Preet Bharara:

From Cafe and the Vox Media Podcast Network, this is Stay Tuned In Brief, I’m Preet Bharara. This week’s focus is on an overlooked aspect of our criminal justice system. It is relatively common practice for prosecutors to inform high profile targets of investigations that they have closed a case. We recently saw this with former Vice President Mike Pence, who was notified he wouldn’t be charged for retaining classified documents, but such a courtesy is seldom extended to lesser known individuals leaving many in a prolonged state of uncertainty.

Having seen this practiced as a federal prosecutor and now as a lawyer representing targets, I’ve come to believe it’s an institutional norm that prosecutors’ offices need to change and I regret defaulting to it as US attorney. I’ve been thinking about this issue enough that I recently published an op-ed in the New York Times about it. In it I wrote, “Unless notification risks harm to an ongoing investigation or would disclose a covert inquiry or alert a co-conspirator, basic fairness counsels that targets of all investigations, not just those especially in the public eye should be told when there is a decision not to bring charges for lack of evidence or for any other reason.”

What’s the reason for this unfairness? As I put it in the op-ed, “Failing to tell people that charges won’t be filed most often results from some vague, prosecutorial, prerogative and thoughtless institutional habit.” It’s a habit that should be broken. To further explore this topic, I’ve invited my friend Barry Berke. He’s a prominent defense attorney in New York and served, as you may recall, as Special Counsel to the House Judiciary Committee during its first investigation and impeachment of former President Donald Trump. Barry, my friend, welcome to the show.

Barry Berke:

Thank you, Preet. It’s a real honor and pleasure to be here.

Preet Bharara:

So this issue, which I think a lot of people don’t focus on, particularly lay-people, is one that you and I have talked about and I’ve talked about with various clients. But to put it in context, let’s just sort of explain how this works. Ordinarily people think someone gets arrested, indicted by a District Attorney’s office or a US Attorney’s office. They say, “I need a good lawyer,” they call up Barry Berke and you represent them. You either help them to negotiate a plea or you go to trial. But lots and lots of your matters relate to people who have not been indicted or charged, they’re targets of an investigation. Explain to folks how those clients come to you. How is it that they know that they’re a target and what’s your job?

Barry Berke:

No, that’s exactly right, Preet. People often come to me because they have been contacted by lawyers at their companies, sometimes it may be an FBI agent shows up to question them or an agent, or it may be that they otherwise learn that there may be an investigation involving events that they’re involved in. So they come to me to advise them and also to hopefully speak to any prosecutors who may be involved to make sure they don’t get charged with anything.

Preet Bharara:

And what’s that process like as a general matter? Because this might be surprising to people also, is there usually or often a dialogue?

Barry Berke:

There is often a dialogue, particularly in white collar crime cases where it takes a while for an investigation to build as you know as well as anyone Preet, given all the great cases you brought. And from the defense perspective, we try to learn as much of the facts. We try to just read the tea leaves, see if we can see clues as to whether there really is an investigation. And often it’s pretty easy to find that out because there are efforts to gather information from companies or other individuals. And in which case we can be proactive to reach out to the government agency, often the US Attorney’s office on the federal level or the DA’s office at times, and to say, “We represent this individual or the company and we’d like to have a dialogue as we understand you’re investigating.”

Preet Bharara:

So let’s say on those occasions where you have a dialogue, you make a presentation and you say, “Based on the law and the facts and also the interests of justice, you should exercise your discretion and you should not indict my client.” Then you go home and the next day they call you and tell you their decision, right?

Barry Berke:

In the world that we would like to live in, that’s the way it should be. But unfortunately, so much of this process, as you know, is counterintuitive. And we have experienced, you’ve experienced it on both sides, that we make a very strong pitch, sometimes it’s a formal presentation, sometimes it can last months the dialogue and we feel good that we have persuaded them there is no crime, there’s no case to bring or not a case that they could win at trial. And oftentimes the best you get is simply silence. They don’t come back to you. You look to read tea leaves again to see if there’s any indication of activity, but what you don’t get in almost every instance, except in very high profile cases as you’ve raised, you don’t get that closure that clients often want and many times they actually need. And that’s just wrong. And I’m so glad that you’re elevating this issue, because it is so important.

