The old saying is that a decent prosecutor can get a grand jury to indict a ham sandwich.
I want to say I heard that phrase years before, but it is generally attributed to Sol Wachtler, the former chief judge of New York state, who in a 1985 interview with the New York Daily News observed that district attorneys had so much influence on grand juries they could "by and large" get them to indict someone's lunch. Tom Wolfe attributed the coinage to Wachtler in his 1987 novel Bonfire of the Vanities.
(Nearly 20 years later, Wachtler--who himself was indicted and sent to prison on extortion charges in 1993--told etymologist Barry Popik he wasn't exactly sure he specified "ham," and that he regretted he didn't say "pastrami sandwich.")
Wachtler understood that grand juries are supposed to serve as meaningful checks on over-zealous prosecutors, not as a compliant chorus. For while it's true that defendants are accorded extensive due process under our legal system--they are considered innocent and the state is tasked with proving their guilt beyond a reasonable doubt--just being charged with a crime is often enough to ruin one's life.
Justice is strained when prosecutors are allowed to charge and over-charge suspects without constraint. It is not difficult to conceive of situations where innocent or questionably culpable defendants might elect to accept the certainty of a plea deal rather than risk an expensive and disruptive trial they might lose anyway.
That said, federal prosecutors do not generally press cases they can't win. You do not want to be indicted on federal charges.
Because if it comes to that, you will almost certainly be convicted. In 2015, between guilty pleas and trials, 99.8 percent of federal defendants were convicted in 2015. Twenty federal judicial districts had a 100 percent conviction rate that year.
This isn't an anomaly, though conviction rates have been rising steadily since 1973. The federal conviction rate has been above 99 percent every year since 2003; above 98 percent since 1995. It's been above 95 percent since 1975. The feds do not mess around.
I'm not saying this is a great thing. Lots of factors go in to determining who gets charged with what, and I'm not sure justice is best served by prosecutors who proceed only when they seem to have slam-dunk cases. Plus the U.S. government has a lot more resources than most of us who have to find a way to pay our lawyers; it's not inconceivable that an innocent person would accept whatever deal a prosecutor offers rather than run the risk of being found guilty. If you suspect you are even a little bit guilty the smart play is to do what "insignificant" George Papadopoulos did and cut a deal.
On the other hand, if you do go to trial, you have about a 1-in-12 shot of being acquitted, which translates to a little more than 8 percent chance of acquittal. (So I'm saying there's a chance.)
We don't know what Robert Mueller and his team know (or think they know) at this point. But the 12-count indictment unsealed last week charging onetime Trump campaign chairman Paul Manafort and his former business partner Rick Gates with conspiracy to launder money, making false statements, and other charges in connection with their work advising a Russia-friendly political party in Ukraine looks like a power move. It certainly looks like Mueller and his team have a clear picture of where they want to go and that they're signaling the president's allies and associates that it can go one of two ways for them.
Either they can resist and face years in prison like Manafort and Gates, or they can cooperate like the nobody volunteer Papadopoulos and maybe salvage their lives. But you'd better hurry, because you don't know who's turned yet.
Were I Mueller, I'd be combing through every financial dealing of Jared Kushner and the Trump organization, simply because I can. Because I might turn up something that might give me leverage. I might find a lot of insignificant players who aren't willing to go to jail to protect their bully boss.
But Mueller--and the rest of us--need to be careful.
A cornered Trump will be truly dangerous; he isn't going to do anything, much less resign, for the good of the country. If he perceives that--after the health-care fiasco and amid growing doubts about the ability to pass tax reform legislation-- his only chance to retain the support of the spineless congressional Republicans who so far have abetted him is to get his poll numbers up, then he'll bomb someone--North Korea, Iran, Mexico, CNN--so he can hold a rally.
Because, as any serious person ought to acknowledge, he's a nihilist. Donald J. Trump doesn't care what happens to you or me or America. He might care a little what happens to immediate members of his family, and that's why I'll allow that there's a slight possibility that he won't make Mueller play out the endgame.
It seems more likely he'll go the diversionary route. He probably won't fire Mueller outright, but he'll try to kneecap the investigation. Which is why all the Hillary Clinton business is being brought up again.
Donald J. Trump has, by his own admission, always played it in a very loose, borderline reckless style. He's never taken social or business conventions, regulations or laws or anything other than the advancement of his own selfish interests very seriously. And while his own words, preserved in screen shots and video clips, might be enough to make an obstruction of justice case against him, he's a lot tougher than a ham sandwich.
pmartin@arkansasonline.com
www.blooddirtangels.com
Editorial on 11/05/2017