McSwain continued his diatribe on Fox News, where he maligned Krasner as a “[George] Soros-funded“ prosecutor.
It is not the first time that the Justice Department under Attorney General William P. Barr has come out swinging in response to high levels of violent street crime in the City of Brotherly Love.
In the early-1990s, during Barr’s first tenure as attorney general, the city’s jail system was overseen by a lone federal judge, as a result of a consent decree between the city and Justice Department imposed in the wake of a finding years before of unconstitutional overcrowding in the jails.
The judge seemed to relish riding herd on the city. Her orders forced the weekly release of scores of defendants, an alarming percentage of whom committed violent crimes within hours of being back on the streets.
Importantly, none of the measures the court imposed (and the consent decree specified) was required by the Constitution; rather, they were levied because, in the court’s view, they were required to remedy the original violation.
This sat poorly with Barr, who reasoned that the court was imposing extra-constitutional measures that the city could not afford. As between difficult (but not unconstitutional) prison conditions and revolving-door crime, Barr knew which side he was on.
As did I. I wrote the Justice Department’s motion urging reform of the consent decree in support of the city. Barr came personally to Philadelphia and met with the media the day we filed the motion.
The move engendered tension within the department, especially from the Philadelphia Commission on Human Relations (PCHR) (though it also had strong support from other divisions). But it was the right position.
Compare this forceful intervention in the city’s affairs with Thursday’s PR assault by McSwain.
First and foremost, McSwain has placed himself at direct odds with the city’s elected public prosecutor. When we came into the Philadelphia consent-decree dispute, it was at the request, and with the shoulder-to-shoulder support, of Ed Rendell, then Philadelphia’s (Democratic) mayor, and Lynne Abraham, the (Democratic) district attorney.
This is no small difference. U.S. attorneys are supposed to be studiously apolitical, especially where it concerns putting a thumb on the scale of local electoral choices. That is the source of the well-known rule against issuing indictments in the shadow of an election. Here, however, McSwain virtually issued a call to Philadelphia citizens to oust their elected district attorney, and to local police to derogate his authority.
He also pointedly treated his supposed partner in law enforcement as a truant child, airing vague threats of possibly having to impose “adult supervision” on Krasner’s office.
Second, in the 1990s, the Justice Department did its primary talking in court. It filed a statement of interest in the District Court, and used its public statements to explain and elaborate on (with some added rhetoric, it’s true) its legal position to the community. Here McSwain went on a mini-PR tour, unconnected to any specific legal position, to assail Krasner.
Third, there was more than a little of Willie Horton-style demagoguery to McSwain’s tirade. Suggesting Krasner’s lenient treatment of lower-level criminal offenses caused this week’s horrific shooting goes well beyond the rational abilities of any criminologist to assess causation for individual crimes.
In fact, a striking irony of McSwain’s harangue is that the shooter was at the time subject to federal supervision for a prior federal crime; his long rap sheet did not include any recent district-attorney-prosecuted offenses. So if the direct causation argument implicated any individual prosecutorial decision, it was in McSwain’s office.
Let me put my cards on the table: I am no fan of Krasner’s enforcement policies and style, which I tend to agree have weakened law enforcement in Philadelphia. His views have a place in the criminal justice system, just not at the helm of a large urban district attorney’s office.
But that does not justify the unelected chief federal law enforcement officer in Philadelphia sowing open disrespect for the district attorney’s office and seeking to undermine the tenure of his supposed partner in law enforcement. The most notable success stories in federal law enforcement in recent years have entailed constructive partnerships in the public interest with local law enforcement. Partners — even in difficult relationships — do not go to war against elected officials in the press.
If McSwain is concerned about “a new culture disrespect for law enforcement” in Philadelphia, he should start by looking in the mirror.