June 21, 2012

Abbe D. Lowell was lead counsel to former senator John Edwards in his recent trial. He heads the white-collar and special litigation practice at Chadbourne & Parke.

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . . While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. . . . If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. 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.”

— Attorney General Robert Jackson, 1940

Seventy years ago, the attorney general — later a Supreme Court justice — admonished his Justice Department to choose cases wisely and never forget individual prosecutors’ enormous power and discretion. But in light of the verdicts in the John Edwards and Roger Clemens cases, and after the misconduct reported in the case against Ted Stevens, Jackson’s words seem to have gotten lost.

Every day, more crimes are committed in this country than there are police, prosecutors and judges to investigate and seek justice. This requires “prosecutorial discretion,” or choices about which cases and people to pursue. Some recent Justice Department choices have not been good.

With respect to former senator Edwards, the department spent more than three years and millions of dollars to invent a criminal theory of campaign-law violations to pursue someone who was basically trying to hide an extramarital affair. There were no charges of bribery or corruption; there were no complaining witnesses. After four weeks of trial and nine days of deliberations, the jury rejected that prosecution.

As to Clemens, the government spent four years and much money (and had to restart the trial after a prosecutor’s mistake) responding to congressional demands that the former pitcher be tried for lying at a committee hearing. The alleged lie was about the use of steroids in a baseball game — not national security, terrorism or organized crime. After six weeks of trial, the jury needed only 11 hours to reject this prosecution.

Other cases raise the same issues. In March, the Justice Department lost a retrial of six people in Alabama charged with bribery; a jury had rejected those same charges a year before. The department is still answering for its bad decisions in the case against former senator Stevens, in which it was found to have violated constitutional protections.

Some might say the system ultimately worked because the Edwards and Clemens juries fixed the problem. But before the juries spoke, the government had wasted enormous resources that could have been directed toward serious crimes — not to mention the time, money and emotion spent by defendants and their families. Even if the government had obtained convictions of Edwards and Clemens, would an objective review have concluded that exposing an admitted adulterer and an alleged cheater to federal prison had been worth the effort or was a good use of taxpayer dollars?

Another concern is how prosecutors brought these cases. The Justice Department chose not to prosecute or granted immunity to people for whom evidence had showed they had committed the real wrongdoing in order to get the person the government alleged was “higher up” in the scheme. Andrew Young, who agreed with Edwards to claim paternity for the out-of-wedlock pregnancy, was shown to have taken almost all of the million-plus dollars that had supposedly been spent to hide the affair and to have lied on multiple occasions. He also tried to improperly collaborate with other witnesses before trial. In the Clemens case, Brian McNamee provided the prohibited drugs to athletes and also admitted lying.

True, prosecutors must take witnesses as they find them. But consider the differences in giving immunity to a lieutenant in an organized-crime case to get the Don; allowing Young to remain free, while keeping a million dollars without taxes, to build a case against a former presidential candidate; and for McNamee to take the same oath that Clemens was charged with violating in order to make a case against one of the best pitchers in baseball history. The lack of proportionality is breathtaking.

Pointing out prosecutorial indiscretion is easier than finding a solution for it. There is little accountability for Justice Department attorneys who make these bad choices — some pundits or commentators may cite it. As to oversight, Congress would rather threaten the attorney general with contempt in an election year than tackle a real problem of wasted law enforcement resources. Even if real oversight existed, what would be the penalty? Cutting the Justice Department’s budget would only make it harder for real crimes to be pursued.

Still, the department’s inspector general or a similarly skilled official should do postmortems on failed cases to identify why decisions were made and who made them (this is critical), and to report annually on how much is spent on questionable but high-profile cases. In the Edwards case, who rejected a settlement with the Federal Elections Commission or a misdemeanor charge? In the Clemens case, who decided that following Congress’s referral made more sense than relegating the issue to Major League Baseball and Hall of Fame voters?

Another remedy is for bad decisions to have real costs, as they do for the defendants who spend vast sums to defend themselves. Currently, the costs of these cases are hidden in the salaries of career employees and line items for “travel” and “lodging.” The now-lapsed Independent Counsel law included a provision for the reimbursement of attorneys fees for misguided prosecutions. Allowing defendants in failed cases that have little public benefit to get their fees covered would be fair to the victims of this prosecutorial indiscretion. It would also heighten public awareness of the costs of these cases and provide real incentive for the government to think twice before bringing cases. Such individual accountability and financial impacts could ensure that Jackson’s prescient warning is not forgotten.