SPEAKER_00 0:00

Welcome to Cited Authorities. I'm your host, Alexander Powell. Today I'm honored to have with me Rod Rosenstein. Rod is a partner at Baker McKenzie and co-chair of its national security practice. He previously served as Deputy Attorney General of the United States, U.S. Attorney for Maryland, and principal deputy assistant attorney general for the tax division. Rod, welcome decided authorities. Well thank you, Alex. I'm very pleased to be here with you. Rod, before the the senior titles, you tried many cases, many jury trials for the government. Can you take us to one case or one situation as a prosecutor in those early days that changed or especially shaped how you understood the role of a prosecutor and prosecutorial discretion?

SPEAKER_01 1:00

You know, Alex, I started uh in an entry-level job in the Justice Department back in 1990. It was a year after I graduated law school, I completed a clerkship. And at age 24, 25, really, I was sworn in as a federal prosecutor, uh, with law school education, but not a lot of background and making those discretionary judgments about when to bring charges. And that was one of the more important things I learned early in my career. Uh, and nothing you do in law school really prepares you for that. I know you have the same experience in uh in your roles and assistant state attorney in Maryland. Uh you know, you're thrust into a position at a relatively junior young age. That's true in most prosecutors' offices, that a lot of these decisions are made, at least initially, by junior lawyers, uh, where you need to make a decision about whether or not to bring charges. It's particularly acute in the federal system because uh state prosecutors' offices are the office of first resort. Federal prosecutors' offices are the offices of last resort, and they can be selective about what cases they bring. So, you know, merely making the threshold determination if somebody's conduct amounts to a federal crime is just the start of the analysis. It's not the end. And in fact, under the principles of federal prosecution, we have rules that have been in place in the Justice Department since the late 1970s that set out really a protocol that you go through for evaluating. Once you determine that the case is sufficient as a matter of evidence, that is, you could uh you believe you would have a reasonable prospect of a jury convicting the defendant uh with a conviction that would be sustainable on appeal. You then need to make the evaluation about whether or not you personally believe the case merits prosecution by evaluating a variety of factors concerning how it fits with federal prosecution priorities, comparing the case to other cases on which federal prosecutors could spend their time, what impact it's likely to have in terms of deterrence, what the potential sentence might be. You consider the personal circumstances of the defendant, the punitive defendant, the relative culpability. And so there are a whole array of issues that you consider. And I learned that to get back to your question for early in my career because my first job at the Justice Department with the public integrity section of the department, which is no longer in existence, but uh one of the key roles of that section of the Justice Department was to take, uh evaluate cases that had potential political significance and make sure that prosecutors were fully vetting them before bringing charges. And so we needed to be very careful that if we brought a case against, particularly against a prominent politician, that we had a reasonably high degree of confidence in our ability to get the conviction and that we considered all the potential implications if we were to bring the case. It was an effort to make sure we would bring only the strongest cases against people in politically sensitive positions. So that's a lesson that I learned early in my career. We we had these meetings, we referred to them as indictment review meetings, where we gather senior prosecutors around the table to discuss the facts and the likely defense theories and possible appellate issues that might arise in the case. And we were actually required to write detailed memos, what we called prosecution memos, setting forth the pros and cons about a potential prosecution. So that really taught me early on in my career a disciplined way to go about making these decisions and to ensure that we were taking into consideration all those discretionary factors that we rely on prosecutors to consider.

SPEAKER_00 4:34

For the lay person, what might they misunderstand about the day-to-day job of a prosecutor, especially within a role so consequential as prosecuting politicians, the public integrity unit?

SPEAKER_01 4:50

Aaron Powell, I think that uh a very common misconception, and it's true not just of laypeople, but even of some lawyers, is the failure to recognize or to appreciate the difference between believing you have a prosecutable case and believing the case merits prosecution. That is, that you know, the the fact, as I said, that you believe the evidence is sufficient to obtain and sustain a conviction is not the end of the analysis. It's only the start. You need to have, in the federal system, uh you need to have good policy reasons for why you're going to bring that particular case. And you need to make sure that you're considering the right factors and not prohibited factors. For example, the person's political affiliation is not an appropriate consideration. Race, religion, all the prohibited factors that would be unconstitutional might amount to selective prosecution. You have to set those aside and just focus on things that are objective standards that uh you know that we we want our prosecutors to consider in making a determination about whether or not to go forward. But I think that is largely misunderstood. You'll you'll see often in the media and often politicians will say, you know, we think there's sufficient evidence, we think that person did it, they should charge him and take him to trial. And uh and as I say, that's the wrong approach. It's an approach that's often used in civil cases. You see civil lawyers, and I do some civil litigation myself, civil lawyers bring in cases where they think they have some prospect of success or where their client feels very strongly about, you know, whether it be a moral or or legal uh reason that they want to go forward with the case. Um, but as a prosecutor, you have an extra obligation to consider the public interest. Uh and I think most people, many people misunderstand that and think that you should pull the trigger and bring the case whenever you can.

