I greatly appreciate those who take time to comment on my blog posts. Sometimes praise. Other times critical. Often expanding the conversation. Always welcome. When appropriate, I will make a brief reply directly in the comment function. However, whether due to the subject matter or length of the reply, I will occasionally reply in a free-standing post. Today’s post is such an occasion, as I respond to a lengthy comment from Mr. Bryan Miller to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest.
Thank you for your recent comment to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest. First, let me say that it is good to hear from you and see that you are doing well in your diverse private practice. Though I was sorry to see that you didn’t include in your professional bio your time working for me in The Hague as an extern on the Ieng Sary case at the Extraordinary Chambers in the Courts of Cambodia. In any event, many of your comments and questions are obviously beyond the scope of the post, though interesting nonetheless. I address them seriatim:
C/Q: I am unclear as to the purpose of this article, other than you have decided to write a blog at certain intervals. You concede that the reasons for withdrawal in the US are mere speculation.
A: I usually blog once a week on issues generally related to international criminal law. This includes the occasional post on ethics and professional responsibility – as can be gleaned from the last three posts (here, here, and here; a list of all my posts from last year is available here). The Gates example served as a springboard for a discussion on the withdrawal of counsel from a case. You may not be aware of this, but the codes of ethics and professional responsibility at the various international(ized) criminal tribunals and courts do not provide much guidance to the practitioner – who must also abide by his or her national code. And since counsel practicing before these tribunals and courts come from different legal traditions, I find it useful – especially since I do lots of training on professional ethics (see here) – to use real examples and to see what lessons, if any, can be drawn for counsel to consider. Based on the traffic to my ethics posts, even long after they are first posted, I believe the ethics issues I raise are matters of interest to the international criminal law legal community.
C/Q: An interview of the President without a subpoena won’t happen. In other words Mueller will have to put the President before a grand jury to seek an indictment. Mueller doesn’t have sufficient support for that, although the level for an indictment is fairly low. Politically, it will creates a constitutional crisis. I will be surprised, if in fact Mueller issues a subpoena.
A: I did not venture into this topic in my post. Aside from it being beyond the narrow focus of the post, as your comments reveal, to have done so would have been speculative at best. In any event, Robert Mueller has surrounded himself with highly talented and experienced legal minds, as no doubt President Trump and his associates have done. How this saga plays out remains to be seen. Be that as it may, if I were a betting man, my money would be on Mueller following the law – and availing himself of every advantage provided by the law – in carrying out his mandate in a fair, competent, and objective manner. Don’t underestimate his resolve to follow the evidence wherever it takes him.
C/Q: The better question is why the FISC don’t (sic) hold a hearing re: OSC re Contempt for the warrantless searches on American Citizens based on the Trump Dossier paid for the DNC and HRC given the material omissions.
A: Again, this is beyond the scope of the post – but your comments do betray your political leanings and acceptance of the Nunes Memo, which, in my opinion, does not present all the unvarnished facts as one would expect from anyone claiming to be a truth-seeking honest broker. We do not know and probably will never know all of the evidence presented to the FISA court to obtain the original search warrant, and what else may have been presented for all following search warrants in question. As inviting as your question may be, for me – or anyone for that matter – to weigh in on this debate and to make bold assertions without knowing all of the facts would serve no purpose other than to masquerade speculation as fact.
C/Q: Perhaps the best piece of information from your article is the difference between withdrawal in the US and before the ICC. But an irretrievable breakdown in the attorney/client relationship should meet the criteria.
A: As a general principle, I would be inclined to accept your assertion. However, as I noted, when a defendant in a United States (U.S.) state or federal criminal case is represented by court-appointed counsel, Judges are reluctant to simply allow counsel to withdraw – even when there is an “irretrievable breakdown in the attorney/client relationship” and both counsel and the client want to get out of this court-arranged and publicly-funded relationship. Other considerations come into play, such as the ones I noted in my post. Even when the defendant paid for his own defense, I know of some instances where the court was unmoved – and I can envisage others.
C/Q: The fact that the putative defendants in the US are paying lawyers gargantuan sums of money is more the exception than the norm. This is different (sic) between the US and the ASP who pays for the counsel.
A: Most defendants in U.S. state and federal courts, I hazard to say, are represented by court-appointed counsel. Those who can afford privately retained legal representation, generally end up paying something less than a king’s ransom in proportion to their income. Good lawyers retained by demanding clients expect to be handsomely compensated – and deservedly so. Your comment “[t]his is the difference between US and the ASP (Assembly of State Parties who have singed on to the Rome Statute) who pays for counsel,” is inaccurate and misleading. For your edification, I invite you to read my posts on the ICC Legal Aid Scheme (see here, here, and here), as well as what else has been posted or presented to the ICC Registrar on this matter. I think you will find the ICC remuneration scheme for defense counsel scandalous.
C/Q: Why don’t you write a blog about the durability and sustainability of the ICC and the fatuous decision of Fatou Bensouda to investigate the US for war crimes in Afghanistan. The decision says to me that she is terrified that ICC is about to collapse.
C/Q: I would also be curious as to your opinion as to whether the United States Constitution allows for prosecution of US Military before a foreign tribunal based on a multilateral treaty. I think it is per se unconstitutional. Let’s leave aside the issue that the US is not even a party to the Rome Treaty. The issue not universal jurisdiction, whatever that practically means, but whether the United States Constitution allows for prosecution of US Military before the ICC. That is really interesting and you should share your thoughts.
A: This is yet another matter that is way beyond the scope of the post. Be that as it may, my take is that irrespective of whether it is constitutional or unconstitutional, the U.S. is unlikely to genuinely cooperate with the ICC. In my previous posts on the ICC Office of Prosecutor’s investigation into the situation in Afghanistan (here and here), I have been clear in pointing out the futility (not utility) of the investigation, since the U.S. – both as a super power and a permanent member of the United Nations Security Council (UNSC) – will do whatever it thinks is in its best interest, even if it means ignoring the very same international norms which it lectures other states to abide by in both letter and spirit. Further to my take on the U.S.’s hubristic approach in dealing with the ICC (not to be outshined by the other permanent members of the UNSC), I invite you to see yesterday’s post: THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty.
Again, thank you for your comment, Bryan.