White-Collar Crime

The Problem With Compelling Lawyers To Give 'Direct Evidence' Against Their Clients

Will this decision have a chilling effect on the practice?

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Paul Manafort (Photo by Elsa/Getty Images)

For white-collar practitioners, the most blockbuster announcement this week was not that Webster’s dad is cooperating or that Paul Manafort and Rick Gates have been indicted (although the dizzying speed with which those indictments arrived is striking). It was that Mr. Manafort and Mr. Gates’s campaign-finance lawyer, Akin Gump partner Melissa Laurenza, was compelled by Judge Beryl Howell of the D.C. District Court to testify about submissions she made to the government on their behalf.

Before proceeding further, I will ask you, dear readers, to take a moment to nod your head toward Ms. Laurenza, who has just lived through every lawyer’s worst nightmare. You work hard at your job, you do your best to provide legal advice for your clients, and then the government compels you to tell them about that advice — and directly uses what you said to indict them. For people who routinely cheer indictments (“Yay, they’re catching bad guys!”), it’s easy to not care too much about that, or to say that lawyers who defend clients they perceive as unsavory shouldn’t get our sympathy. But our legal system is premised on the idea that everyone deserves a good lawyer who will fight for them and put their best case forward. So I, for one, want to extend my sincere sympathies to Ms. Laurenza, and I hope that the next time her name appears in the paper, it’s as a subject-matter expert, not as a witness.

Now, on to the opinion itself. Legal ethics experts who have been doing this for longer than I have have already opined at length on it, and I’m certainly no expert in that area. But there were two things that struck me as I read it last night.

First, Ms. Laurenza’s lawyers don’t appear to have appealed Judge Howell’s decision. While we don’t know all (or even most) of the facts behind that decision, it strikes me as an unusual one that I wish we knew more about.

It’s entirely possible that some sort of compromise was reached with Mr. Mueller’s office, but I find that somewhat hard to imagine. Mr. Mueller’s team seems to have gotten more or less exactly what they wanted from Judge Howell, so it’s not clear that they would have any incentive to negotiate further. Again, I’m certainly no expert in this matter, but it still surprises me that Ms. Laurenza’s lawyers didn’t fight this a little further, a la Judith Miller.

The second thing that struck me as I read the opinion was the cursory analysis that Judge Howell gave to the government’s need for the testimony.

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Mr. Mueller’s team wants to prove that Ms. Laurenza’s submissions on behalf of Mr. Manafort and Mr. Wright were false and that Mr. Manafort and Mr. Wright knew that they were false. In order to prove that, they need to prove two things — one, that the information in the statements came from Mr. Manafort and Mr. Wright, and two, that the statements were false.

Their best defense, of course, is that either or both of them didn’t know what she wrote and therefore that what she wrote can’t be attributed to them.

And that is basically what Judge Howell said in finding that the government could compel Ms. Laurenza to state who gave her that information (emphasis mine):

Target 2 disputes whether the SCO [Special Counsel’s Office] can demonstrate substantial need for the Witness’s testimony, asserting that the SCO already has the FARA Submissions, which purported to be written on the Targets’ behalves, as well as evidence of inconsistencies between the FARA Submissions’ representations and the Targets’ behavior, and thus that the SCO seeks merely “corroborative evidence.” The Court disagrees. The Witness’s testimony would not be merely corroborative because the SCO does not possess direct evidence that the targets knew of or approved the FARA Submissions’ contents before the Witness disclosed them to DOJ, nor can the SCO plausibly obtain such evidence from sources other than the Witness or the Targets themselves. For these reasons, the work-product privilege does not prevent the SCO from compelling the Witness’s testimony.

The key phrase there is “direct evidence.” It’s true that asking Ms. Laurenza what her clients told her may be the only way to get direct evidence of that, but the government isn’t always entitled to direct evidence. In many cases, it has to build a case entirely on circumstantial evidence. I’m surprised that Judge Howell didn’t discuss that more.

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Think about what the circumstantial evidence would have looked like: Ms. Laurenza made three submissions to the government on behalf of a very sophisticated client, containing information that she presumably did not pull out of thin air. The government, as the opinion suggests, has gathered evidence suggesting that these assertions were false. In court, the government could therefore argue that it is reasonable to infer that Ms. Laurenza obtained that information from Mr. Manafort and Mr. Wright.

To be sure, that’s not direct evidence — it’s circumstantial evidence. But as just about every jury instruction book in the country will tell you, if you go to bed and it’s not snowing, and you wake up and there’s snow on the ground, you have circumstantial evidence that it snowed last night. It may not be direct evidence — that would be watching the snow fall with your own eyes — but it’s still evidence. That same logic seems to apply with equal force here.

Moreover, keep in mind that whenever you’re applying the crime-fraud exception, you’re balancing two very significant things — on the one hand, allowing the government to obtain evidence necessary for criminal prosecution, and on the other hand, protecting the attorney-client and work‑product privileges, which are crucially important to a defense lawyer’s work. The government has to strike this balance all the time.

Take, for example, perjury prosecutions. Anyone who has done even a little bit of criminal work will tell you that witnesses lie on the stand, sometimes in amazingly flagrant ways, all the time. But perjury prosecutions are still rare. That is because no matter how good a perjury case the government thinks it has, prosecuting every witness that the government thought testified falsely would have an enormous chilling effect on the criminal justice system. The government knows this, so it tends to be very careful with how it brings perjury prosecutions. Better that 10 liars go free than 90 truth-tellers be chilled.

I wonder if a similar argument would apply here. While it’s understandable that the government wanted to get this evidence directly from Ms. Laurenza, there may be a severe social and legal cost to compelling it in the way that the court did here. Precedents matter.

Although there is still much we don’t know about these cases, an opinion holding that the government is entitled to direct evidence, in a case where there seemed to be plenty of circumstantial evidence for it to work with, is a frightening thing indeed for criminal-defense lawyers and the clients who rely on them.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is [email protected].

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