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When Prosecutors Fight (with Each Other)

By Gregory J. Wallance

The rise in white-collar prosecutions has been accompanied by an escalation of fights between prosecutors. In 2003, the Oklahoma Attorney General indicted WorldCom and its CEO, Bernard J. Ebbers, even though WorldCom was based in Mississippi, had filed for bankruptcy, and the Department of Justice (DOJ) had already indicted and secured the cooperation of several WorldCom executives as part of its ongoing investigation of Ebbers. Plainly angry, the U.S. Attorney for the Southern District expressed his 'disappointment' that 'we were not told that charges were imminent as we have enjoyed a cooperative relationship with the Attorneys General of other states.' This year, the U.S. Attorney for New Jersey declined to prosecute a prominent political party broker in a bribery investigation ' and blamed the State Attorney General's Office's investigation for having botched the case. In a leaked letter, the U.S. Attorney complained that a 'federal indictment is not appropriate now, in part because the state investigation was materially hampered by poor oversight, inexplicable strategic decisions and a failure to fully develop potential evidence.'

The inevitable tension, if not enmity, that arises when multiple prosecutors chase the same target presents potential opportunities for the white-collar defense counsel. True, the client's perspective might be similar to that of a prey stalked by hungry carnivores. But his or her counsel should carefully assess whether a client's case can, in fact, be advanced by exploiting a law enforcement turf battle.

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