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It emerged late last week that President Trump has reportedly queried his lawyers regarding the nature and scope of his authority to pardon individuals including himself. Over the weekend, Trump tweeted a nothing to see here message while asserting his pardon power was complete, presumably meaning absolute.

While not limitless, the authority of the President to pardon is undeniably substantial. The President cannot pardon for prospective crimes or violations of state criminal law. There is a strong argument that he cannot pardon himself and certainly cannot insulate himself or others from the conviction of impeachment, as expressly stated in the Constitution. But other than these and perhaps other narrow limitations, a Presidents pardon powers is vast. Indeed, the Presidents power to pardon others including his family members for past federal crimes, even without evidence of specific criminal investigation or prosecution, is arguably plenary in nature.

Not surprisingly in the context of the investigation into Russian interference in our election, Trumps reported interest in pardons has generated an avalanche of commentary exploring the legal limits of presidential pardon authority. Less attention, however, has been paid to why President Trump has not exercised his pardon authority yet especially with so many of his confidants caught in a web of a criminal inquiry. This is the issue I focus on here.

Some may argue that if Trump were to pardon close confidants say his campaign manager Paul Manafort, the Trump-identified foreign policy advisor Carter Page, Senior Advisor and son-in-law Jared Kushner or his National Security Advisor Michael Flynn the optics would be undesirable and the political fallout substantial. This is undoubtedly true, President Gerald Ford arguably never recovered politically from the pardoning of President Richard Nixon. But given Trumps record, I am highly skeptical that these political concerns are a sufficient deterrent to exercise his authority.

Unpleasant optics because of his flagrant norm violations thus far have hardly served as significant inhibitions for this President. He did not release his tax returns as every president has for half a century. He ignored anti-nepotism laws. He discussed on the campaign trail imprisoning his political opponent. He ignores the Emoluments Clause of the Constitution. The norm transgressions are so substantial that this site has a section dedicated to it. There is an outcry. But that outcry and the optics simply do not seem to bother this President or his most ardent supporters. Nor do they seem sufficient to alienate him from almost all of the elected Republicans in Congress, at least so far.

It must be something else. Most likely the President has been informed of one important fact about his pardon power, anyone he pardons is no longer under criminal jeopardy for federal crimes and, accordingly, Fifth Amendment protection for self-incrimination evaporates. Manafort, Page, Kushner, and Flynn at this point pre-pardon need not answer any questions from Robert Mueller, Congress or anybody. The Fifth Amendment of the United States Constitution provides no person shall be compelled in any criminal case to be a witness against himself.

Once pardoned, however, there is no legal jeopardy for past federal crimes. Therefore, the Fifth Amendment can no longer be a shield and permit Trumps pardoned associates from refusing to answer questions under penalty of perjury. This creates a paradox for President Trump. When he pardons an individual, they are free from possible prosecution but they are also uncloaked of their most robust constitutional protection.

This may well be why President Trump has not pardoned Flynn, for example. Given the reported substantial contacts between Flynn and Russian government emissaries, given Flynns patent falsities including on federal forms completed under penalty of perjury, Flynns only protection presently from being compelled to testify including possibly against the President and others is the Fifth Amendment self-incrimination clause. Imagine if that was no longer a shield. Grand Jury, FBI Agents, Congress all could drill Flynn under oath. Any material prevarication would be punishable as perjury. At that point Flynns personal interest will be to tell the truth, even if that truth incriminates the President who fired him.

So the pardon of presidential associates is a double-edged sword. On the one hand, he will ensure they are not prosecuted if they committed crimes in furtherance of the Presidents interest. On the other, once pardoned, the interest of the pardoned associates likely diverges from the President. If crimes were committed that implicate the President and his family and I do not believe we have sufficient evidence to answer that conclusively at this time prior to being pardoned, a Trump associate is 100% within their rights to simply say nothing. But not afterwards.

One caveat worth noting is that because the Presidents pardon power is limited to federal crimes, the Fifth Amendment may offer protection if the pardoned individual is still under jeopardy for state crimes. However, I do not see this as a substantial issue at this point because in the main, the possible criminal liability of which we are presently aware in the Russia probe seem distinctly federal in nature, e.g., the Computer Fraud and Abuse Act, failure to complete federal disclosure forms truthfully, false statements to the FBI, or obstruction of justice in a federal case, for example.

It is true that we cannot be certain where the investigation will go and it could probe violations of state law. This seems most likely with financial crimes. Money laundering, for example, is illegal both under federal law and New York state law (the most likely state jurisdiction relevant here). And in such fairly circumscribed cases, the pardoned individual would still enjoy Fifth Amendment protection in discussing facts of relevance to those cases.

But I dont think this wrinkle should distract from the main point: The Presidents exercise of his pardon power is not a panacea. There are political costs to be sure. Many will ask, why do you need a pardon if no crime was committed similar to how President Trump discussed a grant of immunity: If youre not guilty of a crime, what do you need immunity for? It will thereafter be a political cudgel and add to the narrative of a President hell-bent on covering up crimes he committed or that others committed on his behalf. He fires Comey because of the Russia probe as President Trump himself made clear in the Lester Holt interview. He has confirmed his upset with Sessions because his recusal self-neutered the Attorney Generals ability to defend the President. He attacks Mueller in an attempt to discredit any future findings of wrongdoing. And if he pardons, the story will surely and understandably be that it is another attempt to evade accountability.

These political restraints, as in so many other areas, will not be sufficient to deter this President. However, the realization that anyone he pardons, unless also under jeopardy of state law prosecution, has lost the right against self-incrimination and can be compelled to testify truthfully under pain of contempt and perjury, may well explain this Presidents failure to pardon anyone thus far and may prove a continuing reason not to pardon associates in the future.

In this way, if the President exercises his pardon power down the road, it may signal a certain desperation. It may mean that the investigation is getting close. It will mean he has calculated that whatever the pardoned individual is compelled to testify under oath is less damaging to him and his interests than if the individual was not pardoned but squeezed by prosecutors. It will mean that the political weight of nothing to see here has been overcome by the legal weight of personal and family legal jeopardy.

See original here:
The President's Pardons Paradox: Granting Them Could Aid the ... - Just Security

The Second Circuit held in United States v. Allen, an appeal arising from the first U.S. prosecution in connection with the LIBOR manipulation scandal, that it violates a defendants Fifth Amendment privilege against self-incrimination to present an investigating grand or a trial jury with testimony that the defendant was compelled to give to foreign officials, regardless of whether the compelled testimony was presented directly or through another witness.

