When white-collar defendants are on trial for fraud-related charges, they often assert the defense of attorney reliance. This defense holds that if a person reasonably relied upon the advice of his attorney in committing the charged conduct, he cannot have formed an intent to defraud. Like everything else in law and life, there are exceptions to this defense. For one, the defendant must have disclosed all relevant information to his attorney before receiving and relying upon the advice. And if the advice was patently ridiculous, no jury is likely to buy it. Prosecutors like to argue to the jury that no attorney can advise a client to commit fraud.
As a practical matter, what do prosecutors do when investigating a case where the target has asserted the attorney-reliance defense before the indictment is returned? Often, the prosecutor will be able to satisfy (or convince) himself ahead of time that the attorney was not told the whole story by his client or that the attorney did not give the advice asserted by the target. But some prosecutors solve the problem by indicting the attorney along with the client. This is obviously unfair and improper if the attorney was sincere in giving advice–even mistaken advice. On the other hand, there are definitely occasions in which an attorney knowingly aids and abets a crime by providing “advice” to the principal that is really nothing more than a cover for fraud. This seems to happen a lot in connection with alleged tax shelter schemes.
Why am I even thinking and talking about this stuff? The whole attorney reliance issue came to mind yesterday when I read the Washington Post story on the latest John C. Yoo memo to surface. Yoo is the former Deputy Assistant Attorney General in DOJ’s Office of Legal Counsel, infamous for writing a memo providing legal cover for the mistreatment and/or torture of enemy combatants.
The government has now declassified a sentence from another Yoo memo, penned in 2001. This memo relates to the Foreign Intelligence Surveillance Act (”FISA”). FISA states that FISA is the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.” The Bush Administration wanted to conduct warrantless electronic surveillance without even post-surveillance judicial authorization in certain situations, which is prohibited by FISA. FISA allows emergency warrantless eavesdropping, but requires the government to obtain post-surveillance judicial approval withinn 72 hours of the electronic surveillance. That wasn’t good enough for the Bush Administration. Yoo’s declassified sentence states that: “Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.”
In other words, even though FISA says on its face that it is the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted,” Congress really meant to carve out an exception for the inherent Presidential authority to conduct such surveillance and interception. Not only is this analysis false and Orwellian–it doesn’t even make sense as a matter of Constitutional Law. If the President has this inherent authority, it is Constitutional in nature, and cannot be restricted by Congressional enactment.
Predictably, Senator Diane Feinstein is outraged and calls for new FISA legislation with even stronger exclusivity language. But respect for the English language, including the plain language of statutes, has never been a strong suit of the Bush Administration. Senator, and former federal prosecutor, Sheldon Whitehouse, is more to the point: “I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn’t say that. Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day.” Translation: Yoo is no better than a tax attorney handing out phony opinion letters to justify a fraudulent off-shore tax fraud scheme.
Brian A. Benczkowski, DOJ’s Deputy Assistant Attorney General in the Office of Legislative Affairs, said that the government no longer relies on the 2001 Yoo memo to justify its warrantless electronic surveillance. Benczkowski, like former Attorney General Alberto Gonzales before him, believes that when Congress approved the September 18, 2001, Authorization for Use of Military Force, it “confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States.” Almost nobody in Washington involved in the passage of the Authorization really believes this.
So here is my question: If the Obama Administration decides to criminally prosecute members of the Bush Administration for their knowing violation of FISA, will Yoo be a witness for the government, a witness for the defense, or a co-defendant?