Opinion

Are Federal and State Prosecutors Out of Control?

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Posted: Jun 16, 2018 12:01 AM
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Are Federal and State Prosecutors Out of Control?

In the middle of the night last summer, FBI agents raided the home of Paul Manafort, President Trump’s one-time campaign chairman, and seized documents prosecutors assumed Manafort would not voluntarily surrender even though he had cooperated with all prior document requests.

This spring, the U.S. attorney’s office for the Southern District of New York, acting on a tip from Special Counsel Robert Mueller, made a surprise appearance at the office of Trump’s personal attorney, Michael Cohen, and removed thousands of documents.

It appears law enforcement officials were not necessarily looking for documents directly related to the ongoing investigation of whether the Trump campaign worked with Russian agents to defeat Hillary Clinton, but rather at possible crimes wholly unrelated to the campaign, presumably to put the squeeze on Manafort and Cohen to turn on Trump in the Russia probe.

Even those who hope Mueller’s investigation sends Trump to jail should stop and ask whether prosecutorial tactics have begun to go too far. Consider the extraordinary saga in Wisconsin in recent years in which prosecutors secretly seized millions of confidential, personal documents from scores of conservative individuals and groups across the nation. 

Even after sharp rebukes by the Wisconsin Supreme Court, prosecutors tried to make the case they were entitled to hang onto the confidential information they had seized, some of it in pre-dawn raids at the homes of innocent people. The U.S. Supreme Court declined to even hear the prosecutors’ rationale.

This is not a partisan issue. Twenty years ago, a meandering and open-ended investigation came up dry with regard to Bill and Hillary Clinton’s role in the Whitewater land development deal but unearthed Bill Clinton’s affair with an intern. The seamy impeachment saga that ensued left the country with wounds that have not healed.

Indeed, prosecutorial overreach has been a topic of bipartisan concern in Congress for years. The open-Internet activist Aaron Swatz committed suicide in 2013 after being threatened with decades in prison if he decided to fight charges that he used MIT's computer network to illegally download millions of academic papers. Lawmakers from both parties said federal investigators were out of line but such tactics were “business as usual” in the view of legal scholar Orin Kerr.
 

Politicized prosecutions have become a growing problem. Prosecutors press cases they cannot make for political reasons, then politicians eventually beat the various raps, but not before their image and political careers lie in tatters.

It’s not just Manafort, Cohen and the John Does of Wisconsin. It’s also former Virginia Gov. Bob McDonnell, who was convicted of exchanging political favors for contributions from a businessman but had his conviction overturned when the Supreme Court determined he had taken no official acts on the businessman’s behalf. 

And it’s ‘Dollar Bill’ Jefferson, the former congressman from New Orleans, who served five years in prison after $90,000 in cash was found in his freezer, only to have the conviction thrown out last year because a judge determined the evidence against him was insufficient. 

Prosecutors also seem to be running amok in a case playing out in U.S. District Court in Phoenix that involves alleged bribes by a utility company to a regulator to secure utility rate increases

In that case, one of the prosecution’s key witnesses is Kelly Norton, an unindicted co-conspirator who acknowledged that she cut a deal with prosecutors in order to avoid prison time. The deal required her to testify against her ex-husband, Jim Norton, one of the defendants, even though defense attorneys contend she is bitter and still seeks revenge for the couple’s divorce in 2015 before Christmas. 

Kelly Norton said that at the direction of her ex-husband, she set up a phony consultancy and hired the wife of the regulator. But the utility regulator’s wife, who also is a defendant, has provided a 1099 form that shows she was a legitimate employee with the consultancy.

Another witness for the prosecution, Thomas Broderick, has acknowledged he is being paid $60,000 by the government to consult on the case and, during his testimony, stumbled and revealed he had spoken to another prosecution witness about the case. How can prosecutors acting in good faith put such witnesses on the stand?

A few years ago University of Tennessee Law Professor Glenn Reynolds published a paper, "Ham Sandwich Nation: Due Process When Everything Is a Crime.” The reference to the quip that a good prosecutor can get a grand jury to indict a ham sandwich seems as apt as ever.