Sidebars Five Year Anniversary: The Top Ten Posts

Five years ago today I published my first post on this blog, a piece about a New York Times reporter at risk of being held in contempt for refusing to identify a source. Sidebars has grown a lot since then and has been fortunate enough to gain some accolades along the way (including my favorite shout-out from the D.C. Bar Magazine: “Come for the ongoing smackdown with Alan Dershowitz, stay for the trenchant commentary on the rule of law”) . To mark this anniversary,  I thought it would be fun to take a look back at the Sidebars “Top Ten”: my ten most-read posts over the past five years.

During those five years I’ve written more than 120 posts on Sidebars, an average of about one every two weeks. My pace of posting on the blog has definitely slowed down over the past couple of years as I’ve been writing more as a contributing columnist for the Washington Post and working on an upcoming video lecture course on white collar crime for The Great Courses. But the blog continues to be a great vehicle for deeper dives on selected topics; at about 2500-3000 words, my average post on Sidebars is more than three times the length of a typical op-ed in the Post. Brevity may be the soul of wit, but it’s rarely a lawyer’s strong suit — and some of these subjects really do call for a more in-depth analysis.

As readers know, my focus on Sidebars is on white collar crime. The investigation by special counsel Robert Mueller was the most consequential white collar case in a generation, so it’s probably not surprising that a majority of my top posts related to that investigation. Other major white collar cases, such as the prosecutions of Virginia governor Bob McDonnell and New Jersey Senator Bob Menendez, also have been bountiful sources of material. But whatever else you might think of them, you can’t top the Mueller investigation and the Trump administration when it comes to providing material for commentators on white collar crime. These results definitely reflect that.

And with that – here are the Sidebars Top Ten.

#10: Fake News and the National Review

Andrew McCarthy of the National Review is a former federal prosecutor for the Southern District of New York. As a columnist, he’s been a vociferous critic of the Mueller probe and booster of president Trump. During the Mueller investigation he regularly wrote columns attacking the investigation that were so factually and legally off-base that it’s hard to believe he was once an Assistant U.S. Attorney. Now that Mueller is done, McCarthy is still at it, peddling pro-Trump conspiracy theories about Ukrainian interference with the election and the “Deep State” efforts to take down the president. In what became my tenth most popular post, I collected a number of the arguments from McCarthy’s columns about Mueller and showed how he was misleading his readers. I sent the post to the National Review, and I along with some other law professors on Twitter encouraged McCarthy and the National Review to respond, but they never did.

10) What Andrew McCarthy Gets Wrong about the Mueller Investigation – 3/22/18


#9: When is Lying a Federal Crime?

The False Statements statute, 18 U.S.C. 1001, is a workhorse in the white collar prosecutor’s stable. It broadly criminalizes material false statements made to the federal government, even if not under oath. A number of witnesses in the Mueller investigation, including Michael Flynn and George Papadopoulos, pleaded guilty to false statements for lying to the FBI during interviews. The statute applies to written false statements as well, and early in the Mueller investigation there was speculation that individuals including Jared Kushner and Jeff Sessions might be liable for concealing various foreign contacts when they filled out paperwork to apply for a security clearance. In this post I explained the scope and requirements of the false statements statute and how it potentially could apply in such a case.

9) Lying on a Security Clearance Form: The Crime of False Statements – 6/5/17

#8: The Dershowitz “Smackdown”

Harvard Law Professor Alan Dershowitz was a vocal critic of the Mueller investigation. For two years Professor Dershowitz was all over conservative media attacking the investigation and making sweeping arguments about executive power and presidential immunity from prosecution that frankly seemed increasingly unhinged.  I’ve written several different posts and articles rebutting Dershowitz’s claims.  The most popular blog post has been this one from June 2017,  taking on Dersh’s argument that the president can’t be charged with obstruction of justice because, well, he’s the president.

