What is a rogue prosecutor?
Objectively defining a rogue prosecutor is a challenging task. Identifying a rogue prosecutor is often a matter of perspective. Examples can provide some objective criteria.
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Justice in Brief
* In the District of Hawaii, the CEO of a corporation allegedly designing and producing “semisubs” was found guilty of soliciting $28 million worth of investments for the corporation and using them for personal benefit instead.
*In the Eastern District of Virginia, a group of people were charged with RICO and money laundering for using skimmers on gasoline pumps throughout the United States over the course of 10 years. They then took the card numbers obtained and sold them.
*In the Western District of Tennessee, a former Memphis police officer was indicted for civil rights violations and kidnapping for the officer taking the victim from his home and shooting him, allegedly for a dispute over a woman.
What is a rogue prosecutor?
A rogue prosecutor is one who operates outside of traditional behavioral norms. Recently, the label has been applied to progressive prosecutors. Critics of progressive prosecution apply this label because progressive prosecutors are attempting to change criminal prosecution norms. While progressive prosecutors would concur that they are trying to change prosecutorial norms, they would argue they are not “rogue” but are acting consistently with justice. How then can we identify a rogue prosecutor? Are there objective criteria?
Examining specific prosecutions can provide insight regarding the answers to these questions. This week’s issue will look at two cases. The first is current special counsel Jack Smith’s role in the prosecution of former Virginia Governor Bob McDonnell for bribery. The second is Ken Starr, whose work as Independent Counsel investigating former President Bill Clinton led to the desire not to renew the Independent Counsel statute.
United States v McDonnell - Jack Smith
In 2009, Bob McDonnell won election as Virginia’s governor. Prior to that he had been elected Attorney General and as a delegate to Virginia’s House of Delegates. While governor, McDonnell met Johnnie Williams, Sr. Mr. Williams was the CEO of Star Scientific which was developing a new compound to be used as a drug and dietary supplement. To achieve this goal, Mr. Williams needed clinical trials to demonstrate the compound’s abilities. He requested Governor McDonnell arrange meetings with University of Virginia officials so Williams could pitch is compound. In return for these services, Williams paid McDonnell more than $100,000 and provided expensive gifts.
When word of these transactions reached federal law enforcement, it began an investigation. As it involved a high-ranking state official, the Justice Department’s Public Integrity Section became involved. Jack Smith led that section and oversaw the prosecution. Prosecutors perceived McDonnell’s conduct as bribery. The federal bribery statute, 18 USC 201, requires that the public official received something in exchange for being influenced in an offical act. An official act is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” Smith’s section advanced the theory that arranging a meeting for Williams with relevant people at the University of Virginia fell within that definition as it encompassed any matter within the scope of the governor’s official duties.
This interpretation was consistent with the government’s arguments in many other cases that preceded Smith’s tenure at the Justice Department’s Public Integrity Section. In fact, the line of cases began in the 1980s. In these cases, the United States Supreme Court repeatedly rejected broad interpretations such as the one advanced by the government in McDonnell. This did not stop the government from trying. In fact, when the staff of New Jersey governor Chris Christie shut down the George Washington bridge as retribution against a political opponent, Smith’s section again argued for an expansive definition of property under the wire fraud statute. This trend continued even after Smith left his position in 2015.
The question this raises is whether these interpretations represent the Justice Department going “rogue” by seeking to expand the law’s reach. Is this outside the norms of prosecutorial behavior? Arguments can be made for each side. One could say that the pattern has continued for more than thirty years. Thus, it is clearly a prosecutorial norm: prosecutor’s advocate for broad statutory interpretations. On the other side, the United States Supreme Court, on a bi-partisan, non-ideological and almost always unanimous basis, has rejected these broad interpretations. In the later cases, the Court has explicitly rejected the government’s interpretations because the government cannot be trusted to use broad interpretations only in “appropriate” cases. While reasonable people can take either side, that fact reveals that prosecutorial norms, on their own, cannot distinguish a “rogue” prosecutor.
