Alex Whiting

Two experts discuss a new trend in international criminal justice: the setting-up of evidence-gathering bodies by the United Nations when other, immediate, accountability options are lacking. Are they a replacement for a larger failure, or a sign of a resilient international system that adapts to hostile geopolitics?...“In a way they could be seen as a reflection of a larger failure because they are second-best options for these situations,” says Harvard law professor Alex Whiting, a former prosecutor at the International Criminal Court and International Criminal Tribunal for the former Yugoslavia. “They are stop-gaps because there hasn’t been a referral or a tribunal set up, or any other kind of accountability. So these are a replacement for that failure. On the other hand, I think you could look at it as a sign of growth and development of the international justice project.

...“These cooperation agreements are written in such a way that you’re much worse off if you do this,”Alex Whiting, a former federal prosecutor said, arguing that Manafort would have been better off had he had just pleaded guilty without agreeing to cooperate. “You’ve committed additional crimes that could enhance your penalty,” Whiting, who is now a Harvard Law professor, told TPM.

...Legal experts called Manafort’s arrangement “extremely unusual”—and potentially unethical depending on what was discussed between Manafort’s lawyer and Trump’s team. Alex Whiting, a former federal prosecutor in Washington, DC and Boston who focused on organized crime and corruption cases, told me that if Manafort approved of his lawyers sharing information with Trump, then he never fully aligned his interests with the government—and was therefore never fully serious about cooperating. “I think it's likely that … it was all a game to buy time, to obstruct the investigation, and perhaps even to find out more about the investigation,” Whiting said.

An article by Ryan Goodman and Alex Whiting. The Acting Attorney General is in a position to seriously undermine the Russia investigation. He could potentially take several steps behind closed doors without the public being able to know in a timely manner. Other steps would be immediately visible. In the final analysis, the principal constraints on the Acting Attorney General if he is considering ways to undercut the investigation are the degree to which that individual is concerned about the personal repercussions of violating the most fundamental norms of his profession, the longer term damage to the institutions of justice, and any political blowback from Congress or the public.

Did the FBI cover up the bomb suspect's van to hide conservative stickers?..."That strikes me as completely standard to protect the integrity of the evidence," Alex Whiting, professor of criminal law at Harvard said. "They will likely examine the van for fingerprints, hair and fiber, and bomb residue."

Former Trump campaign aide George Papadopoulos said Friday he’s considering withdrawing his plea deal with special counsel Robert Mueller after learning “certain information” during an interview with House Republicans on Thursday...Professor Alex Whiting, a Harvard Law School expert on criminal law, called it “virtually impossible.” “When he pled guilty he would have been required to answer questions that would now make it almost impossible for him to succeed,” Whiting said. Whiting said Papadopoulos would have to show that his plea was not voluntary, but was coerced, or that he received ineffective assistance of counsel. “The grounds are narrow and the guilty plea process is designed to ensure that all of the potential grounds are addressed and therefore it is extremely difficult for a defendant to undo a guilty plea,” he said.

Roughly two dozen Harvard Law School professors have signed a New York Times editorial arguing that the United States Senate should not confirm Judge Brett M. Kavanaugh as an Associate Justice of the Supreme Court. Harvard affiliates — including former Law School Dean Martha L. Minow and Laurence Tribe — joined more than 1,000 law professors across the country in signing the editorial, published online Wednesday. The professors wrote that Kavanaugh displayed a lack of “impartiality and judicial temperament requisite to sit on the highest court of our land” in the heated testimony he gave during a nationally televised hearing held Sept. 27 in front of the Senate Judiciary Committee....As of late Wednesday, the letter had been signed by the following: Sabi Ardalan, Christopher T. Bavitz, Elizabeth Bartholet, Christine Desan, Susan H. Farbstein, Nancy Gertner, Robert Greenwald, Michael Gregory, Janet Halley, Jon Hanson, Adriaan Lanni, Bruce H. Mann, Frank Michelman, Martha Minow, Robert H. Mnookin, Intisar Rabb, Daphna Renan, David L. Shapiro, Joseph William Singer, Carol S. Steiker, Matthew C. Stephenson, Laurence Tribe, Lucie White, Alex Whiting, Jonathan Zittrain