8) Trump and Obstruction: What Alan Dershowitz Gets Wrong – 6/19/17

#7: A RICO Review

The Mueller probe offered me several opportunities to write posts explaining the elements of leading white collar statutes and then illustrating them by discussing their potential application to the Mueller investigation. The False Statements post, number nine above, was one such example. Another one ended up as number seven on the list. It provides a primer on the Racketeer Influenced and Corrupt Organizations act (RICO) and then discusses how it potentially could apply to the matters that Mueller was investigating. Mueller, of course, did not end up pursing RICO charges against anyone, Russian or American. But we may not have heard the last of RICO and president Trump. Prosecutors in the Southern District of New York may be looking at possible RICO charges involving the Trump Organization. The SDNY is notoriously fond of RICO, and regardless of whether the other elements of the crime could be established, the Trump Organization is a classic RICO “enterprise.”

7) RICO and the Mueller Investigation – 1/16/18

#6: Fraud and the Sentencing Guidelines

My sixth most popular post is completely unrelated to Mueller. In 2015 the Federal Sentencing Commission revised the guideline used to calculate the sentence in federal fraud cases. That guideline is key to white collar practice because so many white collar cases involve fraud charges. The old guideline had come under a lot of criticism for the way it calculated white collar sentences, and reform was thought to be long overdue. In this post I discussed the changes made by the new fraud guideline and explained why those amendments really amounted to little more than tinkering around the edges.

6) The New Sentencing Guideline for Fraud Cases – 5/4/2015

#5: What’s This Blog About, Anyway?

I’m particularly pleased this post made it into the Top Ten. It deals with what seems like it should be a fairly simple and foundational question: what is white collar crime? If you look in the federal criminal code you won’t find a definition, or a section titled “white collar offenses.” In fact, there is no universally accepted definition of white collar crime, even though it clearly is recognized as a distinct practice area — not to mention as the subject of my law school class. This post, way back from only the second month of the blog, is my take on the definition and characteristics of white collar crime. One key takeaway?   — the name itself is something of a misnomer.

5) The Definition of White Collar Crime – 11/26/14


#4: Who Isn’t Guilty of That?

I wrote this post on Contempt of Congress back during the Obama administration, when the Republican Congress held the IRS Commissioner, Lois Lerner, in contempt. Prosecutors declined to pursue the case and that was the end of it, and the post lay largely dormant for a couple of years. But recently there has been renewed interest in Congress’s contempt power, in light of the apparent stonewalling of Congressional investigations by the Trump administration. And that has led to a lot of renewed interest in this post, catapulting it to number four on the list. Will Congress dust off its inherent contempt power and start locking up recalcitrant witnesses in that  rumored jail cell in the basement of the Capitol? We may soon see.

4) Contempt of Congress – 4/20/15

#3: Bribery and the Emoluments Clause

Since before president Trump even took office, there has been controversy about his extensive business holdings and whether he might profit from the presidency in violation of the Constitution’s emoluments clause. This relatively obscure Constitutional prohibition is now the subject of several ongoing lawsuits. My third most popular post, written after the election but before Trump was inaugurated, explained the foreign emoluments clause, how it relates to federal bribery law, and whether Trump was at risk of violating it.

3) The Emoluments Clause, Bribery, and President Trump – 11/29/16

#2: It’s Conspiracy, Not Collusion

In the early days of the Mueller investigation, a frequent refrain from the president and his supporters was that collusion with the Russians, even if it did take place, would not be a crime. I wrote this post early on in the Mueller investigation. It explained how, for criminal law purposes, the proper term is conspiracy, not collusion. It also described how allegations that the Trump campaign colluded with the Russians to influence the election, if true, could in fact constitute a conspiracy to defraud the United States — even if the conduct did not directly violate another criminal statute.

2) Yes, Colluding with Russians to Interfere with the Election is a Crime – 7/5/17

#1: “Collusion” is a Crime

My most popular post of all time — by quite a large margin — also dealt with the question of “collusion.” In February 2018 Mueller indicted thirteen Russian individuals and three Russian companies for engaging in a social media campaign to influence the 2016 presidential election. The lead charge in that indictment was a conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful government functions of the Federal Election Commission, State Department, and Justice Department. This was the same legal theory I had outlined about six months earlier in my second most popular post, described above. One of the indicted Russian companies appeared in court and challenged that conspiracy charge. In November 2018 the federal judge in the case denied that challenge and upheld the conspiracy theory that effectively can make “collusion” a crime. My post describing that judge’s ruling, and the possible implications for the Trump campaign, because my most popular post of all time.

