Marc is seen here discussing the Eddie Gallagher case on Reality Check, alongside Bernard Kerik.
Navy Seal Chief Accused of War Crimes is Found Not Guilty of Murder
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SAN DIEGO — In a war-crimes trial that roiled the elite Navy SEALs and drew the attention of President Trump, a decorated eight-tour SEAL platoon leader was found not guilty on Tuesday of first-degree murder of a captive ISIS fighter and attempted murder of civilians in Iraq.
But the platoon leader, Special Operations Chief Edward Gallagher, was convicted of one charge: posing for photos with the teenage captive’s dead body.
Chief Gallagher, 40, who was serving with SEAL Team 7, became a rallying cause of some Republicans in Congress and members of the conservative media. Mr. Trump said on Twitter in March that he would have the chief released from pretrial confinement “in honor of his past service to our country.”
Because the maximum sentence Chief Gallagher could now face is four months, and he has spent more time than that in pretrial confinement, he was expected to go free after sentencing on Wednesday. But he could still face administrative punishment from the Navy, including an other-than-honorable discharge.
The chief was turned in by his own platoon last spring. Several fellow SEALs reported that their leader had shot civilians and killed the captive Islamic State fighter with a custom hunting knife during a deployment in Iraq in 2017. He was also charged with obstruction of justice by threatening to kill SEALs who reported him.
In the SEALs, Chief Gallagher had a reputation as a “pirate” — an operator more interested in fighting terrorists than in adhering to the rules and making rank. When members of his platoon reported his actions to superior officers, fissures were revealed in the polished image of the SEALs and the unwritten code of silence among members of the secretive force, who see themselves as a brotherhood.
Some of the platoon members who spoke out were called traitors in a closed Facebook group and were threatened with violence. In court, some said they had started carrying weapons for self-defense.
From the beginning, the Navy portrayed the murder case in particular as a simple one with eyewitnesses to the crime and a culprit whose text messages appeared to admit guilt. But the military repeatedly stumbled in investigating and prosecuting the chief.
The SEAL command initially downplayed the platoon members’ reports about the chief, and did not start an investigation of the alleged crimes for more than a year, allowing the trail of evidence to grow cold. The lead prosecutor was removed from the case in May after he was caught improperly attaching tracking software to email messages sent to defense lawyers, leaving his replacement with just a few weeks to catch up before trial. And a key witness changed his story on the stand to favor Chief Gallagher.
The witness, Special Operator First Class Corey Scott, a SEAL medic who was given immunity from prosecution by the Navy, stunned prosecutors by testifying that he, and not Chief Gallagher, had killed the captive, by covering a breathing tube inserted in the captive’s neck. His testimony also deviated in other significant ways from what he had told investigators before trial; the Navy has indicated it is considering charging him with perjury.
In a courtroom at Naval Base San Diego, close to the harbor where hulking destroyers and missile cruisers dock, a jury of five Marines, a member of the SEALs and a Navy officer, nearly all with combat experience, spent two weeks hearing testimony in the trial, including unvarnished accounts of one platoon in the Navy’s celebrated elite commando force. They deliberated for a little more than eight hours before reaching a verdict.
“The jury found him not guilty of the murder, not guilty of the stabbing, not guilty of the stabbings, not guilty of all those things,” one of his lawyers, Timothy Parlatore, told reporters outside the courtroom. “They did find him guilty of taking a photograph with a dead terrorist, which we admitted from the beginning.”
Chief Gallagher sat stoically in the courtroom in a white dress uniform during the trial, with his wife, brother, mother and father, who was a West Point graduate, sitting behind him. He did not testify.
Marc Mukasey, another of his lawyers, said the chief began to cry when the verdict was read. He described the moment as “tears of joy, elation, freedom, absolute euphoria.”
