So we know that Trump & Company have committed all kinds of crimes, and yet… We can’t seem to wrestle an indictment out of the Department of Justice. What gives? Let’s talk about that, because “Justice Matters”…
Hey all, Glenn Kirschner here. So, we’re going to try to tackle a BIG topic today, and this is not scripted, and this I promise you will be ugly.
Let’s look at today’s video as something of a “Team Justice Law School Class”. The topic I want to take on is why is it that the Department of Justice seems to be either unable, or unwilling, or ill equipped to bring criminal charges in a timely manner against Donald Trump & Company. And in trying to take on that question we’re going to talk about the difference between federal prosecution and state prosecution. and when I say state prosecution that’s state, county, local… Because, there’s the Feds and then there’s everybody else.
Here’s one of the important distinctions between how the Feds investigate crime and how the states investigate crime: When the Feds are investigating crime, particularly in the Grand Jury, they generally have no deadlines. They set their own timetable. They conduct what are called proactive investigations. We’re going to talk more about that in a minute.
State prosecutors, they almost always have deadlines. My friend Claire McCaskill says state prosecutors answer 911 calls. Everything is an emergency and they’re laboring under deadlines all the time. Prosecutors that’s not the case, and we’re going to circle back to deadlines in a minute, but the second big difference between Federal prosecutions and state or local prosecutions is that generally when a crime is committed, and it’s potentially a federal crime there’s federal jurisdiction. When a potentially federal crime is committed it almost always constitutes a state crime as well.
So, when a crime is committed (we’re going to talk about one example in a minute) that the Feds could pick up… could exercise jurisdiction over, they don’t necessarily have to. They could say, “Know what? We’re just going to leave that one to the states.” So they get to cherry pick… I’m sorry, but that’s an accurate characterization of the Feds deciding whether to exercise jurisdiction or not.
Let me use an example of kidnapping and transporting the victim across state lines to try to give you an example of of what I’m talking about.,,
So there’s a crime 18 USC § 1201 - Kidnapping. It’s a federal crime and in part here’s how it reads. Whoever unlawfully seizes, confines, inveigles, (its a great word we don’t use much) decoys, kidnaps, abducts, or carries away any person when the person is willfully transported across a state boundary shall be imprisoned for up to life.
So let’s turn to a hypothetical… If somebody is kidnapped in Virginia and the perpetrator then takes the victim over the state line into West Virginia and kills the victim there, you now have state crimes in two different states in Virginia and in West Virginia, but you also have a federal crime because the kidnapping involved transporting the victim across state lines.
So what happens? Well, the feds can swoop in. They can assess that crime and they can decide, “You know what? This one doesn’t have a sufficient federal interest, so we’re not going to exercise jurisdiction and take this case and begin to investigate it and prosecute it even though we could. Instead we’re just going to leave this one up to the states to handle.”
That happens all the time. That happens daily in jurisdictions around the country. And, I want you to think about the dynamics of that for one minute. If you’re a federal prosecutor and you get to decide whether to take this case, add it to your caseload, increase your work burden or not… What motivators might be at play?
The only motivator that should be at play is, “Is it in the interests of the people of the United States for the Feds to exercise jurisdiction over this kidnapping across state lines or not. But, human nature being what it is, do you think that’s the only motivator at play when prosecutors are deciding how many cases to take on. How many case that have federal jurisdiction should they actually pile on to their own caseloads?
So now let’s go back to deadlines for a minute… Because, I said that the Feds generally investigate proactively in the grand jury. What do I mean by that? So, if the federal government gets wind that there might be a federal crime that’s been committed or that is ongoing… Let’s say a big white collar fraud conspiracy case that would violate federal law. The FBI can open an investigation.
It’s a vey low evidentiary burden to have adequate predication in order for the FBI to open an investigation. And then generally the FBI, a component of the Department of Justice, will partner up with federal prosecutors and they’ll begin investigating the case, often by issuing grand jury subpoenas and they’ll bring witnesses before the grand jury to testify. That’s a proactive investigation.
Nobody’s been arrested, so the prosecutors have complete discretion over the nature of the investigation, the timetable of the investigation, the scope of the investigation… And let me tell you something, friends, being a federal prosecutor for nearly quarter of a century… Federal prosecutors will investigate those kind of cases proactively in the grand jury exhaustively, and to perfection if they can. Month after month, year after year, witness after witness… Why?
Because they’re not any deadlines. They’re not on the court’s clock in any way. They can take as much time as they want. That’s the nature of most federal investigation… Not all, some are arrest generated the way they are in the states, but most are proactive investigations where the prosecutors have the luxury of time. All the time in world that they want.
Think about the Matt Gaetz case… Still being investigated in the grand jury proactively. We have no idea when or if Matt Gaetz will ever be indicted by federal prosecutors. Mind you this is not a criticism, it’s an observation based on my experience and my work as a federal prosecutor.
