Mr. President. If you are really serious about reforming the DOJ, this is what you should do.

First in the Letter to Mr. President series.

When the Supreme Court speaks of the right to a fair trial, the Court does not mean the right to a trial where the prosecution and the defense are on a level playing field. The Court means those protections afforded explicitly by the Sixth Amendment, that is, the right to: assistance of counsel,[1] trial before an impartial jury,[2]; a public trial,[3]; the power to subpoena witnesses to trial,[4]; be informed of the charges against them; and confront their accusers.[5] The Court has also recognized that under the Fifth Amendment's right to due process of law, there is an implicit right to a presumption of innocence, meaning that a defendant can only be found guilty if the Government proves their guilt beyond a reasonable doubt.[6] In 1970, the Court, for the first time, held that the right to counsel means the right to effective assistance of counsel,[7] In a series of cases prompted by prosecutors’ refusal to provide evidence that could be material to the defense raised by counsel either during the trial or at sentencing, the Supreme Court held that due process required prosecutors to disclose exculpatory material to the defense.[8]

To most Americans unfamiliar with how the criminal justice system works, this seems like a great deal of protection for the accused. But like anything else, the devil is in the details. Consider the following:

Under the federal rules of criminal procedure, prosecutors are not required to identify their witnesses before trial.[9] Only where a prosecutor has provided a benefit to the witness, such as an agreement to drop charges or a recommendation of a lower sentence, or where the prosecutor knows of evidence impeaching the witnesses credibility, such as the witness's criminal record, must prosecutors disclose such information, and even then, prosecutors can wait to disclose this information until shortly before the start of trial, significantly limiting defense counsel's ability to investigate whether there is more impeachment evidence available or whether there are other undisclosed benefits.[10]

Prosecutors have the authority to compel people to speak to them and answer their questions. They do this through the grand jury's subpoena powers. Those same procedures are used to compel the production of documents and other physical evidence the prosecutors need during their investigation.

Defendants have no such right. They can compel a person to appear at their trial, but they cannot compel this individual to answer questions before trial. Consequently, unless the witness agrees to speak to defense counsel before trial, counsel doesn't have detailed knowledge what the witness is going to say, or the opportunity to investigate whether the witness is lying or mistaken in time to confront them.

(3) A defendant is entitled only to a copy of his own statements given to law enforcement.[11] A defendant is not entitled to see a witness's statement before the start of trial, and even then, only after the witness has testified.[12] Prosecutors generally provide such statements before the witness takes the stand, but only to avoid delaying the proceedings. BUT, and here is the devil again, federal agents do not take "statements" from witnesses. They take notes.[13] So only if the witness has testified before a grand jury will their prior testimony be given to the defense. AND there is no requirement that the Government examine any of its witnesses before a grand jury.

(4) Rule 16 of the Federal Rules of Criminal Procedure requires that prosecutors provide the defense all documentary and physical evidence in their possession that pertains to the allegations against the accused, but they are not required to identify what evidence they intend to introduce at trial. What this means is that prosecutors can drop terabytes of material onto the defense and tell defense counsel to go fish.

Together, (1), (2), (3), and (4) mean that the average defendant in a federal criminal case goes into Court not knowing the identities of some or all of the Government's witnesses, not knowing what the witnesses have told the prosecutors, and having to prepare their defense without even the most basic tools afforded civil litigants: subpoenas, depositions, the identities of the witnesses. The right to effective assistance of counsel is thus reduced to a right to have counsel do their best with what they get.

There is no reason why the Department of Justice could not require something akin to the kind of discovery permitted in Florida. Maybe not full-fledged depositions, but interrogatories to the Government's witnesses in any case set for trial. And the pretrial disclosure of a witness's statement, whether given under oath or not. Certainly, the defense should receive the reports of the agents who conducted the investigation. All of this is available in Florida.

