Declination Decisions and Privacy

In response to my post from yesterday about the Special Counsel’s decision not to prosecute Don Jr. a few people have remarked that the need to protect individual privacy counsels against publicizing nonprosecution decisions. If prosecutors were to declare that someone committed a crime but not actually bring charges, so the argument goes, then the defendant would be unable to clear her name through the adversarial process. 

This argument has been around for quite some time.  Courts have used a variation on this argument to state that prosecutors may not identify unindicted coconspirators by name in indictments.  And it was famously part of the reason that Rod Rosenstein offered in his infamous letter suggesting that James Comey ought to be fired as Director of the FBI. 

I want to take the argument seriously, but I have some reservations about the argument, not only in this particular case, but also more generally.  First, to the extent that Don Jr.’s privacy needed to be protected in the Special Counsel’s report, I’d note that the relevant facts to support a CFAA prosecution were *not* redacted from the report---all that was redacted was the reasoning behind the decision not to prosecute.  I find it difficult to see how the redaction of the analysis, but not the facts, protects Don Jr.’s privacy.  I can think of at least two responses to this point: (a) that the factual discussion also should have been redacted, and (b) that a declaration by prosecutors that Don Jr.’s conduct constituted a crime is far more damaging than the recitation of facts, most of which had been previously reported in the media.  I don’t really have a rebuttal to counterargument (a).  But I’m not thoroughly persuaded by (b).  If nothing else, the harm to Don Jr. at that point seems to be one of reputation, not privacy.  Also, if we were truly committed to the idea that we need to protect individual privacy in all cases that do not result in formal charges, we would have to seriously alter how police publicize arrests of suspects before prosecutors have decided whether to file charges. 

In any event, if the real concern with nonprosecution decisions is that they might invade the privacy or harm the reputation of a particular individual, it seems to me that prosecutors could articulate their decisions in a way that minimized the privacy and reputational harms.  For example, in the Special Counsel’s report, Don Jr.’s name and identifying information could have been redacted, but the substantive analysis on which the declination decision was based could have been left in.  That would allow the public to have more information about when DOJ pursues charges under overly broad statutes---information that, as I’ll explain in more detail below, is extremely important for the public to have.

But before turning to that argument, I wanted to address a comment by Orin Kerr, namely that he didn’t think that the Mueller report needed to “offer a broader explanation when to enforce the law” because “DOJ policy docs already have that for those interested.”

Assuming that Orin is correct that DOJ policies offer sufficient detail on this issue for those who seek it out, I think it is important to note that the general public knows very little about nonprosecution decisions.  I have seen many nonlawyers (and some noncriminal lawyers) repeatedly express the view that prosecutors must bring charges in cases where the defendant has broken the law.  It is not only that these criminal justice outsiders think that prosecutors *should not* decline to prosecute for policy reasons, but rather that they are *entirely unaware* of how often prosecutors decline to prosecute on policy grounds.  This ignorance is understandable because even those of us who know that nonprosecution is common have a hard time obtaining information about how frequently it occurs and under what circumstances.  Put differently, even if Orin is correct that interested parties could learn more about DOJ nonprosecution policies, a great number of Americans don’t even know that such things happen, so they are unlikely to seek out additional information on the topic.

But even assuming everyone knew about nonprosecution as a policy, how much could we learn from reading DOJ public policies? In my opinion, not very much.  Let’s look at the full list of factors listed in 9-27.230, the section cited in the CFAA analysis in the Mueller report:

In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

1. 1. Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
   2. The nature and seriousness of the offense;
   3. The deterrent effect of prosecution;
   4. The person's culpability in connection with the offense;
   5. The person's history with respect to criminal activity;
   6. The person's willingness to cooperate in the investigation or prosecution of others;
   7. The person’s personal circumstances;
   8. The interests of any victims; and
   9. The probable sentence or other consequences if the person is convicted.

I don’t know about you, but I don’t think that this list allows me to make any educated predictions about when prosecutors will pursue charges and when they will not.  For example, the list does not include the aggravating factors that James Comey identified as necessary in order for DOJ to bring charges for mishandling classified information.  Nor am I able to determine based on this list whether the decision not to charge Don Jr. was made because of some unique facts in his case or because DOJ, as a general matter, does not bring CFAA charges for unauthorized password sharing unless there are other aggravating circumstances present.  (There is commentary to this policy, but it also does not provide that sort of substantive information.)

Perhaps those law professors who served as federal prosecutors think that DOJ policies gave enough guidance about when nonprosecution was appropriate---I’d be interested to hear from them.  But as a member of the public, I don’t think that these policies give us enough information about how prosecutors choose to enforce overly broad laws.  In my opinion, that is a serious problem because it means that the public doesn’t have sufficient notice about what will be treated as illegal.  It can also allow for arbitrary and discriminatory enforcement.  And it doesn’t allow the public to serve as a democratic check on prosecutorial decisionmaking.  (I discuss the problem in some detail in Part III of this forthcoming article.)

The ability of the public to serve as a democratic check on prosecutorial discretion may seem less important in the federal system, where the Attorney General and the U.S. Attorneys are appointed by the President.  After all, criminal justice issues likely play a very small role in who people vote for in presidential elections.  But the vast majority of state prosecutors are elected.  How elected prosecutors choose to exercise their discretion—including when they decide not to prosecute--is probably the most important information that voters need (and almost never get).

Anyway, these are just some preliminary thoughts.  I definitely need to reflect further on how to balance these concerns that I’ve identified against the need to protect individual privacy and reputations.  Nonprosecution decisions raise complicated questions, which a number of law profs address in various very thoughtful articles.

As for the topic of democratic accountability and prosecutors, that’s an area where I hope to spend more time and effort.