Arrest of Prince George's County Executive Jack B. Johnson

Nov 15, 2010

Catholic University law professor and former assistant district attorney in the New York county DA's office Clifford Fishman will be online Monday, Nov. 15, at 1:30 p.m. ET to discuss the arrest of Jack Johnson.

Three days after Jack B. Johnson was arrested on charges of evidence tampering and destroying evidence, the Prince George's County executive was back at his office in Upper Marlboro.

Nine people, including three Prince George's County police officers, were arrested Monday on charges involving drugs, guns and a large-scale scheme to distribute untaxed cigarettes and alcohol, according to federal officials.

Sources said the charges are connected to the recent arrest of Prince George's County Executive Jack B. Johnson, but it is unclear exactly how the cases are related. The arrests are part of a larger investigation of corruption in Prince George's.

As a practical matter, whether or not he is guilty, how can Mr. Johnson do his job now through the swearing in ceremony of his successor? Isn't the very nature of his current office to make decisions affecting the personal and financial future of companies doing business in the county and county residents? How can he be expected to function? Will this case allow people to challenge every decision he makes as county executive for the next few weeks? Or will he, in effect, just wait out the rest of his term? I'm thinking of all the last minute decisions every president has made on the way out the door and assuming there are similar ones here at the much smaller PGC level.

I tend to agree. If this happened at the beginning or middle of his term, the right thing to do would be to take a leave of absence until the case is resolved. If  found not guilty, he could resume the job.  But since his term will end in only  a few weeks anyway, the best thing for the County would be for him to step aside now.

How was Johnson permitted to return to work today?

Remember, like anyone else accused of a crime, he is presumed innocent until convicted. That's why he is out on bail, instead of in jail.  Someone charged with serious felonies should step aside, at least temporarily, for the good of the county, but if there is no law on the books requiring him to so do, it's up to him.

As a new resident in the county, I'm hearing two kinds of conversations about this: first, that residents are angry and disappointed, creating trust deficits that already plague the police and other government agencies in some neighborhoods. Second, that the county's executives are targeting this county because it's a wealthy, pre-dominantly black county. What's your take on the fallout between the community and the county and FBI?

There have been complaints over the  years that the  Justice Department was targeting African American politicians.  On the other hand, if Johnson has been doing what the U.S. Attorney claims, and has been doing it so blatantly -- $100,000 checks; $79,000 in cash in his house, another $15,000 in  his pocket when the story broke -- it would be outrageous if the FBI was NOT investigating him.

Certainly the FBI doesn;t target ONLY African American politicians. It was an FBI wiretap that caught NY Gov. Elliot Spitzer making "dates" with prostitutes.  It was an FBI investigation and wiretap that caught Illinois Gov. Blogayevitch (sp?) trying to sell Senator Obama's Senate Seat.

I think over all the FBI and the Justice Department have a pretty good record of being an "equal opportunity investigator/prosecutor."

I have lived in Prince George's for 20 years. I have a great old house in a wonderful neighborhood. I walk to metrorail and head out my door to some great hiking and biking trails. My kids went to public schools and then top universities. Okay, so I have to drive to get a restaurant with a table cloth or a decent wine list (but my house cost half as much as yours, it's a tradeoff). [I know,, not on your topic, but I read the comments on the articles, and there is a lot of disdain for Prince George's county, which is stupid. The services are great, the county population is diverse, we have great open space... I kind of like it here].

I have friends who live in PG County and say the same thing.

Do they have power to limit what Jack can do in his remaining weeks?

That depends on Maryland law and county ordinances. s I understand the situation, there may not be much anyone can do to prevent him from going to his office and trying to do his job, but of course now that all this is public, I can't imagine anyone wanting to do business with him on any subject.

What will be the role of the State's Attorney in the trial? Will everything be handled at a federal level in general?

Pretty much everything that's been reported in the media this past week involves a federal investigation and federal charges.  If the Feds want to keep the case, they can, and there's nothing much state officials can do about it.  On the other hand, it may turn out that federal and state officials might sit down and divide up the cases; or the feds may uncover evidence of conduct taht violates state law but not federal law, in which case the state would get to decide whether to proceed on those charges.

