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Alex Whiting

  • The Problem of War Crimes

    April 22, 2022

    The odds are against anyone being brought to justice for atrocities committed in Ukraine. Despite mounting evidence that Russian forces executed civilians and targeted residential neighborhoods for bombardment, a successful prosecution of the perpetrators -- from military commanders in the field all the way up to Vladimir Putin in the Kremlin -- before an international tribunal will be difficult. In the 76 years since the Nuremberg trials, which set the standard for punishing individuals for crimes against humanity, war crimes investigators have faced many obstacles. In this episode, former International Criminal Court prosecutor Alex Whiting explains the challenges confronting those seeking justice for victims of wars of aggression and atrocities.

  • Prosecuting War Crimes: From Belgrade To Moscow

    April 19, 2022

    When President Biden calls Vladimir Putin a “war criminal” and says that Russia’s war in Ukraine amounts to “genocide,” what does it mean? Do such prounouncements place obligations on the United States? Does it threaten some sort of legal jeopardy for the Russian president? When an artilleryman a thousand yards away sends a projectile slamming into an apartment building full of civilians, is that a war crime? Is the soldier who released the shell more or less responsible than the politician a thousand miles away who ordered the assault on a city? Ray Suarez tackles these questions with a war-crimes prosecutor and a former student organizer who played a critical role in the downfall of Yugoslav President Slobodan Milosevic, who was the first sitting head of state indicted for war crimes. Guests: Ivan Marovic, International Center on Nonviolent Conflict Alex Whiting, war-crimes prosecutor and visiting professor at Harvard Law School

  • Holding Russia Accountable for Possible War Crimes

    April 18, 2022

    Michael Newton, Law professor and former Senior Advisor to the U.S. Ambassador-at-Large for War Crimes Issues, and Visiting Harvard Law professor, Alex Whiting who is also deputy specialist prosecutor at the Kosovo Specialist Prosecutor’s Office in The Hague, join host Carol Castiel to discuss potential war crimes committed by Russian forces in Ukraine and the important ongoing process of documenting evidence, which is needed to hold perpetrators, up to and including Russian President Vladimir Putin, accountable at the ICC or any other national or international venue.

  • Why Ukraine War Crimes Trials Could Take Many Years

    April 18, 2022

    The brutalities of Russia’s war in Ukraine have stoked enormous demand among Ukrainians and much of the Western world for investigations, indictments, arrests and trials for the invaders and their commanders, notably President Vladimir V. Putin of Russia. Some leaders, including President Biden, have even accused them of genocide. ... “There’s no question an act of aggression was done,” said Alex Whiting, a visiting professor of international law at Harvard and a war-crimes prosecutor. “And the most straightforward case, in a crime of aggression, is against Putin himself.”

  • Russia has been accused of war crimes. But will anyone be tried for them?

    April 14, 2022

    This week, the European Union announced it will provide funding and support to prosecutors from the International Criminal Court who are investigating alleged war crimes. The move comes days after E.U. President Ursula von der Leyen visited Bucha, a Kyiv suburb where hundreds of Ukrainian civilians have been found dead in the streets. On Sunday, U.S. National Security Advisor Jake Sullivan told ABC’s “This Week” that Russian forces are intentionally targeting civilians as part of their strategy. However, when asked whether the U.S. would be involved in prosecuting the alleged war crimes through the International Criminal Court, Sullivan deferred. The United States has a complicated relationship with the ICC. Neither the U.S. nor Russia are signatories to the Rome Statute, which established the court back in 2002. And the U.S. has long been opposed to allowing the court jurisdiction over citizens of countries that aren’t part of the ICC. We have a panel of legal experts to discuss the path forward on war crimes in Ukraine. GUESTS Alex Whiting Deputy Prosecutor of the Kosovo Specialist Prosecutor’s office

  • What war crimes investigators are searching for in Ukraine

    April 13, 2022

    As attacks mount on Ukrainian civilians, Alex Whiting, a former head of Investigations and Prosecutions at the International Criminal Court in the Hague, tells MSNBC’s Lawrence O’Donnell what goes into the investigations into potential war crimes and genocide in Ukraine. “All of that evidence will be critical in showing civilians were intentionally targeted,” Whiting says.

