It’s a hard path to ending the politicization of indictments, investigations, and other legal tools.
Adam J. White July 20, 2020
Reprinted with permission from the City Journal. I recommend subscribing to their e-mail alerts.
In our constitutional system of checks and balances, ambition
counteracts ambition. But what happens when prosecutors are the most
ambitious of all? Last month, Justice Samuel Alito raised this question
in the opinion that he issued on the Supreme Court’s closing day of
regular business this session, in the case of
Trump v.
Vance. A seven-justice majority had
rejected
President Trump’s claims of total immunity against subpoenas from
Manhattan district attorney Cy Vance, and Justice Alito—himself a former
federal prosecutor—warned that his colleagues were courting
constitutional disaster:
There are more than 2,300
local prosecutors and district attorneys in the country. Many local
prosecutors are elected, and many prosecutors have ambitions for higher
elected office. . . . If a sitting President is unpopular in a
particular district—and that is a common condition—targeting the
President may be an alluring and effective electoral strategy.
Of course, there are many kinds of prosecutorial ambition. Some might
be ambitious for lucrative law-firm partnership seats, or judicial
appointments; others might simply like sending a message to criminals
that they are the toughest guy on the block. And others—surely the vast
majority—are simply ambitious to do the best possible job they can,
using all the legal tools at their disposal.
But here is the problem: there are many tools—and few practical
limits upon their use. While a prosecutor can’t put a defendant in jail
without a judge, or a jury, or the defendant’s own guilty plea, there
remains much that he or she can do to secure such convictions or plea bargains, or at least to make the defendant feel the pain of the criminal process.
Judge Jed Rakoff warned of this six years ago in “Why Innocent People Plead Guilty,” a widely read essay for the
New York Review of Books.
Rakoff, one of the nation’s leading judicial thinkers on the left and
himself a former federal prosecutor, observed that federal sentencing
guidelines and statutory mandatory-minimum sentences “provide
prosecutors with weapons to bludgeon defendants into effective coerced
plea bargains.” Moreover, he added, the prosecutor “can effectively
dictate the sentence by how he publicly describes the offense.” That is,
if the defendant does not accept a privately negotiated deal to plead
guilty to a relatively low offense, perhaps with no jail time, the
prosecutor will take him to court with much more significant criminal
charges that could bring about years in prison. “Put another way,”
Rakoff concludes, “it is the prosecutor, not the judge, who effectively
exercises the sentencing power, albeit cloaked in the charged decision.”
Rakoff might have added that the prosecutor’s immense advantage in a
court of law is dwarfed by his still greater advantages in the court of
public opinion. A prosecutor can destroy a defendant’s reputation,
family life, and career prospects with a single press conference—or with
one of the on-camera “perp walks” that Rudy Giuliani pioneered as a
federal prosecutor in Manhattan, which raised questions of due process
and fundamental fairness.
Rakoff’s warnings echoed a
speech
that Attorney General Robert Jackson delivered in April 1940 to a
conference of federal prosecutors. In that speech, perhaps the most
famous in the Justice Department’s 150-year history, the future Supreme
Court Justice called his audience of U.S. Attorneys “one of the most
powerful peace-time forces known to our country”:
The prosecutor has more
control over life, liberty, and reputation than any other person in
America. His discretion is tremendous. He can have citizens investigated
and, if he is that kind of person, he can have this done to the tune of
public statements and veiled or unveiled intimations. Or the prosecutor
may choose a more subtle course and simply have a citizen’s friends
interviewed. The prosecutor can order arrests, present cases to the
grand jury in secret session, and on the basis of his one-sided
presentation of the facts, can cause the citizen to be indicted and held
for trial. He may dismiss the case before trial, in which case the
defense never has a chance to be heard. Or he may go on with a public
trial.
Jackson warned that the prosecutor’s power and discretion—and thus
the need for restraint, and for self-restraint—would be at its zenith
during times of political warfare. “In times of fear or hysteria,” he
warned, “political, racial, religious, social and economic groups” will
“cry for the scalps of individuals or groups because they do not like
their views.” Such cries for prosecutorial vengeance would come not just
from the worst of motives, but also “often from the best.” And so, he
concluded, the rule of law and the public interest would depend upon
“the prosecutor who tempers zeal with human kindness, who seeks truth
and not victims, who serves the law and not factional purposes, and who
approaches his task with humility.”
