On Friday, October 28, 2016, F.B.I. Director James B. Comey, sent members of Congress a letter that his agency was looking into a potential new batch of messages from Hillary Clinton’s private email server. On October 30, nearly 100 former federal prosecutors and high-ranking officials of the Department of Justice published an Open Letter From Former Federal Prosecutors and High-Ranking Officials of the U.S. Department of justice: 20161030_doj-letter-with-signatories.
As former federal prosecutors and high-ranking officials of the U.S. Department of Justice, we know that the impartiality and nonpartisanship of the United States justice system makes it exceptional throughout the world. To maintain fairness and neutrality, federal law enforcement officials must exercise discipline whenever they make public statements in connection with an ongoing investigation. Often, evidence uncovered during the course of an investigative inquiry is incomplete, misleading or even incorrect, and releasing such information before all of the facts are known and tested in a court of law can unfairly prejudice individuals and undermine the public’s faith in the integrity of our legal process.
For this reason, Justice Department officials are instructed to refrain from commenting publicly on the existence, let alone the substance, of pending investigative matters, except in exceptional circumstances and with explicit approval from the Department of Justice officials responsible for ultimate supervision of the matter. They are also instructed to exercise heightened restraint near the time of a primary or general election because, as official guidance from the Department states, public comment on a pending investigative matter may affect the electoral process and create the appearance of political interference in the fair administration of justice.
It is out of our respect for such settled tenets of the United States Department of Justice that we are moved to express our concern with the recent letter issued by FBI Director James Comey to eight Congressional Committees. Many of us have worked with Director Comey; all of us respect him. But his unprecedented decision to publicly comment on evidence in what may be an ongoing inquiry just eleven days before a presidential election leaves us both astonished and perplexed. We cannot recall a prior instance where a senior Justice Department official- Republican or Democrat-has, on the eve of a major election, issued a public statement where the mere disclosure of information may impact the election’s outcome, yet the official acknowledges the information to be examined may not be significant or new.
Director Comey’s letter is inconsistent with prevailing Department policy, and it breaks with longstanding practices followed by officials of both parties during past elections. Moreover, setting aside whether Director Comey’s original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary. For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly- discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even “whether or not [the] material may be significant.”
Perhaps most troubling to us is the precedent set by this departure from the Department’s widely- respected, non-partisan traditions. The admonitions that warn officials against making public
statements during election periods have helped to maintain the independence and integrity of both the Department’s important work and public confidence in the hardworking men and women who conduct themselves in a nonpartisan manner.
We believe that adherence to longstanding Justice Department guidelines is the best practice when considering public statements on investigative matters. We do not question Director Comey’s motives. However, the fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly-discovered material just days before a national election. For this reason, we believe the American people deserve all the facts, and fairness dictates releasing information that provides a full and complete picture regarding the material at issue.
Former Attorney General Eric H. Holder led the list of signatories, which also included 15 NAFUSA members: James Cole, Larry Thompson, Wayne Budd, Lourdes Baird, Paul Coggins, Jenny Durkan, Melinda Haas, Tim Heaphy, Scott Lassar, Mike McKay, Neil MacBride, Bill Nettles, Tim Purdon, Don Stern, and Anne Tompkins.
In a related development, The New York Times Sunday, October 30, quoted NAFUSA member George Terwilliger,
“There’s a longstanding policy of not doing anything that could influence an election,” said George J. Terwilliger III, a deputy attorney general under President George Bush. “Those guidelines exist for a reason. Sometimes, that makes for hard decisions. But bypassing them has consequences.”
He added, “There’s a difference between being independent and flying solo.”
NAFUSA Past President Margaret Currin was presented with the Order of the Long Leaf Pine at Campbell University Law School on October 15, 2016, during the Law School’s 40th Anniversary Celebration. The honor, among the most prestigious presented in the State of North Carolina, was signed by Governor Pat McCrory.
