Greg Craig trial shows dangers of self-lawyering

Greg Craig’s real crime may be ignoring one of the longest-standing maxims of the legal career: he who represents himself has a idiot for a shopper.

Most of the statements which have landed the previous Obama White Home common counsel on trial for the past few weeks in federal courtroom might most charitably be described as lawyerly evasions.

They’re the sort of sophistry and wordsmithing that, while maybe galling to the plainspoken individual on the road, may truly see someone like Craig celebrated and amply compensated in one other context.

“There’s no query it’s a very blurry line,” former federal prosecutor Randall Eliason stated. “There’s all this grey area around zealous advocacy and what crosses the line….The details of this case spotlight those issues. There's a grey area between zealous advocacy and outright misrepresentation.”

For example, when discussing the challenge on the heart of the case — a report he prepared in 2012 on the controversial trial of Ukrainian Prime Minister Yulia Tymoshenko — Craig appeared to assure Justice Department investigators that he was merely fielding press inquiries by providing journalists with copies of the evaluation.

”This was executed in response to requests from the media,” Craig wrote in an October 10, 2013, letter to the Justice Division’s foreign-agent registration office.

Craig’s defense argues his declare was literally true, but does so by squeezing almost all which means out of the 10 words, contending that each one he was telling Justice was that he had not foisted the report on unwilling reporters. Actually, Craig had New York Occasions reporter David Sanger in October 2012, asking if he would speak to a lobbyist dealing with the rollout of the report, former GOP Rep. Vin Weber. Craig later instantly provided the report to Sanger and even delivered it to his Washington house.

Craig, 74, faces a single felony false-statement charge over an alleged scheme to deceive Justice’s Overseas Agent Registration Act office when it sought details about work he and his former regulation agency, Skadden Arps, did in 2012 analyzing the politically charged trial of Tymoshenko.

Craig concluded his personal testimony last week, and the jury of 9 men and three ladies is predicted to start deliberating in the case in the coming days after closing statements from the prosecution and protection.

One other passage in the same letter from Craig additionally seems — at first blush — to include a number of flat-out whoppers.

“In responding to inaccuracies in U.S. information stories — some of which have been instantly attributable to Ukraine — the regulation agency did not consult with Ukraine, did not inform Ukraine, did not act underneath instruction from Ukraine and was on no account serving as an agent for Ukraine,” Craig wrote.

Prosecutors say there’s ample evidence Craig did, in truth, coordinate a key part of his media outreach with a public relations agency for Ukraine and a now-infamous GOP operative who served as a prime strategist for Ukrainian President Viktor Yanukovych, Paul Manafort.

Craig even advised Sanger by way of that Ukraine had picked him to get “first look” on the report.

That interaction appears sharply at odds with Craig’s assurances that he “didn't consult with Ukraine” and “didn't inform Ukraine.”

Prosecutors have already harped on these denials in entrance of the jury. Nevertheless, if allowed to do loads of work, the clause at the starting of the sentence might arguably make the rest of Craig’s statement true.

When “responding to inaccuracies in U.S. news stories,” Craig does not seem to have been appearing at Ukraine’s course or to have requested anyone’s permission. Indeed, the misstatements Craig was preventing towards have been usually coming from Yanukovych’s PR group and making Craig’s report sound extra flattering to Ukraine than it truly was.

In fact, Craig did more than just right errors in the media, however his defense argues the assurances in his letter about not coordinating with Ukraine applied only to his effort to combat misinformation.

Certainly, Craig lawyer Ezra Marcus argued just that to Decide Amy Berman Jackson last week.

“The rationale that that statement is literally true is the clause originally,” Marcus stated.

Prosecutors, nevertheless, have railed towards Craig over such hairsplitting.

“He very rigorously phrases the response to offer only half-truths and to hide different info,” prosecutor Molly Gaston complained to jurors in her opening statement.

The jury will finally determine whether Craig’s pettifogging crossed the authorized line, however several authorized specialists consulted by POLITICO say they doubt the Justice Department would ever have introduced such a case if Craig made such arguments for a shopper, moderately than for himself. Most legal professionals would recoil from an accusation of presenting “half-truths,” but they'll admit to torqueing the information to make the perfect case they will.

“It’s referred to as advocacy,” stated Todd Presnell, a Nashville lawyer who advises legal professionals on attorney-client privilege points. “You possibly can definitely advocate on behalf of your shopper by emphasizing details favorable to them or making an attempt to render much less related the details damaging to them, as long as you keep inside the bounds of the truth.”

Prosecutors do typically deliver costs towards individuals over flat-out falsehoods relayed by way of an lawyer, but a felony charge over deceptive or diversionary responses directed by means of legal counsel is exceedingly rare.

“You'll be able to never say by no means, however it’s highly unlikely in that state of affairs,” Presnell stated.

Technically speaking, somebody could possibly be prosecuted for deceptive the federal government by means of an lawyer but legal professionals say that not often occurs as a result of determining where the shopper’s spin ends and the lawyer’s gloss begins is a difficult activity. An outright falsehood is usually a bit simpler to trace from begin to end.

Although Craig was appearing as his personal lawyer in his dealings with Justice about his Ukraine work, some see the prosecution as posing a danger to the day by day work attorneys do crafting arguments and evidence shows on behalf of shoppers.

“Do we really need half-truths by an lawyer handling a authorized matter to be the idea for felony costs?” asked Stetson University regulation professor Ellen Podgor. “There's a distinction between moral misconduct and felony misconduct.”

Some judges have issued stern warnings about prosecutors looking for to police deceptive conduct that falls in need of outright falsehoods, particularly when legal professionals are concerned.

