Prosecutorial Discretion: What's Politics Got To Do with It?

Georgetown Journal of Legal Ethics, The, Summer 2005 by George, Sandra Caron

I. INTRODUCTION

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... . 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. [A] prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.... 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.. . -1

The investigation and prosecution, as well as the conviction, of government officials and corporate leaders has become so commonplace in the United States that one must wonder if the judgment of any public figure can be trusted. Has our power structure become totally, morally, and legally corrupt? Is the media suddenly paying closer attention to these charges? Or, is it simply that prosecutors are going after public officials and corporate executives with new zeal?

The answers to the first two questions are beyond the scope of this Note, which instead explores the issues surrounding the third question-the use of prosecutorial discretion to rein in public corruption and the goals and motives of individual prosecutors committed to this effort. Specifically, this Article explores the role of politics in prosecutorial decision-making and examines whether or not politics has an appropriate role to play in that context.

The recent example of former Maryland United States Attorney Thomas DiBiagio's directive to his staff that he wanted three "front page" public corruption indictments by November 6, 2004-a date four days after the 2004 presidential election-has certainly elevated concern about the use of prosecutorial discretion to achieve political goals.2 DiBiagio's emphasis on rooting out public corruption has also drawn criticism at a time in which the U.S. Department of Justice has made fighting terrorism its top priority.3 In fact, the U.S. Department of Justice took the rather unprecedented step of issuing a formal reprimand to DiBiagio for "allowing] political considerations-or the perception of such considerations-to taint the work done by our dedicated investigators and prosecutors."4

Even where prosecutors have not made such seemingly overt political statements, many have been accused of using their broad discretion to achieve political goals or advance their own political ambitions.5 New York Attorney General Eliot Spitzer, for example, has generated significant controversy in his crusade against corporate corruption. Certainly, Spitzer's attacks on corporate misfeasance in the aftermath of the Enron debacle are most likely justified, but Spitzer's prosecutorial decisions are nevertheless raising eyebrows.6

In a recent case, Spitzer came under fire for filing charges against Richard Grasso, the former chairman of the New York Stock Exchange ("NYSE"), for what Spitzer believes was a grossly inflated compensation package that Grasso received when he left the NYSE. Critics of Spitzer claim that he has gone after Grasso in lieu of the NYSE board because that would require investigating Carl McCaIl, a prominent New York Democrat whose support is essential to a potential Democratic gubernatorial bid by Spitzer in 2006.7 In fact, Spitzer recently announced that he intends to seek the governorship.8 Additionally, his acceptance of political contributions from individuals working in the industries he investigates has prompted concerns that these campaign contributions could cloud his prosecutorial judgment.9

Across the Hudson River in New Jersey, United States Attorney Christopher J. Christie has raised eyebrows with his own high profile investigations, particularly his investigation of a top fundraiser for then New Jersey Governor James McGreevey.10 While Christie, at the time of this Article, had not charged former Governor McGreevey with any crimes, Christie's indictment of the fundraiser included references to the governor, a move that many have criticized as a politically-charged effort to smear McGreevey.11 Until recently, Christie was seen by many as the likely Republican candidate in the 2005 gubernatorial election.12

The cautionary words of wisdom uttered by former U.S. Attorney General Robert H. Jackson, which open this Note, are just as pertinent today as they were sixty years ago.13 Few people will disagree that eliminating public corruption should be a law enforcement priority. However, the manner and context surrounding the acts of government prosecutors, like those mentioned here, raise serious questions about the potential use of prosecutorial discretion to achieve political ends.