Justice suffers when it's political

May 29, 2007|By Randall D. Eliason

In early 1993, after the election of Bill Clinton to the White House, I was one of the federal prosecutors working on the criminal investigation of a powerful Democratic congressman, Dan Rostenkowski of Illinois. Shortly after Mr. Clinton took office, the Republican U.S. attorney in Washington, along with every U.S. attorney in the country, was replaced.

But our investigation of the influential chairman of the House Ways and Means Committee never lost a step. Under the new Democratic U.S. attorney in the Washington office and U.S. Attorney General Janet Reno, Mr. Rostenkowski soon was indicted and ultimately convicted.

There was concern in some quarters (perhaps hope in others) that Mr. Clinton's election might doom the prosecution of a prominent Democrat. But those of us working on the investigation were not worried. We knew that wasn't how federal prosecutors operated and were confident the outcome of our case would not depend on which party was in control of the Department of Justice.

I wonder whether career prosecutors today have that same confidence.

The past few months have seen numerous stories about the politicization of the DOJ, from the U.S. attorneys firing scandal to political influence in the civil rights division to career prosecutors being hired based on their partisan political activities. These events threaten the very soul of a critically important institution.

Justice requires that criminal prosecutions be subject to the rule of law, not to the whims of politicians. The government brings awesome power to bear against an individual in a criminal case. That power is legitimate only if exercised in an apolitical manner, based solely on the facts and neutral legal principles.

The primacy of the rule of law is one thing that sets us apart from authoritarian regimes, where law enforcement is used as a tool to oppress opponents and maintain political power. This ideal is fundamental to our liberty and to our national identity.

These are not mere platitudes to good career prosecutors. These dedicated public servants recognize the vital importance of the rule of law, and of keeping politics out of prosecutions. They understand that living up to this lofty ideal is indeed possible, because they've seen it done time and time again.

If politics are allowed to intrude on criminal law enforcement, the entire justice system suffers. In any prosecution with political overtones, the defendant routinely claims that the case is just a "partisan witch hunt." The counter to such claims has always been the DOJ's reputation for pursuing cases based only on the law and the facts, not on political considerations.

Because of recent events, that hard-earned reputation has been sullied. The next time a defendant claims that the prosecution's case is simply political, the public - and the jury - may be more receptive. Who could blame them for believing the defendant may have been indicted in order to influence an election?

Inside the DOJ, the effect may be equally devastating. Those hired or appointed with partisan goals in mind may lack an appreciation for the DOJ's mission and traditions. Even seasoned prosecutors will wonder whether, if they pursue a particular case too vigorously or decline to indict in a case they see as flawed, their careers might suffer because of the target's party affiliation. All of this may lead to good cases being ignored or, worse, to unjustified cases being pursued for political ends.

Indictments, jury verdicts, the arguments of prosecutors - none of these is worthy of respect if a prosecution is perceived to be simply an exercise of raw political power. If the wall between politics and prosecution breaks down, the criminal law is stripped of its moral authority, and our very notion of what "justice" means is compromised.

I now teach criminal law and regularly discuss the virtues of working as a prosecutor. This past semester, for the first time, I found myself feeling defensive about the DOJ, trying to assure my students that what they see in the papers is not the norm.

This may be the most serious consequence of these events: the fuel they provide for the fires of public cynicism about criminal law enforcement. When I look at the skeptical faces of my students, I fear the damage that has been done may be irreparable.

That's why, for those of us who respect the Department of Justice and cherish the ideals for which it stands, what is happening is not simply another Washington scandal. It's frightening - and heartbreaking.

Randall D. Eliason, former chief of the public corruption and government fraud section of the U.S. attorney's office in Washington, D.C., teaches at American University's Washington College of Law. This article originally appeared in the Chicago Tribune.

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