Today’s post is going to be one of those ones where I raise a question that I’ve been puzzling over, without having much to offer in the way of good answers.
Here’s the question: How open and transparent with the public should the officials investigating serious allegations of high-level corruption be about the progress of their investigations?
To be sure, no competent investigator or prosecutor would or should be completely transparent, as doing so might well tip off the targets of the investigation to what the investigators know, their investigative and legal strategies, and so forth. But even with that constraint, there’s a fairly broad range of options. Investigators could be absolutely tight-lipped about everything. Or they could hold regular press conferences covering significant developments in the case (and perhaps even going further to comment on the larger issues that the investigation implicates). Or something in between.
I was prompted to think more about this question in part by an exchange I had with Jose Ugaz at last month’s Harvard conference on Populist Plutocrats. I was asking Mr. Ugaz about his experience serving as Peru’s Ad Hoc State Attorney investigating and prosecuting high-level corruption in the Fujimori regime, and in particular how he dealt with concerns that his investigation might be perceived as politicized. Those who are interested can watch the video of our exchange (which starts around 7:15:55), but the key part of Mr. Ugaz’s response (slightly edited for clarity) ran as follows:
What we did was work as much as possible in an open mode regarding … public opinion. So I formally had one press conference per month where I presented the advances of the investigation. Of course, … for strategy we had to reserve [much] information …, but people were following the investigation and they knew that all the decisions … respect[ed] due process of law…. [T]here is no corrupt [official] who doesn’t say that [he] is a [victim of] political persecution… [but] if you have hard evidence and people are informed of how you are conducting your investigations, I think you can continue without the danger that people really believe that you are politically motivated in a case like this one.
Because I can’t escape my American parochialism, I couldn’t help but think about Mr. Ugaz’s remarks in the context of Special Counsel Robert Mueller’s ongoing investigation of possible collusion between the Trump campaign and Russia—in particular, a couple of pieces from a few weeks ago, both by experienced attorneys I know and respect, that offer sharply contrasting perspectives on Mr. Mueller’s investigation, and that both discuss the lines of communication (or lack thereof) between Mr. Mueller and the general public.
Duke Law Professor Sam Buell, himself a former prosecutor, described Mr. Mueller—favorably—as “a cipher and phantom,” one who “issues no statements, holds no press conferences, gives no interviews, pushes out no tweets.” Except for the bit about tweets (which I doubt Mr. Ugaz would have used even if they were available back in 2000), this sounds vastly different from the more open and transparent strategy that Mr. Ugaz said he pursued in order to maintain the credibility of his investigation into the Fujimori regime. Yet in Professor Buell’s view, Mr. Mueller’s refusal to make any public comments on his investigation—even as the public is aware, in general terms, that he is issuing subpoenas, compelling grand jury testimony, conducting searches, and interviewing witnesses—is part of what gives his investigation its power. “Merely to appear to be putting these tools to regular use,” Professor Buell explains, “even to leave his anxious audience wondering where and when he is using them, represents a singular counterpoint to public life in Trump’s ‘l’etat, c’est moi’ presidency.”
But is Mueller’s team really keeping information on the progress of its investigation so close to the vest? Justin Dillon, an experienced white-collar defense lawyer (and a law school classmate of mine), charges—with some justification—that the Mueller investigation is in fact “leaking like a sieve.” Moreover, Mr. Dillon notes, pretty much everything that is leaking (possibly, though perhaps not necessarily, from people on Mueller’s team) is damaging to the targets of the investigations. Mr. Dillon is no fan of Trump—indeed, he was one of the most courageous and outspoken NeverTrumpers at the Republican National Convention—and his caustic commentary on the leaks is not motivated by any desire to protect the President and his associates. Rather, Mr. Dillon warns that these leaks will “undermine the integrity of the investigation” and might provoke at least some people who are “on the fence about whether Trump or his associates did anything illegal” to see the constant string of leaks to media outlets with an anti-Trump reputation as “evidence that this is just a liberal conspiracy against him.”