  • The Race to Archive Social Posts That May Prove Russian War Crimes

    April 13, 2022

    In early April, as Ukraine started to regain control of Bucha and other small towns northwest of Kyiv, appalling imagery began to spread on Telegram and other social networks. Photos and videos showed bodies in the streets and anguished survivors describing loved ones, civilians, killed by Russian soldiers. In Chernivtsi, in western Ukraine, attorney Denys Rabomizo carefully built an archive of the gruesome evidence. His aim: to preserve social media posts that could help prove Russian war crimes. ... “Capturing social media from Ukraine is an incredible source of evidence,” says Alex Whiting, deputy prosecutor at the Kosovo Specialist Prosecutor’s Office in the Hague, and a visiting professor at Harvard University. A deluge of TikTok and Telegram posts could vastly increase the amount of evidence of alleged Russian war crimes—but they will only aid prosecutions if judges accept such material in court.

  • Chernihiv: Are these Russia’s weapons of war?

    April 13, 2022

    There have been urgent calls for investigations into allegations of war crimes in previously Russian-held areas of Ukraine after shocking footage of murdered civilians. But there are wider questions over whether widespread Russian attacks on civilian targets amount to war crimes. We've been looking at a series of attacks in one city - Chernihiv - to see whether they are consistent with Russian tactics across Ukraine and reveal something of their strategy. ... A critical factor in any prosecution for war crimes is obtaining clear evidence of a deliberate intent to target civilians. Images and eye-witness statements can be the starting point, says Prof Alex Whiting, a former investigations co-ordinator at the International Criminal Court.

  • Bringing Putin to trial over alleged war crimes in Ukraine could take years, unless Russia gives him up

    April 13, 2022

    Gathering evidence of war crimes in Ukraine will be a fairly straightforward process, international prosecutors have said. The most difficult task will be linking those crimes to Russian President Vladimir Putin, who may escape accountability altogether. The International Criminal Court (ICC) has launched an investigation into the atrocities committed in Ukrainian cities such as the scenes witnessed in Bucha, where horrific images appeared to show dozens of civilians shot at close range with hands bound behind their backs. The gruesome discovery was made after Russian troops abandoned the city on 30 March. ... Time can also help with investigations, Alex Whiting, a former ICC prosecutions coordinator and visiting professor at Harvard Law School in the US, told i. Given the enormous power he yields and the great amount of support he enjoys at home, it seems unlikely that Mr Putin would be surrendered to the ICC by his loyal inner circle if he were to be charged with war crimes. But those close ties could erode as time goes on, especially as the leadership comes under intense pressure from sanctions and international condemnation, Professor Whiting said.

  • Germany intercepts Russian talk of indiscriminate killings in Ukraine

    April 8, 2022

    Germany’s foreign intelligence service claims to have intercepted radio communications in which Russian soldiers discuss carrying out indiscriminate killings in Ukraine. In two separate communications, Russian soldiers described questioning Ukrainian soldiers as well as civilians and then shooting them, according to an intelligence official familiar with the findings who, like others, spoke on the condition of anonymity because of the matter’s sensitivity. ... Alex Whiting, a visiting professor at Harvard Law School who previously coordinated investigations at the International Criminal Court in The Hague, said the key question to discern from intercepted communications is whether soldiers were “acting pursuant to some plan or some general direction.” “Just the fact that they would be talking to each other about these killings would indicate that and would disprove any suggestion that these were kind of spontaneous, random events,” he added.

  • Up-Close Ukraine Atrocity Photographs Touch a Global Nerve

    April 5, 2022

    Perhaps it was the way the lifeless bodies, bloodied by bullets, and some with hands bound, had been left strewn about or shoveled into makeshift mass graves. Or the reality of seeing them up close in widely circulated photographs and videos. There have been other atrocities in the weeks since Russia invaded Ukraine, concentrating much of its firepower on the dwellings and gathering spots of ordinary Ukrainians, but the international outrage they provoked has been eclipsed by the reaction to revelations that retreating Russian soldiers left many slain civilians behind near the Ukrainian capital. ... “What’s different here is that you have images of civilians with their hands bound and executed — that’s a completely different kind of crime,” said Alex Whiting, a visiting professor at Harvard Law School who has worked on international war crimes prosecutions. “This very much looks like a crime.”

