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Friday, October 06, 2017

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions.  In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.

I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.

First, contributions in prosecutorial campaigns are worthy of significant scrutiny.  We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete.  I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule.  Of the races I’ve looked at so far, lawyers represent the largest class of donors.  This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers.  But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA.  Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?

That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest.  Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office.  But I’m not optimistic.  Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not.  Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing.  Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.

To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual.  Among other things, case-by-case explanations could be quite harmful to the individual in question.  As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions.  And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton).  But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute.  DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention. 

Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions.  The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute.  But I’d be surprised if we ever get all of the stories.  And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.

Because of this, I think that it is worth talking about reform in this area.  Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections.  And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues.  If you have any other ideas, feel free to share them in the comments or to email me directly.  My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.

Posted by Carissa Byrne Hessick on October 6, 2017 at 10:23 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink

Comments

How about revisiting the well intentioned but, as it turns out, problematic in practice Progressive notion that every executive official down to literal dog catchers ("animal control manager") ought to be directly elected?

Posted by: Brad | Oct 6, 2017 10:41:26 AM

Brad makes a very good point. I think Darryl Brown did an excellent job discussion how our commitment to democracy for criminal justice officers undermines the rule of law in his book Free Market Justice: https://global.oup.com/academic/product/free-market-criminal-justice-9780190457877?cc=us&lang=en&

Posted by: CBHessick | Oct 6, 2017 10:59:34 AM

How is this more egregious than, for example, campaign contributions by oil companies to Senators who sit on the committees that regulate them? Their partisan votes on behalf of their donors could have much wider-reaching effects.

Sadly, isn't this now "business as usual" in America?

Posted by: SR | Oct 6, 2017 11:48:08 AM

"How about revisiting the well intentioned but, as it turns out, problematic in practice Progressive notion that every executive official down to literal dog catchers ("animal control manager") ought to be directly elected?"

Such things are a balance between the conflicts that political campaigns will bring and the possible value of the public having a direct say. This is so especially if the alternative (another progressive move) is not some sort of independent body or civil service position but the appointment power of those who still will be influenced by campaign dollars.

I don't think the "dog catcher" is as silly as the citation might imply. An animal control officer is an important figure who engages with the public in various respects and there is some logic to giving the public the ability to select who will be going around dealing with their companion animals, local strays and pigeons in the park etc.

Prosecutors for major localities could on balance result in different policy choices in this area. The "well intentions" are based on certain good reasons. So, it is a matter of balancing. The key there would be the alternative means used, some which also has openings for financial skulduggery. Federal appointments are somewhat tainted that way.

Posted by: Joe | Oct 6, 2017 12:15:39 PM

FWIW, I do think that campaign contributions for prosecutors are more problematic for prosecutors than for legislatures because legislation is generally applicable, whereas prosecutorial decisions are necessarily case-by-case.
As for whether prosecutors ought to be directly elected, I don't know that there is a simple answer to that question. As I said above, Darryl Brown explores the issue thoughtfully in his book. And I'll add that it is unclear to me precisely what role we want politics to play in prosecutor offices. I doubt we want politics to influence specific cases. And there are real stumbling blocks to ensuring that the public knows what a prosecutor's policies are. (Check on Ron Wright's important work on this topic: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1339939) Finally, I'd note that much of what prosecutors do nowadays looks like what we think of as a judicial role. When prosecutors set policy, then accountability makes a lot of sense. But when they stand in judgment in a a particular case, independence seems more important than accountability. (Maggie Lemos has written eloquently about this in the civil enforcement context: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2748720)

Posted by: CBHessick | Oct 6, 2017 12:32:46 PM

I think the broader and more important point that came out of the Harvey Weinstein no-file disclosure, is that we were lucky to find out about the Weinstein no-file at all. Connected people are treated special by prosecutors routinely, regardless of whether they are elected or appointed - including federal prosecutors. I'm also unaware of any study showing non-elected prosecutors have fewer of the endemic problems associated with prosecutors than those who are elected. The campaign contributions are fine when fully disclosed, but that disclosure can't be complete unless no-file decisions (even redacted) are disclosed to the public.

So the much bigger problem is that most no-file decisions remain secret. A no-file data base is critical for the public to assess how the prosecutor is doing her job. No-file decisions can be as critical as filing decisions in deducing both good and bad patterns with a prosecutor. Another important source for no-files is the original complaining witness, who failed to become an official "victim.” Records regarding cases ultimately not charged can be kept and still retain victim and accused privacy.

