Why Prosecutors Want Sidley's James Cole Disqualified in Huawei Case
The former Obama-era deputy U.S. attorney general has declined to recuse himself, and Huawei has vowed to oppose the Justice Department's efforts to block Cole from appearing as counsel for the company.
May 10, 2019 at 06:02 PM
5 minute read
The original version of this story was published on National Law Journal
Federal prosecutors on Friday said Sidley Austin partner James Cole, a former deputy U.S. attorney general, should be barred from representing the Chinese telecom giant Huawei Technologies because of his role in an unspecified investigation during his tenure in the Obama administration.
“Despite the obvious conflict of interest presented by Cole's representation of [Huawei] in a prosecution by the United States when he previously represented the United States with respect to” the earlier investigation, “Cole has refused to recuse himself from this matter,” prosecutors said in a brief filed in the U.S. District Court for the Eastern District of New York.
The filing, which did not identify the past investigation, provided the first publicly available explanation for the prosecution team's push to disqualify Cole from defending Huawei against charges it violated U.S. sanctions against Iran. It represents a rare effort to disqualify a white-collar defender, and comes in a case that has deepened diplomatic tensions between the U.S. and China.
Cole was not immediately reached for comment Friday. Huawei has said it will “vigorously oppose” the Justice Department's move to block Cole from representing the company.
In the extensively redacted brief, prosecutors referenced an investigation that Cole was briefed on during his tenure as the second-ranking Justice Department official. The prosecutors added that the court could have “no confidence that Cole will not use, whether intentionally or not, information obtained” from the prior investigation in his defense against the government, which they described as “his former client.”
Law and ethics rules, the prosecutors wrote, “protect a former client against such conduct by a former attorney.” Cole's role in the case could compromise the trial and any conviction secured by the government, prosecutors claimed.
The prosecution team includes assistant U.S. attorneys in Brooklyn, along with Washington-based anti-money laundering trial attorneys and a team from the national security division at Main Justice.
Cole entered an appearance for Huawei in March, joining Jenner & Block partner David Bitkower and fellow Sidley Austin partner Michael Levy on the company's defense team.
The firm was retained to represent Huawei Technologies USA and Huawei USA following the issuance of grand jury subpoenas in April 2017. Prosecutors said the cover letters from the production of documents in response to the subpoena were signed by Sidley's Robert Torresen, “and copied to Cole, as well as attorneys at the law firms Kirkland & Ellis LLP and Locke Lord.”
Huawei and the company's chief financial officer, Meng Wanzhou, were indicted last year on a raft of charges, including band fraud and conspiracy to commit money laundering, in connection with what prosecutors described as a scheme to circumvent sanctions against Iran. The indictment was unsealed in January, a month after Wanzhou was arrested in Canada, where she is facing possible extradition to the United States.
“The charges in this case relate to a long-running scheme by Huawei, its CFO, and other employees to deceive numerous global financial institutions and the United States government regarding Huawei's business activities in Iran,” the Justice Department said in a statement in January.
Prosecutors revealed last week—in what they termed a “sealed classified motion”—that they were seeking to shut Cole out of the case. The government's filing last week provided no public explanation for the reasoning of the move to disqualify Cole, who served as the second-ranking Justice Department official from 2011 to early 2015.
The Justice Department first told Cole on Jan. 22 that prosecutors believed he had a conflict of interest, according to the redacted court filing.
A week later, the Justice Department met with Cole, who signed a nondisclosure agreement giving him one-time access to classified information. Cole, according to the Justice Department, “indicated that he did not believe the information provided by the government at the meeting gave him a sufficient basis on which to determine whether he had a conflict of interest.”
After Cole asked for permission to consult legal counsel about the supposed conflict, the government agreed to provide one-time access to the same classified materials to Sidley Austin partner Virginia Seitz, the firm's general counsel, who led the Justice Department's Office of Legal Counsel under the Obama administration.
On March 9, Cole declined to recuse himself, writing, “We have carefully considered the material you showed us and were unable to determine that I need to be disqualified based on that information. We took the discussions seriously and are open to considering any further information you want to present that might relate to this issue.”
Cole soon filed court papers indicating he would appear as a lawyer for Huawei.
The Justice Department's filing is posted below:
[falcon-embed src="embed_1"]
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTravis Lenkner Returns to Burford Capital With an Eye on Future Growth Opportunities
Legal Speak's 'Sidebar With Saul' Part V: Strange Days of Trump Trial Culminate in Historic Verdict
1 minute readLegal Speak's 'Sidebar with Saul' Part IV: Deliberations Begin in First Trump Criminal Trial
1 minute readTrending Stories
- 1Bucking Industry Trend, Sidley Austin Elects Biggest Class of Partners in Firm History
- 2US Judge Throws Out Sale of Infowars to The Onion. But That's Not the End of the Road for Sandy Hook Families
- 3‘Really Deflating’: Judges React to Biden Threat to Veto New Judgeships Bill
- 43 Incidents Lead to Charges Against the Alexander Brothers; Cousin Remains at Large
- 5Sidley Austin Elects Biggest Combined Class of Partners and Counsel in Firm History
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250