On July 19, the U.S. Court of Appeals for the Second Circuit vacated the conviction of two former London-based bankers, Anthony Allen and Anthony Conti, who were convicted in October 2015 on multiple counts of bank and wire fraud in connection with a scheme to manipulate the London Interbank Offered Rate (LIBOR). See United States v. Allen, Crim. No. 16-939 (2d Cir. July 19, 2017). Witnesses for the U.S. Department of Justice (DOJ) before both the grand and trial juries had been exposed to inculpatory testimony that the defendants were compelled to give against themselves by the UK government pursuant to UK law, and the Court of Appeals held that using that compelled testimony violated the defendants Fifth Amendment right against self-incrimination. The Second Circuit further held that the DOJ failed to carry its heavy burden under the U.S. Supreme Courts decision in United States v. Kastigar, 406 U.S. 441 (1972), to show that the testimony introduced before the grand and trial juries did not derive from the defendants compelled testimony. Because the prosecution failed to carry its Kastigar burden, and using the compelled testimony was not harmless error, the Second Circuit reversed the convictions and dismissed the indictments.

Alleged LIBOR Manipulation

Allen and Conti worked at Coperatieve Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank), a Dutch bank. During the 2000s, Rabobank was one of 16 banks that submitted its borrowing rates for U.S. dollars and Japanese yen on a daily basis to the British Bankers Association (BBA), the entity that calculated the LIBOR. The LIBOR is a series of daily benchmark rates at which banks can borrow funds in various currencies for various time periods. For each currency for which it calculated the LIBOR, the BBA accepted rates the banks submitted, discarded certain high and low submissions, and averaged the remaining submissions. Many financial transactions, including interest rate swaps, are tied to the LIBOR on a particular date, and those transactions are either profitable or not depending on the LIBOR in the relevant currency for the relevant time period on the relevant date, called the fixing date.

Allen and Conti each had, at various times and with varying frequency, responsibility for Rabobanks rate submissions to the BBA. Neither Rabobank nor the UK government had any policies concerning the submission of rates used to derive the LIBOR. Like a number of other banks that submitted their borrowing rates to the BBA, Rabobank was a party to a large number of LIBOR-tied transactions.

The prosecutions evidence at trial, which the Court of Appeals reviewed in detail, showed that the defendants received requests from Rabobank traders who had taken LIBOR-tied positions in transactions that would either make or lose money for the bank depending on the LIBOR. The Court of Appeals wrote, The Governments theory of the case was that these trader requests were dictated by the traders (and thus Rabobanks) interest in having LIBOR be higher or lower on particular dates based on the transactions that the trader had entered or positions they held.

The defendants conceded that it was inappropriate to base Rabobanks LIBOR submissions on rates that would benefit Rabobank, rather than on market-based evidence of the range of reasonable rates that fairly represented the rate at which Rabobank could borrow in dollars or yen for various intervals on that day. The defendants position at trial was that, although they received requests from traders for higher or lower submissions to the BBA, they did not honor those requests.

Financial Conduct Authoritys Investigation and Aborted Prosecution

The UKs Financial Conduct Authority (FCA) worked in parallel with officials from the DOJ to investigate allegations of LIBOR manipulation and to interview individuals, including the defendants, in 2013. It was undisputed in the proceedings before the Court of Appeals that defendants Allen and Conti were compelled, on pain of imprisonment, to testify before the FCA. The FCA offered the defendants direct use immunity for their compelled testimony, but not derivative use immunity, according to the court. In other words, the FCA could not use the defendants statements against them at trial (i.e., no direct use), but could introduce evidence against them that it obtained based on their compelled statements (i.e., derivative use).

In contrast, when the DOJ seeks to compel a witness to testify over the witnesss invocation of his or her Fifth Amendment privilege against self-incrimination, the immunity order that is entered confers both direct and derivative use immunity. To avoid having the DOJs LIBOR investigation tainted by compelled testimony, the DOJ and the FCA interrogated witnesses on different days, with the DOJ interviewing first.

The FCA and the DOJ also investigated a Rabobank employee with rate submission responsibilities, Paul Robson, whom the FCA later charged with criminal conduct for his role in manipulating the LIBOR. As part of its pre-trial process in the UK, the FCA disclosed to Robson the compelled testimony that Allen and Conti had given. The Second Circuit stated that Robson closely reviewed that testimony, annotating it and taking several pages of notes. The FCA later abandoned its prosecution of Robson, and the DOJ picked up where the FCA left off.

In April 2014, a grand jury in the Southern District of New York indicted Robson and two other individuals but not Allen and Conti charging them with wire fraud, among other things. Robson proffered, signed a cooperation agreement, and pled guilty in summer 2014. Although Robson did not testify before the grand jury, information he provided to the DOJ was presented to the grand jury through an FBI agent. The grand jury subsequently indicted Allen and Conti, charging them with wire and bank fraud charges.

Allen and Conti waived extradition and filed a motion under Kastigar to suppress Robsons testimony at trial. The trial court deferred the Kastigar hearing until after trial. Robson testified at trial, and the jury convicted the defendants on all charges.

At the post-trial Kastigar hearing, Robson explained that he had been exposed to the defendants compelled testimony before the FCA. The trial court found, however, that Robsons statement that he had independent knowledge of the facts he presented at trial (and that had been presented to the grand jury through an FBI agent) was an independent source within the meaning of Kastigar.

Court of Appeals Holds Fifth Amendment Self-Incrimination Privilege Applies to Foreign-Compelled Testimony

The Court of Appeals held that the Fifth Amendments privilege against self-incrimination requires that a defendants statement to a foreign government official be voluntary before it can be admitted in a U.S. trial. The Second Circuit emphasized repeatedly that the self-incrimination privilege is a personal trial right that is absolute. As a result, in the courts opinion, the self-incrimination privilege applies to bar the admission in U.S. trials of a defendants compelled statements to a foreign government official even when, as in this case, the foreign government official acted pursuant to the foreign nations legal process in obtaining those statements. In short, if a sovereign power compelled the defendant to testify under the cruel trilemma of self-accusation, perjury or contempt, the statement cannot be used in a U.S. court to indict the defendant or obtain a conviction. The Court of Appeals was unwilling to countenance the DOJs position in the case, which would remove all impediment to introducing the defendants foreign compelled testimony, as in, the court wrote, Your honor, we offer Government Exhibit 1, the defendants compelled testimony.

