Why White Collar Investigations Take So Long

Why do white collar investigations take so long? President Trump’s lawyer Ty Cobb has been telling the president — and the public — that he expects Special Counsel Robert Mueller’s investigation to be wrapping up in the near future.  There were reports this week that the president’s lawyers planned to meet with the Special Counsel, seeking assurances that the probe was almost over and that the president will be cleared.

But this investigation shows no sign of being almost over. The trial of Paul Manafort and Rick Gates, who were indicted by the Special Counsel last October, is not scheduled to take place until May. Mueller has recently announced plea and cooperation agreements with Michael Flynn and George Papadopolous, and that cooperation and the resulting additional investigation could take many more months. And it seems unlikely that these will be the last criminal charges to result from Mueller’s probe.

Bob Mueller appears to be pursuing a classic white collar investigation strategy.

Special Counsel Robert S. Mueller, III

This has all the hallmarks of an investigation that could easily last another year or more. As these cases go, Mueller is actually proceeding quite quickly. But such investigations take time, and due to grand jury secrecy we don’t learn a great deal about what is happening. That leaves an impatient public wondering when and where the next shoe will drop. It also leads to widespread media speculation, with pundits on both the left and the right confidently proclaiming what the latest development means and what “must” be about to happen next.

The truth is that no one outside of Mueller’s team knows what all the evidence has shown or what will happen next, and even they probably don’t know exactly how long it will take. But given what we have seen so far and what we know about the nature of these types of investigations, there is no reason to believe that Mueller will be packing up and going home any time soon (unless he gets fired, of course). In light of all the impatience and speculation surrounding Mueller’s investigation, it seemed like a good time to dust off and update this post I wrote almost three years ago about why white collar investigations can take so much time.

The Nature of White Collar Investigations

white collar investigation is an organic, developing thing. If prosecutors had all the information about the potential offenses and defendants at the outset, it would be relatively straightforward to put all the witnesses in the grand jury, ask the relevant questions, and proceed expeditiously. But white collar prosecutors seldom have that luxury.

This is one of the principal ways white collar investigations differ from, say, an investigation of a bank robbery or a homicide. “Street crime” investigations generally begin when it’s clear that a crime has been committed and the universe of potential charges is relatively well defined. When you have a body on the street with twelve bullet holes in it, it’s pretty clear a crime has occurred. The job usually is to assemble sufficient evidence to prove who did it. That is a relatively discrete task with clearly defined parameters.

In a white collar case, by contrast, the task frequently is to determine whether a crime has been committed at all. The array of possible charges and potential defendants may be much less clear at the outset, and likely will evolve as the investigation proceeds. There are often many shades of gray when investigating more nebulous criminal concepts such as fraud and corruption (or collusion). This can result in a more wide-ranging and prolonged investigation. As prosecutors dig more deeply, they frequently uncover new leads that have to be chased down. If you’re trying to clean house, it’s tough to finish the job when you keep finding new, unopened doors around every corner.

Consider the Mueller investigation. The order appointing him as Special Counsel charges him with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and any related matters arising out of that investigation. This is a sweeping mandate. Mueller is investigating not one isolated event like a bank robbery, but a complex course of conduct involving multiple actors, here and abroad, over a long period of time. Even with a large investigative team, it is necessarily going to take considerable time.

Because the investigation evolves over time, other types of delay also arise. For example, suppose an important witness is called into the grand jury and testifies relatively early in the investigation. As more documents are reviewed or additional witnesses testify, prosecutors may discover new information about which they now need to question that early witness. That may require a return appearance before the grand jury.

This can happen repeatedly during a lengthy investigation. I recall one large public corruption investigation where we had to recall a particular key witness to the grand jury at least half a dozen times over a more than two year period as we continued to discover additional critical information about which we had to question her. Each such appearance, of course, takes time to prepare for and to coordinate with defense counsel, in addition to consuming more time in the grand jury itself.

Why do white collar investigations take so long? One reason is the grand jury.

The Nature of the Grand Jury

Federal white collar cases frequently involve extensive use of the grand jury. In a street crime investigation, law enforcement officers may interview willing witnesses, and victims generally will gladly provide any records and other evidence they have to assist the prosecution. Frequently, much of the investigation can be completed outside of the grand jury room, a much faster and more efficient process. A grand jury is still required for an indictment, but the grand jury process itself can be fairly streamlined.

