By Ronald Sievert
The facts and the law behind New York District Attorney Alvin Bragg’s successful prosecution of Donald Trump could be argued at length. But as a government prosecutor for 30 years, I have been most interested in the ethics of prosecuting that case.
Outside the courthouse after the verdict, Trump said, “This was a disgrace.” That echoes comments made over the year since his indictment in the case in which Trump repeatedly claimed the prosecution was “political persecution.”
There’s merit to his point.
Angela Weiss/AFP via Getty Images
No one better outlined the important ethical standards that have enabled state and federal prosecutors to maintain an image of integrity and honesty than Supreme Court Justice Robert Jackson. In a speech to the nation’s federal prosecutors on April 1, 1940, he noted that prosecutors should select cases where the offense is “most flagrant and the public harm the greatest,” while warning that the prosecutor’s ability to choose defendants is the “most dangerous power.”
Choosing defendants, Jackson said, requires judgment. It is a power that can be abused.
“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding a technical violation of some act on the part of almost anyone,” Jackson said. In certain cases, he said, “it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”
It is when the prosecutor “picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies,” Jackson warned.
For years, as a federal prosecutor, I had been proud to stand up before the juries and announce, “Ron Sievert for the United States.” I believed that the majority of those in the courtroom understood that the federal government traditionally prosecuted cases that were the “most flagrant.” These were cases where, as Jackson said, “the public harm” was “the greatest.”
We prosecutors preserved our reputation of not prosecuting cases for political reasons by only pursuing cases where there were real victims, in the sense of bodily harm or financial loss. The U.S. Department of Justice had an unwritten but long-understood policy of never indicting and trying a politician for a nonviolent crime within one year of an election.
New York’s prosecution of Donald Trump can be, and has been, characterized long before today by some as a “political prosecution” because of the strong belief that a case on an allegedly false record would never have been brought if Trump were not running for president.
Justice Jackson warned that such a case, without an apparent victim, could undermine the public’s perception of the prosecution’s legitimacy. This prosecution may have upset Trump, but the real question is: Will it damage the good faith – both in the United States and internationally – that has been earned for decades by American public prosecutors?
Ronald Sievert is Senior Lecturer in Government at Texas A&M University.
Justbob says
The author wrongfully minimized the severity of the case. There is a reasonable likelihood that the defendants criminal actions had an impact on a presidential election.
Hippy says
And the squelching of hunters lap top did what???
The false “Russian collision” did what??
The list can go on and on….
DaleL says
Hunter laptop = the claims and allegations are false.
https://www.politifact.com/factchecks/2020/oct/20/facebook-posts/fact-checking-unproven-claims-about-hunter-biden-a/
Russian collusion (sic collision) = ““While this report does not conclude that the President committed a crime, it also does not exonerate him,” Mueller wrote in his report.” AP
July 27, 2016, Trump told a roomful of TV cameras and reporters, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” He later tried to claim it was a joke. Fact checkers found that he was lying.
https://www.politifact.com/factchecks/2020/mar/02/donald-trump/donald-trump-rewrites-history-about-his-russia-if-/
Do you remember Paul Manafort? Manafort joined the Trump campaign in March 2016. On June 9, 2016, Manafort, Jared Kushner, Trump Jr., met with Russian attorney Natalia Veselnitskaya and several others at the Trump Tower. It is reported that Manafort hoped to obtain damaging information on Hillary Clinton. In August 2016 Manafort left the Trump campaign. Campaign members had become uneasy about his Russian connections.
Bill C says
Yeah, like Hunter’s lap top threatens democracy.
Foresee says
But you have no problem with Jared Kushner receiving TWO BILLION from murderous Saudi crown prince Mohammed bin Salman six months after leaving the White House? Maybe you should investigate!
Laurel says
Forsee: Oh yeah, Jared (Senior Presidential Advisor) and Trump daughter Ivonka got the $2B dough and hightailed it to Miami where they built a new mansion in an exclusive area! Didn’t see them at daddy’s trial. Bye, bye, so long, farewell daddy dear. Ivonka got her 40 some Chinese trademarks while she was a Senior Presidential Adviser, but nothing to see here. Hunter Biden, on the other hand, who is a private citizen, and was not give a nepotistic job, is a real problem. Has the attention of all the Republicans in Congress over a simple trial that is nowhere near uncommon.