Defense attorney in war crimes court-martial of Navy SEAL Edward Gallagher accuses NCIS agent of mishandling investigation
Marc Mukasey, a lawyer for decorated Navy SEAL Edward “Eddie” Gallagher, who is charged with the premeditated killing of a teen ISIS fighter and other war crimes, accused the lead investigator in the case of focusing solely on Gallagher from day one and discussing case strategies with his witnesses, as the trial continued in its second week, Tuesday, June 25.
Mukasey accused Naval Criminal Investigative Service Special Agent Joseph Warpinski of violating standard NCIS practices as a factual evidence gatherer, during testimony in Gallagher’s court-martial at Naval Base San Diego. Mukasey said Warpinski developed friendly relationships with witnesses and questioned them in a way that led them to believe the investigation was going in a certain direction.
“Did you or did you not tell Chief Craig Miller on the first day of the investigation that you already had your take on the case,” Mukasey asked Warpinski. After some hesitation, Warpinski acknowledged he did make such a statement, after originally saying he had not.
Miller, a chief special warfare operator, testified last week that he saw Gallagher drive a knife into the neck of the ISIS detainee, leaving him for dead.
“In your mind, you’d given Chief Miller a free pass,” Mukasey said. “You didn’t know what happened in Iraq — you jumped to the conclusion Chief Miller had done nothing wrong.“You told him, ‘You didn’t do anything wrong,’ even though you didn’t have a shred of evidence of what happened in Iraq.”
Warpinski testified, Tuesday, that he was trying to build rapport with his witnesses and may have had some “bad word choices.”
“You made it clear you were focusing on one guy,” Mukasey countered. “You shared your opinion, directed witnesses to collect evidence, encouraged witnesses to talk to each other.”
Mukasey told Warpinski that he never asked the most important question during the investigation.
“You know that Chief Gallagher was a corpsman, a sniper, sailor of the year 18 to 19 years in and you never asked anybody why a 19-year decorated combat warrior who spent his life trying to help people would get on his knees, open his medical bag, start applying life-saving procedures and then, all of a sudden, out of nowhere, flip a switch and decide to kill a guy,” Mukasey said.
Judge Removes Prosecutor in Navy SEAL’s War Crimes Court-Martial
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SAN DIEGO — The lead prosecutor in the court-martial of Special Operations Chief Edward Gallagher, a Navy SEAL platoon leader accused of war crimes, was removed from the case on Monday in a significant setback for the prosecution just a week before the trial was set to begin.
The highly unusual ruling by a Navy judge at a hearing in San Diego came after revelations that the prosecutor, Cmdr. Christopher Czaplak, was involved in efforts to secretly track the communications of defense lawyers and a journalist covering the case.
The Navy must now bring in a new senior prosecutor for a complex high-profile case involving multiple charges of murder, attempted murder and other crimes. It is unclear if Chief Gallagher’s trial will be rescheduled or will begin June 10 as planned.
The judge, Capt. Aaron Rugh, issued the ruling late Monday under a protective order that prevents lawyers in the case from sharing it, but one lawyer confirmed the order.
The ruling came after a two-day hearing last week in which Navy law enforcement staff detailed how they created a plan to monitor emails sent to Chief Gallagher’s lawyers, while giving the judge in the case the false impression that the Navy had permission to do so from the Justice Department. No warrant or any other sort of permission was issued.
“We will continue to fight for Chief Gallagher until justice is done,” said Marc Mukasey, one of Chief Gallagher’s lawyers, who declined to discuss the judge’s ruling. Mr. Mukasey also represents President Trump.
An uptick in white-collar prosecutions by the Trump administration could bring relief to high-end defense lawyers, who have been searching for work after years of declining federal prosecutions.
Many white-collar lawyers have been fretting about their caseloads since the Trump administration took charge of the U.S. Department of Justice, worrying that it would continue or accelerate the declining level of activity under the last years of the Obama administration.
Prosecutions, in fact, are now edging upward, Justice Department statistics show. But they are still far below levels seen in the wake of the 2008-2009 financial crisis.
