If you were looking for a case study in how not to run a criminal investigation, congratulations: the Trump-era Department of Justice has prepared one for you, complete with a grand jury no-bill and prosecutors who apparently could not identify a single statute their targets allegedly violated.
The effort to jail six Democratic lawmakers for producing a video advising military members not to follow illegal orders (a position that is, notably, not controversial among people who have read the Uniform Code of Military Justice) has now collapsed in humiliating fashion. A grand jury handed Jeanine Pirro a no-bill so emphatic it didn’t even produce a single vote to indict. That’s… not a close call.
And thanks to new reporting from The New Republic, we now know the lawyering behind this embarrassment was even worse than it looked from the outside.
During the investigation, prosecutors reached out to counsel for the lawmakers as part of follow-up inquiries — a normal enough step. But when prosecutors contacted Elissa Slotkin’s attorney, famed former federal prosecutor Preet Bharara, something went very wrong, very quickly.
According to sources, Bharara asked what should be the most basic question in any criminal case: what law did my client allegedly break?
Silence.
“What is the theory of criminal liability?” is the question that was posed to the prosecutors, one source said, adding that “no answer was forthcoming.”
So defense lawyers weren’t shocked that Pirro couldn’t secure an indictment…. they were shocked the DOJ tried to get one at all. Prosecutors couldn’t point defense lawyers to a specific statute, yet they still marched into a grand jury room and asked citizens to indict members of Congress anyway. To date, it has still not been definitively confirmed what statute the government relied on in that failed effort.
Identifying a specific law that someone allegedly broke is not some fussy technicality as much as the foundational requirement of a criminal prosecution. That attorneys in Pirro’s office were caught flat-footed on this point speaks volumes, and not flattering ones.
Bharara memorialized the encounter in a letter to Pirro earlier this month, writing, “The prosecutors we spoke to in your office, though courteous, could not articulate any theory of possible criminal liability or any statute that they were relying on or that could have been violated.”
That the DOJ barreled forward anyway gives this the unmistakable sheen of a political witch hunt rather than anything resembling the pursuit of justice.
The optics don’t improve when you zoom out. Pirro reportedly staffed the case with two outside prosecutors with slim if any federal experience, one of whom was running an active dance photography studio at the same time! Everyone deserves a career change, but this is not the résumé you expect behind the prosecution of sitting members of Congress.
As law professor Stephen Vladeck put it, “It seems at least to suggest that the prosecutors were not the ones calling the shots, and that what they thought they were doing got run over by their bosses. DOJ’s credibility depends on public faith that prosecutions are brought when the law justifies it, not when the political leadership of the administration demands it.”
That credibility is now in tatters. A DOJ that can’t identify a statute, can’t persuade a single grand juror, and can’t explain why it pressed forward anyway can’t call itself law enforcement as opposed to performative politics set at the courthouse.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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