Cover-up Crimes

What do one of baseball’s greatest players, a former senior White House official, a domestic diva and Fortune 500 CEO, and a former Speaker of the House all have in common?

This is not the beginning of some bad joke about how they all walk into a bar. Barry Bonds, Scooter Libby, Martha Stewart, and Dennis Hastert all were investigated for possible criminal misconduct and ended up being charged not with that misconduct but with other crimes they committed to try to conceal their actions or thwart the investigation.

Barry Bonds was implicated in baseball’s steroids scandal. He ended up being indicted not for using illegal steroids but for perjury and obstruction of justice after allegedly lying in the grand jury about his steroid use. (He was found guilty of one count of obstruction, but that conviction was recently overturned on appeal.)

I. Lewis “Scooter” Libby, who was Chief of Staff to former Vice President Dick Cheney, was implicated in the potentially illegal leak of the identity of a covert CIA agent, Valerie Plame. He was ultimately not charged with the leak but was convicted of perjury, obstruction of justice, and false statements for lying to the grand jury and the FBI about his actions.

Martha Stewart was suspected in 2002 of insider trading after she dumped her stock in a company called Imclone the day before bad news from the FDA caused the stock’s price to plummet. She and her broker Peter Bacanovic ultimately were not indicted for insider trading, but were convicted of multiple counts of false statements, perjury, and obstruction of justice for concocting a phony story about why she sold the stock and then lying to the FBI and SEC.

And Dennis Hastert, the former U.S. Speaker of the House, allegedly had sexual contact with students decades ago while he was working as a high school teacher and coach. He was recently indicted not for any sexual misconduct but for lying to the FBI about his apparent hush-money payments to one of his victims and for structuring his bank transactions to conceal those payments. (Hastert recently pleaded guilty to one count of structuring bank transactions and is awaiting sentencing.)

It’s a legal maxim, particularly in the post-Watergate era, that often the cover-up is worse than the crime. But cover-up crimes are the Rodney Dangerfield of the white collar world: they don’t get any respect. You frequently hear them derided as “gotcha” crimes, or as something prosecutors charge only when they can’t “get” a defendant for anything else. There is a widespread perception that these crimes are somehow less serious than many other white collar offenses.

But the truth is that prosecution of cover-up crimes is vitally important to the proper functioning of the justice system. It’s time these crimes got the respect they deserve.

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The Leading Cover-up Crimes

Perjury – 18 U.S.C. §§ 1621, 1623:  Perjury, or lying under oath, is the classic cover-up crime. There are two principal federal statutes: 18 U.S.C. § 1623 applies only in federal judicial and grand jury proceedings, while 18 U.S.C. § 1621 applies in any proceeding where an oath is authorized by law, including Congressional hearings and investigations by agencies such as the SEC.

Perjury requires that the defendant was under oath, made a false statement about something material to the proceeding, and knew that it was false at the time. Mistakes or innocent failures of recollection are not perjury; it requires a knowing lie.

Perjury is the narrowest of the cover-up crimes because of the oath requirement, which sharply limits the types of proceedings in which it applies. It is also notoriously difficult to prosecute. Perjury requires strict proof that the defendant was deliberately lying and that there was no room for confusion, misunderstanding or ambiguity. Pinning down evasive witnesses is not easy. As a result, testimony that is unresponsive or even misleading may not be perjury because nothing is said that is provably false.

A well-known example of this occurred during the investigation of President Bill Clinton, when he denied under oath ever having “sexual relations” with Monica Lewinsky. It was later determined, of course, that the two did have a relationship that was sexual in nature. But the questioner’s convoluted definition of “sexual relations” coupled with a failure to pin Clinton down with follow-up questions resulted in sworn testimony that was potentially misleading but likely not perjury.

