Barry Bonds was convicted of obstruction of justice for giving non-responsive answers to questions in a grand jury. As Judge Fletcher told the government in the oral argument in the 9th Circuit en banc challenge to his conviction, “I find your reading of the [obstruction of justice] statute absolutely alarming.” And for good reason — Judge Fletcher thinks that the government’s interpretation of obstruction of justice would mean that most civil lawyers are felons.
There are a lot of ways to violate federal laws that are related to obstruction of justice. You can lie to a federal agent who is coming to your house to interview you and violate 18 U.S.C. § 1001. You can commit perjury under 18 U.S.C. § 1621. And there are a host of other false statement statutes specific to other regulatory schemes (like false statements in connection with a tax filing, or a health care request for payment, etc.).
All of those laws, though, require that the person who is being prosecuted make a false statement.
Obstruction of justice is different. Instead of having concrete elements like “making a false statement”, obstruction of justice criminalizes willfully “obstruct[ing], imped[ing], or interfer[ing] with” whatever is being allegedly obstructed.
Here, Barry Bonds didn’t make a false statement. Instead, he gave an answer that was non-responsive. The government’s theory was that Barry Bonds didn’t give a responsive answer to a question in order to throw the government off (because, apparently, having the temerity to force an AUSA to listen to questions in a grand jury and ask a follow-up question is the kind of thing that ought to brand you a felon).
And that was “obstructing” the federal law enforcement apparatus.
There are a lot of things wrong with this prosecution. The one I want to focus on is the lengths the federal government will go to in order to protect AUSAs from having to do the same basic work that the rest of the legal community does routinely.
Last night, I attended a panel discussion at the 92nd Street Y featuring some very interesting individuals — including two lawyers. Thane Rosenbaum, the law professor and novelist, moderated a panel featuring former federal prosecutor Daniel Alonso, CNBC anchor Kelly Evans, and the “star” of the evening, Jordan Belfort — the disgraced stockbroker turned convicted felon turned bestselling author who served as the inspiration for Martin Scorsese’s 2013 film, The Wolf of Wall Street.
So what was the evening like? One attendee described it as “cringeworthy” — and I have to agree….
One often hears lawyers, especially at large firms, say something like “if I were a client, I couldn’t afford to hire me.”
The reason is obvious; billable hour rates are high and quality legal work, especially in a tricky area, takes time. Legal fees for middle-class or even upper-middle-class people can easily outpace a client’s ability to pay.
This is a problem in a lot of areas of law, from divorce to employment to routine consumer litigation. In some cases, fee shifting or contingency fees can help make hiring a lawyer more affordable. Still, even for lawyers who aren’t in big firms, clients are often unable to afford the lawyer they need.
Federal employees caught up in Congressional or inspector general investigations are another sad example; they can be hit with massive fees for something they have no control over.
As you’ve likely heard, there’s a Southern governor on trial for public corruption.
Shockingly, he’s not from Louisiana.
Former Virginia governor Bob McDonnell and his wife Maureen are on trial for, in essence, taking gifts from a guy named Johnnie Williams in exchange for doing things in the governor’s mansion (there are also some bank fraud charges and obstruction charges, but frankly, in comparison to the public corruption stuff the bank fraud is terribly dreary). After five weeks of trial and testimony, the case just went to the jury.
There has been a lot of commentary on the McDonnell trial (see, e.g., here, here, here, and here). One thing that hasn’t been talked about during the trial much: the defense severance motion that was denied at the very start.
And, as the trial has continued, that motion looks more and more important in hindsight….
If you’re going to steal millions from clients, at least make a good story out of it. Like blowing hefty sums on luxurious private air travel and wiring millions to casinos to cover gambling debts. Make it a rock star story right up until the very end.
Of course, it’s hard to imagine a lawyer successfully stealing millions. There are just too many checks in place to let it get that far. It felt like the only thing anyone needed to know to pass professional responsibility was to respect escrow accounts. You just make sure all the money you’re watching for your customers, consumers, lenders and employees is always accounted for. There’s inevitably more than one person handling the bank statements. It’s just hard to lose millions.
Nonetheless, one law firm with offices around the country thinks it’s discovered more than a minor problem in its accounts. In fact, it just filed a lawsuit against its former managing partner, alleging that he siphoned off a cool $30 million from client escrow accounts to live like a proverbial rock star….
Mindy Kaling and Preet Bharara at the Harvard Law School commencement.
The legal world doesn’t have too many “crossover celebrities,” figures who are big enough to be known outside our little corner of the world. We can all think of a few — Alan Dershowitz, Judge Judy, Supreme Court justices (arguably) — and not all of them are awesome (cough cough, Nancy Grace).
One of the youngest crossover celebrities is Preet Bharara, U.S. Attorney for the Southern District of New York. He’s been on the cover of Time magazine. He’s attended the Vanity Fair Oscars party.
Bharara is best known for his crackdown on Wall Street abuses and insider trading, but he’s a fun person underneath the prosecutor’s dark suit. Yesterday the New York Times ran an interesting profile of Bharara. Here are some highlights….
On Friday, special prosecutor Michael McCrum secured an indictment of Texas Governor Rick Perry. Perry, whose 2012 campaign is the first abortion Republicans have celebrated in years, is accused of coercion and abusing his office when he threatened to, and subsequently did, revoke funding for the Public Integrity Unit. That unit is charged with rooting out government corruption, and Perry took away its budget because the district attorney in charge of the unit — a Texas Democrat — was convicted of drunk driving and wouldn’t step down. Perry thought she should leave her post because she had lost the public trust over her conviction and not at all because she had been investigating possible corruption related to Perry’s signature project, the Cancer Prevention and Research Institute of Texas.
If you don’t think this is shady and improper, you’re a hyperpartisan for Perry. Entirely obliterating the agency charged with protecting citizens from official corruption because you don’t like the person in charge — for whatever reason — smacks of overreach. Imagine Congress and the President zero-funding the Supreme Court because they wanted one justice to resign. It’s just cockroach hunting with a bazooka.
Still, is it criminal as opposed to just shady? That’s a different question. Law professors weigh in….
When I was in law school, I went to hear Chief Justice Rehnquist speak. He told a story of going to visit Finland, and meeting with their attorney general. The Chief Justice asked the attorney general whether the highest court in Finland could overturn an act of its parliament. She didn’t know the answer. She huddled with her staff for a few minutes, then told Rehnquist that they think their Supreme Court could, but the issue had never come up, because their high court had never tried.
Rehnquist told the audience that he thought this was just straight up freaky (not his words). And then began to wonder why he thought this was so strange. He concluded that there is something in the American psyche — especially in the part of the American psyche that lawyers seem to embrace — that feels compelled to push power to its outer limits.
This is a dangerous thing to think about if you think that our law enforcement community — from the lowly beat cops to an FBI forensic accountant — shares this disposition.
Friends and family confirmed that [the frustrated insecure bully], an unpredictable, petty individual who frequently loses his temper when he feels he is being threatened or disrespected, has in recent months been inquiring into joining the ranks of the Raleigh Police Department. In this role, the man with a massive chip on his shoulder and no visible sense of empathy would be tasked with peacefully resolving disputes and evenhandedly administering justice to members of the community over whom he would have official power.
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