In our last post, we discussed the recent decision Luis v. United States, in which the Supreme Court held that innocent assets are out of the government’s reach prior to trial. Justice Elena Kagan’s short but notable dissent in Luis addressed the issue of whether the government should be able to reach a defendant’s assets at all, allegedly “tainted” or not, prior to conviction.

In her dissent, Justice Kagan took aim at United States v. Monsanto, 491 U.S. 600 (1989), calling it a “troubling decision.” The Monsanto court permitted the government to seek a pretrial restraining order on funds allegedly traceable to the alleged crime, even if those funds were needed to pay counsel, so long as the government can show probable cause to believe that the funds were tainted. In Justice Kagan’s opinion, however, a pretrial asset freeze that interferes with the ability to retain counsel runs counter to a defendant’s Sixth Amendment right to hire an attorney of his or her choosing.

Justice Kagan also questioned the plurality’s use of the word “tainted” because it assumes a defendant’s guilt. When the government has not yet shown that the defendant committed the crime charged, she said it also has not shown that allegedly tainted assets are actually so.

How can a mere showing of “probable cause” to believe that assets necessary for a defense are “tainted” trump the presumption of innocence and the Sixth Amendment’s right to counsel of choice?

For Justice Kagan, it can’t.

But even though Justice Kagan sympathized with the plurality’s efforts to cabin Monsanto, because Luis did not challenge Monsanto on appeal, she was unable to agree that Luis was not bound by the Monsanto holding.

Accordingly, for those defendants who cannot benefit from the ruling in Luis (i.e., when a court makes a probable cause finding that assets needed to retain counsel are “tainted”), there is an alternative avenue to pursue—challenge Monsanto head on. They will know that at least one Justice will favor their side.

Of course, one cannot presume that the full Court would agree with a challenge to Monsanto. And in the interim, the risk that a defendant’s own assets will be deemed “tainted” and off-limits for retaining counsel is yet another reason that rights such as indemnification and advancement are critically important for executives. So too is directors’ and officers’ insurance, which can allow for the payment of fees for a defense even when a corporation does not agree or is not allowed to advance them.