False Statements – 18 U.S.C. § 1001:  The false statements statute is perjury’s more sweeping cousin, and broadly criminalizes lying to the government. The statement must be knowingly false, must be in a matter within the jurisdiction of one of the three branches of the federal government, and must be material, or potentially important. Most notably, there is no requirement that the statement be under oath. False statements can also apply to defendants who do not actually lie, but who conceal material facts from the government through a trick, scheme or device when they were under a legal obligation to reveal those facts (such as a reporting requirement created by statute, for example).

Martha Stewart, Scooter Libby, and Dennis Hastert all were charged with false statements for lying to the FBI in unsworn interviews. Lies in government contracting documents, in reports to administrative agencies, in applications for government programs, and in any other communication with the federal government may potentially result in false statements charges.

Obstruction of Justice – 18 U.S.C. §§ 1503, 1505, 1512, 1519:  A number of different statutes apply to obstruction of justice; I’ve listed only the principal ones. They differ in the types of proceedings to which they apply and in some other particulars, but also overlap a great deal. In general, obstruction of justice means the defendant knowingly and wrongfully endeavored to impair, obstruct or impede the due administration of justice in some proceeding.

Obstruction of justice covers a wide variety of conduct, including tampering with witnesses, threatening or injuring judges or jurors, and destroying, altering or concealing evidence. It may also apply to lying to investigators or in official proceedings with the intent to obstruct, and to that extent can overlap with both perjury and false statements. In the cases of Scooter Libby and Martha Stewart, for example, the defendants were charged with false statements for lying to investigators and were also charged with obstruction of justice for an overall pattern of conduct during the investigation that included, among other things, telling those lies.

Decorative Scales of Justice in the library

Prosecution Priorities and Cover-up Crimes

Cases charging cover-up crimes are often met with a reaction that ranges from skepticism to outrage. When Barry Bonds was prosecuted for perjury and obstruction of justice, there was a lot of commentary suggesting that the case was just an attempt by the prosecutors to “get” Bonds for something trivial because they didn’t like him. When Hastert was recently indicted, some suggested the charges were not appropriate and that Hastert was being unfairly singled out. And even more than a decade after her trial, it’s not unusual to hear someone express outrage over the fact that Martha Stewart was prosecuted.

The sense that these are not serious crimes is widespread. I’ll never forget seeing a sitting U.S. Senator on cable news, when the Scooter Libby case was going on, saying something like, “If there are indictments, I hope it’s for a real crime, and that the prosecutors don’t just go after someone on some technicality like perjury.”

But prosecutors certainly don’t see cover-up crimes as mere technicalities or trivial offenses. These often-maligned charges play a number of important roles.

First, when included in a case with other charges, cover-up crimes may provide valuable evidence of criminal intent. In many white collar cases, proof of intent is the critical issue. It’s often pretty clear what happened and who did what; in a contracting fraud case, for example, the paper trail may easily establish that the defendant overbilled the government. The key issue is likely to be not what happened, but why: the defense will claim it was just a mistake or accounting oversight, not a fraud.

Cover-up crimes may provide powerful evidence of intent in such cases: people generally try to conceal their activities when they realize they’ve done something wrong. If the defendant in our contracting case shredded documents when they were subpoenaed, or tried to intimidate a witness, or lied to investigators, those cover-up crimes provide strong evidence of guilty knowledge. The argument is simple: if they thought they did nothing wrong, why did they try to cover it up?

In other cases, cover-up crimes may serve the interest of justice by ensuring that defendants who engaged in criminal conduct that cannot now be prosecuted are still punished. For example, a defendant may have committed crimes that are now outside the statute of limitations, a key witness may have died making prosecution impossible, or some other critical piece of evidence may be unavailable. If during an investigation of that other criminal activity the defendant engages in a cover-up crime, bringing those charges can ensure that the defendant does not entirely escape the criminal consequences of the earlier activity.

Charges in such a case do not unfairly circumvent the statute of limitations. The defendant is not being charged for the original misconduct. But the cover-up crime can be seen as part of an ongoing course of conduct that includes the earlier bad acts; without those acts, there would be nothing to cover up. It’s perfectly appropriate to hold the defendant accountable for the cover-up that arises from earlier misconduct that cannot now be punished — particularly when, as in the Hastert case, for example, that prior misconduct was particularly egregious.

