An FBI report that detailed Angelina Jolie’s account of an alleged incident between Jolie and Brad Pitt in 2016 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 case brought against the FBI, asking for the disclosure of FBI records. The specifics of what is being requested are unclear, but the timeline of events provided in the initial Freedom of Information file, which NBC News reviewed before it was sealed, is consistent with the information provided in the FBI report that NBC was able to receive. In April, a lawyer for Jane Doe stated that she was unable to comment on her client’s identity, but added that the person had been trying to obtain the data for years but had encountered resistance and had to take legal action to do so.
Despite the fact that there is clearly much that is unknown about this document request, it serves as a reminder of a common misconception held by those who become frustrated when our justice system fails to act as they would like — namely, that citizens, in the same way that they are free to file civil lawsuits, also have the power to force authorities to take criminal action, or, at the very least, to influence authorities to begin investigations and prosecutions.
According to Merriam-Webster, the term “pressing charges” refers to a victim filing a criminal complaint against her abuser. It’s true that sometimes a victim’s participation is required to establish a strong case. However, “pressing” charges does not necessarily entail submitting them in court; prosecutors and grand juries do that. 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 organisations. 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. (The “Jane Doe” FOIA complaint, to be clear, is not such a case; it just asks for information that might shed additional light on the decision to not press charges in that instance.) Why? Citizens have no influence in who is prosecuted, in part because it is established law.
In American jurisprudence, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another, the Supreme Court noted in 1973. It goes without saying that victims care whether their criminal is brought to justice; rather, “judicially cognizable interest” simply means that in our society, 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.
A few years later, the Supreme Court outlined the prosecutor’s role in our legal system, stating that “in our system, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests solely in his discretion.” The Justice Manual, which serves as a resource for federal prosecutors around the nation, reminds us that while prosecutors must have “probable cause,” this requirement “does not inevitably warrant prosecution.”
Prosecutors must ultimately feel they can establish their case beyond a reasonable doubt, which is a much higher standard than merely having probable cause. Federal prosecutors must also separately consider additional criteria when deciding whether to file a case, such as the “interest of any victims,” as well as non-victim-related aspects like the deterrent power 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 offence, the Justice Department cannot prosecute more than a small portion of them. It must be selective.
Sometimes litigants do express dissatisfaction with the lack of criminal prosecutions by law enforcement, but this is usually 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 was detrimental to her case and taking action. We don’t want the government to jeopardise source privacy by unnecessarily disclosing its investigative methods. We don’t want cops 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 implementation of criminal law is, of course, subject to constitutional limits,” the Supreme Court has stated clearly. This implies that a prosecutor may legitimately find herself and her office on the wrong side of a civil action if, for example, she decided to begin using her discretion based on race and stop prosecuting those who commit crimes against victims of colour.
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. The Justice Manual usually opposes making investigation-related information public unless it is “required to carry out [Justice Department] official duties.” Whoever is in charge of a certain U.S. Attorney’s 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 government chose not to press charges. Richard Donoghue, the U.S. Attorney whose office looked into the case, released a statement outlining the law, the facts, and the decision.
Donoghue said, “While the Department does not typically make decisions on whether or not to file charges public, we thought that this matter is an exception since it means so much to our community and beyond. “We believe that by making our judgement public today, we may at least partially put an end to one of the more distressing situations involving the police and a member of the community in this city.”
More notoriously, just months before the presidential election, former FBI Director James Comey made the choice to give a “update” on the FBI’s inquiry into Hillary Clinton’s use of her personal email system while she was secretary of state. He made clear that the Justice Department was in charge of deciding whether to proceed with the case, but he felt it was still wise to convey the FBI’s nuanced position that “Although there is evidence of potential violations [of federal offences]… no reasonable prosecutor would bring such a case.” On the other hand, Loretta E. Lynch, the attorney general at the time, refrained from going into great detail about why she chose 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 aren’t helpless. The Crime Victims’ Rights Act mandates, among other things, that they be informed of and heard at public proceedings. As in the case of O.J. Simpson’s victims’ families, they can also file civil lawsuits, try to get at least some information from the government by filing FOIA requests, work with counsel to package their evidence in an appetising way for a prosecutor so that she will not want to reject the case, and work with the media to publicise their case. However, as should be the case, their rights end there.