Jim says
Well, this is an interesting viewpoint. Ronald Sievert seems to be implying that Trump’s action to “catch and kill” a story about his sexual relationship with a porn star and a Playboy bunny was not worthy of prosecution. The fact of the matter, as explained in this prosecution, is that Trump took these actions in the election campaign that got him elected and the timing of this action was to eliminate any additional fallout after the infamous tape of him saying “just grab them by the —–“. Trump, being a good Christian, didn’t want anyone to believe for a minute that he’d have sex with a porn star, much less pay her off to keep quiet.
And, I ask, how does Mr. Sievert feel about Michael Cohen being tried and convicted for this very same crime? Seems to me if we’re all okay with Cohen going to jail (and I know he was convicted of other crimes as well), we should be just fine with the principle in this matter facing justice as well.
There was a time in this country where we demanded that our elected officials be morally and ethically upright if they wanted to stay in office. I know many of them did their dirt behind closed doors but it wasn’t too long ago that having an affair, stealing money, lying constantly would provide you a quick and permanent expulsion from office. Now it appears that the more you lie and steal, the more unethical and obnoxious you are, the MAGA base loves you more. What a sad statement on our political system.
Laurel says
Jim: Thank you for sanity and logic.
Duh says
Come on…offering one name to think this comment through on your own and be real-BILL CLINTON!
ShadyDOJ says
“The U.S. Department of Justice had an unwritten but long-understood policy of never indicting and trying a politician for a nonviolent crime within one year of an election.” So this is how the cancer is allowed to spread? Crime is discovered, but after review, the wealthy/powerful alleged perpetrator is within a year of re-election so we just sit on it? Evidence is ‘lost’, memories become cloudy, any number of other factors change where witnesses or the alleged cannot be located and then there is no longer a case to prosecute. It doesn’t work like that for the rest of us. Maybe that’s why the policy was “unwritten”? Because it is terrible practice to suspend accountability due to the potential to affect their job 12 months out. I applaud NY, the prosecutor, and the jurors who pressed forward to bring “…justice for all”.
Ben Hogarth says
What Mr. Sievert fails to mention in his otherwise well-articulated soliloquy is that THIS case in question regarding Donald Trump IS of the highest and greatest interest to the American public. Perhaps he misread the facts of the case or didn’t bother to read them all? Anyone with even a shred of good-faith would recognize that Trump’s indictment and conviction in New York was not merely about a wealthy New York businessman who had an affair with an adult-film star and then hiding that fact from his wife.
While this may be an ancillary truth, 12 jurors within the jurisdiction where the (federal and state) crimes were committed, found that Donald Trump illegally used campaign funds (public dollars) to bribe and pay-off individuals who may otherwise expose his crimes and affair to the American people before the 2016 Presidential election. These crimes impacted the results of the 2016 election as the truth about Trump’s affairs and criminal dealings would have otherwise been exposed prior. All the meanwhile, Mr. Sievert ignores the fact that James Comey (former FBI Director) used his public position to subvert the 2016 election by announcing an investigation into Hillary Clinton just days before the actual election itself. Certainly, if the mere announcement of an investigation into a candidate for the presidency is enough to impact the election, the flagrant exposure of a candidate violating federal and state laws to hide an affair with a Porn star can be assumed to as well. This is all forgetting for a moment that Hillary Clinton was not arrested, not convicted of any crime, and sat in hours and hours of public and private hearings to testify about her private server. You know, the same type of server that the entire Bush Administration used (including Cheney, Powell, etc.) as a normal “doing business.”