“I’m in a profession where everyone says they are ‘doing great’,” said Charles Ross, a New York-based criminal lawyer. “But generally, when I talk to people now, they are scrambling,” said Ross, whose clients include white-collar defendants.
The Justice Department says it filed charges against 6,547 defendants in the most recent fiscal year, which ended on Sept. 30, 2018, a 3 percent increase from the 2017 fiscal year.
But that figure is far short of the 10,133 people who were charged with white-collar crimes in the 2011 fiscal year, and it remains short of the average annual figure of 8,479 this century.
White-collar crime includes a wide range of nonviolent behavior, such as identity theft, Medicare fraud, and embezzlement. As the April 15 tax-filing deadline approached this year, federal prosecutors announced a spate of fraud cases against tax accountants.
The number of white-collar prosecutions during a presidential administration’s first year can dip from the previous administration and then notch up again as new leaders are confirmed for top Justice Department posts and different priorities are set.
Trump administration officials have spoken frequently about cracking down on illegal immigration, violent crimes and opioid abuse, among other issues.
Under Trump, the Justice Department has focused on prosecuting people involved in corporate wrongdoing, rather than the companies themselves. Companies that voluntarily report wrongdoing will be treated sympathetically, officials say.
“The goal of criminal enforcement should not be to pursue a small number of cases and set a new record each year for the largest check extracted from shareholders. Enforcement should not be like a random lighting strike,” Deputy Attorney General Rod Rosenstein said in a speech in March.
The Justice Department’s Fraud Section, which focuses on securities, financial and healthcare fraud, charged more than 400 people in the 2018 fiscal year — an increase of more than one-third from the previous year, said spokeswoman Nicole Navas.
Last year, former hedge fund manager Michael Scronic, of Westchester, New York, plead guilty to defrauding 45 investors of more than $22 million and radio personality Craig Carton was convicted of securities fraud and other offenses in a Ponzi-like scheme involving the reselling of concert tickets.
The increase in prosecutions is still a long way from plugging gaps for many white-collar lawyers, who are beefing up other areas of their practices to fill the void.
“There might be a natural resetting of the bar,” said New York-based white-collar defense lawyer Greg Morvillo, who is devoting more time to defending “one-off” type cases against individuals, conducting corporate internal investigations and advising companies on governance issues.
U.S. authorities are not conducting the types of sprawling, interrelated financial fraud investigations, such as those launched by former U.S. Attorney Preet Bharara, whose crackdown against insider trading at hedge funds began within months after his 2009 swearing-in.
“It seems that nothing is hot in the sense that there is no overarching investigation keeping everyone in the industry busy,” Morvillo said.
Though the Justice Department was criticized for not aggressively pursuing Wall Street in the wake of the 2008-2009 financial crisis, fraud cases involving financial services did increase. Federal prosecutors charged 1,861 defendants in the 2010 fiscal year for crimes involving corporate fraud, securities fraud, investment fraud and mortgage fraud, official statistics show – accounting for nearly one in five white-collar defendants during that time period.
Activity has fallen sharply since then. Only 486 people were charged in those types of cases in the 2017 fiscal year, accounting for 8 percent of white-collar defendants.
Insider trading cases have slowed. But authorities are still bringing cases involving spoofing, a crime that involves placing bids to buy or offers to sell futures contracts with the intent to cancel them before execution. By creating an illusion of demand, spoofers can influence prices to benefit their market positions.
Not all white-collar lawyers say they are feeling the pinch. For example, Robert Frenchman recently left his job as a white-collar lawyer at a large New York law firm to launch a boutique defense firm.
“Maybe it is a little slower in terms of financial services white collar, although there are still quite a few out there,” said Frenchman.
Greenberg Traurig Trio Launch Boutique ‘Firm For The 2020s’
By Emma Cueto
Law360 (March 20, 2019, 6:59 PM EDT) — Three former Greenberg Traurig LLP partners, including Marc L. Mukasey, who currently represents President Donald Trump in a New York state investigation into his charity, have launched their own trial and government investigations boutique, saying in a Wednesday announcement that it is geared to be a “firm
for the 2020s.”
