Injustice

[1]

A Righteous Prosecution?

In 2018, a week before Thanksgiving, Kamil Shields and David Kent-two federal prosecutors who worked in the U.S. Attorney's Office for the District of Columbia-were losing sleep over high-level interference in their criminal case. It was shocking to them, they confided to colleagues, but the person imperiling a fair prosecution was their ultimate boss, the president of the United States.

Outside the legal community, the work of federal prosecutors such as Kent and Shields has often not been well understood. They were cogs in a network of ninety-three U.S. Attorney's Offices, which fan out across the country from the Department of Justice's main headquarters in Washington, D.C. Together, the attorneys in those offices form a field army that, since President George Washington's first appointments to such posts, has been charged with carefully investigating crimes and pursuing justice on behalf of the U.S. government. Shields and Kent were on the front lines, and their assignment was among the department's most sensitive. Secretly, they were probing one of the government's highest-ranking law enforcement chiefs, Andrew McCabe, who had recently departed as second-in-command at the Federal Bureau of Investigation.

As if the case wasn't fraught enough, the occupant of the Oval Office was ratcheting up the stakes, and the stress level, for the prosecutorial team. Since his surprise victory in the 2016 presidential election, Donald Trump had become locked in an increasingly tense standoff with leaders of the Justice Department, the traditionally rigorous executive branch agency. The FBI, the investigative arm of the department, was the lead federal agency responsible for identifying and interrupting threats to national security. In fulfilling that role, its agents had been probing unusual contacts between Trump's campaign advisers and the Russian government before the election, but the new president had abruptly fired James B. Comey when the FBI director refused to bend to Trump's pressure to either shutter the probe or publicly exonerate him. The dramatic removal, less than four months into Trump's arrival in the White House-and six years before Comey's ten-year term was set to expire-prompted McCabe to open an investigation of the president. It also compelled DOJ leaders to appoint an independent special counsel to take over the Russia investigation and to determine if, by removing Comey, the president had intended to obstruct that probe. In social media posts, Trump had repeatedly blasted the ongoing investigation led by Special Counsel Robert S. Mueller III, the widely respected former FBI director. Trump questioned why Democrats and their sympathizers should not also be subject to federal investigations, and McCabe was one of the president's top targets. In Trump's view, McCabe sat alongside the ranks of Hillary Clinton, Comey, and others whom Trump labeled as criminals.

McCabe had, in fact, erred. He had initially given investigators a false account of his role in leaking information to the press. That was why he was no longer the current FBI deputy director. But the president wasn't supposed to decide if that wrongdoing rose to the level that it should be prosecuted criminally. In fact, he should have steered far clear.

Under a system of guidelines and case reviews honed over more than a century-and then tightened significantly following the Watergate scandal-the Justice Department had a tried-and-true method for deciding whether to criminally prosecute a U.S. citizen. That careful review process had made the Justice Department a beacon for democracy worldwide. And that was in no small part because every time, deep in the bureaucracy, the real work of evaluating a case began with attorneys like Shields and Kent. They were among a class of career attorneys who did their jobs year in and year out, under Republican presidents and Democratic ones, insulated from politics and expected to focus on the facts of a case and how the law applied given each particular set of circumstances. Often, attorneys drew cases based solely on merit and the track record they had amassed in successfully representing the government. Kent, forty-six, had spent most of his legal career in the D.C. office, investigating and indicting the architects of complex crimes and frauds. Peers viewed him as having a thoughtful legal mind. A Stanford Law graduate, he pored over the details and precedent of his cases. His coworkers in the esteemed Fraud and Public Corruption Section, which handled some of the office's toughest cases, considered him a mensch and "a good soldier." In other words, he didn't shy away from problem cases.

Shields, forty, had been on the government staff for nearly five years, primarily prosecuting cybercriminals who had stolen money or secrets by hacking. A Harvard undergrad and Yale Law School graduate, she had been rated a rising star at the prestigious New York firm Sullivan & Cromwell but left before making partner. Not long after becoming a prosecutor, she and her husband had welcomed their first child, a boy.

