过去一周，公众得知了司法部三起试图以联邦罪名起诉总统唐纳德·特朗普眼中敌人的行动。其中一起行动是试图起诉前白宫助理、后来成为1月6日委员会明星证人的卡西迪·哈钦森，该行动于周二失败，原因是华盛顿特区的一个大陪审团没有足够的票数返回所谓的“正式起诉书”。另外两起行动则已立案：一起针对前联邦调查局局长詹姆斯·科米，这是短短一年多来针对他的第三次此类行动；另一起针对两名前联邦调查局雇员，他们被指控就自己所知的亨特·拜登笔记本电脑相关情况向国会委员会撒谎。
Over the past week, the public has learned of three efforts by the Department of Justice to charge perceived enemies of President Donald Trump with federal crimes. One of those efforts, an attempt to indict former White House aide turned Jan. 6 committee star witness Cassidy Hutchinson, failed on Tuesday after a Washington, D.C., grand jury did not have the votes to return what’s known as a “true bill.”The other two have resulted in the opening of criminal cases: one against former FBI Director James Comey, the third such effort against him in just over a year, and the other against two former FBI employees alleged to have lied to a congressional committee about what they knew about Hunter Biden’s laptop.
而中期选举 literally 就在几天之后，尽管起诉似乎有所升级，司法部仍坚称，政治考量与这些刑事案件的时间安排或存在与否毫无关系。
And with the midterm elections literally days away, despite this seeming escalation in prosecutions, the Justice Department has maintained that political considerations had nothing to do with the timing or existence of these criminal matters.
正如司法部发言人告诉《纽约时报》的那样：“标准是目的，而不是与选举日的临近程度。司法部的政策并不要求该部在选举季停止正在进行的工作。”然而，即便假设司法部检察官是出于善意行事，这种对司法部政策的描述也是不完整的。
As a DOJ spokesperson told The New York Times, “The standard is purpose, not proximity to Election Day. Department policy does not require the department to stop ongoing work during an election season.”Yet even assuming that Justice Department prosecutors are acting in good faith, that description of DOJ policy is incomplete.
时任司法部长梅里克·加兰在2024年发布的一份备忘录规定，检察官不得为了影响任何选举而安排“刑事指控或任何事项或案件中的任何其他行动”的时间。该备忘录接着写道：“这样的目的与司法部的使命以及《联邦起诉原则》不符”（着重号为原文所加）。
A memo issued in 2024 by then-Attorney General Merrick Garland mandated that prosecutors not time “criminal charges or any other action in any matter or case for the purpose of affecting any election.”The memo went on to say, “Such a purpose, is inconsistent with the Department’s mission and with the Principles of Federal Prosecution” (emphasis added).
司法部没有立即回应MS NOW要求确认该备忘录是否仍然有效的请求。MS NOW不知道有任何证据表明该备忘录已被撤销。
The Justice Department did not immediately respond to MS NOW’s request to confirm whether the memo was still in effect. MS NOW is unaware of any evidence that it has been rescinded.
此外，《司法手册》——现任和前任司法部人员有时称之为联邦起诉的圣经——规定，在选举季，任何涉及调查或起诉行动的问题，甚至“问题的表象”，都需要与公共诚信处、副总检察长和/或总检察长本人协商。换言之，特朗普的政治任命者，直至并包括总检察长托德·布兰奇，才是检察官目的是否合法的最终裁决者。
Moreover, the Justice Manual — sometimes called the bible of federal prosecution by current and former DOJ personnel — provides that any issue or even “the perception of an issue” concerning an investigative or prosecutorial action during an election season demands consultation with the Public Integrity Section, the deputy attorney general and/or the attorney general themselves. In other words, Trump political appointees, up to and including Attorney General Todd Blanche, are the final arbiters of whether a prosecutor’s purpose is legitimate.
有鉴于此，他们中的一些人或者全部人必定批准了这些近期的起诉动向。但司法部律师在每起案件中犯下的错误表明，他们既急于上法庭，又想曲解法律、刑事诉讼规则或两者兼有，而这些做法可能失败或已经受挫。
Given that, some or all of them must have signed off on these recent prosecutorial developments. But the mistakes made by DOJ lawyers in each of these cases suggest both a rush to the courthouse and a desire to stretch the law, criminal procedural rules or both in ways that might fail or have already faltered.