Moreover, though prosecutors should be required to maintain such no-file records, there is little need to depend on any given DA, elected or otherwise, to assemble and maintain the data base. The FBI database on killings of civilians by police is known to be woefully inadequate because it depends on untrustworthy police departments, so the Washington Post put together its own database that is now the go-to source. This can be done for local DAs offices even more easily in most cases, and would make a great project for law students to inflict on their local DAs, imo.

Posted by: Laura Victoria | Oct 6, 2017 1:19:08 PM

"prosecutorial decisions are necessarily case-by-case."

I disagree. Top prosecutors often make decisions that an office will not prosecute X behavior as a crime under Y law. That's clearly the type of general policy that interested voters may want to support or defeat.

Posted by: James | Oct 6, 2017 1:21:09 PM

Investigative reporters are not the people who find out the most about legal stories, Carissa. The best stories about DAs, cops, and other legal stories are written about by legal specialists who also know how to write ok and ask good questions. Don't expect it to come from the New York Times or Five Thirty-Eight. Make it happen yourself in Charlotte, San Mateo County,CA or Breckenridge, CO.

Posted by: Laura Victoria | Oct 6, 2017 1:32:15 PM

You are correct, James, that prosecutors sometimes set clear policies about how their offices will treat certain types of cases. But the Wright paper I link to above shows that those policies are rarely part of the election coverage. The Comey announcement about Clinton was remarkable, in part, because it made clear what DOJ charging policy was under that statute. That policy was not public before, and I suspect most similar policies are also not public b/c prosecutors are worried about acoustic separation.

Posted by: CBHessick | Oct 6, 2017 1:38:36 PM

@Joe
"I don't think the "dog catcher" is as silly as the citation might imply. An animal control officer is an important figure who engages with the public in various respects and there is some logic to giving the public the ability to select who will be going around dealing with their companion animals, local strays and pigeons in the park etc."

That's great in theory, but in practice the voters simply don't have the bandwidth to make considered electoral choices for that many roles. It isn't even clear they have the bandwidth for 3 executives (pres, gov, mayor) and 6 legislators (2 senate, 1 house, 2 state houses, 1 local legislature).

When looking at races further down the ballot, if they are partisan they end up being de facto appointed by party bosses and if they are non-partisan either dominated by concentrated interests or even more arbitrary effects like ballot order, gender, or perceived ethnicity.

Posted by: brad | Oct 6, 2017 2:28:56 PM

The problems raised about the public being often unaware of DA office policies are true. But simply trying to find out whether they have any consistent policy can be difficult. DAs themselves are often unwilling to set forth these policies to anyone - including curious lawyers. My sense is the DAs prefer not to back themselves into a corner where they have to treat apples like apples, and oranges like oranges.

One can find out a lot about DAs and what motivates them simply by going to court against them regularly as a criminal defense lawyer. No special reading material is required whatsoever, though I have no doubt you have cited some excellent books and articles for your fellow prawfs here.

Posted by: Laura Victoria | Oct 6, 2017 2:44:51 PM

Re: Comment by James.

This comment about office-wide policies is also important. A particular DA I opposed had a policy against prosecuting withdrawn-consent rape cases, no matter what - even if accused turned from fairly normal to a maniac such that consent was withdrawn for a really good reason and not just a change in enthusiasm level. And this DA had a normal rape statute to work with - not the NC statute. This type of policy is certainly of interest to the general public, who may otherwise assume that their state felony statutes are enforced.

Posted by: Laura Victoria | Oct 6, 2017 2:51:42 PM

"That's great in theory, but in practice the voters simply don't have the bandwidth to make considered electoral choices for that many roles."

It depends on the situation. I think judicial elections in NY are inane in part because the public simply doesn't have the information to make informed choices. It amounts to party labels, endorsements and maybe things like the sex or last name of the nominee. So, I understand the concern.

But, if a town is voting for animal control officer, the voters very well might in such and such a case have the ability to make informed choices. A small limited local officer here very well might be more personal to the voters than a representative to the US Congress or a Brooklyn-wide DA.

Posted by: Joe | Oct 6, 2017 11:59:53 PM

"prosecutorial decisions are necessarily case-by-case."

I disagree. Top prosecutors often make decisions that an office will not prosecute X behavior as a crime under Y law. That's clearly the type of general policy that interested voters may want to support or defeat.

Posted by: Katty Kerr | Oct 16, 2017 5:12:12 AM

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