The Government Wins
Though many things at the Justice Department have changed, its motto remains the same: "The Government wins its point whenever justice is done one of its citizens in court."
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Southern District of Florida, an insurance broker entered a guilty plea to fraudulently enrolling people in health insurance under the Affordable Care Act when those people were not eligible.
In the Western District of Oklahoma, an Afghani lawful permanent resident entered a guilty plea to receiving AK-47s unlawfully for the purpose of using them in a terrorist attack during the November 2024 election.
In the District of Columbia District, a former FAA contractor entered a guilty plea to working as a foreign agent for Iran. Over several years, the man provided Iran with information about solar technology and the workings of US airports.
Updates…
In the District of New Mexico, a man was charged for attacking a Tesla dealership and burning two Teslas. In the fall, he allegedly attacked the New Mexico Republican Party Headquarters. Similar charges were filed in the Western District of Missouri against a 19-year old attending college in Boston. The Attorney General warned those pondering similar attacks: “You will be arrested. You will be prosecuted. You will spend decades behind bars. It is not worth it.”
Ryan Ellison was appointed the US Attorney for the District of New Mexico. Ellison fits the more traditional appointment. Since 2018, he has been an assistant US Attorney for the office.
Winning at Justice
After a week where the Justice Department continued its fight to not return someone the US Government mistakenly deported to El Salvador, one can be forgiven for wondering what the “justice” in Justice Department means. The Department’s motto comes to mind. While some will say the person deported was not a United States citizen, his presence in the country was lawful and, as the US Supreme Court said, he is entitled to due process. Others will assert that justice requires his deportation as he entered the country illegally. These responses force us to consider the meaning of justice.
I have argued that justice is not the proper measure for guiding federal prosecutors because it is too vague. Last week, I finally found someone who added meaning to how prosecutors do justice. It was written by the United States Attorney for the Southern District of New York in 1935. In light of the Department’s actions over the last several months, it would do well for all of us to take a step back for a moment and examine what justice looks like.
In 1935, the United States Supreme Court decided Berger v United States, a landmark case in the world of criminal prosecution. The case occurred in the Eastern District of New York and involved an alleged counterfeiting conspiracy. During the trial, the federal prosecutor did multiple egregious things. During the cross examination, the federal prosecutor implied Berger had said things and done things that Berger did not, in fact, say or do. The prosecutor also implied that he knew things about the case but never said those things or produced evidence of them. As the Court summarized, the prosecutor was “conducting himself in a thoroughly indecorous and improper manner.”
The jury convicted Berger and Berger began an appellate process that would eventually reach the United States Supreme Court. On April 15, 1935, the Court, in a unanimous opinion, reversed Berger’s conviction and remanded the case for a new trial due to the prosecutor’s misconduct. Justice George Sutherland wrote the opinion. Sutherland, a conservative justice opposed to President Franklin Roosevelt’s New Deal, authored two other significant opinions. In 1932, he reversed the convictions of nine black men convicted in Alabama state court on the grounds that they were not appointed counsel. The year after Berger, he granted the President near exclusive authority in the conduct of foreign policy.
Berger provided another opportunity for Sutherland to review a criminal prosecution. He did not mince words when in came to the prosecutor’s conduct. This led him to what, 90 years later, is the Court’s most frequently cited and clearest conception of the prosecutor’s function.
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. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. 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.
Today, legal scholars focus on the statement that prosecutors should not seek to win cases but to ensure justice. They ignore what Sutherland writes after that statement.
Martin Conboy, the United States Attorney for the Southern District of New York, did not ignore the language and used it as the basis for instructing his assistant US Attorneys about how to proceed in criminal cases. In doing so he added substance to the ideals Sutherland expressed.
Conboy became United States Attorney during Franklin Roosevelt’s first year as president. Homer Cummings, Roosevelt’s Attorney General, requested that George Medalie, Herbert Hoover’s selection for US Attorney, remain in the position. Medalie declined and resigned his position in November 1933. Conboy was a surprise selection as many expected prominent New York politician Al Smith to get the nomination. Instead, Roosevelt selected Conboy. Roosevelt had previously selected Conboy to chair an Advisory Committee on Narcotics and to investigate New York City Mayor Jimmy Walker’s misconduct. This provided Roosevelt with knowledge of Conboy’s character and this led to Conboy’s appointment as US Attorney.
When writing about the Berger case, Conboy recognized that the case applied to more than just how prosecutors presented the case in court. He focused on what followed the notion that justice must be done. According to Conboy, the federal prosecutor’s job was to make sure that the guilty do no escape nor the innocent suffer. He said, “It directs us in what we must do, and equally in what we must refrain from doing.” Conboy devoted the rest of his address to identifying what prosecutors must do and what they must not do.
Conboy identified several specifics. First, “the proofs of guilt must be thoroughly prepared and competently presented.” Prosecutors must make every effort to ensure those they prosecute are, in fact, guilty and must present the case from that perspective. Second, prosecutors must be mindful of what is said and done toward innocent people who have been drawn into the legal system through no fault of their own. Third, prosecutors must remain above tolerance for the guilty or indifference for the innocent. Fourth, prosecutors must avoid preferences, grudges, biases, and personal ambitions when performing their duties. Similarly, prosecutors cannot use abusive language to secure convictions or use language that draws attention to their work or make promises with no intent that they be fulfilled. Finally, once a verdict has been reached, federal prosecutors must not make statements that undermine the verdict, regardless of whether it resulted in a conviction.
This list is in no way partisan. It does not apply to one party or the other, even in Roosevelt’s time. Instead it tells us about the character of federal prosecutors and how that character emerges through their actions. Even if people might disagree over the decisions made, how the decision was made and the evidence utilized remain primary.
This list, for better or worse, provides a measuring stick to evaluate how the current Justice Department performs its work. People can disagree about whether immigration offenses or fentanyl importation should be the Department’s top priorities. People can disagree about whether dismantling public corruption units or even removing career prosecutors is warranted.
What prosecutors, and other Department lawyers, cannot do is take shortcuts or not thoroughly investigate their accusations. They cannot use hyperbolic rhetoric to instill fear in the innocent and disparage the guilty. They cannot settle grudges by prosecuting adversaries. They cannot release someone they believe guilty to satisfy personal preferences. They cannot, when a judge has issued an opinion, disparage the judge and impugn the judge’s motives, even if the judge ruled against the Department. This is, however, what the current Justice Department is doing. The current Justice Department believes, at least in matters directly relating to the President’s policy goals, winning requires doing whatever is necessary, regardless of the long-term cost.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!