Elie wrote this week’s Note before the news of Trump’s indictment in Manhattan. However, this morning, he recorded a new intro to the Note, sharing his reactions to the news. Listen to the audio version to hear the new intro.
When I teach criminal law to college undergraduates at Rutgers, I open the class by asking this: How many different criminal justice systems are there in the United States?
The most popular answer is two. Some students say “federal and state,” while others argue that the justice system splits people into groups based on race or wealth. Both are good guesses, but not quite right. The answer is 51: one federal system and then one for each state. (Yes, there are military courts and traffic courts and bankruptcy courts and the District of Columbia, but let’s not overcomplicate it.)
And if the question is how many different prosecutors’ offices we have in the United States, the answer mushrooms to over 3,000. We have one unified federal prosecutorial system in the United States Department of Justice – the Attorney General plus 93 U.S. Attorneys and their staffs. Then we’ve got state-level AGs (though not every state gives its AG criminal enforcement powers). And virtually every county in the United States has its own prosecutor (variably called the district attorney, the county prosecutor, or, confusingly, the state’s attorney).
This is necessary background when we consider this vital question: of all the Trump cases, why on earth would Manhattan DA Alvin Bragg’s potential indictment over the recordkeeping around hush money payments go first? We still don’t know precisely whether and when Bragg will indict Trump – and it now appears that a final decision could be weeks away – but the Manhattan DA remains the most likely, of all the prosecutors investigating Trump, to pull the trigger first.
At the risk of sounding nihilistic: the answer is that there is no answer. The three prosecutors’ offices currently circling Trump – DOJ under Merrick Garland and Special Counsel Jack Smith, Fulton County DA Fani Willis, and Bragg – are separate sovereign entities. (My usual disclosure here: Bragg is a friend and former colleague at the Southern District of New York.) There’s no overarching prosecutorial entity binding together federal, state, and local prosecutors. They all operate on their own legal authority and their own timelines. If anything, the two DAs have even more independence than DOJ does. Garland and Smith are both political appointees who can be removed from office, and they must abide by a cumbersome pile of DOJ internal regulations and practices. Bragg and Willis, by contrast, are elected officials who report to nobody and cannot be removed by anybody other than the voters. They can do essentially whatever they want.
These situations happen all the time among prosecutors. When I was with the SDNY, we’d often learn that some other office – often our colleagues across the river in Brooklyn at the Eastern District of New York, or perhaps state or local officials – were poking around the same targets as we were. Naturally, we’d reach out to our counterparts to talk it through. At times these discussions would get heated and territorial; you’ll be shocked to learn that prosecutors can have egos and tempers. (We’d dramatically but aptly call these inter-office showdowns “turf battles”; Jets and Sharks without the dancing and the switchblades, essentially.) At times, it would get so intense between the SDNY and the EDNY that we’d need to hold a mini-trial, with officials at DOJ headquarters hearing both sides and ruling on who gets to take the case. During one infamous turf battle, an EDNY supervisor shrieked at my SDNY bosses, “You’ll lose! You’ll lose! You’ll lose!”
But often these discussions can be calm and productive. (We’d call these substantive talks “deconfliction,” as opposed to the aforementioned “turf battles.” Words matter.) The respective prosecutors’ offices would work through important issues together. Are we looking at the same person for the same conduct? Can we pool resources and evidence and work together to bring a stronger case? Should one office charge but not the other, or should both charge? Should one office go first, or should we roll out the charges in a particular sequence?
Smith, Willis, and Bragg absolutely could have gotten together to deconflict – but there’s no indication or public reporting that they’ve done so. There would be nothing illegal, wrong, or improper about such inter-office communications; if anything, this would be common, and smart, prosecutorial practice. The ideal outcome would be a coordinated roll-out, in order of the seriousness of charges and the strength of the evidence. That would result in charges relating to January 6 – potentially from Willis and DOJ – leading off. Next up, we’d see DOJ with its case on classified documents at Mar-a-Lago. And then, batting last – or perhaps not at all – we’d go with the Manhattan DA’s hush money case.
So why wouldn’t Smith, Willis, and Bragg hop on a Zoom and hash it all out? Wouldn’t that be the smart move? In this unique case, I believe these prosecutors actually have been wise to stay in their separate silos. Imagine if Garland, Smith, Willis, and Bragg – in any combination – had gotten together to discuss their cases and decide how to roll them out most effectively. I’d know this was completely normal and fair practice, and you’d know that too because you’re reading this column. But imagine the howling that would come from Trump’s camp, and his supporters. Collusion! A vast conspiracy!! Secret meetings and a coordinated plot to bring me down!!! And surely, given Trump’s recent vile and racist attacks on prosecutors, worse than that.
I’m not saying prosecutors should or shouldn’t do anything to avoid a Trump tantrum. But I do believe that they ought to consider public perception, especially in a case of this magnitude. And if it would bolster the perception of legitimacy to have each prosecution proceed in its own lane, without regard to or coordination with the others, then so be it. Public trust matters here. True, Trump’s most loyal supporters will never be convinced of the legitimacy of any case against him, and the Manhattan DA’s case in particular appears vulnerable to claims of prosecutorial overreach. But there’s also a healthy middle class of the populace that will base its judgment on the merits – and the appearance is part of the merits, here.
I’ve noted repeatedly in this space the various costs of Garland’s stultifying pace. Add another one to the mix: had Garland moved at anything resembling a reasonable clip, he already would have charged one or both DOJ cases (on January 6 and Mar-a-Lago), well before Bragg moved on the shakier hush money case. The same critique applies to Willis, who has been in office even longer than Garland, and also has not yet charged anything. But by whittling away more than two years, Garland and Willis have undermined their own eventual chances to convict (as I discussed here, nearly a year ago). And they’ve created a situation where prosecutors, collectively, are about to lead with their chin – the hush money case, the most vulnerable and exposed of all the potential charges.
As we discussed last week, we seemingly are nearing a solemn moment in our history. The prosecutors encircling Trump seem to understand the intensity of the public spotlight. While Smith, Willis, and Bragg might have optimized their strategic chances by communicating and coordinating with one another, ultimately they made the right move by tending to their own cases and letting the chips fall where they will.
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