an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In the recent history of our country, the calling of federal prosecutor has been a vital one. It has in a sense been the most critical building block upon which the American democracy has rested, for it assures justice, without which we would have no democracy. Thousands of young Americans who aspire to a career in public service seek and secure positions as assistant United States attorneys. Many of these individuals—a disproportionately high number of them in fact—go on to pursue careers in politics. In recent decades there has been no more important well from which the two great political parties have drawn human material.
Yet in my lifetime the reputation of federal prosecutors has never sunk quite so low as it stands today. And the reason is simple and obvious: we have witnessed a wholesale betrayal by federal prosecutors of their sworn duties to the nation, the law, and, most importantly, to the unswerving pursuit of justice. Instead, the objectives of a political party have been permitted to supplant independent professional judgment and corrupt the system.
The last six years have introduced terrible problems in the country in many areas, including foreign military adventures and gross fiscal mismanagement. But in my view, no problem is more important than the demolition of the integrity of the office of federal prosecutor. Salvaging the reputation of prosecutors, taking a decisive step away from politicization that has been so pernicious in recent years, must stand at the top of the agenda of the next president. Similarly, accountability must follow.
It is not enough simply to expose the unethical and politically inspired deeds of these prosecutors and to rescue the persons who have suffered persecution through their abuse of public office. It is also essential that the prosecutors who have misbehaved be held to account for their misconduct. That must happen through the appointment of a special prosecutor tasked to investigate politically manipulated cases, such as those in Alabama, Michigan, Mississippi, Pennsylvania and Wisconsin, as well as the voter-suppression programs. In many of these cases there is already sufficient evidence to warrant an investigation whether the prosecutors’ conduct passes beyond bad judgment and into the realm of criminal wrongdoing.
Similarly, bar associations around the country have a responsibility to society to enforce their own ethical standards—and that includes closely scrutinizing the ethical misconduct of prosecutors. Typically bar associations deal ruthlessly with the small-time lawyer down on his luck and shy away from cases involving those invested with great power. In the legal world no one is invested with greater power than the federal prosecutor. But it is time for the bar ethics process to muster the courage and resolve necessary to attack a great ill that is undermining the public’s confidence in the rule of law and the legal profession.
Prosecutors hold a great public trust, and the mismanagement of that trust requires a severe discipline. Today we learn that Michael B. Nifong, the notorious prosecutor in the Duke University lacrosse case, is scheduled to report to jail in North Carolina to serve 24 hours for criminal contempt. The Nifong case should serve as a cautionary tale for prosecutors who have misbehaved; a demonstration that prosecutors can be held to account.
Frankly in the end, the misconduct of Mr. Nifong was spectacularly hyped in the media, but it is no less offensive than things done by federal prosecutors in Alabama and Wisconsin. Mr. Nifong admits he was making a play for the support of a certain voter community. The Alabama and Wisconsin prosecutors were engaging in a sweeping political play in which they consciously sought to tilt their state’s political landscape by bringing bogus charges. Severe judgment needs to be passed on such corrupt conduct.
On April 1, 1940, one of the greatest attorneys general in U.S. history, Robert H. Jackson, addressed a gathering of U.S. attorneys in the Great Hall at the Department of Justice in Washington. His words set a standard for how federal prosecutors should conduct themselves—a standard which seems to have faded into oblivion in the era of the Karl Rove-Alberto Gonzales Justice Department. His words need to be recalled today:
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. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved. . .
Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice. It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled. . .
Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called “the shadow cast by one’s daily life.” Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.
The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.
There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.
In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor. . .
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in 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 has in a few words very eloquently identified the calling, the aspiration of prosecutors, and he has highlighted the sharp prospect of abuse—abuse of which we read in these anxious days with every newspaper that lands at our doorstep. The proper response to this abuse is anger and concern for the damage to our country that this is bringing. The proper reaction is to demand accountability. We are as yet only at the start of that path.
If everything that Mr. Horton complains about were fixed, then the job of prosecutor would still be worthy of disrespect, because prosecutors' main calling is to increase the level of crime in the U.S., and to keep the downtrodden in their places, by prosecuting people for distributing and using certain drugs. With the new problems that Mr. Horton discusses, drug prohibition has not been getting much attention recently, but it remains the single greatest blight in our society.
In roughly 3000 words calling for "a special prosecutor tasked to investigate politically manipulated cases, such as those in Alabama, Michigan, Mississippi, Pennsylvania and Wisconsin, as well as the voter-suppression programs," I did not see one scintilla of actual evidence of anything remotely improper, nevertheless Nifong (or Ronnie Earle) style willful criminal activity.
jsalvati: You mean the prosecutors are only following orders? (I am making an analogy to Nuremberg, but not comparing prosecutors to Nazis.) I am not a prosecutor but I am regularly called as a juror in state court, and, whenever I am in the jury pool for a drug distribution or possession case (which is the majority of the time), I inform the judge that I will not convict no matter what the evidence.
"we have witnessed a wholesale betrayal by federal prosecutors of their sworn duties to the nation, the law, and, most importantly, to the unswerving pursuit of justice"
I think your formulation here is particularly problematic. What essentially describes the current American political situation is that it is riven by deep disagreements over what "justice" and "nation" actually is.
Abstracting the situation: in some theoretical nation, there are two major political groupings. Each, to some extent, believes the other group wishes to overthrow the current government (which is a mish-mash of old policies and decisions, as well as laws and institutions created by both political groupings as well as earlier, now extinct political groups) for a significantly different form of government.
So, in the macro sense, "nation" is percieved correctly by both groups to be best defended by each group entirely destroying the other. Since the other group is making all efforts to destroy the "nation" and "justice", "justice" is best achieved by ruthlessly silencing / suppressing the other group.
So what we run into is: if the regime is truly democratic, then it can change it's constitution as often as the majority of the voters want it to - there is no eternal or external justice. Justice is whatever the majority of voters says it is at any moment. So, whomever has the majority of votes at any moment rules, and rules absolutely (until the voters expell them).