for Thanksgiving. But there’s trouble in the air. Odd Henderson, a scrawny, freckled, red-headed bully makes Buddy the target of his relentless torment. But Miss Sook only counsels patience and understanding, “He can’t help acting ugly; he doesn’t know any different,” she says. Filled with emotions that are universal to both young readers and adults, this poignant story brings to life what we all should cherish and be thankful for–the gifts of friendship and love.
Finally, from Loudon Wainwright III, “Thanksgiving”:
High-profile lawsuits, OCR investigations and new congressional legislative interest have all conspired to mean that colleges and universities ignore the Dear Colleague situation to their peril. Unlike the disciplinary process for a cheating scandal, the resolution of a sexual assault case is a classic “parallel-proceedings” scenario.
At any moment there may be an administrative proceeding (by the university), as well as a criminal investigation (by external law enforcement) and potential civil lawsuits by either the accuser or the respondent. In the university disciplinary context, parallel proceedings raise at least two often troubling—and sometimes disastrous—special issues.
To the extent that it reflected crime, Lauren Bacall’s work was noir, not white-collar; black, not white; guns, not accounting fraud. Yet, there was an elegance and a fierceness about her films – especially those with Humphrey Bogart – that are familiar to those who work in a white-collar crime landscape.
[Raymond] Chandler was not particularly kind to women, though. It was up to the director Howard Hawks and his star, Lauren Bacall — who died this week — to give that era a counterpart female ideal, a hero both tough and tender, urbane and fast-talking, but also vulnerable and amusing.
Vivian Rutledge, the lead female character in the movie version of Chandler’s “The Big Sleep,” is stuck in a classic film noir world. Every situation is confusing, shadowed and ambiguous. Every person is dappled with virtue and vice. Society rewards the wrong things, so the ruthless often get rich while the innocent get it in the neck.
The lead character, played by Bacall, emerges from an ambiguous past, but rises aristocratically above it. She has her foibles; she’s manipulative and spoiled. But she’s strong. She seems physically towering, with broad shoulders and a rich, mature voice that is astounding, given that Bacall was all of 20 years old when she made the picture.
The heiress greets Marlowe with a put-down: “So you’re a private detective. I didn’t know they existed, except in books, or else they were greasy little men snooping around hotel corridors.”
But he’s self-sufficient enough to stand up to her. He wins her over with a series of small rejections. And he can match her verbal pyrotechnics. When she says she doesn’t like his manners, he comes straight back at her: “I’m not crazy about yours. … I don’t mind if you don’t like my manners. I don’t like them myself. They’re pretty bad. I grieve over them long winter evenings.”
Here is a detailed Becall piece from The Rap Sheet, an excellent crime-fiction blog. An excerpt:
A former theater usher and fashion model, Bacall first came to prominence in 1944, when, at age 19, she starred with 44-year-old Humphrey Bogart in To Have and Have Not, a film based loosely on Ernest Hemingway’s 1937 novel of the same name. Her famous double entendre-laced line, delivered to a smoking, reclining Bogie–“You know how to whistle, don’t you, Steve? You just put your lips together and … blow”–knocked out movie-going audiences everywhere, and had no less impact on Bogart himself. At the time he was already on his third marriage, to actress Mayo Methot, but he divorced her the next year to wed Bacall, or “Baby” as he called her. The pair were together only until his death in 1957, but if Bogie’s ghost is still anywhere around today, he’s whistling for her to join him today.
In everything that can be called art there is a quality of redemption. It may be pure tragedy, if it is high tragedy, and it may be pity and irony, and it may be the raucous laughter of the strong man. But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man. He is the hero, he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor, by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world. I do not care much about his private life; he is neither a eunuch nor a satyr; I think he might seduce a duchess and I am quite sure he would not spoil a virgin; if he is a man of honor in one thing, he is that in all things. He is a relatively poor man, or he would not be a detective at all. He is a common man or he could not go among common people. He has a sense of character, or he would not know his job. He will take no man’s money dishonestly and no man’s insolence without a due and dispassionate revenge. He is a lonely man and his pride is that you will treat him as a proud man or be very sorry you ever saw him. He talks as the man of his age talks, that is, with rude wit, a lively sense of the grotesque, a disgust for sham, and a contempt for pettiness. The story is his adventure in search of a hidden truth, and it would be no adventure if it did not happen to a man fit for adventure. He has a range of awareness that startles you, but it belongs to him by right, because it belongs to the world he lives in.
