If
you
were
looking
for
a
case
study
in
how
not
to
run
a
criminal
investigation,
congratulations:
the
Trump-era
Department
of
Justice
has
prepared
one
for
you,
complete
with
a
grand
jury
no-bill
and
prosecutors
who
apparently
could
not
identify
a
single
statute
their
targets
allegedly
violated.
The
effort
to
jail
six
Democratic
lawmakers
for
producing
a
video
advising
military
members
not
to
follow
illegal
orders
(a
position
that
is,
notably,
not
controversial
among
people
who
have
read
the
Uniform
Code
of
Military
Justice)
has
now
collapsed
in
humiliating
fashion.
A
grand
jury
handed
Jeanine
Pirro
a
no-bill
so
emphatic
it
didn’t
even
produce
a
single
vote
to
indict.
That’s…
not
a
close
call.
And
thanks
to
new
reporting
from
The
New
Republic,
we
now
know
the
lawyering
behind
this
embarrassment
was
even
worse
than
it
looked
from
the
outside.
During
the
investigation,
prosecutors
reached
out
to
counsel
for
the
lawmakers
as
part
of
follow-up
inquiries
—
a
normal
enough
step.
But
when
prosecutors
contacted
Elissa
Slotkin’s
attorney,
famed
former
federal
prosecutor
Preet
Bharara,
something
went
very
wrong,
very
quickly.
According
to
sources,
Bharara
asked
what
should
be
the
most
basic
question
in
any
criminal
case:
what
law
did
my
client
allegedly
break?
Silence.
“What
is
the
theory
of
criminal
liability?”
is
the
question
that
was
posed
to
the
prosecutors,
one
source
said,
adding
that
“no
answer
was
forthcoming.”
So
defense
lawyers
weren’t
shocked
that
Pirro
couldn’t
secure
an
indictment….
they
were
shocked
the
DOJ
tried
to
get
one
at
all.
Prosecutors
couldn’t
point
defense
lawyers
to
a
specific
statute,
yet
they
still
marched
into
a
grand
jury
room
and
asked
citizens
to
indict
members
of
Congress
anyway.
To
date,
it
has
still
not
been
definitively
confirmed
what
statute
the
government
relied
on
in
that
failed
effort.
Identifying
a
specific
law
that
someone
allegedly
broke
is
not
some
fussy
technicality
as
much
as
the
foundational
requirement
of
a
criminal
prosecution.
That
attorneys
in
Pirro’s
office
were
caught
flat-footed
on
this
point
speaks
volumes,
and
not
flattering
ones.
Bharara
memorialized
the
encounter
in
a
letter
to
Pirro
earlier
this
month,
writing,
“The
prosecutors
we
spoke
to
in
your
office,
though
courteous,
could
not
articulate
any
theory
of
possible
criminal
liability
or
any
statute
that
they
were
relying
on
or
that
could
have
been
violated.”
That
the
DOJ
barreled
forward
anyway
gives
this
the
unmistakable
sheen
of
a
political
witch
hunt
rather
than
anything
resembling
the
pursuit
of
justice.
The
optics
don’t
improve
when
you
zoom
out.
Pirro
reportedly
staffed
the
case
with
two
outside
prosecutors
with
slim
if
any
federal
experience,
one
of
whom
was
running
an
active
dance
photography
studio
at
the
same
time!
Everyone
deserves
a
career
change,
but
this
is
not
the
résumé
you
expect
behind
the
prosecution
of
sitting
members
of
Congress.
As
law
professor
Stephen
Vladeck
put
it,
“It
seems
at
least
to
suggest
that
the
prosecutors
were
not
the
ones
calling
the
shots,
and
that
what
they
thought
they
were
doing
got
run
over
by
their
bosses.
DOJ’s
credibility
depends
on
public
faith
that
prosecutions
are
brought
when
the
law
justifies
it,
not
when
the
political
leadership
of
the
administration
demands
it.”
That
credibility
is
now
in
tatters.
A
DOJ
that
can’t
identify
a
statute,
can’t
persuade
a
single
grand
juror,
and
can’t
explain
why
it
pressed
forward
anyway
can’t
call
itself
law
enforcement
as
opposed
to
performative
politics
set
at
the
courthouse.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].