Prosecutors formally advised lawyers for former Vice President Mike Pence this past June that he would not be charged for retaining classified materials after leaving office. I expect that the special counsel Robert Hur will similarly soon announce that President Biden will not face charges for his own handling of classified documents. The merits of those determinations, no less than the one to indict Donald Trump for hoarding such documents in Mar-a-Lago’s bathrooms and ballrooms, are properly debated.
Criminal investigations into holders of high office invariably raise questions about equal treatment and equal justice under the law. Is there, people ask, a double standard?
Well, there is one species of double standard and special treatment that reveals an overlooked unfairness in our justice system: It is generally only the famous and the powerful who get the courtesy of closure, who get the benefit of formal notice that the case against them is over. In too many cases and for no good reason, people never know when they are out of jeopardy.
Outside of the most high-profile cases, a prosecutor’s decision to close an investigation remains a secret — from the public, the victim, and even the target of the inquiry.
For targets who have never appeared in the pages of this paper, that means there is no news conference at the Department of Justice or letter to their lawyers to dispel the cloud of uncertainty and fear that accompanies the threat of prosecution. There is only silence. Many involved in perpetuating this purgatory — including the prosecutors themselves, as I know from my time as the United States attorney for the Southern District of New York — understand it serves no real purpose. Yet routine nondisclosure continues unquestioned.
It can, and should, stop.
When investigators conclude that there is insufficient evidence to support a charge or that justice would not be served in bringing one, the case ends. Common sense suggests that the next step would be to advise the persons under investigation that they are no longer targets. After all, that’s the truth, and everyone should be able to move on. Nevertheless, every day prosecutors choose to keep their erstwhile targets in the dark, and they tell no one outside of their office or the investigating agency that the case is dead.
Consider where that leaves the person being investigated. First as a prosecutor and now representing targeted people, I have seen lives upended by the suspicion of involvement in a crime.
Many times that’s for good reason. Prosecutors investigate crimes because people commit them, and those who break the law must be brought to justice. But whatever the ultimate disposition, no one would mistake a federal investigation for a pleasant process. Targets have often been interviewed by the police or federal agents, called to testify before a grand jury, or had their homes searched. Their most personal property may have been seized — a passport, a phone, a computer. They’ve hired lawyers, contemplated prison, and deferred decisions about travel, career and family.
Then it goes quiet. Maybe that means prosecutors are putting the final touches on an indictment. Or maybe it means the worst experience of your life is over. Every defense lawyer, though, will tell you that there is nothing you can do to figure out what (if anything) comes next. No news is good news, they’ll say, because silence at least means the indictment hasn’t been signed. And to pester the prosecutor about where you stand will achieve nothing other than irritating the person in whose hands your fate rests. Don’t poke the bear. So you dangle in the wind, alone with your fear of what is to come.
That is, unless you fall into one of the narrow categories for which the Justice Department regularly discloses that charges will not be brought. The most prominent is investigations of political figures, as in the case of Mr. Pence. Similarly, prosecutors are “particularly encouraged” by Justice Department policy to give notification of the closing of criminal civil rights inquiries involving law enforcement misconduct. Prosecutors also occasionally make announcements in other cases of heightened public interest. But these remain the exception, not the norm.
There can of course be good reasons for keeping the outcome of an investigation confidential. When a person never knew that he was being targeted, or when disclosure would jeopardize an ongoing investigation, or when co-conspirators are still being looked at, silence serves rather than impedes justice.
But the truth is, failing to tell people that charges won’t be filed most often results from some vague prosecutorial prerogative and thoughtless institutional habit. Why, prosecutors ask themselves, should I depart from what my colleagues typically do to assuage the feelings of someone I spent months suspecting committed a crime?
I know those concerns and was part of that very institutional default; though I regret it now, our general practice when I was U.S. attorney was also not to notify subjects that investigations were closing. I am convinced now we need to break the norm of secrecy. And I haven’t found anyone who really disagrees.
Unless notification risks harm to an ongoing investigation or would disclose a covert inquiry or alert a co-conspirator, basic fairness counsels that targets of all investigations — not just those especially in the public eye — should be told when there is a decision not to bring charges for lack of evidence or for any other reason. That notification need not (and often should not) be a clean bill of health or offer assurances of any kind, and prosecutors always retain the ability to reopen investigations if new evidence emerges.
But if prosecutors no longer consider a person (or a company) a viable target, they should just say so. This change can start with prosecutors invoking their general discretion to inform targets, and the presumption should be formalized in the manual for prosecutors issued by the Justice Department.
Prosecutors, the public and those being investigated all benefit from such transparency, which builds confidence in the decision-making of prosecutors, and offers repose to targets who have had their lives upended. That’s why it’s already the practice to make disclosures in sensitive matters. An American justice system should not permit any less for those who have never worked on Pennsylvania Avenue.
Preet Bharara is a partner at WilmerHale and former U.S. attorney for the Southern District of New York.
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