Why the D.C. Attorney General Should Have Recused Himself From The Gregory Case

We have discussed the District of Columbia’s decision not to prosecute David Gregory for violating its gun law. In doing so, we mentioned that the decision was made by District of Columbia Attorney General Irvin Nathan, who turns out to be a social acquaintance of Gregory and his wife.

William Jacobson at Legal Insurrection first reported this connection (to my knowledge). Now, he considers whether Nathan should have recused himself from involvement in the decision whether to prosecute Gregory. Jacobson writes:

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 [in which the interaction occurred] came out.

Jacobson has never been a prosecutor, so he reached out to my friend Bill Otis, a career federal prosecutor, for his opinion. Here is Bill’s take:

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.

Bill believes, however, that Nathan reached the correct decision in not prosecuting Gregory. This is a topic for another post.

Bill does not assert any violation of legal ethics by Nathan, only that it would have been better for him to avoid any appearance of partiality by recusing himself. For the reasons Bill states, I think it would have been much better for Nathan to have recused himself, and find it quite disappointing that he did not.

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