  • Explainer-How could Russia’s Putin be prosecuted for war crimes in Ukraine?

    April 5, 2022

    U.S. President Joe Biden on Monday called for the prosecution of Russian President Vladimir Putin for war crimes over the discovery in Bucha, Ukraine, of mass graves and bodies of bound civilians shot at close range, but various challenges stand in the way. ... Alex Whiting, a visiting professor at Harvard Law School, said the latest images will make the case easier to prosecute. “The question then becomes, who’s responsible and how high up does it go?” he said. Cases will be easier to build against soldiers and commanders but they can also pursue heads of state, experts said.

  • Putin unlikely to face punishment for any war crimes in Ukraine

    April 5, 2022

    President Biden has called Vladimir Putin a "war criminal," and said Monday the Russian leader should face a trial over the alleged atrocities in Ukrainian city of Bucha. Yes, but: While similar calls have echoed worldwide, Putin is unlikely to be held criminally accountable, at least as long as he remains in power. The big picture: War crimes have been historically hard to investigate and often even more challenging to prosecute. This is especially true when prosecutors seek to hold leaders or former leaders accountable. For clear cases of war crimes, often the main challenges are determining who is responsible, and what evidence exists that can establish culpability, according to Alex Whiting, a Harvard Law School visiting professor and deputy specialist prosecutor at the Kosovo Specialist Prosecutor’s Office in The Hague.

  • Could Russia Get Away With War Crimes in Ukraine?

    April 1, 2022

    War crimes happen whenever there is war, but seldom have they been investigated in real time and within weeks of the outbreak of hostilities, as is happening with Russia's invasion of Ukraine. After a brief initial hesitation to publicly brand the architects of the Ukraine invasion as war criminals, the United States and its European allies began issuing explicit statements about what they were seeing before the war was one month old. ... U.S. laws even limit the ways the U.S. can support ICC investigations, according to Alex Whiting, a visiting professor at Harvard Law School. "The U.S. has actually taken the position that there are different ways to hold alleged Russian perpetrators to account, citing Ukrainian law and the possibility of prosecutions under that law, prosecutions by third states with jurisdiction, and then finally the ICC," Whiting told VOA.

  • Ukraine war crimes probe has ‘enormous momentum’: Hague lawyer

    March 31, 2022

    Longtime war crimes prosecutor Alex Whiting, a visiting professor at Harvard Law School, speaks to reporter Karen Sloan from The Hague about the outlook for indictments by the International Criminal Court.

  • Explainer-How could Russia’s Putin be prosecuted for war crimes in Ukraine?

    March 22, 2022

    U.S. President Joe Biden has publicly called Russian President Vladimir Putin a war criminal, but legal experts said a prosecution of Putin or other Russian leaders would face high hurdles and could take years, as outlined below: HOW IS A WAR CRIME DEFINED? The International Criminal Court in The Hague defines war crimes as “grave breaches” of the post-World War Two Geneva Conventions, agreements which lay out the international humanitarian laws to be followed in war time. Breaches include deliberately targeting civilians and attacking legitimate military targets where civilian casualties would be “excessive,” legal experts said. ... “If it keeps happening again and again and the strategy appears to be to target civilians in urban areas, then that can be very powerful evidence of an intent to do so,” said Alex Whiting, a visiting professor at Harvard Law School.

  • Russian forces tighten grip on Kyiv gateway as residents describe growing perils

    March 9, 2022

    As thousands flee the besieged Kyiv suburb Irpin, allegations are emerging of Russian forces looting, hiding military equipment in residential areas, deploying snipers and cutting water and power as they seek to use the area as a potential launchpad to invade the capital. ... “There is nothing clearly to prohibit cutting water and power” in international law, he said in an email. But under the Rome statute, which governs the International Criminal Court, it is a crime to intentionally starve civilians or “cause conditions where they can’t survive,” according to Alex Whiting, an international law expert and visiting professor at Harvard Law School.

  • Will Russia Face War Crime Charges Over Attacks on Ukrainian Hospitals?

