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Career Prosecutors And The Weasels Who Invoke Them

relief on the Robert F. Kennedy Department of Justice Building that reads Where Law Ends Tyranny Begins
The Robert F. Kennedy Department of Justice Building. Photo by Joe Campbell.

Whenever federal politicians and their appointees don’t want to take the heat for a sticky legal situation, they fall back behind the insulating cushion of the Justice Department's famous “career prosecutors.”

These public sector unicorns, pure as the driven snow, can be relied upon to dispense truth and wisdom untainted by politics and ideology. To a degree unknown among mere mortals, they shrug off personal considerations of affinity, loyalty and professional advancement. Instead they serve a higher calling, to earn the trust of the American people no matter the sacrifice.

Sure.

The next time a highly placed public official proclaims that we should trust the judgement of those career prosecutors, understand that you are watching a weasel try to slip into a hole in search of a gopher. You and I, and the rest of the American public, are the gophers.

Career prosecutors are two things by definition: prosecutors, meaning their professional DNA is coded to seek convictions by any available means, and career employees of the Justice Department, meaning they can and usually will override their hard-wired impulses when they see it is clearly in their professional interest to do so.

Most importantly, like nearly all prosecutors at every level of government, federal prosecutors face almost no personal or professional accountability for their decisions. Assuming you don’t work at the Justice Department, can you name any career prosecutors in the federal government? Even your own jurisdiction’s top prosecutor, the U.S. attorney? Probably not.

So when Attorney General Loretta Lynch excused her ill-considered visit with Bill Clinton in advance of a decision on whether to prosecute his wife’s handling of State Department emails, she was simply looking to evade her own professional responsibility by declaring she would rely on the advice of those famous career prosecutors, who, by the way, properly refer to her as “boss.” FBI Director James Comey, who isn’t a prosecutor at all, subsequently helped Lynch and those below her on the food chain to evade the evasion by declaring that there was no prosecutable offense in Hillary Clinton’s behavior in the first place. Lynch’s career prosecutors did not need to dirty their hands.

Likewise, when career prosecutors found no basis to prosecute former Internal Revenue Service official Lois Lerner for improperly using the power of her agency to kneecap conservative organizations, their decision should be viewed in context – namely the context that Lerner and those career prosecutors were part of the same administration. Expecting a different result would be like expecting a baseball team’s starting pitching rotation to recommend prosecution of the bullpen staff.

Yet when Sen. Ted Cruz, R-Tex., and other Republicans suggested an independent investigation of IRS behavior might be necessary, then-Attorney General Eric Holder assured him that “The Department remains committed to integrity and fairness in all of its law-enforcement efforts, without regard to politics.” Considering the source, as well as the eventual results of the investigation, the claim rang more than a little hollow.

However, when career prosecutors target anyone outside the administration that holds the keys to their own advancement, a different situation arises. Then the Justice Department’s career lawyers can be counted on to do the right thing – the right thing to achieve their immediate aims, that is.

Even if the right thing means presenting false data to the Supreme Court and then – remarkably – confessing the mistake more than a decade later while arguing that the misinformation should be overlooked in order not to disturb the outcome the department sought. The Wall Street Journal recently reported just such a scenario, in which it turned out the 2003 case Demore v. Kim was partly based on significantly erroneous data about the average amount of time immigrants were held during deportation appeals. The government’s handling of the mistake – and its argument that the outcome based on the error should remain undisturbed – echoes a similar flaw in a 2009 immigration case, to which the Justice Department admitted in 2012.

Yes, prosecutors reliably do the right thing – even if the right thing means overcharging defendants to force plea deals on shaky evidence, or intimidating defense witnesses with threats of their own prosecution, or posturing to put a defendant’s pubescent child on the witness stand to testify against a parent. Federal career prosecutors have done all this and more. And they have done it not in isolated cases, but repeatedly. A 2010 report by USA Today found 201 criminal cases in which judges determined that federal prosecutors had violated ethics rules or laws in pursuit of a conviction.

Jack Wolfe, a former federal prosecutor in Texas, told USA Today how easy it was in his experience for prosecutors to convince themselves they acted for the greater good. “When I was a prosecutor,” he said, “I thought everything I did was right.” Based on the results, not to mention the lack of serious professional or legal consequences, prosecutors apparently have little incentive to act otherwise. And, as I have written before, prosecutors have overstepped in a variety of ways in pursuit of headlines as often as justice.

This is not a failing of the Obama Justice Department in particular. These myriad violations occurred under administrations of both parties. In this respect, at least, those career prosecutors are as nonpartisan as is sometimes claimed: Their loyalties reliably lie to their own interests.

This is a cynical view suited to a cynical time. Some people think legal ethics is an oxymoron; I disagree. Some believe lawyers who ostensibly work for the public are apt to be more fastidious than their private sector counterparts; the evidence does not support this in any way. Nor does it necessarily support the contrary conclusion.

Those career prosecutors who work for attorneys general of whatever party holds power are just as human, and just as fallible, as their politically appointed superiors. The only difference is in accountability. So when you hear a public servant proclaim that we should trust in career prosecutors to make a fair and impartial judgment, think: Weasels at work.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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