1) Judge in Mueller Case Upholds Legal Theory that Makes Collusion a Crime – 11/23/18

Thanks for indulging me in this look back.  Whatever the next years bring, I suspect there will continue to be no shortage of material. Thank you for reading!

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The Stone Indictment and the Future of the Mueller Investigation

Longtime Trump confidant and political advisor Roger Stone was arrested on January 25 on a seven-count indictment. Special Counsel Robert Mueller has charged Stone with one count of obstruction of justice, five counts of lying to Congress, and one count of witness tampering.  Stone was not, however, charged any kind of conspiracy – or “collusion” — with the Russians seeking to influence the 2016 presidential election. And although conspiracy charges may still be coming, the Stone indictment makes it seem less likely we will ultimately see members of the Trump campaign criminally charged with working with the Russians to help Trump win the presidency.

Roger Stone

Stone’s Indictment

The charges against Stone primarily involve his efforts to downplay and conceal his connections to Wikileaks and its founder, Julian Assange. During the 2016 presidential campaign, Wikileaks released tens of thousands of emails that Russian hackers had stolen from the Democratic National Committee and Hillary Clinton’s campaign chairman. These releases were timed to damage Clinton and boost the Trump campaign. For example, the first release of stolen emails from the Clinton campaign took place on October 7, 2016, just hours after the story broke about the Access Hollywood tape that revealed president Trump bragging about sexually assaulting women.

In the weeks leading up to the release of the emails, Stone made repeated public and private statements indicating he was in contact with Assange and had advance information about what the emails contained and when they would be released. According to the indictment, this included multiple communications between Stone and members of the Trump campaign. The indictment alleges that in July 2016, “a senior Trump campaign official was directed to contact Stone” to find out what damaging information Wikileaks had on Clinton and when it would be released. (The use of the passive voice conceals who did the directing, but there has been much speculation that it may have been Trump himself.)

During the months leading up to the election Stone was actively working to gather information about the upcoming document releases and share it with the campaign. He repeatedly tried to contact Assange through two different intermediaries. When the first batch of Clinton emails was released on October 7, an associate of a senior member of the Trump campaign allegedly sent Stone a text message that said, “well done.”

The criminal charges are based not on Stone’s contacts with Wikileaks or the campaign but primarily on his false testimony about them to the House Permanent Select Committee on Intelligence. The Committee was investigating the Russian interference with the presidential campaign. Stone testified before the Committee on September 26, 2017. The indictment alleges that Stone repeatedly lied to the Committee about the extent of his attempted contacts with Wikileaks, his communications with the Trump campaign, and whether he had any emails, text messages, or other records relevant to the Committee’s inquiry.

Count One charges obstruction of justice for Stone’s conduct from May to December 2017, attempting to obstruct the Congressional investigation by providing false testimony, submitting a false letter, and trying to persuade another witness not to testify. Counts Two through Six are five different charges of false statements for allegedly lying to Congress during his testimony. Count Seven charges witness tampering (another form of obstruction of justice) for Stone’s alleged efforts to persuade another person (referred to as “Person 2” in the indictment but known to be radio personality Randy Credico) to withhold information from the Committee.

Stone’s Defense

Stone has denied the charges and says he will go to trial. He claims any misstatements he may have made were innocent mistakes and in any event were not material to the proceedings.

Despite Stone’s bluster, he does not appear to have a viable defense. Prosecutors hate to call anything a slam-dunk because with a jury anything can happen, but this is about as close as it gets. Stone’s statements to Congress are contradicted by his own emails and text messages. The government does not have to rely on the credibility of other witnesses, they can use Stone’s own words against him. To take just one example, at one point during his Congressional testimony Stone denied ever having any email or text message communications with Credico. According to the indictment, that very same day Stone and Credico had exchanged over thirty text messages.