SPEAKER_00 6:38

Aaron Powell I've seen it in your speaking and preparing for this episode, you have you have framed that discretion as moving from can I to must I to should I? And I I believe that's what you're getting at as well, is the role of a prosecutor in discretion. That last question, should I, does a lot of work.

SPEAKER_01 6:59

Yeah, and it's really critical. I mean, there's certain types of cases where you know the must becomes relevant. Now, a case involving, for example, a rape or a murder, you have a victim where you're confident that you have the right person, you're not going to exercise discretion in those cases. You're going to bring those cases. But when there are gray area cases or cases where a case where you're, if you're a federal prosecutor in particular, where the case could be brought by state or local prosecutors. And one of the relevant considerations in a Justice Department's internal manual actually is do we have an alternative to prosecution? And some of the areas where I spend a lot of my time in white-collar enforcement and tax, for example, uh, there's often an alternative civil remedy. In the IRS, for example, you can always pursue a civil case with interest and penalties. And under DOJ protocols, you're supposed to consider that. Now, it's not uh an automatic decision that if there is a civil alternative, you should use it, but it's a relevant consideration because in many run-of-the-mill cases where there aren't extenuating circumstances, those civil or administrative remedies might be an effective way to provide a punishment and a deterrent without the significant expense and risk of a trial or the need to send somebody to prison.

SPEAKER_00 8:15

Dovetailing with that answer, Rod, do you believe that criminal tax prosecution versus civil tax enforcement, that civil tax enforcement is especially equipped to accomplish those those tasks that you just mentioned, as opposed to pursuing criminal tax enforcement, which of course has a primary purpose of deterrence. In some cases.

SPEAKER_01 8:40

I mean, a tax case is particularly challenging for prosecutors because taxes are very complicated, and many people, perhaps even most people, make mistakes on their tax returns that are innocent mistakes in the sense that they really don't know or don't understand the significance of the tax laws. And so in order to be guilty of a criminal tax law, the government has to prove not just that you violated the law, but that you did so willfully that you actually knew that you had a legal obligation that you violated. In most criminal cases, we say uh ignorance of the law is no excuse. In tax law, it actually is an excuse. And more than just an excuse, it's the government's burden to overcome the presumption that the defendant didn't act willfully, that is, didn't know uh what the tax laws were that he or she was violating. Uh and so that's an area where I think civil enforcement is particularly appropriate in many cases. In addition to that, uh with tax enforcement, you're often dealing with first offenders, and a person's criminal history is relevant. Many of the people we prosecute in the federal system are repeat offenders who don't wind up with federal charges the first time they've committed a crime. Uh and so the the risk of recidivism is something we consider, uh, the degree of dangerousness, the ability to obtain restitution through a civil or administrative remedy. Uh and so there are some tax cases that deserve to be prosecuted where we need to send people to prison in order to establish an effective deterrent and and send a message. But uh but in many uh cases, for for most violations, uh a civil penalty is probably a reasonable and appropriate violation for a first offender.

SPEAKER_00 10:22

Rod switching gears, when we first met and corresponded, I told you that I kept Justice Jackson's uh Justice Robert Jackson is writing the federal prosecutor pinned in my office in Annapolis when I was an assistant state's attorney. You said that you rarely gave a speech as deputy attorney general without quoting the federal prosecutor by Justice Jackson. Jackson described the prosecutor who tempers zeal with kindness and approaches the job with humility. You've uh supervised many prosecutors during your career. How can you tell when zeal might have the tendency to overtake judgment for a young prosecutor?

