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?