What’s wrong with ancillary charges?

Isn’t the cover-up as bad as the crime?
Aren’t the people who give the orders as guilty as those who carry them out?

The sentiment has been expressed — not just by the invariably-wrong Richard Cohen but by the usually-right Kevin Drum — that only substantive charges such as espionage or an IIPA violation — as opposed to perjury, false statements, obstruction, or conspiracy — would constitute “real” charges worth of the Special Prosecutor’s effort, and that ancillary charges in the Plame affair would represent undesirable prosecutorial overstretch.

That seems to me to elide two crucial distinctions. I’m not comfortable when someone who has not committed any actual crime but who is panicked by the investigative process into making a false statement about his or her own behavior — Martha Stewart, for example — is then prosecuted for that false statement. Yes, it’s naughty to lie to the FBI, but I’m not sure people in that circumstance should face criminal sanctions for it. (As recently as 25 years ago, the Justice Department had a policy against proseucting what was called “a simple exculpatory ‘no’, ” as opposed to making up a bunch of lies.)

On the other hand, sometimes a substantive crime cannot be proved precisely because the criminal managed to shred the evidence. In such cases, the prosecution on the ancillary charge substitutes for prosecution on the charge-in-chief. (That’s often the case for people prosecuted for “recordkeeping violations”: they failed to keep the records that would have proven their substantive offenses.)

That’s a very different matter from prosecuting a factually innocent person, and I see nothing wrong with it.

Similarly, if a witness lies to cover up someone else’s wrongdoing, it seems to me entirely appropriate for that person to go to jail. The crime is helping someone else get away with it. Again, if there was no crime there in the first place, I’d be reluctant to bring such a charge, though the law allows it.

Finally, as to “conspiracy”: that’s not a vague catch-all charge. It’s always conspiracy to do something specifically illegal: to violate some substantive statute, or to “defraud the United States.”

Say, to pick an example not at random, Dick Cheney said to Karl Rove, “Go after Wilson. Tell Judy Miller about his wife’s job at the Company.” And say that Karl Rove then went out and did that. Note that Cheney wouldn’t be guilty of an substantive crime, in the sense that he would not himself have revealed anything to anyone not entitled to know it. (Rove presumably had all the appropriate clearnances.) But he could be charged with conspiracy.

And what’s wrong with that? Under my hypothetical, he agreed to a scheme to commit a crime, and left the actual execution up to others. The same is true about the cover-up attempt; those who ordered it were just as guilty as those who carried it out, but they can be charged only with conspiracy.

I predict “substantive” as well as “ancillary” charges. I’d be very surprised if Fitzgerald settled for a “Martha Stewart.” But let’s not create a false standard under which “conspiracy” is somehow not a real crime, or in which the lying that goes into cover-up isn’t a crime worthy of prosecution.

Footnote It’s obvious, reading Cohen’s story, that he feels Fitzgerald has committed Contempt of Press by failing to leak the way Ken Starr leaked. It’s not a prosecutor’s job to feed stories to lazy reporters. It’s a prosecutor’s job to put bad guys in jail, or alternatively to figure out that no provable crime was submitted and no-bill it.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com