INSIGHT: College Admissions Scandal Shows Ethical Lapses By Prosecutors

In March, prosecutors in the college admissions scandal involving high-profile names such as Lori Loughlin released notes written by Rick Singer, the mastermind of the scandal who turned undercover agent for the government in its efforts to prosecute the people who utilized Singer’s services.

In the notes, Singer documented his dealings with the FBI, writing that the FBI agents wanted Singer to “bend the truth” regarding the nature of the payments Singer solicited from his clients. Evidently, to some clients, Singer explained that the payments he solicited were in fact donations to the various universities’ athletic departments rather than bribes to coaches.

There are several fundamental problems with this disclosure.

Manufactured Facts?

First, the entire premise of the charges, as well as the media scrutiny, appears to be based on manufactured facts. At the direction of the FBI and the U.S. Attorney’s Office, Singer made recorded calls to many parents who paid him money with the hopes of assisting their children’s chances of acceptance to a specific college or university.

But, Singer’s notes strongly suggest that before the FBI arrested Singer and instructed him to make recorded calls, Singer marketed himself as a conduit for donations to universities where the university would take notice of the donator. Donations to educational institutions with the hopes of influencing the admissions process is not a criminal concept. Apparently, the investigators and prosecutors requested Singer to criminalize the subsequent conversations and “bend the truth” on the recordings regarding the purpose of the donations/payments.

Unfortunately, this is not a novel practice by law enforcement. Prosecutors and investigators want a clearly documented record of criminal activity and intent. While establishing this record is proper practice, often times a clear record demonstrating criminal activity and intent does not exist or is even possible.

Too often, instead of proceeding with the facts as is—or refusing to proceed with the case entirely—prosecutors instruct investigators or undercover informants to conduct follow-up recordings where past activities are reviewed, this time with never before used buzz words that prosecutors believe will indicate criminality.

However, in reality, these discussions never occurred prior to the transactions in question. Therefore, unless the target pays close attention and confronts the mischaracterization, prosecutors will seek to utilize these after-the-fact conversations to establish the clear record of criminal conduct required to obtain an indictment, guilty verdict or plea.

Exculpatory Evidence Shouldn’t Be Withheld

Second, waiting 11 months to disclose notes containing potentially exculpatory evidence, and after several defendants pleaded guilty, raises questions about the ethical bounds of the prosecution team. Several defendants pled guilty without knowing that documentary evidence existed that illustrated the potentially innocuous nature of Singer’s marketing pitch: donations, donations, donations (not bribes).

Prosecutors should not be (and are not) permitted to withhold such evidence from defense counsel, defendants, and witnesses. The government should not be able to take someone’s liberty based on misleading representations.

I suspect that not one of the defendants who pled guilty knew that the government had documentary evidence illustrating that Singer was being asked to “bend the truth” on recorded calls with the defendants. And now, they probably wish they could rescind their guilty plea.

Justice Sometimes Requires Dismissal

Third, the Department of Justice should not employ a win-at-all-cost standard. The purpose of the DOJ is in the name—justice. A desire by prosecutors to “nail [someone] at all costs” is shameful. Justice is what matters and justice requires fairness and the ability to close cases that are not supported by facts.

Facts are not to be withheld in the criminal justice system and those whose liberty is at stake are entitled to all the evidence before a guilty plea can be accepted.

As Justice Brandeis wrote in his dissent in Olmstead v. United States, 277 U.S. 438 (1928), “if the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.”

The majority of FBI, DEA, and HSI investigators and DOJ prosecutors have the highest integrity and act within the highest ethical standards. However, the ones that forget their ethical obligations place a black cloud over the entire law enforcement community.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

William V. Roppolo is the head of Litigation for Baker McKenzie’s Miami and New York offices. He co-chairs the firm’s North American Trial Team. Roppolo’s practice focuses on complex white collar and commercial litigation matters.