Discretion (27 page)

“Ah, Anna, glad I caught you,” Marty said, emerging from his office. He was a slim white man with a graying beard and intelligent brown eyes. The few hairs that remained in his male pattern baldness were cropped short. “Main Justice wants to see us about the Capitol murder case. We’ll take a cab. Jack’s already on his way.”

Her stomach performed a back handspring. She’d been nervous to be summoned by the acting U.S. Attorney—and he was being summoned by his bosses at the Department of Justice. The political appointees at DOJ usually limited themselves to setting budgets and policies, letting the U.S. Attorneys prosecute cases autonomously. There were only two reasons the politicals would call a local AUSA into the Main Justice Building—if she were receiving an award, or if something were going very wrong with her case. She knew she wasn’t getting an award.

The Department of
Justice occupied a full block on Pennsylvania Avenue, halfway between the Capitol and the White House. Built
during the Depression, it was a hulk of gray limestone decorated with geometric metal art deco accents and a handful of the requisite columns. Inscribed into a wall of limestone were the words: “The Place of Justice Is a Hallowed Place.”

Inside, the building seemed less a temple to justice than a poster child for post-9/11 security precautions. There was an ID check, then a line, then another ID check. Anna walked into a small glass compartment, and the doors closed her in with a swoosh. Machinery beeped and hissed around her while cheerful Muzak played through the speakers. She wondered if the music was supposed to ward off claustrophobia while visitors were scanned. She didn’t know what the security officers were learning from their bank of computers, but she imagined the machines were bomb-sniffing, metal-detecting, and imaging what her body looked like under her black pantsuit.

Finally, the glass doors slid open, and she stepped into the historic lobby. This part of the building felt more like a Hallowed Place, with its soaring ceiling and sober stone walls covered in murals illustrating the redemptive power of justice. Her favorite mural was
Contemporary Justice and Women
. It depicted Justice as a female figure with a sword, cutting the chains of tradition that held back a young woman; the freed woman then walked toward the light of her new position in the world. When Anna had come here for her credentials two years ago, she’d been inspired by the mural, imagining herself wielding the sword. Today she thought of her argument with Jack about marriage and touched her wrists on the spot where the painted chains had held the young woman. She realized what she was doing and stopped.

Jack was already there, waiting for them. He looked handsome and all-American in a navy suit, white shirt, and red tie. He nodded hello, appearing neither upset nor particularly happy to see her. He’d always had a good poker face. A file folder was clasped in his hand; it held Lionel’s motion to disqualify him from the case, his own response, and the case law backing him up. “In case the Director wants to tell me what a good job I’ve done,” Jack deadpanned.

The three of them went up two flights, then walked through hallways big enough to drive a fire truck through. At the suite of the
Executive Office for U.S. Attorneys, they were shown into the Director’s conference room. The room had coffered ceilings, a deep green carpet, and oak-paneled walls covered in oil paintings of EOUSA Directors going back to 1953. In the center of the room was a conference table long enough to seat forty people.

Two DOJ officials waited for them.

At the head of the table was EOUSA Director Tommy McIntyre, a trim and neatly dressed African-American man. McIntyre’s office oversaw all ninety-four U.S. Attorney’s Offices across the country. It was his job to supervise and coordinate the vast majority of federal criminal prosecutions. It was McIntyre who had chosen Marty Zinn as D.C.’s acting U.S. Attorney, to serve until the President nominated and the Senate confirmed a replacement. That meant McIntyre could remove Marty at any time. McIntyre’s beaming face was on all the e-mails and flyers that EOUSA periodically sent out to AUSAs throughout the country. He was not smiling now.

Seated next to McIntyre was Melissa Rohrbach, an Associate Deputy Attorney General and the longest-serving DOJ employee. She was legendary as the institutional memory and the conscience of the Department. The names “associate” and “deputy” in her title were misleadingly modest. She was the eyes and ears of the Deputy Attorney General, who oversaw every division of the Department of Justice, including the U.S. Attorney’s Offices, the FBI, and over a hundred thousand employees. Her presence meant that the case was being watched at the highest levels. Anna, Jack, and Marty sat down across from the DOJ officials.

