You’re relieved. After a long investigation concerning some troubling conduct throughout the Pacific Northwest that may have led to the United States being defrauded by one of its contractors, you’ve brought this stressful period to a close. You’ve entered a Non-Prosecution Agreement with the U.S. Attorney’s Office for the Western District of Washington. Perhaps the agreement even includes a civil settlement as well, resolving several parallel investigations.

But not two weeks later, an Assistant U.S. Attorney (“AUSA”) for the District of Oregon informs you that you’re the target of a criminal probe concerning the exact same conduct. How is this possible? As unfair as it seems, it has long been the position of federal agencies and DOJ components that other DOJ components are not bound by an agreement unless the agreement provides as much.

Consider the case of Prime Partners, a Swiss asset management firm accused of aiding U.S. taxpayers in New York and elsewhere of evading their federal income taxes. In August, the U.S. Attorney’s Office for the Southern District of New York entered a Non-Prosecution Agreement with Prime Partners in exchange for extraordinary cooperation with the Office’s investigation and the firm’s institution of substantial changes to its practices. The agreement states:

It is further understood that this Agreement does not bind any other federal, state, or local prosecuting authorities other than this Office and the [DOJ] Tax Division. If requested by Prime Partners, this Office and the Tax Division will, however, bring the cooperation of Prime Partners to the attention of such other prosecuting offices or regulatory agencies.

Parties caught up in such a situation should consider a few things:

  • Beware of the kind of limiting language in the Prime Partners agreement, which is common in government settlements.
  • Insist on language in any plea or other settlement agreement that to the effect that it binds other federal agencies, or at least all other components of the Department of Justice.
  • If you find yourself caught up in the kind of bind I describe at the beginning, consider an appellate challenge.

As strange as it may seem, numerous courts have concluded that a “plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.” See United States v. Annabi. This is true even where the plea agreement identifies the prosecuting entity with as broad a term as “the Government.” See United States v. Camacho-Bordes.

Even the courts that have ruled otherwise have done so where the agreement was ambiguous and contained no language indicating that it was intended to be limited. See United States v. Gebbie and United States v. Harvey.

The analytical problem with cases that assume agreements with “the Government” bind only an individual U.S. Attorney’s Office unless they say otherwise is obvious enough. The plaintiff in a criminal prosecution is styled simply as “the United States.” And AUSAs and their supervisors report ultimately to the Attorney General as DOJ employees. A defendant caught in this trap who sought appellate review might find an unexpected sympathetic ear: the Chief Justice of the United States.

In Robertson v. United States ex rel. Watson, the Supreme Court considered whether a contempt action in a congressionally created court could constitutionally be prosecuted in the name and through the power of a private person rather than in the name and through the power of the United States. It’s an esoteric question to be sure. So esoteric that the Supreme Court decided to duck it, dismissing the writ of certiorari as improvidently granted. But not before oral argument in which the United States as amicus curiae was represented by then-Solicitor General Elena Kagan. The following rather remarkable exchange occurred during that argument.

Justice Scalia:

Then why doesn’t an agreement by the United States not to

prosecute carry the day?

[Solicitor] General Kagan:

Yes, so this goes to the second question, in which I think Respondent

is right.

And the reason is that when a single U.S. Attorney’s Office says that

the government will decide to drop a certain set of charges, that U.S.

Attorney’s Office we believe is — is speaking for itself, unless there

is some indication that it is speaking more widely in such a way that

will bind other parts of the government.

Chief Justice Roberts:

That’s — that’s absolutely startling.

The different U.S. Attorneys all work for your boss, right?

They work for the Attorney General.

How can one part of the Attorney General agree to something that doesn’t bind the other part of the Attorney General?

[Solicitor] General Kagan:

The United States Government is a complicated place and the fact that–

Chief Justice Roberts:

I take your word for it.

[Laughter]

The Chief Justice is right. It is startling—and difficult to justify—that a DOJ employee with authority to settle a dispute could agree that “the Government” will not prosecute certain crimes, only for another DOJ employee to do exactly that.

Better to avoid the issue altogether by insisting on broad language in any agreement with the Government. DOJ policy, however, is not to allow government lawyers to enter such global agreements without the approval of every affected U.S. Attorney or Assistant Attorney General. At a minimum, enter into a non-global agreement with your eyes wide open as to these risks.

As a bonus, this video—in which Justice Kagan describes the Robertson argument as the worst of the six she presented during her tenure as Solicitor General—is an interesting watch.