Earlier this week, NBC News obtained an FBI report that gave Angelina Jolie’s account of the details of an alleged 2016 altercation between Jolie and Brad Pitt on their private plane. Following an investigation, the government declined to file charges against Pitt.
A recently sealed Freedom of Information Act lawsuit filed against the FBI had listed a “Jane Doe” as seeking the release of FBI documents. The details of what is being sought are unclear, but the summary of events contained in the original Freedom of Information filing, reviewed by NBC News before it was sealed, are similar to what was detailed in the FBI report obtained by NBC. An attorney for Jane Doe said in April that she couldn’t comment on the identity of her client, though the lawyer did note her client was “seeking such records for years but has been stonewalled and has had to resort to court action to receive needed records.”
There is good reason why in all but the most egregious cases, the Justice Department and local law enforcement shouldn’t be facing legal challenges over decisions not to prosecute.
While much is clearly not known about this document request, it highlights a common misconception among those frustrated when our justice system doesn’t take the steps they desire — that citizens, just as they are free to file civil lawsuits, can also make the authorities initiate criminal actions; or that, at the very least, they can guide authorities into opening prosecutions.
“Pressing charges” has the common meaning, reinforced by the Merriam-Webster dictionary, of a victim bringing a criminal case against an offender. It’s true that a victim’s cooperation is at times necessary to have a viable case. But “pressing” charges doesn’t mean filing them in court; that’s what prosecutors and grand juries are for. It means providing your account to law enforcement and signaling your willingness to testify before a grand jury and in court. The reality is that the FBI and local police departments, though funded by taxpayers, do not report to them.
The Justice Department, FBI and dozens of other federal and local agencies are sued every day for 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’s much less common to take legal steps against authorities for declining to initiate criminal actions. (To be clear, the “Jane Doe” FOIA lawsuit is not such an action; it merely seeks documents that could offer more clarity about the decision not to charge anyone in that case.) Why? In part because it is settled law that citizens do not get a say in who is prosecuted.
As the Supreme Court observed in 1973, in “American jurisprudence ... a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Of course “judicially cognizable interest” doesn’t mean victims aren’t interested in whether their offender is prosecuted; it means that in our society, law enforcement is the sole party responsible for making that determination. Courts around the country repeat a variation of the line that prosecutors enjoy broad and virtually unreviewable discretion in their decisions to initiate cases.
“In our system,” the Supreme Court explained of the position of the prosecutor a few years later, “the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Prosecutors must have “probable cause” to consider taking up an action, but the Justice Manual (which guides federal prosecutors around the country) reminds us that this standard is only a “threshold consideration” and “does not automatically warrant prosecution.”
Ultimately, prosecutors must believe they can prove the case beyond a reasonable doubt — a burden that far exceeds mere probable cause. Additionally, in determining whether to bring a case, federal prosecutors must separately weigh other considerations that include not only the “interest of any victims” but also factors that have nothing to do with victims, like the deterrent effect of a conviction and federal law enforcement priorities. Often the difference between pursuing a case or shutting it down is simply a matter of resources. The Justice Department cannot prosecute more than a small fraction of potential defendants, even if the vast majority of them have committed a federal offense. It has to pick and choose.
Litigants do occasionally complain about law enforcement’s failure to bring prosecutions — but they usually do so in vain. This may seem deeply wrong to victims. But there is good reason why in all but the most egregious cases, the Justice Department and local law enforcement shouldn’t be facing legal challenges over decisions not to prosecute, which would distract them from their mission and require needless disclosure of potentially sensitive information.
We want witnesses to tell agents the truth without fear of consequences from a victim who learns that the witness’s statement hurt their case. We don’t want the government to needlessly reveal its investigative techniques or compromise the privacy of sources. We don’t want police to spend their time producing reports to every potential victim on their rationale for not pursuing charges. And we certainly don’t want to turn the FBI into an army of private investigators.
There are some bounds. As the Supreme Court has made clear, “Selectivity in the enforcement of criminal law is, of course, subject to constitutional constraints.” That means that if, say, a prosecutor decided to start exercising discretion based on race, refraining from pursuing perpetrators of crimes against victims of color, the prosecutor and the prosecutor's office could rightly find themselves on the losing side of a civil lawsuit.
Public interest in some exceptional cases does merit an explanation about the decision not to pursue charges, but it’s important that such discretion is left up to the authorities. The Justice Manual generally disfavors public disclosure related to investigations unless it is “necessary to fulfill [Justice Department] official duties.” What exactly that means is determined by whoever is in charge of a particular U.S. Attorney’s Office, or, for higher profile cases, the entire department.
Looking at the recent history of such disclosures gives you some idea of the threshold. When the government decided not to bring charges following the death of Eric Garner during his arrest by the New York Police Department, the U.S. attorney whose office investigated the matter, Richard Donoghue, issued a statement that walked the public through the law, the evidence and the decision.
Public interest in some exceptional cases does merit an explanation about the decision not to pursue charges, but it’s important that such discretion is left up to the authorities.
“While the Department does not normally publicly discuss a decision not to bring charges, we felt that this matter is an exception because it means so much to our community and beyond,” Donoghue noted. “We hope that by announcing and explaining our decision today, we can bring some measure of closure to one of this city’s more upsetting incidents involving the police and a member of the community.”
More infamous was former FBI Director James Comey’s decision to provide an “update” about the FBI’s investigation into Hillary Clinton’s use of her personal email system when she was secretary of state — just months before presidential elections. He noted that the decision whether to pursue the case rested with the Justice Department but thought it prudent to nonetheless express the FBI’s nuanced view that “Although 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, declined to provide much detail about her reasoning for not prosecuting Clinton.
Whatever you think of these examples, they are the exception, and were powered by intense public scrutiny because the alleged offenders were in law enforcement or held public office, not by pressure from private citizens.
As Jolie has demonstrated, victims aren’t helpless. As in the case of O.J. Simpson’s victims’ families, they can file civil lawsuits; they can try to get at least some information from the government by filing FOIA requests; they can work with counsel to package their evidence in an appetizing way for a prosecutor, so that the prosecutor will not want to turn the case down; and the Crime Victims’ Rights Act requires, among other things, that they be notified and heard at public proceedings. But that’s where their rights end, as they should.