Jackson’s remarks came to mind in the last
few weeks, as the power of prosecution and the dangers of its
politicization returned to the headlines. In early May, the Justice
Department concluded a three-month internal investigation into the DOJ’s
and FBI’s handling of the investigation into former National Security
Advisor Michael Flynn, who had pleaded guilty in late 2017 to charges of
lying to investigators about the details of a December 2016 phone
conversation with Russian ambassador Sergey Kislyak. Flynn’s plea
bargain occurred under the shadow of leaked
reports
that the DOJ could indict his son, too. But before proceedings
concluded in the trial court, Flynn complained that he had been treated
unfairly by prosecutors. In May 2020, the Justice Department finally
agreed, filing a motion to erase Flynn’s guilty plea and dismiss the
charges because the department concluded that it could no longer prove
beyond a reasonable doubt that any false statement he made was material
to a legitimate FBI investigation.
As Eli Lake detailed in a
thorough article for
Commentary,
the now-public record does raise significant questions about whether
the investigators who questioned him during the January 2017 interview
at which Flynn allegedly lied, and the broader FBI investigation itself,
had mistreated Flynn. Flynn’s
critics
replied, in turn, that the investigation was warranted from the start;
that his statement to investigators that he had not discussed sanctions
on the phone with Kislyak was not merely mistaken but an intentional
lie; and that the department could not plausibly disclaim an ability to
prove Flynn’s guilt beyond a reasonable doubt when Flynn himself had
already admitted guilt in his plea bargain. (Whatever one thinks of the
first two of those points, critics making the third point ought to read
Rakoff’s essay.)
Upon receipt of the Justice Department’s motion to dismiss the case,
Judge Emmet Sullivan undertook an astonishing assertion of control over
the DOJ’s prosecution, inviting a retired federal judge and the public
at large to make arguments in favor of completing the prosecution that
the prosecutor itself no longer stood behind. The U.S. Court of Appeals
for the D.C. Circuit promptly heard arguments on Flynn’s petition to
block Sullivan’s proceedings; in June, it issued a
decision preventing Sullivan’s radical intervention.
As the D.C. Circuit explained, Judge Sullivan had confused his own
narrow authority for the Justice Department’s very different
responsibility. While a judge hearing such a motion to dismiss the case
after a guilty plea should be on the watch for “extraordinary” cases of
“harassment of the defendant or malfeasance such as bribery,” in the
absence of such evidence the decision to drop a prosecution rests solely
in the hands of the prosecutors—and for good reason. The Justice
Department, exercising a part of the Constitution’s executive power on
behalf of the elected president, must have total discretion to end a
prosecution “in the interest of justice” when “evidence comes to light
calling into question the integrity or purpose of an underlying criminal
investigation.” Judge Sullivan’s proceedings were geared toward
scrutinizing and second-guessing prudential and legal judgments
committed to the prosecutor’s broad discretion. For that reason, the
D.C. Circuit stopped the process before it could go any farther.
Sullivan has
appealed to the Supreme Court to vacate the D.C. Circuit’s decision, but barring further developments, the Flynn case is over.
Supporters of Flynn—and President Trump—celebrated the D.C. Circuit’s
ruling. And it no doubt gave them a great victory. But it also
vindicated one of the core arguments that President Trump’s critics have
made from 2015 onward: namely, that it is impossible in presidential
politics to separate character from policy. The Flynn case—from its
origins in the Obama administration to its evident conclusion in the
Trump administration—reminds us that immensely consequential matters are
committed to the nonpublic discretion of Justice Department officials
who answer to the president and his political appointees.
Indeed, that’s why Alexander Hamilton predicted—or at least
hoped—that the Constitution’s framework for electing the president and
appointing his administration’s chief officers would screen out unfit
characters. The Electoral College was needed to ensure that the
presidency would be entrusted to “
characters pre-eminent for ability and virtue,”
and the Senate’s power to confirm or reject officer appointments was
needed to ensure that a president would not simply fill high offices
with men who would be little more than “
obsequious instruments of his pleasure.”
The Constitution’s framework for filling these offices is important
precisely because the offices themselves, including the Attorney General
and U.S. Attorneys, are so powerful. The power and discretion committed
to those offices also justifies the public’s instinctual recoil from
any signs of partisanship or politicization in a prosecutor’s office.
To that end, on June 24, the same day that
the D.C. Circuit issued its decision in the Flynn dismissal case, the
House Judiciary Committee held a
hearing
on “Political Interference and Threats to Prosecutorial Independence.”
