Law professor
@NYlawschool
, former Manhattan ADA. What I love: legal ethics, criminal justice, free speech, due process rights, my kids, not in that order.
Mueller is explaining an important point about the DOJ. It hires qualified individuals regardless of their political affiliation. Prosecutors are capable fo putting aside political, ideological, or partisan commitments to approach their job in an impartial way.
@PGourevitch
This is to avoid referral for a criminal investigation into perjury. Even GOP would have a hard time confirming someone under criminal investigation
If you’re interested in reading tea leaves. Here’s a whole kettle that says Cohen flipped. Guy Petrillo is a highly regarded former federal prosecutor not hired to do battle with his former office.
My thoughts on why a federal crime can be used to bump up the falsification claim to a felony: Penal Law 175.10 uses the following language: "an intent to commit another crime or aid or conceal the commission thereof." /1
Good question about the SCOTUS ruling on the TX abortion ban: “Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?”
Not clear what was going on here but while both are bad… it’s more troubling for partisan political considerations to lead law enforcement to go after political adversaries than to protect allies.
@akjennings
@ScottMStedman
Public corruption unit of SDNY also prosecuted and conducted multiple proffer sessions with Michael Cohen. Could Cohen have given up Epstein as part of his deal?
Interesting that the public corruption unit of SDNY is involved in this case. Same unit that prosecuted and met repeatedly in proffer sessions with Michael Cohen. Could Cohen have given information on Epstein as part of his deal?
1/
@benjaminbrafman
had Weinstein carry Elia Kazan biography to turn himself in. This is not an accident. It is meant to bring up the HUAC hearings and McCarthy witch hunt. Subtly show that there was political pressure to bring this prosecution.
A 1977 Second Circuit Court of Appeals case interpreting when the state can arrest for a felony explicitly rejected the lower court's reading of "offense" to mean only state crimes. U.S. v. Swarovski, 557 F.2d 40 (1977) /6
This is key. Partisans say the extreme is worse on the other side. But that's a false choice. If you pick one extreme, you fuel the other. Instead, fight for the institutions and values of liberal democracy.
@ShimonPro
The public corruption prosecutors from SDNY were also involved in prosecution and multiple proffer sessions with Michael Cohen. Is it possible that Cohen gave up Epstein as part of his plea deal?
This is an inappropriate statement by a prosecutor. Prosecutors should speak through indictments not in public statements that leave an impression that an individual is guilty without giving him recourse to defend himself.
Given Cohen’s testimony about Abbe Lowell, Kushner’s attorney, editing his testimony and this new revelation that he lied about Kushner’s security clearance process, the bar might want to look into this.
This doesn't mean that we cannot point out ethical issues. For instance, as
@NoahRFeldman
argued, it may be problematic for WH Counsel whose client is the presidency to defend Trump in an impeachment hearing. /4
@Mimirocah1
And interesting that it’s out of public corruption unit, which prosecuted and conducted multiple proffer sessions with Michael Cohen. Could Cohen have given up Epstein as part of his deal?
Offense is defined in Penal Law 10(1) as conduct for which you can be sent to jail by a law of this state, by law of a political subdivision of this state, OR "by any order, rule or regulation of any government instrumentality authorized by law to adopt the same." /4
So the definition is not limited to the state by that last phrase. As others have pointed out, the legislature knows how to limit the governmental instrumentality to the state. (Penal Laws 195.20; 496.06, 156.00). It did not so so in defining offense. /5
@JulieZebrak
@Mimirocah1
To me, the silver lining is the education in civics, and we owe you and others who explain American government and law to a broad audience, gratitude for that.
Prosecutors' ethics cameo at the impeachment hearings: Castor says that Trump has not been charged in conspiracy for the Capitol riots because prosecutors have an ethical obligation not to charge if they don't have probable cause.
Misdemeanor is defined in Penal Law 10(4) as an offense where the possible sentence is up to and including one year. Felony is defined as an offense where the possible sentence is more than one year. 10(5). So the key is to define "offense" /3
While criminal defense lawyers should have a lot of leeway in making arguments for their clients, accusing the Mueller investigation of being a "coup" is extremely problematic. See Model Rule 3.1
I agree with both
@RDEliason
and
@NormEisen
et al. This is not a disqualifying conflict. It's not really a conflict at all. But if true it is corrupt and does cast a shadow over the prosecution.
Even if legally correct, I think this is largely beside the point.
@NormEisen
and
@RWPUSA
, as ethics experts you know the appearance of impropriety matters. If the allegations are true, it will damage public confidence in the case and is a huge political gift to Trump.
@thomaschattwill
And the only way to ensure that woke excesses do not interfere with our liberties (in more dangerous ways than they already have) in the long run is to promote liberal values and institutions, which Trump is dead set on dismantling.
I wonder whether part of the difference is also a greater historical emphasis on training lawyers not just writers and academics. Ideology is beside the point when you have a client to serve.
