Elie Honig is a former federal and state prosecutor. He is a CNN Senior Legal Analyst, bestselling author, Emmy nominee, true crime podcast host of Up Against the Mob and Third Degree, weekly columnist, and college lecturer at Rutgers University.
Below, Elie shares 5 key insights from his new book, Untouchable: How Powerful People Get Away with It. Listen to the audio version—read by Elie himself—in the Next Big Idea App.
1. Prosecutors: some fear, and a bit of favor.
People ask me if it was scary to take on murderous Mafia bosses. Truthfully, no. In a sense, it was easy. As the prosecutor, you’re the good guy, the hero, Captain America. But what is scary: going after a powerful politician, CEO, or celebrity who will battle you every millimeter of the way, claim he’s been falsely accused, and do a public relations tour to discredit your entire case, and maybe you personally.
Prosecutors love reminding the world that we do our jobs “without fear or favor.” But we do approach certain subjects with more trepidation than others. Exhibit A: the Justice Manual, Department of Justice’s (DOJ’s) formal written guidance to all federal prosecutors. The manual specifically requires higher levels of internal review and approval before charges can be filed against powerful or prominent people, or in cases likely to result in wide media coverage.
For example, I had a case in which a famous major league baseball player was caught up in a gambling ring with some gangsters. An ordinary gambling case never would have risen above my fairly low level. But because this case involved a celebrity, we had to send it up the chain of command to the head of the office’s criminal division for review. We ultimately decided not to charge the ballplayer, but rather use him as a witness against the gangsters.
“The bar is higher for prosecutors to charge rich people, powerful people, and celebrities than to charge ordinary folks.”
It’s perfectly reasonable and appropriate for prosecutors to give extra scrutiny to high-profile cases. Failure in one headline case can undermine public confidence in the prosecutor’s office and the criminal justice system in a way that can’t be offset by years of good work on routine matters. But it also inevitably leads to this outcome: the bar is higher for prosecutors to charge rich people, powerful people, and celebrities than to charge ordinary folks.
2. Nothing protects power like power itself.
Picture the barbeque scene in the movie Goodfellas: an enforcer comes over to the boss, Paulie Cicero, and whispers something in his ear. Paulie gives a silent nod, and the crew springs into action. As Ray Liotta’s character says in narration, “For a guy who moved all day long, Paulie didn’t talk to six people.” That scene is entirely consistent with how real-world criminal leaders do business—at least the smart ones. To quote a real-life mobster as he put it while unwittingly being recorded by an informant in one of my cases, “If you step on a cockroach, you gonna tell the whole world about it?”
Tactics designed to insulate the boss are by no means restricted to the mafia. Criminal powerhouses across industries recognize that it would be foolish to talk to more people than necessary. When they do talk, savvy kingpins make their intent known by creeping right up to the line of explicit criminality, while leaving just enough wiggle room to deny responsibility. Bosses leave the dirty work to the underlings, and then blame them when things go bad. For example, CEOs at financial titans from Enron to HealthSouth to WorldCom have offered variations of the so-called “idiot defense”: How was I to know what my employees were doing?
Even if prosecutors manage to flip one player in the criminal chain, that person might not have had direct contact with the boss. In one case of mine, an Illinois state trooper made a traffic stop on a swerving SUV and found two hundred kilos of cocaine (worth about $5 million) in the trunk, destined for New York. We flipped the driver, and then used his information to nab his immediate supplier and the mid-level players who were supposed to receive his delivery. But none of them cooperated, and the case hit a dead end. Those kilos belonged to somebody, much higher up the chain, who stood to make the most money—but we never could figure out who.
3. Juries: only human after all.
While the numbers vary by jurisdiction, juries return guilty verdicts more often than not. But it can be particularly difficult to convince a jury to convict a famous or powerful person; remember that a conviction requires unanimity, and a lone holdout means a mistrial.
We tend to think of the jury as some monolithic soothsayer, but in fact it’s just twelve strangers thrown together by chance—ordinary people trying to render a verdict and get on with their lives. Judges tell jurors to put aside personal beliefs and feelings in order to decide the case based on a cold assessment of the facts and the law. But that instruction is a well-intentioned artifice.
