William Barr, nominee to become U.S. attorney general, was right. Unindicted co-conspirators don’t get enough respect. Barr said at his Senate confirmation hearing: “If you’re not going to indict someone, you don’t stand up there and unload negative information about the person. That’s not the way the [Justice] Department does business.”
Well said. But that’s not what’s bothersome right now. It’s not even clear how relevant it is. The thorny problem, the tough one ahead, won’t be an unindicted co-conspirator. The tough one will be the unindictable co-conspirator — an issue so unique I can’t even get the term past my spellcheck. That’s the one about which we need to hear more from Barr, whose nomination is to be voted on Feb. 7.
Sadly, as most reporters with courthouse experience learn over the years, the Justice Department and many other prosecutorial agencies often fail to live up to the lofty standards of fair play outlined by the putative attorney general. Prosecutors too often don’t know how to lose like gentle-persons.
They go on and on in public about the fish they weren’t able to catch, often by labeling them as unindicted co-conspirators. I can’t tell you how many times I have wished I could go through a prosecutor’s press release and cross out that term, replacing it with “the guy I didn’t get the goods on,” or “someone whose innocence I refuse to accept.”
If you think he’s a conspirator, take your file box down to the courthouse and ask the grand jury to indict him. Otherwise have the decency to admit that you didn’t get him. They teach that at the Y. Shake hands, say “Good game,” and live to meet again on the playing fields of life.
It’s not just prosecutors, but lawyers in general. If you want to see something really ugly, be there with notepad in hand when one side wins. There’s nothing less appealing than lawyers doing high-five end-zone celebrations. It’s a mercy they’re heavily clothed.
Barr is right. There ought to be rules of decency and fair play. If special counsel Robert Mueller winds up deciding that no grand jury would return an indictment of President Donald Trump, then Barr’s remarks should be predictive. Nothing should be released. Mueller isn’t a biographer. He’s a prosecutor. His mission has been to gather information to produce indictments. If Trump is a fish that Mueller cannot catch, then it should be over, good game, see you next Saturday.
That’s the unindicted part — the instance in which Trump is not indicted because Mueller looks at his evidence boxes and elects not to seek an indictment. That’s easy.
The hard part is what happens if Trump is not unindicted but instead is that other thing my spellcheck doesn't want me to even say — unindictable. Justice Department veterans have been telling reporters for months that department policy says a sitting president cannot be indicted.
By that policy, even if Mueller were sitting on a trove of evidence he believed would produce an indictment, he wouldn’t be allowed to seek it. He couldn’t take his boxes to the courthouse and show his hand to the grand jury. And if Barr’s philosophy on the privacy of unindicted co-conspirators were applied to this instance, the boxes themselves would remain secret.
But this is different. The evidence boxes should be secret in the case of an unindicted co-conspirator because that person’s innocence should be considered to have withstood a strong test. A U.S. attorney or the district attorney or the sheriff or somebody in authority tried to get the goods on him and failed. In that case the authorities should have the good grace to retire from the field with their mouths shut. But this would not be that case. At all.
At the very least, Mueller or somebody above him should have to tell us that the investigation produced evidence sufficient to win an indictment but the Justice Department won’t seek the indictment because of its policy protecting sitting presidents. If we’re going to weigh this much history on a single departmental policy, then let’s name the moment clearly. At least the people who disagree will know where to focus. But it would then be a huge mistake for the Justice Department to argue that not seeking an indictment because of the policy is an argument for suppressing the evidence.
I think we all realize anyway that a posture like that isn’t going to last. Oh, sure. We at the Justice Department have a pile of evidence boxes that could send the president of the United States up the river, but, sorry, we have a policy.
Hopefully someone possessed of sanity would recognize the immediate hopelessness of trying to fortify a position like that. Where the information itself is concerned, a departmental policy is simply too thin a fabric to stand up to the tsunami of politics, law and public outrage that would ensue if it were suppressed.
If Trump is not indicted only because he’s considered unindictable by departmental policy, then we’re going to need to see the goods, the boxes, the information by which he would or might have been indicted in the absence of the policy. In that case he’s not covered by the same presumptions that apply to a person not indicted because the prosecutor didn’t get the goods on him.
Look at this another way. Let me place the case hypothetically into the local courthouse here in Dallas. The district attorney gets the goods on some privileged kid who raped a girl. But the DA sits on it, refuses to take the case to the grand jury, because the kid’s wealthy parents are campaign supporters of the DA.
None of us would have a moment’s trouble figuring that one out. Sitting on the evidence would be corrupt, a vile defiance of the rule of law. And here is the key: We would not consider that evidence to be the personal, private, discretionary property of the DA. Once the evidence was in hand, we would consider it to be the property of the law itself, subject to a legal process.
The DA could still say, “It’s not enough. I won’t show it, because I’m not seeking an indictment, because it’s not enough.” But he can’t say it is sufficient for an indictment but he won’t show it because he has a policy. In that case, we would consider the evidence to belong to us, not him, and we would insist on seeing the goods.
Prosecutors are endowed with great power. They can look at evidence and tell us that in their judgment nothing is going on. We give them that power. Maybe — big maybe — the U.S. attorney has the power to tell us that something is going on with the president, but he won’t seek an indictment anyway because he’s the president. But that does not give him the power to refuse to tell us what’s going on.
If anything, not telling the American people what’s going on would be a much greater abrogation of the Constitution and would do more violence to the country than indicting the president. We can get new presidents. We cannot necessarily get new faith in democracy.
Maybe this is all just some dude in Dallas worrying. Maybe they’ll pony up the boxes, let the Congress see what’s in them and tell Trump he’s golden until the day he steps out of the White House. The worry would be this: There cannot be a conflation of unindicted with unindictable. Those two creatures are not just distinct from each other. They are fundamentally foreign.
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