The Second Circuit considered misplaced the U.S. governments concern that a foreign government might attempt to sabotage U.S. prosecutions by compelling and then broadcasting a defendants testimony to potential witnesses. The court quoted a speech by former Assistant Attorney General for the Criminal Division Leslie Caldwell, who spoke of the DOJs efforts to coordinate with its counterparts abroad in investigating and prosecuting crime. The court noted that the DOJ was aware of its burden to avoid using compelled testimony as reflected by the interview scheduling system used in this case. The court also left open the possibility that there may be a different result if the foreign power appeared to be attempting to undermine a U.S. prosecution, noting that it would call into question whether the testimony obtained was really involuntary.

Having defined the defendants Fifth Amendment rights, the court concluded that the government violated their privilege against self-incrimination by introducing Robsons testimony at trial and to the grand jury through an FBI agent. Relying on Kastigar, the court explained that the privilege against self-incrimination applies not only to the testimony itself but to evidence derived from that testimony. The court noted that, when a defendant has been compelled to testify and is later prosecuted, the trial court will convene a hearing, a so-called Kastigar hearing, at which the prosecution must carry the heavy, albeit not insurmountable, burden that the evidence it will introduce was derived from legitimate independent sources. Typically, the prosecution meets this burden with canned testimony, that is, testimony the witness gave before he or she was tainted by exposure to the compelled testimony.

At the Kastigar hearing before the trial court in the Allen case, the exact opposite happened: Robson admitted that his testimony to the FCA was very different from the testimony he gave in the United States after reviewing the testimony of Allen and Conti. The Second Circuit held that the Kastigar hearing actually proved Robson had been tainted by the defendants compelled testimony to the FCA. The court concluded that the presentation of the tainted evidence to the grand and trial juries was not harmless, and it both vacated the conviction and dismissed the indictment against the defendants.

Implications

The Second Circuit explained that cross-border prosecutions are on the rise and observed that the DOJ is detailing its prosecutors to foreign investigators, including INTERPOL and the FCA. The court understood that, in the governments view, witness testimony is often the key to unraveling international financial crime. Although the court would not presume to know exactly what this brave new world of international criminal enforcement will entail, it was certain that these developments abroad need not affect the fairness of our trials at home.

Indeed, earlier this year, the DOJs Antitrust Division issued a Division Update, explaining that international cooperation on investigations of cartels was a top a priority and it was exploring bi-, tri- and multilateral agreements to foster greater international cooperation. Additionally, at a recent speech in Brazil, Acting Principal Deputy Assistant Attorney General for the Criminal Division, Trevor N. McFadden stated that cooperation with our foreign partners has become a hallmark of our work and observed that reciprocity in information sharing is a vital tool in the modern prosecutors toolbox.

Indeed, recent settlements and investigations show that the DOJ is actively coordinating its efforts with the FCA and other foreign investigators. For example, earlier this year, State Street Corporation announced that it had reached a settlement with the DOJ concerning allegations it overcharged certain clients, an allegation first disclosed to the FCA in 2011. Also, in April, it was reported that the DOJ and the FCA are collaborating in an investigation into whether individuals at Barclays Bank engaged in civil or criminal misconduct in attempting to unmask a whistleblower. And the U.S. Attorneys Office for the Southern District of New York, the office that prosecuted Allen and Conti, announced late last year that it had charged several individuals with wire and securities fraud, identify theft and computer hacking following an investigation conducted in concert with Lahav 433, the cyber unit of the Israeli National Police, which, like the FCA, can legally compel witness testimony.

This international cooperation also is occurring among government regulators with civil remedies at their disposal. For example, when the SEC announced the filing of a Foreign Corrupt Practices Act complaint against executives at investment firm Och-Ziff Capital Management Group in January 2017, the SEC thanked the FCA and financial regulators in Guernsey, Jersey, Malta, Cyprus, Gibraltar and Switzerland for assisting in the investigation that led to the complaint.

Given the increase in cross-border investigations involving cooperation between U.S. and foreign law enforcement and regulatory authorities, practitioners representing defendants who have been interrogated abroad should investigate the possibility that compelled testimony was disseminated to witnesses the DOJ put before the grand jury or will call at trial. While the fact pattern in Allen is somewhat unique, there is a significant tactical advantage to identifying whether any witnesses were exposed to the compelled testimony and forcing the prosecution to carry its heavy burden under Kastigar of showing its evidence is untainted.

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Fifth Amendment Prohibits Use of Compelled Foreign Testimony in US Criminal Trials - JD Supra (press release)

The co-founder of the Washington-based firm that commissioned the explosive and largely unsubstantiated anti-Trump campaign research dossier will reject a Senate subpoena to testify before Congress next week and invoke his Fifth Amendment rights, according to the heads of the Senate Judiciary Committee.

Glenn Simpson, the former Wall Street Journal reporter who helped start political intelligence firm Fusion GPS, has been a key figure in the Russian election meddling saga ever since the dossier, which alleged a years-long Kremlin conspiracy to elect Donald Trump and included colorful sex stories, was leaked to the press after the Republicans November victory over Democrat Hillary Clinton.

Since March, the Senate Judiciary Committee has pressed for Mr. Simpsons testimony and documents relevant to the case. His attorneys, Joshua A. Levy and Robert F. Muse, have rebutted with numerous defenses, including citing confidentiality agreements between Fusion GPS its clients. This week, a Judiciary hearing which would have featured Mr. Simpson had he voluntarily attended was canceled.

Late on Friday committee leadership executed hardball tactics to force him to tell what he knows as chairman Sen. Chuck Grassley, an Iowa Republican, and ranking member Sen. Dianne Feinstein, a California Democrat, announced theyd subpoenaed him.

Glenn Simpson, through his attorney, has declined to voluntarily attend Wednesdays Judiciary Committee hearing regarding compliance with the Foreign Agents Registration Act, the senators wrote in a statement. Therefore, a subpoena has been issued to compel his attendance. Simpsons attorney has asserted that his client will invoke his Fifth Amendment rights in response to the subpoena.

Mr. Simpsons lawyers in a letter reported by Politico, argued that this hearings purported focus on FARA [Foreign Agents Registration Act] is pretext for an exploration of Fusion GPS reported work, on behalf of other clients, to investigate the ties of Donald J. Trump, his campaign and their associates to Russia.

Wednesdays committee hearing is also scheduled to feature Donald Trump Jr. and President Donald Trumps one-time campaign manager Paul Manafort.

On Friday, Mr. Grassley and Ms. Feinstein said both Trump confidantes had agreed to negotiate to be interviewed and provide relevant documents but the Senators also reserved the right to subpoena them if necessary.

Legal battle to continue

More legal battle is expected between Mr. Simpson and the committee.

