When I asked a top Washington defense lawyer a few weeks ago about William Burck, the answer was eloquent in its unambiguous simplicity: “Bill Burck is an excellent attorney.” The context of the question was the rumors being floated by congressional Democrats that Burck was at risk of conflicts of interest in his representation of multiple key players in the Trump drama. He became lawyer, most recently, for Steve Bannon, adding to a client roster that includes current White House counsel Don McGahn and former chief of staff Reince Priebus.
Among the dark suggestions has been that Bannon could be guided in his testimony by McGahn at the White House with Burck as a furtive go-between. A source familiar with the whisper campaign says, “The Democrats have attributed every possible action by Trump officials to some preposterous evil plot, and this is no exception.”
Politico recently picked up on the murmured complaints and ran an article titled “Russia probe’s most popular lawyer risks conflicts.” Among the conflicts suggested by Politico would be “if one of his clients should contradict—or even incriminate—another.” Burck told Politico that he was conscious of the potential for conflicts, and were any to arise “everyone in good faith will try to figure out what the best way to proceed is.”
Perhaps the concern on the Hill that Burck has a client or two too many may actually be about making sure each person being interviewed—whether by Congress or special counsel Robert Mueller’s crew—has capable and unconflicted legal advice. It’s possible. But maybe it’s also a testament to Burck’s legal skills that some lawmakers want to limit the number of important witnesses getting his advice.
If so, it wouldn’t be the first time that the government tried to get Burck bounced from a high-profile case by asserting that he and everyone at his law firm, Quinn Emanuel Urquhart & Sullivan, suffered from inescapable conflicts of interest. That very thing happened, and not that long ago, in a case known as the United States of America v. Kim Dotcom.
Mr. Dotcom was the owner of a renegade file-sharing service called Megaupload, which allowed some 150 million registered users to share and download music, movies, TV shows, software, and other copyrighted works. It was said that at its peak, the site accounted for “four percent of the total traffic on the Internet.” The various content industries affected lobbied Washington to take Megaupload down. Which is just what the Department of Justice set out to do.
In announcing their indictment of the company in January 2012, federal prosecutors declared that their action was “among the largest criminal copyright cases ever brought by the United States.” It also featured a lead defendant, the company owner who styled himself “Kim Dotcom,” who at first glance appeared to be a prosecutor’s dream come true.
Unashamed of his avoirdupois, boastful about the Croesan stash of cash his enterprise had produced, and gleeful about what he could procure with his riches (everything from yachts to bikinied lovelies to ornament them), Dotcom made for an outsized comic villain. The feds played it for all it was worth. They didn’t just have him arrested; they waited for Dotcom to host a lavish birthday party at his New Zealand mansion and persuaded the local police to launch a raid with two helicopters and 72 officers from the military-equipped Special Tactics Group and the Armed Offenders Squad. (New Zealand police would later settle a lawsuit brought by Dotcom alleging overkill.)
The FBI claimed that Megaupload had generated “more than $175 million in criminal proceeds,” and they weren’t eager to see any of those resources used to pay for a vigorous defense. Accusing the company of money laundering and conspiracy to commit racketeering, the Department of Justice seized all of Megaupload’s money it could identify and get its hands on.
Thus prosecutors were none too pleased when the company managed to scrape together enough unfrozen funds to hire real lawyers. Three different big law firms were approached by Kim Dotcom and considered taking on the case, but each backed out. Burck, who did take the case, thought he knew the reason why: After word got out that Quinn Emanuel was taking the brief, “we ourselves were contacted by the Government,” Burck wrote in a fierce memorandum to the U.S. District Court. Though they dressed it up as a courtesy heads-up, “the Government noted its perception of a conflict and indicated it would be submitting its concern to the Court, just as it has.” Burck argued that with the accusation of conflicts of interest, federal prosecutors were trying to deprive the accused of counsel: If “Quinn Emanuel is disqualified as the Government suggests that it should be, it seems dubious that any law firm with the necessary capacity and experience to defend Megaupload competently would meet the Government’s self-serving standard.”
In other words, if a lawyer or a law firm were capable of handling the biggest criminal copyright case to come down the pike, chances are good they would have honed the necessary skills by handling copyright cases involving innumerable clients with interests in how the law protects intellectual property. If the government were to succeed in having every such lawyer bounced for supposed conflicts of interest, then the defendant would never be able to get competent counsel. The “Government appears unwilling to litigate fair and square,” Burck wrote in his memo to the court, “seeking to disqualify any counsel positioned to represent Megaupload effectively.”
He made his case: A few months later, Burck was arguing before the court that the indictment was void because prosecutors had failed to follow simple procedural rules for sending a summons to a corporation being criminally charged. Burck called for the case against Megaupload to be thrown out: The “due process claims trump all the other issues,” he said.
Arguing for the United States was prosecutor Ryan Dickey, who said government lawyers would be more than happy to deliver a summons to Kim Dotcom once they had their hands on him. “[W]e’ve intended from the beginning of this case when it was first indicted, to extradite the individual defendants,” Dickey said. “And then when we get them here to the district, to serve a summons on them.”
What makes this bit of legal back-and-forth more interesting these days is that prosecutor Ryan Dickey, now a senior lawyer in the DoJ computer crime section, was recently tapped to join special counsel Robert Mueller’s Russia probe.
Which raises the question: Who would get the better of whom, should Burck and Dickey clash in the coming months? If the argument over the service of summons to Megaupload is any indication, it will be a close-run thing. The judge closed the hearing by complimenting both men: “I appreciate the quality of the arguments today.” When he made his ruling he split the difference, saying that Megaupload did need to be properly served, but giving the government a chance to figure out a way to get the summons into Dotcom’s hands.
Six years after Kevlar-clad police swooped in on his birthday party, Kim Dotcom is long out of the local clink and still fighting extradition to the United States, where he continues to be wanted on charges he mega-violated copyright laws. In the meantime, the Internet entrepreneur is suing the New Zealand government for some several billion dollars for its part in allegedly ruining his business and his reputation.
And here in Washington, William Burck is representing at least one client—Steve Bannon—whose public image as a cartoonish villain is coming to rival that of Kim Dotcom. And as the Mueller investigation proceeds, Burck may well find himself sparring again with Ryan Dickey, the prosecutor who was his foil in the Megaupload fight.
Eric Felten is a senior writer at The Weekly Standard.
