How to curb abusive prosecutors: a modest proposal

By Wes Vernon

This column, with the benefit of legal advice, proposes specific legislation to cut ambulance-chasing prosecutors down to size — not to protect the guilty, but to return purely political decisions out of the courtroom and back to the ballot box, as the founding fathers of this nation intended.

Prosecutorial abuse has run rampant in recent years. That is what happens when political differences are criminalized. Ever since Watergate, much of Washington has been hip-deep in the scandal habit. Every issue, every dispute has fed into a cottage industry of frustrated politicians thinly disguised as lawyerlike dispassionate pursuers of justice who have wrecked lives to shut up political opponents and dissenters.

Ken Starr

Occasionally, one of them will pursue the voyeuristic and ignore the real "elephant in the room." Ken Starr was accused by Democrats of playing politics with Bill Clinton's serial philandering. But in truth, a better case can be made that Starr ignored Clinton's sellout to Red China (yes, the name is still accurate). President Clinton illegally took campaign cash from the Chinese and also in return for campaign contributions okayed corporate deals with the Chinese that advanced their weaponry. Starr ignored that. This was an instance where a prosecutor actually did in fact protect the guilty. They say "justice is blind," but not blind as a bat.

Only Starr knows whether he simply decided that since sex is something everyone understands, he would make a political decision to go there instead of going after the betrayal of the United States. This again goes to the mindset of many politicians and other public figures — i.e., the people are stupid.

Here was a real impeachable offense — far more serious than Starr's accurate charges that Clinton lied under oath in the Lewinsky case. When you have a list of crimes, it is common sense to focus on the most serious — not the secondary charges.

Lawrence Walsh

Then there was the Inspector Javert-type who went after Ronald Reagan in the Iran-Contra case. Foreign policy was removed from the Commander-in-Chief and into the courtroom. Prosecutor Lawrence Walsh's mischievous meddling might very well have come close to crushing President Reagan's ultimately successful back-channel campaign to bring down the Soviet Union and end the Cold War. Walsh's dangerous adventure, coupled with his background as a brilliant lawyer, arguably verifies the old saying that "if he had brains, he would be dangerous." He had the former and was the latter.

Patrick Fitzgerald

Finally, we get to the case of the Chicago lawyer who has relentlessly pursued the Valerie Plame nonscandal "scandal."

On the first day of his investigation, Patrick Fitzgerald learned the name of the person who told columnist Robert Novak that Valerie Plame worked for the CIA. That person was Richard Armitage, then a State Department official who opposed the Iraq war. Thus he had no motive to "out" Valerie Plame in retaliation for the anti-war New York Times op-ed piece by her husband Joseph Wilson, who criticized the Bush Iraq Policy. (Wilson was later found by the Senate Intelligence Committee to have lied about who sent him on the mission to Niger regarding Iraq's intent to buy uranium there, lied about what he found there, and lied about his wife's role in having him dispatched to Niger. Even the previously supportive Washington Post editorially agreed that Wilson had discredited himself.)

After he learned who was Novak's source, Fitzgerald should then have reported back to the Justice Department (DOJ) that he found no underlying crime in the case, since Armitage, by his own admission, was a "terrible gossip" with no malice aforethought (or not much thought either, but that's another matter). Instead, Fitzgerald withheld that information and sought DOJ's approval to seek out additionally any attempts at perjury or obstruction of justice in the case. In other words, he went on a fishing expedition to catch someone — anyone — whose scalp could be a trophy for his resume.

The end result was the conviction of I. Lewis "Scooter" Libby for failure to remember accurately conversations he'd had months beforehand. This is arguably the greatest injustice meted out so far in this young 21st Century. We await Patrick Fitzgerald's testimony under oath as to what he had for dinner eight months ago last Tuesday, and it had better not be contradicted by the chef's recollection. This is by any measure an outrageous case of blatant prosecutorial sadistic overkill.

Criminalizing political differences with "gotcha" show trials is what happens in the early stages of a drift toward the police state. If this is a portent of things to come, God help the America our children and grandchildren will inherit.

So what to do?

This writer was out of the country when the Libby verdict was handed down, and the first thought that occurred (aside from the strong belief that President Bush should pardon the wronged Libby) was that there "ought to be a law" against prosecutions gone mad.

For that, we are indebted to attorney Steven Voigt, whose law practice is in Philadelphia, who is also Chief Law and Policy Advisor to RenewAmerica and a fellow columnist for this website. As is the case with all RenewAmerica columnists, his advice here does not necessarily reflect the view of RenewAmerica.

Steve was kind enough to take time off from his busy schedule to craft the following potential statute:

A. If a trial court determines there exists a reasonable possibility that:
(i) the prosecuting attorney suffers from any conflict of interest, has a personal interest in convicting the accused, or is acting on the basis of political vindictiveness; and
(ii) the prosecuting attorney's conflict of interest, personal interest, or motivation would have any potential to prejudice any right of the accused; then
B. The court may take any of the following actions:
(i) disqualify the prosecuting attorney;
(ii) order a dismissal; or
(iii) order such additional or other relief as is necessary to ensure fairness and objectivity in the prosecutorial process.
C. The trial court may sua ponte [a Latin legal term meaning "of one's own accord"] consider evidence in support of Part A of this Section at any time or, in its discretion, upon motion by the accused.