“Thanks for coming down on short notice,” McIntyre said. “I hate to drag you away from your work. But with allegations this serious in a case this consequential, we have to make sure we’re dotting all our I’s and crossing our T’s.”

“Of course, Tommy,” Marty said. “It’s always a pleasure to see you, whatever the occasion.” Anna could tell from the obsequiousness that he was nervous.

“Tell me about this motion Congressman Lionel filed to take Jack and your office off the case. He sent me a letter asking me to reassign
the case even if the judge doesn’t. Now, I don’t know if there’s an actual conflict, but he suggests a real appearances problem. What are you thinking?”

Marty looked flustered. He was usually the chief of the Civil Division of the U.S. Attorney’s Office, a hardworking career government employee with no criminal law experience and no ambitions to move past his current post. Whenever there was a shift between U.S. Attorneys, he was happy to serve as the acting head of the office—not to change anything but to make sure the gears kept turning smoothly until the next U.S. Attorney was appointed. Jack, on the other hand, was often talked about as a potential U.S. Attorney. In that position, he would become Marty’s boss. Even as Homicide chief, Jack had more juice around the office than Marty did, regardless of who was the acting U.S. Attorney.

“I defer to Jack,” Marty said.

McIntyre looked to the Homicide chief.

“There’s no merit to Lionel’s claim,” Jack said, his voice deep and steady. “It’s become fashionable for defense attorneys to attack the prosecutors personally. We’ll continue to give this case our best work despite it.”

McIntyre nodded—everyone knew that the practice of criminal law had become less cordial. “But is it true that you have a personal relationship with Lionel’s opponent, Dylan Youngblood?”

“I know him. He was a year ahead of me at Georgetown Law. We served on some bar committees together when he was in private practice. We both work out at the Y across from the MLK Library, so we’re occasionally on the same court for a pickup basketball game. I gave two hundred dollars to his campaign.”

McIntyre looked troubled. “And he’s indicated that if he wins this election, he’ll recommend you as U.S. Attorney.”

“Look, he knows my work, and he knows my vision for the office. He was on the interviewing committee when I put in for it the last time around. But I don’t owe him anything. I would never slant a homicide investigation for any reason. It doesn’t make sense to take me off a difficult case just because my name has been floated
around. Anyway, whoever wins the election doesn’t get to pick the U.S. Attorney. He can make a recommendation, but it’s the President’s choice.”

Rohrbach had been listening quietly. She spoke up. “No one here doubts your integrity or skill, Jack. But you can see the problem with the public perception, right?”

Anna watched Jack’s face.
She
saw the problem, but she could tell that Jack rejected the suggestion that he would be anything less than perfectly ethical.

“No, I don’t see a problem,” he said.

Rohrbach turned to McIntyre. “Are any other offices prepared to handle this case if D.C. is recused?”

“Maryland could do it,” McIntyre said. “Rod’s got a great team of lawyers up there.”

“They’re not homicide prosecutors,” Jack countered. “They get some murders in their RICO cases, but my office investigates hundreds of homicides a year. I know the detectives to rely on and the ones to avoid. I know how to put a homicide case together and how to present it to a D.C. jury. This is what I do. That’s why Lionel wants to get rid of me.”

Jack’s Homicide section was unique. Most U.S. Attorney’s Offices had jurisdiction to prosecute only federal crimes, such as bank robberies, large-scale drug trafficking, or frauds that crossed state lines. The vast majority of street crimes, such as rape or homicide, were handled by state or local prosecutors. Because D.C. was a federal city, the federal prosecutors handled all the crimes. The combination of federal resources and Jack’s expertise with homicide cases was unmatched by any other prosecutor in America.

McIntyre turned to Anna. “You’ve been quiet. What do you think?”

Anna sat up, surprised to have the question posed to her so directly.

She thought Jack shouldn’t be prosecuting this case. She knew he was scrupulously honest and wouldn’t sacrifice the integrity of the case for his own personal gain. But someone who didn’t know Jack might not see that. An outside observer might think he would skew
the case to help his friend win the election. It was crucial not only that the justice system be fair but that it be perceived as fair in order for people to have confidence in the system. And the whole case could be overturned on appeal if a judge found that Jack shouldn’t have been at the helm.