The two were what are known as line attorneys, due to their position on the front lines in upholding the nation's laws. They partnered with FBI agents to gather the facts of a case, and when they found evidence of serious crimes, they presented it to a grand jury that met in secret. When a jury agreed with the prosecutors that a suspect's acts merited criminal charges, it handed down an indictment, and the line attorneys proceeded to argue for conviction in court. At key steps along the way, they had to answer to layers of supervisors and section chiefs above them. Those checks repeatedly stress-tested the facts of a case and allowed for healthy second-guessing as to whether prosecutors had properly applied the law. Shields, Kent, and their colleagues in the D.C. office-one of the largest and most prestigious in the country-paused before bringing major charges, gathering in a conference room stuffed with well-worn chairs to "murder" one another's draft prosecution memos. Fellow prosecutors would sit around for hours, attempting to attack a proposed argument as a defense attorney or a judge might in hopes of preemptively identifying flaws that could doom the government's quest for justice.

Like so many of their colleagues, Shields and Kent took pride in not just winning convictions but hewing closely to the Justice Department's strict guidelines for impartial decision-making. Both accepted a fraction of the compensation available at private law firms because of the sense of mission and, candidly, the excitement that came with defending the rule of law. Countless federal prosecutors over the years had eventually moved on to jobs in politics, policy, or even plum gigs in private practice, only to wistfully recall their days on the line for the government. There was nothing quite like running a federal investigation, protecting the public, and having the license to go after bad guys no matter how powerful. The work was a calling.

Nine months earlier, in February 2018, Shields had been a little surprised when her supervisors had assigned her and Kent to investigate McCabe, who for a time after Comey's firing had risen to acting director of the FBI. The prosecutors were tasked with reviewing evidence that he had lied to federal agents about the leak of investigative information to a newspaper. A criminal probe of such a senior public official would normally be handled exclusively by the Fraud and Public Corruption Section. A supervisor in that division had decided Shields would be a good fit for the assignment, but she wondered aloud if he had pulled her into the McCabe investigation because no one else was willing to take it on. For much of 2018, Trump had roared that his Justice Department must fire McCabe. His demand had laid bare that the independence and integrity of the Justice Department, foundational goals when Congress created the executive branch agency in 1870, rested almost entirely on whether the elected occupant of the White House faithfully executed their oath of office to preserve and protect the Constitution.

In the five decades since Watergate, the notion of a president pushing the department to prosecute an individual American had become implausible, laughable even, to federal prosecutors. The department's informal motto was to pursue justice "without fear or favor." After President Nixon had resigned in disgrace, Congress had enacted reforms, and Justice had strengthened its code of conduct to try to prevent another president from misusing the immense power of the department. But Trump spoke of the Justice Department as an impediment to his agenda, and as lacking a key ingredient to his liking: loyalty to him. That summer, Trump's adviser Steve Bannon was explicit in a closed-door meeting with special counsel attorneys and FBI agents. Trump, he said, viewed a good attorney general and Justice Department attorneys as "people who really protected their president."

Since early summer, Shields and Kent had been trying to ignore the president's comments about McCabe, they told colleagues. They just wanted to follow the normal painstaking steps in making a case, calling witnesses to testify before a grand jury that was meeting at a federal courthouse near the U.S. Capitol. Bit by bit, they had assembled evidence indicating that McCabe had withheld information from federal agents. Still, the two prosecutors told colleagues they had serious doubts about whether the Justice Department should proceed. It wasn't clear the U.S. government could win in court, and primarily for one unusual reason: Trump's public statements and potentially other actions by the White House could backfire and kill the case. The president's cries that McCabe had "committed many crimes!," as well as his all-caps tweets demanding McCabe's imprisonment, could lead a jury to see the prosecution as politically motivated. They also had reason to fear a potential "ticking time bomb" of broader White House interference that could upend the case in embarrassing fashion.

Heading into the Thanksgiving holiday, however, they faced a deadline. J. P. Cooney, an aggressive prosecutor who had recently been promoted to chief of the Fraud and Public Corruption Section, told Shields and Kent that it was time to give him a "CIM," a case impression memo, summarizing the strengths and weaknesses of charging McCabe. The two were fast approaching the line in the American criminal justice system that every prosecutor must decide whether to cross-and then live with afterward-to prosecute or not?

