The United States Law Week

Damage Done to Justice System Won’t Be Fixed by Shutdown’s End

Jan. 29, 2019, 9:56 AM

Years of work on terrorism investigations may be wasted due to the government shutdown.

That’s just one result of the month-long political stalemate over a border wall that President Donald Trump says would help fight crime. The shutdown instead hindered drug, gang, and terror investigations, and led to the loss of critical intelligence that at least one FBI agent says is lost forever.

The feds couldn’t help out with a local murder case. Counter-terrorism sources vanished. Drug and immigration cases faltered at the border, of all places.

The impasse robbed some 800,000 federal workers of timely pay. Judiciary employees, public defenders, prosecutors, and other civil servants endured uncertainty, understaffing, and low morale, causing concerns about retention and recruitment going forward.

And that’s to say nothing of the secondary effects on government contractors that the justice system relies on to function.

If that’s not enough, any relief from the reprieve reached by Trump and Congress Jan. 25 might be temporary. Another threatened shutdown over border security looms in less than three weeks unless political leaders choose a different course.

Lost Forever

Some of the most dire damage assessments come from law enforcement.

The FBI Agents Association, which represents more than 14,000 active and former agents, published a report last week urging an end to the shutdown. It anonymously quoted agents from across the country, some of whom noted the shutdown’s lasting damage to their work and, therefore, they reasoned, to public safety.

“As a Joint Terrorism Task Force Coordinator, the inability to pay Confidential Human Sources has had a detrimental effect on our counter-terrorism investigations and operations,” one of them observed. “We have lost several sources who have worked for months, and years, to penetrate groups and target subjects. These assets cannot be replaced.”

Likewise, another agent said, “Not being able to pay Confidential Human Sources risks losing them and the information they provide FOREVER. It is not a switch that we can turn on and off.”

Former federal prosecutor R. Stephen Stigall noted the possibility that the statutes of limitations for prosecuting some crimes expired.

The drain on resources could also lead to a failure to obtain crucial evidence like security footage, said Stigall, now a partner at Ballard Spahr.

Staffing issues could also frustrate efforts to send out subpoenas and prepare exhibits for trial, he added.

And though the shutdown directly affected the federal government, it impacted its relationship with state and local officers.

“One of our local law enforcement partners approached us a week or so ago asking for help on a homicide investigation,” an agent recounted in the report.

The FBI couldn’t help due to lack of funds. “As a result, our relationship with that police department suffers and has become more strained, which will certainly affect future FBI investigations where we will, in turn, need their assistance.”

The Department of Justice did not immediately respond to a request for comment.

Border Losses

Jon Sands, the federal public defender for Arizona, said the state had a drop during the shutdown of cases involving drug interdiction. And there was a sharp decline in the Tucson district along the Mexican border that hears illegal-entry matters, said Brian Karth, federal district court executive and clerk of court for Arizona.

Those are the two issues the president points to when talking about the need for a wall.

Sands said it’s surprising that fewer illegal entry cases were brought during the shutdown, “because these are the cooler months, and this is when, if we expected an uptick, it would be now. You don’t want to cross the desert in the summer.”

The FBI agents association also pointed to a lack of funding to do undercover drug buys.

Subpar Applicants

Another casualty of the shutdown is the simple fact that even people geared toward public service won’t want to—or just can’t—work somewhere that doesn’t pay them.

“Another cost and long term impact will be that of a sense of future financial stability,” said Karth.

“This applies to both our current workforce and potential workforce,” he said. “We had several new hires in the works when the shutdown occurred and some simply lost interest when we told them we were unable to on-board them until an unknown date in the future when the judiciary received funding appropriations.”

Karth said some private industries approached federal employees in his district with job offers, particularly those skilled in the technology sector.

Similar concerns are present in law enforcement as well.

Younger employees said they might have to consider finding work elsewhere, according to one of the agents quoted in the agent group’s report.

“I can’t imagine attracting new qualified applicants to the FBI as a result of this shutdown,” one of them said. “Those folks will go elsewhere too and we will get stuck with subpar applicants.”

The shutdown convinced another agent who’s eligible to retire to do so “sooner than later.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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