Mr. Sievert doesn’t mention any of the factual findings in Trump’s case or the irony of the FBI’s treatment of Clinton because he wants to persuade you into believing some nebulous ideal that only crimes of the “most flagrant” nature should be prosecuted and that the crimes Trump had committed were not. If his position is that impacting the outcome of a Presidential Election by hiding the crimes and personal corruptions of one candidate is NOT of the greatest and highest public interest, I would question his judgement as an attorney, let alone as a prosecutor. The protection of democracy and integrity of elections IS of the highest and greatest public purpose any of us can swear to uphold or defend. THAT is what is in our oath as public servants. Mr. Sievert should know this, and I believe he does know better. That makes his article and position all the more perplexing and suspect.
Jim says
I’m no retired federal prosecutor, but the implication that this was a victimless crime seems questionable. Every election has winners and losers, depending who wins. If the hush money coverup did in fact tilt the election, then there were plenty of victims. If the Right thinks this was a victimless crime, it would be interesting to know why they stormed the Capitol on January 6. When they claim a stolen election with evidence that doesn’t stand up in court, they are legitimate victims. When their guy fraudulently covers up hush money payments to win an election, these crimes are magically victimless.
Samuel says
Stop with the political prosecution crap, there were witnesses and evidence and 12 jury citizens who found the defendant guilty. Enough with the propaganda lies to feed Donald’s ego the whole system is against him. The real victims in all this are the American people to witness an ex president who has lied cheated and committed unlawful crimes and got caught plain and simple.
joe says
“New York’s prosecution of Donald Trump can be, and has been, characterized long before today by some as a “political prosecution” because of the strong belief that a case on an allegedly false record would never have been brought if Trump were not running for president.”
None of the cases against Trump were instigated because he’s running for President- as the convicted felon continually lies about – he announced his candidacy FAR earlier than normal just so that he could then claim that any actions against him were “because he was a candidate.”
His purpose in announcing when he did was precisely so he could peddle his current lie – that he’s being prosecuted because he’s a candidate.
Don’t fall for his lies
Laurel says
Thank you Jim, Justbob, ShadyDOJ, Ben, Samuel, and Joe! Reality still exists!
Deborah Coffey says
First of all, the case wasn’t about a “false record.” It was about election fraud by someone who WAS running for president. Whom did he harm? Tens of millions of Americans that vote!
Laurel says
And thanks, Deborah, too!
Yacht Broker says
WOW, this was really published in Flagler Live??
DaleL says
“…without an apparent victim, could undermine the public’s perception of the prosecution’s legitimacy.”
Michael Cohen was enlisted by Mr. Trump to pay Stefanie Clifford (aka Stormy Daniels) to prevent her story from coming out before the 2016 election. In 2018, Cohen was convicted of 8 felony charges, including one of campaign violation because of the $130,000 payment to Daniels. Mr. Cohen spent 13 months in prison. Mr. Cohen was clearly a victim.
David Pecker, the CEO of American Media Inc. (AMI/National Enquirer) bought and killed two stories against Mr. Trump prior to the 2016 election. That represented illegal and/or undeclared “in-kind” campaign donations to Trump under Federal Election Commission rules. Mr. Pecker/AMI forfeited $180,000 for stories that could not be published. Pecker was also granted witness immunity in exchange for his testimony providing prosecutors details about the hush payments Cohen had arranged and Trump’s knowledge of the payments. Mr. Pecker was also a victim.
Allen Weisselberg was prosecuted in a Trump Organization NY tax fraud, civil fraud trial, and for perjury. He spent 5 months at Riker’s Island.
Clearly, the 34 felonies committed by Donald Trump were not without victims. The business fraud of which Donald Trump was convicted were committed to coverup Mr. Cohen’s felony campaign violation. That is what elevated the crimes committed from misdemeanors to felonies. It seems that Ronald Sievert would have us believe that the head of a criminal enterprise should get a “pass” and only the henchmen should go to jail.
Colin Cowherd summed up this case:
“Donald Trump is now a felon,” Cowherd said. “His campaign chairman was a felon. So is his deputy campaign manager, his personal lawyer, his chief strategist, his National Security Adviser, his Trade Advisor, his Foreign Policy Adviser, his campaign fixer and his company CFO. They’re all felons. Judged by the company you keep. It’s a cabal of convicts.”
“Stop trying to sell me on ‘everything’s rigged, the country’s falling into the sea, the economy’s terrible,” Cowherd added. “The America I live in is imperfect. But compared to the rest of the world, I think we’re doing okay.”