Currin served as the United States Attorney for the Eastern District of North Carolina (1988-1993). Currin was the first student to matriculate into Campbell University’s brand new law school in the fall of 1976, graduating second in her class, cum laude, 1979. After law school, she served as a legistrative assistant and counsel to U.S. Senator John Tower. She returned to Campbell Law in 1981 as an assistant dean and associate professor. Following her time as U.S. Attorney, Currin returned to Campbell Law and remained until her retirement in May 2013.
On March 31, 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. Judge Karon Bowdre held that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims. Judge Bowdre struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.
On Monday, October 17, 2016, Selden and his team from Bradley, urged the Eleventh Circuit to preserve the AseraCare’s high-profile victory with its opening brief. As reported by Law360 on October 18, 2016:
Monday’s brief focused heavily on a pivotal ruling in which the judge limited the DOJ’s evidence in the trial’s first phase to expert testimony and patient records, which were meant to demonstrate objective falsity. On the eve of trial, the DOJ attempted to introduce more evidence, but the judge concluded that its attempt came too late.
According to AseraCare, the DOJ “severely limited its evidence” by not disclosing the evidence sooner, making the eventual grant of summary judgment “straightforward and inevitable.”
“Because of the government’s self-imposed limits on its evidence pertaining to the FCA’s falsity element, the government did not have sufficient evidence to create a jury question,” AseraCare wrote.
In its opening brief, the DOJ in August warned that health care providers could easily escape FCA liability under the district court’s reasoning simply by pointing to differences of opinion among doctors about appropriate treatment. But AseraCare pushed back on that assertion, arguing that its case only came down to differences of opinion because of the DOJ’s limited evidence.
“Although the district court made clear that, ‘without more,’ a difference of opinion among physicians would not be sufficient evidence of falsity, the government ignores the words ‘without more’ when it makes the specious argument that the district court’s holding would unduly impede the government’s ability to pursue fraud,” AseraCare wrote.
Terminal illness means that a patient is expected to have six months or less to live. Medicare patients who elect hospice care get treatment aimed at improving quality of life but also must give up Medicare coverage for potential lifesaving treatment.
In Monday’s brief, AseraCare also accused the DOJ of glossing over statutory language that says certifications of terminal illness should be based on physician judgment.
“The government completely ignores that Congress established a certifying physician’s clinical judgment as the sole criterion for a patient’s eligibility for the Medicare hospice benefit,” according to AseraCare.
The DOJ is also contending that the district judge conflated two required elements of FCA liability: a false claim and knowledge of falsity. Its reasoning was that differences of opinion are relevant only to knowledge of falsity — an element of FCA liability that was to be explored in a second trial phase that never took place.
But AseraCare on Monday said that the DOJ’s contention “misses the mark.” It argued that because evidence presented in the first trial phase was limited to objective falsity, the two elements therefore “could not have been conflated.”
On October 8, 2016, at the NAFUSA annual conference in San Diego, E. Bart Daniel (District of South Carolina, 1989-1992) was elected president of NAFUSA by acclamation.
Daniel served as United States Attorney from 1989 to 1992. While U.S. Attorney Bart was appointed to the Attorney General’s Advisory Committee. He also directed the investigation and prosecution of Operation Lost Trust, one of the nation’s largest and most successful public corruption prosecutions. It resulted in 27 convictions, including 17 members of the South Carolina General Assembly along with other public officials. Bart served as Lead Counsel in 6 of the 8 jury trials, all resulting in convictions. In 1991 Bart was awarded the Attorney General’s Flag Award – the highest award given to a U.S. Attorney.
Bart graduated from The Citadel and University of South Carolina School of Law. He served as an Assistant Attorney General in its White Collar Crime Unit from 1980 to 1982. He was then appointed as an Assistant U. S. Attorney, prosecuting white collar and False Claims Act cases for 4 years. Thereafter, Bart opened his law practice defending government investigations and False Claims Act cases before being appointed U.S. Attorney in 1989.
