It’s been a momentous week. According to Attorney General Bill Barr, Special Counsel Bob Mueller has concluded there was no “collusion” between Russia and President Trump’s campaign. On the question of obstruction of justice, it was a close call; a call Mueller decided not to make himself, instead punting it to Congress, only to see Barr run on the field, grab the football, and take it in for a touchdown for Trump.
Among the president’s critics, there was a sense of disappointment, even a sense of betrayal. In Mueller, some saw a savior, someone who would hold Trump accountable for his norm-defying behavior. But steering the country in the right direction cannot rest on the commission of crimes or on any particular prosecutor. It takes more than the power of a subpoena or an arrest warrant. Mueller did what a just prosecutor must sometimes do: walk away.
The decision to criminally charge anyone, let alone a president, is difficult. Accusations are concrete, stark, and public. They are, as I write in Doing Justice, “written declarations of war.” When the evidence cuts either way, do you pull the trigger or not?
While I’m on the book tour, I’ll be highlighting excerpts that speak to the current moment. Last week, we discussed how often people forget that investigations are long and complicated. People also fail to appreciate that the decision to charge comes after investigators have put in a lot of sweat equity. Just take a look at the sheer volume of the undertaking of Mueller’s investigation. As Barr wrote in his letter:
The Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.
I’ve always reminded my teams of prosecutors to be mindful not to let the grueling work they’d put into investigating a case to influence their decision on charging. As I write in Doing Justice:
Law enforcement agencies are like Wall Street in one way. They want a return on their investment. It’s only natural. Human beings want their efforts to amount to something; we desperately want something to show for all our work. No one wants to be Sisyphus. A farmer may love tending to his crops, but he lives for the harvest. Law enforcement agents, however, are not Wall Street investors (or farmers). Profit and justice are different. Justice often must suffer the loss of substantial investment because that is what justice itself demands. When a back-breaking investigation does not yield enough evidence of a crime, when it turns out that a miscreant has come up to the criminal line but not put a thieving toe over it, when everyone thinks the target probably did the deed but doubts linger, when the law in its idiocy or a court in its naïvete has exempted from prosecution bad conduct that reasonable people loathe and want to punish, there is only one choice: to walk away. Walking away can be deeply and viscerally unsatisfying. But if all the raised expectations and personal investments and sunk costs sweep people towards an unjust charging decision, that is a miscarriage. There are plenty of outside accelerants pushing forward this inherent psychological momentum. When bad things happen, politicians, the press, and the public look for scalps and scapegoats. These are all contagions that can infect a fair inquiry. The fair-minded investigator stays pure and infection-free by going about her business, head down, in a metaphorical Hazmat suit, immune to external pressures. Imbecilic mob chants of “lock her up!” or “lock him up!” fall on deaf ears. Outside forces aside, there is sometimes an internal source of pressure that is also dangerous and inexcusable. That occurs when leaders of an institution abuse their power – even inadvertently – to create pressure to produce a particular result. They do this by forgetting, like I sometimes did, to make clear that they are prepared to accept that there may be no pot of gold at the end of the rainbow and that this is okay. Because profit and justice are different.
The lesson is two-fold:
— Beware the trigger-happy prosecutor or cop. Prosecutors aren’t cowboys or gunslingers. It is vital to keep always, front of mind, what this moment means, this moment of decision about the way forward – not only for the institution making the charge, but also for the target and for public faith.
— While you should beware the prosecutor who is trigger-happy, worry also about the one who is gun-shy, the one with a lead foot on the brake. They can undermine justice and accountability with the opposite bent.
Preet’s book, “Doing Justice” is now out and it’s getting rave reviews. In the Washington Post, Quinta Jurecic, managing editor of Lawfare notes:
“Listeners of Bharara’s podcast will be familiar with the book’s tone: thoughtful, sincere, and not above a coy jab or a showman’s wisecrack. Like the podcast, ‘Doing Justice’ takes questions about the mechanics of criminal justice as an opportunity to dig deeper into moral and political inquiries.”
If you haven’t already, ORDER your copy of Doing Justice, also available as an audiobook. Early sales often determine the success of a book, so thank you to everyone for showing your support and joining Preet and the CAFE Team in our pursuit and exploration of justice.
MUELLER REPORT RECAP
There’s been a lot of coverage and analysis of Mueller’s yet-to-be-released report and Bill Barr’s summary of the Special Counsel’s principal conclusions. Here are select writings from guests of Stay Tuned:
One person the Mueller report didn’t ‘exonerate’? Vladimir Putin President Trump should secure the passage of new legislation to ensure election integrity, so urges former U.S. Attorney in Alabama, Joyce Vance, in an op-ed for the Washington Post, writing, “Trump’s foot-dragging on the subject for the past two years has meant that he has taken no steps to protect the security and integrity of future elections.”
Trump’s Shamelessness Was Outside Mueller’s Jurisdiction The Mueller report “marked a low point” for presidential norms of conduct, argues former White House counsel Bob Bauer in an op-ed for the New York Times, writing that the report “shows that a demagogic president like Donald Trump can devalue or even depart radically from key norms, just short of committing chargeable crimes, so long as he operates mostly and brazenly in full public view.”
Even Without Mueller’s Report, Congress Had All the Facts It Needed As Americans speculated over Mueller’s report for the last two years, “we have often lost sight of the core truth of the Trump presidency,” argues David Frum, former speech writer for President George W. Bush and writer for the Atlantic, who reminds us that, “The president of the United States was helped into his job by clandestine Russian attacks on the American political process.”