以本周早些时候解封的针对科米的最新刑事指控为例。这些指控的核心是，一名联邦调查局员工据称向一名《纽约时报》记者泄露了据称属于机密的信息，该记者数小时后发表了一篇文章。据司法部称，科米在2016年10月5日明知信息属于机密，仍故意促成这一泄露。
Take the most recent criminal charges against Comey, unsealed earlier this week. Those charges center on the purported disclosure of allegedly classified information by an FBI employee to a New York Times reporter who published an article hours later. According to the DOJ, Comey intentionally caused that disclosure on Oct. 5, 2016, knowing the information was classified.
但针对科米的案件是在整整10年后提起的，并非通过大陪审团起诉书启动——在联邦法院，这需要至少12名大陪审员投票赞成。司法部通过检察官起诉书对科米提出指控，这种方式不需要大陪审团参与，因此通常比大陪审团起诉书能更快提交。
But the case against Comey, filed 10 years later to the date, was not initiated through an indictment, which requires a vote of at least 12 grand jurors in a federal court. The Justice Department charged Comey via an information, which does not require grand jury involvement and therefore typically can be filed much more quickly than an indictment.
由于对科米每项指控的诉讼时效均为10年，司法部似乎认为可以在该期限内通过检察官起诉书指控科米，然后再取得大陪审团起诉书——除非被告放弃，否则重罪起诉必须以此为前提。
Because the statute of limitations for each of the charges against Comey is 10 years, the DOJ seems to have assumed it could charge Comey by information within that window and then later obtain an indictment, which (barring a defendant’s waiver) is necessary to prosecute felonies.
但现在，司法部反而在为科米近乎立即提出的撤案动议进行辩护。而科米法律团队的论点与指控的实质内容无关，也与选择性起诉或报复性起诉的主张无关——在先前针对科米的两起案件中，这些主张曾得到大量文件的支持。相反，科米的律师主张，诉讼时效法条的明文规定只适用于起诉书，而不适用于刑事控告书或刑事举报书，而后两者是联邦刑事案件可以启动的第三种方式。周五，华盛顿特区的一名联邦法官将就该动议举行听证会。
But now the department is instead defending Comey’s near-immediate motion to dismiss. And his legal team’s argument has nothing to do with the substance of the charges or claims of selective or vindictive prosecution, which it supported with extensive documentation in the two prior cases against Comey. Instead, Comey’s attorneys argue that the plain language of the statute of limitations pertains only to , not informations or criminal complaints, the third way federal criminal cases can begin. A Washington, D.C., federal judge will hold a hearing on that motion Friday.
针对前FBI分析师尼基·弗洛里斯和前探员布拉德利·贝纳维德斯的案件似乎也显示出类似的匆忙诉诸法庭的迹象。该案于10月20日通过刑事控告书启动，这类文书通常包含对所控罪行“基本事实”的书面陈述，一般由联邦执法探员在宣誓后提交，然后由联邦治安法官批准并签署。但就在几天之内——而且实际上是在预审听证会前夜的半夜——司法部提交了一份其称之为“替代”刑事控告书的文件。
The case against former FBI analyst Nikki Floris and former agent Bradley Benavides seems to show signs of a similar rush to the courthouse. That case was instigated on Oct. 20 through a criminal complaint, which typically contains a written statement of “the essential facts” of the offense charged, usually submitted by a federal law enforcement agent under oath and then approved and signed by a federal magistrate judge. But within days — and literally in the middle of the night before a preliminary hearing — the Justice Department filed what it characterized as a “superseding” criminal complaint.
这份新控告书既没有探员宣誓证明其真实性的签名，也没有法官本人的签名。它还是以另一名FBI探员的名义提交的，且没有任何解释。
The new complaint lacked a signature from either the agent, swearing to its veracity, or the judge himself. It also was filed under the name of a different FBI agent, without any explanation.