David Brooks gets the next-to-last word:
The feminine ideal in “The Big Sleep” is, of course, dated now. But what’s lasting is a way of being in a time of disillusion. At a cynical moment when many had come to distrust institutions, and when the world seemed incoherent, Bacall and Bogart created a non-self-righteous way to care about virtue. Their characters weren’t prissy or snobbish in the slightest. They were redeemed by their own honor code, which they kept up, cocktail after cocktail.
Speaking of cocktails.
In the scene from The Big Sleep with the bookshop girl (played by Sonia Darrin), Bogart mentions that he has a bottle of rye in his pocket:
The most important book ever written on presidential impeachment is only 69 pages long. Charles Black, Jr.,’s Impeachment: A Handbook was published in the summer of 1974, at the height of the Watergate crisis, and reissued in October 1998, two months before Bill Clinton became the second president in U.S. history to be impeached.
The little understood yet volcanic power of impeachment lodged in the Congress is dissected through history by the nation’s leading legal scholar on the subject. Berger offers authoritative insight into “high crimes and misdemeanors.” He sheds new light on whether impeachment is limited to indictable crimes, on whether there is jurisdiction to impeach for misconduct outside of office, and on whether impeachment must precede indictment. In an addition to the book, Berger finds firm footing in contesting the views of one-time Judge Robert Bork and President Nixon’s lawyer, James St. Clair.
In this thorough and thoughtful examination of the constitutional issues involved in the impeachment of a president, Labovitz, a lawyer who served on the impeachment inquiry staff of the House Judiciary Committee in 1974, incorporates the Nixon experience into American history over the last two hundred years.
An Affair of State by Judge Richard A. Posner. From the Harvard University Press description:
President Bill Clinton’s year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict.
In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran–Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner’s experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton’s impeachment ordeal.
Just as the cocktail renaissance has brought renewed fame to classics like the martini, the Manhattan and the Negroni, it has heaped fresh infamy on a rogues’ gallery of less classy concoctions, most of which emerged during the final decades of the last century.
Now a backlash of sorts has begun, as some high-end bartenders apply their skills to a new challenge: doing bad drinks well.
Bars like Holiday Cocktail Lounge in New York; Pépé Le Moko in Portland, Oregon; and the Automatic in Cambridge, Massachusetts, where the martini shares space on the menu with a blue margarita, have risen to this curious challenge.
Whenever I see the Blue Hawaiian cocktail, which is not often, I compusively think of Elvis in Blue Hawaii (1961):
Two by two.
The martini is not a complex drink.
Mercifully, this article keeps the options simple:
The cocktail world is divided into two camps: those who order martinis and those who don’t. And for those who don’t, it may be because they just haven’t found their best martini yet.
There are many different ways to mix this cocktail, and there’s a recipe out there for everyone ― you just have to know what to ask for when you stroll up to the bar.
Classically, a martini is one part dry vermouth to four parts gin. But that recipe is not set in stone ― here are eight different ways you can order the cocktail. Figure out what’s right for you and have a better happy hour.
A great concept from the United Kingdom: a mobile gin van:
Forget hosting a BYOB gathering, you can now pay for a mobile gin van to deliver delicious drinks straight to your party. The catch is that you can’t have the van, called The Wanderer, on speed dial for a quick drink or two.
Instead, the van, created by New World Trading Company (NWTC), has to be hired as a fully-kitted mobile bar, so it’s more suitable for weddings and big celebrations than your average house party.
Still, dedicated gin fans may be tempted to club together for an extravagant Saturday night after hearing what the van offers.
From the UK’s Daily Mail, an article on retro drinks and the current popularity of bitter drinks (the Negroni) and ingredients (such as Campari, Cinzano and Aperol):
Speaking about the new trend, John Vine, drinks buyer at Waitrose, said: ‘Bitter notes can be refreshing and act as a foil to sweetness , the right balance makes for the perfect cocktail.’
His comments correspond with data from the store, which shows a thirty five per cent sales increase in sales of Cinzano, which is perhaps best known for its placement in the iconic TV advert featuring Leonard Rossiter and Joan Collins.
I am a fan of bitter cocktails and have written previously about the Negroni. Such drinks reflect, in some ways, this vale of tears through which we pass.
