Alex Whiting

President Donald Trump’s personal lawyer’s legal arguments in defence of the president’s tweets about former U.S. national security advisor Michael Flynn have been greeted with some scepticism by legal experts. In seeking to explain a Trump tweet on Saturday lawyer John Dowd told Reuters on Sunday that he wrote and “bollixed up” the president’s tweet in which Trump said he fired Michael Flynn for lying to the FBI and not just misleading U.S. Vice President Mike Pence...But several lawyers said, regardless of whether Yates explicitly said Flynn lied to the FBI, the White House counsel should have seen that possibility and communicated it to the president. “It’s not every day that the acting attorney general comes over to the White House with that sort of message,” said Alex Whiting, a former federal prosecutor now teaching at Harvard Law School. “It had to have been obvious to McGahn that Flynn probably lied to the FBI whether Yates said it or not.”

TV cameras swarmed a federal courthouse on Friday to witness former national security adviser Michael Flynn arrive to plead guilty to a felony count of lying to the FBI about conversations he had with then-Russian ambassador Sergey Kislyak. The stunning news comes only a month after a federal grand jury indicted two top Trump campaign staffers—Paul Manafort and Rick Gates—on charges related to their foreign lobbying work, while lower-level aide George Papadopoulos also pleaded guilty to lying to the FBI. Flynn is now cooperating with special counsel Robert Mueller’s investigation, and the court documents say he had called Kislyak on the orders of an unnamed senior transition official...[Alex Whiting]: Flynn’s plea and cooperation agreement is a very significant development in the Mueller investigation for at least three reasons. First, Flynn admits that when he spoke with Russian Ambassador Kislyak in December 2016, in violation of the Logan Act, about sanctions imposed on Russia and a vote concerning Israeli settlements, he did so under the direction of senior Trump transition team officials.

U.S. President Donald Trump was trying to defend himself. He made things worse. Perhaps significantly worse. The day after his former national security adviser, Michael Flynn, pleaded guilty to lying to the FBI about his communications with Russia, Trump decided, against the advice of his aides, to discuss the subject on Twitter...Alex Whiting, a Harvard law professor, said on Twitter that the situation feels a “lot like obstruction.” “The question of whether Trump committed obstruction of justice when he asked Comey to drop the investigation on Valentine’s Day will largely turn on Trump’s intent: was he just trying to put in a good word for Flynn, or was he in fact trying to end a criminal investigation?” Whiting said in an email.

A Harvard Law expert says former national security adviser Michael T. Flynn probably will not spend a day in jail for lying to FBI agents — and that may say a lot about what he had to offer prosecutors investigating possible collusion between the Trump campaign and Russia. “It is striking that he is just being charged with one count when there has been so much discussion of other crimes,” said Harvard Law School professor Alex Whiting, a former federal prosecutor whose career has also included leading prosecutions at the International Criminal Court in The Hague. “Ordinary practice is to require cooperators to plead guilty to all the crimes they have committed and reward them at sentencing,” he said. “The fact that Flynn is being permitted to plead to just one count of lying suggests . . . that Flynn has very significant information to provide.”

From the Israeli perspective, there is both some bad news and some good news with regards to the legal bombshell that the International Criminal Court prosecutor dropped on the US on Monday. The ICC prosecutor filed a formal submission to move the US’s conduct in the Afghanistan War and its interrogation of its prisoners to a full criminal war crimes investigation...Top ICC expert Alex Whiting told The Jerusalem Post that the ICC decision regarding US targeting probably came about because “there just isn’t enough evidence of intent or that there was a policy to target civilians. They fall too much on the side of error rather than [of war crimes].”

The International Criminal Court’s chief prosecutor took an important step on Monday in pursuing a war-crimes case related to Afghanistan, requesting permission to investigate torture, rape and other atrocities — including those possibly committed by Americans....Alex Whiting, a former prosecutor at the court who now teaches at Harvard Law School, said he believed that Ms. Bensouda probably would focus first on suspected Taliban abuses because they constitute the majority of crimes. But unwillingness by others to cooperate with her inquiry, Mr. Whiting said, would “make it very difficult for her to progress from the stage she is at now — sufficient evidence to justify opening an investigation — to actually being able to charge anyone with crimes.”

When a panel of U.N. judges hands down a verdict next week in the trial of former Bosnian Serb military chief Gen. Ratko Mladic, it will mark the end of a ground-breaking era in international law. Yet a new age of international justice is already underway, with other temporary courts and tribunals springing up around the world to prosecute atrocities. Mladic's trial is the last at the International Criminal Tribunal for the former Yugoslavia, which was set up in 1993 to prosecute crimes committed in the Balkan wars of the early 1990s..."I think people now see that the ICC cannot be the answer for everything," said Alex Whiting, a professor at Harvard Law School. "Both because of capacity and resources but also because of institutional fit. I think there will be ad hoc tribunals again. They may be designed differently, a stronger tilt toward hybrid tribunals."