In a white collar case, by contrast, evidence may be buried in the records of corporations and other institutions that will only yield those records if compelled by a subpoena. Fellow employees in a company, fellow officers in a police corruption case, or a politician’s staff in a political corruption case, all may be reluctant witnesses who cannot simply be interviewed by case agents but must be compelled to appear and testify under oath in the grand jury.

The grand jury is an incredibly powerful body, but the process is inherently cumbersome. It takes time to subpoena witnesses, deal with their defense counsel, and arrange for them to appear in the grand jury. Institutions subpoenaed for large numbers of documents likewise will require time to assemble the documents and for their counsel to review them to screen for privileged materials.

And speaking of documents — white collar investigations often are very document intensive. There may be hundreds of thousand or even millions of pages of corporate documents, bank records, telephone records, e-mails, and more that need to be examined. The sheer volume of paper that has to be reviewed and analyzed can slow an investigation down. Imagine the time it would take to assemble and sort through the bank records of Trump’s extensive financial empire – or even just one of his tax returns. In the Mueller investigation this difficulty is compounded by the fact that many records may be located in other countries.

                                          Defense Delays

Many white collar investigations involve individuals or companies represented by skilled defense counsel who will vigorously represent their clients. That may include throwing up roadblocks to the government’s progress. Witnesses subpoenaed to the grand jury may assert various privileges not to testify, and litigating those claims — even those without merit — may take months or even years. If documents are subpoenaed or seized during an investigation, the defense may go to court arguing that the documents are privileged or were obtained improperly and must be returned, preventing investigators from examining them until those claims are resolved.

In the Mueller investigation, witnesses such as Donald Trump, Jr. and Attorney General Jeff Sessions have made controversial assertions of attorney-client privilege or executive privilege when testifying before Congress.  As long as a Republican Congress is not willing to press the issue, they can get away with that. But if they try to assert such privileges before the grand jury, Mueller’s prosecutors may go to court to seek to compel them to answer the questions. Litigating such claims could easily take months.

Depending on the nature of the documents or testimony involved, it may be reckless, irresponsible, or even impossible for prosecutors to go forward until such issues are resolved – but resolving those legal battles may result in substantial delays.  And time spent fighting over such legal issues is time not spent examining additional witnesses or otherwise advancing the investigative ball.

                      The Nature of White Collar Crimes

White collar crimes frequently boil down to questions of intent. It may be clear that a contractor overbilled the government, but was it fraud or simply an accounting mistake? It may be undisputed that a supporter has given gifts to a politician, but was it corrupt or was it simply unseemly or “politics as usual?” Jeff Sessions may have made statements under oath before Congress that turn out not to be true, but was it a deliberate lie and therefore perjury, or simply a misunderstanding or failure of recollection? The president fired former FBI director James Comey, but that otherwise lawful act is potentially obstruction of justice only if he acted with corrupt intent.

This makes white collar cases particularly challenging. Frequently prosecutors are not trying to prove observable events that took place (as in “who pulled the trigger” or “who had the drugs”) but are trying to prove what was going on in someone’s mind. Absent a confession or taped conversations, that may require an exhaustive and time-consuming examination of both witnesses and documents to build a circumstantial case piece by piece, while ruling out any ambiguities, uncertainties, or alternative explanations.

This can be especially difficult in public corruption cases. If a defendant is engaged in a fraudulent Ponzi scheme, for example, once that scheme comes to light there are usually victims willing to come forward to help the prosecution. They can provide information about their dealings with the defendant, turn over copies of their e-mails and other documents, testify about their conversations, and otherwise help the government prove the misconduct in question.

In a public corruption case, however, the crime usually involves a secret deal or transaction that neither party wants to be discovered. There frequently are no other witnesses. The “victims” – the general public or the politician’s constituents – don’t know that a crime has occurred and can offer no assistance. Such crimes take place in secret, behind closed doors, often through nods and winks. For example, if Trump campaign officials secretly conspired with Russians to influence the election, none of the parties to that conspiracy are likely to provide information about it willingly.

The most common way to investigate such a case involves painstakingly building successful cases against lower-level players and enlisting their cooperation against other, higher-level defendants – known as moving up the ladder, or using the little fish to catch the big fish. This can be very successful, but it too takes considerable time. Sufficient evidence has to be gathered against one defendant to persuade him or her that it is time to cut a deal. The terms of their plea agreement have to be negotiated and the case has to be brought before a judge for the plea. Following the plea, the cooperator now needs to be further debriefed and possibly put into the grand jury. The process continues, hopefully moving up the ladder towards the ultimate targets, but climbing each successive rung may take months.

