Nov 28 (Reuters) – With the holidays upon us, I’m reminded of certain etiquette lessons from my grandmother.
Always write thank-you notes. When asked for the salt shaker, pass the pepper, too. And if you decide not to indict someone, let the target know so they can get on with their life.
OK, maybe she never mentioned that last one.
As is, federal prosecutors rarely tell people who have been hauled before grand juries, had their homes searched or otherwise know they’re being investigated about the status of the probe.
So when exactly do targets find out that an investigation has fizzled and they are no longer on the hook?
According to Preet Bharara, who served as U.S. Attorney for the Southern District of New York from 2009 to 2017, almost never.
Instead, they’re left on tenterhooks until the statute of limitations runs out.
Offering such disclosure isn’t just a matter of courtesy – of sparing people who won’t be charged with criminal wrongdoing months or years of unwarranted existential dread as they lie awake at night contemplating prison.
It would also be a way to make the justice system “more fair, open and transparent,” Bharara told me.
A partner at Wilmer Cutler Pickering Hale and Dorr since 2022, Bharara has taken up the issue, urging the U.S. Justice Department on his podcast and in a recent New York Times guest essay to change what he described to me as a “thoughtless institutional habit” of refusing to tell most would-be suspects when they’re no longer in jeopardy.
A Justice Department spokesperson declined comment.
To be sure, there may be a dollop of self-interest for Bharara in championing the cause. Now that he’s switched to private practice, he’s dealing with clients who (understandably) “keep asking questions” about how prosecutors are planning to proceed with their cases, he said.
Most times, all that he and other defense lawyers can offer are vague reassurances like “no news is good news” or advice such as “don’t poke the bear” by pushing for answers that likely won’t come, he said.
It doesn’t have to be that way.
At the U.S. Securities and Exchange Commission, for example, it’s the norm to inform targets when an investigation has ended and no charges will be filed, Bharara told me.
At the DOJ, the Justice Manual (previously known as the U.S. Attorney’s Manual) offers no guidance one way or the other on whether to tell suspects that the case against them has been closed and no further action is expected to be taken, Bharara noted on his podcast.
Instead, keeping quiet is a matter of agency custom and culture.
“I don’t think it’s been malicious,” Bharara said. Rather, it’s simply DOJ’s “default” position.
There are, however, a few exceptions.
Prosecutors tend to publicly announce when they close criminal civil rights inquiries involving allegations of law enforcement misconduct, he said.
On occasion, they’ll also make announcements in cases where the public interest is high. For example, earlier this year, prosecutors in North Carolina publicly informed the family of a 25-year-old woman who was found dead at a Mexican beach resort that “available evidence does not support a federal prosecution.”
Targets who are famous or powerful — think former Vice President Mike Pence, who was informed by DOJ officials in June that he wouldn’t face criminal charges related to classified documents found in his Indiana home — are also apt to get official notice if the investigation against them has ended and no charges will be filed.
But what about everyone else?
Thousands of people over the years have been targeted by the feds in criminal investigations without ultimately being charged, Bharara estimates, left in limbo wondering if their lives are about to be turned upside down. Do they need to save money to pay for a defense lawyer at trial? Should they get married? Have a child? Take a new job?
“Just about every life decision you can imagine” is affected, he said.
I actually know of someone in this situation, a friend of a friend, who was subpoenaed to appear before a grand jury around two years ago in connection with a suspected financial crime.
Since then … nothing. Will this person be indicted? Who knows? The uncertainty alone is deeply stressful.
Bharara said he’s counseled multiple clients in similar predicaments, including a man approached by the FBI more than year ago on suspicion of fraud.
The investigation seems to have stalled, but the client has been left hanging, unsure whether he should move forward with starting a new business. “His life is very much on hold,” Bharara said.
Sometimes of course there are good reasons for prosecutors to stay quiet about the disposition of a case, like if the investigation was covert and disclosure could alert a co-conspirator.
Nor should being told that an inquiry has been closed be construed as a get-out-of-jail free card. “If manna drops from heaven in the form of new evidence,” Bharara said, prosecutors could always re-open the matter.
Obviously, when it comes to issues of Injustice with a capital “I,” our system has much bigger, race and class-based problems than prosecutors who won’t tell targets that the case against them is going nowhere.
But this would be a small, easy reform. “No one is offering any argument against changing the policy,” Bharara said.
The alternative — consigning people who ultimately are not alleged to have done anything wrong to wait (and wait and wait) for the statute of limitations to expire before they can breathe easy — is just rude. Even grandma would agree.
Reporting by Jenna Greene
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