Understanding the Motivations of Federal Prosecutors and How to Influence Their Charging Decisions

When facing federal charges, it’s critical to understand that the most powerful figure in the process is not the judge or jury—it’s the federal prosecutor. United States Attorneys (USAs) and Assistant United States Attorneys (AUSAs) hold supreme authority in deciding whether to pursue a case, and their motivations and decision-making processes often determine the fate of the accused. At National Security Law Firm, much of the work we do involves persuading these prosecutors to decline prosecution or resolve cases favorably before an indictment is filed.

With 97% of federal cases ending in a plea deal, it’s clear that the first and most crucial step in the defense strategy is convincing the prosecutor that pursuing charges is a losing proposition. Understanding their motivations, priorities, and decision-making framework is key to achieving this goal.

Who Are U.S. Attorneys and AUSAs?

Federal prosecutors, whether serving as United States Attorneys or Assistant United States Attorneys, are among the most elite legal professionals in the country. They are often graduates of top law schools and have honed their skills at prestigious law firms or clerkships before joining the Department of Justice.

  • United States Attorneys (USAs): Appointed by the President and confirmed by the Senate, USAs lead federal prosecution efforts within their respective districts. They set enforcement priorities and oversee complex investigations.
  • Assistant United States Attorneys (AUSAs): These career prosecutors work under the direction of the USA, handling everything from financial fraud cases to national security matters. AUSAs are driven by a strong desire to maintain their reputation for winning cases and advancing their careers within the DOJ or private sector.

Given their backgrounds and career ambitions, AUSAs are deeply motivated by winning, and they are unlikely to pursue cases they believe they cannot win. This fact presents defense counsel with a unique opportunity—to undermine the prosecution’s confidence and convince them that pursuing charges would be a costly mistake.

Prosecutorial Discretion and the Power to Decline Charges

The Principles of Federal Prosecution, specifically Section 9-27.220, outline the criteria prosecutors must consider when deciding whether to pursue charges. According to this policy, a federal prosecutor should only proceed if:

  1. The evidence is sufficient to obtain and sustain a conviction.
  2. Prosecution serves a substantial federal interest.
  3. No adequate non-criminal alternatives exist to address the wrongdoing.

Despite the critical importance of this policy, many defense attorneys fail to fully incorporate it into their strategy. At National Security Law Firm, we leverage 9-27.220 to frame our arguments in a way that resonates with prosecutors and their supervisors. Speaking the language of DOJ policy allows us to engage with prosecutors effectively, ensuring our arguments align with their decision-making framework.

Key leverage points include:

  • Demonstrating evidentiary weaknesses that would prevent a conviction.
  • Arguing that the case lacks a substantial federal interest and could be resolved through regulatory or civil means.
  • Highlighting the collateral damage of prosecution, such as reputational harm and economic fallout, which may not align with DOJ priorities.

The Fear of Losing: A Prosecutor’s Worst Nightmare

Federal prosecutors hate losing—whether it’s a high-profile fraud case or a seemingly minor white-collar offense. Losing a case means:

  1. They indicted a defendant who should never have been charged.
  2. They wasted federal resources that could have been allocated elsewhere.
  3. Their professional competence and judgment are called into question.

For an ambitious AUSA, an acquittal can derail their career trajectory, while a dismissed or reduced case could reflect a lack of judgment in their charging decisions. This reality provides defense counsel with the most significant pre-indictment leverage: shaking the prosecutor’s belief in their ability to secure a conviction. If we can demonstrate that a conviction is unlikely—whether through factual, legal, or procedural challenges—we increase the likelihood of resolving the case favorably without an indictment.

Strategies include:

  • Consistently presenting a strong defense position that introduces doubt at every opportunity.
  • Engaging forensic experts to challenge key elements of the prosecution’s case.
  • Providing alternative narratives that suggest innocent explanations for the conduct under investigation.

Understanding Overcriminalization and How It Helps the Defense

Federal law covers a vast array of conduct, leading to what many legal scholars call “overcriminalization.” With thousands of federal statutes and regulations, prosecutors often have broad discretion to bring charges for conduct that may not have been traditionally considered criminal.