This appears to be the way the Mueller investigation is proceeding. So far he has secured guilty pleas and cooperation from two individuals (that we know of) and has the ability to exert considerable pressure on Manafort and Gates to cooperate as a result of their indictments. That’s one reason his investigation gives no sign of being nearly concluded. Cooperation agreements like these suggest there are still some bigger fish out there to be investigated.

My crystal ball is no better than anyone else’s. As I mentioned at the outset, no one outside of Mueller’s team really knows what is coming next. But given what we know about the nature of white collar investigations and the developments we have seen so far, we can at least say with confidence that it would be very surprising if this investigation ended any time soon.

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The Criminalization of Politics, Obstruction, and Trump: A Reply to Professor Dershowitz

If you’ve been reading this blog for a while or have been following me on Twitter, you know I’ve been engaged in a bit of a back-and-forth with Harvard Law professor Alan Dershowitz. Dershowitz has emerged as one of the leading critics of the Robert Mueller investigation into the Trump campaign and possible Russian meddling. Professor Dershowitz argues there is no evidence of a crime and no basis for a criminal investigation. More broadly, he believes Mueller’s investigation is the latest example of the criminalization of politics: what he sees as a troubling tendency by both political parties to use criminal law to attack political opponents.

Last week Dershowitz published an op-ed in the New York Times about this issue, and I published a reply in the Washington Post. But the argument about politicization is just the latest in a series of claims Dershowitz has made arguing there is no basis for Mueller’s investigation. In this blog post I’ll review the arguments Dershowitz has been making over the past few months and my responses to those arguments.

The Argument about Collusion

Dershowitz has repeatedly argued that collusion is not a crime.  He claims that if Trump campaign officials colluded with Russians to influence the campaign that might be deplorable but would not be criminal. The remedy for any such misconduct, he says, should be at the ballot box, not in criminal court. Therefore, he concludes, there is no basis for the Special Counsel’s investigation.

This argument is really a smokescreen. It’s true there is no crime called “collusion” — but that’s not what Robert Mueller is investigating. The criminal counterpart to collusion is conspiracy – an agreement to commit some other criminal offense. The Special Counsel likely is investigating a number of potential conspiracies, which could include conspiracy to defraud the United States, conspiracy to violate federal election laws, or conspiracy to engage in computer hacking. He is also investigating a number of potential related cover-up crimes, which could include false statements or perjury by various campaign officials who may have lied about or failed to disclose contacts with Russian individuals. Those already convicted of cover-up crimes include former campaign aide George Papadopoulos, whose guilty plea was unsealed in October, and former National Security Advisor Michael Flynn, who pleaded guilty last Friday.

In this post, Yes, Colluding with Russians to Interfere with the Election is a Crime, I discussed the various conspiracy charges that might be implicated by the allegations in the Russia investigation. In Lying on a Security Clearance Form: The Crime of False Statements, I discussed the criminal implications for individuals such as Jared Kushner or Jeff Sessions if they willfully failed to disclose contacts with Russian nationals when they completed their security clearance applications.

The Obstruction of Justice Argument

Back in June I wrote a post called Trump and Obstruction: What Alan Dershowitz gets wrong. Dershowitz has argued (and continues to argue, including in the most recent New York Times piece) that president Trump could not be charged with obstruction of justice for firing James Comey or trying to interfere with the investigation of Michael Flynn. He points out that the president, as head of the Executive Branch, has the unquestioned power to fire the FBI director and to oversee investigations by the Justice Department. To charge the president with obstruction for these actions, he argues, would be an unconstitutional infringement of the president’s powers. President Trump’s attorney John Dowd has recently adopted this argument, claiming that as head of the Executive Branch the President cannot be charged with obstruction.

Dershowitz believes the president could not be prosecuted for obstruction based on these actions no matter how corrupt his motive. Even if the government could prove beyond a shadow of a doubt that Trump fired Comey because he knew Comey was closing in on him and he wanted to try to thwart the investigation, Dershowitz claims that would not be obstruction. But as I pointed out in that June post, things that one otherwise has a lawful right to do can become criminal obstruction if they are done with corrupt intent. I have a right to destroy my laptop, but if I do it because it’s been subpoenaed by the grand jury and I’m trying to get rid of incriminating evidence, that lawful act becomes obstruction. The same is true of firing the FBI director: the President has the right to do it, but not if he does it with the corrupt intent to obstruct justice.

