the prosecuter's playbook by Jim Mokhiber


Jim Mokhiber provided reporting and research for "Secrets of an Independent Counsel."

Like all prosecutors, an independent counsel can call on a number of techniques and strategies to win indictments and cooperation. A list of some of those techniques follows. Defense lawyers often play their part in the drama by pointing to such methods as examples of prosecutorial excess.

"Squeezing and flipping" -- The prosecutor's classic method of targeting underlings and insiders, securing their cooperation and then "moving up the chain" to the investigation's primary target. Little fish are often traded for big fish, and not the other way around.

Charging lesser offenses (a.k.a. "The Al Capone-on-Tax-Evasion Strategy") -- Prosecuting officials for an offense that is easier to prove than the primary allegations. A popular example: charging targets with false statements on financial disclosures, security clearance forms, or even mortgage applications.

Multiplying minor charges -- Adding minor but related counts to an indictment to increase pressure on a target. Example: an official's allegedly corrupt telephone conversations or fax transmissions are treated as "wire fraud" violations.

Identifying adversaries -- Searching for whistleblowers and others willing to offer information about a target. Informants may be located using records from prior court cases or employment complaints.

"Driving a wedge" -- A hardball variant of the squeeze-and-flip, in which a son, wife or other family member is threatened with indictment to win guilty pleas or cooperation from a target.

Building subpoena pressure -- Bringing numerous witnesses before a grand jury to breed uncertainty about who is and is not cooperating with government prosecutors, and thus encouraging all to talk.

"Collateral Consequences" -- Reminding potential witnesses and others that corruption convictions can impact all aspects of one's private and professional life, including government pensions and professional licenses.

For more information on these techniques and common defenses employed against them, see the 1988 Department of Justice manual entitled Prosecution of Public Corruption Cases.

 


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