Preet Bharara:

So sometimes it’s the case that there’s radio silence because the prosecutors and the agents and the cops, depending on the case, are doing an investigation, they’re issuing subpoenas, they’re getting leads, maybe it’s a large criminal organization or there are other co-conspirators. So this is not to say that it’s inappropriate or wrong for in particular a complicated white collar investigation to take a year or two years or longer. That’s appropriate, right?

Barry Berke:

That’s exactly right. That’s not what we’re talking about. And that happens all the time. We’re talking about situations, and I’m talking about it, where you have made a full presentation, there’s no indication of an ongoing investigation. Oftentimes you and the client believe you’ve persuaded them that there’s no case to be brought and there’s no indication they’re doing anything more other than sitting on it. And it’s in those situations where you really do want them to step up and say, “We’re done.” And I can give you some examples where that hasn’t happened and the rare instances when it does.

Preet Bharara:

Yeah, give us some examples.

Barry Berke:

So as you know Preet, you led the investigation for a while of the then mayor of New York City, Bill de Blasio, and your office was very open about what you were looking at. You invited us in to make presentations and we made a lot of presentations as to what the facts were and what the law was and whether or not there’s a case to be brought. And we also raised the issue that because he was the sitting mayor soon to face reelection, you guys, if you decided not to go forward, should tell us and tell us before the election campaign began. And you did that, you ultimately looked at the facts, determined there was not a case you were going to bring and you told us. That is the exception, that virtually never happens for regular people.

And let me give you a contrast, which I also have with a current client who I can’t name. It’s a significant company and senior executives, the same office, the US Attorney’s Office for the Southern District of New York was doing an investigation, so was the Department of Justice years ago. They identified the senior executives as targets of the investigation. That became public, that they were identified as was the company. And we had presentations for years. It has now been nearly three years since they were identified as targets. There has been no activity for well over a year. We know the case is done, we know they’re not bringing any action, but they have not, and we’ve asked, they will not tell us that they have made a decision to end the investigation. And it’s harming the individuals, both reputationally, personally because it’s still technically hanging over their head and it’s very much hurting the company because banks and others don’t want to deal with them in certain capacities because there’s still this investigation that has not been closed.

Preet Bharara:

And here’s another point I’m make in the op-ed and I’ve experienced in practice now that I’m on the other side. So the client says, “Well, what the hell’s going on, Barry? Call them up, yell at them and tell them to put up or shut up.” And often it’s the case, through reasonable cause, you say, “I don’t want to do that.” And the way I put it in the op-ed is you don’t want to poke the bear. You sort of suggest, “Well, no news is good news. Maybe they’ll forget about you. Maybe they have forgotten about you. Maybe the prosecutors in charge of the case are busy on other matters. Maybe they left the office. Just let sleeping dogs lie.” Is that the approach that often you take?

Barry Berke:

That is often the case because again, given what the stakes are, when you reach out, they might say, “Oh, I’m glad you did. We have questions. We want to speak to your client. We have questions for you. Let’s go.” And you’re reminding them of something. Because we all know that sometimes there are other cases that simply take precedent. So that is often sort of the bind you’re in, that you want to get that closure, but in the event that you call them and it stimulates something, that cost is too high.

But I’ll tell you in the example that I’m giving with the company and the senior executives, they wanted to go for it. I went to the highest level in the Department of Justice and we still could not get satisfaction. They said, “It’s not our policy to do that. We can’t do that, we won’t do that.” And I think they were concerned about adverse publicity, but our client still years later still has this hanging over them even though they know we know it’s closed, other people don’t know that. And also for individuals at whatever station, it really does have an emotional toll to know that technically you have been identified as a target or part of an investigation and you’ve not been officially told it’s over.