Bart has served as President of the Charleston County Bar, Chairman of the Salvation Army Advisory Board, and Chairman of the Finance Committee on the South Carolina Commission on Higher Education. He has at various times been appointed Special Counsel by the Governor, the South Carolina Securities Commission, and Lead Counsel by the South Carolina House of Representatives in a lengthy reapportionment trial before a three-judge federal panel.
Bart has authored numerous publications including Health Care Fraud and Collateral Consequences (2nd Edition), Federal and State Securities Enforcement, and Environmental Crimes and Corporate Liability (2nd Edition).
Since returning to private practice in 1992, Bart has primarily defended government investigations including alleged violations of the False Claims Act.
NAFUSA’s annual conference was held last week at the Hotel del Coronado in San Diego. Nearly 200 NAFUSA members, spouses, guests, sponsors and speakers enjoyed three days of beautiful weather and the ambience of one of the world’s great hotels.
At the opening reception on Thursday night, NAFUSA honored Deputy Solicitor General Michael Dreeben on his 100 cases argued on behalf of the Department of Justice before the United States Supreme Court. In the photo below, President Greg Vega presents Dreeben with a San Diego Padres jersey to mark his achievement.
On Friday afternoon, a tour and picnic lunch was held on the USS Midway, the famous aircraft carrier from WWII. During the lunch, President Vega welcomed Debby Margolis, wife of David Margolis, and Cheri Margolis, David and Debby’s daughter, who were the guests of NAFUSA for the entire conference. In the photo below, President Vega is presenting Debby with the American flag which was flown over the Department of Justice in David’s honor at the request of NAFUSA.
On Saturday morning, Vice President Doug Jones presented AUSA Adam Braverman, SDCAL, with this year’s J. Michael Bradford Award as the AUSA of the Year.
The conference closed on Saturday night, with the passing of the gavel from Greg Vega to Bart Daniel, the new president of NAFUSA. Bart announced that the 2017 conference will be held in Washington, DC at the Mayflower Hotel on October 17-21. New York Times Pulitizer Prize winning reporter Charlie Savage then delivered the keynote address.
Each year, NAFUSA recognizes an Assistant U.S. Attorney for outstanding performance through the J. Michael Bradford Memorial Award. The award is named after J. Michael Bradford, who served as a U.S. Attorney in the Eastern District of Texas from 1994 to 2001. Bradford, who died in 2003, had a distinguished career in public service, including successfully defending the government against lawsuits stemming from the 1993 siege of the Branch Davidian’s compound in Waco, Texas. NAFUSA annually solicits nominations from current U.S. Attorneys for the Bradford Award. Typically, the recipient has handled a significant investigation and prosecution or series of prosecutions that has had a significant impact and merits special recognition.
Once again, a number of exceptional nominations were made by U.S. Attorneys around the country. The Michael Bradford Award Committee was chaired by NAFUSA Vice President Doug Jones. Its members included Karen Hewitt, Hal Hardin, Richard Roper, and Neil MacBride. This year, the Board voted to give the award to AUSA Adam L. Braverman of the Southern District of California, who was nominated by United States Attorney Laura Duffy, who wrote: “AUSA Braverman has become a nationally recognized expert in developing creative methods to investigate and prosecute the highest levels of the Sinaloa Cartel.” Braverman will be honored at the San Diego conference.
The other nominees were:
AUSA Kromm was nominated for his outstanding work and success in numerous appellate cases including among others the conviction and life sentence for James “Whitey” Bulger, the conviction of an individual for the arson of a predominantly African-American church in Springfield and the appeal brought by a news reporter of the district court’s erroneous sealing of a number of materials at the request of defense counsel.