Sherry says
OK. . . let’s step back and think of it this way. What if the sexual encounter with Stormy Daniels was NOT “Bought and Covered Up” illegally? What if that story was published broadly right before the 2016 election? It is highly likely that trump would have LOST that election, in 2016, to Hillary Clinton. Therefore, the 2016 election is the one that was actually “Rigged”. . . and “Rigged in a criminal way!
Samuel L. Bronkowitz says
Al Capone was prosecuted for tax fraud
Sherry says
@ Samuel. . . EXACTLY!
marlee says
Meanwhile…Neighbors are waving upside down flags in protest of the Verdict.
Supporting a Felon with 34 counts with an upside down American flag.
endangered species says
so what your guy pays off hookers,
so what your guy is convicted felon
so what he still has 70 more felonies to trial
so what he spews hate and bigotry
so what he like his women young like jeff epstein
so what he lost more money than any human
so what he is a perpetual liar
republicans support him no matter how bad. Hunter Biden is what you call targeting since they couldnt get enough dirt on Joe even though they tried to hold ukraine hostage to get the info
Skibum says
It is hilarious, to me at least, that the disgraced, impeached, convict ex-president is whining about political persecution when the plain fact is that it was HE who way back when he first ran against Hillary Clinton was yelling every chance he got “LOCK HER UP!!!” It was HE who very publicly stated in front of millions of Americans “Russia, if you’re listening, maybe you can find Hillary’s emails.” It was HE who tried to bribe the Ukrainian president in a quid-pro-quo when they were seeking America’s help in fighting off Russian military advances, and it was HE who sent his henchmen to talk with the ousted, corrupt former Ukrainian officials to try to get political dirt on Biden to be used in the presidential campaign. Everything that DJT has done himself in the past that was so far beyond the pale, he has now tried to be so shocked and upset that his own behavior and indeed, crimes, are coming back to haunt him as he cries fowl and wants all of America to believe that HE is the victim of political persecution when in reality he is merely being held accountable for all of the unlawful, unethical and immoral actions he has committed as part of his political campaigns!
Sherry says
Thank you Skibum. . . You are Right On! As is the vast majority of the others commenting here.
Ray W. says
Like Mr. Sievert, I too am aware of the ethics of prosecution, though I never prosecuted a president. Neither did Mr. Sievert. I know of one prosecutor who did and decades ago I read his book. He wrote of tasking all of the assistant prosecutors who comprised the team of his Office of the Special Prosecutor to voice their opinions, many and varied, about the ethics of prosecuting a president. One of his assistants wrote a memorandum of law about those ethics.
Mr. Sievert can rely on the words of a Justice of the Supreme Court who never prosecuted a president. Those words should be considered. I read Mr. Sievert’s article and considered his arguments. I read it again and again. I slept on it. I read it again. I then again read the words written so long ago by the special prosecutor. I choose to rely on the words of the special prosecutor. I do not deny the validity of Mr. Sievert’s words. But validity only allows you to remain in the argument. A valid argument must give way to a better argument. Mr. Sievert’s is not the better argument.
I invite all FlaglerLive readers to consider the memorandum of law set out below and weigh its words against the words of a former Justice of the Supreme Court. Use your reasoning powers, which Thomas Jefferson famously described as the greatest among all of all of heaven’s gifts to mankind. Be a “virtuous” partisan member of faction, as James Madison put it. Resist the very human urge to be a “pestilential” partisan member of faction, as Madison also put it.
