00:00 – Steve Bunnell
Hi, all. I’m Steve Bunnell. I’m here today with Ken Wainstein on the Steady State Sentinel podcast. We’re here to talk about the ideals of federal prosecution, and we’re going to use a legendary federal prosecutor and former FBI director by the name of Bob Mueller as an example of some of those ideals.
There’s been a lot of discussion lately about the role of federal prosecutors and the appropriate exercise of discretion. We thought it would be helpful and interesting to talk about our experience and weave in some anecdotes about somebody we both worked with at various times – Bob Mueller.
Before we dig in, both Ken and I are longtime federal prosecutors – former federal prosecutors. I’m currently practicing law in a small firm in DC, but I spent over 17 years as a federal prosecutor in the U.S. Attorney’s Office in DC and at Main Justice, including working with Ken and working with Bob Mueller. I served as the criminal chief in the U.S. Attorney’s Office towards the end of my career.
Ken, talk a little bit about your background and ways that it intersected with DOJ and Bob Mueller.
00:55 – Ken Wainstein
Thanks, Steve. Good to be here. My background: I was a federal prosecutor, assistant U.S. attorney in two different offices – in the Southern District of New York and then in DC. In DC I was in the homicide section for quite a while, and that’s where I worked with you and with Bob. After that I bounced around DOJ, was over at Main Justice for a while, and then went to join Bob at the FBI as his general counsel and chief of staff. Later I was U.S. attorney, assistant attorney general. All told, I was in DOJ for about 18 years. Enjoyed every minute.
01:30 – Steve Bunnell
I think there are few people that have had as diverse and remarkable a career as Ken Wainstein.
One of the topics we want to focus on is what makes the role of a federal prosecutor different from other attorney jobs. The United States is not an ordinary client. Its interests are the public interest. There is a mission to the job. It requires you to exercise sound prosecutorial discretion, which is unique. You’re not just there to win – you have a duty to do justice, including protecting the rights of the defendant and the integrity of the court.
Ken, where do these values and traditions come from? Are they written down?
02:08 – Ken Wainstein
No, they’re not written down. But you have an obligation as a federal prosecutor to protect the institution of the criminal justice system. Your job is not just to win a case – it’s to make sure the process is fair and perceived as fair. As the chief representative of the government, the side that has the power to bring criminal cases, you must act in a way that protects both the reality and appearance of fairness.
There’s a duality: you work as hard as possible to get a conviction, but you’re equally obligated to protect the rights of the person you’re prosecuting. If you get a conviction in an unfair way, that hurts the credibility of the system.
How do you learn this? You learn by watching those ahead of you who are admired and respected. People lead by example. You try to live up to that standard, and eventually you realize you have an obligation to pass it on.
03:01 – Steve Bunnell
Paying it forward is sometimes the biggest value you can contribute. What are some things that do not characterize the ideal prosecutor – things from TV, for example?
03:12 – Ken Wainstein
The idea that you have to be a showboater, flamboyant, theatrical. Some of our best colleagues had a theatrical streak, but that’s not the currency. The real touchstone is integrity – conducting yourself with absolute integrity, being a straight shooter. Also, the obsession with win‑loss records. What’s more important is that you take righteous cases, prosecute them fairly, and honor the system. It’s less about the result and more about how you conducted the process.
03:45 – Steve Bunnell
I used to get nervous when my peers came to watch me in court because I cared about my reputation among them. They knew the difference between a workhorse and a show horse. In the U.S. Attorney’s Office in DC, prosecutors hand off cases to each other, so your work is inherited. There’s nowhere to hide. Reputation matters – not only for diligence but for candor and fulfilling your Brady obligations.
I remember a senior prosecutor, Dave Schertler, saying about turning over evidence: “I feel it’s the right thing to do. Maybe I’m not going to win as many cases, but this is the way I work.” That’s not written down – that’s how you learn.
What about public posturing? Talking to the press about pending cases?
04:32 – Ken Wainstein
Every time I had a press conference, Bob Mueller would call me a showboater. He was not a fan of speaking to the press. There’s a place for getting the message out, but what’s really important is what happens in the courtroom – that the victim’s family feels their rights were vindicated, that you fought a fair fight.
04:52 – Steve Bunnell
We’re not suggesting everyone is at that ideal level, including us. Prosecutors can be self‑righteous. The job can’t be done without humility.
04:58 – Ken Wainstein
Sometimes the job teaches you humility. The qualities of the ideal federal prosecutor: focus on public service over personal gain; being even‑handed, protecting your adversary; parking your ego and emotions and only taking positions based on facts and law.
05:17 – Steve Bunnell
How about politics? Did you have members of Congress try to weigh in on a case?
05:22 – Ken Wainstein
As with you – you were a longtime federal public corruption prosecutor, where politics is right in the middle of everything. It’s critical that politics be parked outside the door. If federal prosecution is seen as a tool of politics, it loses the trust of the American people. Decisions must be based only on law and facts.
05:44 – Steve Bunnell
In public corruption, the very fact of an investigation can impact someone’s life. There’s the concept of predication – you need specific evidence of a federal crime before you start investigating. That’s part of discretion.
05:58 – Ken Wainstein
Honesty and integrity are so important for legitimacy. Jurors and judges won’t give you credit for style points; they need to believe you’re telling the truth. You also need passion – you have to care about law enforcement, public safety, victims. And you need respect for the institution, for the norms that have developed over decades. You’re either leaving the place better or worse than you found it.
06:30 – Steve Bunnell
I always tried to go to farewell events when people left the office. It was uplifting to hear them articulate what the job meant. It’s a special job. And that transitions us to a special person we both worked with – Bob Mueller. Can you talk about how he fits into this?
