Mueller Owes It to Prosecutors Nationwide, and to His Own Cases, to Uphold Justice Department Standards

Mueller’s tactic of charging sensational offenses and pleading them down to comparatively trivial crimes flouts guidelines that are prescribed in the U.S. Attorney’s Manual and that are followed by responsible U.S. attorneys’ offices.

.. the plea deal of Richard Gates, who faced two indictments alleging financial-fraud felonies involving over $100 million in the aggregate, but was permitted to plead guilty to minor charges

.. Kerr’s description of my claim that Mueller is “breaking the rules” suggests that I’ve accused the special counsel of violating the law. No, I’ve accused him of abusing his discretion.

That this is not actionable does not make it right.

.. A defendant should be required to plead guilty to “the most serious readily provable” offense charged

.. The “most serious readily provable” standard applies to plea agreements regardless of whether cooperation is in the mix.

.. Requiring such a guilty plea not only ensures that the defendant is held appropriately accountable and is not given favorable treatment in comparison to others similarly situated; a plea to “the most serious readily provable charge” also makes the defendant a more compelling cooperating witness. By contrast, failing to require a plea to the most serious offense degrades the defendant’s testimony, which is usually offered to prove against other defendants the same serious offense on which the cooperating defendant has been given a pass.

A concrete example makes the point. A defendant who has committed bank-fraud conspiracy and pleads guilty to bank-fraud conspiracy is an effective witness — his admission of guilt goes a long way toward proving the existence of the scheme and makes it more likely that conspirators he implicates will be convicted. This helps the prosecution. On the other hand, if the prosecutor lets the defendant plead guilty to a minor (non-bank-fraud) conspiracy to induce his testimony against other bank-fraud conspirators, it signals to the jury that the bank-fraud conspiracy is not as serious as the indictment suggests; it opens the door to defense claims that the cooperator was given a major break to buy his testimony and exaggerate the culpability of the other conspirators. This hurts the prosecution.

.. That is what would have been required, at a minimum, in the U.S. attorney’s office where I worked. More likely, an SDNY prosecutor would have insisted that Gates plead guilty to all of the offenses that he and Manafort were indicted for committing jointly.

.. he quotes former SDNY U.S. attorney Preet Bharara: “When we had evidence against somebody and wanted them to flip, we made them plead guilty to every bad act that they had ever done, especially if we were later going to be alleging other people had engaged in that activity as well.”)

.. The point is not just to get cooperation from defendants in Gates’s position; it is to make them the most effective witnesses they can be in any resulting cases. My beef with Mueller is that his deviation from this practice undermines the ability of other Justice Department prosecutors to honor the guidelines and demand guilty-plea terms that are vital to effective prosecutions — either that, or Mueller does not have strong enough evidence to justify the grave charges he has filed.

.. under Justice Department practice, a cooperating defendant should not get sentencing leniency until he has earned it by providing cooperation (including testimony) and demonstrating truthfulness, usefulness, and contrition. Under Mueller’s approach, in stark contrast, the defendant is rewarded with a low-ball cap on the sentence before he has earned it

.. Contrary to the non-pros situation, here Mueller was holding all the cards. And Mueller had given every indication that Gates is guilty of major crimes that could land him in a penitentiary for decades. Thus, if Gates was to merit leniency, the onus should have been on him, not Mueller. It should have been Gates’s burden to plead guilty to what he did and earn leniency through cooperation.