Stone’s claim of a lack of materiality is not going to fly either. Statements are material if they merely have the potential to influence the party to which they are made, in this case, Congress. Stone’s alleged lies were directly relevant to the subject matter of the Committee’s investigation. If Stone had told the truth, the Committee could have followed up with further investigation and additional subpoenas to explore any connections between Wikileaks’s actions and the Trump campaign. His lies prevented that from happening.

In a normal case, you would expect this to be resolved by a guilty plea. Stone is a pretty unpredictable character and loves to be in the spotlight, so it’s hard to say what he will do. But whether by a plea or after trial, he is very likely to be convicted.

Where is the Conspiracy Charge?

There are two primary tracks in the Mueller investigation. One focuses on the Russian efforts to interfere with the 2016 election. Mueller has already indicted more than two dozen Russian individuals and companies for computer hacking to steal Democratic emails and engaging in fake social media campaigns to influence the election.

The second track involves cover-up crimes, charges of false statements, perjury, or obstruction of justice against those who lied to Congress or to Mueller’s investigators about their various contacts with Russian individuals during the campaign. The cases against Michael Flynn and Michael Cohen, for example, fall into this category. Stone is likewise charged with a series of cover-up crimes for trying to conceal the full extent of his contacts with Wikileaks and the campaign.

The great unanswered question is whether Mueller’s investigation is ever going to connect these two tracks. To date, no Americans have been charged with “colluding” – or, in legal terms, conspiring – with the Russians. And Stone’s indictment does not really suggest any such conspiracy. It depicts the Trump campaign as trying to use Stone to gather information about what Wikileaks was already planning. That alone would not implicate members of the campaign in a conspiracy. Even assuming releasing the emails was a crime (see below), trying to gather information about someone else’s planned criminal activity, even if that crime might benefit you, does not make you a co-conspirator.

The indictment does describe a couple of instances where Stone tried to gather specific information from Wikileaks, such as Clinton emails related to a specific time while she was serving as Secretary of State. But it doesn’t allege those efforts were successful, or that there was actual coordination between Stone, Wikileaks, and the campaign. After the emails were released it appears Stone did take credit for at least predicting the timing, but it’s not clear whether he was actually involved or was simply trying to inflate his own importance after the fact.

The indictment certainly suggests the possibility that Stone, Wikileaks, and the campaign were coordinating their efforts around the email releases. But it doesn’t directly allege such coordinated action, and certainly doesn’t charge it as a crime. If Mueller had a legal theory, and evidence to back it up, that made Stone’s contacts with Wikileaks a crime, it seems like he would have charged it in this indictment.

One possibility is that Mueller has determined the release of documents by Wikileaks was not actually criminal. The hacking of the emails itself was of course a crime, and Mueller has already indicted the Russians involved in that hacking. But receiving the emails and then publishing them is a gray area. Typically U.S. prosecutors would be reluctant to prosecute the publication of such information due to First Amendment concerns. It starts to sound an awful lot like prosecuting the Washington Post for publishing the Pentagon Papers. There are theories floating around that would make publishing the emails an illegal campaign contribution or a violation of laws involving disclosure of illegally intercepted electronic communications, but there is also a lot of concern about the precedent that might be set by prosecuting Wikileaks for publishing the material.

Why Indict Stone Now?

When trying to read the tea leaves concerning what Mueller is doing and whether there was a grand conspiracy, the most interesting question to me is: why indict Stone now? If there were a larger conspiracy and Stone were a part of it, the most common reason to carve him out and indict him now would be to try to flip him and get him to cooperate. But I find it a little hard to believe that Mueller wants to turn someone as flaky as Stone into his star witness. It’s not impossible, of course – prosecutors have flipped mobsters who have killed dozens of people and used them to testify at trial against their bosses. But someone as erratic as Stone would have terrible credibility problems on the stand.

