How Transparent Should Prosecutors Be About Investigations Into High-Level Corruption?

Matthew Stephenson

Posted on October 26, 2017 by

Today’s post is going to be one of those ones where I raise a question that I’ve been puzzling over, without having much to offer in the way of good answers.

Here’s the question: How open and transparent with the public should the officials investigating serious allegations of high-level corruption be about the progress of their investigations?

To be sure, no competent investigator or prosecutor would or should be completely transparent, as doing so might well tip off the targets of the investigation to what the investigators know, their investigative and legal strategies, and so forth. But even with that constraint, there’s a fairly broad range of options. Investigators could be absolutely tight-lipped about everything. Or they could hold regular press conferences covering significant developments in the case (and perhaps even going further to comment on the larger issues that the investigation implicates). Or something in between.

I was prompted to think more about this question in part by an exchange I had with Jose Ugaz at last month’s Harvard conference on Populist Plutocrats. I was asking Mr. Ugaz about his experience serving as Peru’s Ad Hoc State Attorney investigating and prosecuting high-level corruption in the Fujimori regime, and in particular how he dealt with concerns that his investigation might be perceived as politicized. Those who are interested can watch the video of our exchange (which starts around 7:15:55), but the key part of Mr. Ugaz’s response (slightly edited for clarity) ran as follows:

What we did was work as much as possible in an open mode regarding … public opinion. So I formally had one press conference per month where I presented the advances of the investigation. Of course, … for strategy we had to reserve [much] information …, but people were following the investigation and they knew that all the decisions … respect[ed] due process of law…. [T]here is no corrupt [official] who doesn’t say that [he] is a [victim of] political persecution… [but] if you have hard evidence and people are informed of how you are conducting your investigations, I think you can continue without the danger that people really believe that you are politically motivated in a case like this one.

Because I can’t escape my American parochialism, I couldn’t help but think about Mr. Ugaz’s remarks in the context of Special Counsel Robert Mueller’s ongoing investigation of possible collusion between the Trump campaign and Russia—in particular, a couple of pieces from a few weeks ago, both by experienced attorneys I know and respect, that offer sharply contrasting perspectives on Mr. Mueller’s investigation, and that both discuss the lines of communication (or lack thereof) between Mr. Mueller and the general public.

Duke Law Professor Sam Buell, himself a former prosecutor, described Mr. Mueller—favorably—as “a cipher and phantom,” one who “issues no statements, holds no press conferences, gives no interviews, pushes out no tweets.” Except for the bit about tweets (which I doubt Mr. Ugaz would have used even if they were available back in 2000), this sounds vastly different from the more open and transparent strategy that Mr. Ugaz said he pursued in order to maintain the credibility of his investigation into the Fujimori regime. Yet in Professor Buell’s view, Mr. Mueller’s refusal to make any public comments on his investigation—even as the public is aware, in general terms, that he is issuing subpoenas, compelling grand jury testimony, conducting searches, and interviewing witnesses—is part of what gives his investigation its power. “Merely to appear to be putting these tools to regular use,” Professor Buell explains, “even to leave his anxious audience wondering where and when he is using them, represents a singular counterpoint to public life in Trump’s ‘l’etat, c’est moi’ presidency.”

But is Mueller’s team really keeping information on the progress of its investigation so close to the vest? Justin Dillon, an experienced white-collar defense lawyer (and a law school classmate of mine), charges—with some justification—that the Mueller investigation is in fact “leaking like a sieve.” Moreover, Mr. Dillon notes, pretty much everything that is leaking (possibly, though perhaps not necessarily, from people on Mueller’s team) is damaging to the targets of the investigations. Mr. Dillon is no fan of Trump—indeed, he was one of the most courageous and outspoken NeverTrumpers at the Republican National Convention—and his caustic commentary on the leaks is not motivated by any desire to protect the President and his associates. Rather, Mr. Dillon warns that these leaks will “undermine the integrity of the investigation” and might provoke at least some people who are “on the fence about whether Trump or his associates did anything illegal” to see the constant string of leaks to media outlets with an anti-Trump reputation as “evidence that this is just a liberal conspiracy against him.”

While I’m not entirely convinced by Mr. Dillon’s bracing polemic, I’m grateful for it, not least because it adds yet another layer of complexity to the question of how a prosecutor investigating high-level wrongdoing should communicate about the progress of the investigation to the public. Would it be better for Mr. Mueller to adopt a strategy more like the one Mr. Ugaz followed in the Fujimori investigation—announcing news about things like the early-morning search of Trump associate Paul Manafort’s home through a press conference, rather than a leak? Would it be better to eliminate the leaks entirely, so that the general public learns virtually nothing about the Mueller investigation unless and until indictments are handed down? Assuming that these leaks are indeed coming from Mueller, is it hypocritical and counterproductive for Mueller to maintain the “buttoned-down demeanor” and no-comment posture that Professor Buell describes, even while permitting a steady stream of leaks? Or is this actually the best of both worlds—getting information about the progress of the investigation into the public domain, while at the same time helping to preserve the impression, even if it partly a fiction, of a legal process that is distinct and separate from politics?

There’s probably no one right answer to these sorts of questions, one that would be true for all countries at all times. Perhaps in Peru, given the country’s particular circumstances in the early 2000s, it made sense for the Ad Hoc State Attorney (basically the equivalent to a special prosecutor) to hold regular press conferences, but in the United States in 2017, it doesn’t. Maybe in some cases, it’s best for a prosecutor investigating high-level wrongdoing to keep everything about the investigation completely confidential, but in other cases it’s better—from the perspective of political realism—to get some information about the investigation into general circulation, possibly via formal press conferences, possibly via authorized leaks.

As I said at the outset of this post, this is an issue for which I don’t have any really good answers, or even tentative speculations. I know that’s an unsatisfying way to end a post, but I hope that raising these contrasts provokes some reflection—and perhaps some responses or further discussion—about this question. After all, I suspect it’s an issue that pretty much every anticorruption commission, special prosecutor, or similar body must confront at one point or another.

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