How Many “President-Elects” Are There?

Why won’t federal prosecutors in Illinois use Barack Obama’s name?

The wiretapped conversations recounted in the criminal complaint (PDF) filed against Illinois Gov. Rod Blagojevich on Tuesday include several references to Barack Obama, but prosecutors have apparently taken the measure of replacing his name with the phrase “[President-Elect].” (The complaint similarly referred to Sam Zell as “Tribune Owner.”) Since everyone knows that Obama is the president-elect, what’s the point?

For the sake of consistency. Randall Samborn, an assistant U.S. attorney who serves as spokesman for U.S. Attorney Patrick Fitzgerald’s office, declined to discuss the logic behind the specific language in the affidavit. But prosecutors are usually hesitant to name people who are not defendants within charging documents, except when absolutely necessary. (As a result, the cast of characters in the charging document includes not only “President-Elect” and “Tribune Owner,” but also “Sports Consultant,” “Highway Contractor 1,”and “Deputy Governor A.”) In a press conference on Tuesday, Fitzgerald—who, by the Explainer’s count, referenced Obama by name twice at the podium—tried to emphasize that the complaint against Blagojevich and his chief of staff should not be used to “cast aspersions” on the unnamed people it made reference to. “We make no charges about any of the other people who are referenced in the complaint, most not by name,” Fitzgerald explained.

The U.S. Attorney’s Manual—which lays out the standards prosecutors should follow—does not clearly specify how people should be described in criminal complaints when they haven’t been accused of wrongdoing. But many prosecutors follow the same rules spelled out for people who may have done something wrong but aren’t being charged—think Client 9 in the case against the Emperor’s Club. (These are known as “unindicted co-conspirators” or “uncharged third-party wrongdoers.”) The manual says that in all public filings, prosecutors should “remain sensitive to the privacy and reputation interests of uncharged third-parties” and avoid naming names whenever possible. (Those rules stem in part from a case in which unindicted co-conspirators in a case following demonstrations at the 1972 Republican National Convention “complain[ed] of injury to their good names and reputations and impairment of their ability to obtain employment.”) Even if the law at hand stipulates that the crime involves someone with a specific position—for example, bribing a congressman—the manual says, “[T]he third-party can usually be referred to generically (’a Member of Congress’), rather than identified specifically (’Senator Jones’).”

The basic logic behind these standards is that while a criminal defendant can redeem his or her name in court, someone who is never charged doesn’t have the same opportunity—yet their name will remain forever in publicly available (and sometimes Google-searchable) court documents. Still, as in the case of Tribune Owner or President-Elect, prosecutors often can’t help but include enough information in a charging document to allow anyone reading it to easily figure out whom it is referencing.

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Explainer thanks Randall Eliason of the George Washington University Law School and Daniel Richman of Columbia Law School.