While I’m not entirely convinced by Mr. Dillon’s bracing polemic, I’m grateful for it, not least because it adds yet another layer of complexity to the question of how a prosecutor investigating high-level wrongdoing should communicate about the progress of the investigation to the public. Would it be better for Mr. Mueller to adopt a strategy more like the one Mr. Ugaz followed in the Fujimori investigation—announcing news about things like the early-morning search of Trump associate Paul Manafort’s home through a press conference, rather than a leak? Would it be better to eliminate the leaks entirely, so that the general public learns virtually nothing about the Mueller investigation unless and until indictments are handed down? Assuming that these leaks are indeed coming from Mueller, is it hypocritical and counterproductive for Mueller to maintain the “buttoned-down demeanor” and no-comment posture that Professor Buell describes, even while permitting a steady stream of leaks? Or is this actually the best of both worlds—getting information about the progress of the investigation into the public domain, while at the same time helping to preserve the impression, even if it partly a fiction, of a legal process that is distinct and separate from politics?
There’s probably no one right answer to these sorts of questions, one that would be true for all countries at all times. Perhaps in Peru, given the country’s particular circumstances in the early 2000s, it made sense for the Ad Hoc State Attorney (basically the equivalent to a special prosecutor) to hold regular press conferences, but in the United States in 2017, it doesn’t. Maybe in some cases, it’s best for a prosecutor investigating high-level wrongdoing to keep everything about the investigation completely confidential, but in other cases it’s better—from the perspective of political realism—to get some information about the investigation into general circulation, possibly via formal press conferences, possibly via authorized leaks.
As I said at the outset of this post, this is an issue for which I don’t have any really good answers, or even tentative speculations. I know that’s an unsatisfying way to end a post, but I hope that raising these contrasts provokes some reflection—and perhaps some responses or further discussion—about this question. After all, I suspect it’s an issue that pretty much every anticorruption commission, special prosecutor, or similar body must confront at one point or another.
I find the limitation on ‘high-level corruption’ interesting here. Are we viewing concerns over the stability of the state as another justification for maybe limiting the amount of information that flows out of the investigation? That said, it’s interesting how in India the idea of curbing information about corruption investigations is being advanced at all levels. This past week, the state of Rajasthan amended the criminal law to ban media outlets from reporting on any cases of corruption against government servants of all kinds unless the police had secured administrative permission to start formal investigations.
Fair enough. I think I restricted the scope of the discussion to investigations of “high-level corruption” because those were the salient examples I had in mind. On reflection, I guess the reason that the issues I discuss seem particularly relevant with respect to investigations of senior officials is because these are the cases that the media and the public are likely to follow most closely, and where the tensions between the need to appear above the political fray and the need to communicate clearly with the public will be strongest. But of course similar issues could arise at all levels.
There was a news piece I came across that speaks about a Mexican prosecutor being fired for speaking to the media about a sensitive investigation that might be of interest:
With due respect to Mr. Matthew, it is to say that ‘high-level corruption’ is really difficult to proceed at any standard of political environment. Yes, there is much gap in frequency of intervention officially or unofficially from administration country-wise. Situation is so though to investigate ‘high-level corruption’, as the involved detective-officials are not solely uncorrupted and honest from ethical point of view, not investigation point of view. Investigation in very silent mode is most fitful, than open reporting to public place. But strategically sometime it may play for better result with some confused statements in open.
In such an universal situation, your confusion or guess is just right that the corrupt-world is living with us with ‘decent’ mood and with full-scale aptitude to kill the investigation at any stage.
