Moussaoui and the Government Litigator
posted by David Zaring
I don’t claim insight on the criminal laws involving terrorism. But terrorists prosecutions, as far as I can tell, tend to reveal that terrorists, or at least the ones who hope to attack America, don’t exactly operate like SPECTRE does in the movies. The massive government effort against them accordingly tends to look unbalanced, a major bureaucratic initiative against a tiny number of marginal outcasts who live in a twisted fantasyland. It’s Max Weber against a particularly vile Charles Bukowski novel.
This may be appropriate criminal law enforcement. But in the Moussaoui case, it has made for a very weird trial, where an unhinged defendant has been paired with a well-resourced and experienced team of defense lawyers. To push the analogy some more, it’s Weberian order against the half-crazy and half-slick. The trial only got weirder when a TSA lawyer helping out on the case got much of the government’s sentencing phase evidence suppressed by prepping a number of witnesses.
I do know something about civil litigation on behalf of the government, but criminal law must be very different. Here’s my takeaway on what the TSA lawyer did:
- she appears to have violated a court order relating to witness prep by emailing a transcript of the opening statement to witnesses, and by briefly summarizing the testimony of another government witness.
- having an agency lawyer advise agency witnesses on the government’s theory of the case and on what they should expect when they go in to testify in court is, as a general matter, essential to government litigation (unproblematically, in my view, this lawyer also theorized about the kinds of questions defense counsel would ask and suggested how to handle them). In fact, I can’t imagine any person going to testify in any civil case without checking with their in-house counsel in this way first. Others disagree.
- I’m surprised that the prosecutors the TSA lawyer was trying to help called her witness prep “reprehensible” and “unfathomable.” Those words will appear in every defense brief related to this issue.
- I recommend sympathy for the bureaucrat; this lawyer’s career is over, there’s talk of not just disbarment, but jail time, she’s been sold out by her co-counsel (and rather incompetently, might I add), the judge seems eager to make her a whipping boy, the case has been affected, and all of this is because she tried to keep her clients informed, through hardly unprecedented short cuts like emailing them all at once and attaching pleadings and other publicly available court documents. She was trying to do her job, but by God, she won’t get to do it any more.
It’s all made a circus even circusier. So here’s my final, larger point: no wonder the government doesn’t want to put the Guantanamo detainees through a similar sort of public process. I doubt that prosecutors and other law enforcement officials relish the prospect of hundreds of wild-eyed Moussaouis getting sophisticated defense teams and some form of public process – and creating hundreds of opportunities for prosecutorial mistakes along the way.