How does this benefit the defense?
By highlighting the gray areas of the law and arguing that the conduct in question is more appropriately handled through civil or administrative channels, we can appeal to a prosecutor’s sense of discretion. Prosecutors don’t want to be seen as overreaching or prosecuting cases that lack clear criminal intent.

Using the “Bigger Fish” Theory to Our Advantage

Federal prosecutors are always looking to build cases that allow them to climb the criminal enterprise ladder. They may cast a wide net, targeting individuals with the hope of flipping them to build a case against higher-level offenders.

Defense attorneys can turn this dynamic in their clients’ favor by:

  • Demonstrating that the client has no valuable information to offer.
  • Positioning the client as a minor player not worthy of federal resources.
  • Offering proactive cooperation in a controlled and strategic manner, when appropriate, to steer the investigation away from the client.

If the government cannot see a way to use the defendant to advance their case against a more significant target, they may be more inclined to drop or reduce charges.

What Information Is Helpful to Prosecutors in Declining Prosecution?

To convince a prosecutor to decline charges, defense counsel must present compelling evidence that undermines the case while offering reasonable alternatives. Some key pieces of information include:

  • Exculpatory Evidence: Presenting documentation, communications, or witness testimony that contradicts the prosecution’s theory.
  • Mitigating Factors: Demonstrating lack of intent, compliance efforts, or corrective actions taken post-incident.
  • Regulatory Alternatives: Providing pathways for resolving the matter through civil enforcement or administrative penalties instead of criminal prosecution.
  • Collateral Consequences: Emphasizing the disproportionate impact of prosecution on the defendant’s life, career, and dependents.

Conclusion: The First Battle Is with the Prosecutor

In federal white-collar defense, the first and most important battle takes place before indictment, with the goal of convincing the prosecutor that pursuing charges is not in their best interest. By understanding prosecutorial motivations, leveraging DOJ policy, and presenting compelling arguments that challenge the strength of the case, defense attorneys can work to protect their clients from life-altering federal charges.

At National Security Law Firm, we specialize in crafting pre-indictment defense strategies that focus on avoiding charges whenever possible. Our battle-tested approach and strategic insights into federal prosecution provide our clients with the best chance of success.

Learn More About White-Collar Defense

For additional information and resources, including our blog articles featuring our best defense strategies and expert tips, visit our White Collar Investigation and Defense page.

Why National Security Law Firm?

At NSLF, our white-collar defense team is led by Dak Kees, a former U.S. Attorney for the Western District of Arkansas. With extensive experience overseeing high-profile federal cases, Dak brings insider knowledge to your defense. His leadership in white-collar fraud and national security cases gives NSLF a strategic advantage unmatched by other firms.

Having served as the United States Attorney for the Western District of Arkansas, Duane “Dak” Kees brings an unparalleled advantage to defending clients facing federal investigations and charges. A U.S. Attorney is the chief federal prosecutor for their district, appointed by the President and confirmed by the Senate, responsible for overseeing all federal criminal prosecutions and civil litigation within their jurisdiction. Dak’s leadership in this prestigious role provided him with in-depth experience managing complex cases involving white-collar crimes, national security threats, and public corruption. His firsthand knowledge of prosecutorial strategies, evidence priorities, and federal agency operations—gained through collaboration with agencies like the FBI, DOJ, SEC, and IRS—enables him to anticipate government tactics and build highly effective defense strategies. Dak’s reputation and credibility within the legal community, combined with his insider perspective, offer a strategic advantage in negotiations and court proceedings.

At National Security Law Firm, clients benefit from his extensive trial experience and ability to leverage his prosecutorial insights to develop proactive defenses that challenge the government’s case at every turn.

Learn more about Dak Kees and our team here.

Take Action Now

If you or your company are under federal investigation, don’t wait for an indictment—take control of your defense today. Contact the National Security Law Firm for a confidential consultation.

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