Failing to recall the “iconic TV ad,” I looked it up:
Outstanding. According to the Campari corporate website:
Rated 11th best TV commercial of all time, the most famous Cinzano TV ads were those of Leonard Rossiter and Joan Collins during the 1970s. The infamous couple engaged in 10 unforgettable slapstick sketches that always ended in Rossiter pouring a glass of Cinzano on a progressively more resigned Joan Collins.
Rose be damned. I am partial to gin. Spaniards apparently take their gin and tonic seriously:
“In Spain, gin-tonic is not just a cocktail, it is an obsession,” says José Andrés. Here’s everything you need to know to nail this iconic drink at home—and six places in the States with excellent G&T options.
In Spain, fresh herbs (lemon verbena, rosemary or lavender), lemon peel, juniper berries, edible flowers and even whole spices are used to enhance the gin’s botanicals.
Finally, here is a recipe for the Joy Division cocktail. This may be worthy of a try: at times, I will rinse the inside of a martini glass with absinthe, which manages to simultaneously slow down and speed up the gin.
I know little of the post-punk English band from which the cocktail takes its name, although one of my favorite crime writers, Ian Rankin, used the title of one of their songs for a book title.
More to my taste, and to start you into your weekend, is Rare Earth’s 1970 version of “Get Ready”:
In 1950, producers Frank and Maurice King released Gun Crazy, a sometimes surreal Bonnie-and-Clyde story with an introverted, pacifist gun lover (Barton Tare, played by John Dall) and an English femme fatale sharpshooter (Annie Laurie Starr, played by Peggy Cummins). Carried forward by his lust for and fascination with Annie, the non-violent Bart — without thinking or planning — becomes a robber and, eventually, an accessory to murder.
A classic American film noir, Gun Crazy has merited a book (Eddie Mueller’s Gun Crazy: The Origin of American Outlaw Cinema) and much commentary by film buffs. It also gives us insight into a common question in white-collar cases: “Why did he [or she, but usually he] do it?”
The question of motive in white-collar cases is not an idle one but, rather, has implications for how prosecutors charge; how juries hear evidence; how defense lawyers defend; and how judges sentence.
But first, a little about this very strange, very cool movie.
The most famous scene is the bank robbery, which is one, long 7-minute shot. It’s long, so you may want to come back to it:
According to Wikipedia:
The bank heist sequence was shot entirely in one long take in Montrose, California, with no one besides the principal actors and people inside the bank alerted to the operation. This one-take shot included the sequence of driving into town to the bank, distracting and then knocking out a patrolman, and making the get-away. This was done by simulating the interior of a sedan with a stretch Cadillac with room enough to mount the camera and a jockey’s saddle for the cameraman on a greased two-by-twelve board in the back. [The director] kept it fresh by having the actors improvise their dialogue.
In other words, when actor John Dall hopes aloud that there is parking place, he isn’t kidding: other than the people inside the bank, nobody knew that there was a movie being made or a bank robbery about to be staged, and no parking space had been reserved.
And what is the point of this for us white-collar readers?
The point is that almost nobody starts out to be a white-collar offender, any more than Bart starts out to be a bank robber. People rarely say on Monday: “Note to self – commit mail fraud by the end of the week.” The question is less one of “intent” and more one of “motive.”
Many people, federal prosecutors, scholars, and media commentators claim that executives make decisions, including criminal ones, through explicit cost – benefit calculation. Although such deliberate reasoning is consistent with the way many business decisions are made, this exclamation seems that odds with how these former leaders made the choices that eventually led them to prison. Mini we’re not mindfully weighing the expected benefits against the expected costs. If they had been, even the remote chance of being caught and sent to prison, upending their otherwise comfortable lives, would have weighed heavily on their conscience. But I didn’t see this. Instead, I found that they expanded surprisingly little effort deliberating the consequences of their actions. They seem to have reached their decisions to commit crimes with little thought or reflection. In many cases, it was difficult to say that they had ever really “decided” to commit a crime at all.
Soltes goes on to say later in the book:
The prevailing ideas around reducing white – collar criminality rely on the assessment that executives are reasoning and calculative when they decide to commit and illegal act.