But more fundamentally, even when such considerations are not in play, pursuing cover-up charges plays a crucial role in the criminal justice system. Prosecuting such crimes is important because these offenses strike at the very foundation of the justice system.

The justice system, of course, depends upon the ability of finders of fact to receive all relevant and appropriate information necessary to decide a particular case. Cover-up crimes undermine that ability.

If witnesses lie in the grand jury, lie on the witness stand, destroy evidence, tamper with witnesses, lie to investigators, or otherwise interfere with the due administration of justice, there must be consequences. If not, such behavior becomes the logical choice of anyone who has some reason to fear the truth.

Prosecution of cover-up crimes, by seeking to deter such behavior, preserves the fundamental operation of the justice system itself.   If these crimes took place with impunity it would become impossible to investigate or prosecute anything effectively, whether white collar crime, violent crime, or terrorism. The effective functioning of the justice system depends upon people telling the truth and complying with the system’s lawful demands — and knowing they will pay a price if they do otherwise.

You can bet that every CEO knows what happened to Martha Stewart when she tried to lie her way through an SEC and FBI inquiry. Every government official knows what happened to Scooter Libby when he tried to obstruct an FBI investigation at the highest levels of government and lied about it in the grand jury. Such prosecutions can have a tremendous deterrent effect, and for that reason are tremendously important.

These crimes are not mere technicalities; they seek to preserve those aspects of our justice system upon which all else rests. That’s why prosecutors, who make their living within the justice system and working to further its goals, take these crimes so seriously, even if others do not always agree. And that’s why prosecution of cover-up crimes deserves a little more respect.

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Prosecutors and the Spiderman Principle

“The United States wins its point whenever justice is done its citizens in the courts.”   — Inscription on the wall at U.S. Department of Justice, Washington, D.C.

There’s a well-known scene in the 2002 Spiderman movie where Uncle Ben is talking to Peter Parker. Peter has just begun to discover his super powers and was recently involved in a fight at school where, much to his own surprise, he beat up the school bully. Uncle Ben, concerned about the changes he is seeing in Peter, cautions him that his ability to do something doesn’t automatically give him the right to do it. “Remember,” he says, “with great power, comes great responsibility.”

This line is actually a paraphrase of one written by Stan Lee in the very first Spiderman comic book in 1962. It also found its way last term into a Supreme Court opinion by Justice Kagan in Kimble v. Marvel Entertainment, LLC., making her no doubt the first Supreme Court Justice to cite both Dr. Seuss and Marvel Comics in the same year.

But my fondness for this saying has nothing to do with comic books. My white collar crime students get used to hearing me talk about the “Spiderman principle” – with great power comes great responsibility – whenever I talk about the special role that prosecutors play in the criminal justice system.

Spiderman

The Special Responsibilities of Criminal Prosecutors

The prosecutor’s role is different from that of any other advocate. Normally an advocate’s job is to get the best result possible for your client – to win, if possible – while acting within the bounds of law and ethics. In most situations an advocate has a duty to his client, not a duty to pursue truth, justice, or some other ideal.

For example, a criminal defense attorney’s duty is to represent her client zealously, even if she knows he is guilty. She has no obligation to seek the truth; in fact, in many cases she will be doing her job if she can obscure the truth and keep it from coming to light. A civil attorney representing a company whose products injured people will get the case thrown out if there’s a legal basis to do so, even if the company is clearly responsible and fairness suggests the victims should be compensated.

But a prosecutor’s role is different.  His job is not to “win” – at least not if winning is defined as convicting someone, anyone, for a particular crime. The prosecutor’s job is to ensure that justice is done. That means doing your best to make sure that the rules are being followed, that exculpatory evidence is disclosed, that the defendant’s rights are protected, and above all that you are prosecuting the right people. It means dropping charges or not bringing charges at all if it’s the right thing to do, even if you could probably get a conviction if you went to trial.

