A highlight from SBF TRIAL: Inside Sam Bankman-Fried's Trial Defense Episode 2
The most important thing is, you know, just because a lawyer tells you something is okay, that's not a defense. Geez, he said it. He seemed to think everything was okay. Yeah. That's not an advice of counsel defense that negates criminal intent, that's an excuse. In part two of our series digging into SPF's defense, we dissect Sam Bankman -freed's claims that his lawyers played a larger role in FTX's collapse than he did. It might sound like a stretch, but there is legal precedent behind it. SPF also says he was pressured by counsel into turning FTX over to their hand -picked successor. In this episode, we sit down with Mark Litt, the prosecutor who took down Bernie Madoff, Travis Kling, a fund manager who still has millions of dollars tied up in FTX, and Mr. Purple, a pseudonymous crypto investor and fellow FTX victim, to see if there's any legitimacy to SPF's claims that lawyers who were there for FTX's rise are now primed to rake in hundreds of millions of dollars in legal fees. Money that SPF says should be used to pay back depositors. I'm Zach Ousman, you're listening to the SPF Defense Podcast, a coinage investigation. SPF's position is that FTX would have made it through the crisis if not for his lawyers, which conspired to steal the company out from under him, cover up their role in its operation, and siphon hundreds of millions of dollars in legal fees from the bankrupt estate. SPF even names one lawyer in particular, Ryan Miller, who joined FTX US from the law firm's Sullivan and Cromwell, and planned on returning there after his time at the exchange, according to an affidavit from FTX's top lawyer. SPF says Miller conspired to hand the company over to Solcrom and their chosen agent, John J. Ray III, who also handled Enron's bankruptcy. And whether you come to believe Sam's claims or not, Solcrom and Ray clearly won. If FTX's bankruptcy process takes the two years like Enron's did, it's on track to cost over $800 million. And Solcrom's relationship has already been called out by more than just Sam. It's even been raised as an issue by senators and 18 state regulators. But could SPF be right about Ryan Miller and Solcrom's nefarious motives? And even if they did do some evil lawyer shit, will it be enough to get SPF off the hook? To fully understand this defense strategy, it helps to start with SPF's story behind his attempt to plug the now notorious multi -billion dollar hole at FTX back in November's collapse. As the story goes, he was preparing to handle the liquidity crisis by courting Nomura, Japan's largest investment group, and the crypto company Tron, who had pledged billions of dollars in liquidity to FTX, while other investors were still deliberating. SPF had said he planned on giving away most of his equity in the company, and therefore most of his wealth, in an attempt to make customers of FTX International whole. SPF has always maintained that FTX US remained completely solvent right up to the end. But SPF says his rescue plan failed because Ryan Miller and Solcrom agents at his company, including Tim Wilson, another FTX lawyer with a past at Solcrom, pressed him repeatedly to sign the company's over to John Ray in bankruptcy, and even implied that if he refused, they could have him arrested and quote, change control in order to authorize a proper insolvency process. SPF said he changed his mind within 10 minutes of signing, but it was already too late. And he says his lawyers reneged on their promises to let him select a board share, blocking him out of his accounts and refusing to communicate further. As soon as John Ray was installed, he chose Sullivan and Cromwell as FTX's primary counsel. To be fair, SPF actually has a point when it comes to the sketchiness of that process. Even outside legal observers have taken issue with Solcrom being tapped as the firm to manage FTX's bankruptcy. In fact, a bipartisan group of two Republican and two Democratic senators, including Elizabeth Warren, sent a letter to the judge overseeing the case, urging him to appoint an independent examiner rather than Solcrom, which worked with FTX and Alameda before the collapse, bringing in $8 .5 million in legal fees. The senators argued, quote, given their longstanding legal work for FTX, they may well bear a measure of responsibility for the damage wrecked on the company's victims. Regulators from 18 states echoed that issue, saying appointing an independent examiner wasn't just right, it was also legally required. But back in February, the judge in the case threw out those requests, saying it would cost too much money, though we should note FTX's lawyers also charged the bankruptcy estate $21 ,000 over 20 days just for meals, which apparently isn't too much to spend. And if you ask the victims in FTX's collapse, this is all pretty important, considering it's their deposits and claims at stake. And if their money is being drained in broad daylight by a law firm who also helped FTX pre -collapse, that might not sit any better than Sam spending it. We talked to Travis Kling, who lost his crypto investment fund in FTX's collapse, and asked him to weigh in. If you ask me at the very beginning, do you think this is going to be one of the most expensive bankruptcies in U .S. history, I would say yes. Yes. You know, it's enormous. There's a ton of fraud, and it's magic internet money. Trying to kind of Monday morning quarterback this and say, oh, Sam would have been better off not filing for bankruptcy. That's not something that I feel very strongly about. And Solkrom's outrageous fees aren't the only reason for concern. SPF also claims Solkrom gave a clean bill of health to Alameda's trading accounts on FTX in a report with the CFTC just months before the collapse. Furthermore, in his affidavit, Dan Friedberg, who was both FTX's chief compliance officer and Alameda's general counsel until he stepped down following the crisis, says Miller only included FTX U .S. in the bankruptcy proceedings precisely because Miller knew it had the funds to pay Solkrom for its work, which backs up what SPF said about how FTX U .S. was never insolvent. So this may be a case of the fox guarding the henhouse. Solkrom denies any of this, of course. The firm's top bankruptcy lawyer, Andrew Dietrich, who told other lawyers FTX was rock solid in an email just days before the bankruptcy, said he only