Alex Whiting

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.

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.

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.”

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.”

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.

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.”

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.

An op-ed by Alex Whiting, Ryan Goodman and Nancy Gertner: In 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.

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.”

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.

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”.

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.

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."

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.

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.”

... 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.

After two years of the Donald Trump presidency, the national stores of civic goodwill are depleted. That could make for a testy 2019, because it appears that the country’s defining political tensions are about to break into open clashes. ... “I think the biggest question is, is he going to present evidence that Trump committed crimes?” said Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court. “Either obstruction of justice or collusion. He wouldn’t bring an indictment because justice department policy won’t permit it. But whatever evidence would be handed off, I think, to the Congress, and it will have to be considered. That’s as big as it gets. I think that’s really – that’s the ultimate question.”

Less than two weeks after joining President Trump’s legal team last April, Rudy Giuliani let slip to Sean Hannity that his client reimbursed Michael Cohen for the $130,000 he paid Stormy Daniels prior to the 2016 election. This contradicted Trump’s claim that he had no knowledge of the payment, which has since been thoroughly disproven. At the time, the president tried to explain that Giuliani had yet to “get his facts straight” while preaching the need to “learn before you speak.” ... Despite the typo-ridden arguments Giuliani and Trump have laid out on Twitter, this is not the case. As Harvard Law professor Alex Whiting pointed out the same day as Giuliani’s walk-back tweet, if Trump were to be convicted of the crimes the SDNY seems to have proof he committed, he would be looking at a minimum of close to three years in prison.

...“I think there will be a report at the end, because I think there’s a whole lot more that needs to be laid out and put together, and the whole picture presented,” said Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court. “People have talked about he’s trying to get the story out through these speaking indictments and speaking informations. I don’t think that – my guess is that Mueller is just sort of doing his job and and doesn’t have some sort of grand strategy that way.”

The Assembly of State Parties to the International Criminal Court opens its annual session on December 5 in The Hague. Here are the main topics and issues that will be discussed. They give a hint of the Office of the Prosecutor’s priorities and dilemmas, and the hot debates that they will trigger in the coming year...Then there’s Ivory Coast, where, after the focus on pro-Gbagbo forces, now come the pro-Ouattara forces (CIV II). Here the court says there’s been “good progress” but, since Ouattara and supporters are in power, [Alex] Whiting agrees this is “extremely challenging”. He believes “the OTP deserves a lot of credit for continuing to press this” and suggests this investigation shows how committed the OTP is to “balance” and not remaining trapped into one-sided investigations. “One can only hope that the Ouattara government understands that the credibility of investigations on the other side, the credibility of its own government, the credibility of its efforts to have accountability, will depend on how much it cooperates,” says Whiting. “But not every government sees that... So, those will be difficult investigations.”

Special counsel Robert Mueller marked a return to an “active” public phase in the Russia investigation this week, with a rapid-fire series of court filings and document releases that followed a quiet period around the midterm elections and the Thanksgiving holiday...“A lot of people are trying to give false information to the American public and to the investigation, and the Mueller team is not being derailed,” said Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court. “They are uncovering false statement after false statement, because they are able to prove what actually happened. “That strikes me as the unifying theme, that the Mueller team knows a lot.”