SPEAKER_01 11:12

Now that's critically important for a prosecutor, uh particularly in in the gray area crimes, right? For white-collar crimes, where it really all turns on intent, and and you can't always with any degree of certainty know what somebody's intent was. It's a question of their state of mind. Um that it that started out really unintentionally. I quoted Jackson a lot, and it reached the point where uh about halfway through my tenure as deputy AG, my stab would joke about the fact that they had an obligation to put a Robert Jackson quote in every draft speech they prepared for me. Uh and and it is, you know, I don't know that I was familiar with Jackson when I first started prosecuting, but pretty early in my career I came across uh that it's a speech, actually, and you quoted an excerpt from it, Robert Jackson. Jackson is best known for his tenure as a Supreme Court justice and for his unusual service as a prosecutor in Nuremberg. He actually left the Supreme Court temporarily, took leave to go over and prosecute the Nazis uh uh in Nuremberg, but he was very briefly really in 1940 and 41. He was attorney general of the United States. Um and his career is really remarkable. Jackson was the last attorney general who didn't have a formal uh legal degree. Uh and he he rose through the Roosevelt administration through a series of jobs, including head of the tax division, where he was in these jobs very briefly and excelled and was promoted up the chain. During his relatively brief tenure as attorney general, he gave this speech from which you quoted it was April 1st of 1940. Uh, and it's become uh uh very well known by federal prosecutors and judges. Um the title that's been given to the speech is The Role of the Federal Prosecutor. And then Jackson spoke about the tensions um for prosecutors who are pressured to bring cases and have an ethical obligation to consider all those discretionary factors that you pointed to and avoid being uh uh influenced by political considerations or by um passing popular will to prosecute uh uh minorities. The issue at that particular time, that period in time, uh uh the concern was that uh anti-war protesters and potential Nazi sympathizers or communist seventh hours at the in the United States uh were being targeted for prosecution. And Jatson went on to make sure that the government was being sensitive to uh to make sure that they weren't being unfairly prosecuted. He also was dealing with another issue that arose in my time, and that is the tension between the headquarters components of the Justice Department, the Attorney General and the team in Washington versus the U.S. attorneys in the field and who should be making those decisions about whether or not uh there ought to be uniformity around the country in areas like tax enforcement. And it's all captured in that uh speech, which you know it's it's just a few pages, it's really worth a read, uh, and includes quotations like the one that you read about the critical role, importance of uh of uh prosecutors exercising discretion and judgment and humility. And I think that's critical, Alex, not just for prosecutors, but really for all lawyers. And I've seen this um on both sides, really, uh, as a defense lawyer and a prosecutor, where uh lawyers will interview a couple of witnesses, look at the documents, and feel like they knew what happened. Uh, I see prosecutors make this mistake sometimes when they uh return an indictment, for example, hold a press conference and speak definitively as if they know what happened and their witnesses are telling the truth. And as you know from having been a prosecutor, um if you weren't there, you just don't know what happened. You're relying on hearsaying, you're relying on somebody else's credibility and recollection. And as a prosecutor, you really ought always need to exercise humility and recognize that uh that they might be wrong or your interpretation might be wrong. And because our obligation as a prosecutor is to the truth, not just to the cause, you know, the the the the not just to our client prevailing uh in court, but our client's interest prevailing in the end. We have a responsibility to recognize that uh we always need to be second guessing ourselves. And what what I used to say in my speeches was that it's critical for lawyers to ask, what if we're wrong? When you're charging in a battle or when you're going into the courtroom, you have to have some degree of confidence. You know, there's some um self-assurance that's really required to be an effective advocate in court. You have to speak with confidence and convey confidence to the judge and jury. But you also have to have the ability to step back and talk with your team, recognize the potential weaknesses in the case, and be prepared to reconsider if the facts turn out to be not as you intended them to be. And I've seen that in my experience now, six years as a defense attorney. You know, there might be an email, for example, that looks really incriminating on its face, but after you talk to the defense witnesses, you understand that what they had in mind isn't really what's reflected in the page. And sometimes the interpretation, the spin that uh a prosecutor puts on the document might be mistaken. And so it's really critical to keep that sense of humility and uh uh appreciation that uh you don't have certain knowledge about what happened. You only know what the witnesses are alleging, what the evidence appears to show, uh and you need to calibrate your remarks. Uh and so if and when you get a conviction, you get a a jury of the defendant's peers to determine beyond a reasonable doubt they committed a crime, well then you can say with some confidence that they committed the crime. And prior to that, it's just an allegation, and we need to be open to the possibility that it could be mistaken.

SPEAKER_00 16:59

Such a critical reminder, Rod, for our listeners who may be prosecutors about the immense control over not just liberty but reputation that prosecutors have, as you mentioned, and as Justice Jackson mentioned as well. Um I'm watching on the History Channel right now. There's a great special on World War II uh narrated by Tom Hanks, and it's just fantastic. I highly recommend it. I hope that towards the end they will discuss Justice Jackson's role at Nuremberg because it's just unbelievable what what happened.

SPEAKER_01 17:34

That point that you made Alex about reputation is important too, because one of the issues that that I dealt with during my tenure as Deputy Attorney General in the Justice Department now is dealing with uh is the impact on people just of being being known to be targeted or suspected of criminal wrongdoing. I was I was trying to be careful as a prosecutor uh to avoid commenting publicly on our investigations, because opening an investigation doesn't mean that somebody's guilty of a crime. Uh and you know, you can really tar somebody by making it known publicly, uh, just that you're investigating them. That's something that Jackson mentioned in his his speech that he uh he appreciated the tremendous value, uh the tremendous significance attached to the statements of a federal prostitute. You know, people view you as the representative of the United States, and so if you make allegations, even if it's not in a formal indictment, it could be in uh a public statement, it could be in a press release or in a search warrant application. Any assertions that you make uh that uh uh cast negative light on somebody or disparage them are gonna be taken by some segment of the American public as an indication that the U.S. government has adverse information about that person. So uh it's really critical to be sensitive to that and try to avoid uh commenting in a way that's gonna cast doubt on somebody's character or reputation, unless or until uh you're prepared to bring a case and then ultimately to prove it in court.

SPEAKER_00 19:06

Rod, switching gears, you recently described the 2026 DOJ Tax Division alumni reunion as bittersweet and emphasized the division's role in fair and uniform tax enforcement. What institutional habits are most important to preserve now within the tax section?

SPEAKER_01 19:31

I was the head of the criminal side of the tax division back in the Bush administration, 2001 to 2005. And there are two goals that are served by having that function in the Justice Department, and the division has been eliminated.