Friday :: Mar 14, 2008

The Way Prosecutorial Power Is Wielded


by Turkana

At Harper's, Scott Horton explains his continuing suspicions about the Eliot Spitzer investigation. This should not be misconstrued, and he makes that clear:

Most people view the issues surrounding the Spitzer resignation as some sort of binary process. Either Spitzer is innocent and has been framed, or the feds did a great job ridding us of a charlatan who was disgracing the office of governor. On that framing, I go for option two: the investigation exposed tawdry and immoral conduct, and Spitzer should have and did resign.

But Horton understands that it isn't a binary.

Now once that is out of the way, we should be asking a second set of questions. Did the feds behave correctly in their management of the case?

And he has elaborated his blog post into a full article at The New Republic. But as he explains, in this latest Harper's piece:

The real questions begin when the Department of Justice enters the picture–after the IRS refers the matter to the Public Integrity Section. What is the measure of “normal” in a case like this? I have now looked at a long list of cases in which accusations of highly irregular financial conduct were lodged against Republican elected officials. In each of these cases, the Bush Justice Department reacted by doing nothing. No review of payments and bank records. No questions. No investigators. No warrants for wiretaps. It concluded that there was an insufficient basis to launch an investigation. In two of these cases there were extremely specific, well documented allegations–not something as nebulous as a SAR. So my reaction to arguments that the Public Integrity Section reacted with something akin to “standard operating procedure” is to say: certainly not. It took the SAR as a license to launch a major fishing expedition. And in the end it landed its fish.

No doubt there are a lot of folks who think that this is the way the cookie crumbles: Republicans go after Democrats and Democrats go after Republicans. Both protect their own. That’s the formula for a banana republic. I want the Justice Department to be detached from partisan politics, and to apply the same standards without regard to the letter that follows the public figure’s name. That might be an unrealistic objective, but I figure we’re never going to get there unless prosecutors get called on it when they cross the line behave in a way that reveals partisan bias.

In the present case, the media are actually complicit in this problem. They get a good story that helps them sell copy when prosecutors and investigators violate their ethical responsibilities and start talking about things they shouldn’t be talking about. So the media have no motive to blow the whistle on their informants, or even to criticize them. When the New York Times, which has exercised an impressive ownership of this story, runs an op-ed defending the conduct of the prosecutors—without ever having run a word raising questions about the way the case was handled—we’re entitled to call “foul.”

Indeed. And whether or not someone is guilty or innocent, possible misconduct by investigators, abetted by the media, is something we all need be aware of. At Balkinization, Michael Stokes Paulsen takes it even farther, imagining the cogent arguments made when a future Supreme Court uses Lawrence v. Texas to strike down Spitzer's presumed criminal conviction:

This case presents the issue we carefully reserved in Lawrence. See Slip Op. at 18 (noting that that case did "not involve . . . prostitution"). We now conclude that the liberty recognized in Lawrence applies equally to private, consensual sexual conduct by adults, in whatever form of intimacy those adults design. The fact that the arrangement might, in some sense, be thought commercial does not necessarily indicate that it is anything other than consensual.

The reasoning of Lawrence fully extends to the conduct at issue here. The government has attempted to criminalize consensual adult sexual relationships, merely because that consent involves a financial transaction. Though given the name "prostitution," that ancient pejorative, full of moral condemnation, cannot survive the realities of modern understandings of the right of individuals to make their own choices in matters "involving the most initimate and personal choices a person may make in a lifetime, choices central to personal dignitiy and autonomy." Slip op. at 13, quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

As we noted in Lawrence, and as is likewise true here, [t]he petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual." We noted, in Lawrence, the long line of cases supporting the constitutional right to privacy with respect to consensual sexual conduct, from Griswold to Eisenstadt to Roe to Carey to Casey. We swept aside Bowers v. Hardwick as a deviant case, departing from our norms. As we said in Lawrence, "a person relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Slip Op. at 6. "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." Id. One need not endorse the sexual conduct at issue here -- one may recognize its emotional harm to third parties, such as spounses and children -- yet still recognize that an intimate sexual relationship, "whether or not" entitled to the law's embrace, cannot incur the laws condemnation. The record here shows a long relationship. The petition certainly cannot be punished as a criminal for that relationship. To do so would be to deny him the "right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life" -- matters "[a]t the heart of liberty." Lawrence, quoting Casey.

As in Lawrence, we acknowledge that "for centuries there have been powerful voices" to condemn prostitution "as immoral. The condumnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. * * * These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. 'Our obligation is to define the liberty of all, not to mandate our own moral code.'" Slip op. at 10 (quoting Casey). That liberty, as we demonstrated in Lawrence, evolves with our sense of evolutions in social understandings, reflected in changed perceptions both in the United States, and, especially, in enlightened nations of western Europe, like the Netherlands. See id. Slip op. at 11-12. As in Lawrence, so too here: "The right the petitioners seek in this cae has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent." Slip Op. at 15.

There is no persuasive basis for distinguishing the Lawrence Liberty here. Moral condemnation is not, as we have shown, a persuasive or legitimate basis for laws interfering with intimate sexual liberty. Again, in Lawrence, we observed (following JUSTICE STEVENS's dissent in Bowers), that "'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'" , Slip Op. at 17. Nor is the fact that the arrangement may have a commercial element sufficient to distinguish this case. Abortion, which we have held to be an essential aspect of liberty, usually involves a commercial transaction. That does not lessen the liberty-refuge that we think should not be doubted.

I would call Paulsen's piece persuasive but optimistic. Horton, however, is onto something. As he writes in the New Republic article:

The way prosecutorial power is wielded divides a real democracy from a banana republic.
Turkana :: 2:44 PM :: Comments (19) :: Digg It!