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May 21, 2020

Note from Elie: Why Prosecutorial Experience Matters

By Elie Honig

Dear Reader,

Let’s take a quick roll call of current leadership at the United States Department of Justice.

Attorney General William Barr, the nation’s top law enforcement official, has never tried a criminal case as a prosecutor.  

The Deputy Attorney General, Jeffrey Rosen, came to the job in 2019 with exactly zero prosecutorial experience over his entire career.  His official DOJ bio notes apologetically that “[t]hough most of his career was in the private sector,” he has been Senate-confirmed to various public positions (none of them involving criminal law or prosecution).

Moving to the number three position on the DOJ org chart, Associate Attorney General Claire McCusker Murray has a stellar resume but — yet again — zero prosecutorial experience before joining Barr’s DOJ in 2019.

And the Assistant Attorney General for the Criminal Division, Brian Benczkowski, has experience within DOJ but, like his colleagues at the top of the hierarchy, he has never handled a line-level trial prosecution.  

For those keeping score, the sum total of trials prosecuted by DOJ’s top four criminal-side officials: zero.  That’s right — the same number of no-hitters that I’ve thrown in Major League Baseball (though, at 45, I’m only one year older than Nolan Ryan when he threw his final gem; hope abounds). 

It is abnormal to have such a dearth of prosecutorial experience at the top of DOJ.  Barr’s four Senate-confirmed predecessors —  Jeff Sessions, Loretta Lynch, Eric Holder, and Michael Mukasey — all did years of high-stakes, hands-on criminal trial work before they became Attorney General.  

But why does it really matter?  After all, Barr has extensive experience managing DOJ, including a prior term as Attorney General from 1990 to 1991.  All four current DOJ bosses have sterling resumes, packed with top-shelf educational credentials, tenures at elite law firms, and government leadership positions.  

But here’s the problem: current DOJ leadership has no prosecutorial chops.  Smart is great — necessary, even — but not sufficient to do the job right.  

One of the best things about working as a federal prosecutor — and I mean the real kind, the thousands of men and women who work on the line before moving up the DOJ ranks — is that you get molded a certain way.  Senior prosecutors who have already been through their share of courtroom brawls train you to do the job, fearlessly and fairly.  


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It sounds like a Springsteen lyric but it’s true: I learned more from those who came before me than I ever learned from any book.  My mentors at the Southern District of New York taught me everything from the indispensable (how to get a document admitted in evidence, for example) to the trivial (never drink anything but water from a styrofoam cup in front of a jury; if they don’t have drinks, you shouldn’t be guzzling a frosty Peach Snapple).

Eventually, you build up your own steel.  The only way to do that is by getting reps.  You go into the courtroom, often four or five times per day, and quickly start trying cases.  You make mistakes, you get busted around a bit, and you learn.  You develop calluses.  You pick up an edge here or there.  Most importantly, you start to see the big picture.  You understand why the job matters, and why it matters to do it right.  You build not only a substantive base of knowledge, but an internal radar, an instinct for what works and what doesn’t.  

But Barr and his top advisers haven’t come up through this internal DOJ developmental system.  They parachuted in from other gigs.  As prosecutors, they’re pretenders.  They sorely lack that intuitive sense of how to do the job right.  Anyone can look up a rule.  But not anyone can know that there are some things you just don’t do.

Here’s an example.  At the SDNY, we observed something called “podium privilege.”  Essentially it meant that you don’t second-guess what your colleagues do in the heat of battle — the arguments they make, the strategic direction they take — because it’s the privilege of whoever stands in the well of the courtroom at the podium to decide how to handle the case.  That’s not to say prosecutors never correct or counsel each other; that’s a crucial part of the job.  But it’s done privately — not in front of other colleagues, and never, ever, out in public view.   

Yet look at how Barr and his brass handled the prosecutions of Roger Stone and Michael Flynn.  It’s bad enough that, of the tens of thousands of cases before DOJ, Barr has fixated on two defendants who just happen to be the President’s political allies and, increasingly, fodder for red-meat, base-rallying Twitter benders.  But to make it worse, Barr publicly cut the legs right out from his own line prosecutors — the real prosecutors, the ones who built the cases against Stone and Flynn and convicted them both, prompting protest resignations from prosecutors on both cases.  

Sure, as AG, Barr could have overruled his prosecutors within DOJ and gotten everyone on the same page before making public moves.  But that’s not what he did.  Barr let the real prosecutors take official positions on Stone and Flynn and then, with the public watching, undermined them.  That’s clownish mismanagement, at the least.  And if Barr or his top advisers had ever gone through the process of building and charging and trying a case, they’d have known that that’s something you just don’t do.  You never undermine colleagues, especially subordinates, certainly never in public.  It’s a morale-killer, equal parts cowardly and sneaky.

Here’s another thing you learn, if you come up through the ranks.  You never talk publicly about ongoing cases.  Occasionally, a reporter would call me directly with questions; fortunately, I had been trained to say “Call the press office” and then hang up.  This one’s a matter of common sense and organizational upbringing, and also a simple black-letter rule.  The Justice Manual explicitly prohibits public comment on “the existence of an ongoing investigation or … its nature or progress before charges are publicly filed.”  

Yet Barr openly declared to Fox News — while DOJ continues to investigate the origins of the Russia investigation — that “My own view is that the evidence shows that we are not dealing with just mistakes or sloppiness.  There was something far more troubling here.”  Not only did Barr confirm the existence of a politically-charged probe, he openly broadcast his view on how it should come out.  If any real prosecutor made a public comment like that on a pending investigation, he’d get a tongue-lashing, and probably a pink slip.

But from his lofty perch as AG, Barr gleefully smashed DOJ’s own straightforward rule and the prevailing norm in one Fox-appeasing swoop.  Perhaps Barr simply doesn’t know a basic tenet of his own Department’s Justice Manual — or maybe he does, and he just doesn’t care. 

But Barr and his advisers would know, and they would care, if any of them had come up through the system and developed real prosecutorial chops.  Maybe it’s not Barr’s fault, or the fault of his top brass.  They’re all smart lawyers, but they never got the in-the-trenches experience necessary to  build their instincts, their guts, their passion.  They haven’t put in the work — and now they don’t have what it takes to do the job.

Stay informed and stay safe,

Elie

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