Welome to the Criminal Division!
Prosecutorial independence has two aspects. One is independence from political influence. The other is the independence of US Attorney's offices from Main Justice.
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 Eastern District of North Carolina, a California man was charged with making threats to people in North Carolina. He threated to bomb the Wake County Sheriff’s Department and threatened to appear at a rabbi’s synagogue to “kill all of the Jews and the children.”
In the Northern District of Texas, a doctor was found guilty of conspiracy to commit healthcare fraud by billing Medicare for $70 million in unnecessary orthotic braces and genetic tests.
In the District of Colorado two people were found guilty of conspiracy to commit mail and wire fraud in addition to substantive counts of mail and wire fraud. The duo sold names and other customer information to people they knew intended to use the information to commit fraud.
The Justice Department’s Criminal Division
Since Watergate, “independence” has become a significant term when discussing federal criminal prosecutors. As President, Richard Nixon attempted to use his authority as the nation’s chief executive to remove the special prosecutor investigating him. While Nixon’s conduct did not prevent the investigation or any prosecutions, it brought attention to the president’s potential for abusing control over the Justice Department. Steps were necessary to insulate the Justice Department from such abuse.
This was a new form of independence for federal prosecution. The other form of federal prosecutorial independence dated from the origin of federal prosecution. It involves the independence of United States Attorney offices from the Justice Department. The independence relates to where prosecutorial discretion resides. One possibility is the 93 United States Attorneys office. Each one can decide which cases to prosecute with little or no oversight from the main Justice Department. Another possibility is that main Justice makes the decision. The third possibility is that there is a mix of US Attorney decisions and Main Justice decisions. The balance between the two poles varies between Administrations. Sometimes Main Justice has greater influence and, at other times, the US Attorneys do.
When Main Justice exercises control it usually does so through the Department’s Criminal Division. The Criminal Division is one of a multitude of divisions and offices within the Justice Department. It is overseen by an Assistant Attorney General who is appointed by the President and confirmed by the Senate. At the moment, there is not a Senate-confirmed Assistant Attorney General leading the Division. Instead, Nicole Argentieri has served in an acting capacity since August 2023 when the Senate-confirmed Assistant Attorney General resigned after two years to return to private practice. Previously, Argentieri served as an Assistant United States Attorney in the Eastern District of New York for 10 years. For part of that time, she ran the office’s public integrity section. From there she worked several years as a partner in private practice. Then, in 2022, she returned to serve as Chief-of-Staff for the Senate-confirmed Assistant Attorney General.
The Criminal Division consists of multiple sections that specialize in specific crimes. Over time, the sections change to reflect the ongoing criminal priorities and necessities. Presently, the sections within the Criminal Division include:
Child Exploitation and Obscenity
Computer Crime and Intellectual Property
Fraud
Human Rights and Special Prosecutions
Money Laundering and Asset Recovery
Narcotic and Dangerous Drug
Public Integrity
Violent Crime and Racketeering
Each section has its own chief. This person is a career prosecutor rather than someone appointed by the President and confirmed by the Senate. This means that they remain in their position between administrations. It also provides a non-partisan and relatively consistent approach to which cases the Department of Justice pursues. For example, the Chief of the Computer Crime and Intellectual Property Section, John Lynch, has been in that role since 2012, meaning he has served under the Obama, Trump, and Biden Administrations. The head of the Public Integrity Section, Cory Amundson, began in 2019, working under both Trump and Biden Administrations.
Several sections divide themselves into units. These are also run by career federal prosecutors rather than politically appointed prosecutors. The Fraud section has the most units. The Foreign Corrupt Practices Act (FCPA) unit oversees cases relating to the FCPA, a law that regulates the conduct of US companies overseas. Another unit covers healthcare fraud. Most of these cases relate to Medicare and Medicaid. There is also a unit that handles financial market integrity and major frauds. A final unit handles special matters. Each unit specializes in its particular matter.
These units and sections perform two different but somewhat related roles. Their main function is to oversee and approve certain cases that originate with the various United States Attorney offices. For example, if the United States Attorney’s Office for the Southern District of Indiana believes it has a good case of a company violating the Foreign Corrupt Practices Act, it will first consult with the FCPA unit within the Fraud Section. The attorney from the FCPA unit will provide advice regarding areas of investigation and the evidence necessary for the case to be prosecuted. The FCPA unit attorney will also give approval for the prosecution. The units and sections also coordinate between United States Attorneys offices when the case extends to multiple jurisdictions. In these cases, the attorney from the Justice Department will lead the investigation and work with the relevant United States Attorney offices. In some instances, the Justice Department attorney may handle the entire case and not bring in the United States Attorney’s office until the case is ready to be initiated.
This is one method the Justice Department uses to control United States Attorney offices. If the Department wants to exert more control over the United States Attorneys, it can impose more approval requirements. If the Department is content to let the United States Attorneys have control, the Department can lessen the approval requirements. The current Justice Manual requires approvals for a limited number of offenses. These include war crimes and death penalty offenses. However, the Justice Manual requires prosecutors consult with Department attorneys prior to initiating charges in some instances. A third level requires mere notification. The various levels allow the Department to adjust the degree of centralized control slowly and incrementally.
The problem the Criminal Division faces if it seeks to centralize authority is how to deal with United States Attorneys who do not comply. Suppose an Assistant United States Attorney in the District of Nebraska learns that a person stood outside a polling place in the last presidential election harassing Jewish voters and threatening harm if they voted. The Justice Manual requires approval from the Public Integrity section (among others) prior to proceeding with the case. Rather than doing this, however, the assistant speaks with the presidentially-appointed and Senate confirmed United States Attorney who instructs the assistant to proceed without notifying the Justice Department. All the Department can do is make life difficult for the United States Attorney’s Office in Nebraska by restricting resources or not providing certain benefits. It could also send sharply-worded condemnations. Ultimately, however, United States Attorneys have their own political base, such as Senators or members of Congress. Firing the United States Attorney carries a political cost.
The dynamic between the Criminal Division and the United States Attorney offices constitute a challenging balancing act. The best way to manage this is by appointing United States Attorneys who follow the President’s lead. Of course, this runs head on into the influence of politics on prosecution.
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!