Special Counsel

Andrew McCarthy's Puzzling Argument

By Orin Kerr
Monday, March 19, 2018, 5:35 AM

National Review’s  Andrew McCarthy has had a lot of criticism of the Mueller investigation recently. I’ve found those criticisms weak on the substance, and his latest column is no exception. I thought I would say why.

The column, “Mueller’s Investigation Flouts Justice Department Standards,” accuses Mueller’s team of “shredding Justice Department charging policy” by charging defendants with “earth-shattering crimes” but then “cutting [them] a sweetheart deal that shields the defendant from liability for those crimes and from the penalties prescribed by Congress.”

In particular, McCarthy argues that Mueller’s team violated Sec. 27.430  of the U.S. Attorney’s Manual when it accepted a guilty plea from Richard Gates. Under the charging policy, McCarthy says, “federal prosecutors are instructed to require that a defendant plead guilty to 'the most serious readily provable charge consistent with the nature and extent of his/her conduct.’” Mueller didn't do that with Gates, though. The Gates indictment charged Gates with a long list of serious crimes, but then Gates was allowed to plead to only two relatively minor charges.

According to McCarthy, Mueller’s team is “shredding” the policy by making suspects seem like big criminals when Mueller then never makes the case that they are because they plead guilty to minor offenses. As McCarthy tells it, Mueller’s team has “flouted Justice Department policies designed to ensure that federal law is enforced evenhandedly across the nation.”

This is “bizarre,” McCarthy argues:

For public consumption, the special counsel alleges breathtaking felony offenses — bank fraud, tax fraud, and money laundering, crimes involving over $100 million when aggregated. Yet, to obtain a guilty plea from one of the allegedly serious felons, Mueller finds it necessary to abandon the hair-raising felonies he purports to have found. If these felonies are readily provable, as Mueller has claimed in his indictments, they are supposed to form the basis of any plea under Justice Department policy. If Gates is the mega-criminal nine-digit fraudster the special counsel has portrayed, he is not supposed to get a slap on the wrist. Yet Mueller accepts a plea to minor charges, including a Section 371 conspiracy that is a prosecutorial invention — designed to shield the allegedly serious felon from penalties Congress has decreed for the misconduct involved.

According to McCarthy, Mueller is not playing by the rules: “Regular Justice Department prosecutors, overseen by engaged Justice Department superiors ensuring adherence to well-established Justice Department policies, would not prosecute a case this way.”

That’s the claim. But here’s why the accusation strikes me as wrong.

First, a little context. The Principles of Federal Prosecution that McCarthy invokes are “a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed,” in federal criminal prosecutions. They are standards, not bright-line rules. The preface explains:

These principles of federal prosecution have been designed to assist in structuring the decision-making process of attorneys for the government. For the most part, they have been cast in general terms with a view to providing guidance rather than to mandating results. The intent is to assure regularity without regimentation, and to prevent unwarranted disparity without sacrificing necessary flexibility.

The provision that McCarthy focuses on is 9-27.430(1). It states: “If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges ... [t]hat is the most serious readily provable charge consistent with the nature and extent of his/her criminal conduct[.]” (Sorry for the weird grammar; that’s in the original text.) 

McCarthy’s accusation is pretty simple. Mueller didn't do that with Gates, and therefore he broke the rule. Straightforward, right?

The problem is that there’s an exception to the rule that McCarthy ignores. It appears in the next paragraph:

The requirement that a defendant plead to a charge, that is consistent with the nature and extent of his/her criminal conduct is not inflexible. Although cooperation is usually acknowledged through a Sentencing Guideline § 5K1.1 filing, there may be situations involving cooperating defendants in which considerations such as those discussed in USAM 9-27.600, take precedence. 

What’s USAM 9-27.600, you wonder? That’s the section on entering into non-prosecution agreements in exchange for cooperation. The idea is that in some cases, the only way to get a defendant to cooperate quickly may be to make a deal: Cooperation in exchange for no prosecution at all. The Manual says that is an option if “the person’s timely cooperation appears to be necessary to the public interest and other means of obtaining the desired cooperation are unavailable or would not be effective.” But the Manual then explains that such an extreme approach should be undertaken only after considering and rejecting less extreme alternatives:

[N]on-prosecution agreements are only one of several methods by which the prosecutor can obtain the cooperation of a person whose criminal involvement makes him/her a potential subject of prosecution. Other methods - such as seeking cooperation after trial and conviction, bargaining for cooperation as part of a plea agreement, and compelling cooperation under a “use immunity” order - involve prosecuting the person or at least leaving open the possibility of prosecuting him/her on the basis of independently obtained evidence. Since these outcomes are clearly preferable to permitting an offender to avoid any liability for his/her conduct, the possible use of an alternative to a non-prosecution agreement should be given serious consideration in the first instance. 

Let’s put the pieces together. 

In the ordinary case—the only kind of case McCarthy focuses on—a defendant must “plead to a charge that is consistent with the nature and extent of his/her criminal conduct."  But that ordinary approach is “not inflexible,” and the need to get cooperation from a defendant may “take precedence” over the rule. In particular, prosecutors can “bargain[] for cooperation as part of a plea agreement,” and the need for cooperation can “take precedence” over the usual requirement when “timely cooperation appears to be necessary to the public interest.”   

In plain English, if a sweet plea deal is needed to get an important witness to flip and cooperate quickly, a sweet plea deal can be reached. Prosecutors should do so cautiously for a range of reasons. But accepting the plea to only a small part of the charge in exchange for cooperation, as happened in the Gates case, isn't “bizarre.” It doesn't “shred” policy. And it doesn’t “flout” the rules. The practice is expressly provided for in the rules. It’s just in a paragraph that McCarthy for some reason ignores.

Or at least he mostly ignores it. McCarthy’s very long essay does have one paragraph that talks about cooperation.  He writes:

If, as all appearances suggest, Mueller’s goal is to get Gates to cooperate, such a plea, besides honoring Justice Department guidelines, would have provided plenty of incentive. Under federal law, the prosecutor does not need to sell out the case for a song to induce cooperation. The prosecutor can demand a guilty plea that reflects the gravity of the defendant’s actual offenses. Then, if the defendant cooperates fully and truthfully, the law permits the prosecutor to ask the judge to impose a sentence beneath the severe term that would otherwise be called for — a sentence of little or no jail time.

Note something odd. Instead of saying that Mueller couldn't do what he did—the claim so far—the paragraph mostly seems to be arguing that Mueller wasn’t required to do what he did. It’s a switch from criticizing Mueller for breaking the rules to criticizing Mueller for not taking a different but also legal path.

I’m not sure what to make of that passage. Perhaps McCarthy isn't  claiming that Mueller broke the rules? It seems to me that “shredding” and “flouting” a policy means violating it. But if McCarthy wants to clarify that he doesn't think Mueller violated the policy, then that is worth knowing, as well.