Preet Bharara:

So the case that you’re mentioning is one that’s still unresolved. How long have you been doing this work?

Barry Berke:

I’ve been doing it for three decades, over 30 years.

Preet Bharara:

30 years. Now in some of those cases where you have a client who’s a target under investigation, who never gets indicted, like take a client you might’ve had 10, 15, 20 years ago, when is the point at which that person gets some closure? Is it when you advise them, “Hey, guess what today is, it’s the end of the statute of limitations,” or some other way?

Barry Berke:

That’s exactly how it happens. And I’ve had it, I mark it, five years in some instances, six years in others, for clients who are overseas where there’s an opportunity to extend the statute of limitations, as you know, to eight years. I have an email from a client in Mexico, “Congratulations. It’s over.” And that’s a client who avoided traveling to the United States despite having gone to college here and having family here and the like just because he did not know for sure what might happen. A very prominent person in that country. And it has a real life impact because the stakes are so high and you don’t know for sure.

Now, there’s certainly times before the statute has run where I can say with confidence, having done this for so long that I feel with 95% confidence you’re done, but it’s not a hundred percent. And it’s just me, their lawyer, not the government. And in many instances it’s not quite that clear, although we believe it is so, and I believe, Preet, you elevating this issue can help change the policy. So the Department will say, “We really do have an obligation to tell people when we’re done.” And by contrast, which you know, the Securities and Exchange Commission, the SEC, which only has regulatory power, they will routinely give a notice when they’re done, when the matter’s closed, if there’s been notice that they’re considering action and they decide not to do it. If you press them as a company or individual, they’ll often tell you they’re done. And if it can be done when the stakes are only about money and other sort of injunctive relief, certainly that should be the minimum required when it’s actually someone’s liberty at stake.

Preet Bharara:

You said there are occasions when, given your experience and track record, that with 95% certainty the case is not going to go forward. How does that happen if they haven’t told you that?

Barry Berke:

Usually you’re talking to a lot of other lawyers, you’re talking, if it’s a company involved, you’re talking to the company, you’re seeing if there’s been any indication of activity and it’s really just there is not. You also learn that what they’re hearing is made clear in your mind that they don’t have a crime, certainly not one involving your client. So you have that confidence. But that is the exception rather than the rule. I’ve certainly now been doing this long enough to know that there are cases where I personally believe there is no crime, my client didn’t do anything wrong, but a US Attorney’s office or the Department of Justice in Washington disagrees and they bring the case. So I would say in most instances, the best I can say is, “I’m pretty sure you’re done. I don’t think they’re going forward, but I can’t say with certainty because they haven’t told us and they won’t tell us.”

And that’s not so reassuring for individuals in particular who are trying to live their life and they don’t know if one day they could be arrested and face spending many years in jail. When you think about how we all plan our lives with our children, thinking about school and college and the like. I represent clients who aren’t sure whether they’re going to be fighting a criminal case, whether they may be going to jail during their prominent years, if they have business decisions. It’s a real impact on people’s lives as well as businesses that have to contend with it. And given that in the situation you’re describing where there is no good reason, there’s no investigative risk or ongoing investigation, it really is just a question of changing the policy because I don’t think there’s really a strong or good argument why it’s not done to give people notice.

Preet Bharara:

We mentioned the statute of limitations, two points about that. One, sometimes it’s not so clear when the statute of limitations or when the government will argue the statute of limitations began to run ongoing conduct, sometimes it is clear. So there’s that uncertainty also. And the other point is certainly it’s the case that from time to time a prosecutor’s office will bring an indictment or a charge right at the end of the statute of limitations period. They’re hurrying up, they want to get in from under that termination point, but most of the time, most of the time cases are not brought on the last day of the statute of limitations. And so by definition, I guess I’m stating the obvious, by definition, on the day that you send that letter or that note to a client saying, “Congratulations, the statute of limitations is up today,” by definition, the government had to have made the decision not to charge some point before that.

