Alex Whiting

President Donald Trump's legal team is considering proposing a deal to the special counsel Robert Mueller, which would allow him to interview their client in exchange for agreeing to wrap up the Trump-related thread of the Russia investigation, The Wall Street Journal reported Friday..."He may agree to tell the Trump team what will be the areas of questioning, but that's about it," said Alex Whiting, a professor at Harvard Law School and a former federal prosecutor. "The premise of this approach by Trump's lawyers seems to be that they have bargaining leverage because Mueller wants Trump's testimony. But it's more likely the other way around, and Mueller knows it."

Revelations this week that President Donald Trump spoke to key witnesses in the Russia investigation about matters they discussed with the special counsel Robert Mueller's team has legal experts baffled. They say it may open Trump up to potentially serious risks that could contribute to a criminal case against him...Alex Whiting, a professor at Harvard Law School and a longtime former federal prosecutor in Washington, DC and Boston, said it's possible Trump has been talking to witnesses in the investigation all along. "That wouldn't surprise me," he said, "because he is obviously consumed by the investigation and is completely undisciplined when it comes to following rules and basic norms."

An op-ed by Alex Whiting. Is there a fundamental weakness in the potential case of obstruction against President Donald Trump?...The relevant federal criminal provision — 18 U.S.C. § 1512(c)(2) — makes it a crime to obstruct “any official proceeding, or attempt[] to do so.” The statute specifies that “an official proceeding need not be pending or about to be instituted at the time of the offense.” However, as Estreicher and Moosman argue, relying on the Supreme Court’s decision in Arthur Andersen LLP v. United States, prosecutors bringing charges under 18 U.S.C. § 1512 must at a minimum show that an official proceeding, such as a grand jury investigation, was foreseen, and that the defendant knew that his actions would likely affect those proceedings.

A significant recent revelation in the Russia investigation has been largely overlooked in the rush of several breaking news stories over the past few days. A nugget of information is contained in the memo written by Democrats on the House Intelligence Committee (the so-called Schiff Memo), which was released on Saturday morning...In addition to direct involvement in campaign finance law violations or a conspiracy, Alex Whiting, a professor at Harvard Law School and former federal prosecutor, spelled out in detail the potential case for accomplice liability for Papadopoulos and any other campaign officials who may have given him instructions. The most relevant legal question here turns on whether Papadopoulos intentionally encouraged the Russians once they previewed that they were prepared to disseminate the stolen emails.

Fox News legal analyst Gregg Jarrett argued on Wednesday that Deputy Attorney General Rod Rosenstein, former FBI Director James Comey, and other former top Department of Justice officials should be prosecuted for fraud and other crimes for their role in spying on a former Trump campaign official...Legal experts say Jarrett’s claims are pure political theater. “There is no evidence whatsoever that crimes were committed in connection with the use of the Steele dossier, and no serious commentator has even come close to making such a suggestion,” Alex Whiting, a Harvard Law School professor specializing in criminal prosecution issues, told me. “I can only conclude that Jarrett is deliberately seeking to misinform his viewers for political reasons.”

Has indicted former Trump campaign adviser Rick Gates been playing “Queen for a Day”? According to media reports, Gates is finalizing a plea deal with special counsel Robert Mueller and has had a “queen for a day” interview. A “queen for a day” interview happens in a federal case when someone involved in a case offers to tell prosecutors what they know, with prosecutors promising not to use that interview directly against them...Typically, such interviews are held when prosecutors already have the person “dead to rights,” and they want to know what else the person can offer in terms of information that will merit them a plea deal, said Alex Whiting, a Harvard Law School professor whose career includes stints as a federal prosecutor in Boston and Washington as well as at the International Criminal Court in the Hague.

Bringing the first indictment directly related to Russian election meddling in the 2016 U.S. presidential election, Special Counsel Robert Mueller charged 13 Russian individuals and three organizations with illegally plotting to sow political discord and sway the election for then-candidate Donald Trump. The 37-page indictment says the named individuals began conspiring in 2014 to interfere in the American political system, and used false identities to spread divisive political material on social media...Weighing in via email, Harvard law professor Alex Whiting said that the new indictments are important because, up until now, the details about Russian interference in the presidential election were limited to intelligence reports. “Now Mueller is providing specific information about how this was done,” said Whiting, who served as the prosecutions coordinator at the International Criminal Court at the Hague.