Mukasey Frenchman & Sklaroff LLP, founded by Mukasey, Robert S. Frenchman and Jeffrey B. Sklaroff, will focus on cases in which clients “must fight to protect their freedom, their business or their reputation,” and will make it a priority to be a lean operation that makes innovative use of new technologies, attributes Mukasey says will be essential in the next decade.
“With a smaller shop, you can be a bit more flexible,” Mukasey told Law360. “So we are looking forward to trying cases for all types of clients in a way that is focused and personal than you might get at a big firm.”
“We were in a giant Mack truck of a law firm,” he joked. “Now we’re in a racing motorcycle.”
The New York-based firm already has a number of cases across the country that it is working on, Mukasey said.
Mukasey, who was named a Law360 White Collar MVP in 2018, announced his exit from Greenberg Traurig in January. In his last year at the firm, Mukasey won two high-profile cases against the U.S. Department of Justice, including a jury acquittal in a speedy trial in which his client was facing up to 25 years in prison for commodities fraud.
He has also been one of several attorneys representing Trump and three of his adult children in an ongoing suit brought by the New York attorney general accusing the Donald J. Trump Foundation of abusing its charity status.
Previously, he was a former chief of the narcotics unit and deputy appellate chief at the Southern District of New York, and worked with former New York City Mayor Rudy Giuliani after both were in private practice. He is also the son of former Attorney General Michael Mukasey.
Frenchman’s practice has focused on defending financial services clients, and he has frequently faced off against the U.S. Securities and Exchange Commission, the Commodity Futures Trading Commission and the Financial Industry Regulatory Authority, according to the firm.
Sklaroff represents both executives and corporations in a range of criminal matters, and has also headed up internal investigations for clients, according to the firm. He will serve as managing partner for the new firm. The three attorneys worked together on several trials while at Greenberg Traurig, Mukasey said, including the successful defense of former bond trader Michael Gramins, who was acquitted by a jury on eight out of nine charges in his high-profile case.
Mukasey said that all three founding partners at the new boutique had a “wonderful” experience at Greenberg Traurig, but that they were looking forward to the more focused, personal work they could do at a smaller firm. They plan to focus on recruiting top talent rather than expanding, he said.
“We’re going to draft the best players and keep a close-knit, elite team,” he said.
–Additional reporting by Allison Grande and Dave Simpson. Editing by Alanna Weissman.
NEW YORK – Mukasey Frenchman & Sklaroff, LLP announced today the formation of a trial law firm dedicated to representing clients when they have to fight to protect their business, their freedom, or their reputation. The firm will focus on mission critical trial work.
Marc L. Mukasey is the Founding Partner of the firm. Marc is a criminal trial lawyer who defends high-profile executives and corporations in the worlds of finance, politics, energy, media and sports. His recent work includes two white collar defense trial victories – the first-ever acquittal in a commodities “spoofing” trial (US v. Flotron) and the successful trial defense of a bond trader (US v. Gramins). Among others, he has also represented a major corporation in the Deepwater Horizon explosion, the president of a leading network, and a Hall of Fame basketball coach in criminal investigations. Marc is a Fellow of the American College of Trial Lawyers and has been named multiple times by Law360 as an MVP of the Year in the White Collar category, including in 2018. Prior to founding the firm, Marc was the Chairman of the white collar defense practices at two international law firms, and a Chief in the U.S. Attorney’s Office for the Southern District of New York.
Robert S. Frenchman represents financial services clients in white collar matters, complex litigation, and regulatory enforcement proceedings. Bob has defended financial services clients during investigations and at trial, often facing off against the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Financial Industry Regulatory Authority. These representations have involved, among other things, insider trading, allocations in initial public offerings, spoofing, specialist trading, Nasdaq market-making, RMBS trading, order routing, short selling, benchmark rates, securities lending, margin, gifts and gratuities, and research. Mr. Frenchman was a partner in two international law firms before the formation of Mukasey, Frenchman & Sklaroff.