“We tend to think of the jury as some monolithic soothsayer, but in fact it’s just twelve strangers thrown together by chance.”
Wide-lens studies have shown that, even in routine criminal cases, jurors commonly experience fear and anxiety. I saw countless potential jurors try bailing out of cases involving mobsters or other violent criminals, claiming that they’d be too afraid to return guilty verdicts. Juror fear can be particularly acute where the accused is famous and the case garners media attention. “Jurors are usually sufficiently attuned to their environment to realize when the situation warrants extra scrutiny,” one study concluded.
Sure, judges tell juries not to read any press about high-profile trials. But that direction is hopelessly out of step with human nature. Curiosity is a powerful pull and it has become all but impossible to avoid media coverage in the age of social media. If a juror fears retribution—either directly from a defendant, or in the form of wide public condemnation—then it can swing the outcome of a case involving a boldface name.
4. The Supreme Court: “tawdry” and “distasteful”—but perfectly legal.
In 2014, a federal jury convicted former Virginia governor Bob McDonnell and his wife for taking over $175,000 worth of gifts—including an engraved Rolex and a $19,000 shopping spree in New York City—from the owner of a shady company that made nutritional supplements. In exchange, the governor and his wife ordered state health officials to meet with the company’s owner, tried getting public universities to conduct studies to legitimize the supplements, and used the governor’s mansion to host promotional events for the company.
A federal court of appeals upheld the convictions. But in 2016, the U.S. Supreme Court unanimously threw out the guilty verdicts. The Court ruled that while the McDonnells’ conduct was “tawdry” and “distasteful,” it was not illegal. So long as McDonnell did not take some more formal step in exchange for gifts (like casting a vote or vetoing legislation) he was in the clear. The Court’s opinion united conservative with liberal, Justices Clarence Thomas and Samuel Alito with Ruth Bader Ginsburg and Stephen Breyer, in a kumbaya quest to water down the nation’s federal corruption laws.
“In the six-plus years since the McDonnell decision, no [high profile politician] has been successfully prosecuted under the narrowed-down federal corruption law.”
The fallout from the decision was swift, leading to the collapse of other corruption cases against elected officials in New York, New Jersey, Pennsylvania, and Louisiana. In the six-plus years since the McDonnell decision, no US representative, US senator, federal cabinet secretary, or other senior executive branch official, federal judge, or state governor has been successfully prosecuted under the narrowed-down federal corruption law. Zero. A frustrated veteran corruption prosecutor put it to me this way: “Now, unless we catch a guy on videotape accepting a cash-filled envelope marked ‘Bribe Money for Votes,’ there’s just no way to charge anyone.”
5. One man, above the law.
In a nation of laws, one person stands above and beyond: the very official charged with executing those laws, the president of the United States.
It’s commonly said that the Justice Department can’t indict a sitting president, but that’s not quite right. Rather, in 1973 the Justice Department adopted an internal memo declaring that it shouldn’t even try to indict the president. The memo grapples less with pure constitutional analysis (does the law permit indictment of a sitting president?) than with practical concerns (how would our government function if the president was indicted?).
The Justice Department’s no-indictment memo is neither exclusive nor conclusive. DOJ has at times taken the position that a sitting president can be indicted. For example, in a 1974 Supreme Court brief (filed after DOJ adopted the aforementioned memo) Watergate prosecutors argued that “it is an open and substantial question whether an incumbent President is subject to indictment.” The truth is, we simply don’t know. The Constitution itself is silent on the issue, Congress has never weighed in, and no prosecutor has ever put it to the test in court.
Much of our collective hesitation springs from a prevailing sense that it doesn’t feel American to slap handcuffs on a president. Only other countries lock up their fallen leaders. But in fact, plenty of stable, developed democracies have brought criminal charges against former presidents or prime ministers and they’ve survived just fine. Since 2000, France, Israel, Italy, South Korea, South Africa, and Iceland have criminally charged their own democratically-elected former leaders, without devolving into chaos or civil war.
We like to believe the axiom “Nobody is above the law,” but we ought to add a qualifier: “except the president.” No person is as insulated from the criminal justice process as the occupant of the Oval Office, and there is no close second place.
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