Some citizens have questioned the four-year length of the federal investigation. Can you shed some light on how long an investigation takes place? It sounds like the US Atty started with one or two allegations and the probe went in several directions, based on wiretaps and/or cooperating witnesses. Thank you.

Federal investigations, particularly into political corruption, tend to go on for  years before they make arrests.  It could be that they could have arrested Johnson a couple of  years ago, but let the case run further so they could also make cases against others in the county government, or amoung the developers, before finishing it out.  Typically the feds will have all their evidnece and witnesses lined up, and then they'll finsih the case with a bang -- like they apparently did this time, getting Johnson accepting two more bribes of $15,000 cash, and then as a bonus, intercepting the calls from Johnson to his wife that we've all read about -- and then excute lots of search warrants and arrest warrants.

The Justice Department tends to move slowly, but once they move, it can be like an avalanche -- if you get in the way, you'll get buried.

The FBI's characterization of the $100,000 check as evidence is weak. They had not told Johnson that he or his wife were being investigated for bribery. Johnson didn't have any idea about what was evidence and what was merely embarassing because the FBI had not told him what crime they were investigating. If you get a grand jury target letter in the mail and then begin shredding documents, the FBI probably has a case. But Johnson can say that when the FBI knocked on his front door, it deterred him from committing the crime of depositing the check and accepting an illegal bribe. Once they opened the door, the agents made it clear what type of evidence they were seeking, and any destruction of documents would have then become illegal. I not enthused that we now all have to consider what the FBI would say before flushing the toilet.

Right now the only charges officially filed against him are  tampering with a witness and destruction of evidence.  If this case goes in the direction that similar cases do, in a few weeks the government will file a massive indictment agaisnt him charging himwith dozens of counts of corruption-related charges.

None of this means he's guilty -- we should take the presumption of innocence seriously.  But things do not look very good for him right now!

Will Mrs. Johnson be permitted to take up her duties as a new county councilperson? What happens if her seat is vacant? What part of the county was she elected to serve?

That will depend on Maryland law; I don't know the answer. Sorry!

I think too often these cases focus on public officials. I would like to see more punishment and publicity for those that are making the bribes. In my view there should be major consequences for both.

That is an interesting point. The crime of bribery involves (at least) 2 people: the one giving, and the one taking.  The general view is that the public official is the more serious offender, because he or she has taken an oath to serve the public.  And often -- as is the accusation here -- the public official lets it be known that a company simply won't be given the opportunity to do business unless it pays for the privilege ("pay to play"). If that is what happened, then it is reasonable to target the public official instead of the businessman, who is the victim, not the instigator.

An alternate viewpoint - I am a PG County resident since 2006 and I am thrilled that it is getting cleaned up. I believe in sunshine and transparency. If the county executive is taking bribes from developers, that has to stop. If the owner of a liquor store (that is a blight on the community, but that's another story) is evading taxes, that has to stop. The people impacted by corruption are us, the residents. I am perfectly happy for our dirty laundry to be aired if it results in a cleanup!

In the long run, you're right: if this leads to a cleaner, more transparent government, it will have been worth it. But that doesn't make it any less painful right now. I'm sure local comedians and columnists will have a lot of fun at PG County's expense, and right now if I was en employee of the county, I'd wince whenever I told someone where I work, because they're undoubtedly getting wise cracks left and right.

What about Mrs. Johnson? Will she be forced to give up her newly elected position? Can she be forced?

If she is convicted -- certainly.  Until then, I don;t think there are laws on the books that would require her to resign. Remember, like every defenedant, she is presumed innocent unless and until convicted.

Is it possible that the timing of the arrest was influenced by the recent election at all? If this occurred a year ago without someone already in place to move in, the county goverment could've been effectively frozen until an election or resolution of the issue. At the same time, why wait until he's on his way out for the arrest when all the damage is already done? Could some of the alleged illegal activity been prevented? Is there any chance the FBI took this into account at all?