06:49 – Ken Wainstein
Bob passed away this March. His career was legendary and incredibly impactful. He was a prosecutor in San Francisco, then Boston, then came to Main Justice, and at the end of the George H.W. Bush administration he was assistant attorney general overseeing the criminal division – one of the top positions at DOJ. He left and went to a law firm, but didn’t stay long. He had to come back to public service.
In early 1995, DC was the murder capital of the world. Bob decided he wanted to be a line homicide prosecutor. He called Eric Holder, the U.S. attorney, and said he just wanted to be a line prosecutor. He parked himself right down the hall from us.
07:36 – Steve Bunnell
It’s hard to appreciate how unique that path was – from assistant attorney general to line attorney in the homicide section, handling DC superior court cases. Only somebody devoid of ego would do that. He took over my caseload and my interior office without a window – a guy who used to have three secretaries. It was remarkably inspirational. He was saying, “What you’re doing as a line prosecutor is sufficiently important that I want to come into the trenches with you.” It made me not want to leave the homicide section.
He never used the word “I” – always “we.” He was about the team. He’s a Marine running to the sounds of gunfire.
08:16 – Ken Wainstein
He went into court with absolute integrity and won the admiration of judges and homicide detectives. He cared deeply. One time there was a tragic murder at a Starbucks near his house. He went to the scene, and three young kids had been killed. He came back to my office visibly upset. Here’s a guy who’d been through Vietnam and been shot in combat, and he was really touched by what happened to those kids. He shared that with us.
The people who really do the work in homicide cases are the detectives. We’re fortunate that an old friend, Guy Middleton – a homicide lieutenant back when Bob served – joined us for a few minutes.
08:53 – Steve Bunnell
Guy was one of the best of the best.
08:56 – Ken Wainstein
Guy, good to see you. Thanks so much for joining us. First, introduce yourself and what you did at MPD.
09:03 – Guy Middleton
I’m a native Washingtonian. I did 29 years on the Metropolitan Police Department. About half of those years were spent in the homicide branch, as a sergeant and then as a lieutenant, responsible for investigating murders in DC at a time when there was a very high level of homicides.
09:23 – Ken Wainstein
That was the early to mid‑90s – upwards of 450 murders a year. You guys were going to five murders a night.
09:32 – Guy Middleton
Nonstop. It was like triage. You worked on cases that offered the most promise. Limited resources – limited detectives, forensics, pathologists. We did the best we could until the murders started to decline.
09:48 – Ken Wainstein
And a lot of the work in solving murders and convicting those responsible was done with federal prosecutors. Then a fellow by the name of Bob Mueller walks in.
10:00 – Guy Middleton
Bob Mueller showed up in the homicide section and made an impression. He was a no‑nonsense, straightforward, hardworking prosecutor. He came in looking to understand and prosecute homicide defendants, and with his expertise and the help of detectives who came to trust him, he got a lot of convictions and shut down repeat killers.
10:24 – Ken Wainstein
Bob was different from most prosecutors – older, seasoned. How did you end up getting along with him?
10:32 – Guy Middleton
Everybody enjoyed working with Bob. Everybody liked his work ethic. He was full steam ahead. They say you don’t join the Marines, you become a Marine. Bob Mueller was unequivocally a Marine in that office. All about business, all about successfully accomplishing the mission. We really enjoyed working with him.
10:54 – Ken Wainstein
What do you think drove Bob?
10:56 – Guy Middleton
I wasn’t a personal friend, but from my perspective, Bob was driven by doing what’s right, by seeing justice done. Federal prosecutors could be private attorneys making a boatload of money. When you choose to take an oath to be a public servant, it’s a dedication to the work. As detectives, we feel the same way. It’s encouraging to work with prosecutors who feel exactly the same.
11:24 – Ken Wainstein
Very well said. Thanks for joining us and for sharing your memories of Bob Mueller. Thank you for your service to Washington DC.
11:33 – Guy Middleton
Thank you.
11:36 – Steve Bunnell
You know, Ken, one of the great things about having Guy here is that he highlights a lesser‑known part of Bob Mueller’s career – his time in the homicide section. A number of former colleagues recently published a letter about him. It describes the remarkable thing about a former assistant attorney general coming into the “constant state of barely controlled chaos” of the homicide section. Bob threw himself into the work, developed rapports with civilian witnesses, colleagues, and detectives. The letter describes him as an exceptional homicide prosecutor, capturing the empathy and emotional demands of the role. It also talks about his soldierly bearing and reserved demeanor, but the takeaway is that he deeply cared about public safety and loyalty to his colleagues.
The last paragraph is particularly moving. Ken, would you read it?
12:26 – Ken Wainstein
“Bob went on to arguably more important jobs after a few years – ultimately FBI director. But he often said that he never had a better job than working for justice as an assistant United States attorney. And he was always very proud of his service in Washington, DC. His colleagues then say: We are also proud of our service together, and we remain thankful that Bob joined our ranks during that trying time, and that he was and always will be one of us.”
Bob really reflected the best of federal prosecutors – as close as you can get to the ideal that we all strive to emulate. We all count ourselves proud to have served with him.
13:12 – Steve Bunnell
I want to thank you, Ken, as somebody who was quite close to Bob, for sharing your thoughts. This is a particularly important time to reflect on that aspiration – to have prosecutors who live up to the finest traditions of the Justice Department. Nobody did it better than Bob Mueller.
13:28 – Ken Wainstein
Amen. Thanks, Steve. It’s been a pleasure.
13:32 – Steve Bunnell
Thank you, Ken.
On behalf of Ken Wainstein and me, thank you for listening. This is Steve Bunnell for the Steady State Sentinel – still standing watch.