spoke with SPF twice. The FTX debtors also countersued Friedberg to seek damages, alleging he breached his fiduciary duties. We can't say much more beyond that because Solkrom never got back to us when we asked for a comment. But one thing is clear, what guidance Sam's lawyers gave him, and particularly what they knew about the business, will become integral to SPF's defense at trial. Even if you asked Ryan Miller before the collapse, the laws are pretty simple for any business, crypto or otherwise. Here he is explaining that concept at an MIT Bitcoin meetup in July 2022. Don't do fraud, don't lie, don't release materially incomplete statements. That then creates a basis for liability, liability from a criminal authority, be it a Department of Justice or liability in a civil context. Yet according to Caroline Allison's guilty plea, they had trouble following even those rules. In her sworn testimony, she said, quote, I agreed with Mr. Bankman, Fried and others to provide materially misleading financial statements to Alameda's lenders. Could Miller or any of SPF's lawyers, for that matter, be one of those others? Sam's other allegation that Miller contacted the DOJ to turn over documents that led to his indictment days before SPF linked, which controlled the company, makes Miller start to look even sketchier. But even if Solkrom really does have a true conflict of interest, could SPF really use their role in everything that happened to get an acquittal? Given that I'm not a lawyer, we pose that defense to Mark Litt, the prosecutor who took down Bernie Madoff. Can a lawyer be a criminal? Sure. Yeah. Can a lawyer be part of a criminal enterprise? Yes. Do they often go down? I don't know a lot of reputable lawyers who are going to bless lying to investors, lying to banks, intermingling funds, lying to auditors. If he happened to find one who knew all that was going on and blessed it, then maybe as a defense. But I tend to doubt it. You can't think of it as, well, oh, well, you know, Sullivan and Cromwell was involved or a former Sullivan and Cromwell lawyer was involved and, geez, he said he seemed to think everything was okay. That's not an advice of counsel defense that negates criminal intent. That's an excuse masquerading as an advice of counsel defense. Advice of counsel defense is very specific and narrow. You need competent counsel and they'll stipulate that any lawyer at Sullivan and Cromwell is competent in the subject area that they're being asked about. Second, every material fact has to be disclosed to them. Third, you have to seek their legal opinion on a subject. And fourth, you have to follow the advice. So if the defense can make out those elements, I would think they'd be able to present the defense and it might have a shot of winning. So Sol Cromwell might not be saints, but as we covered last time in episode one, SPF isn't exactly facing a trial over FTX's collapse. He's charged with a lot of things that led up to FTX's collapse. Arguably, what's alleged to have happened post -collapse matters more for FTX's victims. And if you ask them, the reviews are mixed on exactly what's played out thus far. If I'm going to judge Sullivan and Cromwell and John J. Wray from my purview of being someone who's seen these things in bankruptcy, I would give them a very low grade because you can say, oh, this is crypto, it's difficult, but it's not that difficult. And sometimes the devil you know is better than the one you don't. I will say that these debtors are extremely bad in my professional experience. That was Mr. Purple, a pseudonymous crypto investor who has experience following bankruptcy proceedings. For former FTX customers like him, Sam's spat with Sol Cromwell matters very little, as long as the firm can help achieve a meaningful recovery of their funds. And despite the fact that legal fees are stacking up, the bidding market for FTX customer claims is showing a growing hope they might not be stuck with pennies on the dollar. Another way to frame it is, you know, there's a claims market for FTX claims, trade claims, trade actively. There's a little niche of traditional finance that all they do is go around to different bankruptcies in all industries and they buy claims. This is this is a, you know, a subsector of of investing. And this is a huge bankruptcy. So this has been a very big liquid market. Right. And the first, you know, we're a very big creditor in this. So, you know, I'm in active conversations in this claims market. First, first bid we saw was in Thanksgiving and it was like six cents. That was the first bid. Six cents on the dollar, six cents on the dollar. And now now it's like 40 cents. And so it's gone from six to 40 cents. So then I'm like, OK, well, that feels quite good. Yeah. And OK, these guys are charging a load of money for that, but they have taken us from six cents to 40 cents. With both FTX's bankruptcy case and SPF's criminal case unfolding in real time, one may very well impact the other. We filed a Freedom of Information Act request for the CFTC to share the report. Sam says Solkrom filed to support that FTX's structure was above board. The agency denied our request, saying it's unable to share documents that, quote, could interfere with the conduct of federal agency law enforcement activities. And of course, as long as Solkrom selected John Ray is running the show at FTX, it's unexpected anything comes out to support SPF's case. FTX, too, didn't get back for comment. So unless SPF has direct evidence of lawyers being aware of FTX's shaky financials and helping for years to cover it up, it's hard to judge SPF's advice of counsel defense or the idea that he thought he was in the clear leading up to the collapse just because his lawyers said it was fine. As Litt said, that sounds more like an excuse than a defense. As a community owned Web3 media outlet, Coinage will be breaking down everything we've learned together through this series and curating still unanswered questions at Coinage .Media. I'm Zach Guzman. This was the second part of Coinage's investigative series covering SPF's defense. Stay tuned for episode three, where we'll explore another pillar. Of SPF's defense. You've been listening to the SPF Defense on the Coindesk Podcast Network. Follow the Coindesk Podcast Network to get all the Coindesk shows in one place and head over to Coindesk .com for all the Sam Bankman freed coverage. Thanks for listening.