Legal Commentary

Yesterday's New York Times featured two stories, one from Russia and the other, from New York, that illustrate the corrupting potential of anti-corruption prosecutions. A Russian handed out six extra years of imprisonment to Mikhail Khodorkovsky, former billionaire magnate chief of the now-defunct oil company Yukos. Meanwhile, New York AG and governor-elect Andrew Cuomo settled a civil suit against Steven Rattner, financier and political insider accused of participating in a kickback scheme to win business investing New York's pension funds. Neither Khodorkovsky nor Rattner were angels: Both had, at the very least, been mired by a general culture of "pay-to-play" crony capitalism. But both also were arguably singled out for being vocal opponents of the government. In Khodorkovsy's case, it seems to be indisputable that the entire prosecution was an effort to eradicate one of Putin's more vocal political enemies. In Rattner's case, Cuomo's office retaliated against Rattner for defending his reputation out of the courtroom in a transparent effort to tarnish his reputation with misleading leaks of testimony, declaring that "when [Rattner] was questioned under oath about his pension fund dealings, he was much less talkative, taking the Fifth and refusing to answer questions 68 different times.? Given how easily loose talk under oath can land a hapless witness in a perjury prosecution, one can only be amazed at the sheer effrontery of Cuomo's press release: Of course, Rattner kept mum. Cuomo's brandishing this normal caginess sounds unnervingly like prosecutorial catch-22. Say too little under oath, and we'll slime your reputation; Say too much, and we'll hit you with a perjury charge.

Both the Rattner and Khodorkovsky cases, in short, involve criminal or civil prosecutions against politically active magnates in which there is a plausible claim of both private misconduct and also prosecutorial vindictiveness. What can be done about such potentially corrupt anti-corruption campaigns? Although these charges are a great way to silence those people powerful enough to be effective critics of the government, the very power of the targets allows prosecutors to claim plausibly that they are enforcing the law impartially against the powerful. Is there any way to control this sort of prosecutorial discretion without giving private power immunity from the law?

Eliot Spitzer's tactics are the most salient recent American example of what I call corrupt anti-corruption campaigns. The Sheriff of Wall Street engaged in tactics that ranged from merely abusive (e.g., allegedly pressuring AIG's board into firing Greenberg for committing offenses that, as it turned out, Spitzer lacked evidence to prosecute) to the downright oppressive and corrupt (e.g., allegedly threatening former Goldman Sachs John Whitehead that "I will be coming after you. You will pay the price" for writing an op-ed piece unfavorable to Spitzer). Peter Elkind's recent book about Spitzer seems to bear out Whitehead's account of Spitzer's threat, yet, such is the popular appeal of Spitzer's bringing down the mighty, that this vicious threat against Whitehead has never posed as much of a threat to Spitzer's rehabilitation as his shenanigans as Client Number 9.

How can this sort of corrupt selectivity in prosecution be curtailed without excessively weakening government's capacity to control private power? SCOTUS seems to rely exclusively on the idea of lenity, as in Weyhrauch v. United States. But dismissing indictments is not much of a weapon when the charge itself (with its accompanying press conferences, harassing depositions or grand jury grillings, legal expenses, falling stock prices, etc.) is the weapon to intimidate political opposition. One might imagine more drastic solutions -- say, barring former prosecutors from running for elective office -- which might diminish the incentives for prosecutorial big-game safaris to fuel later gubernatorial or senatorial runs. But such de-politicization of prosecutorial office might also eliminate the zealous energy necessary to face down well-connected political or financial Bigs.

Is there a middle-ground procedural solution to corruptly selective prosecutions? Perhaps, for instance, an impartial office could publish data on rates of prosecutions to unmask partisan motivation. Perhaps the criteria for indictments in certain politically sensitive areas -- tax audits, anti-gratuity cases against rival elected officials, etc -- could be publicized more specifically. I have no idea: Criminal law and procedure are not my areas. But I'd like to hear from those who know more than I about proposals to deal with the problem of politically selective prosecution against private power. In any case, I find a disquieting resemblance between the persecution of Khodorkovsky and the sorts of anti-corruption prosecutions that routinely fuel the political campaigns of Spitzers, Cuomos, Christies, Giulianis, and other ambitious prosecutors.