The Whitewater Independent Counsel
If people of a certain age were asked to identify a rogue prosecutor, many would identify Kenneth Starr who served as the Independent Counsel appointed to investigate President Bill Clinton and First Lady Hillary Clinton’s involvement in the Whitewater investment scandal. Although this was his initial assignment, the investigation expanded to cover numerous other scandals and led to an allegation that the President lied under oath in a civil deposition that he did not have an affair with a White House intern. The investigations consumed most of the public’s attention during Clinton’s two terms as President. While Starr’s investigation serves as the public’s perception of a rogue prosecutor, was this truly the work of a rogue prosecutor?
Whitewater began as an allegation that the Clinton’s received favorable treatment from an Arkansas bank when investing in a land development company. When news of this first appeared, the Independent Counsel statute had lapsed so Attorney General Janet Reno appointed former US Attorney for the Southern District of New York, Robert Fiske, as special counsel. Within the year, however, Congress re-authorized the statute which meant that a three-judge panel would select an Independent Counsel. They selected Kenneth Starr, who had been Solicitor General under Clinton’s predecessor, George H.W. Bush. Prior to that he had been a judge on the Circuit Court for the District of Columbia and on the short list for a Supreme Court appointment.
As Starr continued the investigation Fiske initiated, he found himself pulled in other directions. The Clinton administration began on shaky footing. It had made several politically costly decisions and had brought many of Hilary Clinton’s law partners to work in the White House though few had any political experience. One of these was Vince Foster, who was a Deputy White House Counsel. Foster became so depressed, that he committed suicide. Rumors circulated, however, that Foster had been killed. Added to that, White House Counsel Bernard Nussbaum removed Whitewater-related documents from Foster’s office upon learning of Foster’s suicide. This tied the two incidents together and forced Starr to investigate. Three years later, he reported that Foster had, in fact, committed suicide and there was no Whitewater connection.
“Travelgate” also emerged during this time. Although it had no connection to Whitewater, the three-judge panel that appointed Starr gave Starr authority to expand his investigation into this matter. Travelgate involved the firing of several staff in the White House travel office. The Administration claimed this was because those fired had stolen from the office. Administration critics claimed it was so the Clintons could appoint their people to the office. Starr’s investigation found that Hilary Clinton had made false statements to the investigators about her involvement but declined to seek criminal charges.
While these investigations related to conduct in office, Starr’s investigation veered into other matters as more scandals arose. Paula Jones filed a lawsuit against President Clinton alleging that Clinton sexually harassed her when he was governor of Arkansas. The case initially raised an issue of whether it could proceed while Clinton was President. The US Supreme Court said it could. This led to a deposition where Clinton was asked about other sexual relationships with staff, including one with a woman named Monica Lewinsky. Clinton denied having a sexual relationship with Lewinsky. When evidence emerged to the contrary, Starr expanded his Independent Counsel probe to cover this conduct. Ultimately, it led to Clinton’s impeachment and eventual acquittal.
Although criticized for expanding his investigation unnecessarily, Starr did what most prosecutors do in that he followed the evidence where it led him. In nearly every instance, Starr exonerated both Bill and Hillary Clinton, even when the matter involved false statements. The key difference between Hillary’s false statements and Bill’s perjury was the topic. Sex in the White Hiouse draws much more attention that lying to investigators about why people in the White House travel office were fired. When it came to the impeachment, that was a matter for the Republican-led Congress, not Kenneth Starr.
While Starr would later concede he should not have expanded his investigation into the Lewinsky matter, this does not change whether or not Starr went “rogue.” One can hardly say he abused his authority as a prosecutor. He did not violate any prosecutorial norms. He did not target the Clintons; the investigations were his assignment. He had no other cases.
Like the McDonnell case, the Whitewater investigation demonstrates that acting outside prosecutorial norms alone is not enough. Public perception also does not tell us what makes a rogue prosecutor. Next week will reveal some prosecutorial norms that would lead to a rogue prosecutor.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!