When Harvard Law promoted a conservative student on its Instagram page, the president of the student body organized an email writing campaign to pressure the school to take down the post.
But Harvard didn't cave. Why?🧵
@jedshug
@ThePlumLineGS
@lee_kovarsky
@samuelmoyn
Anyone who has worked in the DA’s office knows that there is precedent for charging individuals with falsification of business records even when they never filed those records. This lack of reported cases is a made up problem.
@Mimirocah1
@NatashaBertrand
Criminal defense lawyers attack the judicial system all the time on behalf of their clients, which is a critical check on abuse. This is categorically different. I agree with
@Mimirocah1
that lawyers should be careful. Here's my piece on this in NYLJ.
@benjaminwittes
@dandrezner
The reason presidents have the power to hire, fire, and pardon is that those acts are transparent and may have political consequences. Meddling in individual prosecutions is not, which is what makes it so dangerous.
2/My guess is that
@benjaminbrafman
will pick up on this theme at press conference later. Kazan turned on his colleagues during McCarthy era and was responsible for ending careers of many including Clifford Odets. Caved to political pressure of the time.
@marty_lederman
@nytmike
@maggieNYT
This is a plausible distinction. It would be unethical for prosecutors to pursue a case lacking in proof. Here’s my co-authored piece on the topic
My lamp clearly upstages me! But I am sorry to say, I got it decades ago in a thrift store in Brooklyn. No idea where to buy it.
@ratemyskyperoom
do you guys know?
It’s especially important now when we are depending on lawyers to maintain the rule of law to hold those who violate the law and rules responsible...my thoughts on Manafort’s lawyers
An unpopular defendant deserves a lawyer and that lawyer does not endorse his client’s views. But a lawyer can distance himself from a client who is continuing to commit crimes
In all the fury about how Barr betrayed his role, important not to overlook how in this almost impossible situation Mueller managed to report the facts needed to hold the President accountable without wading into a partisan fight which would have further eroded confidence in DOJ
@renato_mariotti
The public corruption unit was involved in the prosecution and multiple proffer sessions with Michael Cohen. Could Cohen have given up Epstein as part of his deal?
3/If I am right about this then this is important commentary about this case and
#Metoomovement
. There was pressure on DA including AG inquiry and mass media assault. Prosecutors shouldn't be under so much political pressure to charge. Decisions should be based on law & fact.
#metoomovement
will suffer it creates too much incentive for politicians to pressure prosecutors. Prosecutorial independence matters in this case and more broadly.
Interesting that Giuliani told the Jan 6 Committee that they were looking for someone to lead the DOJ who wouldn't be so concerned about his reputation. Reputation is exactly how ethical norms and traditions are perpetuated.
Far from the most important part of this story but Clark is hiding behind a made-up ethical obligation to refuse to disclose conversations he had with Trump
As scary as this is, it’s remarkable how well the DOJ/FBI has maintained its integrity despite the public attacks and this more direct assault on the rule of law.
EXCLUSIVE: The DOJ just unearthed a letter Matt Whitaker delivered to the Utah U.S. attorney directing a review of how the department handled the Clinton Foundation and the Uranium One issues
The DOJ practice of not revealing information about an uncharged suspect is a good policy but not absolute. Sometimes, officials have to use their discretion in the public interest. This is one of those times. Barr should release the full report.
Trump tries to claim the hush-money payments were Cohen’s doing - not his, telling Hannity: “He did and he made the decision. Remember this, he’s an attorney - whatever decision he makes, you’re supposed to rely on your attorney to make a decision. ... It’s also called reliance.”
Kavanaugh’s strategy was mistaken identity. If this were a criminal trial, these new allegations would come in as proof of identity under FRE 404 and would be fatal to his defense
Like Taylor and Kent, Yovanovitch is refusing to answer in a way that directly accuses the President of wrongdoing, only recounting the facts. They are all nonpartisan public servants.
Biggest news from
@60Minutes
is that Trump instructed Rosenstein to put Russia in the memo as the reason for firing Comey. Add that to
@LesterHoltNBC
interview and it seems abundantly clear.
THREAD: We should stop using legal ethics as a weapon to threaten and punish the other political party. /1
@JonathanTurley
makes this argument. h/t
@andygrewal
@renato_mariotti
Real goal is to prevent the FBI from looking into his drinking and referring a criminal investigation into perjury which would doom the nomination
@MollyJongFast
SDNY public corruption unit was involved in prosecuting and conducting multiple proffer sessions with Michael Cohen. Could Cohen have given up Epstein as part of his deal?
I hope my crim pro students are not listening to Barr's last answer. He said: If you detain someone and move him to a different location for the purpose of questioning, that's not necessarily an arrest. Under Dunaway, that's an arrest.
These two articles I co-authored with Bruce Green are unfortunately once again quite relevant: Can the President Control the DOJ? and May Federal Prosecutors Take Direction From the President?
This statement by the Albany DA is appropriate, unlike the statement by the
@WestchesterDA
. Soares simply states that he cannot prove the crime rather than suggesting that the target is guilty and the laws are at fault.
