Legal Commentary

Back in November, Paul Horwitz blogged here about a paper he's working on called Democracy as the Rule of Law, and linked to it at SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=150280.  Paul makes a sophisticated argument that the concept of the "rule of law" is more nuanced than it is often taken to be in public discourse about the possible criminal prosecution of senior members of the previous administration.  The New York Times editorialized on this issue yesterday, and used the phrase, so today is a good time for me to post my initial response to Paul's article.

     Horwitz argues that adhering to the ?rule of law? might, in certain cases, require abstaining from criminal prosecution, and that this is one of those times.  He posits a cycle of recurring political show trials in which each new administration gins up criminal prosecutions of its predecessor.  That eventuality, he argues, would undermine rule-of-law values more than would declining to pursue the investigation of possible crimes in this case (authorization of torture).  I think Horwitz overestimates the danger of recurring tit-for-tat political prosecutions, because he has not taken into account the internal dynamics of DOJ that militate against such a possibility.

    An important consideration in the balancing analysis must be the difference between career civil servants (most importantly federal prosecutors? but also federal judges), and non-career political actors in the executive branch.  It?s the excesses of the latter that, in Horwitz?s model, and in the current public debate about possible torture prosecutions, we are concerned to deter.  I think Horwitz overweighs the danger of retaliatory criminal prosecutions every election cycle and overestimates the likelihood that the federal criminal justice system could be co-opted in that way. 

    To prosecute someone, you have to convince an agency to investigate, a prosecutor to charge, a grand jury to indict, a judge to deny motions to dismiss, a jury to convict, and an appellate court to affirm.  That?s a lot of independent actors, who are not political hacks or sycophants, and who are in the criminal justice game for the long term.  They aren?t just going to rubber-stamp every electoral result with a bunch of guilty verdicts. 

     Look at, e.g., the Ted Stevens prosecution.  That wasn?t a political payback case, but I think it very nicely illustrates the main reasons political payback cases are likely to backfire.  The malfeasance alleged in the Stevens prosecution? paradigmatically pressure on witnesses and Brady violations?  is exactly what you?d do if you were trying to railroad a political opponent after a change in administrations.  You?d root around their past, coerce potential witnesses by threatening to prosecute them, and then suppress exculpatory witness statements.  This is, broadly, what is alleged to have happened in the Stevens case.  And the case fell apart because there were multiple independent actors who are career civil servants with institutional protection against political pressure.  Here that was the FBI agent(s) who blew the whistle on the Brady issues, and the judge who thought he smelled a rat.  And now several members of the public corruption unit are facing internal discipline and perhaps bar sanctions or criminal prosecution themselves.   Prosecutors don?t just go and do the president?s bidding; they have to answer to other masters, most importantly the bar and the court. 

    If we again assume Horwitz?s worst case, let?s say that at least some of the contested U.S. Attorney replacements were explicit attempts to use the mechanisms of criminal prosecution to go after political opponents.  This has been alleged in the Missouri and New Mexico cases.  I would say the outcome of that experiment shows that it?s not an effective strategy.  Career civil-service prosecutors are not going to willy-nilly indict the losers in each election cycle, and judges are not going to play along either.  This is not the 1800s? I think it makes all the difference in the world that we now have career federal line prosecutors who genuinely believe in independence, ethics, and the Hatch Act and all its penumbras.  There is no such culture in the world of non-career political appointees, political advisors, and political candidates. 

    The ne plus ultra of this dichotomy is the now-famous story of James Comey and Robert Mueller vs. Alberto Gonzales and Andrew Card, facing off in John Ashcroft?s hospital room.  Our key question in evaluating Horwitz?s model should be: What distinguishes Comey and Mueller from Gonzales and Card?  We should not lump them both into a single ?executive branch? category.  To my mind, career civil servant vs. political appointee is the much more salient distinction. 

    Comey and Mueller were both career federal prosecutors who served under administrations of both parties (starting in 1987 and 1976, respectively).   How they reacted to proposed illegal wiretapping and the attempt to strongarm Ashcroft in January 2006 speaks volumes, I think, about the different cultural attitudes toward rule-of-law principles that exist among career civil servants as opposed to political appointees. (The point is the career? not the party registration or the fact that they held appointed positions. You could also go with Pat Fitzgerald vs. Scooter Libby.)  In my experience, that incident is meaningfully generalizable.  Every career prosecutor I?ve ever known would have had Comey?s back, not Gonzales?, in that confrontation, and that includes the staunch Republicans.  Indeed, within DOJ, Comey is now an icon, and that incident has become a template for prosecutorial ethics, captured by the aphorism ?Say yes when you can, say no when you must.?

    In short, take your run of the mill, bad political actor, the kind of actor your model is concerned to deter.  For that guy to criminally prosecute his political opponents for payback, he first has to get his prosecutors on board, and they are not likely to want to play that game.  He will be further hindered in successful frameups and discovery shenanigans by career agents who believe in the rule of law, and by judges who, like Emmett Sullivan, will sniff out malfeasance and bring the hammer down (further deterring prosecutors from participating).  He will also have to convince juries, who are neither fools nor pushovers.

    In sum, Horwitz?s model requires us to balance the danger of certain executive-branch misconduct (torture and extraordinary rendition, if we take the existing potential cases) against other executive-branch misconduct (retributive political show trials).   My response is that while there are reasons for doubting that the federal criminal justice system could be effectively co-opted in a project of political retribution, there are no comparable internal controls within, for example, the Defense Department or the CIA that serve to temper the executive-branch misconduct currently under investigation.