A response to Orin Kerr
Orin Kerr is an insightful legal analyst, so when we are in disagreement I take his criticism seriously. Respectfully, however, his Lawfare critique of a recent column in which I took issue with Special Counsel Robert Mueller’s pleading practices is not his best work.
To recap my argument, Mueller’s tactic of charging sensational offenses and pleading them down to comparatively trivial crimes flouts guidelines that are prescribed in the U.S. Attorney’s Manual and that are followed by responsible U.S. attorneys’ offices. Kerr objects, contending that a provision in the manual that I did not discuss indicates there is more leeway in the guidelines than I let on.
I think he is wrong on this narrow point because the guideline he cites, which applies to non-prosecution agreements for potentially culpable witnesses when time is of the essence, is not pertinent to the situation I was discussing: viz., the plea deal of Richard Gates, who faced two indictments alleging financial-fraud felonies involving over $100 million in the aggregate, but was permitted to plead guilty to minor charges. Before we come to that, though, some underbrush needs clearing.
First, Kerr implies that I see the manual guidelines as legally binding. I don’t, and never have — not in 20 years living under them as a prosecutor, nor in the succeeding 15 years as a commentator. The thrust of my argument is that Mueller is not upholding critical Justice Department “standards” and “policy” (the words used in the column) that are expressed in the guidelines. If the guidelines were binding, there would be little point in arguing policy, as I have done; I would call for court enforcement. But the guidelines reflect internal DOJ standards; there is no judicial remedy for deviations.
In a different recent column, I highlighted the manual’s opening passages, which unambiguously declare that the guidelines are just that, guidelines. (See Section 1-1.100.) How strictly they are honored is up to federal prosecutors, their supervisors, and Justice Department leadership. In my experience, the manual’s guidelines are taken quite seriously — they certainly were in the U.S. attorney’s office for the Southern District of New York (SDNY), where I worked. But Mueller is effectively unsupervised, so no one is going to force him to adhere to them. Kerr’s description of my claim that Mueller is “breaking the rules” suggests that I’ve accused the special counsel of violating the law. No, I’ve accused him of abusing his discretion.
That this is not actionable does not make it right.
Second, while the guidelines obviously aim to ensure equal and ethical enforcement of federal law across the country, just as significant is their goal of promoting the most effective investigations and prosecutions possible under whatever circumstances prevail. My criticism is directed to this latter objective, which I think Kerr fails to give its due.
A defendant should be required to plead guilty to “the most serious readily provable” offense charged, as dictated by the guideline I cited (U.S. Attorneys Manual, Section 9-27.430), which is directly applicable to plea agreements. Kerr grouses that I don’t address the purportedly complicating factor of cooperation in discussing this provision (though he acknowledges that I do raise it elsewhere — we’ll come to that). But there is no need to address cooperation as if it complicated matters, because it doesn’t: The “most serious readily provable” standard applies to plea agreements regardless of whether cooperation is in the mix.
Requiring such a guilty plea not only ensures that the defendant is held appropriately accountable and is not given favorable treatment in comparison to others similarly situated; a plea to “the most serious readily provable charge” also makes the defendant a more compelling cooperating witness. By contrast, failing to require a plea to the most serious offense degrades the defendant’s testimony, which is usually offered to prove against other defendants the same serious offense on which the cooperating defendant has been given a pass.
A concrete example makes the point. A defendant who has committed bank-fraud conspiracy and pleads guilty to bank-fraud conspiracy is an effective witness — his admission of guilt goes a long way toward proving the existence of the scheme and makes it more likely that conspirators he implicates will be convicted. This helps the prosecution. On the other hand, if the prosecutor lets the defendant plead guilty to a minor (non-bank-fraud) conspiracy to induce his testimony against other bank-fraud conspirators, it signals to the jury that the bank-fraud conspiracy is not as serious as the indictment suggests; it opens the door to defense claims that the cooperator was given a major break to buy his testimony and exaggerate the culpability of the other conspirators. This hurts the prosecution.
I am not criticizing Mueller because I’m a contrarian who eschews special-counsel appointments (though I plead guilty to that). Regardless of my take on Mueller’s appointment, if Richard Gates committed $100 million in financial fraud, I want to see him commensurately punished for it. If Paul Manafort committed these same egregious crimes, I want to see Mueller effectively prosecute him. This should involve the main cooperating witness, Gates, pleading guilty to the most serious readily provable charge against both himself and Manafort.
That is what would have been required, at a minimum, in the U.S. attorney’s office where I worked. More likely, an SDNY prosecutor would have insisted that Gates plead guilty to all of the offenses that he and Manafort were indicted for committing jointly. This prudent practice was the standard during my years in the office, and I am pleased to say that it continued in the years after I left. (See, e.g., Byron York’s recent Washington Examiner column in which he quotes former SDNY U.S. attorney Preet Bharara: “When we had evidence against somebody and wanted them to flip, we made them plead guilty to every bad act that they had ever done, especially if we were later going to be alleging other people had engaged in that activity as well.”)