Washington insiders woke Saturday debating whether the political operatives strategy to assert his Fifth Amendment rights to protect himself against self-incrimination - would hold up or if hed put himself at risk of being held in contempt of Congress, which could mean future criminal charges.

Deeper digging into the dossier could also be embarrassing for both Democrats and Republicans.

Mr. Simpson hired former British intelligence agent Christopher Steele in 20015 to compile opposition research on then-candidate Trump. The resulting dossier which was reportedly sourced from the Kremlin allegedly received initial financial support from anti-Trump Republicans before being taken over and distributed by Democrats. It contained a lurid and largely discredited tale of a years-long Russian effort to elect the former reality TV star and property developer.

The Trump White House has vigorously denounced the allegations as a pile of garbage and FAKE NEWS! ever since online news service BuzzFeed posted all 35 pages.

This week The Washington Times reported that the FBI is routinely using the dossier as a checklist that agents tick off as they question witnesses in its Russia investigation. Sources told The Times it was strange that a gossip-filled series of memos is guiding the bureaus work.

For months Mr. Grassley has pushed to learn more about Mr. Steeles FBI relationships, which allegedly date back to help the former British spy provided the bureaus investigation of FIFA chief Sepp Blatter, whose 17-years reign over the football World Cup governing body ended amid corruption allegations.

Former FBI Director James Comey, whom Mr. Trump fired in May, has refused to publicly answer questions about the bureaus relationship with Mr. Steele.

Additional drama next week is expected from Mr. Trump Jr. and Manaforts testimony. Democrats are eager to question both about a meeting they held last year with a Russian lawyer who promised to provide comprising information about Ms. Clinton. Republicans are keen to start clearing the air on an issue that has distracted Washington from Mr. Trumps agenda.

On Friday, Reuters reported it had found public records contradicting statements by the lawyer who met Mr. Trump Jr. and Mr. Manafort that shed never worked for the Russian government. The news agency found Natalia V. Veselnitskaya had once represented Russias top intelligence agency, the F.S.B., which replaced the K.G.B. after the fall of the Soviet Union.

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Boss of firm behind anti-Trump dossier to plead the Fifth at congressional hearing - Washington Times

Since nothing improper happened between Donald Trumps campaign and the Russians, why is the president suddenly and loudly touting his power to pardon?

If theres really nothing there, wouldnt the whole world be better served if Trump vigorously got behind Special Counsel Robert Muellers investigation, invited Muellers staffers over to the West Wing for chats with anyone they chose, opened his tax files to them and declared not only does he not plan to have Mueller removed but also wishes him Godspeed toward completing the job?

But of course that cant happen because Trump does not have the capacity to see beyond his immediate impulses and has no fact-based sense of or regard for history.

If he did, surely he could figure out that an exoneration by Mueller or at least a closure without charges against anyone would have to be accepted by even Trumps severest critics.

Unless, of course, Trumps reflexive, transparent effort to cloud Muellers sparkling and bipartisan reputation succeeds even with those critics. In that case, the Russia thing would never go away.

Discouraging Muellers admirers is difficult, however. Last week, the spokesman for Trumps personal legal team, Mark Corallo, resigned partly because of his disgust with the Trump campaign to tarnish Mueller.

Like the anti-Mueller campaign, Trumps brandishing his power to pardon anyone even himself might reinforce his Superman self-image but also carries the seeds of his self-destruction.

Presidents can preemptively pardon anyone for any crime; thats what Gerald Ford did when he gave Richard Nixon a blanket pardon before any criminal charges were brought.

But a pardon can be a double-edged sword. If Trump were to preemptively pardon Donald Jr. or his daughter Ivanka and son-in-law Jared Kushner, for instance, Mueller then could not indict them but the pardons would not end the investigation. And, perhaps worse for all of the Trumps, Mueller could still subpoena the pardoned people and they could not invoke the Fifth Amendment protection against self-incrimination because they would be unindictable. Neither could they refuse to answer questions from Congressional committees on Fifth Amendment grounds.

Thus Trumps distorted ethical construct and self-destructive impulses have reached another extreme place that most Americans could not have imagined and certainly do not need to be in.

Its become an ongoing civic horror story, a 24-hour cable television nightmare that tempts us to avert our eyes and turn off our consciences. But we must not do that.

Americas culture and spirit, and democracys future, are under siege by a man who thinks of the nation as a great big private company and believes that he owns it. As sole proprietor, he gets to establish the principles under which he operates and make up the rules governing others as he goes along.

The conventions and aspirations under which the country has operated for 250 years are irrelevant to him; the accumulated self-governing ethos that matured over those centuries dismissed; the inconvenient limits on abuse of power ignored.

This is not tolerable. Only Congress can do something about it. At the very least, it is time for a bipartisan group of leaders to tell him that it is not tolerable and make clear to him that he is not above the law by reminding him that they, not he, are the final judges of whether he remains on the throne he has imagined for himself.

Davis Merritt, Wichita journalist and writer, can be reached at dmerritt9@cox.net.

Continued here:
Another Trump stride toward the cliff - The Garden City Telegram

The prosecution of two Rabobank traders from London, Anthony Allen and Anthony Conti, ran afoul of the Fifth Amendment privilege against self-incrimination. The United States Court of Appeals for the Second Circuit in Manhattan tossed out their convictions and, in a rare step, dismissed the indictment against them because the government used tainted testimony from its main witness.

The Financial Conduct Authority in England first started looking at Libor manipulation at Rabobank. Under British law, an individual working for a bank under investigation can be required to answer questions or face imprisonment for refusing to comply with the request. In exchange, the statements cannot be used directly against the person at a subsequent proceeding, although they can be used to develop new leads in a case

The British regulator dropped its investigation after Mr. Allen and Mr. Conti testified, and then prosecutors in the fraud section in the Justice Department took up the case, filing charges against the two men in 2014.

Mr. Allen and Mr. Conti were convicted after a trial on conspiracy and wire fraud charges involving their role in manipulating the submissions made by Rabobank that were used to set Libor. The governments theory was that they accommodated requests from the banks derivatives traders rather than making a good-faith estimate of the actual borrowing rate for that day. Evidence included a response to a traders request, I am fast turning into your Libor bitch!!! not a helpful comment.

Even with questionable messages, however, prosecutors needed a witness to explain what was taking place inside the bank and that the defendants knew they were acting improperly. That turned out to be Paul Robson, a co-worker subject of a Financial Conduct Authority enforcement action in Britain who also pleaded guilty in the United States for his role in the Libor manipulation.

Mr. Robson proved to be an effective witness, providing what the Second Circuit described as significant testimony against the two defendants, stating in court that the Libor submissions were nonsense and a charade.

