by Andrew C. McCarthy

I’ve been crazed on deadlines and I’m traveling today, so I haven’t had much to say about the charges — and, to be perfectly frank, I don’t like doing commentary about my old friend Pat Fitzgerald’s cases, since I have a bias and some folks assume I have more insight than I do (I have not spoken with him at all about this case — and as it is an investigation, he wouldn’t tell me anything that’s not on the public record anyway).  But I will say this having both done and supervised public corruption investigations:  the most important thing, always, is to get a lot of the evidence into the public domain fast.

The first thing that happens in almost all public corruption cases is that the allies of the target/defendant claim the investigation is a politically-motivated witch hunt.  This is especially so when the U.S. attorney has been appointed by a President from a different Party from the target.  (Independent counsel investigations are more complex since the whole point of requiring indepence is the fact that the U.S. attorney, or the AG, is in the same Party as the target.  The main claim of abuse in IC investigations — a very valid one — is that no one should have a prosecutor personally asigned, and with unlimited resources, to make a case against him.) 

As a prosecutor, the way you blunt the “political witch hunt” claim is by getting into the public record as much evidence as you can — if the evidence is convincing enough, the public will accept that the case has been launched because the conduct is despicable, not because the prosecutor is acting in politicized bad faith.  Even the Lanny Davises of the world tend to go mum. 

This is why prosecutors often opt to bring public corruption cases by complaint rather than by indictment.  An indictment requires only a bare-bones description of the charges (because probable cause is assumed to have been established in the secret grand jury proceedings).  By contrast, a complaint is an affidavit submitted to a judge to explain why there is probable cause for the issuance of an arrest warrant — it typically calls for an elaborate narrative by the lead investigator (usually the FBI in a federal case) which is rich in detail from things like wiretaps and search warrants.  (If a defendant is arrested on a complaint, the government is required to follow up with an indictment, usually within 10, 20 or 30 days — depending on whether the defendant gets bail — although that time-frame can be extended if the parties are negotiating a plea, among other reasons.)

The first blast of publicity is critical in a corruption case.  If the prosecutor does not get his version of what happened into the public domain before the target’s allies get to the media with their talking points, the target — rather than the prosecutor — will determine the way the public perceives the case.  Ken Starr is a brilliant appellate lawyer, but this was his major failing as a prosecutor running a high-profile investigation:  He had very good evidence, but he held it back, figuring he’d write a Rembrandt of a final report; as the months dragged on, Clinton’s very effective war-room operation was permitted to define Starr and the investigation, with almost no evidentiary rebuttal.  By the time the blue-dress revelations and, later, the final report came out, the public no longer cared:  they had processed the case as “lies about sex” that were unsavory but not a good enough reason to oust a president.   

Anyway, judging from the 70-something page complaint, I’d say Fitz gets an “A” on step one.  And as the prosecutor, if you win step one, you win.

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