Matthew R. Molten, District of Nebraska
See related editorial in the September 10, 2016, New York Times: Michigan Prosecutors Defy Supreme Court; http://nyti.ms/2cAbWoW and article from Detroit Free Press: After 50 years in prison, juvenile-lifer may see freedom within months. http://on.freep.com/2d5LhCM
The U.S. Supreme Court recently ruled in Montgomery v Louisiana that people serving mandatory life without parole sentences (LWOP) for crimes committed as children must be reviewed and given an opportunity for release if they can demonstrate rehabilitation. Montgomery reinforced the 2012 ruling in Miller v Alabama that those sentences imposed on minors as if they were adults, “pos[e] too great a risk of disproportionate punishment” and must be limited to that “rare juvenile offender” who is incapable of reform.
The rulings do not mean that those youth must be set free. Instead, they require states to assess who the youth have become and provide them an opportunity to demonstrate their rehabilitation through a rigorous parole board review, stating “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment…Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”
…most Michigan prosecutors are not following the spirit and letter of the law. They are not adhering to the Court’s warning that only the rare youth warranted a LWOP sentence and are conveniently ignoring the fact that the vast majority of youth have been rehabilitated. Eighty-five percent of those serving LWOP sentences have been assigned the lowest security level allowed by prison officials. Officials assess the security risk level of each inmate from Level 1 (lowest risk) to 5. Those serving LWOP enter at Level 4 and, depending on their behavior, can move to a higher or lower risk level but cannot go below a Level 2. When 85% behaved well enough in prison to be at Level 2, you might think they are the ones the Supreme Court had in mind when it wrote “that children who commit even heinous crimes are capable of change” and deserve the “opportunity for release”.
While thirty-eight states abolished juvenile LWOP or have less than 5 people serving that sentence, Michigan has the second highest number of people serving LWOP (363). That’s partially because Michigan sentences children as young as 14 and those that never fired a weapon. Where other states follow Supreme Court rulings and develop data-driven policies, Michigan sidesteps rulings and ignores data and facts. And spends money doing so. Michigan’s top prosecutor spent taxpayer resources unsuccessfully fighting Miller and Montgomery and now county prosecutors are willing to spend millions more to keep those youth who have long since been rehabilitated in prison.
As former U.S. Attorneys, we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation. Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgement to recognize whether the adult before them today has rehabilitated himself. The first responsibility of a prosecutor in criminal litigation is to see that in each case, justice is done. In failing to exercise a case by case review pursuant to the mandates of Miller and Montgomery, Michigan prosecutors not only fail our justice system, they fail all of us, the citizens of the State of Michigan.
Four former U.S. Attorneys from the Western District of Washington have filed an amicus brief in support of Microsoft Corp.’s lawsuit against the U.S. Department of Justice regarding government searches of customer email. Microsoft’s complaint seeks to strike down a law that prevents the company, and others like it, from timely informing its customers when the government seeks their data.
The former U.S. Attorneys joining the brief are: Jeffrey Sullivan (who was USA from 2007 to 2009); NAFUSA member John McKay (2001 to 2007); Kate Pflaumer (1993 to 2001); and NAFUSA Foundation President Mike McKay (1989 to 1993). They were joined by Charles Mandigo, who was the FBI Special Agent in Charge in Seattle from 1999 to 2003.
In their brief, the former federal law enforcement officials observed they have “a combined 80 years of real-life experience fulfilling their obligation to keep the public safe while operating within the bounds of the Constitution. They have a unique perspective on how to achieve the balance between public safety and personal liberty, particularly with respect to government searches and seizures of private information.” They argued that “law enforcement can function effectively—even in the cloud—while following the Fourth Amendment’s requirement of notice to individuals whose private information has been searched.”
As reported by The Seattle Times, all of the former officials have experience seeking secrecy orders but are concerned about the increasing use of the orders.
“Because of the nature of the cloud, the government has gotten lazy and is no longer making specific showings of need as to why secrecy orders should be granted,” John McKay told the Times
McKay is now in private practice at Davis Wright Tremaine, which is representing Microsoft in the case, but his involvement in the brief was in his personal capacity, he said.