Federal prosecutors are trained to wield their enormous power-to poke into a person's bank accounts or survey their phone contacts-with care. Long before any charge, a single subpoena for information can forever tarnish an innocent person's reputation. And then, when prosecutors know they have the goods to prove the elements of a crime, they must weigh whether the costs of bringing the charges are worthy and will serve the greater cause of justice and the rule of law. So fraught is the decision that the Justice Department maintains a twenty-three-thousand-word Principles of Federal Prosecution-a bible of sorts for its attorneys to consult about when to prosecute or not.

Shields and Kent believed that McCabe had initially withheld the full truth about his role two years earlier in directing information to The Wall Street Journal, they told their colleagues. They had established that McCabe had instructed Lisa Page, an FBI attorney and his legal adviser, to confirm to a reporter the existence of an investigation into then presidential candidate Hillary Clinton's family foundation-and in a way that described McCabe as supporting several field offices pressing forward on this politically sensitive probe. The story stood to benefit McCabe, an internal watchdog found, by countering complaints from some right-wing pundits and conservative FBI agents that McCabe was conflicted because of his wife's ties to a Democratic donor close to Clinton who had supported her failed run for a state senate seat. After the story ran, however, investigators said McCabe had given his boss, Comey, as well as others, the impression that he didn't know the source of the leak. Initially, McCabe also gave an inaccurate account to investigators, but days later called them to say he had been distracted when they first spoke and now thought he might have authorized a deputy to talk to a reporter.

Making a false statement to an investigator is a federal offense-a 1001, as it's known. The FBI academy drills into agents that, if the government is going to hold anyone to account for mistruths, a sin that can upend the work of solving a crime, it will be them. Yet Kent and Shields felt intense unease about seeking an indictment.

Over that sleep-deprived Thanksgiving weekend, the two wrote and rewrote the CIM, spelling out the challenges of indicting McCabe amid Trump's white-hot pressure campaign, in which he often conflated the McCabe probe with Mueller's Russia investigation. "Universities will someday study what highly conflicted (and NOT Senate approved) Bob Mueller and his gang of Democrat thugs have done to destroy people. Why is he protecting Crooked Hillary, Comey, McCabe . . . and all of his friends on the other side," Trump ranted on November 15, the Thursday before Thanksgiving. Upon returning to work, Shields and Kent shared their memo-and their reservations-with Cooney, their new boss.

Shields and Kent had closely studied the reactions of the grand jury hearing the McCabe case, something prosecutors do to "read" the jurors for doubts or concerns to better tweak or hone their arguments. Prosecutors are legally prohibited from publicly discussing what happens in a grand jury, but word of their CIM and briefings with supervisors circulated in the office. Shields told Cooney the jurors had had very strong and sympathetic reactions to key FBI witnesses who worked with McCabe. Lisa Page, the lawyer and former counselor to McCabe, had laid bare to the grand jury critical weaknesses in a potential prosecution of the FBI leader. She explained that McCabe had a terrible memory for the high volume of cases and decisions that crossed his desk, and frequently had to be reminded by his notes or aides. Importantly, Page also shared that McCabe had no practical reason to lie about or hide what he had done; he was one of the few FBI officials explicitly authorized to communicate with the press. What's more, the FBI's chief press officer had also forgotten McCabe's instructions to share probe information with a reporter when he was questioned. Yet the press officer wasn't being eyed for charges of lying to investigators. The jury clearly liked Page, Shields explained, and watched her with pathos and rapt attention as she recounted the personal toll of Trump's attacks. Page had broken down in tears describing how she felt she had let McCabe down when her internal texts were collected and revealed she had been having an affair with another FBI official, Peter Strzok. Page and Strzok were public figures by this point, after disparaging remarks they had privately shared about Trump being an "idiot" and other personal messages were turned over to Congress and reported on nationally. Trump had subsequently crusaded against them, often vilifying the two as liberals who had helped launch a "Rigged Witch Hunt" to hobble his presidency. He repeatedly called on Congress and other authorities to "Investigate the Investigators."