Power and Corruption

By Joseph E. diGenova

July 22, 2004

IN 1940, Attorney General Robert Jackson admonished a conference of U.S. attorneys to wield their power carefully. He warned that a "prosecutor has more control over life, liberty and reputation than any other person in America" and that "while the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."

Those words may have been in Deputy Attorney General James B. Comey's mind when he mandated that Maryland U.S. Attorney Thomas M. DiBiagio get approval from the Justice Department before indicting public corruption cases.

In a rare public rebuke, Mr. Comey sent the Republican Mr. DiBiagio a letter admonishing him for issuing recent directives pressuring his prosecutors for convictions of elected officials and seeking "front page" indictments by November.

What happened to Mr. DiBiagio last week was stunning not only for its tone, but also for its rarity. The matter was addressed only because it had become public. And because there was a hint of partisan intent and timing of indictments, Mr. DiBiagio needed to be quashed with vigor lest the Justice Department appear to condone such unethical misconduct.

While most federal prosecutors are professionals who respect the office they hold and the power it wields, it is also true that with the ever-increasing powers of federal prosecutors during the last 20 years, legitimate complaints of prosecutorial misconduct have increased. This is so because, historically, Justice Department supervision of U.S. attorneys has been meager.

Unfortunately, the department has a policy of not reviewing a prosecutor's misconduct if it is "related to and could be raised in the course of pending litigation." Justice departments of both political parties have maintained this inexplicably bereft policy, which invites abuse because prosecutors know their conduct will not be challenged in a timely manner, if at all. The Justice Department is able to avoid public scrutiny of such allegations because they do not become public, as did the DiBiagio matter. It appears that personnel in his own office complained to The Sun. Usually, defense attorneys are the complainers, and they are ignored.

Mr. DiBiagio apologized for his "impatience" in sending the e-mails to his prosecutors. He should have.

Patience and judgment must be the hallmarks of those who wield this vast, unreviewed power of investigation and prosecution. U.S. attorneys are not leading a military campaign. They must seek justice. In so doing, they must exercise restraint to harness the terrible intrusiveness of the power to investigate, which is the power to destroy.

Mr. Jackson, in his 1940 speech, called upon U.S. attorneys to rededicate themselves "to the spirit of fair play and decency that should animate the federal prosecutor," reminding them that "although the government technically loses its case, it has really won if justice has been done."

Mr. Jackson said prosecutors were duty-bound to "select those [cases] in which the offense is most flagrant, the public harm the greatest, and the proof the most certain." But he also warned sternly that prosecutors must carefully choose their defendants. "Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted."

Political ambitions of U.S. attorneys frequently feed suspicions of bias in investigations, especially when the prosecutor is of a different political party than those being investigated. When I left office as U.S. attorney for the District of Columbia in March 1988, I refused to run for elective office. I feared all the good work of the dedicated men and women in my office would have been suspect no matter how groundless those accusations would have been.

Mr. Comey, in admonishing Mr. DiBiagio, apparently heeded Mr. Jackson's final plea to U.S. attorneys: "The citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility."

Joseph E. diGenova is a former U.S. attorney for the District of Columbia and a former independent counsel of the United States.