For the moment, let’s leave aside your normative question whether more prosecutorial talking during investigations would be good. In the US system prosecutors don’t generally do it, and aren’t allowed to under DOJ and professional rules. The idea, of course, is that the prosecutor should not say things that would prejudice the public (and potential jurors) against someone who hasn’t even been charged with a crime. Mueller doesn’t talk because the last thing he wants is to hand Trump and others an ethics violation cudgel to wield against Mueller and his prosecutors, with an eye toward sanctions or at least making judges and the public question their fairness. I won’t be shocked if this turns out to be a prosecutor who doesn’t even have the perfunctory press conference when he issues an indictment.
By the way, I don’t really see that Mueller gains much from what has leaked to this point. In any event, I doubt he or his people are the source of the leaks (meaning they might not strictly be “leaks”). Ben Wittes has had some good posts at Lawfare about how to assess where the information about Mueller’s work might be coming from.
So we are never going to be Peru and Ugaz (whose stories about the Fujimori case are incredible!). Would we better off if we were? I doubt it. Yes there might be public benefit to knowing more about what the government is doing with its investigations, but it also benefits the public in the long run, in terms of effective enforcement, to have prosecutors investigate in secret. More concerning, we have an agency cost problem since our prosecutors work as advocates in an adversary system (and often are elected and/or headed for private sector jobs)–their incentives to disclose (what and when) might not align with the public interest. Which brings us back to the positive: the US system has long muzzled investigators and will continue to do so.
You’re correct that my main interest in this post was in the broader normative/comparative question, but your insights about the particular role of, and constraints on, US federal prosecutors are both interesting and helpful. I think I share your instinct that it’s better for US prosecutors to keep mum about their investigations, but that’s partly why I so struck by Mr. Ugaz’s focus on transparency. And he’s not the only one. I’ve heard from many prosecutors/investigators at anticorrupton agencies or units in the developing world that they believe it’s important to maintain a level of transparency about investigations that would make US prosecutors distinctly uncomfortable. My intuition is that the very different political circumstances in many of these countries makes this different approach more sensible, Though I don’t have the time or expertise to do it myself, I would love to see a comparative study on prosecutorial transparency/secrecy norms across countries.
By the way, thanks also for voicing your skepticism as to whether Mueller is the source of the leaks, and for pointing me to Ben Wittes’s commentary on this issue. For other readers who might be interested, I believe this is the piece you’re talking about: https://www.lawfareblog.com/how-read-news-story-about-investigation-eight-tips-who-saying-what
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Mr. Ugaz’s experience in the Fujimori investigation is really interesting. To contribute to the cross-country comparisons, what I can share from my experience in the Office of the Ombudsman (the anticorruption agency of the Philippines) is that not publicizing details of investigations is almost always the rule. At most, the Office simply acknowledges that it has started “looking into a particular case,” and nothing more. This norm changes only when charges have been filed in court, in which case the Office exerts efforts to provide the public with as much details as possible regarding the status of the case and the developments in the trial on a periodic basis.
Notably, the Charter of the Office does provide the Ombudsman with the discretion to publicize matters relating to pending investigations, but with the following colatilla: (1) it should be done only “when circumstances so warrant and with due prudence”, and (2) that, in any event,”publicity issued by the Ombudsman shall be balanced, fair and true.” I do not believe that there are similar rules for prosecutors in the Department of Justice (the regular prosecution bureaucracy that handles all other non-corruption criminal cases). This could be interpreted as Congress’ acknowledgement of the fact that, when it comes to corruption cases, some form of openness to the public is required. But leaving the publication of matters to the discretion of the Ombudsman is also, I think, Congress’ way of admitting that the exigencies of law enforcement investigations do require a significant measure of confidentiality, and that the Ombudsman is in the best position to weigh these competing interests.
Great comment, Ryan! I believe we share the same point of view about this: “when charges have been filed in court”, the prosecutor should “provide the public with as much details as possible regarding the status of the case”.
However, I must question you this: what if a big investigation imprisons a high-level official for wrongdoing without any charge filed in court yet, as Brazilian law admits? Would it be alright not to give to the public enough information about the case?