A recently unsealed USDC—DC opinion reveals that Greg Craig, former White House Counsel under President Obama, failed to prevent—on privilege grounds—two of his former Skadden law partners from testifying before a grand jury. Craig’s privilege loss paved the way for his indictment on charges of providing misleading and false information to the DOJ, but also provides lessons for in-house lawyers, particularly law firm in-house counsel. In re Grand Jury Investigation, 2019 WL 2179116 (D.D.C. Mar. 4, 2019) (opinion available here).
This privilege tale involves many of today’s inside-the-beltway subjects: Manafort, Mueller, Russia, a foreign leader, and DOJ investigations. So, let’s explore.
2011—Ukraine Trial of Yulia Tymoshenko
In October 2011, a Ukrainian court convicted Orange Revolution leader and former Ukrainian Prime Minister Yulia Tymoshenko for abusing her official powers in negotiating a natural-gas deal with Russia while serving as prime minister.
After issuance of the seven-year jail sentence, $190M fine, and a ten-year ban from political office, many claimed that the trial and conviction were politically motivated by then-President Viktor Yanukovych, her political rival. One publication labeled Tymoshenko a “victim of a kangaroo trial.”
Paul Manafort, who represented Mr. Yanukovych, arranged for the Skadden Arps firm to investigate the Tymoshenko trial and prepare a report evaluating whether the trial complied with Western standards of due process. The Skadden team, led by Greg Craig, produced a 300+ page report concluding, among other things, that the court based its verdict on factual determinations that had evidentiary support. You may read the Skadden report here.
Just before the Report’s release, Craig contacted a New York Times reporter and provided him with a copy. The reporter published an article on the report, noting that Skadden “seemed to side heavily with the government of President Viktor F. Yanukovich.” Craig later provided interviews with other publications.
December 2012–January 2014—FARA Unit (Relevant Period)
The Foreign Agents Registration Act (FARA) requires any person acting as “an agent of a foreign principal” to register with the Attorney General for certain activities, such as public-relations efforts. Immediately after the Report’s release and Craig’s interactions with the press, a DOJ FARA Unit began investigating whether Skadden and/or Craig should have registered as a foreign agent.
Importantly, during this Relevant Period Craig provided statements to FARA investigators and discussed these issues internally with Skadden lawyers—including Skadden’s General Counsel. Did Craig believe the privilege covered these conversations? Did the Skadden GC give him an Upjohn warning?