治安法官齐亚·法鲁基对此极为愤怒，他询问司法部律师是否知道此前有任何联邦案件是治安法官在未经法官签字批准的情况下允许提交替代刑事控告书的。该律师承认自己并不知情——最终，法官拒绝签署这份新控告书，并对检察官说：“我对你们对法律的理解感到担忧。”当接替原宣誓人的探员布莱恩·维特走上证人席，为政府认定有合理根据起诉弗洛里斯和贝纳维德斯辩护时，听证会进一步陷入混乱。
The magistrate judge, Zia Faruqui, was furious, asking the DOJ lawyer whether he was aware of any prior federal case in which a magistrate judge had allowed a superseding criminal complaint without a judge’s sign-off. The lawyer acknowledged that he was not — and ultimately, the judge refused to sign the new complaint, telling the prosecutors, “I am concerned about what your view of the law is.”The hearing was further derailed when Bryan Witt, the agent who replaced the original affiant, took the witness stand to defend the government’s finding of probable cause to charge Floris and Benavides.
在弗洛里斯律师的盘问下，维特作证称，特朗普在一次全国讲话中抱怨一些联邦调查局情报官员淡化了一份关于中国试图干预2020年大选以击败他的报告，就在次日，联邦调查局局长卡什·帕特尔指示密苏里州堪萨斯城的联邦检察官办公室调查其中一些同样的官员，包括弗洛里斯。维特进一步作证称，那封信“恰好在一个重大公共腐败案的中间”送达，这项新调查是“一个巨大的干扰”，而且他从一开始就担心“这会被视为政治性的”。
On questioning by Floris’ lawyer, Witt testified that the day after Trump complained during a national address that some FBI intelligence officials had downplayed a report that China had tried to interfere in the 2020 election in order to defeat him, FBI Director Kash Patel directed the U.S. attorney’s office in Kansas City, Missouri, to investigate some of those same officials, including Floris. Witt further testified that the letter arrived “right in the middle of a major public corruption case,” that the new investigation was “a huge distraction” and that he had concerns from the outset that “this would be viewed as political.”
他还承认自己从未约谈过弗洛里斯，尽管他说那本来会“极其有用”，而且通常是探员会做的事，他还承认最初的投诉包含事实错误。截至周三下午，法鲁基仍在权衡检方是否有合理根据对弗洛里斯和贝纳维德斯提出指控。
He also admitted that he never interviewed Floris, though he said it would have been “incredibly useful” and normally would have been something agents did, and that the initial complaint contained factual inaccuracies. As of Wednesday afternoon, Faruqui was still weighing whether prosecutors had probable cause to charge Floris and Benavides.
鉴于司法部在该案中遇到的种种挑战，人们可能会想，放慢节奏并向大陪审团提交起诉书是否会更有效。然而，该部门争取对哈钦森提出起诉的努力失败——这是其近几天在华盛顿联邦法院的第三次潜在乌龙——或许可以解释它为何没有这样做。
In light of the challenges the DOJ has encountered in that case, one may wonder if it would have been more effective to slow down and present an indictment to a grand jury. Yet the department’s failed attempt to secure an indictment against Hutchinson — its third potential own goal in recent days in D.C. federal court — might explain why it didn’t.
由于大陪审团程序是保密的，目前不清楚大陪审团为何没有起诉哈钦森。但根据包括MS NOW在内的公开报道，司法部民权司的律师提议以向国会作虚假陈述的罪名起诉她，而这类犯罪通常不属于该部门的职权范围。
Because grand jury proceedings are secret, it is unclear why the grand jury did not indict Hutchinson. But according to public reporting, including from MS NOW, lawyers from the DOJ’s Civil Rights Division proposed charging her with false statements to Congress, crimes not usually within that unit’s ambit.
司法部无法起诉她之前，华盛顿的其他案件中也出现了异常多的类似失利，这些案件涉及特朗普已知的打击目标，包括试图起诉六名国会议员，他们通过一段视频鼓励军人拒绝服从非法命令。
The Justice Department’s inability to indict her comes after an unusual number of similar losses in other cases in Washington that have involved known targets of Trump’s ire, including an attempt to indict six members of Congress who, through a video, encouraged military service members to refuse to follow unlawful orders.
距离中期选举只剩几天，而一位总统公开将司法部的诉讼策略归功于自己，情况可能是：无论司法部选择何种起诉文书，它都推进得太快——且党派色彩的外衣太过显眼——因而难以成功。
And with days to go before the midterm elections and with a president who is openly taking credit for the DOJ’s litigation strategy, it could be that no matter what charging instrument the department chooses, it is working too fast — and with too conspicuous a veneer of partisanship — to succeed.