Special Counsel Subpoenas, FBI Agent Texts, GoGo Penguin Groove

An unusual point arose here (at the end) regarding an FBI agent’s political text-messages and cross-examination:

Jack Sharman – MSNBC – Meet the Press (Dec. 5, 2017) from LFW on Vimeo.

Text Messages and FBI Agents

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:

Handwriting On The Wall (And In The FBI’s Notes)

 

GoGo Penguin

We are in Advent, approaching Christmas.  This piece from the UK trio GoGo Penguin, while not a “Christmas” work, put me in mind of winter:

Here is Jim Fusilli’s WSJ  article on the band.

 

 

 

 

 

 

 

 


The Special Counsel and Obstruction of Justice

Here, a few thoughts on the Special Counsel, the President and obstruction of justice:

Jack Sharman – MSNBC – The 11th Hour with Brian Williams (Dec. 4, 2017) from LFW on Vimeo.

Grand jury slugfest.

Getting too comfy?

For earlier discussions about obstruction charges (and avoiding them), see the notes below that manage to combine Mr. Rogers and Barry Bonds.

For Corporate Counsel || Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed

and

Barry Bonds, Ramblin’ Man

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Dante’s Guide: Preparing the Grand Jury Witness

Dante Alighieri
(c. 1265–c. 1321)

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.

From the ABA Bookstore blurb:

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?

Preparation.

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.

Here’s where you can get the book: Mastering the Art of Preparing Witnesses

(The book has some outstanding trial lawyers as contributors, including Jim MillerMike O’Donnell, Scott O’Connell, Jessie Zeigler,  Sawnie McEntire, and Jerry Glas.)

We have addressed grand jury matters before here

Representing Witnesses Before The Grand Jury

and here

Of Grand Juries and Ham Sandwiches

Anatomy of a Murder (1959)

It’s not grand jury witness prep, but here’s the first few minutes of Anatomy of A Murder:

Plus, Duke Ellington did the score: