I was a white-collar frauds federal prosecutor until late 2019, having served two stints of thirteen and ten years, respectively, separated by work in the private sector. I first joined the Department of Justice (“DOJ”) to use my skills to do something that mattered. When I returned to DOJ it was for the culture.
Every organization has one. Many of the larger ones insist that their culture is built on ethical principles. But in my experience, relatively few of them mean it. At least, not when it costs something – like forgoing a good business opportunity, risking an existing account, or losing an employee who brings in a lot of revenue. I can’t precisely say why that is, but the organizational structure which determines how people work is probably a big part of the answer.
Here is what that looks like. Private companies exist to make money. And the people who work in them are not there to fulfill their passion; they are there to pay their bills. Since what matters is revenue, it makes sense that those who bring in the most money – by dint of their ideas, their productivity, or their client relationships – also matter the most, receive the most remuneration, and enjoy the most authority. Leading to organizational hierarchies that run straight up and down. Your boss decides whether you work, what job you do, how much you get paid, and whether you are promoted. As does their boss for them. And their boss’s boss. The point is not about the merits of this structure. Rather, it is that there is something to fight over. Money. Authority. Job security. And promotions. All of which are inevitably baked into, and drive, organizational culture separate and apart from any corporate Code of Ethics.
DOJ is very different. There are over 1,300,000 attorneys in the United States. Many of them do not want to be federal prosecutors. But many of them do. It is not uncommon for a US Attorney’s Office to receive 100s and, not infrequently, over 1,000 applications for each open position. Meaning that those who are hired are already among the profession’s elite.
And once you are hired there is relatively little to fight over. The hierarchy is lean, supervisors make only a fraction more than line prosecutors, and if you do your job competently and diligently you will not be fired. So money, authority, and job security are not meaningful drivers.
What does drive most prosecutors is validation – both from colleagues (earned by winning cases) and from agents (earned by bringing cases the agents have worked on). As well as a desire to use their skills to do something that matters.
This is not to suggest that federal prosecutors are Jedi knights, always competent, or always right. They are people. No more, and no less. With all that entails.
But the structure of the job has resulted in a culture that not only authentically permits, but actually encourages, ethical professionalism as part of the organization’s DNA. Let me illustrate.
When I first interviewed at DOJ the Chief of the Criminal Division posed the following scenario: the spouse of a person under investigation is likely innocent, but if I indict that spouse I can pressure her husband to plead guilty. What would I do? I really wanted the job but did not know what I did not know. So – for lack of a better alternative – I went with the truth. I said I would not indict the wife. Next question – what if your boss tells you that you will be fired if you don’t indict? I would take it up the chain and, if that were still the decision, I would resign.
In part because of those answers, I was hired.
Some years later I was mowing my lawn when an intoxicated neighbor asked me if I was an attorney and then unexpectedly sought legal advice concerning a federal crime s/he had personal information about. Not just any crime. This one was serious enough to be front page news and of special interest to my office. Which posed a real dilemma. Because (without putting too fine a point on it) when a person seeks legal advice from a lawyer the lawyer cannot disclose those communications. Even if he doesn’t represent that person.
I told my neighbor I could not help and I provided no legal advice. But here’s the thing. What if that neighbor was later questioned by the FBI and said, “Andy Leven told me it was ok?” What then? Fear (not altruism) moved me to report this incident (in very vague, de-identifying terms) to the US Attorney who headed my office. He suggested ways I could share the speaker’s identity and the specifics of what I had been told. I instead sought an advisory opinion from the NY State Bar, which determined I could reveal neither the neighbor’s identity nor the substance of what had been said. I shared that determination with the US Attorney, who never mentioned the situation again.
More recently, a fairly senior law enforcement agent that my office often collaborated with on cases suggested using an investigative technique that was not literally illegal. But it was palpably improper under the case law. I told him, in front of others, that we were not doing it. Period. There was no mental search for jargon, niceties, or techniques. No sidestepping. No feigned empathy. And no negative consequences for me.
Not everyone in federal law enforcement likes the high road. But if you take it you are protected, and if you don’t and are unlucky enough to get caught, DOJ eats its own. People can be fired for trying to dodge a ticket by identifying themselves as prosecutors during a traffic stop. Giving your supervisor a Christmas gift, or his accepting one, worth more than $10 can result in discipline. Even minor instances of accessing certain internet research services for personal use can led to criminal prosecution.
That is the ethics part of the culture. Then there is the work prosecutors actually do. The good ones, I mean. Very few civil cases see the inside of a courtroom. There are filings, depositions, motions, and settlement.
Federal criminal work is very different. It is a trial practice, in which cases are crafted to be presented to two critical audiences – a Judge and a jury. Most criminal cases don’t go to trial. But virtually all of them go before a judge. Some go before a jury. And because a jury trial could be in the cards, careful prosecutors build them to be tried. Which affects not only what evidence is prioritized but also how cases are selected. Because jurors are not lawyers. They are the people you walk past in the supermarket and cut off on parkways. When you ask a juror to, by their verdict, put someone in a jail cell, you cannot rely on technicalities or a statute that was understandably violated under the circumstances. Or that many people may not care about. Being incarcerated is serious. Criminal cases are selected for prosecution with that as top of mind.
These pieces of DOJ’s culture – ethics and professionalism – are sometimes aspirational; not absolute. But that culture is real. It is palpable. It determines how prosecutors are judged by their colleagues, and how they judge themselves. And it is the culture that the prosecutors who decided to seek the Mar-a-Lago warrant live in. Which is the very thing that tells me what Mar-a- Lago likely is. And isn’t.
Let’s look at that warrant. It was not issued by a prosecutor. It was signed by a federal judge, based on a written record establishing probable cause to believe a crime has been committed and evidence or instrumentalities of it were located at the place to be searched. That is, facts (and evidence) adduced under oath, along with an assessment of their reliability, sworn to under penalty of perjury by a law enforcement agent.
We don’t know what was in the Mar-a-Lago warrant, but there are certain things about it that are certainly true. It was approved knowing that searching the residence of a former President for evidence of a federal crime is unprecedented. Knowing the outcry, immediate politicization, and inevitable threats that would follow from the most vocal elements of the Republican Party. Knowing the intense scrutiny the facts and evidence supporting that decision will be subjected to (by persons acting in both good and bad faith). And well understanding the harm to the DOJ as an agency and federal law enforcement generally if the warrant was sought to pursue of a crime that was not obviously criminal to many Americans.
Merrick Garland and Christopher Wray don’t talk to me. But the culture does. It tells me that the architecture of federal law enforcement would not have been put in play absent proof – to a virtual mathematical certainty – that Trump has committed a serious violation of criminal law. On that score, Trump signed a law in 2018 making holding highly classified documents a felony punishable by five years in jail and automatic disqualification from holding elected office. The reason for that law is not so the National Archives can complete their archival collection. Information is power, and highly classified documents can be used to threaten, extort, or personally profit from others.
Then there is the “rule of law,” which simply means that you are accountable for what you do. Not who you are, or who you know. When Trump was President, he was the chief law enforcement officer of the United States. He wants to be that again. If Trump is permitted to blatantly ignore, and repeatedly lie about his own compliance with, laws that make sense, then we have no laws.
This investigation may be about Trump’s repeated refusal to obey a simple, common-sense law. It could be about the misuse of classified information for personal gain. It could be about something even worse.
I don’t know what the specifics are here or whether the search warrant was actually directed at classified documents. I only know what the reporting has been, and that Trump’s puppeteers in Congress are suggesting that what was seized is akin to Trump’s personal calendars. As to the latter, consider this.
First, when search warrants are executed the agents leave an inventory that (at least generally) describes what was taken. The government cannot reveal what was on that inventory. But Trump can. If his personal calendars were all that were seized, Trump would be eager to share that inventory. He hasn’t.
Second, if personal calendars are what is in play, why would Trump have secured them in a locked safe? You wouldn’t. Neither would he.
But there is more. Just yesterday, Trump refused to answer questions in an unrelated fraud case because – as he (in effect) asserted under oath – the answers could subject him to criminal prosecution. If this is a “witch hunt,” then we have a flesh and blood self-identified witch. Or warlock.
Yes – Trump tried to get out in front of this. That is his tiresome, toxic playbook. Yes, Trump’s minions are throwing up as much dust as they think Trump wants them to. Perhaps even more than he wants, in yet another mindless scramble to curry favor. Which, unfortunately, is also in the playbook. Because they know that first impressions are sticky, however fatuous. But that only works with the public, and only for a little while. It does not work in a court of law, which is where this will be played out.
My guess – that this crew from top to bottom “doth protest too much.” That the searingly painful episode in the life of our republic that is Trumpism will end sooner rather than later. And that it will end quite badly for Trump.