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When I was a prosecutor at the Southern District of New York, we used to get into these vicious turf battles with other federal prosecutors – particularly our friendly rivals across the East River, the Brooklyn-headquartered Eastern District of New York.
Typically, these internecine Justice Department beefs would revolve around cooperating witnesses, often in the context of organized crime cases. The SDNY would have flipped a promising new witness, and the EDNY would want to “borrow” that cooperator to use him at one of their trials (or vice-versa). But the office who had picked up the shiny new cooperator wouldn’t want to share him – particularly when it came to the cooperator’s first time on the stand, his “debut,” as we’d call it.
At times, if the two competing offices couldn’t work out an amicable compromise, we’d end up at our own version of a “sit-down” – an internal arbitration, essentially, in which the suits down at Justice Department headquarters would hear each side’s case and then render a ruling. In anticipation of one particularly heated dispute-resolution session, an excitable EDNY prosecutor screeched into the phone at my supervisor, “You’ll lose! You’ll lose! You’ll lose!” (If you don’t think we all proceeded to yell “You’ll lose!” at each other for the next several months, then you don’t know SDNY culture.)
You’re probably wondering: why all the drama? Why would one U.S. Attorney’s office have a problem sharing its witness with another office, if that cooperator could help make a case? Justice Department prosecutors are all colleagues, after all, in the big picture. And the more cases, the better for all, right? We learned to share in kindergarten.
Part of the issue, candidly, was just old-fashioned competition. We worked hard to flip that witness, we would think (or the EDNY would think, if they got to the guy first), and we should get to hoard the fruits of our labor. I know, it’s petty. It happens.
But there’s also a more substantial strategic interest at play. Prosecutors know that when you come across an important witness, you want to sheath that witness in bubble wrap and lock him up in a vault (figuratively speaking, I feel obliged to add; these are mob cases, after all). As a prosecutor, you never want your witness out there giving statements or interviews or (especially) public testimony that you can’t control, before you’re ready to use that witness where it counts most – at your criminal trial.
There are good reasons for this strategic tack. Most fundamentally, the more prior statements the witness has made, the more there is to be picked apart on cross-examination. Good defense lawyers can and will scrutinize every word your witness has uttered before taking the stand, and then will seek to exploit any inconsistency, real or perceived. Not even the perfect witness tells the exact same story the exact same way every time out, so each instance of prior testimony bears some fruit for future cross-examination.
That’s why it is prosecutorial malpractice that, a full year-and-a-half after the January 6 attack, the Justice Department still has not contacted crucial witnesses to the events preceding and on that day – and, worse, DOJ seemingly has been beaten to the punch by the January 6 Committee.
When former White House aide Cassidy Hutchinson delivered devastating testimony implicating Donald Trump, Mark Meadows, and others in malfeasance (and potential criminality) relating to the January 6 Capitol attack, it seemed likely she had not yet spoken to the Justice Department. She made no mention of any such contact, and Committee members, when asked in public interviews, said they had not heard of any such thing. I tweeted to this effect, and was met with a chorus of, “But how would you know? Merrick Garland is doing big things behind closed doors!”
Sure enough, the New York Times soon reported that DOJ prosecutors watched Hutchinson’s testimony and were “just as astonished by her account of former President Donald J. Trump’s increasingly desperate bid to hold on to power as other viewers.” That’s right: prosecutors at the Department of Justice sat back watching Hutchinson on television, and were as taken aback as any common civilian who happened to tune in.
This, friends, is not a good sign. No doubt, the Justice Department is investigating January 6 and the various schemes swirling around it. It seems that the probe is expanding, ever so slowly, with recent revelations that DOJ is looking at the fake electors scheme and has executed search warrants on crooked attorneys Jeffrey Clark and John Eastman. But, as I’ve said before in this space, the pace and focus of the investigation are simply not commensurate with the seriousness and urgency of the potential crimes – nothing less than an attempt to overthrow democracy – and with the political complications that worsen with every passing day.
There’s a tactical cost to DOJ trailing behind the Committee’s investigation. Let’s assume the Justice Department does eventually get itself in gear and recognizes the obvious fact that Hutchinson is a star witness: credible, corroborated in key respects, and in possession of damning information about an array of power players. Well, guess who already has spent at least twenty hours giving deposition testimony to the Committee, plus another day’s worth of testimony viewed on national television by 13 million people? This is the last thing prosecutors want. Now there’s a massive record of Hutchinson’s prior statements, which defense lawyers surely will try to use to dissect her. They won’t have much luck, in my view, given her strength as a witness and the other evidence that backs up her claims. But that won’t stop the smear campaigns, which already are well underway across MAGA-world, led with gusto by Trump himself.
The same analysis goes for other key witnesses who have testified before the Committee: Rusty Bowers, Gregory Jacob, Richard Donoghue, and the rest. We don’t know for sure, but there is no indication that any of them have been approached by federal prosecutors. It’s not as if these people were unknown quantities before the Committee aired their testimony. And now, if the Justice Department ever does try to base a case around their testimony, prosecutors will have to rely on witnesses who will carry with them reams of prior testimony that defense lawyers can use as fodder for cross-examination.
My criticism here doesn’t spring merely from impatience. It’s about the fact that DOJ’s ongoing delay undermines its own ability to eventually bring high-level prosecutions. They’re taking forever, sure. And in the process, they’re hurting their own chances at ever making a successful case.