    March 8, 2022

    As much of the international community continues to find ways to help Ukraine fight back against Russia's full-scale invasion, some are already looking to find ways to hold Russian President Vladimir Putin accountable for the attacks that have claimed at least 406 civilian lives. ... "It's a war crime to target civilians or civilian objects, like hospitals, and it's specifically a war crime to target hospitals, but you do have to prove that that was the intent, that it was intended as an attack on the hospital and that there were no military targets nearby," former ICC prosecutor and Harvard Law professor Alex Whiting told Newsweek. "So proving it's a war crime is challenging, but if the hospital is targeted, it is definitely a war crime."

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    The International Criminal Court: Explaining war crimes investigations

    March 4, 2022

    Amid the Russian invasion of Ukraine, Alex Whiting, deputy specialist prosecutor at the Kosovo Specialist Prosecutor’s Office in The Hague, outlines the path from investigation to trial, and ultimately to justice.

  • Activists Deplore the Human Toll and Environmental Devastation from Russia’s Unprovoked War of Aggression in Ukraine

    March 4, 2022

    Fears over environmental catastrophes are growing among humanitarian experts and environmental organizations as the Russian invasion of Ukraine moves into its second week. On Friday, over 1,000 organizations and individuals from more than 75 countries released an open letter expressing their solidarity with the people of Ukraine and voicing concern over the war’s environmental and human toll. ... Alex Whiting, a Harvard Law professor and former prosecutor at the International Criminal Court, said the way the crime is defined, requiring a balancing between military advantage and environmental damage, coupled with the extremely high threshold of “widespread, long-term and severe damage” makes it extremely unlikely the prosecutor’s office will focus on this provision.

  • Is Russia Targeting Ukraine’s Hospitals?

    March 3, 2022

    Russian President Vladimir Putin didn’t plan on such fierce military resistance to his invasion of Ukraine, and now he’s predictably lashing out. Russian forces have begun indiscriminately bombing civilian targets, including a missile strike Tuesday in Zhytomyr, 90 miles west of Kyiv, that destroyed the Pavlusenko maternity hospital, according to reporters and Ukraine’s foreign ministry. At least two people died in the bombing. ... But building such a case is complex, and winning one is rare. “There aren’t a lot of war crime prosecutions involving targeting, which are called conduct of hostilities cases,” said Alex Whiting, a professor at Harvard Law School and a former Deputy Prosecutor and Lead Investigator at the ICC. “They’re particularly challenging cases to bring because of the intent requirement. You have to prove the accused intended to target civilians or to use disproportionate force, and that’s often hard.” Historically, prosecutors have favored bringing charges against those responsible for massacres or other more easily demonstrated crimes.

  • Harvard librarian puts this war crime on the map

    February 21, 2020

    In August 1992, in the Bosnian city of Sarajevo, nearly 2 million books went up in flames. Fragile, 500-hundred-year-old pamphlets and vibrant Ottoman-era manuscripts disintegrated into ash as the building holding them, the National Library of Bosnia-Herzegovina, was shelled and burned. It was not the first act of cultural destruction by Serbian forces against other ethnic groups in the Balkans, and it certainly wasn’t the last: Over the next seven years, Serb nationalists led by dictator Slobodan Milosevic would wreak havoc across the Balkan region. ... Alex Whiting, a Harvard Law School professor and former prosecutor for the ICTY, credits Riedlmayer’s thorough documentation with lasting change in how cultural heritage destruction is viewed. “In cases where thousands of people have been brutalized, driven from their homes, tortured, and murdered, trying to get the court to focus on destruction of churches or monuments can be hard,” Whiting said. “[Riedlmayer’s] work showed this was more than just destruction of buildings … cultural genocide is a people being attacked.”

  • Specialist Prosecutor’s Office appoints Head of Investigations

    June 17, 2019

    Alex Whiting has joined the Specialist Prosecutor’s Office (SPO) as Head of Investigations. Whiting, 54, is a prosecutor of French and US nationality with extensive experience of both domestic and international prosecutions, including stints at both the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as a distinguished academic career, the SPO announced on Thursday. According to the SPO Whiting came to the SPO from Harvard Law School, where he had been a professor of practice since 2013.

  • Photo of Radhika Kapoor

    Radhika Kapoor: ‘I want to be able to help develop transitional justice norms’

    May 21, 2019

    Radhika Kapoor LL.M. ’19 came to HLS to take advantage of Harvard’s institutional expertise in international law, humanitarian law and post-conflict stability—and to foster her love of reading.