@Mimirocah1
@DanielRAlonso
@RudyGiuliani
But he is serving as a defense attorney at the moment so obligated to put forth arguments in favor of Trump and this one seems effective.
FUN FACT: There is a *bribery article* in the impeachment articles against President Trump.
It's Article I.
"But, Ira – Article I is titled 'ABUSE OF POWER', not 'BRIBERY', so how can you say that?"
Because it's not the title. It's the acts alleged.
B/c history…
1/
Also prosecutorial (or FBI) discretion saved Hillary Clinton from charges as well. Further evidence that prosecutors are doing their job without regard to partisan interests
One item in the
#MuellerReport
that seems to have largely escaped attention is the fact that Donald Trump Jr. committed a crime--specifically, he violated the computer fraud and abuse act. It appears that he wasn't charged only because of prosecutorial discretion. A few thoughts:
@jeffreycortese
@gtconway3d
Also interesting that public corruption unit of SDNY prosecuted and conducted multiple proffer sessions with Michael Cohen. Could Cohen have given up Epstein as part of his deal?
Pomerantz’s book violates his duty of confidentiality and potentially rule 3.6, against prejudicing an ongoing proceeding. He doesn’t get to decide what is in the public interest. The elected DA does.
Mark Pomerantz quit
@ManhattanDA
office in a huff over the Trump case. Now he’s on a book/TV tour, carping about his former boss. (Also my former boss. More on that later). Pomerantz may think he's the smartest guy in the room but his judgment is👎 (1/x)
Nothing inherently crazy about a non-corrupt quid pro quo. Countries do it all the time: "you buy more of x from us and we will lift tariffs on y," etc.
What would make Trump's criminal is corrupt intent - a q.p.q. for personal political gain, not b/c it's in the US interest.
First of all, omg! And second, "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities" Model Rule 1.2(b).
Here are photos of Attorney Randy Mastro’s UWS home, which was vandalized this morning. Mastro is representing UWS residents in the dispute over Homeless at The Lucerne
@JonathanTurley
I believe that Barr was not attempting to interfere with individual SDNY investigations. I also believe the way he fired Berman and his other acts as AG have completely undermined his credibility as nonpartisan and the public is justified in having no faith.
Isn't the point of tenure to seek truth? Isn't that in tension with activism? Activists often suppress inconvenient truths to achieve a goal. An abortion activist would not want to tell stories of women who regretted their abortions but that is part of the pursuit of truth, no?
Tenure is the ultimate privilege. Don't luxuriate in it. Use it. Use it to advocate for your ideas and beliefs. Use it to show your students how to force change in the face of lame, cowardly, status quo b.s. Use it to fight.
1/ Many people are wondering why the SDNY and Mueller's team haven't entered into a cooperation agreement with Cohen even though Cohen appears to be ready, willing, and able.
This is a problem with bar associations as well. Even more problematic when the purpose of the profession is to promote peaceful resolution of ideological and other disagreements.
As professional societies become more ideological some will discipline members for statements that depart from the dominant ideology. This will undermine trust in the profession, as Ontario College of Psychologists is now doing with attempt to punish
@jordanbpeterson
for tweets
Lanny Davis, Cohen’s new attorney, says he “deserves to tell his side of the story.” Targets of criminal investigations don’t generally tell their side of the story. Cooperators do.
If Kavanaugh had it to do all over again, would he accept the nomination? I think he would, and that speaks volumes to his sense of entitlement and his lack of respect for our institutions.
@EricColumbus
@johnson_carrie
This is a sign that the incoherence and contradictions are working as a PR strategy. Even the media and attentive observers are having a hard time tracking one narrative.
@jedshug
@ThePlumLineGS
@lee_kovarsky
@samuelmoyn
My point is that your argument makes no sense. The fact that no one successfully challenged any of the cases that were brought - whether or not the cases were reported- is a good sign that it’s absolutely fine to prove intent that way
Barr told Trump exactly what I have been arguing, which is that his legal strategy to overturn the election actually harmed him because "no self-respecting lawyer is going anywhere near it."
Many people have said Mueller's failure to decide whether Trump's conduct constituted obstruction was a cop-out. I don't agree. It was a way to present the facts to public so that a political decision can be made while preserving the legitimacy of DOJ as an apolitical body.
1/
@benjaminbrafman
had Weinstein carry Elia Kazan biography to turn himself in. This is not an accident. It is meant to bring up the HUAC hearings and McCarthy witch hunt. Subtly show that there was political pressure to bring this prosecution.
Holmes expresses outrage about the threat to bipartisan support for Ukraine. His tone is both emotional and adamant as he expresses the importance of Ukraine to American interest and the recent threat to that relationship.
7/So while people speculate that SNDY's apparent decision not to cooperate Cohen may suggest he doesn't have the goods, the opposite may be true. He might have the goods, but SDNY and Mueller's team are being cautious about getting it.