Barry Berke:

That’s exactly right, Preet. And you also raise a good issue that there’s often different ways to interpret when a alleged crime or potential crime has ended. So I have to err on the furthest out date to make sure that when I give a client the assurance that they’re out of trouble, they really have to be. But it’s not necessarily so obvious that it’s going to be the earliest date.

But the fact that we’re even talking about this, and again, you’re really bringing attention to something that we as practicing lawyers know about, our clients in this situation feel so deeply, but it doesn’t get a lot of attention outside of that. And again, there’s a lot of talk about how to make the criminal justice system more fair and more just, this should be low hanging fruit, because we’re talking about making it fair and more just for those who are not alleged to have done anything wrong, for those not charged, just people who were in the crosshairs of the criminal justice system and now should be out of the crosshairs. So I don’t think there’s a persuasive argument to be made on this side as to why notice isn’t given other than that’s not the practice, there’s no real policy and it takes some extra work to do. And it may be there could be some adverse publicity in certain types of cases that the investigation wasn’t pursued. But other than that, there really is no good argument.

Preet Bharara:

Stay tuned, there’s more coming up after this. What’s interesting to me, and I’m not making any excuses, I regret that I was a part of maintaining that status quo as was every other US Attorney’s office and many other prosecutor’s offices, I’m not aware of any prosecutor’s office, and people can write in and tell me otherwise because some people have made this comment, and I don’t quite credit it, I’m not aware of any prosecutor’s office that as a routine matter at the moment that they’ve decided they’re not going to pursue a charge against someone who’s known to be a target, unlike the SEC, that they send a letter to the target or the lawyer of the target telling them that.

But I will say that when a US Attorney, you and others, I would meet a lot of defense lawyers who were very interactive with the defense bar, there were scheduled meetings of defense bar groups who would come in and they had a lot of complaints. There were a lot of things that people said we could do a better job of, including early on in my tenure, a practice of the courthouse in the Southern District not allowing defense lawyers to bring their cell phones into the courthouse or into the US Attorney’s office. I heard a lot more about that than I heard about this issue.

Why is it that the issue… Defense lawyers are not shy, and what I find out about this issue is it’s not like I found gold or I’m reinventing the wheel. Everything that I’ve written in this op-ed is known and obvious to the defense bar, if not to the prosecutors. How come you didn’t complain more about this? I’m not blaming the victim. I’m not blaming-

Barry Berke:

No, no, no-

Preet Bharara:

… but I really wonder, and I’m asking you as a friend, why didn’t people come to my office and go to other prosecutor’s office and say, “This is a ridiculous unfair practice, end it.”

Barry Berke:

Yeah, no, you raised the right issue. And listen, I give you credit. You did have that open door and your colleagues and it’s happened. And they’re regular meetings with the defense bar where a lot of issues are raised about the sort of things that happen routinely. For some reason, I have some thoughts about it, but this is an issue that does come up periodically, but typically on a very, very specific case by case basis. And that I have fought hard with the most senior people in Washington, with folks at different US Attorney’s offices, you have to tell us. And I’ve had people, the line assistants, the junior people say, “Yeah, Barry, I’m not saying you’re wrong, but I don’t have authority to tell you more. So you need to speak to other people.” And I find that encouraging, but still to the client, they’re like, “Yeah, that’s good and well, but what about more senior people?”

And I think the reason why it did not get more defense bar attention is because we tend to focus on the things that have real and direct consequences on a macro level. What happens at a regular trial? Trials are going on all the time. Plea agreements, how we go visit clients or in the courthouse and how we can communicate. This is something that comes up periodically, but when it does come up, it is so significant. So you raise a good issue. And sometimes we also I think get a little bit lulled. How do you change something that seems so entrenched? This is the policy of DOJ. Okay, it’s the policy. But I think when you raise it’s a little bit like the emperor has no clothes. It’s like nobody can say like, “Gee, you’re right. There are no clothes. Gee, you’re right, there is no good argument.” So I do think the defense bar should have been more attentive to this, including myself. And it’s good and well to bring it up on an individual case, but to go beyond that would’ve been helpful.