  • ICC Prosecutor Signals Important Strategy Shift in New Policy Document

    May 17, 2019

    An op-ed by Alex Whiting: The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has released for comment a draft of her Strategic Plan for the final years of her mandate, 2019-2021. Overall, the plan shows that the Office of the Prosecutor (OTP) is frankly seeking to confront and meet the many challenges that the Court has encountered over the last few years. The most significant change in policy is with respect to the types of cases the OTP will consider bringing. Without abandoning the goal of charging the highest-level perpetrators in a situation, the new draft policy fully embraces an approach of bringing cases that are more modest – either narrower in scope or against lower-level accused, namely mid-level commanders or notorious perpetrators – when it can. While this change may be controversial, it is the best path forward to strengthening the work of the Court.

  • Barr Revealed His ‘Stunning’ Theory For Clearing Trump Of Obstruction

    May 2, 2019

    During his Senate Judiciary Committee hearing Wednesday, Attorney General Bill Barr distilled his controversial views on executive power and obstruction into their simplest form yet – and left legal experts stunned. ...But beyond the concerns with Barr’s legal rationale, experts said his hypothetical didn’t apply to the facts of what Trump actually did. “I think it undermines the President’s case, not support it, because it is so far from what the President did here,” Alex Whiting, a Harvard law professor and former federal prosecutor, told TPM.

  • Thumbs Up for Big Brother’s Big Stick

    April 29, 2019

    The International Criminal Court’s recent rejection of its chief prosecutor’s request to investigate alleged war crimes and crimes against humanity in Afghanistan has laid bare the limitations of its working. The statement of the Court that the current situation in Afghanistan “made the prospects for a successful investigation and prosecution extremely limited” has shocked civil society. ... The judges of the pre-trial chamber seem to have considered not only the interest of justice, but also the prospects of success as equally important in deciding the prosecutor’s request. Alex Whiting in his analytical article on the ICC decision in, said the judges found strong evidence to indicate that for the moment at least, an investigation in Afghanistan simply could not succeed.

  • Mueller report breakdown, Kim Foxx saga, author of new John Roberts bio and more

    April 23, 2019

    Harvard Law School professor and former prosecutor Alex Whiting joins the show to break down the Mueller Report from a legal perspective.

  • Parsing the Mueller report: A Q&A with Alex Whiting 1

    Parsing the Mueller report: A Q&A with Alex Whiting

    April 19, 2019

    Hours after the Mueller report was released, the Harvard Gazette spoke with former prosecutor Alex Whiting, a professor of practice at Harvard Law School who teaches issues and procedures related to domestic and international criminal prosecutions.

  • The (Redacted) Mueller Report: First Takes from the Experts

    April 18, 2019

    Special Counsel Robert Mueller’s final report, as redacted by the Department of Justice, is now released. Here are some early reactions from legal and intelligence experts. For additional background, see our “Hot Topics” archive on the Russia investigation. ... Alex Whiting (@alexgwhiting), Professor at Harvard Law School and member of the board of editors of Just Security. He served as a former federal prosecutor at the Department of Justice and the U.S. Attorney’s Office in Boston, also hones in on obstruction, including several ways in which Mueller’s report is more damaging to the President than Barr’s summary implied: Four things jump out from an initial read of the obstruction section of the Mueller report. First, Mueller declined to make a call on whether the President committed criminal acts of obstruction solely because of the Justice Department’s current policy that a sitting President cannot be indicted, not because he concluded that such charges could not be supported legally or factually. In fact, he says that they would have stated if they found that he “clearly did not commit obstruction of justice.”

  • Parsing the Mueller report

    April 18, 2019

    Nearly a month after special counsel Robert Mueller handed in his report to U.S. Attorney General William Barr on the 22-month investigation into Russia’s interference in the 2016 presidential election, the public finally got its first look at the document Thursday. ...To start to make sense of it all, hours after the report was released, the Gazette spoke with former prosecutor Alex Whiting, a professor of practice at Harvard Law School who teaches issues and procedures related to domestic and international criminal prosecutions. He serves on the board of editors and writes regularly for Just Security, a popular U.S. national security law and policy website. From 2010 to 2013, Whiting supervised prosecutions in the Office of the Prosecutor at the International Criminal Court in the Hague.

