What do the Flint, Mich., water crisis and the grossly mishandled criminal investigation of former D.C. mayor Vincent C. Gray (D) have in common? Both involved appointed outsiders with little or no accountability to the local population.
In every city except the District, the prosecutions of serious local crimes — from murder to consumer fraud — are handled by prosecutors either elected or appointed by elected local officials. But in the District, all felonies and some serious misdemeanors are prosecuted by the U.S. attorney’s office, whose chief is appointed by the president and is not accountable to D.C. citizens.
This has been the case since the establishment of the capital city and was reinforced by the 1973 Home Rule Act, in which Congress specifically denied the D.C. Council authority to change the duties and powers of the U.S. attorney for the District. However, particularly with the advent of an elected D.C. attorney general, it is time for Congress to amend the law and allow the office of the locally elected attorney general to at least share responsibility for handling serious local criminal matters.
Now, the D.C. attorney general’s office is responsible for prosecuting juvenile crimes and a few adult misdemeanors (such as drunken driving and disorderly conduct), but it may not prosecute any adult felonies.
The impact of prosecutorial discretion was demonstrated by then-U.S. Attorney Ronald C. Machen Jr.’s influence on the 2014 mayoral election. Machen started the investigation of the financing of Gray’s 2010 mayoral campaign in 2011. In April 2014, on the eve of the election, Machen gave a sweetheart deal to a confessed corrupter of federal and local elections going back 20 years in return for his public claim that Gray was a knowing co-conspirator in the 2010 campaign.
No charges were brought against the mayor, but public allegations by the U.S. attorney probably led to Gray’s defeat in his bid for reelection. Before the announcement by the federal prosecutor, polls showed Gray ahead.
Placing prosecutorial discretion for local crimes, such as campaign-finance violations, with local prosecutors, would ensure that prosecutorial decisions reflected the concerns and values of the community. The recent admission by the U.S. Attorney’s Office that it has no way to answer a D.C. citizen’s request for records on the outcomes of criminal prosecutions (and arrests where no prosecutions followed) demonstrates the office’s lack of accountability to D.C. residents.
In light of the history, an immediate, wholesale transfer of felony prosecutions is not feasible. A place to start the transition would be crimes against the D.C. government. When I was the D.C. attorney general, our office uncovered the theft of more than $350,000 of District funds by a council member. This clearly called for criminal prosecution under the D.C. Code, but our office was prohibited from proceeding criminally. Instead, we filed a civil complaint and sent a copy to the U.S. Attorney’s Office. The feds then brought the criminal prosecution, securing a guilty plea, a conviction and a prison sentence. The U.S. attorney trumpeted this success. It would have been far better for the morale, reputation and pride of the District and our office if we had been able to bring that criminal case.
The Justice Department claims that there is only one sovereign in the District, and that is the federal government. That means that under the Constitution’s double-jeopardy clause, if local authorities prosecute a crime and the result is not satisfactory from the federal government’s perspective, the feds would not be able to bring a second prosecution on the same set of facts. In the states, there are two sovereigns. The facts underlying a state murder case that ends in an acquittal could still supply the basis for a federal charge.
But that condition is not sufficient to deny local felony prosecutorial authority to the locally elected and locally accountable attorney general. States and local jurisdictions often cooperate — without the problems the Justice Department envisions would happen in the District.
Of course, the U.S. attorney would have exclusive authority in the District to enforce federal criminal laws.
With Republicans, who profess a strong belief in local control of local matters, in control of both houses of Congress, and with a highly competent, elected D.C. attorney general in Karl A. Racine, surely the time has come for Congress to change the antiquated and undemocratic situation in which local authorities have no ability to exercise prosecutorial discretion on the enforcement of serious, locally enacted criminal laws.
The writer, senior counsel at Arnold & Porter, was D.C.’s attorney general under Mayor Vincent C. Gray.