The Orchard, Oil on Panel, 36” x 48”, Richard J Van Wagoner, Circa 1998, Courtesy of Van Wagoner Family Trust**
Please do not infer that having "lawyered up," of itself, means he or they committed crimes. When the world’s most resourceful investigative and prosecutorial agencies place someone under the microscope, even a complete fool ought to have the wherewithal to “lawyer up,” regardless of guilt or innocence. People in the throes of criminal investigations, including lawyers who are or may become “subjects” or “targets” of such investigations, properly engage counsel to help them negotiate an often unfamiliar terrain littered with landmines and potentially dire contingencies.
If a complete fool under such scrutiny has the bandwidth to engage a lawyer with sufficient experience and resources in public corruption defense, an incomplete fool ought to have the insight to follow the lawyer’s advice—“shut down your mouth and Twitter account.” Some lawyers consider client control, or the lack thereof, a deal breaker. A possible reason The Don has had difficulty engaging competent DC counsel, aside from his history of stiffing lawyers, is his insistence on being the smartest person in the room. [Given his recent Cabinet meeting, we know who is the most beneficent, omniscient, omnipotent and well-dressed.] That very hubris is often what draws negative attention to the client, and any underlying criminal conduct may well have arisen from such client’s personal philosophy and experience that the rules don’t apply and haven’t applied to him—and they aren’t about to anytime soon.
Complex white collar criminal investigations/prosecutions, particularly those simultaneously scrutinizing many people and their varied conduct, can have virtually unlimited moving parts. Moreover, overlapping parallel investigations/prosecutions add layers of complexity. Some of the overlapping areas of inquiry of the current regime could include, among others, that “Russier Thing” with all its permutations, Logan Act violations, obstruction of justice, false statements in security clearance applications and forms, false statements to federal agents, perjury before the Senate, money laundering, tax evasion and fraud, treason, espionage, and Foreign Corrupt Practices Act violations. [Can you say Azerbaijan?]
The complexity of these investigations could be enhanced by immunity agreements and Trump’s authority to extend quid pro quo pardons.
“When you Come to Court, General Flynn, Bring a Toothbrush” (discussing immunity and cooperation agreements) https://medium.com/@richardvanwagoner/when-you-come-to-court-general-flynn-bring-a-toothbrush-ab21e6a71467
“Pardon My Contempt,” https://medium.com/@richardvanwagoner/pardon-my-contempt-4946b3cb2d14
By intra-family dynamics.
“Ivanka’s Choice” https://medium.com/@richardvanwagoner/ivankas-choice-66fefd3de67a
By efforts to hide criminal conduct behind Executive Privilege and “national security” and, The Don’s self-importance notwithstanding, by his handler’s efforts to help him preserve deniability.
Recent fake news reports suggest the probability of active criminal investigations of Messrs. Flynn, Manafort, Kushner, Sessions, Pence and Trump. Prominent fake news outlets strongly suggest some of those investigations now involve grand jury subpoenas for records and testimony. Without getting into the fake publicly-available details that connect the dots between and among those and other people and their suspected misconduct, the fruit hanging lowest from The Don appears to be felony obstruction of justice. As the only truth-teller, he continues publicly to confirm the criminal intent behind his obstructive behavior.
“Who Needs ‘Deep Throat’? We have Trump” https://medium.com/@richardvanwagoner/who-needs-deep-throat-we-have-trump-802daa826747
Whether The Don can be charged criminally while in office may be open for debate. Pardoning himself goes only so far under the Constitution. Not open for debate among fair-minded observers is that The Don has volunteered more than sufficient “probable cause” to establish each element of obstruction of justice for a grand jury to issue a “true bill,” otherwise known as an indictment. As the brilliant strategist that he is, with the yugest of negotiating prowess, judgment and discretion, The Don has admitted facts that establish the criminal intent necessary for a responsible House to bring articles of impeachment and a responsible Senate to try him for high crimes and misdemeanors—obstructing justice. But I presume too much.