Dershowitz agrees that if the president took a bribe in exchange for firing Comey, that could be prosecuted. But there is no logical reason for treating obstruction of justice differently. In the bribe scenario, the otherwise lawful act of firing the director becomes a crime due to the corrupt motive that underlies that action. The same is true for obstruction.

Dershowitz argues that to charge Trump with obstruction for firing Comey or seeking to influence the investigation would be to prosecute him for “constitutionally authorized acts.” This amounts to a claim that the constitution authorizes the president to corruptly shut down any investigation into his own potentially criminal behavior. I think Madison would be surprised. Dershowitz has offered no legal authority for the extraordinary proposition that when it comes to the crime of obstruction of justice, the president of the United States is immune and above the law unless he also engages in some additional criminal act.

Whether a sitting president can actually be indicted and prosecuted is a separate question, and I’m not dealing with that here. It may be that if Trump obstructed justice the only appropriate remedy is impeachment, not prosecution. But as long as we live in a country governed by the rule of law, it can’t be the case that the ordinary rules of obstruction of justice law do not apply to the president.

The False Comparisons to Hillary Clinton

The next post where I took issue with Dershowitz was based on his comparison of the allegations against the Trump campaign and allegations involving the Democrats’ involvement in the preparation of the infamous Trump Russian “dossier.” Dershowitz has been using the two cases as examples of what he claims is the criminalization of politics, arguing that neither case is appropriate for a criminal investigation. In my post, Trump, Clinton, and the Russia Dossier: Fallacies and False Comparisons, I pointed out that the two cases involved very different facts and how, while the allegations about Russia and the Trump campaign fully justify a criminal investigation, the allegations about the dossier do not.

This led to an interesting exchange on Twitter between two Harvard Law School titans (and Twitter titans as well), Dershowitz and professor Larry Tribe. Tribe tweeted out my post:

Which led Dershowitz to respond:

Actually that response itself proved my point: Dershowitz is asserting that the two cases are on equal footing and deserve to be treated equally. And just a week earlier on Twitter, Dershowitz had made exactly the comparison that he later denied:

Facts matter. Opponents of the Trump investigation can’t simply say “Well, what about Hillary?” without discussing the facts and allegations involved. The two cases are not at all the same. Based on what we know so far, a criminal investigation into the dossier would be unjustified. As I explained in the post, the same is definitely not true when it comes to Russia and the Trump campaign.

The “Criminalization of Politics” Claim

The latest round took place last week in the pages of the New York Times and the Washington Post. In a Times op-ed titled “When Politics is Criminalized,” Dershowitz repeated many of the same arguments he has been making about the Mueller investigation, as well as his broader argument about political prosecutions in general. He claimed the Mueller investigation is simply one example of what he sees as an increasing practice of using criminal law to attack political enemies. He also repeats some of the arguments discussed and refuted above, about how the president could not be charged with obstruction and how calls for investigations of Hillary Clinton are essentially on the same footing as calls to investigate the Trump campaign.

The Washington Post published my response,  “No, the Mueller probe isn’t politically motivated“.   As I noted in that piece, Dershowitz’s underlying concern is valid, but the facts in this case and in the other examples that he cites simply don’t back him up. It’s true that criminal law should never be used for political purposes, but there’s no evidence that Mueller’s investigation suffers from that flaw.

The Latest Tweet from the President

The arguments about obstruction of justice were fueled this past weekend by the President’s Tweet in the wake of Michael Flynn’s guilty plea, in which he appeared to admit that he knew Flynn had lied to the FBI at the time when former FBI director James Comey says Trump asked him to back off the Flynn investigation. This led to a flurry of activity over the weekend. Critics claimed the Tweet provided solid evidence that the President obstructed justice when he asked Comey to drop the investigation of Flynn. Trump’s attorney John Dowd responded by claiming that he drafted the Tweet, not the president, and in any event that the president can’t be charged with obstruction of justice. 

Dershowitz was back as well, this time on Fox News, claiming the president is immune from obstruction – which led to this presidential Tweet:

No doubt these debates are going to continue and only become more heated as Mueller appears to close in on the president’s inner circle.

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