Special Counsel Robert Mueller’s indictment of 13 Russian individuals and three organizations for allegedly interfering in the 2016 U.S. presidential election sets the stage for the prosecution of Americans who may have helped the Russian effort, some legal experts said...If an American helped direct the Russian acts, that could lead to charges as well, said Harvard Law School Professor Alex Whiting. “If there were meetings between the Trump campaign and the Russians, and the Trump campaign officials encouraged the Russians or guided them to particular types of work, or provided them assistance so that they could focus their interference, that would be collusion,” said Whiting, a former federal prosecutor.

An op-ed by Alex Whiting. In the last several days, President Donald Trump’s lawyers have floated what appears to be a trial balloon, suggesting that despite Trump’s bold proclamation that he welcomed the opportunity to testify to special counsel Robert Mueller’s team under oath, he might ultimately do a U-turn and refuse to be interviewed at all, under any conditions. If he takes this step, then Mueller could subpoena him to the grand jury, at which point Trump could avoid testifying only by pleading the Fifth Amendment, thereby asserting his right not to incriminate himself.

An interview with Alex Whiting. We begin with the amazingly successful smear campaign the Trump Administration and the Fox News echo chamber has done on fabricating a distraction from the Mueller probe by demonizing the DOJ and FBI to the point that 73% of Republicans believe these institutions that Trump controls are undermining his presidency. As recently as 2015, 84% of Republicans admired the FBI but today only 38% do and we will look into why Republicans have gone along with Trump in destroying one of the GOP’s major assets as the party of law and order.

...As the Trump presidency stumbles into its second year, Robert Mueller, the powerful independent prosecutor investigating the president’s Russia ties, appears startlingly close to concluding a case that could offer damning evidence that Trump or his subordinates committed an obstruction of justice in the Russia affair, former prosecutors and Washington insiders say...“It seems clear that Mueller is coming to the end of the obstruction investigation, but it’s impossible to know where he stands on the collusion investigation and what his timeline would be,” Alex Whiting, a Harvard Law School professor specializing in criminal prosecution issues, said of Mueller.

An op-ed by Alex Whiting and Ryan Goodman. The New York Times is reporting additional details about the drafting on Air Force One of the false statement that Donald Trump, Jr. provided to the press about the June 9, 2016 Trump Tower campaign meeting with Russians, as well as a previously undisclosed conversation among the President and his aides the following day concerning the potential risks and ramifications of the false statement. One participant in this later conversation will reportedly reveal everything he knows to Special Counsel Bob Mueller—that is Mark Corallo, who served as a spokesman for Mr. Trump’s legal team at the time.

An op-ed by Alex Whiting. Although President Trump confidently declared that he is willing to speak to special counsel Robert Mueller under oath, and is even “looking forward to it,” his principal lawyer advising him on the investigation, Ty Cobb, has darkly warned of a “perjury trap.” That “concern” has now been echoed by Trump supporters Roger Stone and Rush Limbaugh, who have both cautioned Trump about speaking with Mueller. So, is Mueller really laying a trap for Trump? No.

The saga of Donald Trump and Robert Mueller took a dramatic new turn on Thursday night when the New York Times first reported that the president had ordered the special counsel to be fired in June last year...We asked legal experts whether they think Mueller now has enough evidence to pursue obstruction of justice charges against the president, or if a different outcome is more likely...[Laurence Tribe]: The president’s foiled effort to rid himself of the Mueller investigation in June 2017, and his now-exposed invention of patently phony excuses for doing so—much as he had invented fake reasons for firing Comey before admitting his actual Russia-related reason on national television—eliminates any possible defense that Trump was clueless about the relevant rules...[Alan Dershowitz]: A president cannot be accused of obstruction for merely exercising his constitutional authority regardless of his motive...[Alex Whiting]: In an obstruction case against President Trump, it is unlikely that there will be a single piece of smoking-gun evidence.