  • Hague Court Abandons Afghanistan War Crimes Inquiry

    April 12, 2019

    Backing off a confrontation with the Trump administration, judges at the International Criminal Court said Friday that they had rejected their own prosecutor’s request to open an Afghanistan war-crimes investigation, which could have implicated American forces. ... “The perception will be that the court cowed to Washington, but the judges are being realistic,” said Alex Whiting, a former American prosecutor at the court who now teaches at Harvard Law School. He said that lessons drawn from recent setbacks and failed cases at the court showed it must focus on situations where it can succeed. “The prosecution has already come to that realization and now the judges are too,” he said.

  • The ICC’s Afghanistan Decision: Bending to U.S. or Focusing Court on Successful Investigations?

    April 12, 2019

    An article by Alex Whiting: In a surprise decision, a Pre-Trial Chamber at the International Criminal Court (ICC) has rejected the Prosecutor’s request, filed nearly 18 months ago, to open an investigation of war crimes and crimes against humanity in Afghanistan, including of allegations that U.S. forces and the CIA committed acts of torture there. In light of recent threats from both National Security Advisor John Bolton and Secretary of State Mike Pompeo to retaliate against the ICC if such an investigation proceeded, and the U.S government’s recent cancellation of the ICC Prosecutor’s visa to travel to the U.S., there is already a perception that the Court caved to U.S. pressure. An examination of the larger context of the case, however, and the ICC’s current challenges, suggests that this view is incomplete. In fact, this decision will likely come to be seen as the beginning of a broader effort by the judges and the Prosecutor to orient the Court’s very limited resources toward those investigations where there exists some meaningful prospect of success.

  • The Public-Health Case Against Nicolás Maduro

    April 8, 2019

    In medical school, we learned about the ghastly effects of severe protein-calorie malnutrition. But we thought that conditions such as kwashiorkor and marasmus were mainly of historical significance, the scourges of long-ago wars and prison camps. We did not expect to witness them in our lifetimes. Yet today, severe malnutrition is engulfing Venezuela, with catastrophic consequences for the country’s people and its future generations. ...Second, an investigation by the ICC, which 122 countries have joined, would send a clear message about the enforceability of norms through international law. Although public-health claims have not yet been used as a basis for international criminal charges, some experts believe that they could be. According to Alex Whiting, a Harvard Law School professor and former Prosecutions Coordinator at the ICC, “when certain regimes adopt extreme policies that strangle their own populations, we have to consider (and investigate) whether it meets the threshold of international criminality.”

  • Obstruction of justice is difficult to prove, legal experts say

    March 26, 2019

    Special counsel Robert Mueller’s decision not to render a legal decision on whether President Donald Trump attempted to obstruct the Justice Department’s Russia probe underscores the difficulty of proving obstruction of justice cases, said former federal prosecutors and legal experts. ... Alex Whiting, a professor at Harvard Law School and a former federal prosecutor, said “obstruction of justice cases are famously hard to prove.”

  • Here’s what legal experts say about the Mueller report findings

    March 26, 2019

    No collusion? No obstruction. That’s what Attorney General William Barr appears to believe, at least in part. Legal experts say the fact that special counsel Robert Mueller did not find that President Trump and his associates and the Russian government colluded to interfere in the 2016 election appears to have been a major factor in Attorney General William Barr’s decision not to charge Trump with obstruction of justice. ... “I think he is saying that the fact that there are no underlying substantive criminal charges makes it more difficult to prove the elements of an obstruction charge, and that’s true. Obstruction cases are famously hard to prove, both as a legal matter and to a jury,” Harvard Law Professor Alex Whiting, a former federal prosecutor, said in an e-mail.

  • Graham Expects Some of Mueller Report to Stay Secret

    March 26, 2019

    Predicting that the public will not see the full report on Russian meddling in the 2016 U.S. elections, Senator Lindsey Graham noted Monday that material covered by executive privilege will likely be kept under wraps. ... For Harvard Law professor Alex Whiting, getting the full report won’t change the outcome of its conclusions, which he says clear the president of criminal wrongdoing on both collusion and obstruction. “I think he’s exonerated of the criminal law charges and I think we have to move on. And I actually think that’s actually a good thing,” Whiting said in a phone interview. “I don’t think the Mueller investigation was ever going to topple Trump, legally or politically.”