National security adviser John Bolton has put the International Criminal Court (ICC) in his crosshairs. In a speech to the conservative Federalist Society on Monday, Bolton pledged the United States would never cooperate with what he called an “illegitimate” court...“There’s almost no doubt that the judges will authorize an investigation of the Taliban, the Afghan government and the U.S. for torture,” said Alex Whiting, a Harvard Law School professor and former ICC prosecutor. “The threshold for getting permission to investigate is quite low.”

An op-ed by Alex Whiting. It is tempting to read or listen to John Bolton’s speech on the International Criminal Court (ICC) and think, we’ve seen this movie before and know its ending. And in many ways, that’s true. In the early years of the George W. Bush administration, Bolton “was honored” (his words) to lead a similar effort to undermine and even destroy the court. That honor did not last. The Bush administration soon retreated from this hostile stance, recognizing that many of the United States’ most important allies were members of the court (of the 29 members of NATO, only the U.S. and Turkey are not) and that the court could serve U.S. interests and policy goals. A major pivot occurred in 2005 when the U.S. assented to the U.N. Security Council referral of Sudan to the court to address the atrocities in Darfur. Obama officials then built on the Bush administration’s revised approach and adopted a policy of constructive engagement with the court, while still not taking any active steps to join.

A landmark decision by the International Criminal Court begins an obstacle course for prosecutors seeking to put Myanmar military commanders on trial for the purge of ethnic Rohingya, while opening the door to other potential cases involving mass exodus, such as Syria...“It’s significant for the Rohingya case because it’s at least a narrow path for some accountability for the crimes committed,” said Alex Whiting, a Harvard Law School professor who previously oversaw investigations for the court.

In a surprise ruling, judges at the International Criminal Court said Thursday that they could exercise jurisdiction to investigate the deportation of hundreds of thousands of Rohingya Muslims from their homes in Myanmar as a crime against humanity....“This ruling is enormously significant since, until now, this is the only route towards a measure of accountability,” said Alex Whiting, professor of international law at Harvard University. “There will be great challenges, but a challenge in itself is not a reason not to act.”

An op-ed by Alex Whiting and Ryan Goodman. Since Paul Manafort was convicted last week, the president and his associates have encouraged speculation about it. Rudy Giuliani, President Trump’s personal lawyer, claims that he has agreed not to pardon anyone related to the investigation by Robert Mueller, the special counsel, until it is completed. Mr. Giuliani explained that he and the president were concerned that a pardon at this stage could be viewed as obstruction of justice. Yet other reporting suggests that Mr. Trump remains eager to move forward on a pardon and is even considering cutting the White House counsel, Don McGahn (who is opposed to it), out of the process. Whether and when he acts, it appears that Mr. Trump has already embarked on a strategy of using his pardon power to silence witnesses in the Mueller investigation.

A little-noticed court case stemming from the apparent murder of a Columbia University professor six decades ago could keep special counsel Robert Mueller from publishing any information about the Trump campaign and Russia that he obtains through a Washington grand jury. The substance of the case is entirely unrelated to Mueller’s investigation into whether any of President Donald Trump’s associates aided Russia’s efforts to intervene in the 2016 election. But if a Washington appeals court set to hear the murder-related case next month sides with the Justice Department and rules that judges don’t have the freedom to release grand jury information that is usually kept secret, it could throw a monkey wrench into any plans Mueller has to issue a public report on his probe’s findings...“It is a sleeper case,” Harvard Law professor Alex Whiting said. “If the D.C. Circuit were to accept the Department of Justice’s arguments…that would have potentially enormous implications for the future of the information from the Mueller investigation. That could close out a path by which that information becomes public.”