Widespread abuses. Rampant impunity. Forgotten victims. Afghanistan was just the kind of case that the founders had in mind when they set up the International Criminal Court to bring powerful people to justice. More than 15 years later, prosecutor Fatou Bensouda has asked judges for permission to open an investigation into war crimes and crimes against humanity in the country. But with the government, militants and US forces in the prosecutor’s sights, is the ICC promising more than it can deliver to the countless victims who have suffered decades of violence and abuse?...Alex Whiting, a professor at Harvard Law School and a former senior official in the prosecutor’s office, says the ICC is in a difficult situation – which is perhaps why it took 10 years to bring its case to judges. “It you don't act, your legitimacy is undermined, and you look weak and not willing to take on big powers,” he said.

President Donald Trump’s recent tweets about current or former FBI officials could violate laws meant to protect witnesses, according to two former White House ethics lawyers. In recent days, Trump has criticized former FBI Director James Comey, FBI Deputy Director Andrew McCabe and outgoing FBI general counsel James Baker...But Alex Whiting, a Harvard Law School professor and former federal prosecutor, pointed out to Ryan that to violate the witness intimidation law, Trump’s remarks must cross “the line from the ordinary kinds of attacks that investigation targets or defendants might make...over to statements designed to interfere with a witness’s testimony.”

An op-ed by Alex Whiting. The International Criminal Court’s Assembly of States Parties agreed late last week that the ICC can now prosecute crimes of aggression, making it the fourth crime (after war crimes, crimes against humanity, and genocide) to fall within the Court’s jurisdiction. The decision will become effective on July 17, 2018. This development is enormously significant because it is the first time since Nuremberg’s Nazi trials that an international tribunal has been able to prosecute this crime, but given how narrowly they defined the crime, and the scope of the ICC’s jurisdiction, its significance may be largely confined to its declarative and symbolic force, though this is a value that should not be underestimated.

Any American who wants to follow the twists and turns of the Russia investigation quickly runs up against how well they understand the nuanced, sometimes opaque legal process. Like the grand jury. A grand jury is how special counsel Robert S. Mueller III charged President Trump's former campaign chairman, Paul Manafort, and Manafort's right-hand man, Rick Gates, with fraud and financial crimes. But grand juries are shrouded in secrecy — necessarily so, as it turns out...It's supposed to be that way, said Alex Whiting, a former federal prosecutor and current professor at Harvard Law. If you started allowing witnesses to defend themselves in a grand jury, then suddenly you're holding something that more closely resembles a trial. Plus, Whiting said, the mere existence of grand juries act as a check on prosecutors.

An op-ed by Ryan Goodman and Alex Whiting. When it comes to assessing the state of special counsel Robert Mueller’s investigation, it is impossible to know for certain what is going on. Even the most experienced experts and closest observers are ultimately reduced to some measure of conjecture as they predict various outcomes. For this reason, you should be wary of anyone who claims to know for sure. Andy McCarthy’s assertion that the Flynn guilty plea shows “the collusion probe is over” is, in that respect, overdrawn. It may very well prove true that at the end of the day, Mueller fails to establish a criminal case involving collusion. McCarthy’s conclusion about the Flynn plea, however, infers too much from the available facts and fails to account for significant, inconsistent information.

Republicans on the House Judiciary Committee hammered FBI Director Christopher Wray on Thursday over allegations that the probe of Russian interference in the 2016 election brims with bias against the president...Alex Whiting, a former prosecutor and law professor at Harvard University, called Strzok’s text messages a “non-story,” and said those seizing on the story are desperate and attempting to discredit the investigation. “With respect to the broader investigation, there is no evidence that the agent had any opportunity to shape any of the evidence in the case,” he said in an email.

...On Friday, Trump's former national security adviser pled guilty to lying to the FBI. That alone is a big deal, but the real bombshell was that Michael Flynn had agreed as part of a plea deal to work with the FBI in its investigation into Russia's attempts to swing the 2016 U.S. election. The next day, a tweet appeared about the news...Tweets have already been used in plenty of cases, including against Trump — particularly in relation to his attempts at issuing travel bans on certain Muslim-majority countries. Even deleted tweets have been used in court cases. With Twitter, the main challenge is to show that the account belongs to a particular person, according to Alex Whiting, a law professor at Harvard University and a former prosecutor at the International Criminal Court. That's not an issue when it comes to Trump.