Good question, but we can only speculate about the timing.

This is a dumb question - but how is this a federal offense?

It's not a dumb question. After all, if a state official accepts, or extorts, bribes, why not leave it to the state to police itself?

The answer is that Congress has passed dozens and dozens of laws that can be used to prosecute state officials. The immediate charges spring from the fact that a federal investigation was underway, and the Johnsons allegedly tampered with a witness and destroyed evidence relating to that investitgation.

The underlying investigation, according to media reports, included corruption and bribary in contracts. Some of those contracts might have involved federal funding, and they probably all effected interstate commerce. And there are federal laws against depriving citizens of the right to honest state and local government.

You are a former prosecutor. Would you even carry a cell phone after the FBI "scanned' it and hand it back to you? What does Mr. Johnson's inept conduct reflect about his abilities as State's Attorney?

I'm a former prosecutor from New  York City, and that aspect of the case really hits home to me. It certainlymakes you wonder (assuming the current charges are true) whether he was also currupt while he was the state's attorney.   And yes, you'd think that his time as state's attorney would give him a pretty good idea of  how investigations are run, and he would have been more careful in how he engaged in corruption (again, assuming he is guilty, which hasn't been proven yet).

On the other hand, Elliot Spitzer was the Attorney General of New  York State for many years, and conducted several  highly sophisticated investigations, and yet he was stupid enough to patronize a call girl operation -- and doubly stupid enough to book  his "appointments" over the phone.  

Smart people do stupid things with amazing and astonishing frequency. That's just human nature, I guess.

Was anyone actually surprised at this? The rumors had been murmuring and certainly the attitude of the county's leaders ... running roughshod over locals who testified against certain development, schools without the right books for their kids ... led to this. The county is fine but the leadership as been like this for a long long time and the developers knew it.

According to media reports, some developers did know it -- and stayed out of the county as aresult.  Perhaps other developers knew it but were big enough and important enough to do business with the county without paying any bribes. (For example, I'd be surprised if it turned out that the 'Skins bribed anybody to be able to build their stadium in PG County.)

And how long until the trials are all wrapped up? It always seems like the trials take a really long time to get underway and get finished.

Cases like this often take  years to wrap up.  There are lots of reasons.  First, this case sounds massive in terms of how many people will be arrested and how many deals will be the subject of charges.  Second, the government will be offering plea bargains to people who are seen as less corrupt -- the underlings -- in exchange for their testimony against the higher-ups.  A defendant could push for a speedy trial, but that is rare, especially where the defendant is out on bail.  The sooner the trial, the sooner, in all likelihood, a defendant goes to jail.

New metaphor: a big federal case is like a glacier moving toward the ocean -- it moves slowly, but if the feds truly have the witnesses and th evidence, anyone in its path is likely to get ground into dust eventually.

I've received several questionsa bout whether Mrs. Johnson can take her seat on the county council and whether she can be forced out. The simple answer is, I don't know, but i don't think so -- not unless and until she is convicted.

If Johnson and member(s) of the County Council are found guilty on corruption charges to what extent are their past decisions up for reconsideration? In essence, can someone challenge the decisions made by people in authority who were later found to be acting unethically?

Any crimes that were committed in the past can be investigated and prosecuted, so long as the statute of limitations hasn't run.  And if a business was unfairly denied a contract with the county becuse it refused to pay bribes and the job went to someone who did pay, it is possible that it could sue the county for money damages, although I'm really  just speculating about that.

How could fact that three cops got busted for helping an illegal booze and drugs operation be related to the Johnson case?

I could probably make up a few theories, but we'll just have to wait  until the facts emerge more fully.

I wish I had more time to answer these excellent and challenging questions. Unfortunately I've got a class to teach soon that I'd better prepare for!

Professor CLiff Fishman, Catholic University of America Law School

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Clifford Fishman
Clifford Fishman is professor of law at Catholic University, former assistant district attorney for the New York county DA's office and author of 'Wiretapping and Eavesdropping' (2007).
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