Earlier this week, NBC News obtained an FBI report giving Angelina Jolie’s account of the details of an alleged 2016 altercation between Jolie and Brad Pitt on their private jet. After an investigation, the government declined to file charges against Pitt.
A recently closed lawsuit against the FBI had named a “Jane Doe” as a petitioner for the release of FBI documents. The details of what is being sought are unclear, but the summary of events in the original Freedom of Information filing, reviewed by NBC News before it was sealed, is similar to what was described in the FBI report obtained by NBC. An attorney for Jane Doe said in April she was unable to comment on her client’s identity, although the attorney noted that her client “searched for such records for years but was held back and had to resort to legal action to obtain the necessary information.” receive documents. reports.”
There’s a good reason why in all but the most egregious cases, the Department of Justice and local law enforcement shouldn’t face legal challenges over decisions not to sue.
While obviously not much is known about this document request, it points to a common misconception among those who are frustrated when our justice system does not take the steps we want – that citizens, just as they are free to file civil lawsuits, so are the authorities. can compel to initiate criminal actions; or that they can at least guide the authorities in bringing prosecutions.
“Filing Complaint” has the general meaning, reinforced by the Merriam-Webster dictionary, of a victim who initiates a criminal case against an offender. It is true that a victim’s cooperation is sometimes necessary to have a viable case. But ‘pressing’ charges doesn’t mean they have to go to court; That’s what prosecutors and grand juries are for. It means providing your account to law enforcement officers and expressing your willingness to testify in front of a grand jury and in court. The reality is that the FBI and local police, although funded by taxpayers, do not report to them.
The Department of Justice, the FBI and dozens of other federal and local agencies are charged every day with alleged wrongful arrests and malicious prosecutions. At the same time, attorneys for Fortune 500 companies routinely advocate for authorities to walk away from cases and announce the closure of their investigations.
It is much less common to take legal action against authorities that refuse to take criminal actions. (To be clear, the “Jane Doe” FOIA lawsuit isn’t one such action; it just looks for documents that could provide more clarity about the decision not to sue anyone in that case.) Why? Partly because it is established case law that citizens do not have a say in who is prosecuted.
If the Supreme Court noticed in 1973, in “U.S. jurisprudence … an individual has no judicially discernible interest in the prosecution or non-prosecution of another.” Of course, ‘legally demonstrable interest’ does not mean that victims are not interested in whether their perpetrator is being prosecuted; it means that in our society law enforcement is the only party responsible for making that decision. Courts across the country are repeating a variation of the line that prosecutors have a broad and virtually unreviewable discretion in their decisions to initiate cases.
“In our system”, the Supreme Court explained of the prosecution’s position a few years later, “the decision of whether or not to prosecute, and which charges to bring or bring before a grand jury, is generally in our sole discretion.” Prosecutors must have a “probable reason” for considering taking action, but the Justice Manual (which guides federal prosecutors across the country) reminds us that this standard is only a “threshold consideration” and “does not automatically justify prosecution”.
Ultimately, prosecutors must believe they can prove the case beyond a reasonable doubt — a burden that goes far beyond just probable cause. In addition, when determining whether to file a case, federal prosecutors must weigh other considerations separately, including not just the “interest of any victimsbut also factors that have nothing to do with victims, such as the deterrent effect of a conviction and federal law enforcement priorities. Often the difference between prosecuting a case or closing it is simply a matter of means. The Department of Justice cannot prosecute more than a small fraction of potential suspects, even if the vast majority of them have committed a federal crime. It must choose and choose.
Law-seekers sometimes complain that law enforcement officers fail to prosecute, but most of the time they do in vain. This may seem very wrong to the victims. But there’s a good reason why in all but the most egregious cases, the Department of Justice and local law enforcement shouldn’t face legal challenges over decisions not to prosecute, which would distract them from their mission and unnecessary disclosure of potentially sensitive information.
We want witness witnesses to tell the truth without fear of the consequences of a victim learning that the witness’ statement damages their case. We do not want the government to unnecessarily reveal its investigative techniques or endanger the privacy of sources. We don’t want the police to waste their time preparing reports to every potential victim about their reasons for not bringing charges. And we certainly don’t want to turn the FBI into an army of private investigators.
There are some limits. As the Supreme Court has made TransparentSelectivity in criminal law enforcement is, of course, subject to constitutional restrictions. crimes against victims of color, the prosecutor and the public prosecutor can end up on the losing side of a civil lawsuit.
In some exceptional cases, the public interest deserves an explanation of the decision not to press charges, but it is important that such discretion is left to the authorities. The Justice Manual generally unfavorable disclosure related to investigations, unless it is “necessary to comply with” [Justice Department] official duties.” Exactly what that means is determined by whoever directs a particular US Attorney’s Office, or, for higher profile cases, the entire department.
Looking at the recent history of such disclosures will give you an idea of the threshold. When the government decided not to press charges following the death of Eric Garner during his arrest by New York police, the US attorney whose office was investigating the case, Richard Donoghue, pronunciation who guided the public through the law, the evidence and the decision.
In some exceptional cases, the public interest deserves an explanation of the decision not to press charges, but it is important that such discretion is left to the authorities.
“While the Department does not normally talk publicly about a decision not to press charges, we felt that this matter is an exception because it means so much to our community and beyond,” noted Donoghue. “We hope that by announcing and explaining our decision today, we can bring some measure of closure to one of the more disturbing incidents in this city involving the police and a member of the community.”
More infamous was former FBI Director James Comey’s decision toupdateabout the FBI’s investigation into Hillary Clinton’s use of her personal email system when she was Secretary of State — just months before the presidential election. He noted that the decision to pursue the case rested with the Justice Department, but thought it prudent to still express the FBI’s nuanced view: “While there is evidence of potential violations [of federal offenses] … no reasonable prosecutor would bring such a case.” On the other hand, Loretta E. Lynch, who was Attorney General at the time, turned down to give many details about her reasoning for not prosecuting Clinton.
Whatever you think of these examples, they are the exception and have been driven by intense public scrutiny because the alleged offenders worked in law enforcement or held public office, not pressure from private individuals.
As Jolie has shown, victims are not helpless. As in the case of the families of OJ Simpson victims, they can file civil lawsuits; they can try to get at least some information from the government by submitting FOIA requests; they can work with defense counsel to package their evidence in a palatable way for a prosecutor so the prosecutor doesn’t want to dismiss the case; and the Crime Victims’ Rights Act requires, inter alia, that they be informed and heard during public proceedings. But that’s where their rights end, as it should be.