As foundation for the memorandum below, Leon Jaworski was approached by General Alexander Haig, a chief White House advisor, who asked him to take over the Office of Special Prosecutor after what history calls the Saturday Night Massacre. The massacre occurred when President Nixon ordered his Attorney General to fire Special Council Archibald Cox for refusing to obey the President’s orders about the ongoing criminal investigation of Watergate and of the alleged coverup by the President and his aides and various lawyers. President Nixon’s Attorney General refused to obey the order and resigned. The next in line also refused to fire Mr. Cox; he was fired. The next in line, Solicitor General Robert Bork, acquiesced to the President’s desires and fired Mr. Cox. I suppose it can reasonably be argued that when Republicans later nominated Mr. Bork for a position on the U.S. Supreme Court, his acquiescence to a president’s unethical order to fire a prosecutor whose oath of office requires full independence from the chief executive led to his rejection by the Senate. The fact that his name became a verb (to be “borked”) shows the length to which “pestilential” partisan members of faction (the Republican Senators of that day) would go to honor and reward those who acquiesce to a president’s unethical decision to violate prosecutorial ethics. Bork had directly participated in a violation of the ethics of prosecution, yet he thought himself worthy of being a Supreme Court Justice. Some “pestilential” partisan members of faction still resent Bork’s rejection today. Says a lot, doesn’t it?
Mr. Jaworski, when asked by Haig to consider taking on the responsibilities of a Special Counsel, initially refused. He knew what had happened to the former Special Counsel. Mr. Jaworski had been asked to take the position prior to Mr. Cox being asked to take the job. He had refused the request then, too, knowing that he would not have the full measure of independence to do the job then and he suspected he would not have it after the firing. Only after days of promises that the president would leave him alone, no matter what, did he accept the job. Can it be argued that Leon Jaworski is the lawyer whose insistence that all presidents honor the ethics of prosecution is what preserves the independence of the Department of Justice today?
Here is the memorandum of law, starting with Mr. Jaworski’s very brief description of the qualifications of the attorney who wrote it and why that attorney should be considered worthy of history’s gaze:
“George Frampton, who had skillfully written the final version of our “road map,” prepared a memorandum which, in a sense, represented the thoughts of most of the others. He had as much knowledge of the evidence against Mr. Nixon as anyone because of his undivided work as a member of the Watergate Task Force. His memorandum read:
“Viewed broadly, the creation of a Special Prosecutor was a unique and extra-constitutional reaction by our constitutional system to preserve its integrity in the face of the emergency where those in control of the administration of justice were themselves charged with subverting it. It has always seemed to me that inherent in creation of this constitutionally precarious institution are unique risks of failure. To avoid these risks we have hewed to a very few fundamental principles. These are: that we will pursue charges of wrongdoing to a conclusion wherever they may lead, without regard to political influence or considerations but with regard only to the truth; that we will do our utmost as lawyers and human beings to make ‘just’ decisions, however unpopular or misunderstood they may be, while recognizing the infirmity of any one view (or even a majority view) of what is just; that we will be scrupulous in conduct of our investigations and trials; and that in every matter we will proceed upon well-settled and established precedent and principles of law and practice.
“This last — consistent adherence to precedent, to well-established legal and justice principles — has been especially critical because it has been the primary source of public credibility for an office that in its birth derived no credibility from the Constitution or history.
“By these lights, perhaps unfortunately, I fear that history may yet judge this venture a failure should your decision be to ‘call it a day’ and not indict former President Nixon.
“As I understand it, three factors could be advanced to justify a decision not to prosecute: (1) public perception that Mr. Nixon has suffered enough and a concomitant feeling that the country must get on to other things, prosecution possibly leading to public divisiveness; (2) some feeling that the President did not initiate or mastermind the coverup but rather fell or was led into assisting the principal actors; (3) a fear that Mr. Nixon did not receive a fair trial.
“My concern is not so much that the counter-vailing factors supporting prosecution outweigh those listed above, but that history will ultimately find each of the above factors illusory and thus judge harshly any reliance upon them.
“To begin with the third justification, it seems to me that reliance on prejudicial pre-trial publicity to avoid prosecution altogether would be widely perceived (and stamped by history) as a resort to a completely novel legal theory — and thereby be judged a ‘cop-out.” Despite two years of intensive publicity concerning the Watergate actions of the defendants in United States v. Mitchell, et. al., we have argued that settled legal precedents support proceeding to trial at this time. These same precedents envision even more stringent safeguards than those employed in the Mitchell case before attempting to pick a jury in any prosecution of a former President even after impeachment. There is no precedent for dismissal of an indictment on publicity grounds, much less for a decision not to indict at all. If prejudicial publicity is invoked to support a decision not to prosecute, I fear history will say that when we came to Mr. Nixon we threw out our consistent course of reliance upon settled law and principles — a course that took us through such previously uncharted seas as prosecution of the President’s top aides and litigation over Presidential tape recordings — and in the end by so doing exposing the arbitrary and manipulable character of the notion of ‘adherence to legal principles’ from which the institution of Special Prosecutor derived so much of its credibility.