In 2003, San Francisco Giants slugger Barry Bonds was referred to as earlier than a federal grand jury investigating steroid use in professional baseball. He was later hit with a federal indictment for evasive answers he gave when requested about injections he’d acquired.

In 2015, the 9th Circuit Courtroom of Appeals voted, 10-1, to overturn Bonds’ conviction for obstruction of justice. The judges had hassle agreeing on exactly why the main leaguer’s dilatory and diversionary statements didn’t quantity to obstruction, however some jurists nervous that allowing such prosecutions might discourage attorneys from doing their utmost to present instances within the mild most favorable to their shoppers.

“Zealous advocacy typically requires pushing back towards an adversary’s just case and casting a despicable shopper in a favorable mild, but such conduct might be described as ‘endeavor[ing] to . . . impede . . . the due administration of justice,’” then-Decide Alex Kozinski wrote, joined by 4 other ninth Circuit jurists.

“One need not spend a lot time in one among our courtrooms to hear legal professionals dancing around questions from the bench relatively than giving pithy, direct solutions.”

“Making everybody who participates in our justice system a potential felony defendant for conduct that's nothing greater than the odd tug and pull of litigation dangers chilling zealous advocacy,” added Kozinski, who resigned in 2017 amid allegations of inappropriate sexual comments to clerks and colleagues.

Different judges within the Bonds case warned that allowing convictions over evasive testimony would create a perverse incentive for prosecutors to not hone in on the reality.

“The federal government is obligated to do all it could actually to acquire a direct assertion in response to its questioning,” Decide N.R. Smith wrote, joined by three colleagues. “A press release that ‘goes off into the cosmos’ merely triggers the prosecutor’s obligation to pin the witness down and elicit a clear response.”

Protection attorneys have made an analogous argument in Craig’s case, complaining that he is successfully charged with failing to reply questions that the top of Justice’s foreign-agent unit, Heather Hunt, by no means asked.

During Hunt’s testimony final week, Craig lawyer William Taylor famous that while she sent Craig a letter asking what he or others at Skadden knew about two companies doing Ukraine-related public relations work, she did not ask instantly if Skadden dealt with any different P.R. outfits.

“You may have requested, I suppose, any query you needed concerning the report in the letter, might you not have?” Taylor requested.

“I might have,” Hunt replied.

Craig’s legal professionals contend that, aside from one faulty date Craig says was a mistake, all of his statements to the government have been literally true. They observe it has been properly established for more than 4 many years that one can’t be convicted of perjury or, in most situations, false statements, for remarks which might be literally true, even if arguably deceptive.

The Supreme Courtroom held in a widely-cited 1973 case that an evasive response doesn’t represent perjury. “The necessities for pure perjury are really, really strict,” Eliason stated.

Nevertheless, Craig isn’t charged with perjury or making false statements, however underneath a associated provision of regulation that prohibits using a “trick, scheme or system” to hide materials details from the federal government. Jackson dominated before Craig’s trial opened that literal fact just isn't an entire defense to such a charge.

“As soon as he undertook to reply the questions, he needed to answer the questions honestly, and he could not omit information that left his solutions false or misleading in their absence,” Jackson declared final month.

However the decide stated it wasn’t solely clear how complete a story Craig was required to tell when making an attempt to persuade the Justice Department to reverse a choice that Skadden wanted to register. She additionally, ever so briefly, raised the question of whether passing statements via an outdoor lawyer may effectively immunize skewed factual shows that might be deemed unlawful if made instantly by the target of an inquiry.

“Is there an obligation to be truthful once you take it upon your self to influence the government that they are mistaken about one thing and they need to change their choice?...If a person submits a white paper to the U.S. Lawyer's Workplace saying, ‘Don't prosecute me for this or that’ -- and that's often filtered by means of a lawyer – however, if it was truly signed by the CEO of the company, might that” constitute a scheme to hide material details? the decide asked.

Skadden might have gone in that course, having a lawyer uninvolved within the Ukraine work handle the response to Justice, or the firm might have tapped outdoors counsel, because it finally did years later. However, at the time, the firm made the fateful choice to have one of many companions overseeing the challenge answer.

An e-mail shown to jurors at Craig’s trial exhibits that the international head of litigation at Skadden, David Zornow, thought it would look “less defensive” for Craig to signal the firm’s response to Justice.

Jurors might discover the government’s case lacking for causes past Craig’s wordsmithing, comparable to a considerable lack of clarity about what Craig stated at a meeting with Justice officials the day earlier than the pivotal letter was sent.

Nobody appears to have taken any notes on the session and none of the attendees who testified might recall any specific phrases Craig used. That would set up affordable doubt — if jurors can get past the strained statements within the letter Craig wrote summing up his place.

There may be no lawyer in the U.S. extra accustomed to the regulation surrounding false statements than Craig. That’s as a result of two many years ago he joined the group of attorneys defending President Bill Clinton towards impeachment.

In the Senate trial, Craig was assigned to struggle the cost related to what stands out as the most famous act of legal hairsplitting ever — Clinton’s assertion to a grand jury about whether or not he lied about his sexual relationship with Monica Lewinsky. “It relies upon what the which means of the phrase ‘is’ is,” he stated.

During Craig’s argument to senators, he conceded that Clinton erred by advancing an argument better left to his attorneys. Nevertheless, Craig insisted it was no crime.

“The president makes a political mistake here and provides in to his intuition to play his personal lawyer, to be his own advocate,” Craig stated. “You could discover it frustrating, chances are you'll find it irritating, if you watch him do that, however he isn't committing perjury. He's committing the offense of nitpicking and arguing with the prosecutors. He is arguing some extent.”

Article originally revealed on POLITICO Magazine

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