The problem was that he carefully reviewed the defendants immunized statements to the Financial Conduct Authority and the appeals court found that the knowledge gained from them helped shape his testimony. It noted that Mr. Robsons own statement to the British authorities was toxic to the governments case because he later changed the description of the roles of Mr. Allen and Mr. Conti in setting Libor to reflect what they said.

The crucial legal issue was whether a grant of immunity by a foreign government in requiring testimony should be treated the same as if a witness received that protection from an American court. The Second Circuit was quite clear in its answer: The Fifth Amendments prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

The protection afforded under United States law is broader than in Britain, prohibiting any indirect use of an immunized statement to aid the prosecution. The Second Circuit concluded that Mr. Robsons testimony was tainted by what he read, even though prosecutors never introduced the statements in court.

Thus, any use of the statements against the defendants at their trial, like having a witness review it to assist in giving testimony, is a violation of their Fifth Amendment rights that can require reversal of a conviction. The cornerstone case for that proposition is United States v. North, a decision overturning the conviction of Oliver L. North because his immunized testimony before Congress in the Iran-contra hearings affected the recollection of a witness at his criminal trial.

The Second Circuit also dismissed the indictment because it found that the grand jury indirectly received Mr. Robsons views on the defendants involvement in manipulating Libor through the testimony of a F.B.I. agent, so the decision to indict the two men was also tainted by the immunized statements.

The appeals court had no sympathy for the governments complaint that applying the constitutional protection would make it more difficult to work with foreign governments to prosecute cases involving cross-border violations. The practical outcome of our holding today is that the risk of error in coordination falls on the U.S. government (should it seek to prosecute foreign individuals), rather than on the subjects and targets of cross-border investigations, the judges wrote.

Although prosecutors can seek a new indictment and a second trial, they may not use Mr. Robson or any other witness who might have reviewed the immunized statements made by Mr. Allen and Mr. Conti. That most likely means the case is over because there does not appear to be enough evidence, beyond some questionable messages, to show their intent to manipulate Libor submissions.

The decision will present a significant challenge to the Justice Department in pursuing fraud cases in which it works with foreign prosecutors and regulators to gather evidence. Many nations, especially in Europe, require those involved in the financial services sector to provide testimony during an investigation, and now any use of that power to gather evidence could make it more difficult to prove charges in the United States.

Prosecutors in this country are well aware of the potential pitfalls of prosecuting someone granted immunity because it requires showing that every piece of evidence to be used at trial is untainted by the immunized statements. Future investigations of international wrongdoing will have to avoid tripping the Fifth Amendment protection if a target is required to provide a statement.

The fallout from the Second Circuits decision is already being felt in the prosecution of two former Deutsche Bank traders accused of manipulating Libor. One of the defendants was compelled by the Financial Conduct Authority to testify and has asked that the court to scrutinize whether his statements have tainted the governments evidence.

Even if there are no Fifth Amendment issues, when the reliability of a crucial cooperating witness is open to question, the governments case can go straight down the drain.

The New York Times reported that the prosecution of two former JPMorgan Chase traders, Javier Martin-Artajo and Julien Grout, involved in transactions that culminated in 2012 in over $6 billion in losses for the bank, ended last Friday when the Justice Department announced it was dropping the case. Called a nolle prosequi motion, which means to be unwilling to pursue, prosecutors told the Federal District Court in Manhattan that Bruno Iksil, the major witness involved in the trades, who received the nickname London Whale for the outsize bets, was no longer a reliable witness.

Mr. Iksil created a website called London Whale Marionette to give his version of what happened, stating that this account looks quite different from the testimonies that I gave to the authorities. His admission that previous statements may not be accurate was certain to provide defense lawyers fodder for cross-examination to undermine his credibility if the case went to trial.

Whether that was ever going to happen was another question about the case. The Justice Department acknowledged in its motion that it was unable to extradite the two defendants from their home countries, Spain and France, so long as they stayed away from a nation that would send them to the United States.

Blaming Mr. Iksils commentary as the reason for dismissal could be a convenient face-saving means to drop a prosecution that was never going to reach the courtroom. The indictment of Mr. Martin-Artajo and Mr. Grout had languished since 2013, and the charges never reached anyone in JPMorgans senior management, despite Mr. Iksils claims that those well above him encouraged the risky trading. The bank paid out $920 million to settle multiple civil investigations of how it reported its losses.

The demise of the Libor and London Whale prosecutions shows how difficult it is for federal prosecutors to pursue charges in cases that reach across markets and involve defendants acting largely outside the United States.

One byproduct may be that the Justice Department will be more hesitant when it seeks to hold individuals responsible for misconduct by global financial companies, raising the prospect of even less accountability for corporate wrongdoing.

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Libor and London Whale Cases Show Hurdles With Foreign Defendants - New York Times

It is always an important moment the first time in a scandal when we get to hear from the scandals subjects not the allegations against them but their responses to those allegations, not the obligatory comments, no-comments, or denials in the story itself but the subjects own version of the story. These moments are particularly clarifying when that story comes not in the form of some impulsive reaction say, an angry presidential tweet but instead as a carefully prepared presentation, one put together by competent counsel based on an extensive review of the record available to the subject. Such a presentation can be particularly useful when criminal consequences will attach to any knowing lies within it; this can happen either because the subject gives the statement under oath or because he or she gives it under circumstances in which false statements are otherwise barred by federal law.

In such situations, and Jared Kushers statement on Monday presents one such situation, we can with reasonable confidence make a few working, though always rebuttable, presumptions:

These are the presumptions with which the careful reader should peruse Kushners 11-page statement given today to congressional committees. The document reflects his lawyers review of a large volume of emails, phone records, calendar entries, and other documents available to them. It also reflects his memory. It is carefully prepared. And he could face prosecution if any of it is knowingly and intentionally false on a material point.

Kushners statement responds more confidently and convincingly on some allegations than on others. And in at least one major area, the statement maintains a conspicuous silence. Given that Kushners discussions with the committee on Monday, and others today, were closed, we do not know whether it held up well under questioning. But based on the document alone, here are seven observations about Kushners conduct we think are safe to tentatively advance at this stage.

The first notable feature of the document is that Kushner released it at all. Lawyers who believe their clients have potentially serious criminal exposure generally do not let them make public statements to congressional committees, particularly not public statements rife with firm factual claims the record may come to contradict. The very existence of this statement, in other words, is itself a show of confidence to some degree that Kusher whatever problems he might have is not in the sort of legal jeopardy which counsels silence. That he was apparently willing to answer questions about these matters from the Senate Intelligence Committee on Monday and the House Intelligence Committee today without asserting his Fifth Amendment rights further suggests his attorneys feel relatively good about their legal position.