Attorney General Pam Bondi, who was the Attorney General of the State of Florida, John Lauro, President Trump's lead attorney in the WDC prosecution, whose office is in Tampa, Florida, and FBI Director Kash Patel, who started his career in the Miami-Dade County Public Defender’s Office, have extensive experience with Florida’s rules of criminal procedure. They know that the greater discovery offered in Florida, including depositions, has rarely impeded the state's ability to prosecute and convict those accused of crime.

Why are prosecutions so tilted in favor of the Government? The Government claims it is to prevent defendants from intimidating witnesses and to thwart efforts by defendants and their lawyers from manufacturing evidence and arguments that could subvert the truth.

Forty years ago, an effort was made to revise the rules requiring witness identities be disclosed to the defense. Despite unrefuted evidence from federal courts in California that such a rule does not interfere with the administration of justice, the Department of Justice was able to kill this reform in Congress.[13]

Witness intimidation, witnesses killed. It happens. But it occurs despite the limitations on pretrial discovery. The identities of witnesses must be disclosed at trial before the witness testifies (though sometimes not their real names). Most often, in those instances where a witness is "gotten to" before trial, it is because the defendant knew who they were, usually because they were the defendant's friends or associates or, in the case of white-collar offenses, someone they worked with.

However, providing real balance in federal prosecutions does not mean that the lives of witnesses will be put in jeopardy or that criminals will now walk because of better-prepared defense counsel. In those cases where there is a serious claim that disclosing a witness’s identity or the information they provided could endanger their life, the Government could go to the Court in camera (that is, out of the public eye) and ex parte (out of the presence of the defendant and their attorney) and seek a protective order. That is precisely what happened with Sam Bankman-Fried, cryptocurrency fraudster, who had his bond revoked because he attempted to intimidate witnesses.

When it is in the government's interest to make "open file discovery," the government doesn't have a problem doing so. In your prosecution in Washington, the Special Prosecutor provided you and your attorneys:

• grand jury transcripts and associated exhibits through the date of the indictment;

• witness interview recordings, transcripts, and reports, including agent notes, along with records used during the interviews;

• the vast majority of materials obtained through search warrants, 2703(d) orders, and grand jury subpoenas; and

• unredacted materials obtained from other governmental entities, including the House Select Committee to Investigate the January 6th Attack on the United States Capitol and the United States Secret Service.

Not only that, the prosecutors said that:

The Government went to great lengths to organize these materials in a user-friendly manner, prepare them in formats ready to be loaded into a document review platform, and create detailed logs to guide the defendant’s review.[14]

Thus, had the case gone to trial, you would have learned who each witness was and what each witness would say. This, even though various prosecutors had accused you of attempting to intimidate witnesses.

Although the current rules of criminal procedure do not provide for the protections recommended in this article, your Justice Department has the authority to promulgate such rules and direct that all federal prosecutors abide by them.

A host of other reforms are needed. If you want to talk about them, I am just down the road in Boca. Take a ride and I'll buy you lunch at McDonalds—my treat!

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[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963);

[2] Skilling v. United States, 561 U.S. 358, 378 (2010).

[3] Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979).

[4] Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

[5] Coy v. Iowa, 487 U.S. 1012 (1988).

[6] Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978); Kentucky v. Whorton, 441 U.S. 786 (1979).

[7] McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).

[8] Kyles v. Whitley,

[9] Rule 16, Federal Rules of Criminal Procedure, governs what information the Government must disclose to the defense before trial. This rule does not require a witness list

[10] The Justice Manual, Section 9-5000D.2 states:

Impeachment information. Impeachment information, which depends on the prosecutor's decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the prosecution to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.

[11] Rule 16(a)(1) FRCP.

[12] Rule 26.2 FRCP.

[13] See Emma Cecil’s and Carl Lietz’s excellent article discussing the history of the reform effort, “Avoiding Trial by Ambush: Why It’s Time to Revise the Federal Rules of Criminal Procedure to Require the Parties to Disclose Witness Lists.” The Federal Lawyer, p. 8, March/April (2019).

[14] Government’s Response to Court’s August 3, 2023 Minute Order, United States v. Trump, 23-cr-00257 p. 5, United States District Court, District of Columbia (August 10, 2023)