Jeffrey B. Sklaroff has a varied litigation practice focused on a wide range of criminal matters including the representation of corporations and executives at every stage of a case – from grand jury investigation, through trial, and on appeal. Jeff was co-counsel in one of the leading criminal trial victories of recent years – US v. Gramins. Jeff is also an experienced civil trial lawyer and he has conducted internal investigations for clients around the world. Jeff has a distinguished history of selection by judges to serve as a receiver in an SEC action, and as counsel to the Grand Jury Project, a committee of judges, professors and private practitioners charged with rendering recommendations to improve the grand jury system in New York. He is also an adjunct member of the New York State Justice Task Force. Before becoming Managing Partner of the firm, Mr. Sklaroff was a partner in a major international law firm, and an Assistant U.S. Attorney in the Southern District of New York.
Marc Mukasey, the high-profile co-chair of Greenberg Traurig’s white-collar defense and special investigations practice, has left to start his own trial boutique with other attorneys.
Mukasey, who spoke with ALM on Tuesday, said the boutique expects to add additional partners in the near future from other law firms, including Greenberg partner Robert Frenchman, who worked with Mukasey for the past 10 years.
Mukasey, based in New York, declined to name other possible additions and declined to comment on the firm’s official name. He said the firm will announce more details in March.
Mukasey left Greenberg at the end of January 2019. He was at the firm for three years, after joining with Rudolph Giuliani in 2016 from Bracewell. Giuliani left Greenberg last year, amid his ongoing representation of President Donald Trump in special counsel Robert Mueller’s investigation.
Mukasey, 51, said he is leaving the Miami-based firm because he wanted to create his own trial firm. Mukasey said he left Greenberg “after three excellent years” and making a lot of friends. “I decided I wanted to start my own law firm, a boutique trial firm,” he said, adding he left on “wonderful terms with Greenberg.”
“My leaving Greenberg had nothing to do with anything other than my desire to start my own law firm,” he said. Mukasey said he doesn’t plan on growing the boutique into a large firm. “I intend to keep it lean and mean,” he said.
The boutique will represent corporations and executives in finance, politics, media and sports, among other industries, he said.
Since leaving Greenberg, Mukasey has appeared in court filings for the Trump Foundation and for Jeremy Hutchinson, a nephew of Arkansas Gov. Asa Hutchinson and a former state senator who was charged with spending thousands of dollars in campaign funds on personal expenses,
In the Trump Foundation case, court filings show he has appeared on behalf of the respondents—the foundation, the president and three of his children—in the lawsuit brought by the New York Attorney General’s Office. The AG’s office alleges that Trump used his charitable organization to fund his 2016 presidential campaign, as well as pay down some of his legal obligations, promote his brand and take care of some personal expenses.
Mukasey declined to comment on his other clients. ”There will be a stable of clients represented by the new firm,” Mukasey said.
Last year Mukasey secured the acquittal of former UBS AG trader Andre Flotron, whom the U.S. attorney in Connecticut had charged with conspiring to commit commodities fraud by manipulating prices of futures contracts for gold, silver and metals.
Mukasey also continues to represent former Louisville basketball coach Rick Pitino, who was not charged in the probe by the Southern District of New York U.S. Attorney’s Office over corruption in college basketball recruiting.
Contacted about Mukasey’s move, a Greenberg Traurig spokeswoman said, “We wish him well,” adding that the firm’s litigation group “remains more than 600 lawyers strong.”
Law360 (December 14, 2018, 3:30 PM EST) — Marc Mukasey of Greenberg Traurig LLP outmaneuvered the U.S. Department of Justice in two high-profile cases this year, including a jury acquittal in a speedy trial in which his client was facing up to 25 years in prison for commodities fraud, a feat that has landed him among Law360’s 2018 White Collar MVPs.
