An FBI report that described Angelina Jolie and Brad Pitt’s alleged 2016 brawl on their private plane was obtained by NBC News earlier this week. After conducting an inquiry, the government decided not to indict Pitt.
A Jane Doe was described as the plaintiff in a recently closed Freedom of Information Act action brought against the FBI and asking for the disclosure of FBI records. The specifics of what is being sought are unclear, but the timeline of events provided in the initial Freedom of Information filing, which NBC News read before it was sealed, is consistent with the information provided in the FBI report that NBC was able to receive. In April, a representative for Jane Doe stated that she was unable to comment on the name of her client but did add that the client had been trying to obtain the data for years but had encountered resistance and had to take legal action to do so.
There are good reasons why the Justice Department and local law enforcement shouldn’t be subject to court challenges over decisions not to prosecute in all but the most egregious circumstances.
Even though there is obviously much that is unknown about this document request, it serves to highlight a common misconception among those who become frustrated when our justice system fails to act as they would like: that citizens, in the same way that they are free to file civil lawsuits, also have the power to force the government to take criminal action, or at the very least, to influence the government to begin investigations and prosecutions.
The common definition of “pressing charges” is “filing a criminal case against an offender,” which is supported by the Merriam-Webster dictionary. It’s true that, occasionally, a victim’s participation is required to establish a strong case. However, filing charges does not necessarily entail going to court; it is the job of prosecutors and grand juries. It entails giving police enforcement your story and indicating your readiness to testify in court and before a grand jury. Despite being supported by taxpayers, the FBI and local police forces do not answer to them.
Every day, lawsuits alleging erroneous arrests and malicious prosecutions are filed against the Justice Department, FBI, and several other federal, state, and municipal organizations. At the same time, lawyers for Fortune 500 businesses frequently urge law enforcement to drop cases and declare their investigations to be finished.
Legal action against authorities for foregoing taking criminal action is far less often. (To be clear, the FOIA complaint filed in the Jane Doe case is not one of them; it only asks for papers that might provide additional light on the decision to drop all charges in that instance.) Why? Citizens have no influence in who is prosecuted, in part because it is established law.
According to the Supreme Court observed in 1973, a private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another in American law. It goes without saying that victims care whether their criminal is brought to justice; it only means that in our culture, law enforcement is the only entity tasked with making that decision. The argument that prosecutors have vast and essentially unreviewable discretion in their decisions to bring cases is one that courts use often across the nation.
In our system, the prosecutor normally has complete discretion over whether or not to file charges and what charges to present to a grand jury. However, the Supreme Court explained of the position of the prosecutor a few years later. Probable cause is required for prosecutors to contemplate pursuing a case, but the Justice Manual, which serves as a resource for federal prosecutors across the nation, notes that this standard is merely a starting point and does not compel prosecution.
Prosecutors must ultimately feel certain that they can establish their case beyond a reasonable doubt, which is a much heavier burden than mere probable cause. Federal prosecutors must also separately assess additional criteria when deciding whether to file a case, including the interest of any victims as well as non-victim-related elements including the deterrence effect of a conviction and federal law enforcement priorities. Often, a lawsuit can be pursued or dismissed based only on available resources. Even though the great majority of potential defendants have committed a federal offense, the Justice Department cannot prosecute more than a small portion of them. It must be selective.
There are times when litigants do criticize law enforcement for failing to pursue charges, but they often do so in vain. Victims might feel terribly wrong about this. But there are good reasons why the Justice Department and local law enforcement shouldn’t be subject to legal challenges over decisions not to prosecute in all but the most egregious cases; doing so would interfere with their work and necessitate the needless disclosure of potentially sensitive information.
We want witnesses to tell agents the truth without worrying about the victim learning that the witness’ testimony damaged their case and taking action. We don’t want the government to jeopardize source privacy by unnecessarily disclosing its investigative methods. We don’t want the police to spend all of their time explaining to each potential victim why they decided not to press charges. Furthermore, we have no intention of converting the FBI into a force of private investigators.
There are several limitations. Selectivity in the application of criminal law is, of course, subject to constitutional restraints, as the Supreme Court stated in decision clear. As a result, the prosecutor and the prosecutor’s office might find itself on the wrong side of a civil case if, for example, a prosecutor started using racial discretion and stopped going after criminals who victimize people of color.
In some extraordinary circumstances, the public interest does call for an explanation of the decision not to press charges, but it’s crucial that the authorities retain this discretion. Justice Manual generally disfavors prohibits the release of information about investigations to the public unless it is required to carry out official obligations for the “Justice Department”. Whoever is in charge of a specific U.S. Attorneys Office, or, for situations with greater public interest, the entire department, decides exactly what that entails.
You can get a general understanding of the threshold by looking at the most recent history of such disclosures. Following Eric Garner’s passing while being arrested by the New York Police Department, the federal prosecutor whose office looked into the case, Richard Donoghue, released a report (statement) that explained the law, the evidence, and the government’s decision not to press charges.
In some extraordinary circumstances, the public interest does call for an explanation of the decision not to press charges, but it’s crucial that the authorities retain this discretion.
Despite the fact that the Department typically avoids doing so, Donoghue said, “we believed that this subject is an exception because it means so much to our community and beyond.” With today’s announcement and justification of our choice, we aim to put an end to one of the most distressing occurrences involving the police and a citizen in this city.
More infamously, just months before the presidential election, former FBI Director James Comey made the choice to give an Merriam-Webster dictionary0 regarding the FBI’s investigation of Hillary Clinton’s use of her personal email server while she was secretary of state. The FBI’s nuanced position that although there is evidence of possible violations “of federal charges,” no reasonable prosecutor would bring such a case was sensible to state, even if he highlighted that the Justice Department had the final say on whether to pursue the matter. Loretta E. Lynch, who was attorney general at the time, on the other hand, declined to go into great detail about why she decided not to charge Clinton.
Whatever your opinion of these incidents, they are the exception and were driven by strong public scrutiny because the alleged offenders held public office or were members of the law enforcement community, not by pressure from ordinary citizens.
The example of Jolie shows that victims are not helpless. They can file civil lawsuits, like the families of O.J. Simpson’s victims did, they can submit FOIA requests to the government in an attempt to obtain at least some information, they can work with attorneys to present their evidence to prosecutors in a way that makes them want to take the case, and the Merriam-Webster dictionary2 mandates, among other things, that they be informed of and heard at public proceedings. But as should be the case, that’s where their rights stop.