Elena M. Quattrone, Associate in the Health Care & Life Sciences practice, in the firm’s New York office, authored an article in Law360, titled “White Collar Defense Issues for Government Proffer Sessions.” (Read the full version – subscription required.)
Following is an excerpt (see below to download the full version in PDF format):
Stephen Bannon, the former adviser to President Donald Trump, was convicted in July after a brief deliberation by jury on misdemeanor contempt charges in violation of Title 2 of the U.S. Code, Section 192, for failing to comply with a subpoena from the U.S. House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol.
The subpoena, issued to Bannon's former lawyer, Robert Costello, on Sept. 23, 2021, requested that Bannon produce 17 categories of records and testify about actions leading up the attack.
Bannon resisted the subpoena, arguing that requested information was protected from disclosure by executive privilege, and leading to his conviction for contempt of Congress.
During the government's case-in-chief, federal prosecutors called Federal Bureau of Investigation Special Agent Stephen Hart to testify about a meeting that Costello held with prosecutors in early November 2021 — a proffer meeting — in which Costello reportedly attempted to convince prosecutors that Bannon's sole reason for not complying with the subpoena was the issue of executive privilege.
Bannon was indicted just days after the proffer session, and was eventually tried and convicted.
Proffer sessions occur routinely in criminal practice and are often used by a person of interest to achieve cooperation in a government investigation, or to convince a prosecutor not to pursue criminal charges.
Agreeing to participate in a proffer session is risky, and there are several important factors attorneys should consider before they or their clients agree to participate in a proffer session with the government.