Preet Bharara:

Yeah, I have been thinking about this and noodling on it for a few months now because I’ve had some client experiences and I keep thinking I must be missing something as I reevaluated how our office did things and how other offices do things, and it’s pretty universal practice. And no one I raised it to, including people who are currently high level prosecutors in the country, gives me a counterargument.

I mean, I suppose there’s one thing that’s in the minds of prosecutors and was in our mind when we made those statements as we did in the de Blasio case that you were involved with and also the Andrew Cuomo case and high profile cases of that stripe, and sometimes it’s the case that there’s not enough evidence to bring a charge, but the prosecutors really believe that the target should have been prosecutable and they weren’t able to get enough evidence. And I suppose in some of their minds, they’re worried or concerned that something saying we’re not going to bring a charge will be used by the target or the target’s defense lawyer as proof of innocence or exoneration. And it’s that sort of muddy line between, “Yeah, we just didn’t have enough to get over the top of proof beyond a reasonable doubt, but there’s a lot of bad stuff here. You weren’t exonerated, we’re not saying you’re innocent.” Do you think there’s any merit or weight in that distinction?

Barry Berke:

It’s interesting, there may be some instances where that’s true, but I sort of think that suggests too much of a formal process. I always feel as a defense lawyer, one of the most powerful factors that often help my clients is pure inertia. If the evidence isn’t easily coming, the witnesses aren’t necessarily pointing their finger in a way that helps make a case, it’s easier to pay attention to other files, other investigations that seem more promising, that seem maybe easier to make or stronger cases. So sometimes it’s really just that the file and the case is sitting there and it’s not getting a lot of attention so people aren’t thinking about it. And then the second human factor is hope springs eternal. There’s the file, yes, it’s still there. I haven’t decided, we haven’t moved. We don’t know what we’re going to do. And who knows? Maybe there’ll be some evidence, maybe there’ll be a break, maybe something will happen.

Preet Bharara:

A witness will fall from the sky.

Barry Berke:

Exactly. Again, everybody has their blinders on some way, on both the prosecution and defense, everyone’s drinking their own Kool-Aid a little bit and thinking that there really is a case to be made if I just had the witness or the evidence.

But what is so interesting, in the high profile cases, you and I both know about them, we’re involved with them with the former mayor and other situations, when there is a requirement to, in the political cases, you don’t want to impact campaigns or unfairly involve yourself in the political process if there’s no case, even where there may be a view, maybe there could be a case, if it’s a requirement, everybody works well with deadlines. If there’s a requirement, the office will do it. Because they know. The prosecutors know when there’s not a case to be made.

So I agree, it’s often not a considered judgment to not give that finality, but just a hope or a lack of attention. I think if the rule changed and the policy changed that we’re going to try to do this because it’s the right and fair thing to do and that’s how the Justice Department and other prosecutorial offices should run itself, I think people would be more proactive in trying to reach that point and say, “I don’t have a case.” And you could have the caveat, “Maybe something else will happen, but right now you’re not a target and the investigation is being closed.”

Preet Bharara:

You can always issue a caveat. It’s interesting, we keep talking about changing the policy. To be clear, I’m not aware that there is any policy at all. The Justice Manual, previously known as the US Attorney’s Manual within the Justice Department, I believe is silent on the issue of garden variety cases in which you do or do not advise the target that the case is over. So some guidance of any sort I think would be appreciated. Do you have a recommendation about what that guidance should look like?

Barry Berke:

Yeah, let me just say I completely agree, there is no written policy. It’s the worst kind of policy. It’s the one that is understood and a little bit like urban legend. And in the case that I’ve been talking about, the company, the senior executives, I went and spoke to some of the most senior people in many different units in the Department of Justice, and I kept hearing again and again, “Barry, we would tell you, but you know the policy of the office is, we do not make those statements. We do not make it in a way that can be used publicly. We do not make it… That is the policy.” And I would say I heard it over half dozen times from different people in different offices at different levels. So there is a belief that is the policy, even if there isn’t one that’s written, which is the hardest policy to argue against.