Second, Kushner shows particular confidence on matters related to his meetings with Russians during the campaign. He describes what purports to be all of his contacts, certain or possible, with Russian government officials, and disputes some alleged contacts with Russian Ambassador Sergey Kislyak reported by Reuters. He treats all of the contacts as trivial, incidental interactions. As he will be in rather grave potential jeopardy if any evidence of more serious interactions emerges, its probably reasonable to expect that he and his lawyers are fairly certain that no more serious interactions will come to light. Notably, Kushner only disavows other contacts or any collusion with a narrow category of individuals those who were or seemed like they might be representatives of the Russian government. The statement thus leaves some ambiguity about contacts with figures whom a reasonable person in Kushners position might be understand as cutouts.

Third, to minimize his own contacts with Russian government representatives, Kushner rather casually throws his brother-in-law Donald Trump Jr. under the bus on the subject of the now-infamous meeting at Trump Tower with the Russian lawyer peddling dirt on Hillary Clinton on behalf of the Russian government. In Kushners version of the story, he arrived late and left early thereby conveniently missing all of the untoward stuff about the dirt; he didnt read the relevant emails, nor the subject line; and when his lawyers discovered the matter, he disclosed it:

I arrived at the meeting a little late. When I got there, the person who has since been identified as a Russian attorney was talking about the issue of a ban on U.S. adoptions of Russian children. I had no idea why that topic was being raised and quickly determined that my time was not well-spent at this meeting. Reviewing emails recently confirmed my memory that the meeting was a waste of our time and that, in looking for a polite way to leave and get back to my work, I actually emailed an assistant from the meeting after I had been there for ten or so minutes and wrote Can u pls call me on my cell? Need excuse to get out of meeting. I had not met the attorney before the meeting nor spoken with her since. I thought nothing more of this short meeting until it came to my attention recently. I did not read or recall this email exchange before it was shown to me by my lawyers when reviewing documents for submission to the committees. No part of the meeting I attended included anything about the campaign, there was no follow up to the meeting that I am aware of, I do not recall how many people were there (or their names), and I have no knowledge of any documents being offered or accepted. Finally, after seeing the email, I disclosed this meeting prior to it being reported in the press on a supplement to my security clearance form, even if that was not required as meeting the definitions of the form.

This strategy of exculpating himself at the expense of his fellows shows up also, albeit in a softer way, during his discussion of his transition contacts with Russian actors. In his account of the December 1 meeting with Kislyak and Lt. Gen. Michael Flynn at Trump Tower, he writes that:

[A]fter pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day [emphasis in original].

Note here that in the bolded passage, Kushner is not denying that a relationship existed before Election Day. He is merely contending that there is strong evidence that he was not aware of any relationship that existed before Election Day. He makes a similar move right at the end of the statement, where he declares that I did not collude, nor know of anyone else in the campaign who colluded, with any foreign government. This is Kushners code for saying that he knows he did nothing wrong but cannot and will not vouch for anyone else. A reasonable reader should conclude that these statements might be stronger were Kusher more confident of the behavior of his fellows.

Fourth, Kushners account of the back-channel communications system he proposed to Kislyak during the campaign is more damaging to himself. But again, the fact that hes willing to talk about it suggests that he does not fear criminal charges related to the subject. And, indeed, his explanation is at least a little bit less bizarre than the news stories that suggested he had proposed a secret ongoing line of communications to get around U.S. intelligence. In Kushners telling:

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his generals. He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. Nothing else occurred. I did not suggest a secret back channel. I did not suggest an on-going secret form of communication for then or for when the administration took office. I did not raise the possibility of using the embassy or any other Russian facility for any purpose other than this one possible conversation in the transition period. We did not discuss sanctions.

To be clear, Kushner is admitting here a gross impropriety. The right approach in this situation would have been to call the State Department and ask how to handle a sensitive communication from Russian generals who couldnt travel to the United States. Proposing the solution he advanced here could not have been better calculated to raise the hairs on the necks of FBI counterintelligence investigators.

Nor does Kushers statement address the substantive concerns about his being willing to have such talks at all during the transition period. For the relevant period, President Barack Obama was still the commander-in-chief. Holding talks with foreign governments regarding ongoing military engagements without any input from or visibility to the Department of Defense is highly unusual during a transition period. It violates the fundamental rule that the country has one president at a time. Recall that much of the scandal regarding Flynns contacts with Kislyak stemmed from concerns that he might have been working to undermine the sanctions policy of the sitting U.S. president.

If Kushner appreciates in retrospect the impropriety, he does not say so, but he and his lawyers have clearly decided to absorb the criticism he will and should face for it. They also appear to have decided that there was nothing criminal in the impropriety, and thus it is better to put out there so he can take the heat and move on.

Fifth, Kushners explanation of his meeting with a Russian banker close to Putin, by contrast, is actually reassuring. There has been a lot of speculation that this meeting was really about Kushners business. This had a menacing edge because the banker in question, Sergey Gorkov, is known to be close to Putin, so the idea of his lending money to Kushner or doing business with him raised obvious national security concerns much as the payments to Flynn continue to.

But on this point, Kushner claims that Gorkov appeared not in his capacity as a banker but as an emissary from the Russian president and that they did not discuss business matters at all:

My assistant reported that the Ambassador had requested that I meet with a person named Sergey Gorkov who he said was a banker and someone with a direct line to the Russian President who could give insight into how Putin was viewing the new administration and best ways to work together. I agreed to meet Mr. Gorkov because the Ambassador has been so insistent, said he had a direct relationship with the President, and because Mr. Gorkov was only in New York for a couple days. I made room on my schedule for the meeting that occurred the next day, on December 13.

The meeting with Mr. Gorkov lasted twenty to twenty-five minutes. He introduced himself and gave me two gifts one was a piece of art from Nvgorod, the village where my grandparents were from in Belarus, and the other was a bag of dirt from that same village. (Any notion that I tried to conceal this meeting or that I took it thinking it was in my capacity as a businessman is false. In fact, I gave my assistant these gifts to formally register them with the transition office). After that, he told me a little about his bank and made some statements about the Russian economy. He said that he was friendly with President Putin, expressed disappointment with U.S.-Russia relations under President Obama and hopes for a better relationship in the future. As I did at the meeting with Ambassador Kislyak, I expressed the same sentiments I had with other foreign officials I met. There were no specific policies discussed. We had no discussion about the sanctions imposed by the Obama Administration. At no time was there any discussion about my companies, business transactions, real estate projects, loans, banking arrangements or any private business of any kind. At the end of the short meeting, we thanked each other and I went on to other meetings. I did not know or have any contact with Mr. Gorkov before that meeting, and I have had no reason to connect with him since.

