Collateral Prosecutions Pt. I

I'm taking a short course (meets every morning for 90 minutes for two weeks) on White Collar Crime, and today's class probed into an area of prosecutorial discretion which I've long been troubled by: the prosecution for crimes either caused by or uncovered by a criminal investigation into some other potential illegality (the "root crime"), and which would not have been investigated or prosecuted on their own. I'll call this "collateral prosecution."

The most obvious contemporary examples of this would be President Clinton and Martha Stewart. I also spoke about this to some extent in my discussion last month regarding the case against Captain Yee, in which the young chaplain was originally suspected of espionage. During the course of the investigation, those charges were dropped and replaced by charges of adultery and pornography possession. Many argue that these are crimes that would likely not be investigated or prosecuted on their own, and that the prosecution against Captain Yee is a result of prosecutorial stubbornness, pride, or vengefulness.

I think this is a very difficult area to wade into, both legally and morally. On the one hand, it seems clear that, more likely than not, these individuals are in fact technically guilty of the collateral crime which they have actually been charged with. We do want to discourage misrepresentations to police and federal investigators, because in many (most?) cases they are investigating, there is some root crime to be uncovered. And even where there is not, we would rather our investigators be able to quickly discover that, so they can move on and expend resources elsewhere. Any obfuscation or obstruction is thus costly to our system, and we want the obstructors to bear the cost, as well as deter future obstruction.

And yet many of us, myself included, have an intuition that there is something unfair about the government being able to subject an individual to such intense scrutiny, and then charge them with some collateral crime. Perhaps this is because we do not think our own lives would withstand such scrutiny. Considering the size and duration of the various investigations into the Clintons, this seems a likely source of sympathy for them. It is even more true when the collateral crime is not perjury, false statements, or obstruction in the course of the investigation, but is in fact some charge wholly unrelated to the original investigation. It seems the case against Captain Yee would be a perfect example of this. Here we have a young officer suspected of terrorism-related espionage. The whole weight of the military criminal investigation system bears down on his life, and lo and behold, he cheated on his wife and possessed pornography. How confident are each of us that a similar invesigation would leave us in the free and clear? How confident are we that we would not be caught in any untruths, any concealment?

And even if we are confident that we ourselves would emerge unscathed by criminal sanction, perhaps we see something unseemly about the process itself. That these people should have to undergo such an ordeal only to be caught in these minor crimes, which would not have been investigated or prosecuted on their own.

I think, however, that this sympathy can go too far. One line I would draw would question what the nexus is between the collateral crime and the alleged root crime. Let's take false statements as an example.

Hypothetical A: An individual is being investigated for insider trading (of which he is totally innocent), and is being questioned about his phone records, to see which calls came to and from his stock broker. One of the recurring numbers is a woman he is having an affair with, which he does not want to divulge (maybe his wife is there, who knows). He tells the investigators it is his brother's number. Has he committed a crime? I'm not yet clear on the details of these laws, but let us stipulate that yes, he has technically violated the law against false statements.

Hypothetical B: Now let us take the same individual, still being investigated for insider trading, still totally innocent, but now let us say that phone calls really were to and from his stock broker. He tells the investigators it was his brother. Let's stipulate that this is the same technical violation of the law.

Do these situations seem different? I think they do. I think the nexus between the lie and the investigated root crime in Hypothetical B make that a more severe case. Whether it be because we think the individual is more culpable (e.g. they are actually trying to divert the investigation, rather than simply hide an affair) or because it comes at greater cost to our investigators (since the lie effects the main focus of their investigation), I think we can distinguish between the two.

I have to run to class now, but I'll have further thoughts in a few hours.