One of the first things that they teach students in law school is to pay attention to the footnotes in legal opinions.
Although many of them are references to obscure but somewhat relevant opinions – and others are just musings of the judge writing the opinion – sometime that’s where the most important information is.
The same is true with legal filings – especially those by the prosecution in a criminal case.
A concrete example of this legal truism can be found in a recent letter from AUSAs Moira Kim Penza and Tanya Hajjar to U.S. District Court Judge Nicholas G. Garaufis concerning the use of the Trust Fund set up by Clare Bronfman to pay the attorney fees of potential witnesses in the pending criminal case against Bronfman, Keith Raniere, Allison Mack, Lauren Salzman, Nancy Salzman, and Kathy Russell.
To those who may have missed the earlier post about this situation, here’s a quick summary of the events leading up to the letter:
- An unidentified woman who was once part of NXIVM/ESP was issued a subpoena requiring her to appear before the grand jury that has been hearing evidence – and issuing indictments – in the aforementioned criminal case.
- After she mentioned the subpoena to one of her NXIVM colleagues, she was given the name of an attorney – and told to contact him.
- At her first meeting with the attorney, he told her that she did not have to worry about paying his legal fees because he was being paid by Clare Bronfman.
- He also told her that his recommendation was that she plead the Fifth Amendment every time she was asked a question in front of the grand jury.
- When she balked at that suggestion, he told her that unless she agreed to accept his advice – and plead the Fifth Amendment as instructed – he could not represent her and she would have to hire her own attorney on her own dime.
- She asked if she could hire him with her own money and he said he was too expensive, or in other words – plead the 5th or he wouldn’t represent her.
After hearing about this encounter, Judge Garaufis directed the prosecution to advise him as to what its thoughts were with regard to the use of funds from the trust to pay for the legal fees of potential witnesses.
In their December 17th letter, AUSAs Penza and Hajjar indicated to the judge that they had the following concerns:
- “Witnesses may be improperly advised to invoke the Fifth Amendment right against self-incrimination…”; and
- “Witnesses may receive advice from a lawyer suffering from a conflict of interest”.
But buried in a footnote is what may turn out to be the most important part of their letter: “To the extent these issues arise during the grand jury process in the context of the government’s ongoing investigation, the government will raise such issues, as it deems necessary, through the appropriate procedures, such as a motion to compel compliance with a subpoena. If any such conduct rises to the level of obstruction of justice, it will be investigated by the government as a criminal matter”.
Let’s parse through what’s in that footnote.
The first part – “To the extent these issues arise during the grand jury process in the context of the government’s ongoing investigation, the government will raise such issues, as it deems necessary, through the appropriate procedures, such as a motion to compel compliance with a subpoena – may be a little obtuse for non-lawyers.
But what the prosecution is telling the judge is that if a witness raises the Fifth Amendment in response to its questions, it may simply grant i
Apparently, the lawyer who was going to be hired to represent the witnessed described above failed to tell her that invoking the Fifth Amendment does not guaranty you won’t be compelled to answer the questions being asked of you by the prosecution.
And what happens if you refuse to answer those questions after you’ve been granted immunity, you ask?
Well, then the judge can order you to be incarcerated until you change
But it’s the second part of the footnote that ought to send shivers down the spine of the attorney who advised the potential witness that she would have to plead the Fifth Amendment in front of the grand jury or hire another attorney: “If any such conduct rises to the level of obstruction of justice, it will be investigated by the government as a criminal matter”.
The message could not be clearer: “You fuck with our witnesses – and we will fuck with you, big time”.
Methinks there won’t be too many attorneys out there who are willing to face criminal charges by intimidating any other potential witnesses in this case.
Waking up as an attorney – and going to bed as a defendant – is just not all that much fun…
Now some of you may think this is a little heavy-handed on the part of the prosecution, but consider how abhorrent the attorney in question’s behavior is.
He had a potential client. Rather than try to find out if he could get immunity for his client – meaning that in return for honest testimony, he could insure she would not be charged – he told her to plead the 5th or he would not represent her.
If he was a good attorney – a non-conflicted attorney – he would have sought to find out what interest the prosecution had in her – whether she was a target or a subject – and whether she was likely to be charged. If he could get her off the hook altogether – by her telling the tr.uith.
Instead, he told her to put herself in jeopardy to protect Clare Bronfman who was paying his fees. By his potential client invoking the 5th, without his making any effort to find out what jeopardy she was in or how she could get out of it, she might have easily become a target and gotten herself indicted.
Instead, by leaving the care and concern of the Bronfman paid attorney and telling the DOJ about what happened, it appears she has become a witness for the prosecution and has spared herself being charged.
That was the result the Bronfman-paid attorney should have been seeking from the start.
It is quite possible he obstructed justice and/or tampered with a witness. At the very least, he was serving Clare Bronfman’s interests and not those of his potential client.
Frank Report will seek to identify this attorney and reach out to him for comment.