Former Top Prosecutor: As Bulger Goes On Trial, So Does FBI

Jury selection in James "Whitey" Bulger's murder and racketeering trial starts Tuesday, and during the trial you can expect to hear a lot about how the FBI and the Department of Justice do business.

During the 16 years Bulger spent in hiding, many people wondered whether the FBI really wanted to find him. After all, his capture stirred up fresh questions about how much help he received over the years from federal authorities.

To get a sense of what this trial means to the FBI, WBUR's All Things Considered host Sacha Pfeiffer spoke with Don Stern, former U.S. attorney for Massachusetts, and asked him just how deep the FBI's special treatment of Bulger went.

Don Stern: That's to some extent in dispute. Certainly he was opened as an FBI informant, and what was referred to in those days as a top-echelon informant — without the kind of checks and balances that one would have hoped for and expected and, I like to think, is happening now. The relationship between an agent and an informant has got to be a one-way street. In other words, the informant provides information to the government. Now, he might do that in exchange for some break on a case, but the information doesn't go the other way. The agent is not supposed to be giving information to the bad guy. And that's what happened here.

Sacha Pfeiffer: The Bulger debacle did result in tightened standards at a federal level for how informants should be used and handled. But the Bulger experience seems to have very much created distrust between the FBI and other law enforcement agencies, particularly State Police. How would you describe what the Bulger incident did to the law enforcement relationships among agencies?

Well, it was very corrosive. And I'm not sure I fully realized it back when we were starting the investigation, but there was incredible distrust between the State Police, particularly Massachusetts State Police and the FBI. This was the third rail of law enforcement. This case became the thing people thought about and was the overarching tenor of the relationship.

And it was the third rail because suddenly other law enforcement agencies realized that not only was the FBI withholding information, but their relationship with Bulger was compromising investigations that other law enforcement agencies were doing?

That's correct. Sometimes the information that he was providing was about other criminal activities of others as a way of eliminating the competition.

And some of the tips Bulger received may have led to murders.

Oh, sure. Some of the information he received, allegedly, was that certain people were providing information to law enforcement, and then, of course, those persons were murdered.

As you know, Bulger has also claimed that he had immunity for any crimes he committed by federal prosecutors. Now, the judge in the case, Denise Casper, has said that claim cannot be presented to the jury. But has that been another lesson: that it has to be very clear what kind of immunity an informant can and can't be granted? For example, you would never be immune for murder?

I can't imagine that that would be the case. And, of course, the Bulger claim is hard to fully get your arms around, because his claim seems to be not only that he was given immunity for past murders, but sometimes the claim seems to be almost a license to kill, which is, "I'm providing information to the government, and they think that's so helpful that not only have they forgiven me for past murders but they think it's OK to commit future murders." It's an untenable legal proposition and I think the judge ruled correctly.

Do you expect this trial to be as much the FBI on trial as Bulger on trial?

I think that's going to be the tension in the courtroom from day one. [Bulger's attorney] Jay Carney, who's a very skillful defense lawyer, and his team will be looking to put the FBI on trial, and that's going to be the tension.

The judge has ruled that the immunity claim can't be presented before the jury. But the ability to have Bulger's state of mind become part of the trial is going to be there, and it's going to be hard for the judge to kind of totally keep that out of the picture.

Bulger's state of mind in terms of how he believed his relationship and friendships with FBI agents gave him license?

Right. So there are going to be witnesses who are going to be testifying, cooperating witnesses who themselves have cut deals with the government, and they're going to be cross-examined about their relationship with the FBI and what they got in exchange for cooperating with the FBI and now being a witness. So it's going to be messy. There are going to be very few witnesses that don't have some baggage.

Do you think there are more corrupt agents to be rooted out?

I think there are probably other agents who participated in wrongdoing, no question about it.

Involving Bulger?

I think probably that's true. I'd be very surprised if any of them are either alive or can be prosecuted within the statute of limitations. But, you know, these series of incidents and this saga has been a sore in law enforcement in the Boston area for a long time. And I think the value of the trial and actually going forward is to sort of, if you will, pierce that boil and to bring out whatever there is to bring out. And I really do hope that the FBI — and I think they have to some extent, not perfectly — but I think they have absorbed the lesson of Bulger. And I think, as an institution, the FBI has changed significantly since back in the bad old days when Bulger and [his FBI handler] John Connolly had this unholy alliance.