For targets who have never appeared in the pages of this paper, that means there is no news conference at the Department of Justice or letter to their lawyers to dispel the cloud of uncertainty and fear that accompanies the threat of prosecution. There is only silence. Many involved in perpetuating this purgatory — including the prosecutors themselves, as I know from my time as the United States attorney for the Southern District of New York — understand it serves no real purpose. Yet routine nondisclosure continues unquestioned.

It can, and should, stop.

When investigators conclude that there is insufficient evidence to support a charge or that justice would not be served in bringing one, the case ends. Common sense suggests that the next step would be to advise the persons under investigation that they are no longer targets. After all, that’s the truth, and everyone should be able to move on. Nevertheless, every day prosecutors choose to keep their erstwhile targets in the dark, and they tell no one outside of their office or the investigating agency that the case is dead.

Consider where that leaves the person being investigated. First as a prosecutor and now representing targeted people, I have seen lives upended by the suspicion of involvement in a crime.

Many times that’s for good reason. Prosecutors investigate crimes because people commit them, and those who break the law must be brought to justice. But whatever the ultimate disposition, no one would mistake a federal investigation for a pleasant process. Targets have often been interviewed by the police or federal agents, called to testify before a grand jury, or had their homes searched. Their most personal property may have been seized — a passport, a phone, a computer. They’ve hired lawyers, contemplated prison, and deferred decisions about travel, career and family.

Then it goes quiet. Maybe that means prosecutors are putting the final touches on an indictment. Or maybe it means the worst experience of your life is over. Every defense lawyer, though, will tell you that there is nothing you can do to figure out what (if anything) comes next. No news is good news, they’ll say, because silence at least means the indictment hasn’t been signed. And to pester the prosecutor about where you stand will achieve nothing other than irritating the person in whose hands your fate rests. Don’t poke the bear. So you dangle in the wind, alone with your fear of what is to come.



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