White-Collar Crime

The DOJ And The Diplomat

Federal prosecutors got this one right -- and that highlights how easy it is for them to get it wrong.

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Department of Justice DOJ USDOJ sealLast week’s column — which asked when prosecutors should act like people — touched a nerve with some of my prosecutor friends. Some of them suggested that it isn’t a prosecutor’s job to express sympathy in a pleading. Another argued that I shouldn’t attack prosecutors like this and that my doing so is all just a big marketing ploy. (That was probably my favorite.)

I understand that it’s important not to sweep with too broad a brush. I spent five and a half years as a federal prosecutor, and virtually all of the people I served with were dedicated public servants who truly believed they were always doing the right thing. I believed that about myself, too, when I was there. But having now been on the other side for a few years, I have come to see that as fair as I think I was, I was inevitably blind to certain issues.

I think that’s common; where you stand often depends on where you sit. But I think that makes it all the more important for prosecutors — who tend to be rightly proud that the words “Justice” or “United States” are somewhere on their business cards — to step back and think about the human side of what they do. With all due respect to the Casey plurality, I think liberty can find refuge in a jurisprudence of doubt.

A recent article in the Wall Street Journal got me thinking about that even more. An absolutely magnificent piece of journalism that makes me mourn the day when we will get all of our news from millennials with HuffPo accounts, The Last Diplomat goes deep into the FBI’s ill-fated investigation of career diplomat Robin Raphel.

Here’s the tl;dr version for those of you with one eye out the door for Christmas: A career diplomat and Pakistan expert in her late 60s found herself in the FBI’s crosshairs around this time two years ago, as some of her conversations were intercepted by the government when she was stationed abroad. The FBI’s investigation was led by agents who, according to the article, didn’t appear to have had much exposure to the sort of old-school, glad-handing-in-person diplomacy that Ms. Raphel specialized in.

What she saw as good, old-fashioned working her contacts, the FBI saw as potential espionage.

Things went south quickly. The FBI obtained a “sneak and peek” warrant that allowed them to secretly search her house and leave without a trace. While there, they found some 20-year-old documents that may have been classified at one time but, as the article makes clear, she seemed to have a perfectly good, non-espionage-related reason to have at home.

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(To be clear, the article suggests that having those documents at home may have been unwise and even improper, but improper doesn’t, and shouldn’t, always mean illegal — especially when the documents are 20 years old. As you might imagine, the FBI often fails to see such fine distinctions.)

That eventually led to a full-blown search warrant and a full investigation that was reported by, among other newspapers, the New York Times.

Fortunately for Ms. Raphel, she happened to be represented by my friend (and my law partner’s sister) Amy Jeffress, whose experience in handling national-security cases is virtually unparalleled. Former Chief of the National Security Division of the D.C. U.S. Attorney’s Office. Former Counselor to the Attorney General for national security matters. Former Justice Department Attaché to London.

Now a partner at Arnold & Porter, Jeffress is simply a superstar.  Reading the article, it’s hard not to conclude that if Raphel had hired someone less well-known, her life might have turned out much differently.

You see, the FBI doesn’t like to go away easily, even when it kind of sort of knows it doesn’t really have a case:

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In the spring of 2015, a prosecutor in the U.S. Attorney’s Office handling the Raphel case notified Amy Jeffress, one of Raphel’s attorneys, that the Justice Department was no longer investigating her client for espionage.

That was the good news. Yet the FBI still wanted her to be prosecuted for mishandling classified information—a charge that could result in jail time.

Or, in plain English, “That thing we thought you did? Um, never mind. But while we were looking into it, we found this other thing we kind of think you did, so can we put you in jail for that? Please?”

Raphel did not take that offer, which was itself a bold move. I have no inside information about this case, but I’ve done enough of them to know that the government would have threatened her with much worse than that if she didn’t take the deal.

But she didn’t. Then:

Raphel heard nothing for months from the FBI. She had already spent about $100,000 on legal fees, which she paid by tapping into her savings, but the bills were piling up. Jones set up a legal-defense fund and 103 of Raphel’s friends and colleagues, mostly from the State Department, donated nearly $122,000.

Inside the Justice Department, prosecutors went back and forth on the merits of the case against Raphel, officials say. The most sensitive document the FBI recovered was 20 years old, and if she were charged, it could well have been routinely declassified while she awaited trial.

More importantly, the officials said, federal prosecutors tend to charge people with mishandling national secrets when they have reason to believe the suspect has in fact done worse—in part to avoid bringing spy charges that might result in having secrets aired in court.

On March 21, 2016, 17 months after the raid on her house, a U.S. prosecutor informed Jeffress the Justice Department had decided to decline prosecution.

Well, wasn’t that nice of them? I’ve written before here about the government’s tendency not to tell people when it’s done investigating them, and I can’t help but wonder if Ms. Raphel received a courtesy most people don’t because 1) she worked for the government, 2) her case made the papers, and 3) she was fortunate enough to be represented by someone the government may have genuinely feared. But most people aren’t that lucky. Most people never get told that the government is done with them.

But the article makes clear that, in fact, the government may not have been entirely done with Ms. Raphel. Law enforcement officials told the Journal that they were kind of OK with how the whole thing turned out, because she’d probably done something wrong:

Another official said that even though no charges were ever filed against Raphel, investigators were partially satisfied by the outcome. To law enforcement and intelligence officials, the loss of her government job was justified by the discovery of the documents in her house and by the signals intelligence that showed her allegedly discussing topics that the FBI considered off limits, this official said.

Priceless. Jeffress’s response was spot-on:

Raphel’s lawyer, Amy Jeffress, called it “deeply disturbing’’ that law enforcement officials “continue to make anonymous and self-serving allegations about her conduct,’’ adding that “there was no evidence she ever provided classified information to anyone without authority.’’

It’s hard to read that without thinking about former Labor Secretary Ray Donovan’s famous quote after he ran the table on the government in his 1987 fraud trial: “Which office do I go to to get my reputation back?”

So what does the Raphel case have to do with prosecutors acting like people? Here, the government clearly made the right decision in the end, sour grapes and all. But this article highlighted, in a way that doesn’t get reported much, what happens to real, live people when the government investigates innocent people.

Even if my prosecutor friends who read this piece (and especially the Journal article) think that the government didn’t do anything wrong here, I hope they’ll at least take a moment to ask: What must it have felt like to be Robin Raphel? And how, if at all, should that make you think about how you do your job?

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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