When a court on the Dutch North Sea coast issues its final verdict this week, it will signal the end of an experiment that has reverberated around the world, from the killing fields of Rwanda to the CIA’s secret cells in Europe...The glass is either half full or half empty, said Alex Whiting, professor of practice at Harvard Law School. “You can say we haven’t come far enough and the new institutions, particularly the ICC, have not replicated the success of the ICTY, but you can just as easily say it’s remarkable how far we’ve come in just 25 years,” he said.

On Friday, the Wall Street Journal reported that retired general Michael Flynn was under investigation for allegedly taking part in discussions about a plot to kidnap and extradite a controversial Turkish cleric in exchange for $15 million. Both Flynn’s lawyer and the Turkish regime quickly denied knowledge of or involvement in any such plot, which one source told the paper might involve use of a private jet and a Turkish prison island. But word of the investigation, reportedly part of special counsel Robert Mueller’s probe into possible collusion between the Trump campaign and Russia, represented just the latest humiliation for the man whose stint as national security advisor was, at 26 days, a historically short one...“It is not clear that there is a direct link between the allegations of Flynn’s involvement in a plot to kidnap or extradite Gulen to Turkey and collusion with Russia,” said Alex Whiting, a Harvard legal scholar and criminal prosecution tactics expert. “But Mueller’s appointment as special counsel permits him to pursue any matters that arise during the investigation.”

An op-ed by Alex Whiting. The International Criminal Court announced Thursday that on Oct. 25 the Pre-Trial Chamber of the Court authorized the Prosecutor to commence an investigation in Burundi for alleged crimes against humanity committed by state agents and groups working on behalf of the state between April 26, 2015 and Oct. 26, 2017. The decision was initially issued under seal and was made public Thursday, after the Prosecutor took steps to protect potential witnesses and victims. The information provided to the Pre-Trial Chamber provided a reasonable basis to believe that the alleged perpetrators committed the crimes of murder, imprisonment, torture, rape, enforced disappearance and persecution. The number of alleged victims is high: 1,200 persons killed, thousands detained, thousands tortured, hundreds disappeared, and over 413,000 persons displaced.

An op-ed by Alex Whiting. The Prosecutor of the International Criminal Court (ICC) announced today that she will file a request with the judges of the Court to open an investigation in Afghanistan, including into allegations that U.S. military and CIA personnel committed acts of torture in connection with the conflict there. This is a big deal that could have significant implications for relations going forward between the U.S., the ICC, and States Parties of the ICC. How did we got to this point, where we are headed, and what exactly does it mean for the U.S. and the ICC?

Is the Papadopoulos case the real bombshell of the day? While the initial announcement of indictments against President Trump’s former campaign manager, Paul Manafort, and Manafort associate Rick Gates dominated the news early Monday morning, the allegations against them did not go directly to the question of whether Trump’s campaign colluded with the Russians, who wanted to tip the 2016 election to Trump. But a second case made public later Monday did — and court records show the target in that matter is cooperating with federal investigators...Alex Whiting, a Harvard Law professor who is a former federal prosecutor and former investigations coordinator at the International Criminal Court, said that while Papadopoulos “seems to be cooperating,” the ultimate trajectory of the probe remains unclear. “Whether people will be charged with collusion, whether more senior officials will be charged, we just don’t know at this stage,” Whiting said.

After 5 1/2 months of speculation, anticipation and, in some cases, dread, Americans on Monday learned of the first charges in special counsel Robert Mueller’s investigation into Russian involvement in the 2016 campaign...What does all this mean for Mueller’s ongoing investigation—and for President Trump himself, who has called the probe a “witch hunt”?...[Alex Whiting]: The question on many people’s minds today upon hearing the news that Manafort and Gates have been charged will be: Where is this headed? And the answer is, we (the public) do not know, and Mueller may not know either. We do not know whether we are at the beginning, middle or end of this story, and we won’t know until the investigation has had a chance to fully play itself out.

