The Volokh Conspiracy
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Federal Prosecutors Routinely Use Carrots and Sticks to "Induce" Defendants to "Support [DOJ] Policy Objectives"
Another problematic point raised in a resignation letter.
The Adams Affair continues. Yesterday, I wrote about Hagan Scotten's resignation letter. Here, I want to focus on another sentence Scotten wrote that does not quite make the point he intended:
No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.
The phrase "ordered liberty" was most famously used by Justice Cardozo in Palko v. Connecticut (1937). Provisions of the Bill of Rights were incorporated if they were "implicit in the concept of ordered liberty." Not exactly some sort of clear, or formalist test. More like an "I know it when I see it approach" to liberty.
What comes after is far more important. Scotten would have you believe that the federal government never uses the "carrot of dismissing charges, or the stick of threatening to bring them again, to induce [a defendant] to support its policy objectives." Notice how I changed "elected official" to "defendant." If you make that subtle change, you realize how problematic that statement is.
The Department of Justice routinely uses carrots and sticks to make defendants support DOJ policy objectives. More than 90% of federal criminal cases end up in plea bargains. Federal prosecutors may as well be transactional lawyers. Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. And the parameters of plea bargains are approved at high levels of leadership. For example, the Obama and Biden Administration offered far more lenient plea deals for drug offenses, while the Trump Administration offered more severe plea deals for drug offenses. Those are DOJ policies, based on some assessment of the harmfulness of the offenses.
In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form. The federal government can often grant individuals immunity if they go "undercover" as a confidential informant to obtain information about other crimes. Such covert work can place the defendant at risk of death, but the government deems that sacrifice justified in exchange for dropping the prosecution. Moreover, if a defendant refuses to cooperate, the government routinely threatens to bring additional charges, and seek more jail time. In all of these cases, the government uses the carrot of dismissal or the stick of further indictment to promote the ends that the prosecutor's office deems appropriate. When a U.S. Attorney approves a deal in exchange for cooperation, the government is using a carrot to promote its policy objectives.
Now, back to the brackets. I swapped "elected official" for "defendant." Should it matter if the cooperation is provided by an elected official or a private citizen? Does Scotten really think it is the case that DOJ has never "induce[d] an elected official to support its policy objectives"?
Consider the case of United States v. Richmond from the nearby Eastern District of New York. 550 F. Supp. 605 (E.D.N.Y. 1982). In that case, the plea agreement required the defendant to resign from Congress and not run for re-election. Would you call that using a "carrot" to "induce an elected official to support [the government's] policy objectives"? I sure should. You can couch the plea deal in some sort of sense of the public good, but at bottom, the government used its coercive power over prosecution to nudge the defendant to relinquish his ability to hold current and future public office. Were the prosecutors who proposed that deal "foolish"? No, they were doing what prosecutors do all the time. Were these prosecutors scrambling our system of "ordered liberty"? Of course not. Brooklyn is a wild place, but not that wild.
Prosecutors often have something of a god complex, in which they think they always have the higher moral authority, and can use the power of prosecution to accomplish those goals. This risk is particularly acute in so-called public integrity cases. The line between a politician engaging in fraud and a politician servicing constituents is often in the eye of the beholder. Look at the number of public integrity cases that the Supreme Court unanimously vacated.
Was the plea deal valid in Richmond? No. Chief Judge Jack Weinstein (yes, that Jack Weinstein) ruled that the "plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void." Weinstein added, "[j]ust as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate." Weinstein was right. But that lesson was not learned. To this day, DOJ guidelines state that disqualification is a "appropriate" policy goal:
[r]esignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved.
It's right there in black-and-white! Is this provision inconsistent with ordered liberty?
Indeed, people urged the prosecutors to condition a plea deal for Trump on not running for re-election. Seth Barrett Tillman wrote about such proposed plea bargains here.
For its part, the Justice Department has previously described Richmond as "incorrectly decided" and "particularly troublesome" in that it "purports to limit, without adequate legal justification, the latitude of federal prosecutors to reach voluntary settlements with defendants in significant corruption cases which equitably address and protect the important public interests that such prosecutions normally entail." But the Justice Department's current guidance is somewhat more equivocal, in that it cites Powell and Richmond for the assertion that "withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the [defendant] judge or Member of Congress involved because of the separation of powers doctrine" without further explanation. (Given that the context of the Justice Department's discussion is a plea bargain, the current guidance's use of "involuntary" is more than somewhat difficult to fathom.) More importantly, what exactly this language might mean for a potential Section 2071 plea agreement with Trump is not pellucidly clear, but it suggests that even the Justice Department would acknowledge that the logic of Richmond might pose some complications.
But there were only crickets in response to these proposals--proving again that much of the outrage about Trump is performative.
Bove's policy is the mirror image of what the government tried to do in Richmond. Bove is deferring the prosecution precisely to allow the people to choose to vote for Adams. And while Adams remains in office, his deferred prosecution is contingent on providing material support to the government. If support is not provided, then the deferred prosecution is off the table. This is the sort of thing DOJ does all the time. There is not, as Danielle Sassoon implied, a "quid pro quo." In 2020, Tillman and I explained that there is no bribery if a public act is exchanged for another public act: the federal government is deferring a prosecution and a government official is providing cooperation with the federal government. Without question, Bove and Adams have mixed motives, but public officials always act with dueling motivations. That dynamic is not enough to transform a government arrangement into a bribe.
Indeed, the fact that Sassoon even alleged there was a "quid pro quo" is yet more evidence of a federal prosecutor trying to criminalize politics. When you only have a hammer, every problem looks like a nail. When you are a federal prosecutor, every questionable act by a government official can be transformed to an indictable offense. The lawfare must end somewhere.
The outrage to Bove's letter, I think, stems from the fact that the recommendation came not from the Sovereign District, but from Main Justice. Moreover, the outrage is due to the fact that the defendant is not some foot soldier who is being asked to snitch on the kingpin. Rather, the defendant is the apex elected official in New York City, who is being asked to assist the federal government. Adams can provide orders far more assistance than the typical defendant could, which may justify the sort of unusual deferred prosecution that was offered. I see a difference only in degree, not in kind. Adams's making this deal is public for all to see, and the voters of New York can (and will) judge him accordingly.
Trump makes his deals explicit and publicly known. He truly saw nothing wrong with his "perfect" Ukraine phone call. He was happy to release the transcript. Virtually all other government officials make these sorts of deal, but are far more opaque. I, for one, prefer transparency. The Department of Justice has determined that prosecutions under the Foreign Corrupt Practices Act, as well as for public integrity offense, may cause more costs than benefits. And everyone is on notice of those policies as well.
