James Cole James Cole appearing for confirmation. Credit: Diego M. Radzinschi / ALM

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: 

 

 

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