When prosecutors are investigating in the grand jury like that and they have the leisure of time, no deadlines that they’re laboring under… You know there is this phenomenon that they want to investigate everything exhaustively to perfection. If they have three witnesses they want four. If they have four they want five. That’s the nature of the work.
Listen, I wanted to build the strongest cases I could in the grand jury, and I endeavored to do that, but there are competing concerns. So there are basically three things that can end up happening in those federal grand jury investigations.
One, they investigated for months or years and it’s so strong, there’s so much evidence of guilt that they step to the target of the investigation, the person they’ve been investigating and they negotiate a pre-indictment guilty plea. So before they ever ask the grand jury to vote out an indictment, before they’re ever on the court clock, before any deadline is ever imposed… Case is over… It’s over before it’s even begun, and the prosecutors held all the cards every step of the way and set their own timetable...
So they will negotiate a pre-indictment guilty plea, they’ll go into court, the target of the investigation will plead guilty and that investigation is over. And then they’ll move on to the next proactive investigation. That’s one of the ways you can wrap up a grand jury investigation. Here’s another way…
The case is just as strong, has been investigated just as exhaustively and the prosecutors try to wrap it up with a pre-indictment guilty plea but the target of the investigation say, “No… Not pleading. I want my trial.” Well, then the prosecutor can look at the evidence and say, “This one is strong. We can’t lose... (that’s an overstatement but stick with me friends) So we’re going to go ahead and ask the grand jury to indict it, we’re going to be on the court clock, we’re going to laboring under deadlines now and we’re going to trial. That’s another thing that they can do.
The third thing they can do is they can’t negotiate a pre-indictment guilty plea and they look at the case and they say, “We see some weaknesses in the evidence. We some challenges that we might not be able to overcome. This one doesn’t quite look like a sure winner.” So they can just decide not to ask the grand jury to indict it and they can turn it back to the states. Then it’s up to the states to investigate, indict, and take it to trial if they still have the ability and the time to do that.
That is a whole lot of I guess what I would call cherry picking the outcome of your case. There’s a reason that people have this notion that federal prosecutors never lose. It’s because the have the luxury of going through the process I just described. And they rarely bring a really difficult challenging case if there is a risk of losing.
I think that tends to do a disservice to the American people. I think that tends to do a disservice to the safety of the community. Or where we are right now with Trump & Company to the health and viability of our democracy, but it does feel like that is the process that the Department of Justice is going through presently regarding Trump & Company.
Now before finishing up, and at the risk of going on too long… I know you’re probably saying, “Glenn, that train has already left the station...” Just give me a few more minutes here, because I want to tell how… You know when I describe this phenomenon where the Feds say, “We’re not going to exercise jurisdiction over this case, or this crime,” and they kick it to the states… I lived that experience for decades as a federal prosecutor. Here’s how…
There are 94 US Attorneys Offices. There’s the main Department of Justice in D.C. and then 94 US Attorneys Offices, and those are the field offices of the Department of Justice where the actual trials are litigated. And 93 of those US Attorneys Offices do nothing but federal prosecutions. But one, the US Attorneys Office for the District of Columbia (my former professional home) does all of the federal prosecutions in D.C. and all the local prosecutions in D.C. What would be considered the state prosecutions if D.C. were a state... if only.
So we are in D.C. both the federal prosecutors and the local prosecutors. We are one stop shopping. We do it all. So guess what? When federal prosecutors at the D.C. US attorney’s office decide, “We’re not going to exercise federal jurisdiction over this crime that occurred in Washington, D.C. We’re going to kick it to the locals.” Well, guess what? We were also the locals. So that meant it went from a federal court division in the US Attorneys Office in D.C. over to a superior court, a local court division. I did both.
Yes, I tried the big RICO cases in federal court in D.C. but I also tried the stand alone murder cases and other cases in local superior court and truth be told that’s where my heart was… Trying these murder cases in D.C. superior court. But, I saw first hand that phenomenon of how the Feds (that’s us) would say, “We don’t want to exercise jurisdiction, we’re going to give it to the locals.” But in D.C. that was us too.
So friends, let’s finish with this. That process of federal investigations that I just described with the long exhaustive proactive investigations with no deadlines… That is ingrained in the DOJ culture and practice and psyche. And I fear that that might be part of the reason we’ve no timely indictments of Trump & Company.
Let’s end on a positive note, because I do believe that ultimately there will be federal prosecutions of Trump & Company. There are too many good people at the Department of Justice for there not to be, and as others before me have said, “We don’t have the luxury of despair.” So, we fight on because justice matters.
Friends, as always, please stay safe… Please stay tuned… And I look forward to talking with y’all again tomorrow.
Bolding is mine… Any mistakes, typos, or formatting errors are mine. God, that was a slog….