Fitzgerald’s Law

Over at Simple Justice, Scott Greenfield has been smacking around former federal prosecutor Patrick Fitzgerald, because Scott’s not happy with the advice Fitzgerald is giving to some corporate clients. At times, Scott seems puzzled by the things Fitzgerald is saying (although I suspect Scott is faking to highlight the outrageousness).

Here are some summaries of what Fitzgerald said (from Mark Herrmann at Above the Law), followed by Scott’s puzzled responses:

First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.

So nuts doesn’t equal wrong? True, but not exactly new.  Maybe the white collar “specialists” at Biglaw never crossed a junkie snitch, but for the rest of us, this is pretty 101 stuff.

Scott’s totally missing the context here. Fitzgerald isn’t approaching this as a trial. Here, see if this one helps:

Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct.

Ah, now we’re getting a bit trickier. So the secret is to presume guilt before the government does (or just pretend, for the sake of pleasing the fine men and women in federal buildings) and throw a few people under the bus to satisfy their bloodlust?  Perhaps we could give this trick a cool name, like “when baby prosecutors say jump, corporate titans ask “how high”?

Well, yeah. That’s pretty much what he’s saying. Still don’t get it? This next one gives the game away:

Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light.

The last thing a multinational corporation wants is to have a prosecutor rely on what the FBI says, so Fitzgerald’s solution is to confess to snatching the Lindbergh baby up front?

You see? Fitzgerald is concerned the prosecutors won’t get all the facts right. It’s as if he thinks getting the right facts to the prosecutor is what matters to defendants — as opposed to getting the facts to the official finder of facts, which is supposed to be the judge or the jury.

Or so I’ve been told. When criminal defense lawyers give me advice on how to stay out of jail, I try to pay attention, and one of the things I’ve heard pretty clearly is that no matter how much you want to set the record straight with cops who are questioning you or a prosecutor who is threatening you, the best thing you can do is to save your story until you can tell it to the judge and the jury. They’re the only ones that matter. (Unless your lawyer tells you otherwise.)

In a comment on his own post, Scott Greenfield makes it pretty clear what he thinks of Fitzgerald’s nonsense:

It’s my understanding that Fitzgerald does not handle defense, which makes it very unclear what he does other than gave speeches and show people the quickest way to the United States Attorney’s office.

Here’s what bothers me: Fitzgerald was a successful U.S. Attorney for 24 years, and was involved in the prosecution of everyone from Sheikh Omar Abdel Rahman to  Illinois Governor Rod Blagojevich. He’s not just some random political hack. He knows how federal prosecutions work. What if he’s telling it like it is?

I’ve heard plenty of people complain that federal prosecutors have too much power. Lawyer Harvey Silverglate has argued that the federal criminal code has become so expansive and is interpreted so broadly that the average American commits three felonies a day, at least according to the interpretations offered by U. S. Attorneys in past prosecutions. What this implies is that any federal prosecutors who decides to take a close look at your life will find something they can prosecute you for, and the longer they look, they more they’ll find.

Further, many federal laws are so vague and so harsh that it’s easy to find interpretations that can have you facing a lot of prison time. This leaves a lot of leeway to prosecutors in their charging decisions. For the same act, they maybe able to charge you with misdemeanor with no prison time, a felony that will get you a year in jail, or a special felony that comes with a 5-year mandatory minimum. This puts a lot of power in the hands of federal prosecutors.

So what if Fitzgerald is right, and the most important thing you can do is please the federal prosecutor?

If it’s true, it’s a damning indictment of the federal justice system that Fitzgerald has been part of for over two decades. If the law makes criminals of us all, and our freedoms can be taken at the whim of powerful prosecutors, then we no longer live under the rule of law but the rule of powerful men, and our freedom is a lie.

Sometimes it sure seems that way, but I sure hope Fitzgerald is wrong and Scott is right.