Sixth, Kushners account of his security clearance forms describes, at best, a terribly careless process. In his account, he didnt lie on his SF-86 form. An underling submitted it prematurely before it contained not just Russian but any foreign contact information. He then quickly notified the transition office that it needed to be supplemented but took many months to do so completely.

This is remarkably bad management. The Trump administration blames LAffaire Russe on media obsessions and bias, but at least as far as Kushner goes and this by his own account its largely a function of his failure over time to correct his own errors. After all, had each incremental development in the scandal not contradicted his SF-86 (assuming, of course, that his underlying narrative is accurate) the scandal would never have developed as it has. Kushner Met with Russian Ambassador as Disclosed on His Clearance Forms just isnt much of a headline.

The degree of carelessness with which Kushner apparently approached his SF-86 also reveals the perils of nepotism. Of course, mistakes happen. But most people fill out the SF-86 as if their job depends on getting it right. This is because for most people, their jobs do depend on their getting it right. Evidently, that assumption does not hold when youre married to the presidents daughter. Kusher showed the care of an individual confident he would not face any consequences for many errors uncorrected over a long period of time, and indeed, he hasnt.

Finally, theres at least one big area that is not discussed at all in Kushners statement. That is the question of the Trump campaigns and Cambridge Analyticas use of data analytics to target voters and the apparent micro-targeting of voters in key swing states by Russian trolls and bots. This is a matter of ongoing concern to the Senate Intelligence Committee, as Vice Chairman Mark Warner said recently on CBSs Face the Nation:

John Dickerson (host): You- Another area that it appears youre interested in is the data operation of the Trump campaign, which Jared Kushner was overseeing. Explain that. And is that, again, another extrapolation? Or do you have some evidence for that inquiry?

Sen. Mark Warner: Well, we do know that there was a series of Russian trolls, paid individuals, who worked for the Russian services that were trying to interfere and put fake news out. We also know they created whats called bots. In effect, internet robots that actually could interfere as well.

The question we have is: Did they somehow get information from some of the Trump campaign efforts to target that interference? We dont know that for sure. But what we do want to know is Id like to talk to the folks with Cambridge Analytica. Id like to talk to some of the folks from the Trump digital campaign.

We do know as well that Facebook, for example, that denied any responsibility during our election, by the time the French elections took place this past spring, they literally took down 30,000 fake sites. So they have in effect got religion about the need to police fake news.

We also know that Twitter its been reported that literally 8% of the Twitter accounts are fake. So those accounts can be manipulated as well. Id like not to re-litigate 2016. But I think the whole role of these social media platforms, in terms of disseminating fake news, is a policy question that were going to have to address.

Kushner did nothing to reassure on this point for reasons that are unclear.

All in all, Kushner did himself some good with this statement. Without seeing how he held up under examination from skeptical senators, it is hard to know how much good. But narrowing the field of contested facts is critical to isolating the signal from the noise in this sprawling scandal. Kushners statement is one small step in that direction. Putting an end to LAffaire Russe will take many more, much larger steps from many other people including President Donald Trump himself.

Photo credit:YURI GRIPAS/AFP/Getty Images

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Seven Observations About Jared Kushner's Statement - Foreign Policy (blog)

O.J. Simpson will serve the remainder of his prison time in protected custody. Officials changed his status for safety reasons after a parole board voted unanimously last week to approve his release.

Simpson could walk out as soon as October 1, after serving nine years for armed robbery in Nevada.

65 Photos

From football fields to Hollywood to courtrooms, see O.J. through the years

In 1995, he was acquitted of the murders of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman.

CBS News correspondent Jericka Duncan reports the case is still an open investigation for the Los Angeles Police Department.

A reported 13.5 million people tuned into Simpson's parole hearing last week. That's far fewer than the estimated 150 million people who watched his 1995 acquittal.

Still, it shows the O.J. obsession lives on, as well as the debate over who killed Nicole Brown and Goldman.

"I'd just like to get back to my family and friends and believe it or not, I do have some real friends," Simpson said in court last week.

It's unclear what life outside prison will look like for Simpson. But one thing is certain it'll be a world well acquainted with his past.

"People will always want to be a part of the O.J. case," Loyola Law School professor Laurie Levinson said. "They'll always be looking for evidence that the LAPD missed. That's because it's a mystery that to some has not been solved."

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On October 3, 1995 "The Trial of the Century" ended with the acquittal of former football star O.J. Simpson for double-murder - Where are all the...

A string of TV films this past year reignited America's fascination with Simpson's acquittal.

"The word 'open' for an investigation can mean so many things," Levinson said. "It may simply mean that because O.J. was acquitted, and they've never found another murderer, there's no reason to shut it down."

Immediately following the 1995 verdict, Simpson vowed to find justice for his ex-wife in a statement read by his son, Jason: "I will pursue as my primary goal in life, the killer or killer who slaughtered Nicole and Mr. Goldman."

But no additional arrests were made. Simpson went on to release what was called a fictional account of the crime entitled, "If I did it." That book caused former Simpson trial juror Lionel Cryer to have a change of heart.

"The book was the turning point for me to go to the feeling that he probably did kill those people," Cryer said.

Simpson has repeatedly maintained his innocence. Last year, there appeared to be a possible break in the case when a knife was reportedly discovered on the property Simpson once owned. But the tip led nowhere, leaving the case largely where it was in the 1990s.

"O.J. cannot be tried again because of double jeopardy, but he certainly can be questioned," Levinson said. "In fact, he doesn't have Fifth Amendment protection anymore."

The LAPD wouldn't provide any additional details in the case. Legal experts say there are plenty of challenges that go with investigating a crime that is more than 20 years old. Among them, the fact that prosecutors are dealing with decades-old evidence and memories.

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Who killed Nicole Brown Simpson and Ron Goldman? - CBS News

BBC News

US-Russia probe: Trump son-in-law Kushner denies collusion BBC News Mr Kushner is not expected to invoke his Fifth Amendment right against self-incrimination at the Congress meetings. In his statement, he says: "I am happy to share information with the investigating bodies. I have shown today that I am willing to do so ... Kushner to face both intelligence committees this weekConcord Monitor Kushner: 'I Did Not Collude' With RussiaNewser Donald Trump Russia Probe: US President blames his own party for doing 'very little' to protect himEvening Standard CNN all 384 news articles »

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US-Russia probe: Trump son-in-law Kushner denies collusion - BBC News

Heres a story that has gone completely under the radar, and raises some serious questions that the mainstream media largely seems to have ignored. Glenn Simpson, the co-founder of Fusion GPS, whose firm commissioned the salacious and mostly unsubstantiated Russia Trump dossier, plans to plead the Fifth after being subpoenaed by U.S. Senate Committee on the Judiciary.

