October 06, 2005,
If there is one thing liberals and conservatives ought to be able to agree on, it is this: Ronnie Earle, district attorney of Travis County, Texas, has no business wielding the enormous powers of prosecution.
I don't know Congressman Tom DeLay, the House Majority Leader. I certainly don't know if he's done anything illegal, let alone something so illegal as to warrant indictment. It doesn't look like it and at least one grand jury has already refused to indict him (a fact Earle appears to have tried to conceal from the public as he scrambled to find a new grand jury that would). Yet experience shows it is foolhardy for those who don't know all the facts to hazard a judgment about such things.
One thing is sure, though, and it ought to make anyone who cares about basic fairness angry. The investigation of DeLay, a matter of national gravity is being pursued with shocking ethical bankruptcy by the district attorney by Ronnie Earle.
For nearly 20 years, I had the privilege of being a prosecutor in the best law-enforcement office in the United States, the U.S. Attorney's Office for the Southern District of New York. Being a prosecutor is the world's greatest job because it is honest work for the highest cause service to one's own community. And it is work that has precious little to do with politics.
In their private lives, many of my fellow government lawyers were political independents, either by design (i.e., out of a conscious rectitude holding that law enforcement should be above politics) or because they were just apolitical. Most, as one would expect in New York, were Democrats. A large percentage, as, again, one would expect from a group of mostly young people educated in top schools, was proudly liberal. Over coffee, or lunch, or dinner, they and we few, hardy conservatives would have spirited debates over all manner of issues.
In the four corners of a case, however, none of that mattered a wit. Within those four corners, there were rules and responsibilities. There was recognition that prosecutors have breathtaking power over the lives of those they investigate. Power inarguably vital to the rule of law. But power which, if used recklessly or maliciously, can leave lives in tatters. The lives not only of the innocent and the guilty, but of the justice system itself.
This was especially so in investigations of political corruption. We prosecuted Republicans and Democrats, in about equal measure. The cases were hard, but checking your politics at the door was never hard, for at least two reasons.
First, there tends to be nothing ideological about the crimes committed by politicians. They are a stew of pettiness, greed and above-it-all arrogance over which neither party has a monopoly, and the offensiveness of which cuts across philosophical divides.
Second, some wrongs are simply not intended to be crimes. Among them are political wrongs: sleazy abuses of power, cronyism, most acts of nepotism, half-truths or outright lies in campaigns, etc. In a free society, these get sorted out in our bumptious political system. Usually, absent shades of financial fraud, bribery, and extortion, prosecutors should stay their hands. There are too many real crimes to waste resources on that sort of thing. More significantly, the risk of criminalizing politics would only discourage honest citizens from participating in matters of public concern.
The code prosecutors live by is not a liberal or conservative one. It is a code of ethics of nonpartisan, non-ideological honor. Of course many prosecutors are ambitious. Of course prosecutors want to win. But even the ambitious ones who care a bit too much about winning quickly learn that success is intimately tied to doing things the right way. And not least because that is the norm their colleagues follow as well as the standard by which the defense bar and the judiciary (populated by no small percentage of former prosecutors) scrutinize them. It is, moreover, the standard the public demands they meet.
People want to see the guilty convicted, but they also want to feel good about the way it is done. The prosecutor is the public's lawyer, and his duty is not merely to get the job done but to get it done right. The second part is just as crucial as the first. They are equal parts of doing justice. No one expects perfection, which is unattainable in any human endeavor. But if the outcomes of the justice system are to be regarded as legitimate, as befitting a decent society, people have to be confident that if they stood accused, the prosecutor would enforce their rights and make sure they got a fair fight.
So there are certain things that are just flat-out verboten. Most basic are these: to resist public comment about non-public, investigative information; to abjure any personal stake in the litigation that could suggest decisions regarding the public interest are being made to suit the prosecutor's private interests; and if all that is not Sesame Street simple enough to remain above any financial or political entanglement that could render one's objectivity and judgment suspect.
In the profession, these things come under the hoary rubric of "avoiding the appearance of impropriety." In layman's terms, they are about having an I.Q. high enough that you know to put your socks on before your shoes. This is bedrock stuff. It is central to the presumption of innocence, due process, and equal protection under the law that prosecutors owe even the most despicable offenders. It is foundational to the integrity of the system on which rest our security, our economy, and our freedoms.
And Ronnie Earle has flouted it in embarrassing, mind-numbingly brazen ways.
As Byron York has been reporting on NRO (see here, here, and here), Earle has partnered up with producers making a movie, called The Big Buy, about his Ahab's pursuit of DeLay. A movie about a real investigation? Giving filmmakers access to investigative information while a secret grand-jury probe is underway? Allowing them to know who is being investigated and why? To view proposed indictments even before the grand jury does? Allowing them into the sanctuary of the grand jury room, and actually to film grand jurors themselves? Creating a powerful incentive in conflict with the duty of evenhandedness to bring charges on flimsy evidence? For a prosecutor, these aren't just major lapses. They are firing offenses. For prosecutors such as those I worked with over the years, from across the political spectrum, I daresay they'd be thought firing-squad offenses.
Attending partisan fundraisers in order to speak openly about an ongoing grand jury investigation against an uncharged public official. As a moneymaking vehicle.
Penning a nakedly partisan op-ed (in the New York Times on November 23, 2004) about the political fallout of his grand-jury investigation of DeLay, then uncharged.
Settling cases by squeezing businesses to make hefty financial contributions to pet personal causes in exchange for exercising the public's power to dismiss charges.
Secretly shopping for new grand juries when, despite the incalculable advantages the prosecution has in that forum, the earlier grand jurors have found the case too weak to indict.
Ignoring the commission by members of his own party of the same conduct that he seeks to brand felonious when engaged in by members of the other party.
Such actions and tactics are reprehensible. They constitute inexcusably dishonorable behavior on the part of a public servant, regardless of whether the persons and entities investigated were in the wrong. They warrant universal censure.
If Congressman DeLay did something illegal, he, like anyone else, should be called to account. But he, like anyone else, is entitled to procedural fairness, including a prosecutor who not only is, but also appears to be, fair and impartial.
Ronnie Earle is not that prosecutor. He has disgraced his profession, and done grievous disservice to thousands of federal, state, and local government attorneys. Prosecutors of all persuasions whose common bond is a good faith commitment to the rules but who will now bear the burden of suspicions fostered by Earle's excesses.
The burden, but not the cost. That will be borne by the public.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.