European leaders are embracing a Libyan general who has ordered his soldiers to commit war crimes, according to new evidence that has been analysed by senior legal experts. The allegation of human rights abuses by Gen Khalifa Haftar, a former CIA asset who controls nearly half of Libya from his base in the east, comes as the general is due to arrive in Rome on Tuesday, where he will be received by Italian officials...The legal questions, and longstanding doubts among officials in the west about Haftar’s trustworthiness, have not dissuaded European leaders from seeking to forge an alliance with him. The analysis by Ryan Goodman, a former special counsel to the general counsel of the Pentagon, and Alex Whiting, a former international criminal prosecutor at the ICC, paints a troubling picture of Haftar’s record. The two experts point to a video that was posted on YouTube on 10 October 2015, recording a speech that Haftar gave to his LNA fighters on 18 September.

An op-ed by Ryan Goodman and Alex Whiting. The International Criminal Court very recently issued an arrest warrant for a militia leader in Libya which should catch the attention of U.S. policymakers, diplomats and prosecutors because of the possibility that his most senior commander—an American citizen by the name of Khalifa Haftar—ordered soldiers to commit war crimes. So has General Haftar been telling his subordinates to carry out the very acts that are part of the International Court’s arrest warrant, such as summary executions?

It’s not surprising that Special Counsel Robert Mueller is interested in the role Facebook played in Russia’s campaign to influence the 2016 election. Yet, the news that broke over the weekend that his team had obtained a search warrant to access information about Facebook’s recently disclosed Russia-linked ad spending is the clearest sign yet of the breadth of his probe, the pace at which its moving along and what kind of case he might be trying to build, regardless of whether he ultimately brings criminal charges...Getting a search warrant is a higher bar for Mueller to clear than a grand jury subpoena, another tool Mueller is using to obtain documents and testimony. “To get a search warrant like that, you have to show a judge that there is probable cause that evidence of a crime will be found at the location,” said Harvard Law professor and former federal prosecutor Alex Whiting.

Lawyers representing Donald Trump’s current and former aides are giving their clients one simple piece of advice: don’t lie to protect the president. As special counsel Robert Mueller and congressional investigators prepare to question high-ranking aides — including Hope Hicks, Reince Priebus and Sean Spicer — in the coming weeks, Trump’s long history of demanding his employees’ complete loyalty are being put to the test...Alex Whiting, a former federal prosecutor and Harvard Law professor, said that Mueller may have more luck getting cooperation from recently ousted Trump officials – like Priebus and Spicer, though he noted the two men also may end up being overly cautious too. “These guys they have their careers and reputations to be concerned about,” he said.

President Trump’s controversial pardon of Sheriff Joe Arpaio last week raised red flags for critics who worried that Trump might pardon himself, if the investigation by special counsel Robert Mueller leads to him, or that he might be signaling that he would pardon associates under legal pressure to give Mueller information about him...Federal pardons could open the door to criminal investigations in several states, NBC News also reported Wednesday. Trump’s pardon power would not apply to state crimes, said Harvard Law School Professor Alex Whiting, a former federal prosecutor whose career has also included leading prosecutions at the International Criminal Court in The Hague. “Pardon would not resolve all legal liability for the Trump people. They could face charges,” he said.

An op-ed by Ryan Goodman and Alex Whiting. Legal experts debate whether special counsel Robert Mueller has the authority to indict or prosecute a sitting President. Missing from any public discussion is a middle-ground option that is not necessarily precluded by any Justice Department legal opinion, and that was strongly endorsed by the Watergate special prosecutor’s legal team. What’s the option? Presentment. Grand juries have historically had the power not only to indict but also to issue presentments, which were more like reports of wrongdoing without a criminal charge.

An op-ed by Alex Whiting. On Wednesday news broke that at the end of last month, FBI agents searched one of Paul Manafort’s homes for documents as part of the Russia collusion investigation, directed by special counsel Robert Mueller. What is the significance of this news, and why didn’t Mueller just obtain the documents by grand jury subpoena? Mueller’s use of a search warrant tells us that he was able to establish on the basis of evidence, and to the satisfaction of a United States Magistrate-Judge, that there was probable cause to believe that evidence of a specific crime or crimes existed in the location to be searched.

While Donald Trump and his surrogates were loudly campaigning against Robert Mueller on Twitter and on TV, the special counsel and his team of F.B.I. investigators has been quietly building their case, the details of which burst into public view Wednesday when The Washington Post reported that the bureau searched the home of Trump’s former campaign chairman Paul Manafort in a dramatic pre-dawn raid at the end of last month...As Harvard Law School professor Alex Whiting writes for Just Security, “A pre-dawn search by F.B.I. agents of Manafort’s house could achieve this objective in a way that a grand jury subpoena just couldn’t. And if Mueller was hoping to send a message, it is one that will likely be received by others in addition to Manafort. If it was not clear already, it should now be plain that Mueller will use all the investigative tools at his disposal to fulfill the task that he has been assigned.”