Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia (Photo: Diego M. Radzinschi/ALM)

A federal judge in Washington is weighing whether to recuse herself from the prosecution of Greg Craig, a month before the former Obama White House counsel is set to stand trial on charges he misled the Justice Department about his past work for Ukraine.

U.S. District Judge Amy Berman Jackson has scheduled a Friday hearing with prosecutors and Craig's defense lawyers, but she has given no public reason for the court meetup. The hearing comes only days after Craig's defense lawyers told Jackson about evidence they might raise at trial that involves her former law firm, Trout Cacheris & Solomon.

Federal trial and appellate judges routinely are required to weigh their ties to the law firms and parties of any case, but it's rare that such a discussion would come up so late in a proceeding. At the hearing, Jackson gave the lawyers until Monday to tell her whether they might ask her to recuse in Craig's case. Craig's trial is set to begin Aug. 12.

“I don't want to do anything or preside over any trial where any party to the trial, on either side, has any concern about my impartiality or my appearance of impartiality,” Jackson said at the hearing on Tuesday. She added: “Off the top of my head, hearing this for the first time, I doubt that I have a legal obligation to recuse. But, the question of what could give rise to an appearance of impropriety is a broader question.”

Justice Department lawyer Fernando Campoamor-Sanchez told Jackson at Tuesday's hearing that “we are perfectly comfortable with this court handling this trial.” He added: “We expect, believe and know that we will get a fair trial with this court, and so we don't have concerns.”

Craig's lawyers filed a notice with the court Thursday saying they “will not be moving for the court to take any action” regarding the matters discussed earlier in the week.

None of the lawyers in Craig's case worked at the litigation boutique Trout Cacheris, where Jackson had been a partner before taking the trial bench in 2011. But the firm could be mentioned by Craig's lawyers, and that possibility spurred Tuesday's hearing.

Craig was charged in April with misleading the Justice Department as part of an effort to avoid disclosing his Ukraine work under the Foreign Agents Registration Act, or FARA, an 80-year-old law designed to shine a light on foreign influence in the U.S. He has pleaded not guilty.

Although Craig has not been charged with violating FARA, his defense team has taken steps to argue at trial that he had no obligation to register as a foreign agent in connection a report he prepared for Ukraine in 2012 as a partner at Skadden, Arps, Meagher, Slate & Flom. The report concerned the Ukrainian government's prosecution of Yulia Tymoshenko, a former prime minister and political rival of the country's president at the time, Viktor Yanukovych

Craig's lawyers said they are prepared to show that other law firms involved in similar work did not register as foreign agents. On Tuesday, inside Jackson's courtroom, Zuckerman & Spaeder partner William Murphy said the judge's former firm was one example.

In 2010, Murphy said, Trout Cacheris & Solomon prepared a report for Ukraine on alleged financial improprieties by Tymoshenko. Murphy said Trout Cacheris & Solomon prepared the report with Akin Gump Strauss Hauer & Feld LLP. Tymoshenko and her political party hired Covington & Burling to prepare a “rebuttal report,” Murphy said.

None of the firms registered as foreign agents in connection with the reports, which Murphy described as comparable to Craig's own dealings with Ukraine two years later. The Justice Department's prosecution of Craig has centered on statements he made about his role in the public rollout of the Tymoshenko report.

Murphy said he wanted to alert Jackson so that she would not learn of the “potential issue” for the first time at trial and “have to deal with it on the fly.”

Craig's defense team did not ask Jackson to recuse, saying they “just wanted to bring it to [the judge's] attention.”

Jackson had been nominated to the federal bench and was awaiting confirmation at the time of Trout Cacheris & Solomon's work for Ukraine. During that time, she was involved only in a pro bono matter for the Washington. D.C., city council.

“I assure you that I would not be insulted or offended or think ill of any party on either side of this courtroom, or any lawyer or the defendant, if any of you decide that under all the circumstances, you don't want to be using the words 'Trout Cacheris' in my courtroom,” she said. “They are a law firm from which I am officially recused.”

Jackson said she does not automatically recuse from matters involving the law firm Venable LLP, where she'd previously worked. She handles any Venable matters “on a lawyer-by-lawyer, matter-by-matter basis.”

Campoamor-Sanchez, the lead prosecutor, questioned whether Trout Cacheris & Solomon's past work for Ukraine—and the lack of a FARA registration in connection with it—would be relevant to Craig's case. Craig, he said, “is not charged for failing to register or with failing to register, he's charged with what he told or failed to tell the FARA unit.”

Jackson thanked the lawyers for raising the recusal issue with her. “I'm going to continue to think about it, no matter which way I hear from you, or even before I hear from you,” she said at the end of Tuesday's hearing.

“But clearly hearing from you is a very significant piece of this.”

 

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