To no one’s surprise, District of Columbia attorney general Irving Nathan announced that he will not be prosecuting NBC’s “Meet the Press” host David Gregory for a clear, intentional and unequivocal violation of a D.C. law on national television. In so doing, Nathan sent the District, the nation and the public a package of unethical and damaging messages, perhaps the least significant of which is that the District of Columbia’s chief lawyer is just as ethically flawed as the rest of its government.
In his letter to Gregory’s attorney, which you can read in its entirety here, Nathan said:
- “The device in the host’s possession on that broadcast was a magazine capable of holding up to 30 rounds of ammunition. The host also possessed and displayed another ammunition magazine capable of holding five to ten rounds of ammunition…It is unlawful under D.C. Code Section 7-2506.01(b) for any person while in the District of Columbia to “possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm” or loaded. Under the Subsection, the term “large capacity ammunition feeding device” means a “magazine, belt, drum, feed strip or similar device that has the capacity of, or that can be readily restored or converted to accept more than ten rounds of ammunition.” Under D.C. Code Section 7-2507.06, any person convicted of a violation of this Subsection may be imprisoned for not more than one year, fined not more than $1,000.”
- “The larger of the two ammunition feeding devices in question here meets the definition under the statute. OAG has responsibility for prosecuting such offenses and takes that responsibility very seriously.”
- ” OAG has determined to exercise its prosecutorial discretion to decline to bring criminal charges against Mr. Gregory, who has no criminal record, or any other NBC employee based on the events associated with the December 23, 2012 broadcast. OAG has made this determination, despite the clarity of the violation of this important law, because under all of the circumstances here a prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust.”
- “Influencing our judgment in this case, among other things, is our recognition that the intent of the temporary possession and short display of the magazine was to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States,especially while this subject was foremost in the minds of the public following the previously mentioned events in Connecticut and the President’s speech to the nation about them.”
- “There were, however, other legal means available to demonstrate the point and to pursue this line of questioning with the guest that were suggested to NBC and that could have and should have been pursued.”
- “No specific intent is required for this violation, and ignorance of the law or even confusion about it is no defense. We therefore did not rely in making our judgment on the feeble and unsatisfactory efforts that NBC made to determine whether or not it was lawful to possess, display and broadcast this large capacity magazine as a means of fostering the public policy debate. Although there appears to have been some misinformation provided initially, NBC was clearly and timely advised by an MPD employee that its plans to exhibit on the broadcast a high capacity-magazine would violate D.C. law, and there was no contrary advice from any federal official. While you argue that some NBC employees subjectively felt uncertain as to whether its planned actions were lawful or not, we do not believe such uncertainty was justified and we note that NBC has now acknowledged that its interpretation of the information it received was incorrect.”
The rationale by which Nathan says he decided not to prosecute is of dubious consistency with the ethics guidelines governing prosecutorial discretion as determined by the National District Attorney Association. These are the factors it lists that might justify non-prosecution. Let’s look at them in the case of what Gregory did, and what Nathan’s decision means:
a. Doubt about the accused’s guilt; Nope. There is no doubt, as the letter specifies.
b. Insufficiency of admissible evidence. The crime was committed on national TV.
c. The negative impact of a prosecution on a victim. No.
d. The availability of adequate civil remedies. Inapplicable.
e. The availability of suitable diversion and rehabilitative programs. Not a problem.
f. Provisions for restitution. Not relevant.
g. Likelihood of prosecution by another criminal justice authority. No.
h. Whether non-prosecution would assist in achieving other legitimate goals, such as the investigation or prosecution of more serious offenses. Absolutely not.
i. The charging decisions made for similarly-situated defendants. Well, it depends. Similarly situated, as in “media bog shots who think the laws don’t apply to them,” or similarly situated as in “he broke the law because he wanted to do something and didn’t care whether it was illegal or not”? D.C. prosecutes the latter. The former? Not so much.
j. The attitude and mental status of the accused. This argues FOR prosecution.
k. Undue hardship that would be caused to the accused by the prosecution. Please.
l. A history of non-enforcement of the applicable law. To the contrary, D.C. aggressively prosecutes this law.
m. Failure of law enforcement to perform necessary duties or investigations. Not an issue.
n. The expressed desire of an accused to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, or the prosecutor and his personnel, where such desire is expressed after having the opportunity to obtain advice of counsel and is knowing and voluntary. Not a factor.
o. Whether the alleged crime represents a substantial departure from the accused’s history of living a law-abiding life. Yes, this applies, but this is usually taken into consideration in sentencing, not prosecution.
p. Whether the accused has already suffered substantial loss in connection with the alleged crime. Not an issue.
q. Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction. More about “the extent of the harm” below.
I don’t see any category encompassing an intent to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States. Do you? Essentially what this excuse means is that journalists, especially celebrity journalists like Gregory, are permitted to break the law whenever it suits them, or perhaps when the prosecutor agrees with their objectives.nation about them.”
This is a terrible and damaging message to send the public, one that embraces elitism, rejects equal treatment under the law, and that vastly increases widespread cynicism and suspicion that there are two sets of law–one for the rich, famous and powerful and the other for everyone else. Law Professor Ann Althouse wrote, noting that Nathan calls the law “important”:
“Why is the law important? If Gregory clearly violated the law, but there is no interest to be served in prosecuting him, doesn’t that prove that the law is not important? If the precise thing that he did — which is clearly what is defined as a crime — raises no interest in prosecution, how can we be satisfied by letting this one nice famous man go? Rewrite the law so that it only covers the activity that the government believes deserves prosecution, so there is equal justice under the law.
Exactly. And this is why the one justification for not charging Gregory on the NDAA list, q. Whether the size of the loss or the extent of the harm caused by the alleged crime is too small to warrant a criminal sanction, doesn’t support Nathan’s decision. If what Gregory did is too small to warrant punishment, then the law shouldn’t be on the books at all. Meanwhile, the harm of not prosecuting a high-profile violator because he had good intentions validates all manner of crimes. Yet the elite in the media, academia, politics and other professions really believe they should be immune.
Take the case of Aaron Swartz, for example. The Reddit co-founder just killed himself, in part, it is believed because of depression brought on by his prosecution for extensive computer hacking. In a disturbing essay, Timothy Lee argues that despite the fact that Swartz hacked into an MIT computer to steal (Lee, incredibly, says “liberate”—the Sixties live!) articles from a for-pay service, he shouldn’t have been prosecuted. Why? Because he was an innovator! Because he was an idealist! Because he had “a sense of humor!”
Because he had what Lee thinks was a good reason to steal academic papers and to hack a computer to get them, just as Irving Nathan thinks that promoting gun control justifies flagrantly breaking gun laws.
The message this sends to everyone who isn’t rich, famous, influential and brilliant could not be more disheartening, or more un-American. Gregory and Swartz broke laws and among the reasons, along with their “good intentions,” was the arrogant belief that they were so special and privileged that laws shouldn’t apply to them.
That alone demands prosecution.
[Ethics Alarms 2012 ethics blogger of the year Rick Jones expounded sharply on the Swartz prosecution here.]