Law Firm Leaders: Mukasey Frenchman’s Marc Mukasey

By Xiumei Dong 

Law360 (August 19, 2020, 3:14 PM EDT) — Marc Mukasey, a former co-chair of Greenberg Traurig LLP’s white-collar defense and investigations practice, and two other former firm shareholders launched their boutique law firm, Mukasey Frenchman & Sklaroff LLP, in spring 2019. 

Here, Mukasey chats with Law360 about the reasoning behind founding the law firm, his goals for the firm over the next five years and how it is different from other litigation boutiques in New York. 

This interview took place July 17 and has been edited for length and clarity. 

What is your reason for founding a boutique litigation firm? 

I spent nine years in the U.S. Attorney’s Office for the Southern District of New York. I loved trial work. I loved being in the courtroom. I love preparing for the trials and working with a team and everybody being in it together for the high-stakes moments. And I was very lucky at my two prior law firms, after I left the U.S. attorney’s office, to get a lot of trial work representing all sorts of folks from all sorts of industries. 

I realized that the team that I was working with was a great one, and we were really effective in the courtroom, and we were winning a lot of defense verdicts and getting investigations resolved in a positive way for the clients. And I thought that if we could … build a firm that would handle the most difficult trial work, the highest-stakes trial work — I mean, in-court jury trial work — that we could be of great service to individuals and institutions. We started about a year and a half ago and it’s been a tremendous success. 

Does the firm represent President Donald Trump and the Trump Organization in legal matters?

I represent the Trump Organization in connection with a subpoena and an investigation by the Manhattan [district attorney’s] office. I know of no other cases [going forward]. I am focusing on this criminal investigation at the moment. 

What are your goals for the law firm over the next five years? 

We want to stay small. We want to stay lean. We have been thriving and succeeding during the pandemic because we are very technologically advanced. 

In the next few months, we expect to have two criminal trials. One is called United States v. Goyal — that’s the health care fraud case in the Southern District of New York — and a very controversial case in the [District of Massachusetts] called United States v. Charles M. Lieber. And in that case, we represent a world-renowned scientist named Charles Lieber who has been accused of making false statements. He’s the chairman of the chemistry department at Harvard University. 

This is a time of incredible change and necessary change in our country and in our judicial system. As a firm, we are committed to representing those people who are not treated fairly and have not been treated fairly by the justice system. We will always fight for the rights of those people. 

What distinguishes your firm from other litigation boutiques in New York?

One of the very interesting features of our firm, as we continue to grow and move forward, is that we have one of the best health care defense lawyers in the country, our new partner Torrey Young. She left BigLaw to come to us. She’s moving from Boston to New York in the middle of a pandemic to come to us with her family. Health care has not always been the focus of white-collar firms in New York. It’s much more of a Southeast, Southwest focus, and we plan to be very active in that space, and I think that’s one of the things that makes us very interesting and unique. 

What kind of legal talent do you want to bring on board? What is your approach to attracting and retaining them?

We are operating on all cylinders, able to handle any kind of case no matter how large or how complex right now. Our eyes are always open for good candidates, and good candidates are people who are skilled in the courtroom and people who are skilled in brief writing and legal argument. 

How has your firm been responding to the COVID-19 pandemic?

We’ve been very lucky to go through this pandemic with everybody busy and incredible clients who stand by us as much as we stand by them. We have been working remotely. We have been doing everything we would do in the office. We do cocktail hours once a week, and we actually have a guest speaker series where we were arranging to have speakers come in over Zoom and get some thoughts on their careers to our firm. 

Our firm is more of a trial team than it is a law firm. It is a movable, flexible, fast-style, tactical trial team. That’s how we think of it, as opposed to a big, bureaucratic law firm. 

If you could have lunch with any well-known lawyer, alive or dead, who would it be?

I would say Abraham Lincoln because he was a fantastic oral advocate. He created the kind of change that set people free and set a path towards people being treated equally, and that’s something that still resonates today, and we still have to strive for today. I would definitely do lunch with Lincoln. –Editing by Kelly Duncan.

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Marc Mukasey Trial Victory Featured on 60 Minutes

 

Navy SEAL Chief Accused of War Crimes Is Found Not Guilty of Murder

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.”

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Former UBS Trader Is Cleared in Spoofing Case – NYT

A federal jury on Wednesday acquitted a former trader for the Swiss bank UBS of charges related to market manipulation, dealing a blow to a Justice Department effort to crack down on a Wall Street practice known as “spoofing.”

Prosecutors accused the former trader, Andre Flotron, of trying to move market prices for precious metals by making offers on electronic trading systems to buy or sell gold, silver and other financial products and then quickly deleting those offers before anyone could accept them.

But after only a few hours of deliberation, a jury in United States District Court in the District of Connecticut rejected their theory, according to Mr. Flotron’s lawyer Marc L. Mukasey.

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Marc Mukasey Featured in New York Times Article

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.”

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Marc Mukasey Featured in Orange County Register

Defense attorney in war crimes court-martial of Navy SEAL Edward Gallagher accuses NCIS agent of mishandling investigation

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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.

Marc Mukasey Featured in New York Times Article

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.

Robert Frenchman Featured In Reuters

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.

ONE-OFF CASES

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.

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