These special obligations of prosecutors may not always be clear or intuitive to the general public. Popular culture tends to portray lawyers as gladiators battling in the courtroom coliseum – and gladiators generally fight to win. Prosecutors are frequently portrayed in movies or novels as power-hungry or politically motivated, bent on winning at any cost. And it seems that every week brings some new story about a prosecutor who withheld exculpatory evidence or engaged in some other kind of misconduct that resulted in the conviction of an innocent person.

But the duty of the prosecutor to seek justice is not an anachronism or a quaint platitude. To good prosecutors, it is at the heart of their professional identity, part of their DNA. For the justice system to function effectively, it’s vital that it remain so.

The Prosecutor’s Role

The Supreme Court famously described the role of the prosecutor decades ago in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Many other cases have recognized this obligation of prosecutors to do justice and not merely to convict. Prosecutors are expected to be zealous advocates, but are expected to temper their zeal with recognition of their broader responsibilities.

This unique role of the prosecutor is recognized in various ethical and professional standards as well. For example, the American Bar Association Model Rules of Professional Conduct, which have been adopted by nearly every state, include Rule 3.8 entitled “Special Responsibilities of a Prosecutor.” It provides, among other things, that a prosecutor must not knowingly bring charges not supported by probable cause, must work to ensure that the rights of the defendant are protected, and must make timely disclosure to the defense of all exculpatory evidence.

In this cynical and partisan age it’s easy to dismiss the special obligation of prosecutors as a naïve and unrealistic ideal. Some suggest it is contrary to human nature: competitive lawyers will always try to win, and asking them to do anything less is doomed to fail. Critics argue that prosecutors are just politicians, who will do what is popular rather than what is right.

I don’t agree. To most prosecutors – and to all good prosecutors – this duty to seek justice really does mean something. I saw it put into practice every day during my twelve years as an Assistant United States Attorney. Prosecutors may not always agree with each other, and certainly may not always agree with defense attorneys, over how best to fulfill their obligations in a given situation. They may make mistakes while carrying out their duties. But they always know that they, unlike other advocates, do have a higher duty.

It’s not that good prosecutors don’t try to win — it’s that they must have a different concept of what “winning” means. As the inscription on the wall at DOJ provides, the prosecutor and the government win when justice is done in the courtroom. In any given case that may mean no one is ever prosecuted or that a guilty defendant walks free, if that’s what the law requires. Winning doesn’t mean locking someone up by any means necessary.

The Planes that Don’t Crash

One reason some may doubt that prosecutors still honor their obligation to do justice has to do with widely publicized cases of prosecutorial misconduct. It’s not uncommon to see reports of a case where a defendant was wrongfully convicted after prosecutors withheld exculpatory evidence, encouraged witnesses to lie, or engaged in some other misbehavior. Such reports have led some to claim there is an epidemic of prosecutorial misconduct in this country.

I would never seek to minimize the seriousness of misconduct when it does occur. True prosecutorial misconduct can cause tremendous harm, including in the most extreme cases sending an innocent person to prison or even to death row. Actual misconduct should be dealt with swiftly and severely and cannot be condoned. But recognizing all that, the truth is that evidence of an “epidemic” of misconduct is remarkably thin.

Press accounts may focus on one particular case or a handful of cases, and the misconduct may indeed be appalling. But any single case also has to be placed in context: each year in the United States there are several million felony prosecutions at the state and federal level. Examining a handful of individual cases actually says nothing about what is the norm across all criminal prosecutions.

There is an old saying about journalism: “no one writes about all the planes that don’t crash.” Cases of egregious misconduct make headlines, and rightly so. But no one reports on the thousands of cases every day where prosecutors are fulfilling their obligations and following the rules. No one writes lengthy research studies about how prosecutors are doing their jobs properly. Judges don’t write opinions about how the prosecutors in their case adhered to all the appropriate professional standards. Like the thousands of safe airline flights every day, these cases go unnoticed because the system is functioning as it should.