The practice of allowing criminal defendants to cooperate, or “flip,” and get reduced punishment in exchange for their testimony against others, which President Trump criticized on Wednesday, is a valuable, commonly used tool in a prosecutor’s tool box, experts say...“The reason that prosecutors focus on the top person is, first, that they are considered to be more culpable, more guilty, more responsible,” said Harvard Law School professor Alex Whiting. "They are both committing crimes and directing others and organizing others to commit crimes. So their responsibility is greater. They’re more at the center of the operation than at the lower level or periphery,” said Whiting.

If substantiated, Michael Cohen’s new assertion—that Donald Trump knew in advance about a 2016 meeting at Trump Tower with Kremlin-connected individuals—would prove that the Trump campaign sought to aid a Russian-influence operation aimed at putting Trump in office. But Cohen’s word on its own is not enough to prove anything...“I think the implications are both political and legal,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “Trump’s public denials that he knew about the meeting are not themselves criminal, even if he knew them to be false. But they could be part of a larger obstruction-of-justice case nonetheless. Mueller could allege that Trump’s false statements were part of an effort to orchestrate a false narrative that would be fed to investigators.”

An op-ed by Alex Whiting. On June 8, the Appeals Chamber at the International Criminal Court (ICC), by a 3-2 vote, reversed the conviction of Jean-Pierre Bemba, a former military commander from the Democratic Republic of the Congo, for failing to prevent or repress the commission of the crimes against humanity and war crimes of murder, rape, and pillage by his subordinate forces in the Central African Republic (CAR) during a four-month period in 2002-2003. In previous essays on Bemba’s conviction and 18-year sentence, I wrote that the Trial Chamber decisions established important precedents regarding the prosecution of sexual violence, as well as the ICC’s reliance on Article 28 of the Rome Statute, which criminalizes the failure of commanders to prevent or repress crimes that they know their subordinates are committing. Those advances have now been, of course, largely obliterated by the Appeals Chamber’s very controversial reversal.

An op-ed by Alex Whiting and Renato Mariotti. How strong is the evidence that Paul Manafort tampered with witnesses in his criminal case, as Special Counsel Robert Mueller now alleges in his motion to revoke Manafort’s bail or modify his conditions of release? Paul Rosenzweig at Lawfare claims that the evidence is “thin,” and on the basis of that conclusion engages in a bit of “speculation” (his word) that Mueller is feeling “pressure” from President Donald Trump, Deputy Attorney General Rod Rosenstein, or the public to move more quickly, and is therefore seeking to “ramp up the pressure” on Manafort in a seemingly desperate bid to get him to cooperate. We disagree.

Special counsel Robert S. Mueller III ramped up the pressure on Paul Manafort on Friday, releasing a new indictment accusing President Trump’s former campaign chairman of obstructing justice and conspiring to do so by contacting potential witnesses in his case. Manafort was already facing two rounds of previous indictments, starting in October, with nearly two dozen charges of financial crimes, including tax evasion and bank fraud related to his lobbying for Ukraine’s former pro-Russian government. He has pleaded not guilty and is scheduled to face trial in Virginia next month and in Washington later this year...Alex Whiting, a Harvard Law School professor and former federal prosecutor who has written about the special counsel case with Mariotti, said Mueller is moving forward “by the book.” “There is no overcharging, no nefarious strategy,” he said. “This is how it’s done day in, day out, in federal court.”

Paul Manafort, the former chairman of President Donald Trump's campaign, has been trying to meet the terms of his $10 million bail agreement since he was first indicted by the special counsel Robert Mueller last October. And he seemed close to making it until Mueller's office accused him on Monday of attempting to influence witness testimony as part of the Russia investigation. The special counsel subsequently asked a court to revoke or revise Manafort's conditions of release...Moreover, judges tend to view witness tampering as a serious offense because it goes to the integrity of the justice system. If prosecutors introduce the charge at Manafort's trial, "it will change the feel of the case with respect to the judge," said Alex Whiting, a former assistant US attorney from Boston and Washington, DC who is now a professor at Harvard Law School.