According to documents obtained byLawNewz,attorneys for Fusion GPS Simpson sent a letter to Chairman Chuck Grassley expressing concern over the direction that the hearing was taking. The letter stated that Simpson would not voluntarily show up at the hearing due to a pre-planned vacation, and if subpoenaed he would exercise his First and Fifth Amendment rights not to testify before the committee examining the influence of foreign lobbying in the 2016 election.

Since March, the Senate Judiciary Committee has been seeking documents and information from Fusion GPS about the former M16 intelligence officer Christopher Steele who authored the research, and the dossier, which contained unverified salacious details of Trumps alleged escapades in Russia.The dossier was reportedly first commissioned by Republican opponents of Donald Trump, and then taken over by a Democratic client.

Every time committee investigators made requests, though, they were stonewalled by the Washington D.C. opposition research firm. The firm asserted that the information and documentation requested was protected by the First Amendment privilege of Fusion GPS and its clients, as well as confidentiality agreements and attorney client privilege. On Friday, Sen. Grassley slapped Simpson with a subpoena to appear before the committee.

Given the limitless scope of the hearing, as well as the privileges that Fusion GPS has already asserted, Mr. Simpson cannot risk a waiver of those privileges at the hearing. In the event of a subpoena, Mr. Simpson will assert applicable privileges, including but not limited to those under the First and Fifth Amendments, attorneys for Simpson wrote in a letter to the committee.

The Fifth amendment privilege, of course, allows witnesses to decline to answer questions that have the potential to incriminate them. So, the question remains, what exactly could Simpson, a former Wall Street Journal investigative reporter, say that he fears will put him in legally precarious territory?

It could mean various things, but the invocation on its own does not mean Simpson broke any laws. It could just as easily be a tactical move by his lawyers to try and secure a deal before he testifies, Bradly Moss, a national security expert and attorney toldLawNewz.com.

Questions about this to the communications firm representing Fusion GPS were not answered as off press time.

This article has been updated with legal commentary.

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What The Heck? Man Who Runs Firm Behind Trump-Russia Dossier ... - LawNewz

Can a court order a suspect to use the suspects fingerprint to unlock his or her smartphone? Or would that violate the suspects Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.

Background. The Fifth Amendment provides in part that no person may be compelled in any criminal case to be a witness against himself. This privilege against self-incrimination applies during the investigative phase of a case as well as at trial. And it applies to the disclosure of information that may lead to incriminating evidence even if the information is not itself directly indicative of guilt. However, it applies only to testimonial activity, not to nontestimonial actions like providing fingerprints, blood samples, or voice exemplars. The act of producing evidence that is not itself testimonial may have a compelled testimonial aspect, as when the act of producing the evidence constitutes an admission that the evidence was in the suspects possession or control. United States v. Hubbell, 530 U.S. 27 (2000) (ruling that tax fraud charges must be dismissed because the charges were based on documents the defendant produced in response to a grand jury subpoena; the defendants act of producing the documents was testimonial because the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of any incriminating documents; [t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox).

Smartphones are often secured by passcodes or fingerprint sensors. Ive written about computer passwords, which present the same Fifth Amendment issues as passcodes, here and here. In brief, some courts view compelling a suspect to provide a passcode as requiring a testimonial act because the passcode is contained in the suspects mind, and because providing the passcode may constitute an admission that the phone belongs to the suspect or is under the suspects control. That doesnt necessarily mean that a court can never order a suspect to provide a passcode. If the court concludes that it is obvious that the phone in question belongs to the suspect so that the act of providing the passcode wouldnt further incriminate the suspect, the court may rule that the suspects knowledge of the passcode is a foregone conclusion, rendering the Fifth Amendment inapplicable. Or the court might rule that the suspect may be required to provide the passcode if given immunity for the act of providing it. Both those possibilities involve complex legal questions that I hope to explore in a future post.

Although passcodes present thorny Fifth Amendment issues, the early authority on point regarding fingerprint sensors suggests that compelling a suspect to use his or her finger to unlock a phone is not testimonial. The suspect is required only to do a physical act placing his or her finger on a sensor and need not admit anything in his or her mind. My earlier post cited the authority available at that time, but we have some new case law now and it points in the same direction.

New cases. The most significant new case is State v. Diamond, __ N.W.2d __, 2017 WL 163710 (Minn. Ct. App. Jan. 17, 2017). The court ruled that a court order compelling a criminal defendant to provide a fingerprint to unlock the defendants cellphone does not violate the Fifth Amendment privilege against compelled self-incrimination.

In brief, the police arrested a burglary suspect and found that he was in possession of a cell phone. They obtained a search warrant for the phone and a court order requiring the suspect to provide a fingerprint to unlock the phone. On appeal, the defendant argued that this violated his Fifth Amendment right to be free from self-incrimination. The reviewing court disagreed because the order did not require the defendant to do anything that was testimonial. The court observed that the order did not require him to disclose any knowledge he might have and reasoned that it was no different than an order to provide a voice exemplar or a blood sample.

Less important but also worth noting is State v. Stahl, __ So. 3d __, 2016 WL 7118574 (Fla. Dist. Ct. App. Dec. 6, 2016). Stahl is a case about a courts authority to order a suspect to provide the passcode to a phone, not a fingerprint. But in the course of discussing the passcode issue, the court stated: Compelling an individual to place his finger on [an] iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.

Caveat. Although requiring a suspect to press the suspects finger to a phone may not require any testimonial activity, orders on this point must be crafted carefully to avoid infringing on a suspects constitutional rights. An order requiring a suspect to unlock a phone, or to provide officers with an impression from the finger that unlocks a phone, might implicate the Fifth Amendment because such an order would require the suspect to decide which finger to use and so to share the suspects knowledge of which finger operates the sensor. Unless the foregone conclusion doctrine applies or the Fifth Amendment issue can be removed through the provision of appropriate immunity, such an order might be improper.

Worthwhile secondary sources. I cited a couple of secondary sources in my previous post. Id like to add to the list two blog posts by Professor Orin Kerr, a leading scholar in this area. His principal post on the topic is here, and a shorter one discussing the Diamond case is here.

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Update on Fingerprints, Phones, and the Fifth Amendment ...