At the time I wrote the post David Gregory and wife knew D.C. Attorney General, I deliberately avoided the question of whether D.C. Attorney General Irvin Nathan should have recused himself from involvement in the decision whether to prosecute Gregory.

Whether this connection meant Nathan had to recuse himself is not a conclusion that people need to jump to.

What’s important is that the connection reinforces public perception, as Emily Miller put it, of one law for “the rich and powerful and one for everyone else.”

As I thought about it some more, I reached the conclusion that the issue of recusal mattered.  We don’t know the extent of the interaction between Nathan and David Gregory and his wife, but we do know of at least one event when Nathan and Gregory’s wife, with Gregory in attendance, shared a stage.

If I were in that position, having interacted socially with the subject of the potential prosecution and his wife, even if only once, I would have felt uncomfortable as to whether I could make a truly impartial decision whether to prosecute.  Even if I felt I could, I would have worried how it would be perceived by the public if a photo of the event like this one came out:

Beth Wilkinson and Irv Nathan

Never having been a prosecutor, though, I thought it made sense to reach out to people with expertise in prosecutorial ethics and the use of prosecutorial discretion.

I reached out to two academics and a former federal prosecutor.  I have heard back from that former prosecutor, William G. Otis (more on his background here).  If I hear back from the academics, I’ll print their responses as well.

I deliberately asked an open-ended question, hoping not to skew the result.  Here is the question:

Would you be interested in writing either a guest post (500-800 words, or longer if you choose), or if not, a shorter statement, about the factors to be taken into consideration as to whether a prosecutor should recuse him/herself when a prosecutor is acquainted with the subject and/or his family? The issue specifically is that the D.C. Attorney General was acquainted with David Gregory and his wife, as detailed in my post David Gregory and wife knew D.C. Attorney General. While the level of acquaintance is not known, it is documentable that they knew each other. You would not have to take a position on that specific instance, although if the known facts enabled you to do so, that would be good.

Here was response from Mr. Otis to that question.  Please note that Mr. Otis does not assert any violation of legal ethics, only that it would have been better for Nathan to avoid any appearance of partiality given the controversial and politicized nature of the crime and the potential target of prosecution (emphasis mine):

Hi Prof. Jacobson,

I do have a few thoughts on it, which I shall set forth now. Feel free either to just post them inside a post of your own, or to turn it into a guest post.

In my view, a prosecutor should refrain from making a prosecute-or-not decision involving any potential defendant the prosecutor knows socially. Except where the acquaintanceship is so slight that no reasonable person could question the prosecutor’s impartiality, the prosecutor should recuse himself.

In the case of Mr. Nathan, what I would have done is ask someone from the US Attorney’s Office to come in as a Special Assistant to the DC Attorney General and make the decision.

The reason for this is that, even where the degree of acquaintance, and thus the likelihood of partiality, is low, the appearance of partiality is what needs to be avoided. This was especially true in the David Gregory case, for two reasons.

First, Gregory and Nathan are in the Georgetown cocktail party set, which the public already suspects of a great deal of mutual backscratching, a schmoozing process not available to your ordinary Joe waiting tables in Arlington.

Second, the potential case here was already a flash point. Many, especially on the conservative side, think that a non-prosecution decision reflects a double standard. They suspect that if some NRA-type had done the same thing on, say, Fox News, in an appearance designed to oppose, rather than promote, gun control, the NRA-type would in short order have found himself on the wrong end of an indictment.

That seems to me to be speculation, but I can see the conservatives’ point. The fact of the matter is that Gregory did violate the law, so the decision whether to prosecute was discretionary. Discretion by definition is exercised against the backdrop of the prevailing attitudes in the prosecutor’s jurisdiction, and the prevailing attitude in DC favors those speaking up for gun control and disfavors, as troglodytes or worse, those holding the opposing view. The decision not to prosecute also seems particularly suspect in view of the fact, reported in some circles, that Gregory or NBC or both had been warned that showing the ammo clip, even if empty, would indeed be a crime.

Thus, and predictably, the non-prosecution decision has an unfortunate aroma. This could have been avoided, or at least largely avoided, by bringing in an experienced prosecutor from outside Nathan’s Office who did not know Gregory.

P.S. In my judgment, the non-prosecution decision was correct. I always thought that, in exercising the awesome power a prosecutor wields, the first thing he needs to decide is whether he’s dealing with a criminal. Gregory did violate the statute, but no normal person would think of him as a criminal; his behavior was not bad faith or venal, or undertaken for some corrupt or bad motive. It is for similar reasons that, although I was considered a hardliner as an Assistant US Attorney, I wrote an op-ed in the Washington Post suggesting a commutation of Scooter Libby’s sentence. Like Gregory, Libby is someone no normal person could think of as a “criminal.”

Thanks for giving me the opportunity to toss in my two cents. If I can answer other questions, please don’t hesitate.

The need to avoid even the appearance of partiality makes sense, as the reaction to my post about the connection demonstrates.

I’m not sure I agree with the “P.S.” part of the answer, that the decision not to prosecute was correct.  (My question actually did not address the correctness of the decision.)  Given the reputation of the office for aggressive prosecution of gun law cases even against people without a criminal record and without any intent to commit some other crime, the public perception of the fair administration of the law is important as well.

I asked Otis about this in a subsequent email, and he responded, in part:

So I guess my answer to your question is that there should be consistency to the extent possible, but deciding specifically what that extent is, exactly, requires discretion. I understand how unsatisfactory that answer sounds, but if someone who has actually had to process thousands of cases, all with different defendants, fact patterns and circumstances, has a better one, I am very eager to hear it.

To me what is most troubling is not that Gregory was not prosecuted, it’s that the average person likely would not have been treated the same way.  That isn’t an issue of recusal, but it is what the controversy is all about.

As I stated regarding the prosecution of Aaron Swartz, who committed suicide, by the U.S. Attorney’s office in Boston:

What the people who mock our mockery of the handling of the Gregory case don’t get is that we didn’t want David Gregory prosecuted, we wanted an end to the arbitrary and capricious use of byzantine gun laws which capture innocent people in their web, but are not enforced as to the powerful and connected.  Perhaps if the people who advocated for those and even more onerous laws had to live by them, we might end the madness.