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When Can an AUSA Lie?

There’s a fascinating case unfolding in Georgia. According to Law.com (reprinting an article from the Fulton County Daily Reporter), United States District Judge Clay Land learned that a prosecutor from the United States Attorney’s Office in the Middle District of Georgia lied to a defense attorney. The defense attorney asked if the prosecutor was recording their conversations. The prosecutor says he wasn’t. As it happened, that was a lie.

Judge Land said, “I’m shocked. . . . There’s got to be some policy about when a U.S. Attorney can lie.” I’m also a little surprised that there’s apparently no policy on when a U.S. Attorney can lie too.

Though that isn’t the problem I have with the case described in this article.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Prosecutors were investigating the defense lawyer because they think he went “from being an advocate to being a participant” in a alleged drug ring he was representing. It is, of course, illegal for anyone, including a lawyer, to facilitate the distribution of illegal drugs.

To investigate this, the U.S. Attorney’s Office wired up an AUSA and sent him off to meet with the defense lawyer. And, as anyone who has ever seen a movie involving a confidential informant knows, the first question the person being investigated asks is, “are you wearing a wire.” And the response is always something like “no.” (I suspect the lawyer in this case did not ask if the AUSA was a cop).

The AUSA lied during the course of an investigation. I don’t know that I have a problem with that, beyond the general problem anyone has with lying in the investigation of criminal activity.

What is more troubling is that the lawyer who was being investigated had a docket of active cases representing clients charged by the same U.S. Attorney’s Office. Can you imagine what his credibility with that U.S. Attorney’s office must have been? How did his clients do having him as a lawyer?

I can appreciate that the government needs to investigate a criminal defense lawyer from time to time. But every client that lawyer represented during the investigation likely suffered as a result. What the article leaves open is what the U.S. Attorney’s office did to minimize that damage.

Or how they’re going to pay for all the 2255 petitions that will be filed by the lawyer’s former clients.