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(Photo by Trillion of two kick ass Harley men who are NOT named either Guiliani or D'Amato, as far as I know.)

When I get asked why it is that the politicization of prosecutorial discretion ticks me off so much — the "everybody does it" question — I try to explain why this is so very, very bad.  For all of us, regardless of political affiliation.  Michael Powell, writing for the NYTimes Week in Review, hit the nail on the head with this:

This is not so simple as a lament for giants who strode the earth. It is also true that a giant can stomp carelessly on those who do not deserve prosecution. And the new generation has a star or two. United States Attorney Patrick J. Fitzgerald has drawn many eyes to Chicago, where he has won indictments of dozens of defendants in public-corruption cases. Most recently, he did a turn on the stage in Washington, successfully prosecuting I. Lewis Libby Jr., a top aide to Vice President Dick Cheney.

Yet the geography of prosecutorial power has shifted in the past two decades. Prosecutors struggle more and more with straitened budgets and rules, and a Justice Department that holds a far tighter leash.

“Power is much more centralized in the Department of Justice than it ever had been,” said Professor Bruce Green, a former assistant federal prosecutor in New York and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law. “Nowadays, the Justice Department knows much more about which cases you’re bringing and the sentences you’re handing out.”

“In the past we felt more empowered to ignore them,” he said.

Three changes help explain that shift. Sentencing reform in the mid-1980s circumscribed the discretionary power of prosecutors and judges. At the same time, the Internet has aided the collection and centralization of information, greatly expanding the Justice Department’s ability to track a wide variety of cases on the local level.

Finally, there is the regimen imposed by the Justice Department, which places a high premium on loyalty. President Bush’s first attorney general, John Ashcroft, required that his prosecutors seek the toughest sentences, particularly in terrorism and death penalty cases. All of this chews at the core of a prosecutor’s power, which is about the exercise of choice.  (emphasis mine)

It's a great article, placing a lot of the questions raised by this mess into context — so go read the whole thing.  Then ask yourself:  What price loyalty?  What price was demanded and/or extracted?  And at what cost to the rest of us that that question will now be asked with each and every prosecution of criminals in this country so long as Bush appointees are at the helm in USAtty offices across the nation?  What was given in order to get — or to maintain — the position?  Or to attain, still higher, the federal bench? 

That is far too high a price.

It is one thing to ask that the attorneys that you appoint are people whose political philosophy is close to yours, that they will be looking at the law and the facts of a particular case through that lens, and that they will be fair and judge each case impartially but with their own beliefs and life experiences as a part of that judgment.  That is how things always work, because elections do, indeed, have consequences.  But to ask that the facts be damned and the law be cast aside in order to shove through an ends justifies the means strategy through from Rove's shop?

And the worst of this?  Most of the folks who are working as career AUSAs, and even a significant number of the folks who are USAttys (even those you might assume would be political appointment cronies and hacks), are protective of the system by trying to mitigate the damage of demands coming from the political appointment hacks who now roam the halls of the DoJ, by trying to insulate the AUSAs from this insidious creeping taint eminating outward from the Bush Beltway, so that they can continue to do their duty and fulfill their own oaths to uphold the Constitution of the United States and the laws.  But for how long? 

In 1940, the AG was Robert H. Jackson, who later went on to become a justice on the US Supreme Court.  He gave a speech to the newly minted USAttys at a time when he had only been at the helm of the DoJ for three months — but this speech is a very, very famous one in terms of standards and practices for prosecutors.  I wanted to share a bit of it with you this morning:

…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.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor….

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 it 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.

This has stood for years as the standard in terms of philosophy and even-handedness — of a blind application of the law and the facts of a particular investigation, regardless of the subject. There have always been individuals who have atempted to subvert the process for one poitical reason or another, but they were, in due course, ground under by the slow turning of the wheels of justice which evens out the process in its slow, snaking wind through the system of courts and appeals.

It is this process that the Bush Administration, under the tainted hand of Rove's shop, has sought to pervert the nation's system of justice to its own ends. Not through some scheme in which the bulk of the USAttys and their AUSAs participated, but in a scheme eminating from the White House political ops and aided and abetted by the political appointees who scurry the halls of the vaunted Department of Justice once run by the likes of Robert H. Jackson.

From time to time in the halls of government, giants roam.  People of such substantial moral character, breadth of vision, and commitment to ethical treatment of all Americans — regardless of race, social standing and connections, gender, political afilliation, and whatever other standard may be thrown into the mix for segregating an "us versus them" mentality in the mix.  During those times, the rule of law is paramount, and justice is applied blindly to the facts and the precedents, as it should be.  The law should never be used as a club, wielded to take out ones political enemies — and the Presidency should not be sullied by the likes of Karl Rove, seeking to pervert everything in his path as a means to whatever ends he may see fit.

In the halls of the Bush Administration, all I see are diminished, power-hungry, craven cowards who hide in the shadows and pull dirty tricks and perversions of the law out of their hats in the service of "winning" at any cost, without regard for what is lost in the process — who we ought to be, what our aspirations ought to be, as a nation.  The likes of Robert H. Jackson are nowhere to be found. 

Who will emerge, to stand once more for decency and justice?  Let that be you and me, for we cannot depend on anyone else to do this in our stead.  The authority to ensure that we have a Republic, if we can keep it, is vested in our hands.  All of our hands.

Of course, I could have done without this image in the NYTimes article:  "So Mr. Giuliani in 1986 donned a Hells Angels vest and sunglasses and traveled with the similarly disguised Senator Alfonse M. D’Amato to Washington Heights to buy crack."  Oh yeah, you blend.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com