Voigt notes that federal prosecutors are bound by state ethical laws, but the ethical laws of states are not consistent from one state to the next. Moreover, there exists little practical check on prosecutorial discretion. Historically, the concept of prosecutorial discretion was a check against prosecutions themselves. This allowed the prosecutor to opt against the gray area cases where the evidence didn't really stack up well and to opt for better cases. "However, with a politicized judiciary, the field is blurred and prosecutorial discretion can become discretion to push the unreasonable case beyond reason," says Voigt.

Ray Donovan

Voigt's point that prosecutors are to back off from the "gray areas" cannot be over-emphasized. One notable example of how that discretion has been widely ignored by ambulance chasers was the fact that it took three investigations over five years to put Ray Donovan through the courtroom wringer, ultimately to a verdict of his innocence.

Raymond Donovan was President Reagan's first Secretary of Labor. He was pursued by Reagan's enemies. (We don't have "opponents" anymore in the "politicized judiciary" and the "permanent campaign." Only "enemies.") Those enemies (Democrats running Congress) were out to get Donovan because he was shaking things up at the Labor Department and their base of support didn't like it.

Don't like what he's doing? Destroy him

So they demanded a special prosecutor to investigate Donovan on trumped up charges. That special prosecutor had some old-fashioned ideas about fairness and objectivity. He reported back that he found no reason to prosecute the secretary.

But the notorious Washington wolfpack, apparently stunned that this guy apparently didn't "get with the program" that special prosecutor really meant special persecutor, dredged up new charges and ordered him to go back and come up with a scalp. They didn't word it exactly that way, but that's what they meant. The same prosecutor again thoroughly examined the allegations and again said there was no basis on which to take Donovan to court.

If you don't at first succeed....

Finally a couple of years later, some hack D.A. in the Bronx launched his own witch-hunt, and put Donovan through a long trial where a jury two years later acquitted him of all charges. At which point the vindicated defendant famously asked, "Where do I go to get my reputation back?" (Full disclosure: After I had been mugged on the streets of Washington in 1985, Donovan — with all he had on his mind — took the time to send me a sympathetic note.)

Speaking of hack prosecutors...

If the state of Texas were to adopt legislation similar to the above model, it would put D.A. Ronnie Earle of Austin out of business in five minutes. He has harassed his political enemies of both parties. Earle, a Democrat, went to a grand jury six times before he finally dragooned one to indict House GOP Majority Leader Tom DeLay on a witch-hunt aimed at bringing him down for (if truth were told) committing the heinous crime of being the most effective congressional leader in decades, but for the "wrong" party. It is not for nothing that Democrat operative James Carville said if DeLay were a Democrat, "we would control Congress." Perhaps not entirely by coincidence, with DeLay now gone, the Dems are running the Congress today.

Valerie Plame: Play it again, Sam

Congressman Henry Waxman, a Democrat representing the Hollywood elite in Beverly Hills, recently put on another one of his show trials. In true "Play it again, Sam" fashion, his committee called Valerie Plame to testify.

The toast (or toastess) of the Georgetown social "A" list testified that she had been "covert" within the preceding five years when Novak's column supposedly blew her cover. Waxman claimed he had the authority of CIA Director Michael Hayden to say Plame was covert.

Not following the script

However, Waxman became unglued when Victoria Toensing, who actually authored the Intelligence Identities Protection Act, testified that if Plame was "covert," she was not covert under that law. Toensing's testimony came after the media had cleared the committee room to write up their "Play it Again, Sam" stories. Waxman, of course, had planned it that way.

Bob Novak notes that Hayden talked to Waxman about Plame after refusing to discuss the same subject with Republican chairmen before the 2006 election. Hayden assures furious Republicans he's not a Democrat, but they speculate he might be bucking for a step up the ladder to Director of National Intelligence in a future Democrat administration.

Politics? Nobody here but us "covert" operatives

You will search in vain for media focus on the fact that (1) Plame was so "covert" that a CIA press secretary freely acknowledged to inquiring reporters that yes, she did work at the agency; (2) other CIA employees spoke freely of Plame's employment there; (3) Plame and her husband helped fund the Kerry campaign; (4) the Kerry camp dumped Wilson as an advisor after the embarrassing report by the Senate Intelligence Committee; or that (5) Plame might have been coached for her testimony by none other than Sidney Blumenthal.

Come again? That's right. That latter tidbit popped up on NewsMax (quoting journalist Eileen McGann) that two days before Plame's performance before Waxman's show trial, she and Wilson had dinner with Hillary Clinton and Sidney Blumenthal, the Clinton White House spin doctor known in some circles (not without reason) as "Sid Vicious." No doubt you are earnestly urged to believe these four met to discuss the weather.

Back to the point

Two points, actually. (1) President Bush needs to do the decent thing and pardon Scooter Libby now. (2) Lawmakers need to consider legislation — of which the above is humbly offered as a possible model — to curb the free-swinging threat to this Republic on the part of over-ambitious prosecutors.

© Wes Vernon