The United States Attorney for the District of Columbia, Ronald C. Machen Jr., announced his resignation last week. He leaves with an impressive record of accomplishments from five years at the helm of the nation’s largest U.S. Attorney’s office. Most of the stories about his departure, however, have focused on one matter that he leaves unresolved: the investigation into former D.C. Mayor Vincent C. Gray.
The investigation is focused on irregularities involving Gray’s successful 2010 mayoral campaign. It began shortly after he was elected, when allegations surfaced that a long-shot mayoral candidate in the 2010 race, Sulaimon Brown, was paid by associates of Gray to remain in the race and levy attacks against the incumbent candidate, Mayor Adrian Fenty. Shortly after Gray was sworn in as Mayor, Brown was given a city job paying $110,000 a year, although he was quickly fired when it was revealed he had a criminal record.
The investigation that began with the allegations concerning Brown grew to encompass a number of different aspects of Gray’s campaign, and has led to guilty pleas from six people connected to that campaign. In a major development in March of 2014, D.C. businessman Jeffrey Thompson pleaded guilty to campaign finance violations involving a number of local and national campaigns, including Gray’s.
The documents filed in connection with Thompson’s guilty plea allege that Gray knew about a $650,000 “shadow campaign” that Thompson financed on his behalf and that Gray discussed the off-the-books campaign with Thompson. Thompson’s guilty plea was announced shortly before the D.C. Democratic mayoral primary in 2014, and is widely considered to have played a major role in Gray’s defeat in that primary.
Gray left office in January of 2015. He has consistently denied any wrongdoing and reportedly rejected a plea deal offered by prosecutors last fall. Gray’s supporters, meanwhile, have criticized Machen for allowing the investigation to drag on for so long, leaving a cloud over Gray’s head and possibly costing him the election.
After Thompson’s plea it was widely anticipated that charges against the Mayor himself might soon follow. Yet nearly three months after Gray left office, a year after Thompson’s plea, and four years after the case began, the investigation of the Mayor is still ongoing. Unless something happens in the case this week, Machen will leave office with arguably the biggest public corruption investigation of his tenure left unresolved.
“What’s taking so long?” is a question frequently heard during white collar investigations. It’s possible that the lack of any charges against Gray indicates the investigation has hit a snag, and it’s certainly possible that Gray will not be indicted at all. But it’s risky to try to divine too much from delay alone. A number of factors, many beyond the prosecution’s control, can cause white collar investigations to go on for what may seem an unusually long time.
The Nature of White Collar Investigations
A white collar investigation is an organic, developing thing. If prosecutors had all the information about the potential offenses and defendants up front, it would be relatively straightforward to put all the witnesses in the grand jury, ask them all the relevant questions, and proceed expeditiously. But white collar prosecutors seldom have that luxury.
This is one of the principal ways white collar investigations differ from, say, an investigation of a bank robbery or a homicide. “Street crime” investigations generally begin when it’s pretty clear that a crime has been committed and the universe of potential charges is relatively well defined. Within those parameters, the task generally is to assemble sufficient evidence to prove that a particular defendant committed the crime.
In a white collar case, by contrast, the investigative task frequently is to determine whether a crime has been committed at all. The scope of the possible charges and potential defendants may be much less clear at the outset, and likely will evolve as the investigation proceeds. There are frequently many shades of gray (no pun intended) involved when investigating more nebulous criminal concepts such as fraud and corruption. This can result in a more wide-ranging and prolonged investigation.
Considering the Mayor Gray investigation as an example, what began as one relatively straightforward set of allegations concerning Sulaimon Brown apparently blossomed into a wide-ranging probe of numerous allegations of improprieties involving a number of different campaigns and multiple potential defendants. This is not uncommon; as prosecutors dig more deeply into a corrupt institution, they frequently uncover new leads and unanticipated potential crimes that have to be chased down. If you’re trying to clean house, it’s tough to finish the job when you keep finding new, unopened doors around every corner.
Because the investigation evolves over time, other types of delay also arise. For example, suppose an important witness is called into the grand jury and testifies relatively early in the investigation. As more documents are reviewed or additional witnesses testify, prosecutors may discover new information about which they now need to question that early witness. That may require a return appearance before the grand jury.
This can happen repeatedly during a lengthy investigation. I recall one large public corruption investigation where we had to recall a particular key witness to the grand jury at least half a dozen times over a more than two year period as we continued to discover additional critical information about which we had to question her. Each such appearance, of course, takes time to prepare for and to coordinate with defense counsel, in addition to consuming more time in the grand jury itself.
The Nature of the Grand Jury
White collar cases frequently rely heavily on the grand jury. In a street crime investigation, law enforcement officers may interview willing witnesses, and victims generally will gladly provide any records and other evidence they have to assist the prosecution. Frequently, much of the investigation can be completed outside of the grand jury room, a much faster and more efficient process.
In a white collar case, by contrast, evidence may be buried in the records of corporations and other institutions that will only yield those records if compelled by a subpoena. Fellow employees in a company, fellow officers in a police corruption case, or a politician’s staff in a political corruption case, all may be reluctant witnesses who cannot simply be interviewed by case agents but must be compelled to appear and testify under oath in the grand jury.