“Similarly, I wonder if history would not judge harshly the entire work of the Special Prosecutor’s office should you decide not to prosecute based on public sentiment that Mr. Nixon has suffered enough. The action you recommended to the grand jury in March was firmly grounded in the shared constitutional understanding of how our system deals with misconduct by a sitting President. Now, however, there is no established framework — no publicly-accepted set of criteria — within which to make your decision except the traditional one of a prosecutor. Familiar factors of prosecutorial discretion, of course, uniformly dictate prosecution here. To go outside the traditional compass on which we have relied so heavily for credibility in the past and to try to make a decision based on a mixture of perceived public sentiment and long-rang public policy choices could result in a decision history would judge the decision wrong but, in light of it, view skeptically all we have done here would, it seems to me, be vastly increased. Those capable of making a ‘political’ decision on this issue — the Congress, political leaders, President Ford — have not done so. Neither they nor the country can expect you now to abandon your mandate and responsibilities to the administration of justice in order to assume their burden.
“More important in this regard, I wonder if ten years from now history will endorse the notion that Mr. Nixon has ‘suffered enough.’ The powerful men around him have also lost their jobs and been disgraced, but many of them will have lost their liberty and livelihood. Mr. Nixon, on the other hand, will continue to be supported in lavish style with a pension and subsidies at taxpayers’ expense until his death. He may re-enter public life, however morally crippled. The prospect of Mr. Nixon publishing his memoirs (and thereby adding several million dollars to his net worth) should remind us that unlike his aides who are convicted of crimes Mr. Nixon will have the ‘last say’ about his own role in Watergate if he is not prosecuted. This is why, in my view, it is important (absent a full admission of guilt) to have some definitive resolution of Mr. Nixon’s Watergate actions. The House Committee’s massive volumes may or may not be viewed by history as ‘conclusive’ of Mr. Nixon’s commission of crimes. What is certain is that if he is not prosecuted, after the vivid memory of impeachment proceedings fades away and after there is no more Special Prosecutor, Mr. Nixon in his writing and speaking will have the final opportunity to defend and justify his own role in Watergate as proper, constitutional and in the national interest — and to argue that only the political hysteria of the times brought down his downfall. (Mr. Nixon will undoubtedly argue, for instance, that the fact that he was not prosecuted demonstrated that there was insufficient evidence that he had actually committed any crime.)
“With regard to the nature of Mr. Nixon’s participation in Watergate, I doubt history would accept the idea that his role was peripheral and could be distinguished from those of his aides who were prosecuted. Mr. Nixon’s role was an active one when his personal participation was essential to the conspiracy and the fact is that the central purpose of the coverup was to advance Mr. Nixon’s own interests, not those of his aides. Again, we have relied on time-tested evidentiary considerations in making prosecutorial decisions in the case of others under investigation. I fear history would view us harshly were we to apply a completely new and unprecedented standard to Mr. Nixon as a basis for no prosecution.
“In sum, I fear history will judge reliance upon any of these three justifications for not prosecuting Mr. Nixon as a departure from the close adherence to well-founded legal principles that we have thought important to sustain the precarious nature of the institution of Special Prosecutor — and that such historical judgment could prejudice history’s view of all the work of the institution.”
Deborah Coffey says
Thank you for the legal and historical information.
Laurel says
“As I understand it, three factors could be advanced to justify a decision not to prosecute: (1) public perception that Mr. Nixon has suffered enough and a concomitant feeling that the country must get on to other things, prosecution possibly leading to public divisiveness; (2) some feeling that the President did not initiate or mastermind the coverup but rather fell or was led into assisting the principal actors; (3) a fear that Mr. Nixon did not receive a fair trial.