You may have heard that on Monday, SDNY charged attorney Michael Avenatti of the Stormy Daniels fame in a multi-million dollar blackmail scheme involving Nike. Avenatti allegedly threatened to reveal what he claimed were Nike’s illegal payoffs to basketball players unless Nike paid him $25 million to conduct an internal investigation and also paid an additional $1.5 million to his client who possessed the damaging information. In a separate case, federal prosecutors in Los Angeles charged Avenatti for stealing a $1.6 million settlement from a client and defrauding a bank.
For a humorously honest if somewhat cynical take on Avenatti’s arrest, readBloomberg columnist Matt Levine’s news analysis which frames the blackmail issue as follows:
If you know that a public company has done a bad thing, and no one else knows about it, how can you use that knowledge to make money? It is an odd feature of modern life that there are actually a lot of answers to that question, that there are whole specialized industries devoted to extracting money out of public companies that have done bad things.
What should guide a prosecutor’s decision to bring charges or a judge’s discretion in imposing a sentence when evidence isn’t at issue? Are instinct and experience enough or should the criminal justice system also take data into account?
Anne Milgram, co-host of the CAFE Insider podcast, is on a mission to innovate the criminal justice system through data analytics and statistical analysis. When Anne became the Attorney General of New Jersey she came upon a realization that changed the way she sees the criminal justice system. As she explained in a TED talk in 2013:
We didn’t even know who was in our criminal justice system, we didn’t have any data about the things that mattered, and we didn’t share data or use analytics or tools to help us make better decisions and to reduce crime. And for the first time, I started to think about how we made decisions. When I was an assistant D.A., and when I was a federal prosecutor, I looked at the cases in front of me, and I generally made decisions based on my instinct and my experience. When I became attorney general, I could look at the system as a whole, and what surprised me is that I found that that was exactly how we were doing it across the entire system — in police departments, in prosecutors’ offices, in courts and in jails. And what I learned very quickly is that we weren’t doing a good job. So I wanted to do things differently. I wanted to introduce data and analytics and rigorous statistical analysis into our work. In short, I wanted to moneyball criminal justice.
WATCH Anne’s TED Talk and let us know your thoughts – what role should instinct and experience play in making decisions on charging and sentencing when data analytics can more accurately assess the risk of crime and violence? Write to us at email@example.com
DON’T BARR MUELLER’S REPORT
Takeaways from Episode 18 of CAFE Insider:
What’s next now that Mueller’s investigation is over and Bill Barr has summarized the Special Counsel’s principal conclusions? Congress should do its oversight duty and obtain Mueller’ report. The question for lawmakers and by extension, the public, is whether the president potentially engaged in unethical behavior that while not criminal casts serious doubts on his decision-making and fitness for office. Consider this analogy: A police officer is involved in a shooting and comes under criminal investigation. Prosecutors find insufficient evidence to charge. That evidence however is enough for the police department to fire that officer, which is often what happens in police shooting cases.
What evidentiary standard did the AG use to decide there wasn’t enough to charge obstruction? While the standard for a conviction is beyond a reasonable doubt, the standard for bringing charges is probable cause –that is, whether it’s more likely than not (51% chance) that a crime was committed. When a prosecutor decides not to bring charges after an investigation, the prosecutor will often explain the standard through which the evidence was filtered. We didn’t see it in Barr’s letter. It’s likely that there’s substantial and credible evidence that Trump obstructed justice, otherwise Mueller would absolve Trump, as he did on collusion. Instead, Mueller wrote, “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Usually when the decision to charge is a close call, the benefit of the doubt goes to the defendant. Mueller didn’t do that here. He could have said, “We don’t recommend a charge.” Instead, it appears that Mueller’s intention was to leave the question to Congress.
Can someone be liable for obstructing an investigation that did not result in a provable charge? A person is guilty of obstruction of justice when he or she intentionally interferes with the orderly administration of law, such as a criminal investigation or a proceeding before Congress.
Attorney General Barr decided that the president didn’t commit the offense of obstruction of justice in part because he didn’t commit the underlying crime of conspiring with Russians to influence the election. “[W]hile not determinative,” Barr wrote, “the absence of such evidence bears upon the President’s intent with respect to obstruction.”
It isn’t uncommon to charge someone with obstructing an investigation that ultimately does not result in charges. Martha Stewart was famously convicted for obstructing justice after the underlying securities fraud charges were thrown out. Suppose a prosecutor concludes that there isn’t enough evidence to convict X of insider trading. Even if X is innocent of insider trading, X may still have motive to interfere with the investigation because X believes that the investigation could uncover information that is personally embarrassing to X or information that implicates X’s family member in a crime. Still, it can be a challenging case to make to a jury. A case will be stronger if there is an underlying crime that is also charged and evidence on both counts is presented to the jury.
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THIS WEEK ON STAY TUNED
Steve Martin is a prison reformer and one-time correctional officer who has served as the court-appointed monitor of Rikers Island, a notoriously violent jail in New York City. In this sneak peek at Thursday’s interview, Martin discusses what’s often missing from public discourse about mass incarceration:
We talk in terms of mass incarceration or incarceration, let’s drop the “mass.” Let’s just talk about incarceration. We typically talk about it in terms of its cost – benefit to society. It’s impact on minorities, on the poor. So there are all kinds of public policy issues in which we debate with incarceration, you know, but what is rarely talked about is how literally debilitating actual confinement is on the human person, you know, the person incarcerated. That is to say that it is so often cruel. It’s so often brutal. It’s so often violent. And it’s always unforgiving.
Don’t forget to listen to this week’s episode. It drops this Thursday, 3/28.