What is a “Person of Interest?”

May 26, 2017

The Washington Post and the New York Times reported last week that Donald Trump’s son-in-law, Jared Kushner, is a “person of interest” to the FBI in its investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” along with “any matters that arose or may arise directly from the investigation.” This includes false statements to investigators (18 USC 1001), obstruction of justice (18 USC 1503) and conspiracy to obstruct justice (18 USC 371).

Kushner is not a “person of interest” because it is a state law enforcement term that the FBI declines to use. The FBI says he is “under scrutiny,” which means he is a person of interest to the investigation, but not a “person of interest.” Confused? As a former criminal defense lawyer with 30 years experience defending people charged with felonies in state and federal courts, I can set you straight.

State law enforcement officials created the term to evade the Miranda rule and federal law enforcement officials declined to play that game.

A confession is powerful evidence of guilt, but only if it is voluntary. Coerced confessions are presumptively unreliable and inadmissible. The line between a voluntary and a coerced confession is indistinct and difficult to define.

To eliminate a well-documented state police practice of obtaining confessions from suspects during seemingly endless confrontational custodial interrogations, the SCOTUS created a new rule in Miranda v. Arizona, 384 US 436 (1966), that required police to warn suspects under arrest that they had a right to remain silent (Fifth Amendment) and a right to consult with counsel before answering any questions (Sixth Amendment). The rule further required police to obtain a voluntary acknowledgment and waiver of those constitutional rights from the suspect before commencing an interrogation. A statement obtained in violation of the rule is not admissible in court.

Many state law enforcement officials were furious about the Miranda rule and determined to come up with a work-around. They eventually decided to instruct police to avoid a situation that might be characterized as a “custodial interrogation” by doing the following:

  1. Refer to the suspect in official reports as a “person of interest” instead of as a suspect;
  2. Instead of placing the suspect under arrest, give him a cigarette and a cup of coffee while engaging him in a conversation that gradually turns into an interrogation, if he doesn’t confess;
  3. When cross-examined by defense counsel, insist that the POI was always free to go, until he confessed.

Jared Kushner is represented by Jamie Gorelick, a former Deputy Attorney General of the United States from 1994-97, during the Clinton administration. She has offered to make Kushner available to be interviewed, accompanied by counsel, of course. The interview will not be a custodial interrogation, so Miranda will not be implicated.

Federal prosecutors and the FBI use the following three categories to describe people they investigate:

  1. Target: a person (or persons) who is suspected of being a major participant in the crime as a boss, organizer or director of others;
  2. Subject: a person who is suspected of participating in the crime, but not as a director or major participant and is regarded as someone to potentially flip into cooperating with law enforcement to make the case against the target and testify against him before the grand jury and at the trial;
  3. Witness: a person who has information about the crime, but is not suspected of committing the crime (also called a fact witness).

Michael Flynn and Paul Manafort have been have been described as “subjects” of the investigation.

“Under scrutiny,” means that FBI investigators believe Kushner’s relationship to Trump (confidant and son-in-law) and his position as a Senior White House Advisor and gatekeeper to Trump (the “Trump Whisperer”) means that he has significant information relevant to their inquiry. The FBI has been following the money. The interview(s) will be wide ranging and include questions about documents. They will ask questions, despite knowing the answers, to determine if Kushner is telling the truth. If the investigators catch him in a lie, it’s a False Statement violation, a felony punishable by up to 5 years in prison pursuant to 18 USC 1001. A lie might also constitute obstruction of justice in violation of 18 USC 1503. If the FBI can prove that he acted with others to obstruct justice, he could be charged with conspiracy to obstruct justice in violation of 18 USC 371. Depending on the evidence the FBI uncovers, he might end up as a witness against the presumptive target of the investigation, the 45th president of the United States.

Finally, Trump’s new idea to set up a “War Room” at the White House, staffed by Kushner, Bannon and Corey Lewandowski, to fight back against leaks and the investigation sounds like a conspiracy to obstruct justice. Terrible idea from a universe far beyond stupid.


Abandon Ship Trumptanic is Sinking

May 11, 2017

Donald Trump fired FBI Director James Comey on Tuesday, the day after Sally Yates mortally wounded him, because he refused to end the Russia Gate investigation and pledge his loyalty to Donald Trump.

Donald Trump and his confidant, Attorney General Jeff Sessions, decided to conceal the reason for firing Comey by ordering Deputy Attorney General Rob Rosenstein to prepare a memo detailing mistakes Comey made in the run-up to the election. After receiving the memo, Trump and Sessions fired Comey and used the memo as the basis for firing him. Session’s participation in firing Comey for refusing to end the Russia Gate investigation was improper because he had recused himself from any role in the investigation.

Unable to resist the impulse to cover his tracks, Trump inserted the following exculpatory statement in his letter firing Comey,

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.

This statement is likely false. Comey testified before Congress that the FBI is investigating the Trump Campaign for possible collusion in Russia’s interference in the 2016 election and Trump is a likely target of that investigation. As a matter of policy, the FBI and the Department of Justice do not notify targets and subjects of investigations that they have been cleared or no longer are under investigation. Like a criminal defendant’s alibi that can be proven false, Trump’s statement may convict him if he should be prosecuted in federal court for obstruction of justice.

Adding insult to injury, Trump met yesterday at the White House with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak. The optics were terrible. Lavrov acted like the White House was his house. The U.S. Press was excluded from the meeting but Russian photographers were permitted to set up shop in the Oval Office and photograph the three men. Lavrov appeared to be the commanding influence.

Enough.

Republicans who continue to support Donald Trump are courting disaster. He’s going down. Continued support could result in indictments for obstruction of justice.


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