If there were evidence that Stone was part of a larger conspiracy with the Russians, then I don’t see why you indict him now without including those conspiracy charges. I’ve seen theories suggesting Mueller might hold off on conspiracy charges to limit the discovery that Stone would be entitled to, or to leave open the possibility of state charges in the event that Trump were to pardon Stone. Those are possible explanations, but then I come back to: why charge Stone at all right now, instead of waiting until you are ready to charge the grand conspiracy? The only apparent reason would be to flip him, and as I said, that seems unlikely to me. And if after this much time Mueller needs to flip someone like Stone in order to make the grand conspiracy charge stick, that suggests the evidence of such a conspiracy is flimsy indeed.

Another possibility, of course, is that Mueller has concluded evidence of a grand conspiracy simply is not there. Arguably the Stone indictment itself supports this conclusion. If the Trump campaign really was engaged in a conspiracy with the Russians to help them win the election, why would they be relying on Roger Stone to find out what the Russians, via Wikileaks, were planning? It seems if there were a true conspiracy they would have better channels of communication.

As I’ve noted before, I think there’s a good chance Mueller ends up concluding that the various contacts with Russians by those in the Trump campaign were naïve, reckless, stupid, sleazy, and any number of other things, but not criminal. His investigation would then conclude with Russians charged with trying to interfere with the election and various people close to Trump charged with trying to cover up their Russian contacts — not because they were criminal but because they would have been extremely damaging politically. The nature and timing of the Stone indictment leaves me feeling that this outcome is now even more likely.

Is Mueller’s Investigation Almost Over?

Another possible explanation for bringing the Stone indictment now is that Mueller is wrapping up his investigation and is clearing his plate of the last few cases. There are two local D.C. Assistant U.S. Attorneys assigned to the Stone prosecution, which has led to speculation that Mueller may be preparing to hand off that case to the local prosecutors as he winds down his investigation. There was also recent news that at least one prosecutor on Mueller’s team has returned back to his old job at Main Justice, which could suggest Mueller is winding down.

This speculation was dramatically fueled by comments made by Acting Attorney General Matt Whitaker at a press conference on January 28. When asked about his current views of the Mueller probe, Whitaker said he had been fully briefed and looked forward to Mueller delivering a final report, and concluded: “Right now, you know, the investigation is, I think, close to being completed.”

It’s hard to know what to make of Whitaker’s comments. On the one hand, he certainly should be in a position to know whether Mueller’s probe is in fact near the end, since Mueller reports to him. His statement therefore has to be taken more seriously than the claims by Rudy Giuliani and other Trump lawyers, who have been saying for more than a year that Mueller was going to be wrapping up any day now.

But many outward signs don’t point to an investigation that is close to shutting down. For example:

  • When Stone was arrested, Mueller’s investigators executed three new search warrants at his homes. You probably don’t do that if you think you’re done investigating. Processing all that information, and then following up on any leads, will take some time.
  • Mueller is involved in at least two court battles over grand jury subpoenas he has issued (one in the Supreme Court), and those have not yet been resolved. Even if he wins, it’s then going to take some time to get the actual evidence into the grand jury and follow up on it.
  • We know Mueller has ongoing cooperating witnesses such as former Trump assistant campaign manager Rick Gates, whose sentencing was recently postponed again because he continues to cooperate in “several ongoing investigations.” Michael Cohen reportedly met with prosecutors for seventy hours, and we have not yet really seen the fruits of that cooperation either.
  • Charging documents and pleadings in cases filed by Mueller contain numerous references to uncharged individuals and ongoing investigations.
  • The House Intelligence Committee just sent dozens of transcripts of witness interviews to Mueller, so that he can examine whether other witnesses, like Stone, lied to the Committee.
  • Mueller recently extended the term of the grand jury he is using for six months. That doesn’t mean he will necessarily use it for that full time, of course, but it is one more sign that he isn’t ready to just sit down and write a report.

I think reaction to Whitaker’s statement has probably been overblown. It was not a prepared statement but an off-the-cuff response to a question. He hedged his answer  — “I think,”  – and appeared extremely nervous. This may just be another case of a Trump loyalist knowing that the president will probably see him on television and saying what he knows Trump will want to hear.

Investigations like this can take a long time. Mueller’s probe is still only middle-aged as these cases go. He could be close to wrapping up, but I don’t see much evidence of that. Until I hear it from Mueller himself, I’m not inclined to believe it.

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