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.