Anna was also worried about Jack personally. However much he didn’t want to withdraw from the case, things could get much worse if he stayed on. Davenport would continue to file motions challenging his impartiality. If a judge ordered Jack to be recused for having a conflict of interest, DOJ would be obligated to launch an ethics inquiry about his handling of the case. If Jack weren’t recused and there was a trial, Davenport would try to distract the jury with arguments about the government’s bias—and Jack’s friendship with Youngblood would be Exhibit A. In the last big case Davenport tried, his client was acquitted, and the judge ordered an investigation of the prosecution team’s tactics. A few years later, that investigation of the prosecutors was still ongoing.

It would be better for Jack if he stepped off the case now. No one would think twice if the Homicide chief assigned the case to one of his seasoned prosecutors. Though Jack usually had excellent judgment, Anna suspected he was too close to the subject here. Certain of his own ethics, he couldn’t see how others might perceive a bias. He couldn’t see that he was going down a path that could destroy him.

“Jack’s a great lawyer,” Anna said, “who’s got a team of great lawyers working for him. I think it would be better to reassign the case to someone who isn’t friends with the Youngbloods.”

“I agree,” McIntyre said. “Jack, you’ve got to come off the case. We won’t make a big deal of it. Just file a line striking your appearance.”

Anna hadn’t expected her opinion to be the deciding factor. She looked at Jack, who was glaring at a spot in the middle of McIntyre’s tie. The muscle in Jack’s jaw throbbed. He was furious. She braced herself for the fight they would have after the meeting was over.

“But Melissa,” McIntyre continued, “do you think the entire D.C. office needs to be recused?”

Rohrbach shook her head. “Jack can be walled off. Whoever works on the case can report to someone else.”

Marty nodded in agreement. “Anna has her own supervisor, the head of the Sex Crimes section. We’ll assign another Homicide prosecutor who can report directly to me.”

“It’s a mistake to put the B team on this matter,” Jack said.

“Anna’s not the B team.” Marty laughed nervously. “And we’ve got a very deep bench in the Homicide section.”

“Good. Then that’s the plan.” McIntyre smiled at Jack. “You’ve done a great job on the case, and we thank you for that. Of course, we know you’ve got no actual conflict of interest. But we’ve got to think about how it looks to the outside. It’ll be better for everyone this way.”

McIntyre stood up. The meeting was over.

Jack shook McIntyre’s hand and walked out of the conference room. Marty stayed to make small talk with the DOJ officials. Anna excused herself and hurried down the hallway.

She quickly caught up to Jack and walked beside him in silence. They went down a curving flight of stairs, which deposited them in the center of the second floor in the Great Hall. At the front of the huge ceremonial room was the
Spirit of Justice,
a ten-foot-tall cast-aluminum statue of a woman whose bare breasts had provoked controversy for decades. Reporters made a sport of photographing the Attorney General announcing pornography prosecutions with the semi-nude
Spirit
in the background. The statue had been famously covered with a velvet modesty drape during John Ashcroft’s reign. Now she was uncovered again, her burnished breasts gleaming triumphantly.

“Jack.” Anna put a hand on his arm. “This is for the best.”

He stopped walking and pivoted toward her, removing his arm from her grasp. “It’s ridiculous, Anna. Davenport files a bullshit motion smearing me, and I just withdraw?”

“It looks like you’re taking the high road. If you stayed on the case, the attacks weren’t going to stop.”

“They’re
still
not gonna stop. You think Davenport’s gonna give you a pass? He’ll pull the same crap with you that he’s pulling with me. This just encourages him.”

“I’ll handle it.”

Their voices echoed off the cavernous stone walls of the Great Hall.

“I see.” Jack put his hands on his hips. “This works out perfectly for you, doesn’t it? You’ve got your big case. Now you can go ‘prove yourself.’”

“That’s not what this is about, and you know it. If you stayed on, it would have hurt the case. It would have hurt
you
in the end. I was trying to protect you.”

“By stabbing me in the back?” Jack’s green eyes glowed with anger. “You basically told them that even my teammates don’t believe in me.”