The grand jury is an incredibly powerful body, but the process is necessarily somewhat cumbersome. It takes time to subpoena witnesses, deal with their defense counsel, and arrange for them to appear in the grand jury. Institutions subpoenaed for large numbers of documents likewise will require time to assemble the documents and for their counsel to review them to screen for privileged materials.
And speaking of documents — white collar investigations often are very document intensive. There may be hundreds of thousand or even millions of pages of corporate documents, bank records, telephone records, e-mails, and more that need to be examined. The sheer volume of paper that has to be reviewed and analyzed can definitely slow an investigation down.
Many white collar investigations involve individuals or companies represented by skilled defense counsel who will vigorously represent their clients, which may involve throwing up roadblocks to the government’s progress. Witnesses subpoenaed to the grand jury may assert various privileges not to testify, and litigating those claims — even those without merit — may take months or even years. If documents are subpoenaed or seized during an investigation, the defense may go to court arguing that the documents are privileged or were obtained improperly and must be returned, preventing investigators from examining them until those claims are resolved.
For example, in the Gray investigation, lawyers for Jeffrey Thompson challenged the seizure of a large number of documents taken from his home and office during the execution of a search warrant. Thompson’s lawyers pursued that claim all the way to the U.S. Supreme Court, delaying the investigation by more than a year.
Another recent example involves the leak investigation and prosecution of former CIA employee Jeffrey Sterling. Prosecutors wanted to obtain testimony from New York Times reporter James Risen concerning whether Sterling was his source for classified information that he published. Risen resisted the government’s subpoenas by claiming a reporter’s privilege not to reveal his sources. The investigation and trial of Sterling were delayed for about four years while Risen’s attorneys unsuccessfully pursued his privilege claims.
Depending on the nature of the documents or testimony involved, it may be reckless, irresponsible, or even impossible for the prosecutors to go forward until such issues are resolved – but resolving those legal battles may result in substantial delays. And time spent fighting over such legal issues is time not spent examining additional witnesses or otherwise advancing the investigative ball.
The Nature of White Collar Crimes
White collar crimes frequently boil down to questions of intent. It may be clear that a contractor overbilled the government, but was it really a fraud or simply an accounting mistake? It may be undisputed that a supporter has given gifts to a politician, but was it corrupt or was it simply unseemly or “politics as usual?”
That makes white collar cases particularly challenging to prove. Frequently prosecutors are not trying to prove observable events that took place (as in “who pulled the trigger” or “who had the drugs”) but are trying to prove what was going on in someone’s mind. Absent a confession, proving that may require an exhaustive and time-consuming examination of both witnesses and documents to build a circumstantial case piece by piece, while ruling out any ambiguities, uncertainties, or alternative explanations.
This can be especially difficult in public corruption cases. If a defendant is engaged in a Ponzi fraud scheme, for example, once that scheme comes to light there are usually victims willing to come forward to help the prosecution. They can provide information about their dealings with the defendant, turn over copies of their e-mails and other correspondence, testify about their conversations, and otherwise help the government prove the misconduct in question.
In a public corruption case, however, the crime usually involves a secret deal or transaction (such as a bribe) that neither party wants to be discovered. There are frequently no other witnesses. The “victims” – the general public or the politician’s constituents – don’t know that a crime has occurred and can offer no assistance. Such crimes take place in secret, behind closed doors, often through nods and winks.
The most common way to prove such a case involves painstakingly building successful cases against lower-level players and enlisting their cooperation against other, higher-level defendants – known as moving up the ladder, or using the little fish to catch the big fish. This can be very successful, but it too takes considerable time. Sufficient evidence has to be gathered against one defendant to persuade him or her that it is time to cut a deal. The terms of their plea agreement have to be negotiated and the case has to be brought before a judge for the plea. Following the plea, the cooperator now needs to be further debriefed and possibly put into the grand jury. The process continues, hopefully moving up the ladder towards the ultimate target, but climbing each successive rung may take months.
This appears to be the pattern that prosecutors have been following in the Gray investigation, as they have built successful cases against a number of lower-level players in the Gray campaign in addition to Thompson. But, as noted above, following the Thompson plea the much-anticipated other shoe has yet to drop.
There’s no way of knowing from the outside what is really going on with the investigation of Vincent Gray. It may well be that the prosecutors have hit some kind of roadblock and are concluding that an indictment would not be appropriate. Or it may simply be that some combination of the factors described above has caused the investigation to drag on for much longer than anyone — including the prosecutors — ever anticipated.
One thing that’s certain is that the prosecutors have no interest in delay simply for delay’s sake. Delay in a criminal case generally only helps the defense. Other than Gray himself, there is probably no one who would like to see this investigation completed more than the prosecutors. Nor does the fact that U.S. Attorney Machen is leaving suggest that the case is in trouble. U.S. Attorneys and line prosecutors come and go for a variety of reasons, but large investigations like this have a life of their own and do not depend on any one individual.
Regardless of the reasons for the delay, soon the prosecutors are going to start bumping up against potential statute of limitations issues for conduct that may have occurred as early as 2010. One way or another, the investigation of former Mayor Gray should be resolved before too much more time passes.
Update 12/9/15: The U.S. Attorney’s Office announced today that it would be closing the investigation in the Vincent Gray case without bringing any additional charges.
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