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

.

 


Search Warrants and Russia Raids

Look sharp, feel sharp.

The execution of a search warrant on a residence owned by Paul Manafort, President Trump’s former campaign director, raises some interesting questions.  Search warrants are rarely necessary in white-collar cases, yet their use seems to be more and more common.

Here was my take on Brian Williams’s MSNBC show The 11th Hour:

As I told Michael Schmidt of the New York Times:

“A search warrant is very bracing for the person who is being searched,” said Jack Sharman, the former special counsel to the House Banking Committee during its Whitewater investigation of President Bill Clinton in the 1990s. “It’s very invasive and sends a loud statement from the prosecutors to the person that there should be no doubts about the seriousness of the investigation.”

“The government will be investigating something like public corruption, and it knows that you know something about it,” said Mr. Sharman, now a white-collar criminal defense lawyer at Lightfoot, Franklin & White. “The government will then come after you on something unrelated, where you have criminal exposure, in the hopes that you will cooperate on their public corruption investigation.”

Read the full article here.

And here, for Amber Phillips of the Washington Post:

He’s also the perfect target to send a message to the rest of Washington that the special counsel investigation means business, said Jack Sharman, a white-collar lawyer in Alabama and former special counsel for Congress during the Bill Clinton Whitewater investigation.

“One purpose of such a raid is to bring home to the target the fact that the federal prosecution team is moving forward and is not going to defer to or rely on Congress,” he said.

Read the entire article here.

Finally, for all you Grateful Dead fans, I have written about search warrants before and provided additional compelling video: Subpoenas, Search Warrants and the Dead.

The video (with less gray hair and longer tie) is here: