White-Collar Crime

In Praise of Leakers: An Ode To The Mueller Investigation

Remember, targets aren’t really “people.”

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Robert S. Mueller (via YouTube)

Anyone who’s paid attention to the news in the last couple of weeks knows that the Mueller investigation is leaking like sieve. It seems that every other day, “sources close to the investigation” are telling some reporter at the New York Times, the Washington Post, or the Wall Street Journal about something that could only come from people inside the investigation.

What they’re leaking is catnip. Earlier this week, the Times reported that when Paul Manafort’s house was raided, federal agents actually picked the lock to go in — that’s how little they trusted him. What a scoop!

Someone also leaked that, after they went into his house, prosecutors on Mueller’s team told Manafort that they were planning to indict him. Bombshell!

Don’t forget the wiretap! Manafort’s phone apparently was tapped from 2014 to 2016, then not tapped for a while last year, and then re-tapped sometime after that. Pulitzer City!

And the hits just keep on coming. The latest? Secret briefings to Russian billionaires! How do we know about these? Because “people familiar with the discussions” read “portions” of an email to the Post, “along with other Manafort correspondence from that time.”

I think these leaks are fantastic. I love it when prosecutors — sorry, I mean “people familiar with the discussions” — read “portions” of emails to journalists, and I love it even more when they read “other… correspondence,” too.

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I think the fact that what is being billed as an elite strike force of prosecutors led by a man with impeccable integrity somehow finds time talk to journalists almost every day doesn’t undermine the integrity of the investigation at all.

There’s no way that people who are on the fence about whether President Trump or his associates did anything illegal are possibly going to look at leaks to, say, the studiously nonpartisan New York Times, as evidence that this is just a liberal conspiracy against him.

To the contrary! When prosecutors are constantly violating investigative and grand jury secrecy, that can only give people even more confidence that they’re clearly doing what they’re supposed to do and doing it for the right reasons. If you don’t leak, that must be because you’re not doing your job right.

Now, I can already hear the skeptics starting to pipe up: “Well, Justin, or Matt, or whoever is writing this column now,” they say, “I’m not sure the constant stream of leaks is a good thing. I think people should generally keep their mouths shut when conducting a criminal investigation. Aren’t all these people innocent until proven guilty, or shouldn’t we at least wait until they are actually charged, which only requires a probable cause finding?”

That’s ridiculous. This is America! Prosecutors shouldn’t wait until they can convince an entire grand jury to indict a ham sandwich, I mean a defendant. Well before that, they should hold press conferences and say what they think the accused did, and be very confident that they can prove it! They should secretly talk to the press so that by the time the charges are brought, everyone already thinks the person did it! No one goes to trial anyway, so it’s not like you’re polluting the jury pool. (And if I’m being honest, it’s also kind of fun to hold press conferences after the indictment comes down, too.)

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Besides, this is Washington! Leaking is what people do. There are probably classes on it at GW. So spare me your righteous indignation about how you think a serious professional investigation should be conducted. People have reporters to befriend, sources to groom, careers to make! We can’t let things like wanting the justice system to work the way it’s supposed to get in the way of that.

So I say, bring on the leaks! Bring me your junior special counsels hoping to make partner, your senior special counsels hoping to make practice-group chair, and all of your excited agents who want whatever agents want. Tell me what you’re finding as you find it, and don’t tell me anything that would give me, or anyone else, the impression that someone didn’t do it.

Finally — and this is important — make sure you leak only the evidence of guilt, not any evidence of innocence — and especially not the fact that you haven’t found anything on certain people yet. What fun is that? These are just subjects of a federal investigation. They’re not people.

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 [email protected].

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