Yes, so what I would like to see, and I’m glad you asked and I’m glad you’ve raised it, I’m really just joining you on the bandwagon that you started, is a policy that simply says, “When the US Attorney’s office or an investigative unit has determined that they are not going to go forward on the case, as a general matter, they should inform the subject or targets of those investigations that the investigation as to that individual or company is closed.” Pretty simple. That’s it.

Preet Bharara:

It doesn’t need to have a lot of subsections, right?

Barry Berke:

Nope, it does not. And there’s obviously a subjective piece, but we all know that when folks, and I do believe people and the offices will engage in good faith when they in good faith say, “Are you done?” “Yeah, we’re done. We’re not bringing that case.” And it’d be great if they told the people who knew they were being looked at that, “Yeah, we’re not bringing that case.”

Preet Bharara:

Yeah. Look, I don’t think… We should be clear because I deeply respect all the prosecutors that I worked with, and I thought we led a good office and there’s no malice here. As I say in the op-ed, I think it’s a result of “thoughtless institutional habit”, and once you think about it… I’m reasonably optimistic that I think reasonable people in the Department of Justice and elsewhere, once they start thinking about it and people start talking about it more, which hopefully this will prompt, there’ll be a reasonable policy. And you may not love the policy and all of its features, but there’s really no reason why we don’t have it and it should have been addressed some time ago. We’re running out of time, but since I have you, Barry, anything else you want to get off your chest?

Barry Berke:

Well, let me just say one thing, Preet, I want to give you all the credit in the world. It’s easy to do because it’s your podcast. But I mean, because the hardest thing to do is for someone in your position to say, “I look back at what I did in a position in which I got a lot of attention and acclaim, and I wish I had done something differently.” But I have to tell you, that is what will change policy. When someone with your background, your experience, and your reputation comes in and say, “We should have changed it then, but we can change it now.” So I applaud you for doing that. And the hope is, I’m sure that I’ll represent plenty of clients who don’t get the benefit of such a policy, but at least there’s a policy and you can try to do it. Generally-

Preet Bharara:

I’m glad you got that off your chest.

Barry Berke:

I got that off my chest. I bet you are. And then I would just say more generally, I think there’s been a lot of attention on the issues of great importance, mass incarceration and the like that deserve so much attention in our justice system. The only thing I would say is sometimes in white collar cases, and I’ve done both as a federal public defender and now as a lawyer in private practice involved mostly in white collar cases, oftentimes the white collar cases don’t get the same sort of attention because the individuals are less sympathetic. They may have money, they have positions in companies. But I will tell you, the human toll on people at whatever level of having an investigation over them is real.

And I also think that when there are changes that affect the white collar area, it often flows down and is something that can help everyone in the criminal justice system because just as the white collar defendant I’m talking about would benefit from this, there are also situations, not as common, but there’s situations of the postal employee, somebody who works at a federal agency, a government, a working class folk person who might be fallen into something where they’re being investigated. That person as well has a right and will often want, whether they’re represented by a public defender or a private lawyer to know that they’re no longer under investigation. So I think the issues you’re raising really would benefit the criminal justice system from the top to the bottom.

Preet Bharara:

Barry Berke, thanks so much for joining us.

Barry Berke:

Thanks, Preet. My pleasure.

Preet Bharara:

For more analysis of legal and political issues making the headlines become a member of The CAFE Insider. Members get access to exclusive content including the weekly podcast I host with former US attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or, you can send an email to letters@cafe.com. Stay tuned, In Brief is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Matthew Billy. The audio producer is Nat Weiner. The editorial producers are David Kurlander, Noa Azulai, and Jay Kaplan. The production coordinator is Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.