  • 6 Experts Answer: Have We Heard The Last of Bob Mueller?

    March 25, 2019

    The headlines call his report a nothingburger. Our diverse panel of insiders says not so fast. ... Alex Whiting, professor at Harvard Law School, and former federal prosecutor with the Criminal Section of the Civil Rights Division and the US Attorney’s Office in Boston: I think the facts contained within the report could be significant politically, but not criminally. With respect to possible criminal charges, the report and Barr’s decision on obstruction effectively exonerate Trump.

  • Why this one rationale for not releasing the Mueller report won’t fly

    March 20, 2019

    An op-ed by Alex Whiting, Ryan Goodman and Nancy GertnerIn public remarks last month, Deputy Attorney General Rod J. Rosenstein hinted about the fate of special counsel Robert S. Mueller III’s report on the results of the investigation into Russian interference in the 2016 presidential campaign. While not speaking about any particular case, Rosenstein reiterated the department’s policy of not publicly commenting on the evidence in cases where charges are not brought. This might affect the report’s release, as Mueller is expected to abide by the Justice Department’s policy that a sitting president cannot be indicted. Rosenstein described his message he has given to prosecutors and agents during his tenure: “If we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.” Attorney General William P. Barr’s message at his confirmation hearing in January was much the same: “If you’re not going to indict someone, you don’t stand up there and unload negative information about the person.” The policy reflects a basic norm within the Justice Department. Then-FBI director James B. Comey was widely condemned, including by the department’s inspector general, for violating it during the 2016 presidential campaign when he publicly criticized Hillary Clinton’s conduct regarding the use of a private email server while secretary of state, even as Comey announced that the FBI had not found sufficient evidence to recommend criminal charges. Yet a closer look at the department’s policy suggests that Rosenstein’s approach might not apply to the Mueller report.

  • Revisiting the Mladić Trial Amidst Trump Admin’s Attacks on International Criminal Justice

    March 19, 2019

    International criminal justice has hit a rough patch. The work of the International Criminal Court (ICC) is under regular attack from the Trump administration, which opposes the Court’s intention to open an investigation into alleged war crimes in Afghanistan. Just last week, Secretary of State Mike Pompeo announced the United States would restrict visas for ICC officials involved in any such investigation, stating “The ICC is attacking America’s rule of law.” ... “You need these kinds of films every once in a while to remember why the project is worth fighting for,” Just Security’s Alex Whiting told me. Whiting previously worked as a senior trial attorney with the ICTY, where he was lead counsel in several war crimes and crimes against humanity prosecutions, and he wrote about the Mladić verdict when it was announced in 2017. “The Ratko Mladić trial shows why accountability for international crimes is so important,” Whiting said. “Mladić claimed to have an alibi for the massacre of some 8,000 Bosnian Muslim men and boys at Srebrenica and blamed rogue elements. He claimed that Serb forces were not responsible for the campaign of terror on Sarajevo, and that there was no ethnic cleansing of Bosnia in 1992. The Trial Chamber rejected all of these false defenses and found that Mladić and other Bosnian Serb leaders, including Radovan Karadžić, orchestrated the crimes for their own nationalist ends. Exposing how war crimes, crimes against humanity, and genocide are perpetrated by design and for a purpose is an essential step to preventing them in the future.”

  • Cohen and Abrams: A double standard on lying to Congress?

    March 1, 2019

    When Michael Cohen, President Donald Trump’s former personal lawyer and convicted felon testified before a House committee, his Republican questioners had one main line of attack: He was a confessed liar who could never be believed. Near the end of Cohen’s testimony, Rep. Ilhan Omar, D-Minn., compared him to another confessed liar who later appeared before Congress — Special Representative to Venezuela Elliott Abrams. ... Right now, the main difference vis-à-vis false congressional testimony, is that Abrams has been pardoned and Cohen has not. That gives more support for challenging Cohen’s testimony, said Harvard law professor Alex Whiting. But Whiting cautioned that such distinctions are subjective.

  • Trump faces a legal reckoning – but are his worst troubles yet to come?