The emphasis on viewing cost – benefit analysis as a psychological model of choice rather than as simply a description of behavior has led to a particular notion of why once successful and intelligent executives commit white – collar crime long – namely, that these executives make thoughtful and deliberative calculations to break the law when doing so serves their needs and desires. They are not making hasty decisions with clouded judgment. Their personal failure lies in reasoning that the illicit choice is the ” appropriate” one.
[T]he trouble with this theory is that it doesn’t seem to match especially well with how executives who engage in white-collar crime actually think.
Why does this matter?
After all, many people (and almost all prosecutors) would argue that the “why” of things does not matter in the criminal context. In other words, they say, although “intent” is relevant, “motive” is not. The only important question, under this approach, is whether the person charged had sufficient “culpable intent” or a “guilty mind.” Under this view, “motive” is neither inculpatory nor exculpatory, even though the Federal Rules of evidence do allow, under certain circumstances, evidence to be admitted as proof of motive. (Consider Federal Rule of Evidence 404(b), which allows bad acts to be offered as evidence of motive).
But motive does matter. It matters for charging decisions. It matters for how juries hear evidence in the courtroom and how lawyers speak with them. And it matters for sentencing.
Prosecutors have discretion, as they should, with regard to whom to charge (and for what). If the cost-benefit model that Soltes describes is the governing lens through which a charging decision is made, then it is reasonable to expect that there will be over-charging (or at least more aggressive charging) as compared to an approach that, in a more nuanced fashion, appreciates the way business people actually make decisions. If I believe that your action is the result of a careful, cold cost-benefit analysis, I will conclude, other things being equal, that a more serious charge is due. As you sow, so shall you reap.
On the other hand, if I understand that rather than cost-benefit analysis what I am seeing is something more akin to business negligence, I may reasonably decide that a less serious charge (or no charge at all) is due. In Soltes’s words, if what I as the prosecutor see is “little effort deliberating the consequences of [one’s] actions,” I may think differently: after all, negligence, even gross negligence, is not normally the province of the criminal courts.
Maybe a cutaway would help.
How Juries Hear
Motive colors the jury’s intake of evidence, and the prevailing zeitgeist of cost-benefit analysis works against the presumption of innocence (itself a largely extinct species, as I have discussed here and here and here.
Why is this so?
Distrust of business — and especially of large organizations, global institutions and the financial-services industry — is high among jurors across multiple demographics and political orientations. The caricature of the cold, calculating “fat cat” businessperson fits neatly with popular suppositions — and, sometimes, conspiracy theories — about business and finance. No amount of pretrial questionnaires or voir dire can address these deep-seated concerns with any regular success. At trial, the Government understandably seeks to tap into these veins of distrust and fear. And, once the jury hears at least some evidence confirming its initial biases, it is almost impossible, even for the most skilled defense lawyer, to turn them around.
On the other hand, if the jury rejects “cost-benefit” assumptions and believes that, in general, most white-collar defendants are not “reasoning and calculative” when they act (Soltes again), two things may happen.
First, the near-extinct presumption of innocence may be revived.
Second, if even some members of the jury conclude that the defendant was mindless (or just stupid), the chances increase that evidence offered by the Government will be examined more critically.
Just do the math.
If cost-benefit analysis is a religion in white-collar cases, the fraud tables and the concept of “loss” in the federal Sentencing Guidelines constitute its liturgy. Were we to adopt a more realistic understanding of business decisionmaking in the context of white-collar offenses, we would reconsider the content and deployment of at least portions of the Guidelines.
The loss table in USSG 2B1.1.(b) is just math, a form of cost-benefit bracketing. The table attempts to impose a “cost” to a victim that it considers (or the Sentencing Commission considers) commensurate with a defendant’s “benefit.”
Laypersons are always surprised to learn that “loss” under the Guidelines does not mean “loss.” In fact, “loss” can mean “no loss.” (The dollar amount of loss to someone that the court believes the defendant “intended” to cause can be sufficient, even if there is no actual dollar loss to anyone). In a cost-benefit analytical regime, this idea of notional loss may be tolerable: we assume a calculation on the part of the business defendant and thus are more willing to accept a notional loss.
A more realistic view of business decisonmaking would go a long way towards restoring balance is an unbalanced white-collar system.
And, even if you disagree with me, you really should watch Gun Crazy.
Perhaps, like Annie, we all just “want things, a lot of things, big things.” The question is: When do we go to prison for it?