1.) The President is still a citizen of the United States, and subject to law. Do we consider other citizens as having “suffered enough” by the public? The public will have its say as jurists.
2.) Whether the President masterminded or not, that should be cleared up in trial.
3.) Fear of a fair trial is not an excuse to not bring a President to trial.
The President should be tried for crimes against the public. Now, President Ford pardoning President Nixon is a slightly different matter. Considering they were both Republicans, pardoning Ford to keep public calm seems suspicious, yet not so much to promote Ford. Trump, however, claims he will pardon whoever the hell he wants, which is clearly for his own promotion. May sound “pestilential” but he has stated such in so many words.
Ray W. says
I intentionally separated this argument from the one I posted above in this comment thread.
Mr. Jaworski, at the time he wrote his book, felt that had President Ford not pardoned Mr. Nixon after his resignation from the presidency, and had he decided to indict Mr. Nixon (a decision he never had to make), then he thought that he would likely have been asked by the trial judge if he thought Mr. Nixon could receive a fair trial after the massive wave of publicity attending the two-year impeachment proceedings. Mr. Jaworski thought that, if asked, he would have to tell the trial judge that he didn’t think Mr. Nixon could receive a fair trial. He then explained why. Mr. Jaworski thought that the congressional hearings had admitted into the congressional record massive amounts of evidence that could never have been admitted into evidence in a criminal trial. Since the inadmissible evidence made public in the hearings was so widely reported to the public, Mr. Jaworski did not think he could find enough unbiased jurors to form a jury. In the New York hush-money trial, no such congressional proceeding had occurred prior to the criminal trial. Much of the evidence introduced into the criminal trial record had never been made public prior to trial. We will never know whether Mr. Jaworski would have thought Mr. Trump could have received a fair trial in New York, but we can reasonably infer that he would not have hesitated to indict Mr. Trump on the facts that were available to the state in the hush-money trial. Why? Because Mr. Jaworski wrote immediately after the memorandum’s placement in his book: “Who could say these arguments were not persuasive?”
Laurel says
“Who could say these arguments were not persuasive?”
Me. But then, my husband says that I’m a hard ass.
Ray W. says
Hello Laurel:
Perhaps a very old story might shed some light on prosecutorial perspectives on jury trials.
About 30 years ago, I took a phone call one weekend. I was asked to cover another prosecutor’s trial week, due to a death in the family. My docket covered Southeast Volusia County. The other prosecutor handled trials mostly in Northeast Volusia County.
One of the defendants on the trial docket, a member of a well-known family whose members were commonly prosecuted for drug crimes, had three pending cases for sale of cocaine within 1000′ of a school. On Monday morning, the defense attorney, for reasons beyond my cautious understanding, decided to try two of the three cases together (why tell the jury that there are two cases when you don’t have to?).
Each of the three cases had the same undercover buyer, a convicted felon who had been arrested 18 times and convicted 15 times. Each case started with a detective and his team searching and wiring the buyer for sound in a business parking lot west of the railroad tracks near S. Yonge Street. Marked money was provided, but it wasn’t expected to be recovered because the detective planned to attempt separate buys on separate days. Each case involved the buyer pedaling a bicycle east across S. Yonge Street to where the defendant had set up shop. Each buy occurred in roughly the same location, give or take a few feet. After the buy, the bicyclist pedaled back to the team, where he was debriefed, searched again, and he turned over the cocaine. Straightforward cases, but there are holes in these types of cases because the bicyclist cannot be fully observed over such distances.
My jury convicted on both cases after 20 minutes of deliberation.
The next month, the original prosecutor tried the third case. Same witnesses, same fact pattern. Same defense attorney. Same judge. The only difference was a new jury and the original prosecutor. The detective later told me that the second jury had acquitted after 20 minutes and had prepared a note for the judge asking why the detective was not being prosecuted for presenting false evidence from a convicted felon. I will never know what the jury thought, but I doubt it had anything to do with the prosecutor. Sometimes, different people hear the same things and come to different conclusions. When I presented to testimony of the 18-arrest bicyclist, I led off with his explaining his criminal history to the jury. A simple different intonation in answer between trials could have made all the difference. Who knows? I take the position that no one can ever predict what a jury will do.