    February 25, 2019

    For most of his life, Donald Trump has managed to stay a step ahead of the courts, the cops and the accountants. Two years into his presidency, however, he appears to be nearing a crossroads of accountability. Reports flew this week that special counsel Robert Mueller was preparing to close up shop. ... Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court, said a conclusion of the Mueller investigation would “open up space” for congressional inquiries to take the lead, “and that would start a whole new phase of this information becoming public and being investigated”.

  • A Ruling is Expected Soon in the Obscure Case that May Determine Whether You Ever Get to Read the Mueller Report

    February 13, 2019

    Just as Special Counsel Mueller‘s probe has begun to wind down, a new debate is ramping up: What if the public never gets to see his report? ... “It’s sort of uncharted waters,” says Alex Whiting, a professor at Harvard Law School. “If McKeever goes the way the Justice Department argues, it could become a very serious impediment” to the public seeing a detailed report from Mueller.

  • We Asked 5 Experts: Is Roger Stone the Key to Collusion?

    February 8, 2019

    During the 18 months of the Special Counsel Robert Mueller‘s investigation, a cadre of legal experts have helped the public decipher the tight-lipped former FBI chief’s ongoing probe. We’ll be checking in with these “Muellerologists” periodically at Washingtonian. ... Alex Whiting, professor at Harvard Law School and former federal prosecutor with the Criminal Section of the Civil Rights Division and the US Attorney’s Office in Boston. "The Stone indictment indicates that the Mueller investigation has developed evidence of collusion between the Trump campaign and foreign sources of influence, including the Russians. The indictment alleges that after the first release of hacked DNC emails by Wikileaks—when it was already publicly known that the Russians had done the hacking—members of the Trump campaign asked Stone to obtain information about future releases from Julian Assange. These actions could amount to criminal violations of campaign finance laws, which prohibit the solicitation of a thing of value (the DNC emails qualify) from a foreign source."

  • Here’s how a grand jury works and why the government shutdown is affecting the grand juries in the Mueller investigation

    January 24, 2019

    So far, there are two known grand juries, one in DC and one in Virginia, tasked with hearing testimony and reviewing evidence into Mueller probe into Russian interference in the 2016 election and whether the Trump campaign collaborated with Moscow. Dozens of anonymous jurors have been behind all 22 indictmentsMueller's team has handed down — and will be central to the investigation's work moving forward. ... Former federal prosecutor and Harvard law professor Alex Whiting told the Washington Post that witnesses not having a defense attorney as a buffer decreases the likelihood of them lying to the jury, but also makes it easier for them to be indicted. "It's very hard to lie when you don't know anything about what the prosecutor knows or what the charges are," he said.

  • This Charge Is Different

    January 18, 2019

    It’s not just the collusion. It’s the conspiracy. Thursday evening, BuzzFeed News dropped a bombshell, reporting that President Donald Trump told Michael Cohen, his former personal attorney, to lie to Congress about the Trump Organization’s pursuit of a real-estate project in Moscow during the 2016 election, during a period in which the Russian government was seeking to aid Trump’s presidential campaign. ... “If it is true, and can be proven, that Trump directed Cohen to lie to Congress, then he has no wiggle room,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “There has been some debate about whether acts by the president to curtail a criminal investigation can be obstruction, since he is the head of the executive [branch] … but instructing or encouraging another person to lie under oath to Congress falls outside of that debate. There is no question that it was a crime for Cohen to lie to Congress, and Trump’s role in soliciting or directing that lie makes him criminally liable as well.”

  • Six Experts Explain Robert Mueller’s Impending Supreme Court Showdown

    January 2, 2019

    ... This week, the drama intensified, when the Supreme Court signaled an interest in the case. In a court order issued Sunday, Chief Justice John Roberts granted a stay to the contempt finding, and requested briefings on the case by December 31. Before the Supremes had a chance to weigh in, we had asked our panelists: What’s going on in the mysterious case? And what does it tell us about the direction of the Mueller probe? ... Alex Whiting, professor at Harvard Law School, and former federal prosecutor with the Criminal Section of the Civil Rights Division and the US Attorney’s Office in Boston: From the few clues that we have, it seems likely that the subpoena at issue pertains to the Mueller investigation, but it is difficult to know what corporation or company it involves. And that is perhaps what is most striking about this episode: it underscores the broad reach and scope of the Mueller investigation.