It's time to send a message: Hold unethical prosecutors accountable

Where the Department of Justice is the accuser, prosecutors have little appetite for flexibility and explanation.  The least infraction regularly results in an indictment and often a prison cell.

When prosecutors or FBI agents are the accused, however, there is a markedly different response.  Excuses are accepted at face value.  Mistakes are forgiven.  And decisions not to prosecute DoJ employees are justified by claiming that the case is "just too difficult."  The hypocrisy is breathtaking.

Take the former deputy director of the FBI, Andrew McCabe.  According to DoJ inspector-general Michael Horowitz, McCabe repeatedly lied to investigators, sometimes under oath, sometimes by concealing material information, and sometimes by just plain lying.  Despite the inspector-general making a criminal referral to the Justice Department for prosecution, no charges were filed.

Something similar is playing out in a New York courtroom, where a federal judge is asking tough questions of DoJ prosecutors.  After securing a conviction of Ali Sadr in March for money-laundering, the United States Attorney's Office for the Southern District of New York suddenly asked the court to drop the case.  The reason?  Prosecutors were caught violating their ethical duties to disclose evidence favorable to the defense.  

What's worse is that when the whole case threatened to explode, one assistant U.S. attorney suggested something even more sneaky to get out of the fix prosecutors were in: "I'm wondering if we should wait until tomorrow and bury it in some other documents."  A second said: "That's fine, too."  By conspiring to hide the evidence, prosecutors hoped they wouldn't be caught.

With someone's freedom at stake, prosecutors were playing games by withholding information that may have allowed the defendant to clear his name.  When that didn't work, they tried to slip one past the defense and the judge.  Let's call this what it is: obstruction of justice.

When all this came to light, federal judge Alison Nathan ordered prosecutors to explain themselves. 

Their response?  "Oops.  No harm.  No foul."  Seriously.  In a letter to the court, acting U.S. attorney Audrey Strauss explained: "We do not believe that any information was improperly withheld from the defense, in the sense of knowing that it had to be disclosed yet not disclosing it.  But many items were discovered or disclosed far too late."

What is the meaning of "improperly"?  I suppose that is a little like asking what the meaning of "is" is. 

The objective reality is that information that may have cleared the defendant was withheld by the government.  And when prosecutors finally understood their ethical obligations, they attempted to obstruct the court and the defense by burying the information. 

But it's okay because, according to the acting U.S. attorney, "the Government made a point of disclosing other interview and documentary material that we believe went beyond the Government's disclosure obligations."

Sure, we didn't give you anything to clear your name, but we gave you lots of other stuff.

Every first-year law student knows that prosecutors have a duty of candor to the court and an ethical obligation to turn over evidence that could help the defense in a criminal case.  Add to that trying to bury the information to avoid accountability, and you have a classic case of obstruction of justice. 

Most prosecutors are honest and hardworking public servants.  But talk to any criminal defense attorney, and he will tell you horror stories involving gamesmanship in the discovery process by a few bad apples.  Who defines what is "evidence favorable to the defense"?  When does it have to be turned over?  Can it be buried in a stack of thousands of documents, where it may never be seen?  These are recurring issues that go to the heart of the Constitution's guarantees afforded to those who are innocent until proven guilty.

The Sadr case in New York is a perfect example of why more transparency and oversight of prosecutors are required.  Fortunately, Utah's senior senator, Mike Lee, has legislation that would do just that.  The Inspector General Access Act would empower the Justice Department's inspector general to investigate allegations of unethical conduct made against federal prosecutors.  Predictably, the DoJ and the National Association of Assistant U.S. Attorneys are opposed.

The Justice Department's reputation has taken a beating in recent years.  The growing perception that the DoJ treats its own better than regular citizens only makes things worse.  If the Justice Department is to protect its reputation, it will embrace Senator Lee's bill. 

The same penalties meted out to ordinary citizens charged with obstructing justice should be applied to unethical federal prosecutors in the Sadr case and others like it.  We need to send a message that playing games with a person's freedom won't be tolerated anymore.

David Safavian is the general counsel for the American Conservative Union.


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