News coverage of the hearing was dominated by the testimony of former
assistant U.S. Attorney Aaron Zelinsky, part of the Justice Department
team that prosecuted Roger Stone. Zelinsky
told
the congressmen about a rumor that the lead prosecutor “was receiving
heavy pressure from the highest levels of the Department of Justice to
cut Stone a break,” though Zelinsky could not directly confirm these
vague rumors himself. At the same hearing, former Attorney General and
federal judge Michael Mukasey also
testified,
denouncing the FBI’s reported treatment of Flynn, including the threat
to prosecute Flynn’s son, and supporting Attorney General William Barr’s
leadership. Judge Mukasey fully supported the Justice Department’s
decision to dismiss the Flynn case: “the duty of the Department is to do
justice, and that does not end after a guilty plea,” especially upon
“the disclosure of new information that shows continued prosecution
would be a miscarriage of justice.” For all their disagreements, both
Mukasey and Zelinsky—and all other participants at the hearing—denounced
politicization of the prosecutorial process. They simply disagreed
about
who was politicizing it.
But just as surely we criticize prosecutorial politicization, that
politicization will continue, at the federal and state level alike.
Recent U.S. attorneys general, including
Eric Holder and
Barr,
could not resist the urge to deliver passionate speeches that, whatever
their merits, undermined their ability to present themselves as
nonpartisan administrators of justice. Surely their successors will not
resist that urge, either.
Moreover, Congress itself plays a major part in the politicization of
federal prosecution, by using hearings to try to leverage information
gained by prosecutors—as we saw most recently by congressional
Democrats’ attempts to turn the Justice Department’s internal “special
counsel” investigation, led by Robert Mueller, into
a fact-finding mission for Congress’s own political ends.
Meanwhile, at the state and local level, Justice Alito’s worries
about politicized prosecutors are more than justified in light of
energetic political campaigns to win district-attorney offices for
nakedly political ends, as former federal prosecutor Andrew McCarthy
recently detailed in an essay for
Commentary titled “
The Progressive Prosecutor Project.”
But the worst and most corrosive politicization of prosecutorial
power now happens in our presidential campaigns. In 2016, Trump told his
opponent Hillary Clinton, on the presidential debate stage, that in a
Trump administration, “
you’d be in jail,” and at campaign rallies he encouraged cheers of “
Lock Her Up.” (Michael Flynn, ironically,
led a few of those cheers himself.) Trump is not the last presidential candidate to do it. While Joe Biden so far has
sidestepped
calls to investigate the administration by saying that he would defer
to the Justice Department, the DOJ might well be run by former
presidential candidates Kamala Harris or Elizabeth Warren, both of whom
tried to win political support among Democrats with talk of
prosecuting and
locking up Trump.
In short, just as there is broad bipartisan agreement that
politicization of prosecution is terrible, there is also broad
bipartisan agreement that one’s opponents need to be locked up for their
terrible crimes.
Months after asserting that Trump needs to be put “
in handcuffs and indicted,”
Warren released an official policy plan for the Justice Department to
go after him. “If we are to move forward to restore public confidence in
government and deter future wrongdoing,” she
declared, “we cannot simply sweep this corruption under the rug in a new administration.”
Warren is not the first to believe that national reconciliation
depends on investigating and prosecuting a prior presidential
administration. Conservatives and progressives alike have made
similar calls for a lock-them-up approach to national unity.
They call to mind, again, Attorney Jackson’s famous
speech
on the dangers inherent in prosecutorial power. For as Jackson warned,
prosecutorial power is dangerous not only when the prosecutor “acts from
malice or other base motives,” but also when prosecutors or their
supporters believe that they are acting from the
best of motives:
that is, when “in times of fear or hysteria,” they demand “the scalps
of individuals or groups because they do not like their views.”
Of course, no one will ever admit—or even believe—that he wants to
see his political opponents handcuffed merely because he dislikes their
views; he only wants justice, he’ll insist, and his opponents happen to
be criminals, or should at least be investigated for any crimes they may
have committed. And for the same reason, supporters of the prosecuted
partisan will have a hard time believing that.
There is only one way out of this, and it is not vengeance but
self-restraint. National unity in support of the rule of law will be
impossible until a president commits to
holding his own administration and friends to high ethical and legal standards
while granting a measure of self-restraint when applying the law to the
other party. The Constitution will never be threatened by partisans
being too lenient to their opponents and too aggressive toward
themselves. We face the opposite problem.
Adam J. White is a City Journal
contributing editor, a resident scholar at the American Enterprise
Institute, and director of George Mason University’s C. Boyden Gray
Center for the Study of the Administrative State.
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