As an aside, a couple of years later, the city issued preliminary sanctions for two of its officers over allegations of misconduct arising from a possession of marijuana case. The patrol officer had been preliminarily fired. The detective, who had been promoted to sergeant, had been preliminarily demoted to patrol officer. The patrol officer approached me to represent him in the administrative hearing. As was my practice, I never charged a law enforcement officer for representation in administrative hearings, other than actual costs, if any. After the administrative hearing, the patrol officer was ordered rehired without sanction. I walked out of the hearing room and the sergeant was outside waiting for his hearing. He asked me if I could help him. I turned around and went back into the room with the sergeant. After his hearing, he was restored to his rank without sanction. That was when he told me the specifics of what had happened in the third trial. I knew the second jury had acquitted, but I was too busy to inquire in depth. One of the great misconceptions of the conspiracy theorists is that they believe prosecutors have the time to enter into conspiracies. What rubbish! If I prosecuted a man for burglary in Edgewater, I didn’t call other prosecutors in Sanford or Orlando to see what they did with their burglars; it just doesn’t happen, except in the rarest of cases. If I had a violation of probation case based on a Sanford burglary prosecution, I would call the Sanford prosecutor to find out what he wanted to due on his substantive case. If he intended prison, I would commonly offer concurrent prison if the term fell within the sentencing guidelines.
I remind FlaglerLive readers of what my first boss told his forty or so prosecutors at his first annual State of the Circuit address. I had been a prosecutor all of two days. My boss told the assembly that we were not making enough mistakes. He explained that there would never be a shortage of people who would be willing to tell us that we were making a mistake by prosecuting their loved one, their client, their favored son, whomever. It is not hard to find people who are willing to criticize a prosecutor. It is even easier to find a reporter who is willing to write about the criticism. My boss told us that the only criteria for prosecution in his office was that we had to be able to swear under oath that if a jury were to accept our evidence as true, there would be enough for the jury to convict the defendant on each and every element of each crime charged. Given permission to make mistakes, off I went, trying nearly every case I could under the sun. Over and over again, people told me I was making a mistake. Over and over again, juries returned guilty verdicts. Some acquitted, but to me that meant justice was served. I tried my best. I didn’t fail whenever a jury came back not guilty. To me, the system won.
Biden’s son, Hunter, was convicted today on all charges. The system won. Former president Trump was convicted on all 34 charges. The system won. The moment prosecutors lose the discretion to make mistakes is the moment our system fails. I will never agree with the idea that a defendant can decide for himself whether he is guilty. Isn’t going to happen. If an appellate court reverses any or all of the 37 guilty verdicts between the two prosecutions, then the system will still have worked as intended. If both defendants have to be tried again, the system will win. Justice demands that much of every prosecutor. If a prosecutor bends to the will of the critics, after receiving strident and multiple death threats, the system will lose.
As I type this, I am listening to a Fox News commenter who is criticizing the appearance of Jill Biden at the trial of her stepson. What idiocy occurs on this network! When I defended Bruce Grove in Flagler County for the death of Deputy Chuck Sease some 20 years ago, the courtroom was completely filled each day with deputies and police officers in full uniform. They took shifts. Some were there each morning for half-days. Others for afternoon shifts. Some took full-day shifts. They took turns comforting the widow, who commonly wept in the first row. I didn’t object. The jury did what I asked of them. They found Mr. Grove not guilty of first-degree murder and convicted of second-degree murder. After appropriate post-verdict motions, the trial judge reduced the verdict to DUI Manslaughter of an Officer. Mr. Grove is serving a 35-year sentence. We had agreed on this approach months before trial. We asked for a conviction for a crime supported by the evidence. The State asked for a conviction for a crime that was not supported by the evidence. The prosecutor tried his best, but the testifying officers just couldn’t restrain themselves; they over and over again projected their hatred of the defendant to the jury. They said things that other officers said never happened. The jury watched them and didn’t believe them. The jury and the judge accepted our approach to the case. The system won.