No Comment — December 22, 2010, 11:18 am

Rethinking Public Integrity Prosecutions

In the last month, Texas prosecutors secured a dramatic conviction of former House Republican leader Tom DeLay, and the Justice Department announced it was not going anywhere in its long-standing inquiries into ethics violations involving Senator John Ensign, Representative Jerry Lewis, and a number of other prominent political figures (including DeLay). These developments have led to pointed criticism of the Justice Department’s public integrity section, whose nose has been badly bloodied by a number of disclosures of serious misconduct, including a criminal probe focused on its past leaders arising out of their botched handling of a case against Senator Ted Stevens.

The ever-astute Charlie Savage has recapped these developments with an assessment of the Justice Department’s woes:

The Justice Department has shut down a wave of high-profile investigations of members of Congress over the past few months, drawing criticism that the government’s premier anticorruption agency has lost its nerve after the disastrous collapse last year of its case against former Senator Ted Stevens…

“They’re gun-shy,” said J. Gerald Hebert, the executive director of the Campaign Legal Center, a nonpartisan group that seeks greater disclosure of how money influences politics. But in interviews, Jack Smith, chief of the Public Integrity Section at the Justice Department, and his supervisor, Lanny Breuer, the assistant attorney general for the Criminal Division, hotly contested the contention that prosecutors were in retreat from taking on Congressional corruption. “It’s just not the case that anyone is gun-shy,” Mr. Breuer said. “If a case cannot be brought, it’s because we’ve taken a hard look and made the determination that this case cannot be proved beyond a reasonable doubt. And with all due respect to those outside the department, they haven’t seen the evidence. They don’t know the materials, and we’ve looked at it all.”

The problems that the Department faces are deep-rooted, and the gear-shifting that is evidently underway is entirely appropriate. The issues go both to process and to policy. The Stevens case and a host of others revealed serious flaws in the public integrity process at Justice: as Judge Sullivan intimated, prosecutors had adopted a “victory at all costs” attitude that led to unethical corner-cutting and the suppression of exculpatory evidence. In cases around the country, and particularly in the South, local U.S. attorneys turned to public integrity prosecutions as a form of political score-settling—a problem that has been present in the American justice system for over two centuries, but that Main Justice has generally attempted to restrain. In the Bush era, however, this process appears to have been spurred rather than retarded by Main Justice.

The policy issues are equally tenacious. Justice pursued public corruption matters relying heavily on a theory of “theft of honest services,” stretching a statute beyond its logical breaking point, as the Supreme Court concluded in Skilling. Moreover, the great bulk of the truly dubious cases came out of the dark woods of election financing—in many cases with federal prosecutors attempting to criminalize practices that were permitted under state law. With the Supreme Court’s ruling in Citizens United, which opened the floodgates of money as political speech, the efforts to criminalize campaign funding abuses seem truly absurd. The Justice Department’s efforts have boomeranged. Rather than demonstrating that the Justice Department is a guardian of the highest standards of conduct, the Department and its prosecutors have grown ever more deeply mired in partisan political muck. The Department’s reputation now stands at a modern low, thanks to the political machinations demonstrated in the U.S. attorney’s scandal, prosecutions like those of Stevens, Siegelman, and Minor, and the validation of torture and abuse and warrantless surveillance in the service of unethical clients.

“Conduct that people think is reprehensible or immoral doesn’t mean it’s criminal,” Assistant Attorney General Lanny Breuer observes. Indeed, the solution to much of the public integrity conundrum lies in transparency of process—insuring that the public learns of the foibles and ethics lapses of political leaders and can make appropriate decisions guided by this information. This, however, is not the proper role of the Justice Department, which seems these days almost obsessed with safeguarding its own dark secrets and occasional brushes with criminality from public gaze.

The Department’s public integrity section is under new leadership—the most highly qualified it has seen in recent decades. It has seized the right moment for an internal reassessment of the approach to prosecuting public corruption. That should entail recognizing that dedication to fair process must take a center seat even if some scoundrels get off the hook as a result. This reassessment must include some introspection about mistakes and abuses of the past as well, because the most serious misjudgments in the public integrity arena relate to active cases in which the Justice Department is defending utterly indefensible positions. In the end, the Justice Department will also have to learn to operate in the harsh sunlight of public attention, disclosing its mistakes and striving to correct them. This is the essential path back to public trust after years spent straying in the wilderness.

Share
Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

March 2016

Save Our Public Universities

= Subscribers only.
Sign in here.
Subscribe here.

The Rogue Agency

= Subscribers only.
Sign in here.
Subscribe here.

Mad Magazines

= Subscribers only.
Sign in here.
Subscribe here.

Killer Bunny in the Sky

= Subscribers only.
Sign in here.
Subscribe here.

Bird in a Cage

= Subscribers only.
Sign in here.
Subscribe here.

The Hidden Rivers of Brooklyn

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Save Our Public Universities·

= Subscribers only.
Sign in here.
Subscribe here.

“Whether and how we educate people is still a direct reflection of the degree of freedom we expect them to have, or want them to have.”
Photograph (crop) by Thomas Allen
Article
New Movies·

= Subscribers only.
Sign in here.
Subscribe here.

The Force Awakens criticizes American imperialism while also celebrating the revolutionary spirit that founded this country. When the movie needs to bridge the two points of view, it shifts to aerial combat, a default setting that mirrors the war on terror all too well.”
Still © Lucasfilm
Article
Isn’t It Romantic?·

= Subscribers only.
Sign in here.
Subscribe here.

“He had paid for much of her schooling, something he cannot help but mention, since the aftermath of any failed relationship brings an ungenerous and impossible impulse to claw back one’s misspent resources.”
Illustration by Shonagh Rae
Article
The Trouble with Iowa·

= Subscribers only.
Sign in here.
Subscribe here.

“It seems to defy reason that this anachronistic farm state — a demographic outlier, with no major cities and just 3 million people, nine out of ten of them white — should play such an outsized role in American politics.”
Photograph (detail) © Justin Sullivan/Getty Images
Article
Rule, Britannica·

= Subscribers only.
Sign in here.
Subscribe here.

“This is the strange magic of an arrangement of all the world’s knowledge in alphabetical order: any search for anything passes through things that have nothing in common with it but an initial letter.”
Artwork by Brian Dettmer. Courtesy the artist and P.P.O.W., New York City.

Number of people who attended the World Grits Festival, held in St. George, South Carolina, last spring:

60,000

The brown bears of Greece continued chewing through telephone poles.

In Peru, a 51-year-old activist became the first former sex worker to run for the national legislature. “I’m going to put order,” she said, “in that big brothel which is Congress.”

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Two Christmas Mornings of the Great War

By

Civilization masks us with a screen, from ourselves and from one another, with thin depth of unreality. We habitually live — do we not? — in a world self-created, half established, of false values arbitrarily upheld, largely inspired by misconception, misapprehension, wrong perspective, and defective proportion, misapplication.

Subscribe Today