Law is a human enterprise and therefore is necessarily flawed. There are tens of thousands of prosecutors working around the country at the federal, state and local level. In any field of endeavor that large you are going to have bad actors. There are bad prosecutors, just as there are bad bankers, bad doctors, bad hedge fund managers, and bad corporate CEOs.

I’m not naïve; I don’t deny that prosecutorial misconduct happens. But I do reject the claim that the behavior of the “bad apples” is in fact the norm.

Courtroom (1)

It’s Not Just the Law, It’s a Good Idea

Good prosecutors seek to do justice and play by the rules because it is their moral, ethical, and professional obligation to do so — but they soon learn it is also in their own professional self-interest. Even in large cities, the criminal law bar is a relatively small community. Within that community the most valuable asset a prosecutor has is his or her reputation.

If a prosecutor develops a reputation for being unethical, defense attorneys will learn not to trust her. That will make them less likely to encourage clients to trust the prosecutor during plea negotiations, or to advise a client to cooperate in an investigation. This will make it much more difficult for the prosecutor to resolve cases quickly or pursue complex investigations. A prosecutor doesn’t need the defense bar to love her, but she does need them to respect and trust her if she’s going to be effective.

Judges, too, may take action against unscrupulous prosecutors. Unlike most lawyers, prosecutors appear repeatedly before the same small group of judges, who rule on countless matters in the prosecutors’ cases. Judges will stop trusting a prosecutor who develops a reputation for playing fast and loose with his professional obligations. Anything that prosecutor asks the judge to do will begin with a presumption of skepticism and mistrust, making the prosecutor’s job much more difficult. A disgruntled judge can make a prosecutor’s life very miserable indeed.

If a prosecutor’s office develops a reputation for misconduct, that also will have an effect on its jury pools. Juries are drawn from members of the local community. If, based on press reports and incidents from other cases, the community does not like or trust the prosecutor’s office, members of a jury are less likely to trust the prosecution in any particular case and may register that distrust with their verdict.

In short, good prosecutors soon learn that abiding by their professional and moral obligations is not merely the right thing to do – it is also the way to be most effective as a prosecutor. Ignoring these obligations may allow an unscrupulous prosecutor to secure a conviction in a particular case, but in the long run it will catch up with him.

DOJ seal - what are the special responsibilities of a prosecutor?

“Do the Right Thing”

When writing a note or commendation to a Department of Justice attorney, former Attorney General Janet Reno would often close with the tag line, “Do the right thing.” It’s simple – and may sound corny to some – but that admonition nicely summarizes the goal of every good prosecutor.

A friend who is a former prosecutor turned defense attorney tells me that when he meets with prosecutors about a case he proceeds on the assumption that the prosecutors are acting in good faith. This is much more effective, he says, than taking the position of some defense lawyers that the prosecutors are all jack-booted thugs. But in addition to being more effective it has the virtue, he believes, of being true. Most prosecutors, most of the time, are acting in good faith and trying to do their jobs appropriately.

Prosecutors wield a tremendous amount of power, and with such power always comes the potential for abuse. The ability to launch even a grand jury investigation, much less to indict, is the ability potentially to ruin someone’s life. A lawyer given that kind of power needs to recognize the responsibility that goes along with it, and must exercise that power with some humility, compassion, wisdom, restraint and judgment. And if you can’t do that, you should find another line of work. (I hear estate planning is fascinating.)

But for those willing to assume the responsibilities that go along with the job, criminal prosecution is an incredibly rewarding career — and an honorable one. Prosecutors and defense attorneys doing their jobs appropriately are the critical foundation of our criminal justice system. Although prosecutor bashing is very fashionable these days, good prosecutors working hard and trying to do the right thing will always be the true face of the profession.

People hired to be prosecutors must understand their unique obligations and have those responsibilities drilled into them from day one. The leadership in prosecutor’s offices must always ensure they are creating a culture where these obligations are recognized and embraced. A good prosecutor never forgets that he or she is not just another advocate – and never forgets the Spiderman principle.

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