HIS BIGGEST ACCOMPLISHMENT THIS YEAR:
In U.S. v. Flotron, Mukasey defended former precious metals trader Andre Flotron, who was charged with manipulating market prices of commodities through a practice known as spoofing, in which large orders are entered onto the exchange and then cancelled before they’re executed. He secured what is believed to be the first-ever jury acquittal in a spoofing trial, and the first time a spoofing defendant has defeated the DOJ.
“I thought we tried a terrific case against a strong government team and a strong government case and pulled off an incredible victory for the client that was the right result, and the only just result,” he said.
When the verdict was announced, emotions were running high, he said.
“That’s the first time in my career — and I’ve tried scores and scores of jury trials — where when the verdict came in I started crying,” Mukasey admitted. “I think the whole team was in tears by the end of the polling of the jury.”
Part of the reason the acquittal was so moving was that they won by using a risky strategy that Mukasey called the most reckless, and the smartest, of his career. Requesting a speedy trial ultimately proved to be successful despite government warnings that he wouldn’t have enough time to review all the discovery.
“I thought it was the way to win the trial. I thought it was aggressive, it was a way to tell the government, ‘We’re not scared of this case, bring it on,'” he said. “It was a way to tell the court, ‘We’re not here to delay or plead guilty or get adjournments, we’re here to fight.’ We were ready, the government wasn’t.”
WHY HE IS A WHITE COLLAR ATTORNEY:
Although law runs in the family — his father Michael Mukasey was the U.S. attorney general under former President George W. Bush — what really drew Mukasey to criminal law is his irrepressible competitive streak.
“It’s you against the other guys, and there’s a very clear winner and a very clear loser,” he said. “There’s no settlements, there’s no ‘let’s work this out’ kind of thing. It’s a competition; you either win or you die.”
He also very much enjoys the thrill of working with and against highly intelligent people, and using his ingenuity to come out on top, he said.
“Being able to sit down with a very, very smart group of people on my team, and very, very smart clients, and to poke holes in the government’s theories and present those in a courtroom to a group of jurors who know nothing about the case is incredibly challenging and rewarding,” Mukasey said.
HIS ADVICE TO JUNIOR ATTORNEYS:
Mukasey offered two pearls of wisdom to fresh-faced attorneys. The first is to find what you like and what you excel in, and to direct all your efforts there.
“I think you have to specialize as soon as you realize what you want to specialize in and focus on it,” he said. “Pick what you love; pick what you’re willing to work at until 4am on a Saturday night in a city 1,000 miles away from your home.”
For any aspiring trial lawyer, Mukasey said that there is no better training ground than the DOJ, specifically a U.S. attorney’s office, where he served as a prosecutor for 11 years.
“You get pushed into the courtroom as a young lawyer, and you’re forced to drink from the fire hose and handle all different kinds of cases,” he said. “You’re getting experience on your feet in front of the most sophisticated judges in America, practicing against the best defense lawyers in America at a young age. It’s very difficult to duplicate that in a law firm.”
HIS OTHER NOTABLE CASES THIS YEAR:
In what he labeled a “massive victory,” Mukasey said U.S. v. Shapiro et al. was his other major triumph this year. His client, former bond trader Michael Gramins, was acquitted by a jury on eight out of nine charges in the high-profile case. In a post-trial motion, Mukasey successfully reasoned that the lone remaining count in the residential mortgage-backed securities suit should be thrown out.
“The government wins 95 to 96 percent of trials, so to have a nine-count indictment against Gramins where there are no convictions now, and then the Flotron case where we got an acquittal, as well — that was like winning the lottery two times in a row,” he said.
— As told to Reenat Sinay
Law360’s MVPs are attorneys who have distinguished themselves from their peers over the past year through high-stakes litigation, record-breaking deals and complex global matters. A team of Law360 editors selected the 2018 MVP winners after reviewing nearly 1,000 submissions.
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