Sam Bankman-Fried enlists Harvard Law's Tribe to stay out of jail

© Reuters. Indicted FTX founder Sam Bankman-Fried arrives at the United States Courthouse in New York City, U.S., July 26, 2023. REUTERS/Amr Alfiky

By Jonathan Stempel

NEW YORK (Reuters) - The indicted FTX cryptocurrency exchange founder Sam Bankman-Fried is trying to stay out of jail for disclosing too much to the press, and enlisted one of the foremost American constitutional law experts for help.

Laurence Tribe, the longtime Harvard Law School professor, in a Tuesday night court filing said Bankman-Fried's disclosures to the New York Times about a former colleague appeared to fall short of the "clear and convincing evidence" of witness tampering needed to justify putting the 31-year-old behind bars.

U.S. District Judge Lewis Kaplan in Manhattan is considering whether to revoke Bankman-Fried's bail because he gave the Times personal writings of Caroline Ellison, the former chief executive of FTX-affiliated hedge fund Alameda Research.

Bankman-Fried has pleaded not guilty to stealing billions of dollars in FTX customer funds to plug losses at Alameda. Ellison is expected to testify against the former billionaire at a scheduled Oct. 2 trial.

Tribe said Bankman-Fried had a First Amendment right to try shaping his image through the press, so long as he does not try to subvert justice, and appeared to have been only a "supplemental source" for a Times article about Ellison.

"If Mr. Bankman-Fried's engagement with that article did not clearly constitute witness tampering, then the Government may well be asking the Court to surmise nefarious intent ... based on an otherwise lawful exercise of his constitutional rights to speak to the institutional press," Tribe wrote.

MEDIA MAELSTROM

Tribe also said a July 26 gag order against Bankman-Fried trying to "influence public opinion" about the case's merits -- an order the defense agreed to -- appeared one-sided because it left his detractors "free to add to the media maelstrom."

Bankman-Fried has been largely confined to his parents' home on $250 million bond since his December 2022 arrest.

Tribe's filing was attached to a letter from Bankman-Fried's lawyers saying their client did not seek to intimidate witnesses and there was no reason to jail him.

Prosecutors have until Thursday to respond to the letter. It is unclear when Kaplan will rule.

Tribe was not immediately available on Wednesday for additional comment.

Now 81 and an emeritus professor, Tribe works at a law firm that represents Bankman-Fried's father Joseph Bankman, but said he has had no involvement in that relationship.

He said he submitted Tuesday's filing independently, as a constitutional law expert.

A spokesperson for the law firm, Kaplan Hecker & Fink, had no immediate comment.

Tribe published the major treatise "American Constitutional Law" in 1978 and was lead counsel in 37 Supreme Court cases. His profile grew in 1987 in U.S. Senate testimony against Robert Bork's ultimately unsuccessful nomination to the Supreme Court.

The case is U.S. v. Bankman-Fried, U.S. District Court, Southern District of New York, No. 22-cr-00673.