DoJ continues push for Sam Bankman-Fried's incarceration in letter to judge

The U.S. Department of Justice said Thursday that Sam Bankman-Fried, former CEO of failed crypto exchange FTX, “went beyond benignly exercising a constitutional right to speak to the press” in response to his lawyers’ claims that revoking his bail would violate his right to free speech.

In a letter to Judge Lewis A. Kaplan in the District Court for the Southern District of New York, DoJ attorneys said Bankman-Fried “took covert steps intended to improperly discredit a trial witness and taint the jury pool.”

“The Government seeks the only appropriate relief consistent with the defendant’s escalating evasions of his bail conditions: that bail be revoked and the defendant be detained pending trial,” it wrote.

The latest DoJ filing comes after Bankman-Fried’s lawyers said earlier this week that the prosecutors’ request to revoke his bond for sharing private diaries belonging to Caroline Ellison with the press was based on “thin” factual ground. The disgraced founder’s lawyers argued detaining him would raise “serious First Amendment concerns.”

Tampering with the witness?

The DoJ said that Bankman-Fried’s lawyers’ suggestion that the New York Times reporter was already aware of Ellison’s diaries “flies in the face of common sense.”

“The only reasonable inference is that the defendant — who had ongoing communications with this reporter for months — first described these writings to the reporter in advance of the May 23, 2023 article so that the reporter could reference them, and then once referenced went many steps further by actually sharing the writings so that they could be described in the July 20, 2023 article,” DoJ added.

Bankman-Fried’s attorneys also said that detaining him at the Metropolitan Detention Center would “make it impossible for him to fully participate in his defense,” as the facility is in a “staffing crisis.”

The DoJ, however, argued that — assuming Bankman-Fried is detained and placed at the MDC — the MDC “houses a large number of detainees awaiting trial, all of whom have access to participate in their defense and are not deprived of a fair trial as a consequence of their detention.”

Expert affidavit

Bankman-Fried’s attorneys attached to its Tuesday filing an expert affidavit from Laurence Tribe, a professor at Harvard Law School. 

“As Professor Tribe explains in his expert affidavit, controlling First Amendment case law unambiguously affords Mr. Bankman-Fried the right to comment publicly on charges levied against him, including statements about his accuser that implicate his own reputation,” his lawyers said.

Tribe wrote in an affidavit that Bankman-Fried "has an affirmative right under both the Freedom of Speech Clause and the Freedom of the Press Clause to speak to the press — and, subject to certain limitations, to continue to do so throughout the pre-trial process.”