All the current talk about grand juries raises a few questions about the process. If my cynicism leaks through, my apologies. A federal grand jury, 16-23 US citizens who reside within a defined federal district, sits in secrecy and, with the exception of witnesses who are usually compelled to appear, only the prosecution and its agents/investigators have access. They have guards at the door. Literally. With the assistance of federal prosecutors, grand jurors have the authority to conduct investigations by issuing subpoenas for records and testimony. In this one-sided, secretive format federal prosecutors and agents present evidence of potential criminal conduct for the jurors to decide whether sufficient cause, “probable cause,” exists to charge a person or persons with federal crimes.
Witnesses who appear before a grand jury have no right to counsel inside the grand jury room. I’ve had clients sit before grand juries, hear a question, then leave the room to consult counsel—me—on whether to answer the question or invoke a privilege.
The standard of proof for a grand jury’s issuing a “true bill” or indictment is significantly lower than proof beyond a reasonable doubt. I’ve seen different definitions for “probable cause,” but in my heart-of-hearts I believe it’s whatever a willing prosecutor, a willing grand jury, or a willing judge says it is: has the one-sided presentation of evidence given sufficient pause to have reason to believe a crime was or may have been committed.
A few points of interest, some of which could allow for mischief, arise from the one-sided, secretive nature of the forum and process.
• On the bright side, someone under investigation against whom the grand jury does not issue an indictment has the benefit of the secrecy so his/her good name and reputation are not unnecessarily sullied.
• While a federal district judge supervises the grand jury, the judge does not participate in the proceedings. The process is not adversarial so, with very few exceptions, no referee is required.
• Witnesses are entitled to no notice of status, although the US Attorney’s Manual encourages such notice. A “target” is defined as “a person as to whom the prosecutor or grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” A “subject” of an investigation “is a person whose conduct is within the scope of the grand jury’s investigation.” US Attorney’s Manual 9-11.151.
• Parenthetically, while the US Attorney’s Manual sets forth all sorts of lofty ideas about the fairness of this secretive, one-sided process and many other aspects of federal prosecutions, the Department of Justice makes abundantly clear the Manuel bestows no substantive rights on and no rights of enforcement by the public. A few courageous judges have held otherwise.
• There is no clear constitutional requirement that a person appearing before the grand jury be given a “rights warning,” but the US Attorney’s Manual encourages such notice.
• The prosecutor is free to present hearsay evidence to the grand jury.
• Federal courts’ supervisory powers over the grand jury do not include the ability to dismiss an indictment where “the prosecutor failed to introduce substantial exculpatory evidence to a grand jury.” The US Attorney’s Manual encourages such presentation, although the failure should not, in the view of the Department of Justice, result in dismissal of the indictment.
• The grand jury process is highly secretive. Federal Rule of Criminal Procedure 6(e) strongly discourages United States Attorneys, their assistants, and other federal agents and participants from disclosing anything that goes on behind closed doors, any records produced to the grand jury by subpoena or otherwise, the identifies of any participants, witnesses or the like.
• Those non-government people and entities who receive grand jury subpoenas are not bound to secrecy of either the fact of the subpoena or anything the witness witnesses in the grand jury room. They are not bound by Rule 6(e).
We presume innocence as a truism under the Fifth Amendment. We are five months into a wholly impotent, incompetent, disintegrating administration in which the chief executive, the chief law enforcement officer and lawyer for the United States and others are under active criminal investigation. For what: for undermining the foundations of democracy, the rule of law, and role of law enforcement, among other potential high crimes and misdemeanors. I’ll ask the question again: which parts of this were either not clear or not clearly portended during the campaign?
The fact that the Department of Justice largely polices itself and complaints against misconduct usually fall into the abyss are discussed in License to Lie, Exposing Corruption in the Justice Department, Sidney Powell (2014 Brown Books Publishing Group) and Not Guilty, The Unlawful Prosecution of U.S. Senator Ted Stevens, Rob Cary (2014 Thomas Reuters).
*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers